San Diego day care provider James Nemeth is asking a judge to change his guilty plea associated with the death of an infant in his care.
In 2014, Nemeth was arrested and charged with murder and assault in the May 2012 death of 11-month-old Louis “Lou” Oliver. At that time Nemeth entered a plea of not guilty.
Nemeth changed that plea to guilty in January, admitting to a total of seven charges with a 29-year-and-eight-month prison term attached, according to the plea deal. The plea included him admitting he abused two of his own sons.
Before San Diego County Superior Court Judge Joan Weber Wednesday, Nemeth questioned witnesses and presented his arguments for why Weber should allow his plea to be changed from guilty to not guilty.
Prior to the hearing Nemeth also asked for a new attorney to be appointed to him. Judge Weber denied the request saying the court is not obligated to keep appointing new counsel.
Nemeth argued he has been “shooting blind,” since deciding to represent himself but Judge Weber disagreed, saying “the amount of discovery you (Nemeth) have been provided is extraordinary.”
Throughout the hearing Nemeth questioned several witnesses including his wife and brother. He asked them about what his former attorney told them the plea would include, specifically if the plea would allow him family visits, enrollment in possible programs to reduce his sentence and an ability to appeal if new evidence was found.
Multiple times during the hearing, Nemeth said he didn't want to plead guilty to the seven charges. Nemeth said he tried to contact his former attorney through written letters, where he says he expressed his will to fight the charges, not plea.
His former attorney, Albert Arena, spoke to NBC 7 Investigates after testifying and said his team did everything they could.
"He's (Nemeth) playing a game,” Arena said. “He has what we call buyer's remorse. We were ready for trial, but whatever decision he wanted to make was his. We would have accepted it. He chose to enter a change of plea and not face life in prison."
Arena also explained in court, that it is not his or his associates policy to send sensitive case information in letter form to a prison.
Lou was alert and healthy when he was dropped him off at the San Diego Daycare, also known as the James Nemeth Family Childcare, on May 23, 2012, according to this mother, Cristina Oliver.
Just a few hours later, she says she got an alarming text message from Nemeth telling her to "come quickly, Lou did not wake up from his afternoon nap," Oliver told NBC 7 in February.
Two months after Lou passed, the Department of Social Services, the agency responsible for licensing and regulating home daycares, suspended Nemeth's daycare license.
The agency determined there was "an immediate risk to the children in care at the Nemeth James family childcare."
NBC 7 Investigates reported that before Lou's death, Nemeth had a lengthy history of serious violations, including allegations that he was physically rough with his own child.
NBC 7 Investigates also found it was very difficult for parents to review files on what happens to their children while in the care of individual day cares. After the stories aired,state lawmakers changed the way parents can access information about daycares in California, making the information available online, instead of only in person by appointment.
Click here to see the complete investigation.
In court Wednesday, the paralegal helping on Nemeth’s case, Tiffany Brown, said they spent 30-40 minutes going over the plea with Nemeth making sure he fully understood what he was signing and admitting.
Arena, who said he has been practicing criminal defense for 24 years, said he charged Nemeth $75,000 to represent him in the criminal trial, but was only paid $51,000.
According to Arena, “Nemeth wanted to plea early on in the case,” and as “we got deeper into the case and saw what, you, the prosecutor were providing was troubling we discussed a range of 19-24 years” in prison for a possible plea.
Arena discussed a video recording entered into the court of Nemeth’s two sons.
“It was troubling,” he said. “They appeared to fear him (Nemeth). It would have been very difficult to cross examine them," he said.
During witness testimony Judge Weber continuously asked Nemeth to quit testifying while asking the witnesses questions. Nemeth would attempt to re-ask the questions, sometimes successfully.
The Judge will continue to hear testimony Thursday. The hearing will continue with witnesses from the prosecution.
The prosecutor ended the day Wednesday with a recorded phone call between Nemeth and his wife.
During the call Nemeth tells his wife “there are a lot of people in jail that are innocent” and that he “had a chance before the extra charges were added.”
The “extra charges” are associated with abuse to his sons, which, according to the prosecutor, include punching and choking his sons and using a belt on them. During the call Nemeth explains how those injuries happened and says “he never used a belt, but threatened to.”
On the phone call with his wife Nemeth continues to discuss the plea deal he told Arena he wanted to take, including mentioning justifications to his wife for why he took it. During a portion of the call, Nemeth sounds like he is getting emotional, possibly starting to cry, when he tells Jellyman the guilty plea will mean he will not be allowed any contact with his sons because they are considered victims.