SANTA CRUZ — As the Capitola outrigger paddler’s trial approaches next month, attorneys have filed a series of motions seeking everything from outright dismissal of the murder case to a change of venue.
Theobald Lengyel, a 54-year-old musician from El Cerrito, was charged with burglary, vehicle theft and the murder late last year of his girlfriend Alice “Alyx” Kamakaokalani Herrmann, 61. Family members reported Herrmann missing on Dec. 12, and her body was found under a pile of rocks in a Berkeley park on Jan. 2. Weeks earlier, Lengyel had traveled with his brother from Portland, Oregon, to Santa Cruz to meet with the public defender’s office on Dec. 11, according to testimony in the case.
In June, Santa Cruz County Superior Court Judge Nancy de la Peña detained Lengyel to answer the charges, clearing the way for a potentially speedy trial scheduled for Aug. 19.
This week and next week, the justices will hear arguments and issue decisions on three separate motions in the case.
Shortly after his preliminary hearing, Lengyel, a founding member of the former alternative rock band Mr. Bungle, asked the judge to dismiss the charges. In her July 9 motion, defense attorney Annrae Angel cited what she called a lack of evidence to support the charges, including the intent required for a first- or second-degree murder charge. She also cited testimony given at the preliminary hearing that there was no specific cause of death, no domestic disturbance or violence reported by a witness between the couple and no proven intent to burglarize Herrmann’s home or steal her car.
In her dissent, Santa Cruz County Assistant District Attorney Yukiko Orii said it would be up to the jury to determine what level of murder a convicted defendant should be charged with. She also wrote that Lengyel had confessed to Herrmann’s brother, Eric, that he had caused Herrmann’s “death” and had described in detail how he had disposed of her body.
Angel also filed a motion asking that Lengyel’s trial be moved to another county, based on “dramatic and extensive media coverage” that could have biased future jurors.
In her affidavit in support of the motion, defense attorney Annrae Angel cites several pages of media coverage related to the case found in an online search of her client’s name, extensive media coverage in January and ongoing local media coverage, as well as concerns that “some of the media coverage is inconsistent with the facts as I know them,” with specific citations from a June 13 Berkeley Scanner article. Angel’s affidavit also raises concern about the level of interest indicated by what she describes as community attendance of 25 to 35 people at “nearly every court appearance.”
Prosecution co-counsel, Assistant District Attorney Emily Wang, opposed the change of venue, arguing that media coverage of the case was “largely factual” and had diminished over time.
“However, the fact that a victim, previously unknown to the majority of the community, becomes famous due to the publicity surrounding his death does not weigh in favor of a change of venue,” Wang wrote in his opposition.
Wang’s response also dismissed the constant presence at court hearings of Herrmann’s teammates from Outrigger Santa Cruz as a factor of bias.
“Their court appearances are intended to support the memory of a victim,” Wang wrote. “Their sympathy is not accidental, as they were friends and teammates of the victim.”
The third motion in the case, filed July 16 by the Public Defender’s Office, seeks to enjoin or “rescind” the district attorney’s office from demanding that he turn over photographs taken of Lengyel when he consulted with defense attorneys in December.
At the preliminary hearing, witnesses testified that Lengyel’s brother observed a bruise on Lengyel’s arm the same day he visited the public defender’s office, a bruise that a Capitola Police Department detective witnessed more than a week later and that appeared to be an aged bite-shaped bruise, according to hearing testimony.
Although the public defender’s office no longer represents Lengyel due to a conflict of interest disclosed early in the case, the public defender’s office’s filing claims that such photos would be confidential communications protected by attorney-client privilege.
Orii, opposing the effort to block his office from obtaining Lengyel’s photographs, said attorney-client privilege does not allow lawyers to withhold evidence relating to the underlying facts of the case.
“It is an abuse of professional responsibility by a lawyer to knowingly take possession of and conceal the instruments of crime,” Orii wrote in his July 23 filing.
Lengyel remained held without bail at the Santa Cruz County Jail this week. He is scheduled to appear for a ruling on the motion to dismiss Wednesday morning.
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