Escareno Trial Begins

by Bruce McEwen, December 2, 2009

The Marcos Escareno murder trial got underway early Monday morning, November 30th, with a Native American prayer ceremony in front of the Ukiah Courthouse. Escareno is a member of the Manchester-Point Arena band of Pomo Indians. He is accused of killing Enoc Cruz on the Manchester side of the rancheria on February 6th, 2007.

Escareno was 14 at the time of the shooting, Cruz 21. Cruz, a reputed drug dealer, had been sharing a home with Escareno's two sisters. Coast people who knew Cruz said he was foul mouthed and menacing. The two sisters had evicted Cruz but Cruz is believed to have returned to the home to demand personal belongings he'd left behind and to collect drug money owed to him. Escareno, who been drinking heavily the day of the shooting, was charged as an adult.

Attending the good luck ceremony on the Court­house lawn Monday was Escareno's defense team of attorneys Katharine Elliot, Omar Figueroa, Tony Serra, and his Guardian ad litem, former County Supervisor Norman De Vall.

The prosecutor, Deputy DA Brian Newman, was apparently under some apprehension that Mr. de Vall would use his Friday morning radio program on KYZX to advocate for the defendant. Newman’s first order of business was to call for a gag order not only on de Vall but 5th District supervisor David Colfax and Escareno's defense team. Judge Ron Brown, how­ever, denied the motion “without prejudice,” a legal term meaning it is still a possibility the gag order could be imposed later.

There are a couple of controversial issues affecting the case.

The first is Escareno’s age. He was only 14 years old at the time of the shooting, and Katharine Elliott, the lead defense attorney, intends to file a motion sometime this week to have the matter removed to Juvenile Court – a motion that has been denied sev­eral times previously. If the trial as an adult goes for­ward, Escareno will be the youngest defendant to be prosecuted for murder – based on his age at the time – in County history. He’s 17 now.

When the boy was first arraigned, February 10th 2007, Deputy DA Scott McMenomey said his office had decided to prosecute the shooting in adult court after “reviewing the circumstances.” Later, when Meredith Lintott was elected DA, the issue of whether or not to prosecute Escareno as an adult was raised again, and again the DA’s office decided to pro­ceed in adult court despite entreaties from Mr. de Vall to send it to Juvenile Court and Ms. Lintott’s campaign statements that she thought the decision to try him as an adult should be made by a judge.

A 1995 law lowered the age at which a defendant may be tried as an adult in California from 16 to 14.

Then there is the question of competency. In Feb­ruary of this year Escareno, a soft-spoken youngster with no previous history of violence, had a compe­tency to determine if he possessed anything like an adult capacity to understand the proceedings. The jury deadlocked, six to six.

Then-Deputy DA Matt Finnegan had been assigned the case, but he is no longer with the DA’s office (in fact he’s now suing the County over the cir­cumstances of his departure). Both Finnegan and Elliott decided that Judge Brown should rule on Escareno’s competence, and in August Brown ruled that the defendant was competent to stand trial for murder as an adult. Ms. Elliott said at the time that, “the law is that the burden is on me as his counsel to prove that he is incompetent to stand trial, because the evidence couldn’t go enough in one direction or the other – which means we failed to prove he was incompetent.”

de Vall has said that Escareno has serious learning disabilities and a poor education. A Santa Rosa based psychologist, Laura Doty, testified that Escareno’s verbal intelligence was almost 30 points below average and his school teacher said his attendance was only about 10% of total school hours. de Vall was appointed by the Mendocino County Juvenile Court as Escareno’s Guardian ad litum, meaning legal guardian for the purpose of court proceedings.

There were also questions about the confession extracted from Escareno the night of the shooting. Cruz, 21, was shot multiple times while he sat in his minivan near the house of Escareno’s sisters. Ms. Elliott argued that Escareno did not knowingly and intelligently understand his Miranda rights when he was interrogated by responding investigators She called the defendant to the stand where Escareno said he heard the officer read him his rights but didn’t know what they meant. He had been in special educa­tion classes since he was six years old. He was also so drunk when he was interviewed he couldn’t stand and had to sit on the couch as he was questioned.

The prosecution was taken by surprise by this tes­timony, but Judge Brown ruled that the confession would be admitted into evidence.

In the meantime, Omar Figueroa and the cele­brated civil rights attorney, J. Tony Serra, both of the Pier 5 lawyer offices in San Francisco, have joined the defense team. The city lawyers are working pro bono. The trial is expected to last four weeks; jury selection began Monday afternoon. Marcos Escareno was limping as he entered the courtroom in white shirt and tie. It was later learned that the boy is “hobbled” by a device attached to his leg to prevent him, it seems, from running away. During previous appear­ances Escareno had appeared in visible chains.

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