Court Room Diary: People vs. Brinda Sue McCoy, 17 Feb. 2012

The broadest exposure most of our readers have to the court system is jury service. Our new feature, Court Room Diary, will allow readers to gain insight into the day-to-day working of our court system from the viewpoint of a bystander, rather than as a prospective juror, plaintiff or defendant.

Our first Court Room Diary follows the case of People vs. Brinda Sue McCoy, case number 10CF3399.

This article is the second on case 10CF3399.

Prior events

A California Pitchess motion is a request for information contained in a police officer’s personnel file. Criminal defense lawyers typically raise this motion when they believe that their client has been the victim of police misconduct.

The case was assigned to Judge F.P. Briseño in Department C45 of the Central Justice Center of the Superior Court of Orange County.

According to the Office of the Orange County District Attorney, “McCoy is accused of firing [a] gun twice at police officers [from the City of Cypress] who were stationed behind two parked vehicles outside the defendant’s home. SWAT stopped McCoy using a bean bag gun.” The case summary lists fourteen separate counts of assault with a semi-automatic rifle, discharge of a firearm and grossly negligent discharge of a firearm.

She is currently out on conditional release with bail set at $250,000.

The defendant is represented by Lew Rosenbloom. Mr. Rosenbloom worked for the Orange County District Attorney for an extended period before launching his own practice in criminal defense. He earned his law degree from Western State University and was admitted to practice law in California in June 1981.

Senior Deputy District Attorney Rebecca Olivieri of the Special Prosecutions Unit is prosecuting this case. Ms. Olivieri received her law degree from Western State University in Fullerton and passed the California State Bar Exam in June 1993.

The City of Cypress is represented by Lindsay M. Tabaian, Assistant City Attorney for the City of Cypress and an associate with Aleshire & Wynder LLP.

The trial was originally scheduled to begin at 9 a.m. on Monday, Jan. 9.

However, the original trial date was undone by a last-moment Pitchess motion filed by the defense. (The prosecutor had filed an earlier Pitchess motion that Judge Briseño denied.)

After some considerable backing and filling and misunderstandings over several days and across three different hearings, the Judge signed an order drafted by Cypress City Attorney William Wynder that all parties agreed to follow for the first step of the Pitchess motion.

A re-scheduled trial date of Jan. 18 was cancelled.

A new hearing date on the Pitchess motion was set for Friday, Feb. 17 at 11 a.m. before Judge Briseño.

Moving the ball down the field

The set of players that appeared for the hearing on Feb. 17 included Senior Deputy District Attorney Olivieri; Defense attorney Rosenbloom; defendant McCoy; and Assistant City Attorney Tabaian. Mr. Wynder was not there. Cypress Police Department (CPD) Lieutenant Rod Cox arrived just before the hearing began, and remained at the rear of the court room.

An addition to the audience for the hearing was a group of students, there to learn about trials and court room proceedings. Prior to the hearing, the court bailiff explained to the students who sits where in the court room, and where in the building different types of cases are tried. The students remained through the entire hearing.

Judge Briseño got right down to brass tacks.

He granted the Pitchess motion and ordered the Cypress Police Department to produce a written order for the Court’s review within ten working days. He noted that he thought the request as worded in the motion was over broad, and directed the City of Cypress to craft the order more narrowly.

Ms. Olivieri requested clarification on which statements would be released, and particularly whether the release would be limited to any particular form.

Judge Briseño stated that the order should cover statement is any and all forms or media.

He also cautioned the parties that he wanted to provide latitude for investigation by the District Attorney and the defense once the statements were in hand.

In particular, Judge Briseño noted that some of the statements were made as part of an internal CPD investigation that compelled testimony. Outside such an internal investigation, CPD employees would not be compelled to either talk to investigators or testify in court.

At this point, Mr. Rosenbloom stated that he fully expected none of the witnesses to speak to his investigator, that he may file a Brady motion in addition to the Pitchess motion, and that he may call some number of them as character witnesses.

Regarding a defense attorney and Brady material, according to Los Angeles County District Attorney’s Office Special Directive 02-07:

If a defense attorney, either orally or in writing, provides information to the assigned prosecutor that a material law enforcement witness’ version of events may contain material misstatements or omissions, that defense attorney is to be directed to either file a Pitchess motion or provide to the prosecutor a signed declaration under penalty of perjury by the individual with personal knowledge of the law enforcement witness’ untruthfulness.

Upon receipt of such a declaration, the prosecutor shall request that the employing agency review its personnel files for possible Brady material using the Brady form.

Mr. Rosenbloom then requested time to confer with Ms. Olivieri. Ms. Tabaian was included in the extended off-record conference.

When the attorneys finished and the hearing went back on record, Ms. Olivieri spoke for the three, stating that the City of Cypress had agreed to return the drafted Pitchess order within five working days in order to speed proceedings and allow a new trial date of March 12.

After a caution to all three lawyers about possible unforeseen legal complications, Judge Briseño agreed to schedule a new start for the trial on March 2 at 9 a.m.

Bail hearing

Mr. Rosenbloom then asked Judge Briseño to reduce bail for the defendant. Judge Briseño denied the request.

The defense attorney persisted, noting that the defendant did not hurt anyone, that she is in treatment, that her medication has been changed, that she is unlikely to flee, that she lives with a law enforcement officer, and that she has appeared in a timely manner to all her hearings.

Judge Briseño acknowledged Mr. Rosenbloom’s list, but said that he did not feel comfortable reducing bail given the defendant’s undisputed “bizarre behavior.” He again denied the request to reduce bail.

Sealed document

Judge Briseño closed the hearing with a comment regarding a sealed document submitted by Ms. Olivieri that she had asked about earlier in the proceedings. The judge said that he had reviewed the document, and preferred to keep the document under seal for the time being.

And with that small mystery, the hearing ended.

Court Room Diary: People vs. Brinda Sue McCoy, 09 Jan. to 13 Jan 2012 (oc-breeze.com)
Active criminal casebook: Brinda Sue McCoy (oc-breeze.com)

About the Author

shelley

Shelley Henderson is a reformed computer and networking geek turned freelance writer. Now she only fixes her own networks and computers. That leaves time for writing, and writing and more writing. And editing the Orange County Breeze. Shelley most enjoys visiting and finding out about local businesses to write business profiles that allow our communities to learn more about their local businesses and the people who own and run them. If you own or manage a business in our coverage area and would like to invite Shelley to write a business profile, let us know.