Pleasanton Weekly

News - November 19, 2010

Judge bars jailhouse snitch in Scherer murder case

Trial set to begin in late November

by Glenn Wohltmann

Questions for potential jurors are apparently complete as both sides get ready for the trial of alleged Castlewood killer Ernest Scherer III, set to begin the end of the month.

Scherer is charged with the brutal murders of his parents, Ernie Scherer Jr., 60, Charlene Abendroth, 57, who were killed in their Castlewood home in March 2008.

Judge Jeffrey Horner ruled against a motion from Scherer III's defense attorney, Richard Foxall, who wanted to ask potential jurors about their opinions on extramarital affairs. Horner ruled that question would be asking those potential jurors "to pre-judge parts of the case."

Horner will allow jury instructions to contain clarifications for people who have served as jurors in civil cases, however. While a civil case requires only a preponderance of evidence, criminal cases require a higher standard, proof beyond a reasonable doubt. Jury selection is set to begin Nov. 29.

Motions from Foxall continued Wednesday. He successfully argued to exclude testimony from a jailhouse informant, Eric Smith.

Federal case law prohibits testimony from people working as police agents -- as was apparently the case with Smith -- because it violates a defendant's Sixth Amendment right to have an attorney present when being questioned.

Much discussion Wednesday centered on a pair of shoes that Scherer discarded in the parking lot of a Raley's Supermarket in Fair Oaks, Calif., after learning that police were awaiting him at the home of his mother-in-law, where he was headed. Those shoes were recovered by police, but several tests showed no DNA evidence to tie Scherer to the crime.

"This is not a DNA case," prosecutor Michael Nieto told the judge. However, he said, Scherer's reasons for leaving the shoes will come into question at the trial.

"The jurors are going to wonder why the defendant was discarding his shoes," Nieto said.

Some of the defense's strategy emerged over the course of the day. In discussions before the judge, Nieto said Foxall will claim that police focused exclusively on Scherer, and not on the possibility that another person committed the crime.

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