Confessed killer will represent himself

Tomorrow, Judge Robert Foiles will consider Scanlan's request to waive a jury trial and let him decide based on transcripts from the first trial. If he agrees, David Martel - the Millbrae man whose wife Alice was fatally shot by Scanlan in an October 2002 bank robbery - will not have to testify again. Martel's willingness to take the stand a second time propelled the decision to retry Scanlan although prosecutors hope to avoid the necessity.

Although he hasn't yet agreed to avoid a jury trial, Foiles did tell Scanlan that his chances in either scenario lean toward the death penalty if he acted as his own attorney.

Foiles warned Scanlan that he is a balanced judge, but also a former San Mateo County prosecutor.

"I do believe in the death penalty and regularly asked for it in cases," Foiles said.

Scanlan said he was not aware of Foiles' background but maintained his self-representation request one last time. Foiles, in turn, promised to be fair with the caveat that there will not be another mistrial over a split jury.

"Obviously, judges don't hang because I am going to make a decision one way or another," he said.

A jury in Scanlan's first trial hung 9-3 in favor of death; Foiles said the split could be non-existent if Scanlan is left to act as his own attorney.

"The court does consider it a mistake for you not to accept counsel," Foiles said.

Foiles weighed Scanlan's competency, his testimony during his first penalty trial and the man's unwavering stance about how he wants his fate decided.

"All lead me to only one rational conclusion - the man wants to represent himself," Foiles said yesterday after the morning-long hearing.

Foiles' decision did not appear to come easy. He sighed and paused, asking Scanlan his wishes multiple times. Over and over again, Foiles pointed out his "chances to receive the death penalty skyrocket" by firing his two-court appointed attorneys.

Scanlan, dressed in a red jail jumpsuit with a white cross around his neck, kept his responses to simply "Yes, sir" and "Yes, your honor."

The decision may expedite the end to a case that all involved call highly unusual. Attorneys on both sides say they have never been involved in a homicide with so many legal twists and turns, including a defendant who asked for death and does not want a defense.

If Foiles agrees to waive a jury trial, he will read the transcripts from the first trial and hear oral arguments Sept. 7. If Scanlan's testimony in the first trial is any indication, both he and Wagstaffe will be pushing for the death penalty.

A decision could be returned in far less than one day as opposed to the 60 court days used in the first trial earlier this year.

Scanlan confessed to a dozen felonies including the shooting of a police officer, but is only facing death for the Oct. 11, 2002 murder of Alice Martel. Martel, 34, was shot in the abdomen during a takeover robbery of Wells Fargo Bank in Burlingame. Martel, the branch manager, died hours later at Stanford Medical Center. She left behind two young sons and a husband.

Prosecutor Steve Wagstaffe is relieved that David Martel may not have to testify again even though he has said he is willing to do it.

"My feel is now the Martel, the Scanlan family and all those witnesses won't have to go through this," Wagstaffe said.

Scanlan's family wanted another jury trial, former defense attorney Cliff Cretan said.

That, though, is something Scanlan never wanted. During a routine scheduling hearing last Thursday, Scanlan asked to fire his two-court appointed attorneys and represent himself. It was not an unexpected request for either his defense team or prosecutors.

Scanlan also made the same request on the eve of his first trial although Foiles refused. He cited the timing as the major factor and also noted Scanlan's "immature" behavior. Foiles said Scanlan's request would disrupt proceedings and impede justice.

Timing was not an issue this time; neither was competency, the other reason a defendant would not be allowed to defend himself. During yesterday's hearing, Foiles confirmed Scanlan's ability to aid in his own defense three separate times.

Scanlan's repeated requests to accept responsibility by foregoing a defense has never sat well with his former attorney.

Cretan has maintained throughout the case that a death penalty decision should be rendered by a jury, not a judge, and only after a full-blown trial.

"I don't think this is the best way for a case like this to be played out. But the judge made the right decision under the law," Cretan said outside the courtroom.

Cretan will remain as stand-by counsel for Scanlan. If, for any reason, Foiles believes Scanlan is disruptive he can order Cretan to take over the defense. Cretan is certain Scanlan won't be disruptive despite an outburst after his girlfriend's testimony during the first trial that forced bailiffs to tackle him.

Scanlan remains in custody on no-bail status. His alleged accomplices have pleaded not guilty and face trial at various times during the late summer and fall.

He returns to court Thursday morning for a ruling on the court trial.

Michelle Durand can be reached by e-mail: michelle@smdailyjournal.com or by phone: (650) 344-5200 ext. 104. What do you think of this story? Send a letter to the editor: letters@smdailyjournal.com.