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| Thursday, Sep 27 2007 12:43 PM
Last Updated: Thursday, Sep 27 2007 7:33 PM
Kern County Superior Court Judge Michael Bush on Thursday served defense attorneys on the Vincent Brothers case an order to show why they should not be held in contempt of court.
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Vincent Brothers along with his lawyers Anthony Bryan (left) and Michael Gardina (right) listen to the jury's recommendation for the death sentence in May 2007.
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Bush wants to know if defense attorneys Michael Gardina and Anthony Bryan mishandled evidence regarding a crash with a boy on a bicycle in Ohio.
Gardina declined to comment after Brothers was sentenced to death. Bryan left the courtroom without commenting.
The defense presented two witnesses during the trial who saw a crash in Ohio around the time Brothers’ family was killed in Bakersfield in July 2003.
Later Brothers took the witness stand in his own defense and told the jury he was the driver in that crash. If it were true, it would have been the ultimate alibi and the key to Brothers’ freedom.
But after Brothers testified, the prosecution found a police report indicating another man, Tamba Lebbie, was actually the driver in that crash. The other man testified at the trial that he was the driver in a crash with a boy on a bicycle with very similar circumstances to the crash Brothers described.
Bush wants to know why these documents were never turned over to the prosecution. Further, the judge wants to know if the defense attorneys knew this man was actually the driver of the car.
The defense attorneys said they knew of the police report before the trial ever began. But they did not turn it over to the prosecution because their investigator talked to Lebbie and he denied he was in the crash, leading them to believe that Brothers was in the crash and the report was incorrect.
But months before the trial began, the defense attorneys asked the judge to order the prosecution to turn over any documents it might have regarding this crash.
Prosecutor Lisa Green said she had no documents and the judge in turn ordered the defense to turn over any such documents it might have.
Bush wants to find out if the defense queried the court to see if the prosecution had the document because the defense wanted to present false evidence without detection.
The judge also wants to find out if the defense attorneys should be held in contempt of court for a passage written in their motion for a new trial filed Sept. 12.
In the motion, the defense wrote, “It cannot escape one’s attention or the reasonable conclusion, that the prosecutor ignored, with impunity, the Court’s repeated warnings with the knowledge that she would, further, escape sanctions by taking unfair advantage of the longtime friendship that existed between the Court, the prosecutor and her husband, a man whom he has known since law school.”
In effect, the defense accused the judge of showing Green preference because of their past friendship. Bush wrote in the order that the statements were “charging judicial dishonesty and impugning the court’s integrity.”
Brothers’ previous attorney, Kevin Little, filed a motion for a new judge when Bush was assigned the case in 2005 because Little feared Bush could not be fair. Little argued Green was involved in Bush’s election as a judge, he worked with her when he was a prosecutor and was friends with Green’s husband, Jeff, who also worked with Bush at the prosecutor’s office.
Bush ruled at the time that he believed he could be fair because he no longer socializes with the Greens.
Bush also believes Gardina could be held in contempt of court for asking questions of a witness even though the judge previously ordered he should not ask those questions.
During the trial the defense presented a witness who calculated how quickly a person could travel between Ohio and Bakersfield.
Bush said Gardina could ask questions about how fast a person could drive, but Gardina could not include specifics from the testimony of other witnesses.
“Mr. Gardina then asked a hypothetical question that referenced other witnesses’ testimony,” Bush wrote.
Bush will preside over the contempt of court hearing scheduled for Nov. 15. He will ask the questions and he will make the rulings. The judge said he may call Green and the main detectives on the case who uncovered the police reports regarding the crash in Ohio at the hearing.
The judge wrote in the motion the defense attorneys were ordered “to show cause, if any you have, why you should not be adjudged guilty of contempt of court ... for the acts of willful disobedience of a lawful court order, for abuse of process of the court, (and) for presenting evidence that you knew, or (reasonably) should have known, was false or misleading.”
If Bryan and Gardina are found in contempt of court, they could be punished with fines or jail time.
Green said after the hearing that she believes the defense attorneys are guilty of contempt of court.
“It is a win-at-all-costs philosophy,” Green said.
That is the accusation that has repeatedly been lobbed at the Kern County District Attorney’s office by defense attorneys.
This hearing follows accusations from the defense that the prosecutor committed misconduct.
“I didn’t do anything wrong,” Green said. “The court referred to me as a passionate advocate and that is how I would like to be known.”