Defense attorney wants Fresno County judge disqualified in pepper spray case
The preliminary hearing for a Fresno man accused of using pepper spray against a group of pro-Palestine supporters was suspended Friday after the defendant’s attorney sought to have the judge disqualified.
Mark Kapetan, the attorney for defendant Brian Lee Turner, submitted the written motion to Judge Alvin Harrell III prior to the start of Friday’s hearing. The motion did not appear Friday in the court’s online system.
The request to replace Harrell is based on section 170.1 of the state’s code of civil procedure.
The section states that a judge shall be disqualified if “the judge has personal knowledge of disputed evidentiary facts concerning the proceeding.”
Deputy District Attorney Anthony Muia objected to the delay, but was overruled by Harrell, who set a status hearing for May 26. A hearing to argue the merits of the motion has not yet been set.
Kapetan would not discuss why he submitted the motion or why he feels the judge should be disqualified, but he did say he is concerned about the possibility of tainting the jury pool with false allegations about Turner.
The 64-year-old Turner is charged with three felonies for allegedly using pepper spray against a group of people who had gathered near River Park on May 15, 2021 to denounce aggression against Palestine by Israel. About 200 people attended the rally.
The District Attorney’s Office added a hate crime penalty enhancement to each felony charge. If Turner is convicted the enhancement could add three years for each felony count.
During Thursday’s testimony, the three young men hit with the pepper spray described Turner as angry and hateful toward them.
Ahmad Qutami, 21, testified that he and two friends were in a car on Blackstone Avenue waiting to turn left onto Nees Avenue when Turner pulled up next to them. Looks were exchange and then an argument ensued.
Qutami accused Turner of saying he did not support Palestine and that all Palestinians will be killed.
The argument escalated when a backseat passenger in the car Qutami was riding in began wildly waving a flag at Turner. The passenger also opened the door and took a step out before being pulled back inside.
That’s when the pepper spraying began, Qutami testified.
The witnesses also testified that Turner flashed a white power symbol at them. Kapetan objected to the comment saying there was no evidence of that. He asked that the comment be stricken from the court record and not mentioned in media coverage of the case. Harrell granted the motion but case law has consistently shown that what’s said in open court is on the record.
On Friday, Kapetan acknowledged that his motion should have been worded as a request to the media.
“I did it so quick that I was just trying to stop that from coming out, “ he said. “Because once it’s out, you can never un-ring that bell.”
Kapetan is adamant that Turner did not display a white power symbol during the confrontation with the Palestine supporters.
“That was never a part of any police report, or investigation,” Kapetan said. “It was an accusation created at the DA’s Office. And I don’t know how it became part of their testimony, it was never a part of their allegations about the incident.”
This story was originally published April 21, 2023 at 5:04 PM.
