Tuesday, May 6, 2008
Bradley Smith of Modesto, California, who is charged with making racist threats -- including a promise to burn a cross on a black man's lawn -- may not testify in his upcoming trial; nonetheless, the prosecutor will be allowed to introduce a transcript of incriminatory testimony that Smith gave to a grand jury last year, pursuant to a pre-trial ruling by U.S. District Judge Lawrence J. O'Neill. Smith was a neighbor of Alfred Henderson and his wife Ramona (both African-American) and allegedly:
-made racist comments about the Hendersons over a CB radio;
-hurled racial slurs at Alfred;
-threatened to sexually assault Ramona; and
-as noted, promised to burn a cross on the Henderson's lawn.
Subsequently, there was a grand jury hearing where Smith denied these allegations but did admit, inter alia, that he had an antagonistic relationship with Alfred and that he sometime adopted the aggressive persona of "Obie Won" when he talked on his citizens band radio. When he gave this testimony, Smith was neither notified of his right to an attorney nor represented by an attorney, but he also was not charged with anything, with the grand jury not handing up an indictment against Smith until months later. Smith now stands charged with interfering with Alfred's housing rights and making a false statement to an investigator.
Before trial, Smith's attorney moved to suppress his testimony before the grand jury on the ground that Smith was not notified of his right to an attorney. Judge O'Neill, however, denied this motion on the ground that Smith had not been charged with any crime at the time of his grand jury testimony. I believe that this ruling is proper because it is well established that the right to counsel does not attach until the presentment of an indictment by the grand jury. See, e.g., People v. Brown, 89 Cal.Rptr.2d 589, 601 (Cal. App. 1 Dist. 1999).