Andrew Scheiner/Daily Journal
Marc Klass and CVU President Harriet Salarno spoke at a news conference in front of the Redwood City court Monday.
A statewide victim’s group and well-known advocate Mark Klaas yesterday called on the local courts to set aside the dismissal of a child molestation case, saying prosecutors violated the victims’ constitutional rights by not informing them of the planned resolution, not allowing them to be at the final court hearing and lying about whether the young girl involved was willing to testify.
"Abuse is abuse and it must be prosecuted to the fullest extent of the law,” said Klaas, wearing a button bearing the face of his murdered daughter, Polly.
Klaas said he and the others were there to hold San Mateo County accountable.
Although the call for action by Crime Victims United was spurred by the now-closed molestation case filed then dropped against Anthony John Sadek, the news conference assembled in front of the Redwood City court branch kept its focus on the handling of the situation rather than the alleged specifics of the charges.
The San Mateo County District Attorney’s Office and prosecutor Melissa McKowan didn’t tell Sadek’s estranged wife — who claims he drugged her with GHB in 2006 to gain access to their young daughter — about the proceedings and got the case dismissed by lying to a judge that the girl’s mother wouldn’t allow her to testify, said Nina Salarno-Ashford, the CVU advocate and attorney representing them.
The dismissal based on fraud and lack of information are violations of Marsy’s Law, the 2008 bill that established victims’ rights, Salarno-Ashford said.
Chief Deputy District Attorney Steve Wagstaffe said he, McKowan and others in the office are "absolutely stunned” by the accusation that the wife was not informed. He said the wife had a civil attorney present at a meeting in which McKowan spoke with her for several hours about the case and wants him to attend an upcoming court hearing to tell a judge exactly what was said.
Salarno-Ashford filed a motion with San Mateo County Superior Court seeking to set aside the dismissal. The hearing is scheduled for Sept. 2. If granted, the motion wouldn’t automatically reinstate all of the molestation, domestic violence and poisoning charges against Sadek but "resets it to the status quo” and lets the District Attorney’s Office then decide which to file, she said.
In February, Sadek’s case was dismissed just days before trial after McKowan discovered a previously undisclosed test of his wife’s hair that tested negative for GHB, or gammahydroxybutrate. The finding flew in the face of positive tests by a Houston-based forensic toxicologist that prosecutors had planned to submit as evidence. When McKowan asked that doctor for further documentation, he couldn’t provide it. The discrepancy of the tests, both solicited by the civil attorney handling the divorce for Sadek’s wife, led to the case’s dismissal.
Without the poisoning aspect, Wagstaffe said it would be difficult to prove to jurors how Sadek allegedly was able to abuse his child while her mother was nearby. The child’s statements were inconsistent and wouldn’t have stood up in court, he said.
"A prosecutor has no choice when the evidence is not sufficient. You ethically cannot go forward,” he said.
At yesterday’s press conference, Salarno-Ashford said that could very well be but that the problem — and the basis for the re-instate motion — was a fraudulent dismissal and the exclusion of the women and her daughter from the process.
Salarno-Ashford also filed a claim for damages against San Mateo County. The Board of Supervisors Tuesday is scheduled to reject the claim as part of its consent agenda. Once that happens, Salarno-Ashford anticipates filing suit.
CVU President Harriet Salarno said although she advised Sadek’s former wife that she needed an attorney for the legal issues, her organization’s board of directors offered its complete support. After reading up on the case, the board was "emotionally appalled,” Salarno said.
Implementing Marsy’s Law has been a struggle since its passage, Salarno said.
She believes the court and prosecutors prefer when victims don’t have any power because they get to be in charge of what happens. Victims can’t hire their own attorneys, are superseded by "the people” in criminal filings and, before Marsy’s Law, weren’t given any guarantee of participation.
Of course, she said, the San Mateo County case shows that even with Marsy’s Law in place, its tenets aren’t always enforced.
Even though the San Mateo County District Attorney’s Office "had the sense to file charges” it later became "too busy or possibly too inept” to follow through, Salarno said.
Wagstaffe said he couldn’t speak for other prosecutors statewide but that he and the office are "extremely supportive” of Marsy’s law and "big believers in victims’ rights.”
The office has never before been served with a motion to set aside a dismissal. Judge Barbara Mallach, the judge who handled previous criminal proceedings in the Sadek case, will preside and all parties involved have the right to participate, Wagstaffe said.
Sadek’s attorneys could not be reached for comment.
Facts about Marsy’s Law
• When it passed in November 2008, Proposition 9, The Victims’ Bill of Rights Act of 2008: Marsy’s Law, became the strongest and most comprehensive Constitutional victims’ rights law in the United States and put California at the forefront of the national victims’ rights movement.
• Dr. Henry T. Nicholas, the co-founder of Broadcom Corp., was the key backer and proponent of Marsy’s Law. Dr. Nicholas is now lending his support to an effort to amend victims’ rights into the U.S. Constitution.
• Marsy’s Law was named after Dr. Nicholas’ sister, Marsalee (Marsy) Nicholas, a University of California Santa Barbara student, who was stalked and killed by her ex-boyfriend in 1983. Only a week after Marsy was murdered, Dr. Nicholas’ and Marsy’s mother, Marcella Leach, walked into a grocery store after visiting her daughter’s grave and was confronted by the accused murderer. She had no idea that he had been released on bail.
* Source: Marsy’s Law for All,
California Crime Victims’ Bill of Rights
Michelle Durand can be reached by e-mail: firstname.lastname@example.org or by phone: (650) 344-5200 ext. 102.