Matthew McCarthy had been scheduled for jury trial seven times and always managed to get out of it because he was reluctant, to say the least, to have the two girls he’d been molesting take the witness stand and tell the jury all the foul things he’d done to them. And here he was again saying he wasn’t ready to go to trial.
Previously, the Spy Rock perv had fired his lawyer, Vashad Dewan, of the Office of the Public Defender, on the eve of trial. That time McCarthy had convinced the judge he was able to handle the case by himself. This time, on the morning of the trial, he said he had hired a private lawyer, Monty Hansen, and the case couldn’t go forward until Mr. Hansen had had time to prepare.
The District Attorney, David Eyster, was against any more delays. He had gathered all his witnesses, some from out of state, one from the hospital, and was ready to go forward. A motion to continue, Judge John Behnke noted, requires two days written notice, and His Honor hadn’t gotten one until 9:00 that very morning. Not only that, but Mr. Hansen was not even there yet. Hansen was running late, and the jury was downstairs waiting. The judge was not happy. He had McCarthy’s Faretta waiver (of having an attorney) before him.
The reason for the last minute change of plan, McCarthy said, “was because last Friday the DA offered [him] 35 years to life in exchange for guilty pleas to the charges, and [he] finally realized he could not do the trial himself.”
Hansen finally bustled in and said much the same thing, pointing out that McCarthy would be cross-examining his own daughter (one of the victims). McCarthy’s family had contacted Hansen after McCarthy called them from the jail, and Hansen had come on Saturday “to ascertain if we were compatible and I could work with him. Mr. McCarthy’s family came over [to Santa Rosa] and presented the funds” for Hansen’s retainer “and I can’t imagine how he [McCarthy] could pick a jury or cross witnesses. And he has a prior 288 [child molestation conviction] so he couldn’t possibly take the stand himself, and I believe he is going to alienate the jury. He has a Sixth Amendment right to counsel, and the case would be a poster child for appeal if he’s convicted under these circumstances.”
DA Eyster said, “Even if he’s not skilled at self-defense, he has the right to defend himself, and that trumps his Sixth Amendment right to counsel. And he knew his exposure, so the fact that he all of a sudden realized the seriousness of the charges is not true. This has gone on for months and months. Today is the seventh trial setting for this case and we have people here or en-route from out of state. It’s gamesmanship at this point, judge. He’s always said he can handle this, so the reason he gave is bogus; he’s trying to avoid going to trial. The defense wants an eighth setting — and who knows if the new lawyer will ask for a ninth or tenth? If this goes on we’ll lose witnesses, and that’s the hope of the defense: He doesn’t want to face a jury.”
Judge Behnke read some case law on a defendant’s request to withdraw his pro-per status, then noted that last May on the eve of trial McCarthy initiated a Marsden motion to fire Mr. Dewan, and when that was denied, Dewan being a capable attorney, McCarthy then filed the Faretta waiver, saying he understood he would get no special treatment from the court. It was an interesting legal question and the courtroom began to fill up with idle lawyers hoping to see some new legality forged.
Judge Behnke said, “The defendant’s prior convictions were discussed and he indicated he understood that the court advised he shouldn’t represent himself, and he signed and dated all that. The court is pretty much convinced that the firing of his public defender was a tactic to delay his trial, which I’m sure the defendant will deny, then he continued to seek delays.”
McCarthy interrupted the judge to deny it was a delay tactic, but Behnke didn’t seem to hear.
“He was then granted the right to represent himself over my strong objections to the contrary. He was told at that time that there would be no further continuances, even though one more was granted, and now we have these witnesses and they have a right to a timely trial, as well. Witnesses are supposed to be given warning that a continuance is pending and in this case there has been substantial hardships for the victims and witnesses…”
Behnke read some more case law, disproving Mr. Hansen’s theory of the case becoming a poster child for appeal, and particularly he noted a similar case where the appeals court overturned the trial court's decision, and then the Supreme Court sustained it.
McCarthy interrupted often but the judge kept reading, first Mr. Dewan’s brief on the defendant’s right to represent himself, concluding that “it’s a very dangerous thing to do, nevertheless they have a right to self-representation and must be given that right if they appear to be coherent and cognizant of the risk. Nothing says they must be skilled in self-defense, so Mr. McCarthy was allowed to proceed with the Faretta waiver and again that was nine months ago.
“The first time on the eve of trial he wanted to represent himself, and now on the day of trial, he says he wants a lawyer. It’s just not right to the alleged victims, and in this case it’s become a mockery of timeliness; if he was going to do this why didn’t he do it earlier? I’m not going to continue this trial again. If Mr. Hansen wants to participate in some way, that’s fine, but I’m not going to substitute him in. It has become a hardship on some of the witnesses as the charges happened some time ago.”
The freshly arrive defense attorney, Hansen, said he wasn’t properly prepared. “This case is complicated and with the amount of exposure — well, I don’t want to risk my license.”
Behnke said the motion was denied (to substitute in Hansen, who picked up his briefcase and left). “Let’s bring up the jury.”
The next day at 10 am the jury had been picked, despite McCarthy’s many bids for sympathy, telling the jurors he didn’t know what he was doing, and the mean old judge wouldn’t let him have a lawyer. At first McCarthy showed up in his red jail overalls, but was later persuaded to change into civilian attire, Behnke having noted that 269 jurors had been summoned, “a massive use of public resources,” child molesters being very difficult to pick juries for, and ready or not, the trial was going forward.
At about 10:30 on Wednesday DA Eyster began his opening statement.
“On September 22, 2014, a call came into law enforcement from [Jane Doe No. 1], saying that she and her mother, being homeless, had lived with the defendant in Westport in order to have a roof over their heads, and that from the time she was 13 until she was 17 she lived there.”
Even the outline of what Eyster thought the testimony would prove was too vile to print in a family newspaper, but in short, the victim would tell how she was molested and raped continually throughout this time, as McCarthy would come into her bedroom and rape her, and take her to his marijuana grow on Spyrock Road where he not only abused her in a camp trailer there, but he forced her to work as a trimmer, and general laborer, clearing brush because she was not allergic to poison oak, and gave her drugs to improve her endurance on the job.
Eyster also mentioned the second victim, Jane Doe No. 2, the defendant’s own daughter, who was about the same age and didn’t live with them, but who he would molest and rape when she came to visit. Then Eyster mentioned that the jury would also see videos of the defendant having sex with his dog, one count of bestiality being included in the charges.
Larry Nasser may be the national chomo champ, but nobody’s accused him of raping his dog.
When Eyster finished, McCarthy was asked if he wanted to present an opening statement. McCarthy said he wanted time to think about it. Also, he didn’t know how to go about addressing a charge of felon in possession of a firearm without the jury finding out he had a prior 288 (child molestation conviction).
Judge Behnke let the jury go until 2:00 pm and appointed a lawyer, Macci Baldock, to advise McCarthy. Over the lunch break, Ms. Baldock convinced McCarthy to take the deal Eyster had offered him on Friday, the 35 years to life plea bargain, and she would ask the court for a “certificate of probable cause” which McCarthy could then use to seek an appeal to Behnke’s decision to go ahead with the trial without substituting in Mr. Hansen.
Apparently, this route will also help McCarthy at the time of sentencing, as he will be able to point out how considerately he saved the victims from the trauma of taking the stand to tell the sordid story in open court. The plea was accepted at about 1:45 and when the jurors came back at 2:00, Behnke thanked and dismissed them.
The sentencing options have a floor of 25 years to life, and a ceiling of 35 years to life, and will depend of the probation office’s pre-sentencing report. At any rate, McCarthy’s was a clear case of the folly inherent in representing yourself in court, although it may prove a useful means of postponing the inevitable, McCarthy wasn’t able to bring it off.