Prosecutor seeks reversal in Kay case

Publication Date: Wednesday Apr 8, 1998

COURTS: Prosecutor seeks reversal in Kay case

Appellate court to decide whether juvenile should be tried as adult

A prosecutor in the Herbert "Bert" Kay murder case filed a petition last week requesting that an appeals court overturn a judge's March 20 decision to try one of the suspects as a juvenile.

Deputy District Attorney David Soares, who successfully persuaded Superior Court Judge John Flaherty last month that two of the juvenile suspects in the beating death of Herbert "Bert" Kay should be tried as adults, is requesting that the Sixth District Court of Appeal reconsider Judge Flaherty's decision that the third juvenile--who was 16 at the time of the beating--should go through the juvenile system.

The boy, who is now 17, allegedly told police that he dealt the first blow to Kay on June 12, 1997 before searching the scientist's pockets and socks for cash. If he is found guilty of murder under the juvenile justice system, he would be released by his 25th birthday.

The other five suspects in the case, ranging in age from 16 to 21, face possible sentences ranging from 25 years to life in prison to the death penalty if they are found guilty of first-degree murder.

Judge Flaherty said in his March 20 ruling that there were mitigating factors in the 17-year-old's case that made him more amenable to rehabilitation under the juvenile system than the other two juvenile suspects--including the fact that he says he tried to stop his friends from beating Kay once it was clear he had no money, and the fact that he turned himself in to Palo Alto police.

Kay was taking an evening stroll through downtown Palo Alto last June when he was allegedly attacked by the six suspects and brutally beaten and kicked to death, according to police testimony. Police found the scientist's body stuffed under a bench on Gilman Street, just a few blocks from the police department.

The Deputy District Attorney's petition has halted any further proceedings in the case of the 17-year-old until the appellate court reaches a decision, which is not expected until the beginning of May.

The 17-year-old's attorney, Jean Dekelver, said that she will be filing her response to the petition by April 15. Dekelver said there was no merit to Soares' writ.

"He has to show legally that Judge Flaherty abused his discretion," she said. "And Judge Flaherty found that, by law, this minor was amenable to the juvenile system."

Soares' petition has no bearing on the proceedings of the other five suspects, who are going through the adult justice system--Christian Valdez, 20, of Menlo Park; Iapesa Simanu, 21, Olopitoamoa Tapuloa, 19, Daniel Toatele Tevaga, 18, and Falala Lelei, 16, all of East Palo Alto. The five were indicted by a Santa Clara County Grand Jury on April 1 and arraigned in Superior Court on Friday afternoon.

All five suspects pleaded not guilty to all charges, according to Deputy District Attorney Mike Gaffey. The youngest suspect, 16-year-old Lelei chose to not waive his rights to a speedy trial, and a suggested trial date is scheduled for May 18, Gaffey said.

--Vicky Anning 

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