Avenal Ave. house in East Oakland where prosecutors say a woman was tortured in 2007. (File photo/2007/Oakland Tribune)

Avenal Ave. house in East Oakland where prosecutors say a woman was tortured in 2007. (File photo/2007/Oakland Tribune)

By Paul Rosynsky, The Chauncey Bailey Project

OAKLAND — Four members of the now-defunct Your Black Muslim Bakery had charges of kidnapping and torture against them temporarily dismissed Friday because of a legal technicality.

However, the members, including the bakery’s leader Yusuf Bey IV, were not released from custody and instead were immediately charged again with several felony counts of using a fake police cruiser to kidnap two women and then torture one of them in East Oakland two years ago.

The case was dismissed based on a court rule that mandates defendants have a preliminary hearing in “one session” unless they waive that right. One session can include multiple days, but they must be consecutive.

In the case of the bakery members, the preliminary hearing lasted several months and was not conducted consecutively. Although no defense attorney objected at the time, new attorneys placed on the case earlier this year realized the defendants had not waived their right for a consecutive hearing.

Andrea Auer, a court-appointed private attorney representing Yusuf Bey V, argued in court that she could not find any place in the transcripts of the preliminary hearing where the defendants agreed to a general waiver allowing the hearing to be conducted over multiple months.

Although the defendants and their attorneys agreed to one waiver after the first day of hearings, they did not, she argued, agree to a waiver after the initial hearing.

“You want to guarantee the integrity of the system,” Auer said.

Deputy District Attorney Greg Dolge argued that since the defendants granted the waiver the first day, it was implied that the waiver continued throughout the preliminary hearing. In addition, Dolge said, no defense attorney argued that their client’s rights were violated at the time of the supposed violation.

“This was never an issue at the preliminary hearing. No one claimed their rights were being trampled on,” Dolge said.

But Alameda County Superior Court Judge Tom Reardon dismissed the case saying it remained unclear if the defendants had given up their right to a consecutive preliminary hearing.

“I believe that what I have before me is a limited waiver,” Reardon said. “You have to be very specific about what these people are waiving.”

Reardon ruled that neither the judge at the time, Superior Court Judge Eric Labowitz, who was visiting from Humboldt County, or the prosecutor Deputy District Attorney Scott Patton, had explicitly confirmed that the waiver granted the first day was to cover the entire preliminary trial.

Reardon’s ruling will force the District Attorney’s Office to either hold another preliminary hearing or take the charges to a criminal grand jury.

In either case, it remains unclear if testimony given during the first preliminary hearing can still be used or if those who testified then will have to testify again.

If witnesses are forced to testify again, it could pose a problem for the district attorney whose case was based, in part, on testimony given by Joshua Bey. Joshua Bey, 21, a half-brother of Bey IV, was also charged in the case but agreed to a plea deal in exchange for his testimony against other bakery members.

But prosecutors at the time were so concerned about him keeping the deal and testifying that they announced the plea deal at the last minute surprising the other defendants who had no idea Joshua Bey flipped.

Joshua Bey’s attorney, David Washington, expressed frustration Friday that the case was dismissed and must start over.

“It’s not good. I don’t see how they can screw that up so badly,” Washington said. “He (Josh) did his part. He didn’t do anything to make it this happen, it isn’t his fault.”

Dolge declined to comment on what will happen with the case.

“I respect the court’s decision,” Dolge said.

Besides Bey IV, 22, also charged in the case are Yusuf Bey V, 23, Richard Lewis, 25, and Tamon Halfin, 22.

The four were arrested August 3, 2007, during a police raid at the former bakery headquarters on San Pablo Avenue. The raid was conducted a day after Oakland Post editor Chauncey Bailey was killed. The slaying was conducted, police and prosecutors say, by a bakery handyman, Devaughndre Broussard.

Defense attorneys representing the four defendants in Friday’s hearing said they were pleased with the ruling but did not expect it would have resulted in the case disappearing.

“Of course I expected the District Attorney’s Office to recharge,” Auer said.

Anne Beles, a court-appointed attorney representing Bey IV, said the ruling Friday is a result of just one of several problems she believes the prosecution has with the case.

“We are pleased and we will continue to fight the case,” she said.

Chauncey Bailey Project reporters Thomas Peele and Bob Butler contributed to this report. Reach Paul T. Rosynsky at 510-208-6455 or prosynsky@bayareanewsgroup.com.