Change of venue rejected for Fresno protective order case. Where will trial be?
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- Chief Judge rescinds transfer and refers Fresno case to Ninth Circuit chief.
- Judge Nunley excuses local judges and asks Chief Murguia to assign new judge.
- Prosecutor Tierney accused of misconduct; defense cites fairness to seek venue change.
A U.S. District Court judge’s decision to move a troublesome case out of the Fresno area over allegations a federal prosecutor acted inappropriately with the defendant has been rescinded by the Chief U.S. District Judge in Sacramento.
Judge Troy L. Nunley, who is responsible for the court’s administration in the Eastern District, said in his order filed Tuesday that the case will not be sent to the Northern District and instead will be referred to Chief Judge Mary Murguia, of the U.S. Court of Appeals for the Ninth Circuit, for the assignment to a judge.
The case in question involves felony charges against Shana Gaviola, formerly of Clovis, and Julio Sandoval, of Piedmont, Missouri, who was a former dean of a boarding school for troubled youth. Both were indicted in August 2022 for their involvement in a scheme to secretly transport Gaviola’s son to Missouri. The pair is accused of violating a protective order.
Gaviola’s attorney, George Pallas of Miami, said a change of venue is necessary in order to ensure his client and her co-defendant get a fair trial. He questioned whether the Chief Judge has the judicial authority to vacate another district judge’s order.
Pallas has alleged the prosecutor in the case, Michael Tierney, was guilty of prosecutorial misconduct for having a flirtatious conversation with the defendant at a downtown Fresno bar.
In his order, Nunley also excused all District and Magistrate Judges in the Eastern District from hearing the case and any related matters.
Nunley noted that each judge in the district approved the appointment of Tierney to replace the retiring magistrate judge. Tierney is expected to begin his new post in January.
Although U.S. District Judge Jennifer L. Thurston denied the motion to dismiss the charges against Gaviola, the judge took exception to the prosecutor’s conduct outside the courtroom.
Tierney testified in court that while nothing substantive was discussed that night about the case, he also admitted to talking with Gaviola several times during the evening, a fact the judge found surprising considering he was the lead prosecutor.
“For whatever reason, Mr. Tierney lost his way and again and again during the evening of May 25, 2023, compounded his error until his behavior became nearly incomprehensible. Then, when this was called to his attention, he withdrew from representing the government in court, but he continued to be involved in the case behind the scenes,” the judge wrote.
The judge was also concerned about the impropriety of, or the appearance of, impropriety of the case being prosecuted in the Eastern District. Pallas had urged the judge to move the case to another district.
“Based on these findings, the District Judge exercised its discretion and transferred the case to the Northern District of California,“ Pallas wrote in his motion to keep the change of venue.
It is unclear when the trial is expected to begin. Pallas wrote in his recent motion that it is also unclear who will hear his motion for moving the hearing back to the Northern District.
