Defense request to disinter body on hold
By Scott Smith
Record Staff Writer
April 17, 2009 6:00 AM
STOCKTON - A judge refused to rule on a request Thursday by Melissa Huckaby's attorney to have 8-year-old Sandra Cantu's body removed from her Tracy mausoleum so the defense could conduct its own autopsy.
San Joaquin County Deputy Public Defender Sam Behar's request - drawing the judge's reproach and sharp opposition from the prosecutor - unfolded in a Stockton courtroom the same afternoon thousands of mourners gathered in Tracy to remember Sandra's short life.
San Joaquin County Superior Court Presiding Judge William J. Murray Jr. said he would not make a final determination on Behar's motion, because that decision rests with the judge assigned to the case.
Murray said he was disappointed Behar approached him and not Superior Court Judge Terrence Van Oss, who has been assigned to take up Huckaby's case next Friday.
Behar said Van Oss is not on the bench this week, and he also expects Van Oss to dismiss himself because of a conflicting case with Huckaby's prosecutor. Behar said he couldn't wait and had no choice but to ask Murray.
"Every hour is critical," Behar told the judge, adding that he's worried Sandra's body is deteriorating. "Any delay will be prejudicial to my client."
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Behar's request came the day after he was assigned to represent Huckaby, the 28-year-old Tracy woman charged with murder and the special circumstances of kidnapping, lewd and lascivious acts on a child, and rape with a foreign object - charges that make her eligible for the death penalty if convicted.
Sandra's body was placed in a casket even before Huckaby's arrest. Behar, who was later assigned to Huckaby's case, implied that the autopsy was conducted without Huckaby's interests being represented.
Most homicide cases involve a single, independent pathologist's report such as the one performed by the San Joaquin County Coroner's Office.
Behar said in the 14-page request that he wants his own analysis of "genital trauma" Sandra allegedly sustained that supports the lewd and lascivious acts and sexual penetration charges.
Behar seeks to have the Sheriff's Office send officials to Fry Memorial Chapel, who would then take custody of Sandra's body, which was entombed Wednesday at the Tracy Mausoleum.
The Sheriff's Office would "preserve" and "deliver" the body to the Coroner's Office "with all due haste" to prevent further deterioration. Behar's defense pathologist would examine and then return the body to Fry's or Sandra's family, the court motion requests.
"In this case, Ms. Cantu's body is of such material evidence and that, without immediate intervention by this court, her defense will be prejudiced," Behar's motion says.
This is the last chance Huckaby's defense pathologist will ever have an opportunity to refute the people's case, the motion says. Huckaby was not in court for the hearing. Behar declined to comment further outside court.
Put off by Murray, Behar has two options: to make his case before the state's 3rd District Court of Appeal or to wait for next Friday's scheduled hearing in Stockton.
San Joaquin County Deputy District Attorney Thomas Testa argued against Behar, saying he needed time to prepare a written response, consult with Tracy police detectives and his pathologist and give Sandra's family a chance to be in court and state their own objection to disturbing the girl's remains.
"It's obscene. I'm outraged by it," Testa told the judge. "Let me have my detectives here, my doctor here, (Sandra's) family here."
Murray, in declining to rule on Behar's motion, said he did some research on the law before the brief hearing, and the arguments Behar cited did not convince him he has the right to remove Sandra's body from the mausoleum.
"If I thought your legal arguments were compelling, I might be of a different thought," Murray said. "But I'm not."
