Son of former Merced CHP chief seeks new trial in rape

12/03/2013 8:36 PM

12/03/2013 8:38 PM

Convicted rapist Spencer Scarber’s motion for a new trial reads like a conspiracy novel: He says he was beaten and coerced into confessing that he raped a woman at knifepoint in July 2011.

The motion filed in Superior Court also says that his father, Kyle Scarber, once had an affair with Elizabeth Egan before she was elected as Fresno County’s district attorney. Therefore, Egan should have let another agency file charges against Spencer Scarber. The state attorney general’s office took over the prosecution four months after his arrest.

In addition, Kyle Scarber, a former California Highway Patrol assistant chief who once served as commander of the CHP’s Merced-area office, was thinking of running against Sheriff Margaret Mims in the 2014 election and had told people such as Madera County Sheriff John Anderson about the idea.

Because of the potential conflict, Mims had a duty to turn over the sheriff’s investigation into Spencer Scarber’s alleged rape to another agency, says Fresno attorney Charles Magill, who is representing the defendant.

These tidbits and more are scheduled to be heard today in Fresno Superior Court.

Spencer Scarber’s case was flying under the radar until December 2012, when he vanished from his Squaw Valley home on the day he was to testify in his own defense.

On Dec. 14, 2012, a jury deliberated just two hours before convicting him in absentia of five felony charges of rape, burglary and robbery.

Two months after the verdict, Mexican authorities in Acapulco captured Spencer Scarber, who had dyed his hair, grown a goatee and possessed a false ID. His arrest led to those of his father, his mother Gail Scarber and sister Crystal Reynoso on charges of aiding his escape. Their trials are pending.

Since his capture, Spencer Scarber, 21, has been in the Fresno County jail without bail.

Magill said Tuesday he filed the motion because he recently uncovered new evidence that proves Scarber was coerced into confessing.

“I know I’m opening a political can of worms, but I have taken an oath to defend my client,” Magill said. “If it means fighting the sheriff and the DA, that’s what I am going to do. I will not be intimidated by them.”

Egan, who was first elected in 2002 and re-elected in 2006 and 2010, declined to be interviewed. But in a statement reported last April by ABC TV Channel 30, she said: “For a brief period in the 1990s, while the district attorney was single, she was in a relationship with a member of defendant Scarber’s family. This past relationship has no bearing on the case.”

Mims, who was elected in 2006 and re-elected in 2010, also issued a statement, saying Spencer Scarber’s motion “is just another strange twist in a very interesting and intriguing investigation.”

Anderson, a former CHP commander, was caught off-guard.

He said he and Kyle Scarber have been friends a long time and that the elder Scarber told him, about a year ago, of his intention to run against Mims.

“Go for it,” Anderson recalled telling Kyle Scarber.

But Anderson said he didn’t know if Scarber could beat Mims, and said he didn’t want to get involved in the motion for a new trial. “I don’t know if the sheriff knew he was running or not,” Anderson said. “That might be the difference.”

At his trial a year ago, Spencer Scarber was represented by Antonio Alvarez, a successful Fresno defense attorney who has won acquittals for clients facing murder and other serious charges. Magill and his attorney wife, Laura Guzman Magill, took over after Spencer Scarber’s conviction.

Magill said Kyle Scarber was fired from the CHP after his son’s case made news but is seeking to get his job back.

The motion emerged from a hearing in October when Spencer Scarber testified that his confession was coerced. The stakes are high: If the defendant doesn’t get a new trial, he faces about 70 years in prison.

On the witness stand, Scarber insisted he had consensual sex with the woman he is accused of raping. He testified that he made the false confession because he was scared. Acquaintances of the woman who accused him of rape had beaten him and threatened to kill him and his family if he didn’t confess, he said.

The reason they wanted Scarber to confess was to stop sheriff’s deputies from investigating the woman’s claim, the motion says. If deputies had poked around, they would have found a large marijuana growing operation at the Squaw Valley residence where the crime occurred.

In the hearing, one of the acquaintances corroborated Scarber’s account that he was beaten and coerced into confessing. She also testified that “some of the people involved in the beating were known to her and Spencer to have killed someone in the past,” the motion said.

Scarber testified that he had told his father and Alvarez about the coerced confession before his trial.

On cross-examination, prosecutor Leanne LeMon reminded Scarber that he gave sheriff’s detectives a detailed, videotaped confession. In the confession, the defendant said he was wearing sunglasses and pulled a black shirt over his face before he raped the woman at knifepoint around noon on July 29, 2011.

Magill contends in the motion that Alvarez could have subpoenaed witnesses to verify Scarber’s account of a false confession and to impeach the woman accusing him.

Alvarez said Tuesday he tried to suppress Scarber’s confession, arguing that it was coerced, but Judge Edward Sarkisian Jr. ruled it was voluntarily given, so it was allowed as evidence.

Alvarez said he told the jury that the confession was coerced, but jurors didn’t believe him. “I did what I thought was best for Spencer and did it to the best of my ability,” he said.

Magill faults Alvarez’s strategy, but said his fight is with “the government.”

He said Egan is being disingenuous when she says she and Kyle Scarber had a relationship. “It was an affair because Kyle Scarber was married and Egan knew it,” Magill said. “At the time of the affair, Egan was pressing Kyle to divorce his wife and marry her.”

Because of the relationship, Magill contends Egan and every prosecutor in her office had a conflict and should have let another agency handle the case.

Court records show Egan’s staff filed charges against Spencer Scarber on Aug. 2, 2011, and prosecuted him for four months before handing the case to the California attorney general’s office in December.

The case ended up with LeMon, a deputy attorney general who once worked for Egan and is married to Carl Monopoli, a deputy district attorney in Egan’s office, the motion says.

LeMon said Tuesday she could not comment because Magill had missed a deadline to file Scarber’s motion. He filed it on Nov. 22 – which she said was too late for her to file a response for Wednesday’s hearing.

But in a previous hearing, LeMon revealed her thoughts about Spencer Scarber’s motion for a new trial: “It feels like a fishing expedition,” she told Sarkisian.

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