Judge Says Man in AIDS-Related Assault Case Was Denied Right

A Superior Court judge ruled Friday that the first man in California charged with assault for allegedly spreading the AIDS virus through sex was improperly denied the right to hear evidence against him.

The decision hinged on Proposition 115, the Crime Victims’ Initiative.

Judge Lawrence Storch ruled that a preliminary hearing, not a grand jury investigation, should have been held for David Scott Crother, 45, of Santa Barbara to decide whether to send him to trial.

The Ventura County grand jury indicted Crother on Jan. 11 on 15 counts of assault with a deadly weapon--one count for each of the sexual liaisons he allegedly had with an unidentified Ventura County woman between September, 1988, and August, 1989. The woman and the child he allegedly fathered have tested positive for the AIDS virus, prosecutors said.

Prop. 115 allows prosecutors to save time by bringing cases to trial through indictments rather than preliminary hearings. Defendants are allowed to attend hearings, but not grand jury proceedings.

Defense attorney Robert M. Sanger argued that Crother should have had a preliminary hearing because the alleged offenses took place before June 5, when California voters passed Prop. 115.

Storch agreed.

“The indictment here does away with the right to counsel; it does away with the right to confront and cross-examine witnesses, the right to personally appear and the right to a hearing before a judicial officer,” Storch said. “And in my view, those are basic, fundamental, constitutional rights.”

Storch granted Sanger’s request for a preliminary hearing for Crother, then stayed the ruling to allow prosecutors time to file an appeal.

Chief Deputy Dist. Atty. Vincent J. O’Neill Jr. said he will petition the 2nd District Court of Appeal next week to reverse Storch’s ruling, on the ground that case law established in the past nine months would make Prop. 115 retroactive in such cases.

O’Neill said the California Supreme Court is expected to make a conclusive ruling by April 10 on whether Prop. 115 can apply retroactively to crimes committed before it became law.

“We think the facts of this case are . . . . compelling for the protection of the victim by avoiding a prelim,” O’Neill said. “If this woman is to be subjected to testifying and public revelations about private matters and her status of being . . . infected, we think once is enough,” he said, referring to a trial.

Storch’s ruling appears to contradict earlier rulings he has made on Prop. 115, O’Neill said.

Last fall, Storch ruled that Prop. 115 could apply to a case that occurred before June 5 to allow hearsay testimony during a preliminary hearing on fraud and embezzlement charges against Ventura County Community College District Trustee James T. (Tom) Ely and his wife, Ingrid.

Storch routinely follows Prop. 115’s trial-streamlining provisions on pre-June 5 cases, allowing juries to be chosen by him rather than the attorneys in the case.

Storch said during Friday’s hearing that he views jury selection as a procedural matter, which has less impact on the defendant’s rights than the use of a grand jury in lieu of a preliminary hearing.

O’Neill later said the ruling surprised him because he expected Storch to rule instead on whether assault was a proper charge for Crother’s case.

Sanger had filed a legal challenge Jan. 30 arguing that no state law exists to support the case against Crother.

But Storch said Friday that this challenge could not be answered until Crother had been properly charged, after a preliminary hearing in Municipal Court.

Crother remains free on $1,000 bail. If convicted on all counts, he faces up to eight years in state prison and $150,000 in fines. He still has not entered a plea in the case and has declined to comment.