Paul Garcia's Hand Shackles Removed

Criminal attorney Edward Sousa's Feb. 3 motion directing the removal of all shackles from during court proceedings and that the courtroom deputy maintain a "respectable distance" from his client and counsel was partially granted Friday morning

Santa Clara County Superior Court Judge David Cena granted the unshackling of Garcia's hands and allowed the deputy to now stand a foot away from the man found guilty of first-degree murder by a jury in October of 2010 in connection with the killing of well-known .

"It's not exactly what we wanted," said Sousa, who explained he requested his client to be completely free of chains and the deputy seating at his desk, instead of standing guard directly behind Garcia.

Sousa said the deputy's proximity to Garcia interferes with his ability to have attorney-client confidential communication. "He's right there. He can hear what we're saying."

Prior to Friday, Garcia couldn't write Sousa notes because his hands were shackled down by his waste. "That impacts his ability to counsel and it's an affront to the decorum and dignity of the courtroom," Sousa said. "It violates fundamental fairness and due process."

Sousa said he cited during the hearing Friday morning in Department 34 of the Santa Clara County Courthouse several cases that support his desire to have his client unshackled. "This shouldn’t' happen unless there's individualized determination by the court as to why we need heightened security efforts.

"Paul has been a model inmate. His behavior in the courtroom has been exemplary every time. As I've reviewed the transcript, he's never been a problem in the courtroom. He's not disruptive. He's not an escape risk. He follows orders from the deputy," Sousa said.

Also Friday, Cena received an update on how the defense is coming along with video surveillance footage of digital video footage from the now-closed 180 Restaurant & Lounge and Mountain Charley's Saloon, which he said was seized by the on April 4, 2008.

"We're making progress," Sousa said, explaining the retrieval of the footage has faced technological issues since the clone hard-drive was retrieved from the FBI and the crime lab. 

He said technicians are now exporting the footage and transcoding it onto a DVD so it can be viewed on a computer. "We're doing that camera by camera," Sousa said.

Judge Cena also set the hearing on the motion for a new trial for 1:30 p.m. March 23. Santa Clara County District Attorney Jeff Rosen's opposition to that motion is due March 9 and Sousa's response to that document, should he choose to file one, is due March 14.

The 92-page retrial motion contains 14 complaints alleging incompetent counsel during the highly publicized murder-for-hire trial in October of 2010.

Sousa said he believes the video footage contains discovery that was never previously provided to the defense by the prosecution and which Garcia's former attorney, Harry Robertson, never asked for, Sousa said.

"We're looking for anything that corroborates Paul Garcia's testimony, defense witnesses and anything that impeaches or contradicts prosecution witnesses," Sousa noted.

Sousa believes there are specific things in the footage on certain dates and he said he had requested to go on camera to let the court know what they are because such information is privileged.

Judge Cena asked that the information be included in a sealed motion, Sousa said.

Rosen has said he doesn't believe there's anything in the footage worth of value that would undermine the prosecution's case.