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Defense lawyers had a rough day when a San Francisco burglary trial with a twist — one of the victims is a superior court judge — got under way Thursday. S.F. solos Lewis Romero and Paul Alaga were barred from pursuing one line of defense to fend off DNA evidence by Judge Daniel Creed, a visiting jurist retired from the Santa Clara County Superior Court bench. Creed also roundly scolded Romero, called him condescending and threatened him with sanctions. And all that came after court staff took the defense team to task for lugging their own chairs to court from their offices across the street. Romero and Alaga are defending Michael Weible against seemingly run-of-the-mill charges of first-degree burglary, being in receipt of stolen property and stealing a car. But the residential burglary at issue took place in the home of S.F. Superior Court Judge Robert Dondero, and that distinction’s already had some impact on the proceedings. With a local judge, plus his wife and one of his daughters, as victims, Alaga said, “It’s something you’ve always got to be thinking about.” Dondero, currently assigned to the civil courthouse but with bench experience at the Hall of Justice, is expected to take the reins as presiding judge in 2005. Lawyers on both sides agreed to hold the jury trial before an out-of-county judge. “Judge Dondero used to preside over the courtroom next door,” Romero said. “Judges just started recusing themselves.” During voir dire, one juror was excused for cause after she said she’d give Dondero credence because of his job, the defense lawyers noted. “He’s not going to come in with a robe, but he’s still a judge,” Romero said. Dondero’s connection to the case also presents a dilemma for the prosecution. The judge, his wife and daughter are all on the witness list, but by the end of the first day of trial, Assistant DA Andrew Clark said he wasn’t sure who would end up testifying. “I don’t want the jury to feel that it’s because of the judge � that things are getting done the way they’re getting done.” Outside the courtroom, Romero asserted that it is unusual for police to take a DNA sample in a first-degree burglary investigation, as they did in this case. The prosecution contends that Dondero’s wife returned home Jan. 9, 2002, to find their house burglarized and jewelry missing. Police found a little bit of blood at the scene, Clark said. Just under a month later, police pulled Weible over in a car that was reported stolen from an unrelated burglary. When Weible was searched, a Visa card belonging to Dondero’s daughter was found in his pocket, according to a police officer’s written declaration. Weible first told the police he’d driven someone else to the Dondero house, and that person later dropped the credit card, which Weible says he picked up, the declaration says. Then Weible told police he went with the other person to sell the jewelry, and that the stolen car was loaned to him. Clark says Weible later led police to the house where the stolen jewelry was found, then changed his story and confessed to burglarizing the Dondero home. He said he cut himself on a nail while he was there, Clark said. The prosecutor called witnesses from the police department Thursday to attest how blood samples were collected from the scene and compared with an oral swab taken from Weible. Forensic scientist Cydne Holt, who supervises the DNA unit of the police department’s crime lab, testified that the blood and oral swab turned up the same DNA type. She put the likelihood of a “random” Caucasian in the United States sharing the same type at one in 568 billion. Though Romero concedes the facts as presented by the prosecutor “are damning,” he insists his client has a “viable defense.” But he said he’s keeping the specifics under wraps until he gives his opening statement, which he deferred until this week. Judge Creed has already barred Romero from pursuing one tactic. In a sidebar, Creed prohibited Romero from asserting to the jury that Weible never consented to having his mouth swabbed. After the jury recessed for the day, Romero moved for a mistrial, saying the judge’s decision “deprives me of advancing a viable defense.” Clark asked police officer Pamela Hofsass if Weible consented to have a swab taken from his mouth, Romero noted, and she testified that he had. To not be able to cross-examine Hofsass on that point is “ludicrous,” the defense lawyer said. Clark countered that Romero argued that Weible didn’t consent to the DNA swabbing before another judge in a pretrial hearing, but that judge refused to suppress the DNA evidence. “To back door [that argument] in some kind of cross-examination, I think, is highly offensive.” Judge Creed sided with Clark, then turned to lecture Romero. “You interrupt the court. You don’t listen to the court,” Creed said sternly, adding that the attorney spoke condescendingly and was not punctual. “I have the duty to be zealous at every turn in this case,” Romero responded. “And that is what I’m doing.” He apologized for being late once and said he was late a second time because court staff pulled him aside to criticize him for bringing outside chairs into court without permission. Romero said one staff person suggested the defense team’s black chairs could lend them an advantage. “These chairs don’t hurt anybody. They make the trial more comfortable,” Romero said. But he was able to laugh about it later, and joked about proposing a deal to Clark: “I’ll give you four chairs for the DNA.”

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