Biker wants separate retrial

OFF THE WIRE
Two Jus Brothers face different sets of charges
By Scott Smith
Record Staff Writer
August 07, 2010 12:00 AMSTOCKTON - A Jus Brothers Motorcycle Club member is expected to argue Monday that being retried along with his fellow biker will make him look like a killer when he never caused anybody's death.
The attorney for Robert Kenneth Memory has filed a motion asking a judge to try her client separately from Frankie Joe Prater, who had been convicted of second-degree murder in the Nov. 5, 2004, death of 22-year-old Mark Donahue.
For his part, Memory had been convicted on two counts of attempted voluntary manslaughter and two counts of assault with a deadly weapon in the stabbings of two men other than Donahue. The two were in the same brawl outside Shaker's Bar off Country Club Boulevard.
Memory and Prater are now awaiting retrial after the state's 3rd District Court of Appeal overturned their convictions. The appellate court found that the trial judge erred by allowing the prosecutor to let jurors believe the Jus Brothers were associated with the notorious Hell's Angels Motorcycle Club.
"To try the individuals together would be to invite the same prejudice as occurred in the earlier trial," Memory's attorney, Vittoria Bossi, says in court papers.
Her client also deserves a separate trial, because the two men now face two distinct sets of charges. Furthermore, she says, they each waged their own battles that night outside the bar, which she considers distinct incidents in the eyes of the law.

"What actually occurred here is that two separate events took place some distance apart in the midst of a fairly drunken crowd," Bossi says in her motion.
Not so, replies San Joaquin County Deputy District Attorney Kevin Mayo. He filed a response saying that it is ultimately up to the judge to decide, but he opposes splitting up the cases.
"Everything that happened prior to the stabbings, during the stabbings and after the stabbings is all intertwined," Mayo says. Common facts and evidence arise of the "single set of circumstances" that happened "at the same time" and location, he argues.
The two men remain in custody at the San Joaquin County Jail. Memory also wants to have his new trial held immediately, while Prater has given up his right to a speedy trial.
San Joaquin County Superior Court Judge William Murray Jr. is expected to hear oral arguments and make his ruling Monday.
Contact reporter Scott Smith at (209) 546-8296 or ssmith@recordnet.com. Visit his blog at recordnet.com/smithblog.