Petition Demands that Conspiracy Charges be Dropped Against 3 Remaining SF8 Defe
- Subj: [Freethe SF8] Petition Demands that Conspiracy Charges be Dropped Against 3 Remaining SF8 Defendants
Date: 3/31/2008 5:06:12 PM Pacific Daylight Time
From: cdhrsupport@... (SF-8 case)
A Petition for Writ of mandate was filed in a California Appelate court late last week because the state Superior Court failed to dismiss "conspiracy to murder" charges against 3 of the 8 defendants in the San Francisco 8 trial. The motion argues that the Superior court's intention to take evidence at the preliminary hearing on this count denies the men their rights "to Due Process of Law and Equal Protection of the Law in violation of the Penal Code and the California and federal constitutions." The defense is asking that the petition be decided before the preliminary hearing.
Conspiracy charges were dropped against 5 of the 8 defendants February 7th in the San Francisco 8 Case, because the statute of limitations on conspiracy is 3 years in California.
Judge Philip Moscone denied defense motions to dismiss the conspiracy count against the 3 remaining San Francisco 8 defendants, Herman Bell, Jalil Muntaqim (Anthony Bottom), and Francisco Torres on February 28.
The reason the 3 were not able to benefit from the statute of limitations expiring in 3 years is because for “out-of-state” defendants the statute of limitations is tolled (held in abeyance) for the period they were "unavailable."
"Our motion addressed the notion that they shouldn’t be penalized for being out of state because their absence was due to involuntary incarceration..." They were not "trying to avoid prosecution and therefore treating them differently from the others doesn’t serve the purpose of the statutory provision regarding tolling (counting the days that can be applied to questions of statutes of limitations)," according to defense attorney Chuck Bourdon. "We also argued that even if the tolling provision did apply that it too expired after 3 years whereupon the statute of limitations began to run and then expired."
Simply because the men were not in California is not enough reason to deny them their rights, the petition argues. They were all in custody and their whereabouts have been known to local, state and federal prosecutors. "[I]nvoluntarily removed by law enforcement," they were readily available to return to California to face charges had they been brought.
The prosecution claims that because the three men were not in California the statute of limitations does not apply. "This is a ridiculous argument," according to defense attorney Stuart Hanlon, "as these men were forcefully removed from the state against their will by being imprisoned. All three were consistently available to California State prosecutors."