JAMES S.TERRELL, ESQ.

(SBN 170409)
Law Office of James S. Terrell
15411 Anacapa Road
Victorville, CA 92392
Tel.: (760) 951-5850 Fax: (760) 952-1085
Email: jim@talktoterrell.com

FILED: JUNE 16, 2015

SHARON J. BRUNNER, ESQ. (SBN: 229931)

Law Office of Sharon J. Brunner
14393 Park Avenue, Suite 100
Victorville, CA 92392
Tel.: (760) 243-9997 Fax: (760) 843-8155
Email: sharonjbrunner@yahoo.com
Attorneys for Defendants:
FRANCIS PUSOK & JOLENE BINDNER
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN BERNARDINO
People of the State of California,
Plaintiff,
vs.

Case No. FVI 1501302

NOTICE OF MOTION AND
MOTION TO RECUSE THE SAN
BERNARDINO DISTRICT
ATTORNEYS OFFICE

Francis Pusok, Jolene Bindner,

Defendants.

TO: THE CLERK OF THE ABOVE-ENTITLED COURT, TO THE DISTRICT ATTORNEY

FOR THE COUNTY OF SAN BERNANDINO, AND TO THE ATTORNEY GENERAL OF THE
STATE OF CALIORNIA:
PLEASE TAKE NOTICE that as soon as the matter may be heard, defendants, FRANCIS
PUSOK AND JOLENE BINDNER, by and through counsel, will and hereby does move the court
for an order that Mr. Michael Ramos be recused from prosecuting this matter and, because of his
position, recuse the entire San Bernardino District Attorneys office. Instead, defendant asks that the
matter be referred to the Attorney Generals office to determine whether this prosecution can
rightfully proceed.
This motion is predicated upon the files and records attached herein, the accompanying
memorandum of points and authorities and declaration of counsel, and on such evidence as will be
presented with the permission of the court.
Respectfully Submitted:

LAW OFFICES OF JAMES S. TERRELL

____________________________________________________________________________________________________________
1
MOTION TO RECUSE
LAW OFFICES OF JAMES S. TERRELL
15411 Anacapa Road, Victorville, CA 92392
(760) 951-5850
talktoterrell.com

Dated: 06/16/2015

/s/ Original signature on file

JAMES S. TERRELL, ESQ.
Attorney for Defendants

Respectfully Submitted:

LAW OFFICES OF SHARON J. BRUNNER

Dated: 06/16/2015

/s/ Original signature on file

SHARON J. BRUNNER, ESQ.
Attorney for Defendants

I.
MEMORANDUM OF POINTS & AUTHORITIES
STATEMENT OF FACTS
On April 9, 2015, an NBC News Channel helicopter was able to document, through aerial
video footage ten (10) San Bernardino County Sheriffs Deputies, including a Seargent and a
Detective brutally beating FRANCIS PUSOK. The beating occurred after Mr. Pusok was restrained
and had submitted to the deputies. The unjustified violence and extreme force of this incident
shocked and captured the Nations interest.

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2
MOTION TO RECUSE
LAW OFFICES OF JAMES S. TERRELL
15411 Anacapa Road, Victorville, CA 92392
(760) 951-5850
talktoterrell.com

The story of the beating was featured on CNN, MSNBC, NBC, ABC, CBS, and virtually
every local news channel. The incident was written about in The Los Angeles Time, The Wall Street
Journal, and other reputable newspapers.
Mr. Pusoks family, including his long-term significant other/girlfriend spoke out in anguish,
outrage, and emotional pain after watching television coverage of the April 9, 2015 beating of their
family member.
Sheriff John McMahon was quick to address this matter in a press conference on April 10,
2015. Sheriff McMahon reported that he had launched an investigation into the beating of Mr.
Pusok. Sheriff McMahon further stated, during this news conference, that 10 deputies had been
placed on administrative leave pending an internal investigation into the beating. Sheriff McMahon
further stated that the beating appeared to be excessive.
Presuming that such an investigation does occur based upon Sheriff McMahons assertions
on April 10, 2015, it is not unreasonable to expect that such an investigation will result in finding of
police misconduct to include the commission of several criminal acts such as assault, battery, and
other felony charges. Such a finding would then lead to disciplinary action, which should include
the filing of criminal charges against the individual deputies. If it is not the policy of Sheriff
McMahon and his department to use excessive force and beat citizens who have been restrained or
who have submitted to law enforcement, then Sheriff McMahon will support and do everything
within his power to insure that criminal charges are indeed filed and pursued by the District
Attorneys office.
///
///
///
However, it is of grave concern and obvious conflict of interest in that District Attorney
Ramos has aligned himself with Sheriff McMahon as a member of his team and partner. District
Attorney Ramos made this statement, along with other statements on December 3, 2014. This
interview was very insightful for several reasons. First, the District Attorney stated that he is a
partner with Sheriff McMahon.
Presently, Sheriff McMahon and his deputies are involved in this matter as an investigation is
underway regarding the ten deputies involved in the April 9, 2015 incident. The fact that District
Attorney Ramos considers Sheriff McMahon his partner is of concern and gives the appearance of
a direct conflict. A partner supports his/her partner. A partner will defend, justify, and protect the
other partner so as to preserve the partnership. This type of partnership, as self-proclaimed by
District Attorney Ramos, means that District Attorney Ramos and his department cannot be the
entity that prosecutes Francis Pusok and Jolene Bindner.
II.
ARGUMENT
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3
MOTION TO RECUSE
LAW OFFICES OF JAMES S. TERRELL
15411 Anacapa Road, Victorville, CA 92392
(760) 951-5850
talktoterrell.com

A. RECUSAL IS REQUIRED WHERE THE CONFLICT OF INTEREST IS ACTUAL

OR APPARENT:
The law is clear that a prosecutor must be recused where it is shown that an actual or
apparent conflict of interest makes it unlikely that the defendant will receive a fair trial.
Pen. Code 1424; see also People v. Vasquez, (2006) 39 Cal.4th 45, 56. Penal Code section
1424 provides:
The motion may not be granted unless the evidence shows
that a conflict of interest exists that would render it unlikely
that the defendant would receive a fair trial.
Cal. Pen. Code 1424 (2011) LEXIS Pblg.
A conflict arises whenever there is evidence of a reasonable possibility that the District
Attorneys office may not act in an evenhanded manner. Therefore, there is no need to determine
whether a conflict is actual, or only gives an appearance of conflict. People v. Conner, (1983) 34
Cal.3d 141, 193. Conner, the first case interpreting the recently enacted section 1424, articulated
that:
The DAs office is obligated not only to prosecute with vigor, but also to seek justice. This theme
was stressed almost half a century ago by the United States Supreme court in Berger v. United
States, (1935) 295 U.S. 78, 88... [The prosecutor] is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done.
People v. Conner, supra 34 Cal.3d at 148.
A county prosecutor is granted great discretion in charging and prosecuting offenses.
Accordingly, the importance, to the public as well as to individuals suspected or accused of crimes,
that these discretionary functions be exercised with thehighest degree of integrity and impartiality,
and with the appearance thereof cannot easily be overstated. People v. Eubanks, (1997) 14 Cal.4th
580, 589.
Finally, it does appear that Mr. Ramoss role as head District Attorney leads to a more liberal
interpretation of the law to avoid conflicts. In City and County of San Francisco v. Cobra Solutions,
Inc. (2004, Cal App 1st Dist) 119 Cal App 4 th 304, 316, aff'd (2006) 38 Cal 4th 839, the court has
held that in civil cases where the conflict involves the head of a public office, vicarious
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MOTION TO RECUSE
LAW OFFICES OF JAMES S. TERRELL
15411 Anacapa Road, Victorville, CA 92392
(760) 951-5850
talktoterrell.com

disqualification of the entire public law office is required. In arriving at that holding, the court relied
upon People v. Lepe (1985) 164 Cal. App. 3d 685, in which the district attorney had represented the
defendant in prior cases. The court of appeal upheld the trial court's vicarious disqualification of the
entire office. Likewise, the court relied on Younger, and further articulated that the district attorney's
residual power over the office ensured that measures short of disqualification would not suffice: "As
the deputies are hired by [the head district attorney], evaluated by [him], promoted by [him] and
fired by [him], we cannot say the office can be sanitized such to assume the deputy who prosecutes
the case will not be influenced by the considerations that bar [the head district attorney] himself from
participation in the case." Lepe, supra, 164 Cal. App. 3d at 689. The court also recognized that it is
more difficult to obtain a disqualification in criminal cases than in civil, but indicated that the
distinction merely strengthened the courts holding insofar as [t}he willingness of courts to
vicariously disqualify an entire office when a higher-up or the head of the office is involved, even in
the criminal context, suggests that where the head of the office has a conflict in the civil context,
vicarious disqualification must follow. Cobra Solutions, Inc., supra, 119 Cal App 4th at
319.
In light of the legal authorities cited above, defense counsel believes that recusal of the entire
office is necessary to safeguard the public confidence and ensure a fair trial.
III.
CONCLUSION
Based on the foregoing, the defendant respectfully asks this court to order that Mr. Ramos
and the San Bernardino County District Attorneys office be recused and that the Attorney General
be contacted to determine whether they will proceed as the prosecutorial agency.
Respectfully Submitted:

LAW OFFICES OF JAMES S. TERRELL

Dated: 06/16/2015

/s/ Original signature on file

JAMES S. TERRELL, ESQ.
Attorney for Defendants

____________________________________________________________________________________________________________
5
MOTION TO RECUSE
LAW OFFICES OF JAMES S. TERRELL
15411 Anacapa Road, Victorville, CA 92392
(760) 951-5850
talktoterrell.com

Respectfully Submitted:

LAW OFFICES OF SHARON J. BRUNNER

Dated: 06/16/2015

/s/ Original signature on file

SHARON J. BRUNNER, ESQ.
Attorney for Defendants

Declaration of Counsel
We, JAMES S. TERRELL and SHARON J. BRUNNER, declare as follows:
1. We are attorneys licensed to practice in the State of California and we are attorneys of
record for defendants herein.
2. We have investigated the facts and statements set forth in this case and in the present
motion.
We declare under penalty of perjury that the foregoing is true and correct, except as to
matters therein stated on information and belief, and as to those matters, we believe them to be true.

Respectfully Submitted:

LAW OFFICES OF JAMES S. TERRELL

Dated: 06/16/2015

/s/ Original signature on file

JAMES S. TERRELL, ESQ.
Attorney for Defendants

Respectfully Submitted:

LAW OFFICES OF SHARON J. BRUNNER

Dated: 06/16/2015

/s/ Original signature on file

SHARON J. BRUNNER, ESQ.
Attorney for Defendants

____________________________________________________________________________________________________________
6
MOTION TO RECUSE
LAW OFFICES OF JAMES S. TERRELL
15411 Anacapa Road, Victorville, CA 92392
(760) 951-5850
talktoterrell.com

____________________________________________________________________________________________________________
7
MOTION TO RECUSE
LAW OFFICES OF JAMES S. TERRELL
15411 Anacapa Road, Victorville, CA 92392
(760) 951-5850
talktoterrell.com