A Travesty of Justice: The John McVoy, Jr. Murder Trial – Part 3

Initial Media Coverage

As I indicated in my previous blog, John’s arrest was widely reported in the local media. And not surprisingly, on January 13, 2017 (three days after the incident), the Los Angeles County District Attorney's Office proudly announced John’s prosecution. See: da.lacounty.gov (“Man Charged with Killing Woman, Shooting Her Husband in Long Beach”). The DA’s Office announced that it was requesting a bail of $5 million (though the judge would ultimately reduce it to $2 million – an irrelevant discount since neither John nor his family could afford such an astronomical amount).

For some reason, although the DA’s article confirmed John had been charged with one count of Murder under California Penal Code section 187(a) and two counts of Attempted Murder (“First-Degree Attempted Murder”) (California Penal Code section 664 & California Penal Code section 187(a)), there was no mention of the felony Child Endangerment charge (California Penal Code section 273a) for the near-shooting of Ray Garcia (who, again, was three months shy of his third birthday). Perhaps this oversight resulted from the fact that this particular charge likely would carry only a four-year prison sentence upon conviction, whereas John was already facing three life sentences (with potential parole) for the other three charges.

Further, each of those three counts constituted a Strike Offense (California Penal Code section 667(a)&(b); California Penal Code section 667.5(c) (“Violent Felonies”); California Penal Code section 1192.7(c) (“Serious Felonies”)). This meant that he could be required to serve out at least 80% of his sentence before being eligible for parole, depending on the circumstances. See also Strike Sentencing Enhancements (California Penal Code section 1170.12).

In addition, John was also looking at not one, but two maximum 20-year enhancements, as the article reported, for two Special Allegations of Personal and Intentional Discharge of a Firearm Causing Great Bodily Injury or Death (California Penal Code section 12022.53(d)) – i.e., the killing of Susan Garcia with the ancient Colt, and the serious wounding of Victor Garcia with the same.

Strangely, the article claimed that John got into an argument with both Victor and Susan despite the fact that none of the prosecution’s witnesses ever mentioned any verbal exchange, much less an argument, between John and Susan. But, of course, none of the articles disclosed the details about what really happened the night John was arrested.

John’s Arrest and Interrogation by a Biased, Myopic Detective

After being treated at the hospital, John was placed under arrest and housed at the Los Angeles County USC Medical Center under sheriff’s custody. Meanwhile, the Los Angeles County Sheriff's Department (“LASD”) detectives executed a search warrant at the home that, again, John shared with his father, John Senior, in Corona. John Senior admitted the Colt was a longtime family heirloom. Inside the hallway, detectives found a box of .41-caliber ammunition that matched the bullet casings taken from the Garcias’ residence, as well as the remaining four bullets found in the Colt itself. And, of course, six rounds were missing from the box of ammo.

Again, John’s bail was set at $2 million, which neither he nor his family had the resources to post bond, which, depending on their assets, could equal 5% to 10% of the bail amount.

During his extensive interrogation, led by a particularly incompetent and egregiously biased detective whom I call Detective Sellers (after the late great actor Peter Sellers who was most famous for playing the hopelessly bumbling French detective Inspector Jacques Clouseau). John never denied firing the two bullets which struck the Garcias, but repeatedly insisted that he had only fired the first shot in self-defense after being attacked (as described above), and the second shot went off accidentally when Miguel Rea attacked him next.

John agreed to speak with the detective – virtually always the worst possible thing a suspect, particularly in a murder case, can do (though not in this case as discussed hereafter). After reading him his Miranda rights, Sellers interviewed him while recording John on audiotape. In John’s case, I don’t believe he did himself any harm since there was no dispute that he had shot Victor first and then Susan second, or that he had voluntarily brought the revolver with him to their residence. In addition, the Colt was obviously his, the GRS (gun powder residue) testing (sometimes referred to as a “paraffin test”) confirmed he had fired the gun, etc.

On the contrary, the fact that the detective shut him down no less than eleven times whenever he tried to explain he only shot the victims when trying to defend himself certainly helped him at trial. He also repeatedly denied in the interview that he ever had any intention of shooting anyone that night.

Trial Tip:

This detective’s incompetence and willful blindness as to the actual facts of the case turned off the jurors so much – namely, the fact that Sellers had no interest whatsoever in hearing evidence that John had acted in self-defense (which, at minimum, the severe injuries inflicted upon John in and of themselves should have prompted Sellers to investigate further – if not the fact that it’s supposed to be his job to investigate all the facts, and not just those that fit nicely into what he believed to have occurred.

Both jurors told me that all 12 jurors were aghast at Seller’s severe myopia in refusing to even listen to John’s version. Indeed, they said that several of the jurors believed Sellers should be criminally prosecuted for his egregious dereliction of the duty! Finally, they both said most if not all the jurors agreed that Sellers should be fired (and thereby lose his LBPD pension). In my 60-plus criminal trials I’ve completed to date, I have never seen jurors so horrified by a detective’s actions.

This is why I mercilessly cross-examined Sellers at trial for two full days. I went over the recordings and the interview transcript with him line by line, forcing him to admit – again, eleven times – that he had cut off John whenever John tried to explain that he had been attacked by Victor with a metal object, and that he had next been attacked by Miguel, which caused the revolver to fire a second time. Sellers was also extremely evasive on the stand, and his contempt for me easily showed through to the jury. I couldn’t have asked for a better bad-guy detective to confront.

So trial attorneys and would-be trial lawyers – it’s uncommon to get a detective like Sellers whom you know is going to garner the wrath of the entire jury, but it’s certainly not unheard of. In fact, I’ve had plenty of detectives – primarily from both the Los Angeles Police Department and the Los Angeles County Sheriff's Department – who’ve crumbled on cross-examination when faced with the irrefutable facts of their own incompetence and bias.

Destroying the detective on the stand (assuming you can do so) may very well destroy the prosecution’s entire case. And in John’s case, but for the judge’s prejudicial errors in refusing to allow him a self-defense claim on the Murder charge – either First-Degree Murder (California Penal Code section 190) or Second-Degree Murder (CaliforniaPenal Codesection 192(a)&(b)California Penal Code section 187) -- and to allow a manslaughter instruction – for both Voluntary Manslaughter (Penal Code section 192(a)) and Involuntary Manslaughter (Penal Code section 192(b)) -- Sellers’ disastrous performance would have done the same here.

So go after relentlessly bludgeoning those deserving detectives at trial or, much less frequently, during a preliminary hearing – preferably by using their own words in their police reports or in audio recordings such as here. I’ve found that because the justice system in California, and particularly in Los Angeles County, is so heavily skewed in favor of the prosecution (i.e., the judge is typically a former Deputy District Attorney; the jury is predisposed to believe your client is guilty; etc.), that many detectives don’t bother to dot all their “I’s” or cross all their “T’s” when conducting your client’s investigation. So take every opportunity to exploit their sloppiness – because even evidence that the detective was sloppy in his or her work can turn a jury off enough to taint the entire prosecution. Besides, it’s our job as criminal defense attorneys to ensure that the police do their job properly and constitutionally.

Oh, and as far as preliminary hearings, I know it’s tempting to pull out that ace you’ve been holding up your sleeve– whether it’s in regard to the prosecution’s witnesses or the police – in the hope of getting the prelim judge to dismiss the case. But I almost never do that.

First, I know that it’s very infrequent to have a case tossed at prelim (and, of course, I’m referring to felony cases since misdemeanors don’t include prelims), regardless of how weak or even non-existent the DA’s evidence is incriminating your client, because the standard for binding a case over for trial is so low, and because no judge wants to toss out a serious felony case at prelim (especially one involving a violent crime – and most particularly one involving murder), that your chances of getting it tossed are very low. That’s why you should save your best stuff for trial, particularly the material that’s going to help you destroy the prosecution’s witnesses and police/detectives.

Almost half of the clients that retain me had left previous attorneys because, for whatever reason(s), they were unhappy with the attorney’s representation of them. This is not surprising since many of these attorneys actually promised that they would be able to get the case dismissed at prelim! That is blatantly unethical and flat out false. By contrast, I always tell my clients that it’s highly unlikely we’ll beat the case at prelim, but it’s an excellent opportunity to nail the prosecution’s witnesses to testimony that I’ll be able to use against them at trial. It’s also an opportunity to highlight the weakness of the DA’s case, which could result in an offer that’s too good for the client to pass up.

Importantly, John told Det. Sellers that he had no idea the second gunshot had killed Susan since he wasn’t even sure the gun had been fired a second time, and particularly because he had no intention of harming Susan (or Ray for that matter). “That wasn’t intentional,” he told the detective.

Again, John readily admitted to shooting Victor, which he didn’t think constituted a crime since he had merely been defending himself against someone with a dangerous object. (Again, Long Beach Police Department officers and detectives failed to spot and tag the metal can opener despite the fact that they photographed it (under Ray’s high chair)!

John admitted to bringing the gun from home and carrying it in his rear waist band. He also admitted to having carried it during the last several band meetings/rehearsals because of his growing fear of Victor. As he explained to the police, he had only fired it on one occasion four years earlier to determine that it actually worked. (Again, John was extremely lucky that the gun didn’t explode in his hand because the ammunition was so old and rare it could only be purchased at gun shows. Amazingly, after the trial was over, the judge ruled that she would have the Colt returned to John’s father because it was indeed an ancient family heirloom.)

As John said, “I didn’t want to pull the gun out at all. I brought it there because I felt not safe there and this has been [like that] since the last couple of times that I’ve been there. They’ve been … threatening towards me like ‘You’re going to do this now. You’re in the band.””

Bizarrely, and as I forgot to include in my recitation of facts in the previous blogs, Miguel had told LBPD that when he was “struggling to hold John now” (i.e., viciously beating him), he had heard John say the word “jihad” once or twice. This was such a bizarre and nonsensical assertion, particularly in light of the fact that no witness or shred of evidence indicated that John had any interest in politics (aside from voting for Hillary Clinton), much less as a wannabe terrorist, that I was forced to file a Motion In Limine (California Evidence Code section 350; California Evidence Code section 352) (a motion to dismiss evidence, which is heard on the eve of trial before the jury is empaneled) to prevent the prosecutor from presenting this overly prejudicial evidence to the jury. But the police and prosecution ran with the “jihad” angle, hoping it would shore up the glaring fact that there was no evidence whatsoever that John had a motivation for shooting the Garcias that night. In the end, the jihad thing turned into a red-herring – a “nothing burger” which had no impact – because it was dismissed by the prosecution as a motive.

Trial Tip:

I would eventually get Miguel to admit at trial that he “might” have punched John as many as a hundred times, that he was forced to stop to catch his breath several times during the beating, and that the only thing the vastly weaker John could do was scratch his eye. I even got him to essentially admit that he had significantly downplayed the severity of the beating when interviewed by police the night of the incident.

The Deputy DA prosecuting the case – DDA Kim – knew or should have known that I was going to show overwhelming evidence about the beating, and particularly about the severe injuries John sustained as a result thereof – both of which she knew would bolster my self-defense arguments. Therefore, she – as with the whiskey consumption and resultant intoxication of Victor and Miguel – should have gotten in front of the evidence by having Miguel testify on direct examination that he had, in fact, pummeled John to a pulp. Instead, she allowed him to testify that he only punched John “a few times” while “trying to restrain him”.

All Miguel’s bullshit fell apart, of course, when I withered him during cross examination. I even exposed his claim that he was defending himself against John when John tried to scratch his eyes (since as an infirm person weighing 75 pounds less than his attacker, that’s all he could do). It was almost laughable about what a big deal DDA Kim made about the photos of Miguel’s scratches, as if poor Miguel had been the victim.

By the time Miguel left the witness stand, I could tell by the looks in the jurors’ eyes that they understood he was a witness who was willing to outright lie on the stand – all to ensure that John would be convicted of the charges against him. The two jurors I spoke with confirmed that Miguel did not come across as credible or believable.

Simply put, DDA Kim should have dealt with the whiskey and the beating issues upfront on direct, which would have taken out some of the sting of my cross. (By the way, DDA Kim was a veteran prosecutor with the DA’s Office but this would be her last case. After the trial, she transferred to some other department for the county.)

When the detective asked John if he had called anyone “jihad” earlier that night, John explained that he had no idea what he was talking about, but confirmed he had never used racist terms against anyone and that he was not a racist.

The interview ended at 5:20 am. John remained in custody (i.e., handcuffed to the bed) at the Los Angeles County USC Medical Center. He would, of course, be transferred days later to the central Los Angeles County Men’s Jail. That would prove to be John’s home for next five years (before he was transferred to state prison).

Again, the summary of the detective’s interview of John significantly differs from the actual recording of that interrogation. In the latter, John attempts at least than 11 times to explain that he only shot Victor after Victor had lunged at him, and that he accidentally shot Susan when Miguel attacked him & grabbed his arm. Each time, the detective would cut him off, knowing that this recording would be used by whatever defense counsel represented John (i.e., either a Deputy Public Defender or private counsel). Needless to say, John was unable to mention the fact that Victor had attacked him with the can opener, and therefore he had been in fear for his life.