Judge Jon Tigar’s Stashing One Key, Indispensable, Material Witness: Ron Cook
On Tuesday, March 25, 2008 defense counsel Stephan Barber informed the court that the one key, indispensable, material witness- Ron Cook, had a trip planned and paid for the following week and would not be available to testify until April 14, 2008. This would conveniently eliminate him from testifying and abort al-Hakim’s entire case.
This witness and the defense had known that he was to testify on that date and time for over two weeks and that his testimony would be for several days.
At the end of the day the defendants suggested that the court order this witness began his testimony on Wednesday, March 26 at 1:30 pm and be completed by the end of the day on Thursday, March 27, 2008. al-Hakim disagreed that it was even remotely possible for that to happen given the time it would take for al-Hakim to examine this witness even if there was no cross-examination and it was patently unfair and duplicitous for the defendants to come into court and make such an announcement at the end of the day without any consideration for trial schedule, the jury and al-Hakim’s case in the eleventh hour.
This was no more than a defense strategy and Tigar was advocating it as deputy defense counsel. Tigar asked if al-Hakim’s witnesses for the following day could be changed to accommodate this witness and al-Hakim said “no, they are locked in at those times and dates that they chose”. Each of them chose those dates and did so in accordance with their schedules, where Dr. LeNoir is booked a month in advance and was going out of town for two weeks the next day; Judge Dorado chose his time to fit his court schedule; and the economist/lawyer/accountant Michael Ferguson and Marvin Tate were in the middle of their tax season.
It took al-Hakim many weeks and months to get those dates and times from those individuals. al-Hakim couldn’t change them overnight with any certainty and maintain any possibility of structure to his case plan and certainly not without having spoken to these witnesses.
Tigar then advocated a judicial imprimatur of the defense’s position says “ I am going to check with all your witnesses tomorrow and if I find that they could have changed their schedules, I will find that you have not been truthful with the court and may sanction you by not allowing this witness (Ron Cook) to testify at all!”. The fact that this witness testimony could not possibly be completed by Thursday, March 27 was of no consequence because now, with the defendants setup, Tigar had manufactured his way to achieve his end of trying to project and establish his desired image of al-Hakim as a lying, angry n*##&^ and to further his pretext for charging al-Hakim with contempt with his own conceived record while stashing Cook from testifying!
When asked, Judge Leo Dorado confirmed that he had chosen his time over a period of months; Dr. Michael LeNoir was booked a month in advance, was going out of town and this was the only time for him; and since Tigar had been informed that as an Accountant, Lawyer and Economist Mike Ferguson and Marvin Tate were in the height of their tax and financial season it would take moving mountains to change their schedule with so little time left at trial, he never even called them in or asked a single question as they waited outside the courtroom to begin their testimony so as not to shatter his devious scheme. Tigar rejected al-Hakim’s efforts as lies, stating “ I find that you (al-Hakim) were not being truthful when you said that you could not change the schedules of the witnesses”. al-Hakim responded “I don’t believe that’s reasonable or a fair interpretation of what happened.” This was no more than Tigar’s continued effort of revenge and retaliation for al-Hakim exposing his many illegal transgressions to date in this matter.
Judge Jon Tigar’s Nulification of Trial
Tigar’s Presumptive Protective Stashing Order Excluding Cook’s Testimony
On March 27, 2008, Tigar continued the testimony of key witness Ron Cook to April 14, even after al-Hakim had expressed that he had no other witnesses until such time as Cook completed his testimony. To al-Hakim’s irreparable harm and tremendous prejudice, he would have to change his entire order of witnesses, some that took months to arrange and would lose the testimony of those that could not change their schedule, without any proper, fair or impartial consideration from the court.
Cal. Rules of Court, rule 3.1332 provides prejudice is shown by the loss of a material witnesses. Tigar made this ruling to allow Cook to take a vacation. Cook was informed by al-Hakim and was aware for weeks before he took the stand that he was to testify at least three consecutive days or until such time as he had completed same, yet the day before he was to begin his testimony, defense counsel Barber states that Cook had a paid vacation planned and Barber forgot to inform the court. Barber then requested that Cook’s testimony be limited to 1 1/2 days and Tigar advocated that notion to the extent that if it could not happen, he could order that Cook not testify at all! Cook, the key witness in this case, had to continue his examination on the stand before al-Hakim could call any other witnesses because of the absurd 25 hour trial time limit imposed by Tigar. This is the largest case file in the history of Alameda County Superior Court and Tigar set the unrealistice and unfathomable time limit of 15 hours because defense counsel Barber stated his case would only take that long!!! This sandbagging effort of Barber argued by Tigar as a judicial imprimatur of the defendants position goes beyond mere prejudicial misconduct. In accordance with their ploy, al-Hakim would have to call witnesses from April 7 -14, 2008 to complete the trial with only12 hours or four days of testimony left to use for the entire trial including completing Cook’s testimony, cross-examination and the cross complaint litigation.
Tigar openly projected in court that al-Hakim would be out of time to complete Cook’s examination before April 14, as he relished the idea of al-Hakim sitting silently without the ability of speak in any fashion while defendants proceeded with their case to al-Hakim’s helpless demise. Tigar and the defendants never planned on death interceding as the “deus ex machina” causing al-Hakim’s justified absence as Tigar’s presumptive protective stashing order delaying Cook’s testimony was jettisoned when al-Hakim suffered the second death during the trial, a third shortly after invoking his requested, afore noticed and approved leave for bereavement.
This denial of al-Hakim’s bereavement falls on the heels of the trial being recessed by Tigar from March 28, 2008 to April 7, 2008 while he took an inferred second “vacation”. At the time this case was set for trial there was no mention of any vacations and everyone expected to go through the trial uninterrupted in consecutive days until end. It wasn’t until later into the preparedness stages of trial that it was revealed by Tigar that he had an unannounced conference to attend and that he would take a “vacation” during that time. This was the second unannounced “vacation” Tigar had taken during the trial! al-Hakim’s request was for a total continuance of 3 days to attend to the obligatory needs of the Janaazah (which is 3 days minimum) and the duration of the Ta’ziat (which is 3 days minimum), and the second death had not even occurred yet during the 10 days as alleged by Tigar in his perjurious trial ending order.
Cook’s Testimony Provide Irrefutable, Conclusive and Exculpatory Evidence for al-Hakim
al-Hakim easily and early on exhibited proof showing that Cook’s testimony had and would provide exculpatory evidence for his case against the allegations of fraud, concealment and recission. al-Hakim proves that the testimony of the unavailable witnesses would have aided his case and destroyed the defense.
Accordingly, substantial evidence refutes any finding that al-Hakim could have possibly suffered no actual prejudice from the delay in Cook’s testimony, and the court did not err by denying his motion to continue.
Their “strawman” defense theory solely comprised of Cook’s testimony in his own defense was wholly speculative contention entirely composed of lies, race and religious baiting, exaggerations, innuendo, speculation and spin. al-Hakim meets his burden of showing that he suffered actual prejudice from the judicial ordered delay in Cook’s testimony and the denial of his request for a continuance that would have solved the problem of the judges indiscretion. The trial court was aware that Cook provided testimony on examination favorable to al-Hakim’s litigation and detrimental to his own defense that he could not be rehabilitated from, as the following:
Cook’s 27 Admissions:
1) Cook confirmed that he received the City of Oakland file from Barber despite the numerous denials of Barber for 8 years of ever having been involved with the file. The file was spoliated and documents missing or altered at the underlying Rescue trial; 2) Cook’s documents from the City file confirmed 1999 inter-office communications between former employee Pat Smith and then employees Randy Hall, Jane Williams, Elida Perez, Elizabeth Allen, and Janey Wong. This allowed for Pat Smith to introduce, plant and interject her three pages of notes allegedly from October 1991 into the file with over four years of notes missing; 3) Cook and CSAA wrongfully denied coverage for business property in violation of the insurance contract and evidence of al-Hakim’s causes of action; 4) There was no alleged cancellation of al-Hakim’s Farmers Insurance Policy that allegedly occurred within three years of the CSAA policy by Cook and CSAA. A clear violation of the insurance contract and evidence of al-Hakim’s causes of action; 5) Cook and CSAA did not timely, properly nor adequately investigate the alleged cancellation of al-Hakim’s Farmers Insurance Policy that allegedly occurred within three years of the CSAA policy. A clear violation of the insurance contract and evidence of al-Hakim’s causes of action; 6) There was no alleged “covered loss” that allegedly occurred within three years of the CSAA policy by Cook and CSAA. A clear violation of the insurance contract and evidence of al-Hakim’s causes of action; 7) There was never any possibility of the alleged 1991 backup to be considered a “covered loss” that allegedly occurred within three years of the CSAA policy by Cook and CSAA nor to be used as a legitimate legal reason for denying coverage under the policy nor to cancel the policy. A clear violation of the insurance contract and evidence of al-Hakim’s causes of action; 8) Cook and CSAA were unaware of the written letter to al-Hakim from the City of Oakland assuming full responsibility and liability for the 1991 backup days after it occurred; 9) There was never any alleged claim filed with any insurance company for coverage of the alleged 1991 backup to be considered a “covered loss” that allegedly occurred within three years of the CSAA policy by Cook and CSAA nor to be used as a legitimate legal reason for denying coverage under the policy nor to cancel the policy. A clear violation of the insurance contract and evidence of al-Hakim’s causes of action; 10) Cook and CSAA did not timely, properly nor adequately investigate the alleged 1991 backup to be considered a “covered loss” that allegedly occurred within three years of the CSAA policy by Cook and CSAA nor to be used as a legitimate legal reason for denying coverage under the policy nor to cancel the policy until October 1997 when al-Hakim had presented the information to CSAA in October 1997. A clear violation of the insurance contract and evidence of al-Hakim’s causes of action; 11) The home was contaminated in October 1997 by CSAA contractor Servicemaster when they installed the Ozone machines for two weeks, blowing around the mold and asbestos contamination throughout the home without first a proper and effective cleanup of the contamination after tearing a hole in the bathroom floor and breaking the asbestos tiles in the family room and bathroom floors; 12) Cook has no contract with defendants, thus no attorney-client nor work product privilege; 13) Cook is unsupervised by anyone at his law firm of WSB with regards to his services to CSAA; 14) Cook is unsupervised by anyone at CSAA with regards to his services to CSAA; 15) WSB has no contract with defendants, thus no attorney-client nor work product privilege; 16) WSB had a contract for their services to CSAA before Cook
began as an employee with Willoughby Stuart & Bening. The contract was procured by Randy Willoughby; 17) al-Hakim is entitled to “Guaranteed Full Replacement Cost” for all real and personal property though Cook and CSAA wrongfully denied coverage in violation of the insurance contract and evidence of al-Hakim’s causes of action; 18) CSAA and Richard Mackey admitted made mistakes in the alleged insurance application filed out by Mackey and others unknown in violation of the insurance contract and evidence of al-Hakim’s causes of action; 19) al-Hakim’s alleged signature is clearly forged on the admitted mistake filled alleged insurance application filed out by Mackey and others unknown in violation of the insurance contract and evidence of al-Hakim’s causes of action. (Mackey testified the signature was electronically superimposed on the application, it wasn’t al-Hakim’s, then it was, then he witnessed al-Hakim signing it); 20) al-Hakim had contacted CSAA many times from February 1997 and October 1997 as confirmed by agent Richard Mackey in opposition to the alleged charges of Cook and CSAA used as a illegitimate legal reason for denying coverage under the policy and to cancel the policy. A clear violation of the insurance contract and evidence of al-Hakim’s causes of action; 21) CSAA deprived al-Hakim of the full benefit under the contract for the payment of “Guaranteed Full Replacement Cost” for all real and personal property with the deduction of depreciation, use of lower retail values, use of lower costs, and other charges in violation of the insurance contract and evidence of al-Hakim’s causes of action; 22) CSAA did not timely respond to the notice of a claim with Mackey or the claims department from February 1997 and October 1997 as confirmed by agent Richard Mackey; 23) Court declared the home a “sick home” that must be repaired regardless of liability; 24) Cook did advise CSAA but CSAA may not have taken his advice. First letter to al-Hakim states that CSAA takes his advice; 25) Cook not licensed as a building contractor; 26) Cook not licensed as an investigator; 27) Cook not licensed as an adjustor.
al-Hakim clearly demonstrated that the presence of Cook would have aided his case, and the record will show there was an overwhelming likelihood that the presence of Cook as a witness would have affected the outcome of the trial. ( People v. Butler, supra, 36 Cal. App. 4th at p. 464.) As the California Supreme Court noted: “‘The showing of actual prejudice which the law requires must be supported by particular facts and not . . . by bare conclusionary statements.’ [Citation.]” ( Serna v. Superior Court, supra, 40 Cal. 3d at p. 250, quoting Crockett v. Superior Court, supra, 14 Cal. 3d at p. 442.)
Judge Jon Tigar Appointed Thru Nepotism, Cronyism
Whom Prejudiced by Leave for Bereavement or Tigar’s Presumptive Protective Stashing Order Excluding Cook’s Testimony
Tigar alleges that defendants had stated more than once that they planned to present all their evidence during the time al-Hakim was out for bereavement, from April 7-10, 2008. Defendants could not possibly have presented any witnesses until such time as al-Hakim had completed his examination of his witnesses and that would not have been before April 10, 2008 and truly would not be possible until Cook had completed his testimony the week of April 14, 2008 since Tigar had continued it until then. al-Hakim had made it clear to the court that he intended to have Cook on the stand as his next witness for as many straight days as possible until his testimony was complete, however long that would be. al-Hakim made this fact clear to the court BEFORE Tigar ordered Cook to take vacation. Should the defendants have had their witnesses testimony continued until after the court had expected their testimony could be possible due to the unrealistic time limits imposed by the court as al-Hakim? There was no possibility of prejudice to the defendants or the court and certainly none that al-Hakim had not suffered by the punitive order releasing Cook from testifying.
There can certainly be no argument made with regards to the defendants being prejudiced by any continuance because they were not to began any testimony until al-Hakim was complete and the testimony of the primary witness, Cook was continued until April 14, 2008. Was al-Hakim and his family supposed to sacrifice their 12 years pain and suffering; over $20 million dollar case; with grave, irrecoverable losses to his family, business, clients, community; their business, real and personal property just to continue with other witnesses solely because Tigar wanted to stash Cook by ordering him to go on vacation? Who is really being discriminated against and being prejudiced by this action? There was no prejudice to anyone BUT al-HAKIM, HIS FAMILY, CLIENTS, BUSINESS AND COMMUNITY!
al-Hakim argued vociferously about the unrealistic time limit of 25 hours to present his case on direct, redirect, cross, re-cross, etc. and then to do the same with the defendants cross-complaint. This was wholly unacceptable, yet advocated by the defendants and ordered by Tigar. This is an 12 year; contentious action; the largest file in the history of Alameda County, over 60 file boxes; over 100 motions and responses; plaintiff had over 300 exhibits; over 5,000 pages of exhibits; 3,000 pages of documents for rebuttal argument; 20 expert witnesses; 77 other witnesses; over 100 pages of jury instructions; numerous allegations of judicial misconduct, where EVERY judge in this case has admitted error, committed perjury, recused themselves, or all three!
If Tigar can truthfully assert that he thought that al-Hakim would be finished with his case and rested, and defendants would be finish with their case by April 7-10, 2008, the three days that al-Hakim was out on bereavement, then he willfully made the order to continue the testimony of Cook until April 14, 2008, or better said, until such time as knew the trial would be over or al-Hakim would certainly have been out of time! There is no place in justice for this type of OBVIOUS CORRUPTION, misconduct, bias, prejudice, and bigotry that truly smacks of conspiracy! Tigar should not have ever been involved in this case or the Superior Court.
Prejudice and Consideration of Alternative Means
“Prejudice may be shown by loss of material witnesses… .” (People v. Morris (1988) 46 Cal.3d 1, 37 [249 Cal. Rptr. 119, 756 P.2d 843].) The obvious exigency here was Cook’s absence. It became clear the trial could not proceed in earnest with Cook not present. Because any delay in Cook’s testimony assured the fact that al-Hakim would be irreparably prejudiced by the unavailability of the key trial witness, the court proceeded by issuing an order to be able to continue with trial emboldening the issue of the perjurious, prejudicial litigation ending ruling. While granting the short continuance, the court would have indicated it was considerate of the fairness of the trial for all concerned and further allowed for trial preparation once al-Hakim and Cook appeared to continue the trial just as they left off without any prejudice or the same prejudice to everyone!
This would have been a reasonable attempt under California Rules of Court, rule 3.1332(d)(4) to craft alternative means to address the problem that gave rise to the motion … for a continuance while being mindful of the possible prejudice to al-Hakim and the defendants under rule 3.1332(d)(5).
The bereavement continuance is proven to have merit. It largely withstands defendants motion to deny when all the facts are considered. al-Hakim’s claims would clearly survive any motion of defendants. A jury had been impaneled for several weeks and trial had commenced on al-Hakim’s causes of action. Permitting this litigation to proceed would not have transgressed the policies of the statute because the litigation was not meritless, and the gatekeeping function of the court was not implicated by the operative continuance request.
Finally, al-Hakim’s loss of key witness testimony, and the denial of the continuance contravenes the policy of trial on the merits. That is all the more true here. Through no fault of al-Hakim, his key witness was spirited away from testimony under secret cover by defense counsel and Tigar, there were two deaths that he had to attended to and grieve, the continuance, though justified, was denied and the trial proceeded in his absence to judgment against him. Based upon these circumstances, the prejudicial loss of the key witness, the unfair denial of the continuance and the resultant judgment were ALL unjust.
Efficiency Cannot Be Favored Over Justice
Pursuant to Evidence Code sections 452, 453 and 459, you take judicial notice of “SP03-10: Motions and Applications for Continuance of Trial (amend Cal. Rules of Court, rule 375; adopt rule 375.1; repeal Cal. Stands. of Jud. Admin., § 9)” and “SP03-11: Trial Delay Reduction, Differential Case Management, and Case Disposition Time Standards (adopt Cal. Rules of Court, rule 204 and amend rules 208 and 209; amend Cal. Stds. Jud. Admin., §§ 2 and 2.1 and repeal §§ 2.3 and 2.4).”
al-Hakim reiterates the sentiments expressed in Estate of Meeker, supra, 13 Cal.App.4th 1099: “[W]e need to remember that all of us are here to serve the public and that this cannot be done when judges are inundated with fast-track statistics and cheerleader attitudes about case disposition numbers which never seem to take into account the rights of the parties. [¶] … Efficiency cannot be favored over justice. It follows necessarily that we do not believe appellants should have been deprived of their day in court.” (Id. at p. 1106.) Estate of Meeker (1993) 13 Cal.App.4th 1099 [16 Cal. Rptr. 2d 825]
al-Hakim must register a small plea in favor of professional courtesy in the conduct of litigation. While the thought might be to look upon any sort of continuance with skepticism (e.g., rule 375, Cal. Rules of Court), not every continuance request is borne of a dilatory motive or procrastination. Scheduling conflicts and unexpected events happen. And when they do, it is also important that opposing lawyers should do the right thing and try to accommodate each other; the courts, for their part, should, if possible, not throw up a roadblock to that courtesy.
Of course continuances should not be used as a dilatory tactic, and of course good cause (see rule 375, Cal. Rules of Court) should be present. The law should also encourage professional courtesy between opposing counsel — which is precisely what the Legislature did in section 595.2. The law should not create an incentive to take the scorched earth, feet-to-the-fire attitude that is all too common in litigation today.
Bitterly fought continuance motions are not particularly productive for either the administration of justice generally or the interests of the litigants particularly. When opposing counsel needs a continuance, courts should look to section 595.2 as a statement of policy in favor of professional courtesy, not churlishness.
al-Hakim could not readily call in another planned witness, as they were engaged to the exclusion of this case. Tigar’s opinion notwithstanding, witnesses are not fungible. Tigar’s suggestion that any witness could come to court without any preparation and testify in a complicated insurance bad faith case in which al-Hakim was particularly sympathetic and vulnerable, though liability was proven certain, belies an understanding of the subtleties of such litigation.
It should be noted as well that, while the trial court chastised al-Hakim for allegedly lying regarding the control of his trial witness calendar and attempting to control the court’s calendar, it is a fact of life that a trial lawyer’s time, much less an in Pro Per litigant, is not his own. For while trial courts are under great pressure to manage large caseloads, so too are in Pro Per litigants, and lawyers under equally great pressure “to juggle trials in two or more courts, each presided over by a judge who sometimes has to trail cases or otherwise upset the lawyers’ efforts to manage their own calendars.” (Estate of Meeker, supra, 13 Cal.App.4th at pp. 1105–1106.) Thus, Tigar was well off the mark in announcing that the scheduling conflict before him was a problem, AFTER THE FACT. To the contrary, because this alleged scheduling conflict affected the administration of justice, AFTER THE FACT, it was indeed the judge’s problem, and one that he was obligated to make every effort to address in a manner which ensured the just resolution of the case before him. In the absence of evidence of a lack of good faith, the trial court as well as counsel on both sides should acknowledge the scheduling difficulties that from time to time disrupt the flow of litigation, and consider reasonable solutions that satisfy the interests of all parties.
Here, for example, al-Hakim argues that his interests were prejudiced when the trial court granted the continuance of key material witness Ron Cook’s testimony because he allegedly had a vacation planned and was not expected to become available to testify until after the end of the trial.
Defends counsel argues that his clients’ interests would have been prejudiced if the trial court had granted the continuance because he had planned to complete his case during the week al-Hakim and Cook were to be away. That is untrue because he could not begin his case until al-Hakim had completed his after the week of April 21, 2008.
While this problem was genuine on the part of al-Hakim, there were solutions to it other than denying the continuance and granting a judgment against al-Hakim. For instance, the court could have continued the case for three days for al-Hakim to attend the funeral after the second death and it would have also been a time when the material witness Cook would again be available.
Unavailability Of A Witness
While the unavailability of a witness is considered good cause for a continuance under subdivision (3)(ii) of section 9, the unavailability must be combined with the fact the witness has been subpoenaed (or is beyond the reach of a subpoena and has agreed to be present), and the witness’ absence is “an unavoidable emergency that counsel did not know and could not reasonably have known at the time of the pretrial or trial setting conference.” (See also 7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 18, p. 35.)
Cook was not unavailable because of an “unavoidable” emergency as a matter of law, so as to justify the trial court’s discretionary call. There are not enough facts in defense counsels statements to hold that. The defense’s lack of triable testimony, evidence and fact could have been the impetus for Cook’s non testimony and the product of defense counsel’s lapse of memory to the merit of Cook and Tigar’s litigating the defense strategy excuse to allow the termination of his testimony. Defendants and Tigar realized that their case was simply too weak for all of them to put their professional reputation behind it as Tigar had been lead to believe!!.
When you consider that 1) there had been a second death for al-Hakim to grieve with, 2) a three week notice to the court and 3) prior approval of the expected bereavement; 4) the absence of the key material witness, 5) without notice 6) who was under subpoena; 7) the alleged scheduling conflict of the defense 8) wherein the trial court was not told 9) and without any substantial explanation; and 10) the alleged scheduling conflict of the court that was unsubstantiated, 11) the continuance should have been granted. al-Hakim’s request was predicated on the trial court’s taking the noticed bereavement as expected, not just on faith, and consider it with the “unavailability” of Cook, where every indication is that Cook’s witness testimony would continue as if it was never interrupted without prejudice to anyone.
“Unavailability of a witness” is grounds for a continuance only when the witness’s “‘. . . absence is due to an unavoidable emergency that counsel did not know and could not reasonably have known at the time of the pretrial or trial setting conference.'” ( 7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 18, p. 35, italics added.) While this criteria is met by al-Hakim’s circumstance, it is greatly unfulfilled by Cook’s, Barber’s and Tigar’s.
al-Hakim’s Federal and California Constitution Rights In Loss Of Material Witnesses
A claim based upon the Federal Constitution can be brought from a showing like that of the defense’s sandbagging of al-Hakim and Tigar’s stashing Cook from testifying and causing the delay was undertaken to gain a tactical advantage over al-Hakim. (See United States v. Lovasco (1977) 431 U.S. 783, 795 [97 S. Ct. 2044, 2051, 52 L. Ed. 2d 752]; see also People v. Frazer (1999) 21 Cal. 4th 737, 774 [88 Cal. Rptr. 2d 312, 982 P.2d 180].) We have observed that “[p]rejudice may be shown by loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay.” ( People v. Morris, supra, 46 Cal. 3d at p. 37.)
al-Hakim also contends that any such error constituted a violation of his Sixth Amendment right to confrontation and of parallel rights under the California Constitution, reviewable under the Chapman standard ( Chapman v. California (1967) 386 U.S. 18, 24 [87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 24 A.L.R.3d 1065] [harmless beyond a reasonable doubt]). al-Hakim objected, and thus his constitutional claim has been preserved for appeal. ( People v. Waidla, supra, 22 Cal. 4th at p. 726, fn. 8; People v. Rowland, supra, 4 Cal. 4th at p. 265, fn. 4; see People v. Carpenter, supra, 15 Cal. 4th at p. 385; People v. Mickey (1991) 54 Cal. 3d 612, 689 [286 Cal. Rptr. 801, 818 P.2d 84].) al-Hakim asserts that prejudice may be presumed, citing Doggett v. United States (1992) 505 U.S. 647 [120 L.Ed.2d 520, 112 S. Ct. 2686].
You can turn to al-Hakim’s showing of prejudice as it may be shown by such things as the loss of material witnesses, loss of other evidence, and fading memories due to the lapse of time. (Catlin, supra, 26 Cal.4th at p. 107; Archerd, supra, 3 Cal.3d at p. 640.) A showing of prejudice is not an all-or-nothing matter. al-Hakim has demonstrated both the fact and the extent to which he has been prejudiced by the loss of his material key witness. The trial court’s task of balancing the harm to al-Hakim against justification for the delay cannot be performed in the abstract but rather requires consideration of the particular circumstances of the individual case. (See People v. Frazer (1999) 21 Cal.4th 737, 775 [88 Cal. Rptr. 2d 312, 982 P.2d 180], overruled on another ground in Stogner v. California (2003) 539 U.S. 607, 610, 632–633 [156 L. Ed. 2d 544, 551, 565, 123 S. Ct. 2446].) Where, as here, al-Hakim had a trial and one reviews the claim of unjustified prejudicial delay, it is appropriate to consider the evidence adduced at trial in determining whether al-Hakim was in fact prejudiced by the delay. (Archerd, supra, 3 Cal.3d at p. 641; People v. Butler, supra, 36 Cal.App.4th at p. 464.) ((People v. Catlin (2001) 26 Cal.4th 81, 107 [109 Cal. Rptr. 2d 31, 26 P.3d 357] (hereafter Catlin.) “A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay.” (Ibid.) Prejudice will not be presumed from such delay; it must be affirmatively shown. (People v. Martinez (2000) 22 Cal.4th 750, 769–770 [94 Cal. Rptr. 2d 381, 996 P.2d 32]; People v. Archerd (1970) 3 Cal.3d 615, 640 [91 Cal. Rptr. 397, 477 P.2d 421]))
With respect to our state Constitution, however, a relevant consideration is whether the delay was deliberately undertaken to gain an advantage over al-Hakim. (Catlin, supra, 26 Cal.4th at pp. 109–110.) But such a showing is not required to prevail. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 507 [149 Cal. Rptr. 597, 585 P.2d 219] (hereafter Scherling).) Governmental negligence may be sufficient if an unjustified delay causes prejudice to the al-Hakim. (Ibid.)
The loss of witnesses is a factor demonstrating prejudice ( Maguire v. Hibernia Sav. & Loan Soc. (1944) 23 Cal.2d 719, 736 [146 P.2d 673, 151 A.L.R. 1062]; Zakaessian v. Zakaessian (1945) 70 Cal.App.2d 721, 727 [161 P.2d 677]), and the cases do not require that a party must demonstrate that their testimony would have been favorable to him.