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An irritated appeal court panel tossed out a death penalty indictment Wednesday after finding that the prosecutor acted improperly by ordering a court reporter to leave the room during his opening and closing statements to a grand jury. “Now is the time to rectify the prosecutor’s error while it is still relatively easy and economical to do so — not wait 20 years down the appellate road,” wrote Justice Rebecca Wiseman of Fresno, Calif.’s 5th District Court of Appeal. Justice Steven Vartabedian concurred, but Justice James Ardaiz dissented, arguing that nothing in statutes or case authorities requires a complete transcription of grand jury proceedings, even if they involve the death penalty. Terry Dale Dustin, one of two men accused of the 1999 stabbing murder of Santiago Garcia, appealed his indictment on the ground that the California Penal Code requires the transcription of all proceedings in death penalty cases. Stanislaus County Deputy District Attorney Rick Distaso had justified dismissing the court reporter by saying that state law demands the transcription of only testimony, not statements by counsel, before grand juries. Stanislaus County Superior Court Judge Aldo Girolami had denied Dustin’s motion to dismiss the indictment, but the appeal court reversed, saying that Distaso had taken “the art of relying on technicalities to new heights.” “Although we can only speculate what might have occurred in this case (due to the prosecutor’s decision to have the court reporter excluded), suffice it to say that argument is a critical stage of the proceedings,” Justice Wiseman wrote. “Further, the intentional failure to record the proceedings as mandated by statute in death penalty cases resulted in the denial of a ‘substantial right,’ i.e., the ability to raise prosecutorial misconduct and to receive meaningful review of any alleged error. “It seems inescapable,” the justice wrote, “that the prosecutor’s exclusion of the court reporter was done for the express purpose of precluding discovery by the defendant of his opening statement and closing argument.” The majority also rejected Distaso’s arguments that a grand jury proceeding isn’t a case within the meaning of the penal code, therefore not requiring full transcription, and that the defendant had the burden of showing harm. “In the absence of a transcript, coupled with the fact that no judge or defense representative was present,” the court held, “it is difficult to imagine how a defendant could ever show prejudice.” In his dissent, Ardaiz agreed with the prosecutor’s argument that the grand jury proceeding wasn’t a case within the meaning of state statutes. “It is the indictment which initiates the prosecution,” he wrote. “Prior to its filing, there is no case. There is, at most, simply an investigation which may or may not already have resulted in the defendant’s arrest and which may not ultimately result in an indictment — a charge — being brought.” Ardaiz also chastised his fellow justices for accusing the prosecutor of trying to prevent the defense from obtaining discovery. “Although the prosecutor’s explanation for, and argument concerning, his exclusion of the court reporter from opening statement and closing argument may indicate his office might wish to re-examine its practice in this regard,” he wrote, “those comments do not suggest the lack of an innocent reason for the exclusion.” In a footnote, the court pointed out that one month after the May 13 oral argument in the case, the Stanislaus County district attorney’s office decided not to seek the death penalty for Dustin. Neither Deputy District Attorney Distaso nor Stanislaus County Deputy Public Defender Martha Carlton, who represented Dustin on appeal, could be reached for comment. The case is Dustin v. Superior Court (People), 02 C.D.O.S. 6135.

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