Judge denies dual motions in Tyler McCain case

The Honorable Judge Thomas L. Bender took a stern tone with attorneys representing both the defense and prosecution, today September 3, as he ruled on two motions related to murder charges that have been filed against Tyler Scott McCain. 

McCain is accused of killing his wife, Nikki Cheng Saelee-McCain in order to prevent her from testifying against him on felony domestic violence charges last year. She went missing on May 18, 2024. McCain was charged with her death just last month. 

This morning, Judge Bender — a visiting judge who retired from Madera County —first heard a motion filed by the prosecution to disqualify McCain’s attorney, Michael Borges. The prosecution’s grounds for disqualification were based largely on a single claim, that Borges had met with the victim and her husband at his office in April of 2024 when McCain was under a criminal protective order forbidding him from making contact with his wife. 

The court heard witness testimony first from Chloe Saelee, the younger sister of the victim, who testified that she was contacted by Saelee-McCain after she met with McCain and Borges. She said her sister felt she had been tricked into attending the meeting, during which she was allegedly asked by her husband McCain to lie on the stand about who had abused her. Saelee described her sister as being in “kind of a panic” afterwards. 

At the request of the prosecution today, Saelee read a series of text messages between herself and their third sister, Kaye Ford, that were sent more than a year ago on April 10, 2024, the date the victim met with her husband and Borges.

The prosecution then called Kilee Holroyd to the stand. She’s been a detective with the Shasta county Sheriff’s Office for six years and gave testimony about phone records she obtained through warrants, indicating that the victim and McCain were both at Borges’ office on April 10, 2024. At the prosecution’s request, Holroyd also read a number of text messages between the victim and McCain on April 10, some of which referenced specifics of his alleged abuse.

Borges then requested to meet with the judge “in camera,” or in private, to share confidential information that pertained to his meeting with his client and the victim last year. Today, the judge and Borges met for about fifteen minutes before the public and the prosecution were called back to the room. 

Judge Bender then issued a tentative ruling denying the motion to disqualify Borges. He acknowledged that it was apparent that a meeting had occurred between McCain, Saelee-McCain and Borges on April 10, but asked the prosecution why that meeting should disqualify Borges from serving as McCain’s attorney.

Under Evidence Code 952, Judge Bender said, the meeting was held in the interest of Borges’ client and thus presumed to be privileged and confidential. 

Deputy District Attorney Toby Powell argued that by participating in the meeting, Borges participated in McCain’s violation of the court protective order meant to restrain him from contacting Saelee-McCain and indicated Borges could have assisted McCain in an alleged attempt to pressure the victim to lie on the stand for him, saying those would be potential violations of Evidence Code 956.

Powell also brought up a secondary potential issue with Borges’ representation of McCain, noting that the attorney has previously represented someone who is expected to be a witness in the case, something the prosecution believes may be a conflict of interest.

Judge Bender did not respond to the argument that Borges may have somehow assisted McCain in a crime. As far as the potential witness, he said, the matter at hand was Borges’ ethical duties as an attorney including his duty to zealously represent his current client and his duty of loyalty to his former client.

Deputy DA Powell suggested that the judge should defer a ruling on the matter until the potential witness could be brought back to testify saying that witness, who had been released as a witness by the prosecution earlier that day, could be back to testify by early afternoon. Judge Bender shook his head, saying he “really doesn’t like” when attorneys suddenly decide to call witnesses back after hearing a tentative ruling against their motion.

The judge said if this potential  witness in Nikki’s case was someone Borges was familiar with through past representation, it is possible that a conflict could arise – but he didn’t currently see any. And if something arose later, he mused aloud, there would be other ways to approach the issue.

The judge also briefly addressed a motion by Borges to close the preliminary hearing to public view due to the amount of publicity the case has received and the likelihood that could affect the jury pool. He told Borges he didn’t see any particular reason to close the hearing explaining that it would be okay if jurors were aware of the case as long as they were not prejudiced to believe one way or another about it. 

Around 11:30, after about two hours of testimony and arguments, Judge Bender issued a formal ruling denying both the motion to disqualify Borges and the motion for a closed hearing, announcing that McCain’s preliminary hearing will begin tomorrow at 9:30 a.m.

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