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VENTURA
1 Scott S. Wippert, SBN 213528 SUPERIOR COURT
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1050 Esplanade
Chico, CA 95926
Telephone (530) 961-3616
FILED
3 JUL ZO1O~
Law Office of Robyn B. Bramson
4 Robyn Bramson SBN 234888
1050 Esplanade HA D.P≤~’T
5 Chico, CA 95926 E Cu’ fi~~4nd Clerk
Telephone (916) 505-2666 BY: ~—#~--— ~D~uty
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Counsel for the defendant
7 BRANDON McTNERNEY

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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF VENTURA
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THE PEOPLE OF THE STATE OF ) Case No.: 2008005782
12 CALIFORNIA, )
)
13 Plaintiff, ) SUPPLEMENTAL NOTICE OF MOTION
) AND MOTION TO DISQUALIFY JUDGE
14 v. ) FOR CAUSE PURSUANT TO 170.1 OF THE
) CODE OF CIVIL PROCEDURE
15 BRANDON McINERNEY, )
)
16 Defendant. )
) DEPT: 27
17 DATE: July 19, 2010

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TO THE VENTURA COUNTY SUPERIOR COURT:
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PLEASE TAKE NOTICE THAT on July 19, 2010 in department 27 of the Ventura
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County Superior Court, at 9:00 a.m., or as soon thereafter as the matter may be heard, Brandon
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Mclnerney, by and through his attorneys, Scott Wippert and Robyn Bramson will move this
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Court to disqualify Judge Charles Campbell based upon the reasons stated in the attached
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Declaration of Scott Wippert. The motion will be based on this written notice and motion, the
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legal authority of section 170.1 of the Code of Civil Procedure, the attached declaration, and any
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other law and argument to be provided at the hearing on this matter.
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 1 DECLARATION OF SCOTT WIPPERT

2 I, Scott Wippert, declare I have personal knowledge of the following, and if called upon

3 to do so, could and would testify competently to the matters contained herein.
4 1. I am counsel of record for the defendant Brandon Mclnerney.

5 2. Brandon Mclnerney is a 16 year old minor charged as an adult with first degree murder ii
6 violation of Penal Code section 187, along with a gun enhancement, hate crime enhancement,

7 and lying in wait special circumstance allegation.

8 3. The conduct for which Brandon Mclnerney is being criminally prosecuted, occurred 18

9 days after his fourteenth birthday.

10 4. If convicted of the charges, Brandon Mclnerney faces a mandatory minimum sentence of

11 53 years to life in prison.

12 5. Judge Bruce Young set a trial date in the Mclnerney case for July 14, 2010 to be heard by

13 Judge Charles Campbell.

14 6. Approximately 2 weeks prior to the July 14th trial date, I, along with my co-counsel, Ms.

15 Bramson, filed a motion to continue the trial date pursuant to Penal Code section 1050.
16 7. The defense motion to continue the trial date was originally noticed to be heard on July 6,

17 2010 in department 27 in front of Judge Charles Campbell.

18 8. The motion to continue set forth that defense counsel was not prepared to proceed to trial

19 on July 14th because there remained a significant amount of investigation to be done by the
20 defense investigator.

21 9. Prior to filing the motion to continue I contacted deputy district attorney Ms. Fox via

22 telephone to discuss the case.

23 10. In a telephone conversation with Ms. Fox I informed her that the defense would be

24 seeking a continuance due to the necessity for further investigation, and obtaining additional

25 experts necessary to prepare and present a defense at trial.

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 1 11. In addition, Ms. Fox and I discussed the fact that my having recently moved from
2 Southern California to Northern California made it impossible for the defense to be ready to

3 proceed to trial on July 14, 2010.

4 12. On July 2, 2010 my co-counsel, Ms. Bramson, spoke via telephone with a clerk from the

5 Ventura County Superior Court regarding the continuance motion.

6 13. The clerk informed Ms. Bramson that Judge Campbell was on vacation the entire week o
7 July 6th and would not be returning from vacation until July 14th, the date of the trial.
8 14. The clerk asked Ms. Bramson if the motion to continue could be reassigned to Judge
9 Bruce Young in light of Judge Campbell’s vacation, which Ms. Bramson agreed to.
10 15. In addition, Ms. Bramson requested of the clerk that the date of the continuance motion

11 be changed to July 7t~l, 2010.

12 16. The clerk changed the date of the continuance motion to July 7thto be heard in

13 department 13 by Judge Young.

14 17. Ms. Bramson notified deputy district attorney Maeve Fox via email of the changes

15 regarding the date and department of the motion to continue.

16 18. On July 7, 2010 I appeared before Judge Young along Ms. Fox for the defense motion to

17 continue the trial of Brandon Mclnereney.

18 19. Judge Young refused to rule on the defense motion to continue, and stated that because

19 the case had been vertically assigned to Judge Campbell, and since he was unaware of Judge
20 Campbell’s calendar/schedule, that the motion should be heard by Judge Campbell, and that

21 Judge Campbell’s first day back at court would be July 14th~

22 20. On the record, I unequivocally stated that I would not be ready for trial on July 14th~

23 21. On July 14, 2010 I arrived in Judge Campbell’s courtroom at 8:30 a.m. and immediately

24 filed a declaration under seal with the court from my investigator Kathryn Lestelle.

25 22. I then requested that the bailiff ask Judge Campbell that we be pennitted to speak with

26 him in chambers along with the district attorney concerning the motion to continue.

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 1 23. Once in chambers, Judge Campbell immediately asked why an in chambers discussion

2 was necessary.

3 24. I responded that due to the large media presence in the courtroom along with the
4 necessity for Judge Campbell to review several ex parte motions made under seal, which were

5 relevant to his determination of the motion to continue and which had previously been filed and

6 were part of the court file, that in chambers discussions were necessary.

7 25. In addition, I informed Judge Campbell that we could not ethically discuss the contents o:

8 any of the ex parte motions filed under seal in open court or in the presence of the district
9 attorney.
10 26. Judge Campbell responded that he would not review any additional ex parte documents
11 filed under seal, and that all arguments relative to the continuance motion would have to occur in

12 open court.
13 27. I recall the Judge then commenting to deputy district attorney Maeve Fox that the

14 outcome of the continuance motion on the Mclnerney case would impact another case that had

15 also be assigned to Judge Campbell for that same day.

16 28. Based on these comments made by Judge Campbell, it appeared to me that he had alread)

17 made up his mind to deny the defense motion to continue.

18 29. Once on the record, Judge Campbell refused multiple defense requests for him to review
19 the numerous ex parte motions previously filed under seal, which defense counsel articulated
20 were critical to the determination of the motion to continue.

21 30. The court file, which Judge Campbell had in his possession, contained within it the

22 aforementioned defense ex parte motions filed under seal.

23 31. After refusing to review any of these pertinent ex parte motions, Judge Campbell

24 proceeded to question me and my co-counsel, Ms. Bramson, about matters that were the subject

25 of the ex parte motions.

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 1 32. In response to these questions, I requested that Judge Campbell conduct an in camera

2 hearing so that I could articulate completely and accurately the reasons necessitating the

3 continuance.

4 33. Upon further prodding by Judge Campbell I further expressed my inability to discuss

5 these confidential matters in the presence of the district attorney and other persons present in the
6 courtroom.

7 34. I advised the court that the nature of the information that was included in the ex parte

8 motions, as well as that which I needed to orally explain to the court, were brief and would not

9 require much time.

10 35. Despite Judge Campbell’s refusal to allow me to make an adequate and complete record

11 of the reasons for my seeking a continuance, he allowed deputy district attorney Ms. Fox to

12 speak at length about matters that had no relevance whatsoever to the motion to continue.
13 36. Specifically, Judge Campbell allowed Ms. Fox to state on the record in front of a large
14 media presence that Brandon Mclnerney at best could receive a conviction of Second degree
15 murder, which would carry a sentence of 40 years to life.

16 37. Ms. Fox asked Judge Campbell if he knew anything about the case and if he had read her
17 trial brief, to which Judge Campbell responded that he had not.

18 38. Judge Campbell then allowed Ms. Fox to deliver a highly inflammatory and one-sided

19 summary of the facts of the case, and even permitted her to declare that the only way Brandon
20 would ever have a chance at a voluntary manslaughter defense was if he were to take the stand

21 and testif~’.

22 39. In addition, Judge Campbell allowed Ms. Fox to state on the record the details of a

23 settlement offer extended by the district attorney to the defendant, and even permitted her to say

24 that her office had made such an offer so that Brandon could have a chance at a life after prison,

25 and that her office had never made such a generous offer in the 20 years she had been at the

26 office.

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 1 40. Ms. Fox stated on the record precisely when her office had made this offer to the

2 defendant.

3 41. After Judge Campbell allowed and listened to Ms. Fox speak at length about these

4 numerous matters, I attempted to respond to Ms. Fox’s comments.

5 42. Judge Campbell prevented me from responding, saying, “this is how this works, you

6 speak, she speaks, I speak”.

7 43. Judge Campbell’s comments effectively precluded me from making my record.
8 44. Also during the hearing, Ms. Bramson and I informed Judge Campbell of the possible

9 existence of exculpatory evidence in the possession of the district attorney, which had not been
10 discovered to us.
11 45. We informed the court that we had just learned of the existence of this exculpatory Brady

12 evidence in the past couple of days from our investigator who had just uncovered the possible

13 existence of the evidence.

14 46. Deputy district attorney Ms. Fox, responded to the defense’s mention of possible
15 outstanding exculpatory Brady evidence by saying that the defense had never made any request

16 from her for such evidence.

17 47. Ms. Bramson replied to Ms. Fox’s comment by stating that the prosecution’s discovery

18 obligations under Brady imposed upon them an affirmative duty to disclose any such evidence

19 without the need for any request by defense counsel.

20 48. I stated to Judge Campbell that based on this new information from our investigator

21 regarding potential outstanding Brady evidence, we needed more time to investigate this possible

22 Brady violation by the prosecution.

23 49. When presented with the Brady evidence issue, and after hearing Ms. Fox’s response

24 which clearly demonstrated a misunderstanding of the prosecutions discovery obligations under

25 Brady, Judge Campbell refused to even inquire as to the precise nature of the potential Brady

26 violation.

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 50. Judge Campbell similarly refused to inquire of Ms. Fox as to whether there was possible
2 Brady evidence in her possession that she had not disclosed to the defense.

3 51. Judge Campbell was silent in all regards on the Brady issue raised by the defense.

4 52. Mr. Bramson and I stated that as a result of the outstanding investigation as well as

5 additional reasons stemming from the defense ex parte motions, we were not prepared to go

6 forward to trial, that we would be ineffective assistance of counsel if forced to proceed.

7 53. Judge Campbell inquired of us as to when we had substituted in as attorneys of record,

8 and when the district attorney made an offer of 25 years to life to the defendant.

9 54. We answered Judge Campbell’s questions regarding these dates, but advised him that
10 there were other pertinent dates and court orders that impacted and delayed the commencement
11 of our investigation.

12 55. We advised Judge Campbell that those additional pertinent dates were documented at

13 various points within the court file, and urged him to consult the file in order to obtain these
14 dates, which related to the investigation.

15 56. Judge Campbell refused to look in the court file in order to ascertain these dates and

16 orders.

17 57. Judge Campbell denied our defense motion to continue, stating that he felt there had been

18 a lack of diligence on the part of defense counsel with regard to the investigation.

19 58. Judge Campbell did not discuss in his ruling whether or not the investigation that was
20 still outstanding was necessary for the preparation and presentation of a defense.
21 59. After denying the motion to continue, Judge Campbell proceeded to discuss a trial brief

22 that had been filed by the prosecution.

23 60. Judge Campbell asked if he had a written response to the prosecution’s trial brief, which

24 we stated we did not, because we were not prepared.

25 61. Judge Campbell asked if we had anything to say in response to the prosecution’s trial

26 brief, to which Ms. Bramson responded that the brief sought to exclude a variety of anticipated

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 1 defense evidence, and that since we were not prepared to proceed to trial, we had no evidence to

2 put on in Brandon Mclnerney’s defense.

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4 I declare the above is true and correct under penalty of perjury pursuant to the laws of the

5 State of California. Executed this 17th day of July, 2010, at Chico, California.
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7 Scott Wip rt

8 Attorney randon Mclnerney

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