A lawyer for jailed former Santa Clara County Supervisor George Shirakawa plans to dispute DNA evidence in Shirakawa's false impersonation criminal case and ask for a change of venue due to "prejudicial" pretrial publicity, according to court documents.
Shirakawa defense attorney Jay Rorty made the points in a motion submitted to the District Attorney's Office in San Jose arguing the need to postpone the April 1 scheduled start of Shirakawa's trial, according to Deputy District Attorney John Chase.
In his motion, Rorty stated that there was not enough time to prepare a defense and review thousands of pages of evidence provided by prosecutors since a grand jury indicted Shirakawa on Oct. 24 alleging he faked a campaign mailer to discredit a candidate for San Jose City Council in 2010.
Shirakawa, 51, former supervisor board president and San Jose city councilman, started serving a one-year term in the Alameda County Jail on Nov. 8 after a judge in San Jose convicted him of five felony and seven misdemeanor charges related to inaccuracies in government finance and campaign reports.
In an unrelated case, Shirakawa is accused of printing and mailing flyers falsely purporting to be from Magdalena Carrasco, who was running for City Council in 2010 against Xavier Campos, a former employee of Shirakawa, who had endorsed Campos.
The district attorney's office on Oct. 23 started arguing for a charge of false impersonation against the former supervisor before the grand jury, which a day later indicted Shirakawa on the felony charge.
The flyers, printed with a color graphic of a Communist flag, were sent to voters in Council District 5 in San Jose, targeting people of Vietnamese descent in order to damage Carrasco by making her appear to have communist ties in a community where many still resented the North Vietnamese communist regime, according to prosecutors.
Printed on the flyers was a campaign group, "Neighbors for
Magdalena Carrasco for Council 2010," which prosecutors said Shirakawa impersonated.
Only weeks after the flyers were mailed, Carrasco fell just 20 votes behind Campos in the primary election.
Investigators claimed to have found evidence, including office supplies and sales receipts, in Shirakawa's home implicating him in the production of the anti-Carrasco flyers and said his DNA was detected on a stamp from one of the mailers examined in a lab for the district attorney's office.
According to Rorty, Shirakawa's defense team now includes San Francisco DNA attorney Bicka Barlow, who in a declaration included with Rorty's motion stated he would argue that another DNA test on the stamp actually showed a second person's DNA along with Shirakawa's.
One test, using an Identifier test kit in 2010, later produced a DNA "hit" for Shirakawa "on a number of evidence identified as stamps" in 2013, according to Barlow.
But after the DNA hit, another test of the same six items, this time using an Identifier Plus test kit, found one stamp had "a mixed sample of at least two people and Mr. Shirakawa was included as a possible source," Edelman stated.
The defense wants to examine records of other people aside from Shirakawa, including lab personnel or other potential suspects, identified as having DNA hits or partial hits, he stated.
Further, the defense will request that the district attorney's
office supply records about a false DNA hit last year on Lukis Anderson, a former defendant in the 2012 death of Monte Sereno resident Raveesh Kumra.
Prosecutors arrested Anderson with four others on homicide charges in Kumra's death, based on evidence of Anderson's DNA found on Kurma's fingernail.
But charges were dropped against Anderson last year after prosecutors learned that his DNA was transferred to Kumra's fingernail by paramedics, who had used the same finger pulse reader on Anderson during an emergency call hours before assisting Kumra on Nov. 30, 2012.
Another member of Shirakawa's defense, Walnut Creek-based trial consultant Dr. Bryan Edelman, will seek to assess whether Shirakawa could receive a fair trial in Santa Clara County, according to Rorty.
Edelman has already reviewed local news stories that have resulted in "extensive pretrial publicity casting Mr. Shirakawa in a very negative light," Edelman wrote in a declaration for Rorty.
According to Rorty, Edelman's assessment would include a telephone survey of the local community to measure the effect of the publicity on potential trial jurors.
If the review showed the public is prejudiced against Shirakawa from media coverage, it would be used to support a motion for a change of venue to have him tried in a different county, according to Rorty.
The survey and analysis of the results would take at least 14 weeks before a motion for a venue change would be filed, according to Rorty.
Chase, the prosecutor in the Shirakawa case, said that a judge would consider Rorty's motion in deciding whether to begin Shirakawa's trial on April 1 or delay it. The prosecution will be filing an answer to Rorty's motion, he said.
Chase argued in a court filing last November that Shirakawa's close relationship with Campos made Shirakawa's "motive to create or distribute these flyers...apparent."
Rorty, reached by phone, declined to comment on the case or his motion.
In his motion requesting more time to prepare a defense, Rorty stated that prosecutors had given him "over 3,000 pages of discovery, including 1,948 pages of bank records, over 250 pages related to forensic analysis, over 560 pages related to execution of search warrants, over 125 pages related to Xavier Campos' campaign financials, and dozens of records from other aspects of the investigation."
Also included as discovery in the case are "over 27 hours of audio interviews and over 4 hours of jail calls," Rorty stated.
Shirakawa will likely be released from jail sometime in May, after serving six months with one day of credit for each day he served taken off of his one-year sentence, Chase said.
Campos and Carrasco are running against each other in the June 3 primary in San Jose for the District 5 council seat with a third candidate, Aaron Resendez.