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Mesiti seeks new trial
Father, accused killer of Ceres Alycia Mesiti, seeks to unwind 49 guilty pleas
Family to court
Family members of Alycia Mesiti walk into the Stanislaus County Courthouse on Friday afternoon to monitor court proceedings against her accuser murderer and father, Mark Mesiti. Alycias maternal great-aunt, Roberta Fitzpatrick, travels from San Jose to Modesto on trial days. - photo by JEFF BENZIGER/Courier photo

Martin Baker, the attorney who was defending Ceres homicide defendant Mark Edward Mesiti until November, found himself on the witness stand Thursday and Friday during a motion made by a new attorney to withdraw the defendant's 49 guilty pleas and seek a new trial.

Mesiti is accused of repeatedly drugging his daughter, Alycia Mesiti to sexually molest her, with those drugs ultimately killing her in August 2006. Ceres Police detectives arrested Mesiti in 2009 in Los Angeles after finding the 14-year-old victim buried in the back yard of their Ceres residence. Detectives say that he lied about hearing from Alycia periodically as they investigated her disappearance.

In October Mesiti was two weeks into his trial when he took a plea bargain deal made by the District Attorney's office to drop the death penalty in exchange for a life in prison sentence without the possibility of parole. On Oct. 17 Mesiti read an elocution statement authored by prosecutors articulating his offenses against his daughters and two other female minors while he lived in Los Angeles.

Mesiti was to be sentenced on Nov. 28, but he recanted his admission of guilt. Mesiti successfully petitioned the court to remove Baker as his court-appointed counsel, claiming he was rendered ineffective representation. Mesiti's new attorney, Steven O'Connor, claims Mesiti only agreed to the plea because "it was a horrible situation" with Baker's defense and because Mesiti was assured it was a "free trial" which would be appealed and likely overturned by a higher court.

In the Stanislaus County Superior Court room of Judge Dawna Frenchie Reeves on Thursday, O'Connor attempted to paint Baker as a disengaged attorney who offered an inadequate defense because he had his mind made up that Mesiti was guilty on all counts. If Mesiti is to be granted a new trial the judge must agree that Baker's skills as a defense attorney were inadequate.

O'Connor got personal with Baker, labeling his casual dress as "hobo," and delivered a serious of insulting questions. Baker was asked if he played video games during coyrt recess, if he regularly uses cannabis, if he has a personal fascination with killers, and if he had has been diagnosed with mental illness. More than once, O'Connor questioned if Baker was resting his chin in his hand as a "classic gesture of evasion." Reeves frequently chastised O'Connor for posing argumentative questions, for raising his voice and for not allowing Baker to finish. The judge also stopped Baker when he delivered sarcastic replies, saying it was "not helpful."

During Mesiti's aborted trial, Deputy District Attorney Annette Rees presented details that Mesiti's computers contained approximately 1,700 incriminating photos and videos depicting him in various sexual poses and sex acts with his daughter and two other under aged girls while they were either drugged or asleep. The counts are enough to put Mesiti behind bars for over 200 years, said Baker. O'Connor quizzed Baker why he didn't have the photos analyzed by a forensic computer expert in an effort to determine if they were Photoshopped to frame Mesiti for crimes. Baker said it appeared that some of the jpeg images had been "enhanced or even jazzed up by Mr. Mesiti in an apparent attempt to make them more marketable to other child pornographers." When asked how he knew Mesiti had manipulated the images, Baker said "there was no other possible theory I could conceive of that would make sense."

Baker said he was a "rational human being - there is 1,700 images of Mr. Mesiti molesting his daughter."

When O'Connor asked Baker how many of those pornographic images he had reviewed, Baker said, "Way too many."

O'Connor continued to press Baker over the decision not to analyze the photographic evidence. Baker pushed back, saying, "The issue was not whether any of the incriminating photos were forgeries - I've already told you that that theory is too absurd to warrant even a millisecond of thought."

O'Connor replied, "Before you say something is absurd, shouldn't you call in an expert? You're telling that technology can't be manipulated in 2018?" Baker answered, "I'm telling you logic is hard to refute. If there was some logical reason to believe that the 1,700 photographs could have been constructed from scratch by someone with a grudge against Mr. Mesiti ... then I would have a reason to have them analyzed."

Baker added he didn't believe anyone would spend "thousands of hours on Photoshop manufacturing photographs in an effort to frame Mr. Mesiti." He also added that he was not a believer in conspiracy theories "nor do I pretend to believe them as my predecessors may have."

O'Connor said Baker should have looked into the photos as being staged because Mesiti claimed they were faked. "Therefore logic falls down a hole," retorted Baker.

O'Connor suggested Baker did not look into whether or not Mesiti's late acquaintance, Gregory Joseph Ulrich, manufactured the photos. Ulrich himself had been found guilty of photographing his exposed genitals with Alycia. Ulrich has since died of cancer.

"Did you ever try to determine if Mr. Ulrich had killed Alycia?" asked O'Connor. Baker said he had no reason to believe Ulrich was a suspect and added, "I'm not in the business of presenting nonsensical defenses to juries."

On Friday, attorney Robert Wildman, who worked on Mesiti's defense with Baker, said Baker and Mesiti had a strained relationship. Wildman said he was ready to subpoena officers who dealt with Ulrich as well as analyze the computer hard drives to see if the images were faked.

O'Connor also took on Baker for his approach to the discovery of DNA evidence found beneath the fingernails of the dead girl after Ceres Police exhumed her body in March 2009 from the backyard of the Alexis Court home. That evidence indicated that Alycia came into contact with three unknown males around the time of death. Baker said he saw no tactical advantage in exploring whose DNA it belonged to and did not speak to any DNA expert.

"Did it occur to you that DNA under her fingernails could involve people she was fighting with near the time of death?" asked O'Connor. Baker said there was no indication Alycia fought anyone prior to her death since she died of a drug overdose. When O'Connor asked Baker to explain the origin of DNA traces, he said Alycia could have come into contact with males "any number of means."

"Did you ever think that maybe somebody else might have killed his daughter?" asked O'Connor. Baker replied, "No. I've never had any reason to believe that. I believe that his daughter died not at the hands of anyone other than Mesiti and I believe that Mr. Mesiti disposed of her body."

O'Connor pressed "Do you care there's no proof ?" Baker replied there was "absolute proof" that Mesiti buried the body.

"Have you not heard of coercion, illegal collusion?" retorted O'Connor before Rees objected and Judge Reeves sustained.

Baker said he could not successfully defend the sex charges against Mesiti before a jury but during the aborted trial said Alycia may have died from a self-induced overdose of drugs and suggested that she was taking drugs before Mark Mesiti took custody of her. Baker cited a diary entry written by Alycia that suggested if she turned up dead it would be because she killed herself. In one passage, said Baker, the girl wrote that she "wanted to feel nothing."

A friend of the girl's testified that Alycia may have smoked marijuana but never did hard drugs.

The motion's proceedings carried over into Friday. Baker testified that he didn't think he could sell a jury the notion that Alycia's hair samples could prove she was ingesting the same type of drugs while living in Maine before coming to live with Mesiti in Ceres that killed her. At a grand jury hearing one toxicology expert said Alycia's hair samples represented an ingestion range of 25 months before her death, which suggests she was doing drugs before living with her dad. But Baker suggested the variations at which hair grows would "make it possible if not probable that the ingestion began after Alycia's return to Ceres."

O'Connor asked Baker if he was concerned that some of his clients are unhappy with his representation.

"Ultimately I care about the outcome," said Baker. "I saved someone's life and if they'd rather be dead, I'm sorry I've done what is required of me and it's a shame they're unhappy but I've done what I feel was a good job."

Baker was grilled about Mesiti's alleged confession tape recorded in Los Angeles. O'Connor asked if Mesiti made the taped remarks after being coerced and threatened. Baker said Mesiti told him "that the audio recording of his essentially confession to finding his daughter, unconscious, unsuccessfully reviving her and disposing of her body ... and lying about her whereabouts to relatives afterwards ... was an audio collage that had been fabricated." Baker said he never looked into Mesiti's claim because it was an "absurd."

On Friday afternoon, Wildman was grilled over telling Mesiti that the trial was a "free trial" which could be reversed upon an appeal. Wildman admitted that Mesiti was concerned that his defense team wasn't properly prepared to present his defense but Wildman said he felt he could still "prepare what was necessary in the case." The free trial remark, said Wildman, was an effort to calm down Mesiti "so we could work constructively." Wildman said he prepared his defense even as the jury was being selected and felt Mesiti could likely appeal a guilty verdict on the basis that he attorneys weren't fully prepared to start trial.

It was Mesiti's idea to end the trial, Wildman told the court, with Mesiti offering to plead guilty, saying "his jugular had been cut, that he didn't want more pictures of his daughter being shown and that he didn't want the evidence of her drug use." Wildman also suggested that Mesiti reconsider his decision until he was rested as he was unable to sleep that night while he mulled it over.

"I wasn't really prepared for that," said Wildman, who asked Mesiti to wait a week. Mesiti pressed to end the trial anyway.

Arguments in the O'Connor's motion wrapped up on Monday. Judge Reeves will issue her decision on Feb. 2.

The case against Mesiti has been fraught with delays since he was transferred to the Stanislaus County Jail after serving a sentence in Los Angeles for a drug conviction.

In late 2012, Stanislaus Superior Court Judge John Freeland relieved defense attorney Robert Chase from the case. Chase announced to the court that he had a potential conflict of interest. Chase was designated as Mesiti's "Keenan counsel," or the attorney who would represent Mesiti during the penalty phase should a jury find him guilty.

In October 2015 Mesiti wanted to represent himself in court but it became apparent to prosecutors that he was delaying the process. Two years later Mesiti sought counsel and was assigned Baker and Wildman.