Chief Justice Tani Cantil-Sakauye

Prosecutor Recusal Move Revived

Kicking a prosecutor off a case for purported conflict of interest is no easy feat, but the state Supreme Court reinstated the claim by a Ventura County murder defendant to do just that, based on the prosecutor’s family links to the accused.

The state’s high court ordered a Ventura judge Friday to hold an evidentiary hearing into the claims the prosecutor should be disqualified in the capital murder prosecution of Joshua G. Packer.

Parker argued that his relationship with the prosecutor’s two children during meetings of a high school Christian group and at parties could make them witnesses for the defendant as positive character witnesses during the penalty phase of the case.

“We believe that on the facts of this case the trial court’s choice of one inference over another was improperly made without hearing testimony, evaluating credibility, and resolving factual disputes that were key to determining the relative reasonableness of the anternative inferences raised by the parties’ affidavits,” wrote Chief Justice Tani Cantil-Sakauye.

In 2009, Brock and Davina Husted were robbed and stabbed to death in their home by a killer wearing a motorcycle helmet.  Their nine-year-old son witnessed the robbery  and found his parents’ bodies.

His pregnant mother had also been sexually assaulted, according to the court.  Packer was later charged after his DNA was found at the scene.  Packer was charged with three counts of murder, the couple and the fetus, as well as robbery.

In 2012, prosecutor Michael Frawley informed the defense that his former wife and two of his adult children knew Packer.  Packer later indicated the children and Frawley’s former wife might be called as defense witnesses.

Packer also sought recusal of Frawley from his case, which the prosecution opposed.

To recuse a prosecutor is a two step process, requiring the defense to present affidavits of competent witnesses who will make a case for recusal.  If the court finds there is significant fair trial question, the second step is to order an evidentiary hearing to resolve the disputed claims.  Packer was never given that evidentiary hearing.

The state Supreme Court said there were four “significant factual disputes” that, if resolved in Packer’s favor, “could show that the conflict was so grave as to make a fair trial unlikely.”

The court sent the case back to the Ventura trial judge to hold a hearing to resolve the claims.

Case:  Packer v. Sup. Court of Ventura County, S213894


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