The last trial in California

This story was originally published by the Appeal.

When jury selection began in the trial of Kenneth Weathersby Jr., COVID-19 wasn’t a household name in the United States.

It was late February. The novel coronavirus had not been declared a pandemic. No U.S. cities or states were under travel restrictions. And the public symbol of the virus, the Grand Princess cruise ship, hadn’t yet docked in Oakland, California, which shares the San Francisco Bay with Vallejo in Solano County, where Weathersby was charged with kidnapping and abduction.

Solano County is also where a woman was believed to be the first person in the U.S. to be infected with the virus through community transmission.

On Feb. 26, Judge Robert S. Bowers started the trial as scheduled with 12 jurors and three alternates, and dozens of other people in a courtroom. It was a normal trial setting. But soon after proceedings began, COVID-19 became a pandemic and public health experts warned that people should avoid gatherings of more than 10 people. California courts then stayed jury trials. On March 19, Solano County Deputy Public Defender Nick Filloy requested a delay in the trial because of coronavirus concerns. Bowers, smirking from the bench, denied the motion.

Bowers did institute some precautions, such as attempts at social distancing and having hand sanitizer available for people as they entered the courtroom.

As the world drastically changed, the jury heard testimony from dozens of witnesses presented by the Solano County district attorney’s office against Weathersby, accused of kidnapping and raping two teenage girls in Vallejo two weeks apart in July 2018. DNA evidence played a crucial role.

But prosecutors hadn’t disclosed all of their evidence, including  DNA tests that excluded Weathersby as a suspect. On Feb. 20, well before the trial began, Filloy requested a 45-day extension to review the evidence. Bowers ruled against him.

Then coronavirus arrived in Solano County.

On March 23, the county’s chief judge took the extraordinary step of overruling Bowers to suspend the trial over public health concerns. The same day, the state’s highest judge, ended all jury trials in the state.

The People of the State of California v. Kenneth Lee Weathersby Jr. then became the last trial in California.

In August 2018, Weathersby, then 33, was wanted on 10 counts related to the abduction and sexual assault of two teenage girls in Vallejo, a city of 120,000 people, the month before. He was considered armed and dangerous and later arrested in Sioux Falls, South Dakota.

Weathersby’s trial began in February with several Vallejo police officers testifying about interviewing the victims and collecting evidence in the case, including a condom and a pair of panties left in an alleyway.

According to court testimony, the first assault occurred on July 16, 2018, when a young mother said she was approached just before 2 a.m. by a man with a gun. She testified that he drove her around Vallejo for hours, and forced her to perform oral sex on him before he raped her in the back of his car.

Detective Mat Mustard of the Vallejo Police Department was assigned to the case with no leads on a suspect. DNA swabs from the victim and physical evidence were sent to the San Mateo County crime lab.

Two weeks later, according to court testimony, another teenage girl reported a similar kidnapping and sexual assault at gunpoint in broad daylight. She escaped from the perpetrator by fleeing from the vehicle at a stoplight before calling 911 from a nearby business. She told police that a man forced her to perform oral sex repeatedly over several hours. Vallejo Detective Josh Caitham handled her case.

Mustard and Caitham noted similarities in their cases, and samples in both cases were sent to Kevin Gazlay, a senior criminalist with the California Department of Justice.

At trial, Gazlay testified that he compared a vaginal swab from the first victim to a lip swab of the second and concluded that it excluded Weathersby as the source of the DNA. He made a note to call Mustard’s personal cell phone. Gazlay testified that during a call with Mustard on Aug. 8, 2018, he made it “crystal clear” the two samples didn’t match.

Neither Mustard nor Gazlay made an official report on the findings, and Gazlay’s lab notes referencing the finding and calls to Mustard’s personal cell phone weren’t disclosed to the defense until Feb. 29, after the trial had already begun.

Mustard repeatedly testified that he couldn’t recall any calls with Gazlay or the DOJ, and didn’t know about the exculpatory evidence because he had recently been promoted to detective sergeant and was no longer the lead investigator on the case.

As The Appeal previously reported, Mustard pressured a forensic pathologist to alter an autopsy report in a 2012 murder case, a history that Bowers prevented the defense from raising in front of the jury.

Filloy attempted to raise Mustard’s past misdeeds when he put him on the witness stand on March 19, but Bowers sustained all objections from Deputy District Attorney Shelly Moore regarding the relevance of Filloy’s questions.

Even before the trial began, Filloy filed for a delay in the proceedings, because he learned of undisclosed evidence from the state crime lab that was sent to Mustard. That included a report Gazlay made after speaking with Moore, without any new analysis of the DNA samples. “I wanted to make it really clear that the suspect was excluded,” Gazlay testified.

The undisclosed evidence wasn’t enough to persuade Judge Bowers to delay the trial, nor were warnings from public health officials about COVID-19.

On March 18, Solano County’s stay-at-home orders went into effect. On March 19, the first day of court with the order in effect, the courthouse was essentially closed, except for a few hearings and Weathersby’s trial.

People in the courthouse’s long, narrow hallway talked about the difficulty of maintaining social distance, and how they shouldn’t have been there because of coronavirus. “There’s no avoiding it,” a security guard told a man in the hallway.

Inside courtroom 101, Judge Bowers told those in attendance that the county’s orders didn’t apply to the courts, but he excused two jurors because they wanted to remain home. The remainder of the jurors agreed to stay.

The same day, Filloy again motioned to have the trial delayed. “What we’re doing here is wrong, judge,” he said.

“And that’s your opinion, and I respect that,” Bowers said. “The People don’t want to take a recess.”

Moore, the prosecutor, also wanted the trial to proceed, citing the victims in the case, as well as asserting the prosecution’s speedy trial rights under state law. (The Solano County DA’s office did not respond to requests for comment from The Appeal about the case.)

The court was rearranged so jurors could maintain social distancing: Six sat in the jury box and the seven others were seated in the gallery behind the prosecution. A bailiff at the door offered everyone who entered the courtroom a squirt of hand sanitizer.

But attorneys remained close to their clients and investigators, and they passed documents between themselves, witnesses, and clerks. At one point, Bowers coughed into his hands and then handled paperwork. Jurors huddled together as they left the courtroom on break.

On one break, a juror spoke with a bailiff in the hallway about the hoarding and panic shopping occurring across the country. A security guard casually mentioned coronavirus being the end of humanity. A Vallejo detective joked that working in Solano County for 10 years made him immune to the coronavirus.

Back in the courtroom, Mustard testified again that he didn’t remember any calls from the DOJ about Weathersby’s DNA not matching what was found on the second victim’s lips. It was significant because the sample was collected immediately after the girl said she had been forced to perform oral sex on him several times.

Mustard said he didn’t “know anything about the phone call,” but agreed that “hypothetically, if there’s exculpatory evidence, it needs to be turned over.”

After a full day of testimony on March 19, the court recessed for the day around 4:45 p.m. That night, Governor Gavin Newsom issued a statewide declaration ordering people to shelter in place.

Before the courtroom was open Friday morning, prosecutors discussed possibly bringing back a Vallejo police officer to testify, but were concerned that he had displayed possible symptoms of COVID-19.

Moore said the officer had a fever within the last 48 hours. But because the jurors were out of the room and the courtroom doors were locked at the time that Moore said it, no one from the public heard about the officer’s symptoms. The officer was ultimately not called to return to court.

Again, Filloy motioned to delay the trial, saying that, to his knowledge, the Weathersby case was the last jury trial in California. He said prosecutors wanted the trial to move forward to cover up their discovery violations and accused Bowers of smirking from the bench.

“You say such outrageous things, it’s hard not to,” Bowers replied.

Filloy argued that the jurors were simply doing their civic duty and requiring them to continue to come to court endangered their safety. “This has become a circus,” he said.

But Bowers, again, ruled the case would move forward. Filloy called Gazlay and others at the DOJ to the stand to hammer home that, yes, they told Detective Mustard about the exculpatory DNA evidence as far back as August 2018. (The DOJ declined to comment on the case.)

Filloy then rested his case without calling Weathersby to testify.

At around 3 p.m. on March 20, Moore began her closing arguments in front of 33 people in the courtroom. “We’d all agree when we started this three, four weeks ago, we couldn’t imagine ourselves in a situation like this,” she said.

During her nearly two-hour closing, Moore touched numerous surfaces around the courtroom, including after coughing into her hand.

After rubbing his hands across his face, Bowers excused the jury, and asked them to return to court on Tuesday, March 24. “No one knows what the status of life will be like in three days,” he said.

But that Monday, Donna Stashyn, the presiding judge for Solano County Superior Court, overruled Bowers and issued an order suspending the trial for a month.

Hours later, California Chief Justice Tani Cantil-Sakauye ordered the suspension of all jury trials in the state for 60 days, citing concerns over coronavirus and how the current system is ill-equipped to meet the social distancing demands required by state health officials.

“Courts cannot comply with these health restrictions and continue to operate as they have in the past,” Cantil-Sakauye wrote in her order.

That same day, Vallejo police announced that one of their officers had tested positive for COVID-19.

The state chief justice’s order means Weathersby’s trial can’t resume until May, unless there’s finding for good cause, or remote technology is used. The county chief judge’s order overruling Bowers stays the trial until at least April 24.

Filloy told The Appeal that Judge Bowers could be fearless on the bench, but that trait can sometimes backfire.

“He’s brave. I usually admire that about him. It’s that trait that got us here,” Filloy said. “Thing is, if you are going to be bold, it can sometimes make it a little worse when you happen to be wrong.”

That boldness included continuing a trial against public health guidelines, potentially exposing attorneys, witnesses, court personnel and the public to a highly infectious disease.

When jurors return, there’s an instruction for their deliberations that they should weigh the fact that prosecutors were late in disclosing evidence favorable to the defense and whether it affected Weatherby’s right to a fair trial.

Only they can decide if that late disclosure affects their verdict, whenever it may come.