Judge Daniel Lowenthal declares mistrial for McDonald’s armed robbery suspect who was sleepy in court
A California judge, the scion of a powerful Democratic family, granted an ex-con a mistrial for an alleged violent McDonald’s robbery because he was sleepy in court and couldn’t take proper notes, Fox News Digital has learned.
Los Angeles Superior Court jurist Daniel Lowenthal, whose Democratic congressman father endorsed the city’s embattled top prosecutor, George Gascón, made the ruling Wednesday.
Vamazae Elgin Banks, 24, was on trial for allegedly pointing a gun at the head of a McDonald’s cashier and threatening to kill her if she didn’t hand over cash quickly enough.
“Hurry up or I’ll blow your brains out!” Banks allegedly told the victim, court records show.
He made off with less than $100 from the McDonald’s on East 4th Street in Long Beach.
Banks faces up to life in prison if convicted of three counts of robbery and one account of assault with a semi-automatic firearm for the crime under California’s three-strikes sentencing laws.
He has two prior violent felony convictions for robbery and making criminal threats.
Nodding off
His court-appointed defense lawyer, Alan Nakasone, argued that Banks couldn’t take adequate notes during a court session because he had been put in a cell without a blanket or bed the night before and was unable to sleep properly.
The argument was enough for Lowenthal, who ripped the Los Angeles Sheriff’s Department for negligence and granted the mistrial request.
Deputy District Attorney Tricia Halstead pushed back on Nakasone’s argument in court, asking the judge if he had actually seen Banks nod off at the defense table.
“Did he fall asleep?” she asked him. “Did Your Honor see him fall asleep?”
Lowenthal deferred the question to Nakasone.
“My client was nodding,” the defense lawyer reiterated.
With that, Lowenthal made his ruling.
“Essentially this Court has lost complete confidence in the Sheriff Department’s ability to provide proper housing arrangements,” he said. “A mistrial is declared.”
Judge Lowenthal’s Political Connections
Lowenthal’s father, Alan Lowenthal (D-Calif.), who was first elected to Congress in 2012, is serving his fourth term representing portions of eastern Los Angeles County and western Orange County. He has also served as a city councilman and California state senator.
The progressive congressman endorsed Gascón, Los Angeles County’s controversial soft-on-crime prosecutor, who narrowly survived a recall bid this month.
Judge Lowenthal’s brother, Josh Lowenthal, is running for a state Assembly seat and their mother, Bonnie Lowenthal, served as a member of the California Assembly from 2008 to 2012.
Alan and Bonnie Lowenthal have both endorsed former Long Beach Police Chief Robert Luna in his bid to replace Los Angeles County Sheriff Alex Villanueva.
The ‘broken’ jail system
Legal experts told Fox News Digital that the ruling was highly unusual.
“In my 27 years of experience, I have not seen a mistrial declared because a defendant who was in trial was deprived of the ability to sleep,” said Anthony Falangetti, who worked as a Los Angeles County prosecutor for 14 years before becoming a criminal defense lawyer.
He said the judge was clearly expressing his frustration with the sheriff’s department’s failures in his decision.
Los Angeles defense attorney Lara Yeretsian called the ruling “surprising” — but backed Lowenthal’s rationale.
“This is about a system that is honestly broken,” she said. “What they do to defendants is inhumane and he’s sending a message.”
The sheriff’s department has an acute prisoner bus shortage with only half of its fleet currently operational — and many of the county’s jails are located far from courthouses.
Inmates are routinely delivered late to court if at all.
The troubled jail system, which Villanueva largely inherited when he took office in 2018, also suffers from understaffing and overcrowding.
Banks’ trial
Banks’ sleep challenges began Monday, Aug. 29, when he was awoken at 3 a.m. at the North County Correctional Facility to be transported to the Long Beach courthouse, which is a 2.5-hour trip in traffic.
Despite a lack of sleep, Nakasone said, Banks was attentive on the first day of his three-day trial for jury selection, opening arguments and testimony from his three victims.
The judge ordered the sheriff to house Banks at a nearby facility, Men’s Central Jail in downtown Los Angeles, to ease the commute.
But the defense said Banks was placed in a holding cell meant to temporarily house inmates without a bed or a blanket.
Banks persevered through Aug. 30 until 2:30 p.m., when Nakasone asked the court to break for the day due to his client’s fatigue.
The Long Beach Police Department offered to host Banks at its jail across the street that night, but the sheriff’s department returned him to the same facility and didn’t provide a cell with a blanket and bed until 3:30 a.m., his lawyers said.
Bad notes
Banks did not make it to court until 11 a.m. Wednesday — several hours late — and Nakasone immediately moved for a mistrial, pointing to the quality of his client’s notes the day prior.
“I did not feel he was awake enough to contribute at all to the trial,” said the defense lawyer.
“His notes were clear, concise and helpful. In the afternoon, they weren’t,” Nakasone said. “The notes that he had given me have been both relevant, pointed and useful. And after 1:30, they weren’t.”
The prosecution objects
DDA Halstead pointed out that the afternoon session lasted less than an hour and consisted of an investigating officer describing her training and the playing of surveillance footage without audio.
“I don’t believe that a lack of note-taking during a number of surveillance videos, that simply showed the defendant walking to McDonald’s which is an uncontested action, is enough to result in there being prejudice to him and to his potential defense,” she said.
Halstead also argued that case law is clear, and a mistrial should only be granted as a last resort if there is no other feasible remedy.
“I don’t believe there has been prejudice that can’t be cured in this case,” she said, noting that the witness could be questioned again and the surveillance video replayed.
The court could also break for the long weekend to give Banks a chance to rest.
She added that a mistrial was not only extreme but premature given that the judge hadn’t probed if Banks’ jailhouse behavior had contributed in any way to the bedding denials.
The victims
After the judge declared a mistrial, Halstead said the decision would compel the victims to relive their trauma once again at a new proceeding.
“All three victims showed emotion during their testimony. It was put on the record that it was difficult for them to watch this evidence,” Halstead said. “It’s just incredibly unfair of the court to punish the people and specifically the victims in this case, based on a lack of sleep, when we do not have more information.”
Banks, who is being held on a $1.18 million bond, is due back in court for a new trial on Sept. 13.
Villanueva said the sheriff’s department was “working on [the situation] with custody operations.”
Lowenthal didn’t immediately return a request for comment.
