the Bureaucracy

Countermotions by District Attorney

The original document can be viewed as a multi-page TIFF file.

• DEFENDANT ROBERT ROLAND WOMACK'S MOTION TO DISQUALIFY THE AMADOR DISTRICT ATTORNEY AND DAVID J. IREY
• INTRODUCTION
• ARGUMENT
• No Violation Of Rule 5-120(c) Occurred Which Would Give Rise To Even The Appearance Of A Conflict Existing
• No Evidence Was Presented Showing That A Conflict of Interest Exists Such as To Render It Unlikely That The Defendant Would Not Receive A Fair Trial Based on Comments made By The Prosecution To The Public In This Matter
• Robert Roland Womack Slurred His Own Character By Operating His Business Ventures In Violation Of Law And By Disseminating False Information To Anyone Who Would Listen
• All information placed into the record by the People was relevant and admissible to the matters before the grand jury
• The questioning of Kimberlie Moore was done in a professional manner in order to help gather further evidence of a crime, or lack thereof, by determining who had ownership and control of K.R.L. Partnership
• Ron Brown was a key hostile witness in the prosecutions case. He presented both potentially exculpatory evidence to the grand jury and showed brilliantly that Robert R. Womack will attempt to control and persuade individuals to replay his false stories to a larger audience
• CONCLUSION

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ROBERT ROLAND WOMACK'S MOTION TO DISQUALIFY
THE AMADOR DISTRICT ATTORNEY AND DAVID J. IREY

I

INTRODUCTION

Rule 5-120 (c) of the Rules of Professional Responsibility of the State Bar of California was drafted with this type of case in mind. The People have a "duty to mitigate" undue prejudicial effects of recent publicity not initiated by the prosecution⁶. The defendant has produce very little if any evidence that the limited public comments by the district attorneys office in this matter did anything other than slow down the freight train of false information being presented by the defendant and his cronies. These recent comments by the prosecution do not rise to even the lowest standard of an appearance of conflict. Fortunately, the statutes and our case law do not allow the defendant to poison a jury pool by the dissemination of misstatements of fact and then, at the first comments attempting to mitigate these prejudicial effects under Rule 5 - 120(c), disqualify the prosecution.

The defendant additionally uses thirty (30) pages of his brief to regurgitate and purposely takeout of context the grand jury testimony. The defendant attempts to be persuasive by using less than one percent of the grand jury testimony, without using any grand jury exhibits, and then failing to inform the court that the majority of the questions the defendant cites in his moving papers as "problematic" came from the Grand Jurors themselves.7 It is crystal clear that the defendant is using a smoke screen to confuse some of the major issues of this case.

It has always been important as to who is K.R.L. Partnership, who or what controls the decisions of K.R.L. Partnership and the relationship of the Womacks with one another. The grand jurors and the District Attorney's Office elicited much of the information necessary to determine the truth and veracity of the incomplete information received from the many hostile witnesses that testified before the grand jury. Much of the relevant, material and useful information obtained by that investigative body clarified just who and what K.R.L. Partnership is and who runs K.R.L. Partnership. The complaints about the scope and importance of those individuals testimony regarding the above mentioned relationships are unwarranted. The testimony of Ron Wayne Brown was used to present evidence to the grand jury. The defendants assertions that it was for anything else is false and without any basis in fact or reality. All information elicited was relevant, had adequate foundation and helped the grand jurors bracket both true and false testimony in this matter.

The prosecution bent over backwards to try to elicit any exculpatory evidence by calling numerous hostile witnesses that could have supported the defendants version of the facts. Either these defense witnesses were not coached well enough at their free lunches, had horrible memories and/or there was no exculpatory evidence for them to present. The grand jurors sorted out fact from fiction and indicted Robert Roland Womack.

II

ARGUMENT

A. No Violation Of Rule 5-120(c) Occurred Which Would Give Rise To Even The Appearance Of A Conflict Existing.

The defendants by failing to inform the court about even a small portion of there orchestrated media campaign appear to be intentionally misinforming the court as to the evidence in this matter. By failing to distinguish their dissemination of false information and press contacts from the conduct of the prosecutors, they have forgotten all of the substance while going for the brass ring of recusal.8 The People do not have an option to switch venue. Seldom, if ever, in this small county does a criminal case get a tenth the press that this case has. Never, has the defendant to such a degree and with such negativity orchestrated the press. The People have a "duty to mitigate" the undue prejudicial effects cause by the defendant. The People have done nothing in violation of Rule 5-120(c).

If this case had gone through preliminary hearing all of the exhibits and testimony would have been done in open court. The court, the press and the public would have digested the lies, the false statements, the true statements, the doctored evidence; the video taped "admissions" and other material. The reasons underlying grand jury proceedings are numerous and justifiable. The investigatory ability is of a much higher nature and the secrecy prevents to a point the coaching of witnesses. The People understand that it was their choice to go through a grand jury and their reasons for that choice. However, there is no rule that requires the prosecution to allow false information to be disseminated on this scale without some rebuttal. Rule 5-120(c) allowed our limited rebuttal.

B. No Evidence Was Presented Showing That A Conflict of Interest Exists Such as To Render It Unlikely That The Defendant Would Not Receive A Fair Trial Based on Comments made By The Prosecution To The Public In This Matter.

If the court somehow finds that the prosecution violated rule 5-120(c) then there are other more appropriate sanctions then recusal. The standard mandating recusal is quite high and has not been met by the defendants. Certainly, no evidence was presented with their motion. If the court somehow determines that there was any appearance of impropriety by the prosecution then the People request a evidentiary hearing to call the witnesses that helped to poison a portion of the jury pool, in order to rebut that appearance of impropriety and to show our compliance with Rule 5-120(c).

Defendant still has the option of change of venue, however, with the defendant and his friends in this case initially and regularly generating the publicity it is highly unlikely that would occur. The People have no option for a change of venue regardless of how many dozen articles appear, no matter how many radio interviews are given and no matter how many posters are posted by the defendant. The prosecutions limited and cautious attempts to "mitigate" undue prejudicial effects of recent publicity were necessary and predictable after months of negative publicity. The defendant has a very high standard to meet in order to be successful in any attempt to recusal the district attorney, they have failed in their attempts.

A motion to disqualify a district attorney shall not be granted unless evidence shows a conflict of interest such as would render it unlikely the defendant would receive a fair trial. Thus, although the appearance of a conflict might signal the existence of a disabling conflict, recusal is only warranted when a conflict in facts exists. People v. McPartland (1988, 6d, Dist.) 198 Cal.App.3d 569. The defense relies essentially on two cases with regard to their argument about the prosecutiores contacts with the media. Several times they cite People v. Conner, (1983) 34 CaUd 141, however, Conner is easily distinguishable. In Conner, a case about a prosecutor who was an eye witness to an assault on a police officer, including the use of a deadly weapon during the commission of a felony, escape and quite possibly that the prosecutor was shot at by the defendant. The court held that there was "substantial evidence" in support of the trial courts finding that there was a conflict of interest. In this case there is no such conflict of interest. Not one of the Conner factors is present in this matter. Neither District Attorney Todd D. Riebe nor Deputy District Attorney David J. Irey are eyewitnesses to an aggravated assault on a police office while the defendant was using a weapon as he escaped. Neither District Attorney Todd D. Riebe or Deputy District Attorney David J. Irey was a possible victim of such a violent attack. The only similarity is that there was some press coverage and some of the facts of the case were discussed. Conner predates the justification of "duty to mitigate" allowed by Rule 5-120(c). Conner was a prosecutor being a witness to a violent crime and discussing it with members of his office and the press. it was not about discussing grand jury evidence under the protections of Rule 5-120(c).

Additionally, the defense cites People v. Phillips (1985) 169 Cal.App.3d 632, a case about a prosecutor who participated on a radio talk show after the public defender had possibly abandoned her client during trial. The reviewing court upheld the trial court in Phillips by refusing to recuse the prosecutor. The court held that there needed to be "substantial evidence" of a "conflict" and that although the talk show was "ill advised" recusal was not required. Here the limited conversations with the media by the prosecution pale in comparison to the defendant. Here there were contacts and interviews with the radio, the television and the newspapers, however, those contacts were made after close consultation with an ethics expert and after months of systematic prejudicial information was disseminated by the defendant.⁹

C. Robert Roland Womack Slurred His Own Character By Operating His Business Ventures In Violation Of Law And By Disseminating False Information To Anyone Who Would Listen.

The prosecution just proved that the statements made by Robert R. Womack and his associates to: county regulators, to several members of the Board of Supervisors, to the District Attorney's Office, during his lengthy meeting on September 2, 1998, to his friends, to his former friends and to the press, were consistently false. The prosecution proved this with relevant and inadmissible evidence. The defendant only suffers from the transparency of his false statements and 1he cumulative effect of those same statements. This relevant and admissible information was elicited during the grand jury proceedings.

The People carefully interviewed and then called as witnesses almost every "alibi" witness that defendant had mentioned over the preceding six months. Unfortunately, they were not very strong witnesses for the defendant. Just as in most white-collar crimes, the defendant was given every opportunity to come into compliance and meet prior to the filing of the complaint. The defendant's son, Roland E. Womack, brought into the Grand Jury room material that he thought might be exculpatory. The People put the entire file into evidence. 10 Ron Wayne Brown brought in a letter that he thought might be exculpatory; the People put that into evidence. I I The People sent the defendant a "Johnson' letter inviting exculpatory information in the form of testimony or documentary evidence. No such documents were submitted for review.

1. All information placed into the record by the People was relevant and admissible to the matters before the grand jury.

Defendant's comments regarding the prosecution placing irrelevant and inadmissible information into the record because they knew the record would become public at a later date is misplaced. 12 The case was originally referred to the district attorney's Office with Roland Earnest Womack as a suspect, The commingling of funds, millions of dollars, between the defendant, his family and a business known as K-R.L. Partnership is a central issue in this case,¹³ To date, the prosecution is not perfectly clear of the true workings of the Partnership. At the time of the grand jury the prosecution was even less sure of the true workings of the Partnership. With each additional day of testimony more questions were needed to be asked regarding the inconsistencies in testimony. The Womack children told inconsistent stories, the Womack children were sworn to tell the truth to the grand jury, thus, the questions were meant to get to the Milli. The techniques employed were not meant to elicit previously spoon fed information from other family members but to get specific information on the truth and reliability of information already provided by the defendant and his family. The grandjurors had already heard Robert Roland Womack's side of the story be listening to his September 2, 1998 interview. The prosecution was tearing that story apart.

2. The questioning of Kimberlie Moore was done in a professional manner in order to help gather further evidence of a crime, or lack thereof, by determining who had ownership and control of K.R.L Partnership.

Contrary to the defense contention that the prosecutions questioning of Ms. Moore was designed to embarrass and/or humiliate her, part of the purpose was to determine if she had anything to do with K.R.L. Partnership and/or if the Partnership was a sham. Further, as Robert R. Womack likes to talk about his ventures, both legal and illegal, Ms. Moore was likely a percipient witness as to inconsistent statements and or the prior location of the tanks. Next, the set up of the corporation, she used to be the corporate president, and the various permutations of the entity. By the time Ms. Moore testified the Grand Jurors had heard her father, seen her father, read about her father, heard her brother Luke and heard the testimony of over forty (40) other witnesses. It was time for the Grand Jurors to get some clarification. Unfortunately, Ms. Moore gave no clarifications, l4other than her understanding of how K.R.L. Partnership really worked in November 1998 being different from her co-partners Roland and Luke. And of course what was printed in the paper.

3. Ron Brown was a key hostile witness in the prosecutions case. He presented both potentially exculpatory evidence to the grand jury and showed brilliantly that Robert R. Womack will attempt to control and persuade individuals to replay his false stories to a larger audience.

The defense fails to attach either of the two exhibits which led to the volley of questions asked of Ron Brown by the prosecutor and the members of the Grand Jury. ¹⁷ These exhibits were used extensively during the grand jury proceedings. Every question asked had a legitimate purpose to elicit relevant and admissible evidence. Again, the majority of the questions that the defense finds problematic were asked by the grand jurors. Although, the defense harps on the "how do you feel" types of questions, they were asked for the most part by the grand jurors and a close review of the transcript makes it obvious that Brown would answer in one of two ways. Either, testifying that, Brown got the information from the newspaper/Robert Womack or Brown felt it is unfair to Robert Roland Womack. The defense attempts to compare the prosecutions examination of a very hostile witness, who had both limited exculpatory evidence and evidence of inconsistent statements by Womack, to the facts of People v. Conner 34 Cal.3d at 148. This leap of faith is not clear and without merit. ¹⁸

II

CONCLUSION

For the reasons given above the defendants motion to disqualify the Amador County District Attorney's Office and David Irey must be denied.

DATED: June 14,1999

Footnotes

1. Fortunately, these few cases are easily distinguishable and a short opposition motion is available. Unfortunately, to reply to the defendants motion several voluminous attachments will be used.
2. See Exhibit A attached to the Declaration of Todd D. Riebe filed with this motion.
3. See Exhibit A attached to this motion. This exhibit will give the court just a taste of the substance of the parallel radio show. The second half of the exhibit contains some very interesting information that was downloaded from this web site. The information includes some of the California Environmental Protection Agency Unified Enforcement Policies.
4. See Declaration of Todd D. Riebe filed with this motion.
5. See the Declarations of Todd D. Riebe and David J. Irey filed with this motion.
6. Rule 5-120(c) of the Rules of Professional Responsibility of the State Bar of California provides: "Notwithstanding paragraph (A), a member may make a statement that a reasonable member would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the member or the member's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity." (emphasis added)
7. Although it is absolutely the prosecutors duty to only put on relevant information to the grand jury, the grand jurors should be given moderate latitude on what is relevant. Many of their questions were designed to elicit information regarding relationships, truth and veracity. Most of their questions were excellent and provided insight to the prosecutor on what areas needed follow up questions and what areas were well understood. There should not be a penalty for allowing the grand jurors to act as grand jurors. If the defense truly believes that information was presented to the grand jury that was objectionable on relevancy grounds or presented without proper foundation they could have used the standard remedy of a Penal Code 995 motion, as opposed to attempting to recuse the entire District Attorney's Office.
8. Although the People absolutely want to proceed in this matter, it is interesting that the defendant would want the Attorney General to prosecute him. The People believe that the defendant is attempting to forum shop by filing this motion, instead of a request to switch venue. A change of venue would not help his various causes, thus he now attempts to shop for a prosecuting attorney who might not have the time to focus on this matter and additionally force a delay in the defendant's scheduled trial date.
9. See Declarations of District Attorney Todd D. Riebe and Deputy District Attorney David J. Irey filed with this motion.
10. Grand Jury Exhibit 7 1, folder labeled '505 Sutter St.
11. See Exhibit B, letter dated November 16, 1998 from Ron Wayne Brown, Grand jury Exhibit 74.
12. The defense cites two instances of the alleged Prosecutorial misconduct. First, as to Kimberlie Moore, the sole purpose of that statement by the prosecutor was to let Ms. Moore that her phone number would soon be a matter of public record, it was unknown to the prosecutor if her home number was unlisted and it thereby put her on notice. It was not for some invidious purpose. As a matter of fact, early in the grand jury proceedings a videotape was shown that had evidence Of where the keys to the safe at K.R.L. were kept. The prosecutor admonished the grand jurors regarding that sequence. Next the defense cites that the prosecutor informed Ron Brown of the public record. Again, none of the questions had an invidious purpose; the information was given to Mr. Brown only as to the location and timing of the release of a more complete story. Of course die prosecutor knew the record would be public, we work in the public domain. There is not one shred of reliable evidence that any information that was irrelevant or inadmissible was Placed into the Grand Jury record because the prosecutor "knew" it would become public.
13. Again, the defendant failed to mention in their moving papers that K.R.L. Partnership runs throughout all of the evidence in the case. Starting with the contracts, to the payments for services, to the reward check and other items, K.R.L. Partnership is much of the evidence in this case.
14. See Exhibit C, attached to this motion. The highlighted transcript of Kimberlie Moore is a much more complete story of the tenor and difficulty of this witness than has been given to the court in the defense brief The Grand Juror questions that the defendant objects so strenuously to come after scores of "I don't know" type of answers.
15. The Grand Jurors had earlier heard how Robert Roland Womack had sold "Larry's house" because he was mad at Larry. This caused some confusion during the Grand Jury testimony on the part of Roland and Kimberlie, as on paper Robert owns none of K.R.L. and Larry owns half of K.R.L.
16. The testimony of Luke Womack is attached as Exhibit D, as mentioned above his testimony was inconsistent with each of his siblings. The questions that the defense objected to regarding his testimony were for the majority grandjuror questions. His reasoning for getting into the partnership, working for the partnership, leaving the partnership, coupled with his inability to remember specifics of the removal of the underground storage tanks left hundreds of questions unanswered. However, the questioning help show who is K.R.L. K.R.L. is Robert Roland Womack. Again, the questions that the defense objected to were mostly related to the ownership and operation of K.R.L. Partnership.
17. See Exhibit E, attached is the testimony of Ron Wayne Brown
18. The defense goes on for several more pages trying to make sure the court believes that K.R.L. has nothing to do with this case when if fact it has a great deal to do with the case. Attached is the testimony of Roland E. Womack, Exhibit F, again for the purpose of showing that every opportunity was given to present exculpatory action but in questioning the dentist it was like pulling teeth.