The judge finally makes a ruling

by Marty Carlson

August 31, 2016

The afternoon session was pushed back to 2 o’clock to the judge could review some transcripts and information. The actual start the court was at 2:16 PM.

You could hear a pin drop in the courtroom as a judge began to make a ruling as there were some high expectations by some people on the defense side.

The judge stated that she has been listening to three days’ worth of arguments and the defense have been centering on two things:

the first being Brady violations due to failure of disclosure and cited to memorialize in a report either audio, video, or written the activities concerning the test.

And second the failure to capture the pre-test interview by agent Jefferson and his loss of memory from the testing.

The evidence that she used to decide was the pretest interview statements saying they have been misstated. And apparently there was some confusion about a pre-test interview prior to the pretest interview if that makes sense.

The judge began siding from transcripts of testimony, and did this repeatedly throughout a ruling, and stated agent Jefferson’s testimony he was present when a pre-test was conducted, and then later changes testimony to say he was not present during that time.

Agent Brody was confused about the pretest interview also and finds no pre-interview before the pretest interview, I know that’s confusing at the problem here. No notes were taken or memorialized in any of the pretest interviews. Agent Jefferson had memory failure to the length of time, but she stated that he is not required to record pretest interviews as per the school training he received.

She stated that Jefferson does not take notes nor practice the questions, and stated efforts and testified that he does not always do a report.

The judge also said it was agent Brody who said it is his habit to write reports and do video as soon as the subject walks into the room. Brody was a one that said the video comes on automatically when the subject walks in the room but then corrected his testimony later.

She says it was testified that recording is done manually not automatically, agent Brody also testified that he could not remember the questions asked in the pretest interview and that is exculpatory. She stated Brody did not ask Woody about some particular information in the pre-interview as it is just a reporE reporter builder with the examinee. Both Jefferson and Brody testified that the pretest purpose is simply a pre-interview and is not a question formulation issue.

The judge stated the defense arguments that exculpatory evidence has not been captured is not supported. Agent Jefferson lack of memory, and the report written was actually memory of agent Brody. She stated agent Jefferson testified he had recollection of the poly when the report was written because he had reviewed the video.

She also stated that agent Jefferson had received limited information from agent Brody. Jefferson told Brody he could not remember names for the report and used Carson’s name even though was never brought up during the polygraph. She stated there is no doubt that agent Jefferson did not have adequate memory, that she also read stating agent Jefferson said Woody never said he knew Carson or any of the other defendants.

The judge said that agent Brody had discussed a wide range of involvement by Woody and apparently an exploratory type fast exam was given. But he did remember the actions of the pre-test interview stating stolen property from Carson was not part of that interview.

Agent Jefferson lack of memory and couldn’t remember Woody’s custody status, but could remember how he was dressed. The judge then stated that she agrees with the Dist. Atty. there was a misreading of Jefferson’s report that he was being untruthful.

During the video agent Jefferson stated to Woody he is going to write a report but may do it verbally instead. The memory failure argument is not upheld and she cites several cases that the Dist. Atty. does not have to write reports on everything.

The judge did agree with the defense that there is a continual issue of evidence either missing or delayed in discovery, and she stated there is case law that has to be disclosed at a point where the evidence can be of value to the defense.

The polygraph evidence has not impacted the ability of the defense to put on an affirmative defense.

The judge stated that she is not sure if prior 115 testimonies would have been different with this information and so the defense is not put it been put at a disadvantage.

The judge did say that investigator bunch, investigator linger felt, and investigator Jacobson were negligent when they did not reveal the polygraph information and that can be used as part of their credibility of each when called to the stand.

So that was a ruling but the judge went on to say:

and very sternly admonished the Dist. Atty. for the delays of this hearing, citing that the Dist. Atty. had made an argument recently that was the defense was continually delaying this hearing. She advised Mme. DA to get her officers together, and find out if there’s any more information available that is to be discovered.

The judge stated that there is been numerous 402, (evidence hearings), in this case because of her failure to disclose. The judge then advised the request for sanctions against the Dist. Atty. are to be denied.

At that time the judge took a break and Robert Forkner wanted to address the court prior and she said after the break and she wanted to shut DOWN at 4 o’clock today.

When we returned from break Robert Forkner address the court and stated that they had a witness that was to be called today, I believe his name was Charles oDell, and the District Attorney’s Office today had turned over some discovery in regards to statements and recordings made by Charles Odell to investigators. Robert Forkner argued this is exactly what the judge just admonished the Dist. Atty. for doing.

At that point the judge just wanted to get the day over there was one the attorneys had an issue that needed to leave at 4 o’clock and it would be another argument in the morning in regards to that.

Court was in recess until 930 tomorrow morning.

Tom’s report will hopefully be coming up soon.