SANTA CRUZ — As the death of a Capitola outrigger canoe paddler moves toward trial next month, attorneys have filed a flurry of motions seeking everything from the murder case’s outright dismissal to a change of venue.
El Cerrito man and musician Theobald Lengyel, 54, has been charged with burglary, vehicle theft and the murder late last year of girlfriend Alice “Alyx” Kamakaokalani Herrmann, 61. Family members reported Herrmann missing on Dec. 12 and her body was found under a pile of rocks in a Berkeley park on Jan. 2. Weeks earlier, Lengyel had traveled with his brother from Portland, Oregon back to Santa Cruz to meet with the Public Defender’s Office on Dec. 11, according to testimony in the case.
In June, Santa Cruz County Superior Court Judge Nancy de la Peña held Lengyel to answer on charges, clearing a path to a potentially speedy trial, as set for Aug. 19.
This week and next, judges will hear arguments and make rulings for three separate motions in the case.
Shortly after his preliminary hearing, Lengyel, a founding member of the former alt-rock band Mr. Bungle, requested the judge set aside charges. In her July 9 motion, defense attorney Annrae Angel cited what she said was the lack of evidence supporting charges, including intent necessary for a first- or second-degree murder charge. She also cited testimony given at the preliminary hearing that there was no specified cause of death, no witness-reported domestic disturbances or violence between the couple and no proven intent to burglarize Herrmann’s home or steal her car.
Santa Cruz County Assistant District Attorney Yukiko Orii, in her opposition filing, said it would be up to the jury to determine the degree of murder with which to charge a defendant found guilty. She also wrote that the Lengyel had admitted to Herrmann’s brother Eric that he had caused Herrmann’s “expiration” and described details of how he disposed of her body.
Angel has also filed a motion requesting Lengyel’s trial be moved to a different county, based on “extensive dramatic news coverage” that may have biased future jurors.
In her declaration in support of the motion, defense attorney Annrae Angel cites multiple pages of case-related media coverage found while searching her client’s name online, widespread media coverage in January and continuing local media coverage, plus concerns that “some of the media coverage is inconsistent with the facts as they are known to me,” with specific citations to a June 13 Berkeley Scanner article. Angel’s declaration also raises a concern about the level of interest indicated by what she described as community attendance by 25-35 people at “nearly every court appearance.”
The prosecution’s co-counsel, Assistant District Attorney Emily Wang, opposed the change of venue, arguing media coverage of the case was “largely factual” and had decreased over time.
“But the fact that a victim, previously unknown to the majority of the community, becomes prominent because of publicity surrounding his or her death, however, does not weigh in favor of a change of venue,” Wang wrote in her opposition.
Wang’s response also dismissed the steady attendance at court hearings by Herrmann’s teammates from the Outrigger Santa Cruz club as a biasing factor.
“Their appearances in court are in support of the memory of a victim,” Wang wrote. “Their sympathy is not random, as they were friends and teammates of the victim.”
The third motion in the case, filed July 16 by the Public Defender’s Office, seeks to bar or “quash” the District Attorney’s Office from demanding it turn over photographs taken of Lengyel when he consulted with defense attorneys in December.
During the preliminary hearing, witnesses testified that Lengyel’s brother had observed a bruise on Lengyel’s arm the same day of the visit to the Public Defender’s Office, a bruise a Capitola Police Department detective witnessed more than a week later to appeared to be an aged bruise in the shape of a bite mark, per hearing testimony.
While the Public Defender’s Office no longer represents Lengyel due to a conflict of interest disclosed at the start of the case, the Public Defender’s Office filing asserts that such photos would be confidential communication protected under attorney-client privilege.
Orii, opposing the effort to prevent her office from obtaining Lengyel’s photographs, said attorney-client privilege does not empower attorneys to withhold evidence speaking to underlying facts of the case.
“It is an abuse of a lawyer’s professional responsibility knowingly to take possession of and secrete the instrumentalities of the crime,” Orii wrote in her July 23 filing.
Lengyel remained held without bail in the Santa Cruz County Jail this week. He is scheduled to appear for a decision in the motion to quash Wednesday morning.
