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Changes and delays mark Richmond High rape case

on January 11, 2011

The Richmond High rape case crawls into the New Year with a six-week postponement and significant changes to the defense and prosecution.

Six defendants held to answer for the 2009 rape and beating of a 16-year-old student appeared in Contra Costa County Superior Court yesterday to reenter their pleas following last month’s preliminary hearing.

Judge Brian Haynes postponed the arraignment until February 23—as requested by defense attorneys.

Absent from the proceedings was former deputy District Attorney Dara Cashman, who prosecuted the preliminary hearing. Cashman is no longer a part of the Contra Costa DA’s Office.

With the election of Mark Peterson to District Attorney and his decision to reshuffle top management in the office, Cashman faced a demotion. Peterson told Cashman she would no longer be a senior deputy DA nor the head of the sex crimes unit. To protect her retirement benefits, Cashman opted to quit in late December before Peterson came to office.

Deputy District Attorney John Cope, the DA’s top homicide prosecutor, has taken over the case in place of Cashman. Outside yesterday’s proceedings, Cope declined to comment on the impending trial citing his unfamiliarity with the case.

Cope will have to read through hundreds of pages of preliminary hearing transcripts—about two-feet of stacked paper—as part of his preparation for taking over the case.

Yesterday’s postponement is not the first and probably not the last in a case that could take many months or longer to fully prosecute. The preliminary hearing alone—described by Cashman as “a proceeding more like a trial”—included 20 witnesses over the course of 20 days. More than 14 months have passed since the assault took place, and there is no indication when the case will go to trial.

With six defendants who have implicated each other in the crime, the case is particularly complex for the prosecutor. Two constitutional rights may come in conflict with one another at trial. Defendants have a Sixth Amendment right to cross-examine any witness who testifies against them or anyone who has implicated them in a confession. But if that witness is a defendant himself, he has a Fifth Amendment right not to testify.

The DA’s office avoided this problem late last year in another trial with multiple defendants by requesting dual juries—unprecedented in Contra Costa County.

Prior to retiring, Cashman agreed that the use of dual juries would be one possibility for the prosecutor. She also said there could be as many as five separate trials for the defendants. DA Cope said it would not be prudent to comment on how he’ll prosecute the case at this time.

In addition to the shakeup with the prosecutor, there are changes happening with some defense attorneys. 18-year-old defendant Marcelles Peter has retained private attorney Gordon Brown to take over for his court-appointed defense attorney, Paul Feuerwerker.

Also, Public Defender Jack Funk indicated he would not be representing 20-year-old Manuel Ortega at trial. Funk has previously stated that he’s retiring in the spring.

No changes have been made to the charges filed against the defendants since the preliminary hearing. As prosecutor, Cope is allowed to amend the charges—either add more charges or reduce charges—based on his discretion of what the evidence indicates.

Defendants Ari Morales, 17, and Marcelles Peter, are being held to answer on charges of rape by foreign object while acting in concert.

Defendants Jose Montano, 20, and John Crane Jr., 44, are charged with forcible rape while acting in concert.

Defendant Manuel Ortega is charged with second degree robbery for, assault with force likely to result in great bodily harm, forcible rape while acting in concert, penetration by foreign object, and oral copulation while acting in concert.

Each of these five defendants face life sentences if convicted of the rape charges against them.

A sixth defendant, 23-year-old Elvis Torrentes, faces a felony count of sexual penetration of an intoxicated person, which carries a maximum prison sentence of eight years.

At the conclusion of the preliminary hearing on December 21 of last year, Judge Gregory Caskey dropped the rape charges against Torrentes, which could have meant a 26-year sentence. The next day, Torrentes posted $100,000 bail and was released from custody.

Also in the preliminary hearing, Judge Caskey dismissed all charges against a seventh defendant, 16-year-old Cody Smith.

The case continues with a second arraignment in Contra Costa County Superior Court in Martinez on February 23, when defendants will reenter their pleas.

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