Judge rejects convicted rapist Spencer Scarber’s bid for new trial

The Fresno BeeDecember 19, 2013 

— A judge on Thursday rejected convicted rapist Spencer Scarber’s motion for a new trial, saying he didn’t believe Scarber’s contention that he was beaten into making a false confession.

Scarber’s lawyer tried to insert political intrigue and portray his client as a victim of zealous prosecution. The attorney, Charles Magill, even likened himself to John Adams.

But in a blistering – and lengthy – attack on the motion, Judge Edward Sarkisian Jr. said in Fresno County Superior Court that the only people who beat Scarber were the victim’s friends who helped sheriff’s detectives solve the rape case in July 2011.

“It was a true confession,” Sarkisian said. “He knew facts to be known only by the rapist.” Scarber also drew an accurate diagram of the crime scene “that only the rapist would know,” the judge said.

Sarkisian also said Scarber, 21, liked to blame others – most notably his trial lawyer, Antonio Alvarez – for his legal troubles. But the judge said it was Scarber who sabotaged his trial when he fled to Mexico on the last day of his two-week trial last December.

With Scarber absent at the defense table, Alvarez did the best he could, considering the “overwhelming evidence against his client,” the judge said.

In addition, Sarkisian took a shot at Scarber’s new lawyers, Charles Magill and Laura Guzman Magill, who are married, saying they filled the motion with irrelevant information such as Scarber’s father’s desire to run against Sheriff Margaret Mims in the 2014 election.

Sarkisian said the information was designed to distract the court from “the defendant’s guilt.”

To drive his point home, Sarkisian played the nearly 40-minute videotaped confession to a packed courtroom that included the defendant’s parents, Kyle and Gail Scarber, and their supporters, as well as eight to 10 sheriff’s officials who were instrumental in Scarber’s arrest and conviction.

In the confession, Scarber describes in detail how he smoked marijuana, put on sunglasses and covered his face with a dark T-shirt, and then sneaked up on the victim – a woman about 35 – in a Squaw Valley home and put a knife to her throat.

“I raped her,” he calmly told detectives.

Scarber was guilty of rape, Sarkisian said, because his confession matched what the victim told detectives after the rape and her testimony on the witness stand at Scarber’s trial in December 2012.

After the motion was denied, Gail Scarber couldn’t hold back her emotions. “Is this fair? Is this fair?” she asked reporters outside the courtroom.

“My son faces 106 years to life in prison, while people who have killed have gotten two years in this courthouse,” she said.

She could be wrong in her calculation. He may face more than 150 years in prison when he is sentenced Jan. 15, Magill said. Scarber remains in custody at the Fresno County jail.

Scarber’s trial made headlines a year ago when he vanished from his Squaw Valley home on the day he was to testify. A jury deliberated just two hours on Dec. 14, 2012, before convicting him in absentia of five felony charges of rape, burglary and robbery.

Two months after the verdict, Mexican authorities in Acapulco captured Scarber, who had dyed his hair, grown a goatee, got tattoos and possessed false identification, prosecutor Leanne LeMon said.

His arrest led to the arrest of his father, his mother and sister, Crystal Reynoso, on charges of aiding his escape. Their trials are pending. Kyle Scarber is a former California Highway Patrol assistant chief in the Fresno area. Magill said he lost his job this year but is seeking to get it back.

Historical comparison

During Thursday’s hearing, Magill raised eyebrows when he said his client was beaten and forced into making a false confession at the direction of the Sheriff’s Office. His statement caused Sarkisian to do a double take and ask Magill if he meant what he said. Magill said “yes” and gave evidence to support his allegation.

He also said the sheriff hid evidence of the victim wanting to drop charges against Scarber. That evidence, if given to the defense, would have helped Scarber at trial, Magill said.

In accusing the sheriff, Magill conceded he was taking an unpopular stand. He likened his stand to that of attorney and John Adams, the future U.S. president who defended British soldiers in the Boston Massacre shortly before the Revolutionary War.

Mims, in a court declaration, denied the allegation, and Sarkisian said he believed the sheriff’s account.

In the motion, Scarber also contended that he didn’t get a fair trial because his father once had an affair with Elizabeth Egan before she was elected as Fresno County district attorney. Egan should have let another agency file charges against Scarber, Magill said.

Court records show Egan’s staff filed charges against Scarber on Aug. 2, 2011, and prosecuted him for four months before handing the case to the California Attorney General’s Office.

In a news release, Egan has admitted to having a relationship with Kyle Scarber in the 1990s, but has not commented on the Spencer Scarber case.

At Thursday’s hearing, neither Sarkisian, Magill nor LeMon mentioned Kyle Scarber’s link to Egan. Instead, the focus was on Scarber’s flight to Mexico and on Alvarez, Scarber’s former attorney.

‘Calm, cool’ in confession

LeMon, a deputy state attorney general, said Scarber’s motion had no merit because Scarber willingly gave his confession to sheriff’s deputies. “He was coherent, calm and cool when he did it,” she told the judge.

Scarber also planned in advance to leave the country before his trial, LeMon said. In November 2012 – a month before his trial – he received a passport, she said.

According to LeMon, once the victim testified, Scarber knew his chances of being acquitted weren’t good, so he fled to Mexico to get a mistrial. She likened Scarber’s flight to a gamble: Heads, a mistrial; tails, authorities would never find him.

She implored Sarkisian to deny Scarber’s motion, saying if Scarber gets a new trial, “it would encourage other defendants to flee the country if things don’t go well.”

Magill, however, said Alvarez did not properly investigate the case, play the 911 tape for jurors or get sheriff’s dispatch records that Magill said could have impeached the prosecution’s witnesses.

In his confession, Scarber talks about being attacked by 10 people. Detectives note that he had minor cuts and bruises on his face, an injured right hand and a bloody shirt.

Magill said Alvarez didn’t truly believe that his client’s confession was coerced or his claim that he had consensual sex with the victim.

At a hearing in October, Scarber testified that Alvarez wanted him lie to the jury and say he was high on marijuana and therefore didn’t have the specific intent to rape the woman.

But in a declaration, Alvarez denied Scarber’s allegation, and Sarkisian said Thursday that he “totally and completely rejected” the notion that Alvarez would tell the accused to lie.

Instead, Scarber’s flight to Mexico sealed his fate, the judge said.

Magill disagreed, saying Scarber, then 19, was forced to leave the country because he was scared. “He thought he had no other choice because his attorney had abandoned him,” Magill said.

Sarkisian said that if Scarber was dissatisfied with Alvarez, who was hired by Scarber’s parents, then he should have contacted another lawyer instead of running off to Mexico.

“He was not abandoned by his attorney,” Sarkisian said. “Mr. Alvarez did the best he could with the little he had to work with.”

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