Motion for a new trial denied in San Marcos child molest case

SAN MARCOS—Dressed in county jail blues, Mark Jay Cash walked into a Vista courtroom April 24 a convicted child molester, and despite a well argued motion for a new hearing by his attorney, Cash walked out the same way.
Weighing testimony from Cash’s former attorney Herb Weston, as well as arguments from his new attorney Robert James and prosecutor Marnie McGee, Superior Court Jude Daniel Goldstein denied Cash’s motion to have his conviction overturned due to ineffective assistance of counsel by Weston.
While Goldstein did agree with James that Weston is one of the busiest trial lawyers in North County, he said he couldn’t find deficiency or prejudice—the two items required to have the motion granted—in his actions as Cash’s counsel.
“His skill level is superb,” Goldstein said.
Goldstein, who presided over Cash’s trial in September 2007, refuted the defendant’s points he made as to why Weston was deficient, one of which was that Weston didn’t give his case the amount of attention it needed and therefore he became a “spectator” in his own trial.
In addition to Weston giving Cash’s family his cell phone number, Goldstein said Cash wrote “copious” amounts of notes to Weston and was given longer breaks throughout the trial to discuss the case with is former attorney. There was an “enormous” amount of communication going, the judge said.
Further, he said if Cash wasn’t pleased with Weston he could have fired him. Prior to retaining Weston, Cash had been appointed two public defenders. His first public defender was relieved after Cash filed a motion to have him taken off his case.
“The defendant knew how to communicate with the court if displeased with the counsel,” Goldstein said. “My feeling is he wasn’t displeased during the trial, but is displeased with the verdict.”
After deliberating for a day and half, a jury found Cash guilty of five counts of committing a lewd act on his stepdaughter who was under the age of 14, as well as one count each of using harmful material to seduce a minor, possession of a dangerous weapon and resisting arrest.
Cash, of San Marcos, will have to register as a sex offender for life and could face up to 22 years in prison when he is sentenced June 5.
Throughout the trial, Weston argued that the victim’s mother and father have had an ongoing conflict over their children’s custody and the allegations against his client were fabricated. He said Cash is actually caught in between an ongoing custody battle between the victim’s parents and that the accusations came a couple of days before a family court hearing to re-determine custody.
Following the motion hearing, Dr. Harvey Cash, the defendant’s father and a child specialist, reiterated that he believed the victim had been molested, but not by his son. He also said he believed his son was the victim of a plot by the girl’s father in a tumultuous custody battle.
“This has torn my family apart,” he said. “Justice wasn’t served.”


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