ARGUMENTS ON ATTORNEY/CLIENT PRIVILEGE
FRANK CARSON CASE
BY WILLIAM THOMAS JENSEN (TOM)
Today, court was supposed to start at 9:30AM, with the intentions of hearing arguments on the claim of attorney/client privilege concerning transcripts that were taken from the cell of Robert Woody in Tuolumne County. This is the same Robert Woody who waived his attorney/client privilege when he made his most recent recantation of his testimony on July 29, 2016. Judge Zuniga was once again late to court, due to traffic on her trip from Contra Costa County. We have not started on time for such a long time, that I can’t recall when it last happened.
These transcripts, contain notes that are written on them, and were provided to Robert Woody by DA Investigator Steve Jacobson. The defense attorneys want the transcripts, and the notes that are written on them to be provided as discovery. It appears that Robert Woody was using these transcripts to plan for his testimony, which started around the beginning of August. There is speculation that the notes may have been made on the transcripts by one or more of the investigators involved in this case.
Robert Woody waived his attorney/client privilege when he most recent recantation of previous statements on July 29, 2016. Now, his attorney Bruce Perry wants to withdraw that waiver. I think there must be something in those notes that he does not want the defense and the judge to see.
Defense attorney Robert Forkner starts out the day at 10:00AM, by stating that the defense has: “The wrong Johnny Fields here.” Johnny Fields was supposed to testify today concerning an alleged confession that was made to him by Michael Cooley regarding the killing of Korey Kauffman. Forkner stated that the Johnny Fields that showed up in court today had the wrong birth date, and was the wrong person. The defense team is in the process of trying to find the right person to bring to court.
Judge Zuniga states that the issue that needs to be taken up this morning is the attorney/client privilege issue concerning the transcripts that were taken from Robert Woody’s cell on which someone had made notes.
Defense attorney Jesse Garcia states that he E-Mailed his motion concerning I believe Robert Woody’s medical records on Friday. Robert Woody’s attorney Bruce Perry stated that he received 2 different motions from Jesse Garcia.
After some legal wrangling about who had the burden of making their arguments first, Bruce Perry makes a very organized and concise argument concerning his opinion that the attorney/client privilege should be upheld concerning the transcripts. Perry states that there are 3 issues in this situation. Number one is whether or not there is an attorney/client privilege that applies in this instance. Number two is whether the waiver of attorney/client privilege was a “blanket waiver.” Number three concerns case law that was cited concerning pre-trial evidence rules.
Perry states that the transcripts were provided by law enforcement. Perry states that Robert Woody had asked his lawyers for the transcripts, but the lawyers did not provide them to him. Perry states that he and Martin Baker had not spoken to Woody, and that Woody was making notes on the transcripts so that he could ask his attorneys questions. Perry states that he is asserting attorney/client privilege because Robert Woody wants him to do so. Perry states that his waiver of attorney/client privilege does not take this away. Bruce Perry states that he is now pulling the waiver for anything after July 28, 2016. Perry states that if disclosure is provided, it would set a terrible precident(sp?) He states that the notes that Frank Carson has in his cell would be compromised.
Defense attorney Jesse Garcia is the first one to respond to Perry. Jesse refers to defense exhibit 129. Judge Zuniga has this in her hand, and makes a notation on it. Jesse states that he is not looking for Mr. Perry’s notes on the 07/28/2016 statement made in Department 3 in the Stanislaus County Superior Court. Jesse Garcia states that the waiver is a general waiver where Woody made a complete waiver of his attorney/client privilege. Jesse argues that Mr. Perry argued that the transcripts were delivered to Woody after 07/28/2016, and that Jesse recalls that Woody testified in court that he had the transcripts for a couple of weeks when he started testifying in early August, 2016. Jesse states that the transcripts were given to Woody by DA Investigator Steve Jacobson. Jesse states that the transcripts were given to Woody weeks prior to his waiver of attorney/client privilege. Jesse Garcia states that Woody did at least 4 interviews in 2012, and 5 interviews in 2014. Jesse states that Woody was still denying any involvement in June of 2015, and that he did other interviews in 2016. Jesse Garcia states that Woody used the transcripts to prepare for his testimony, and now he is trying to revoke his waiver.
Jesse states that: “We have a witness on the stand, which is a very different situation than the Hannon case that was cited by Bruce Perry. Jesse Garcia states that Woody has made statements, all of which are contradictory to other statements that he has made. Jesse states that the notes would not have been made in confidentiality, and that Woody can’t reassert his confidentiality at this late of a date.
Jesse Garcia speaks of a package that he obtained from Bruce Perry and Martin Baker around August 01, 2016. Jesse speaks about the apology that Woody made at the end for telling lies previously. Jesse speaks about phone logs, where Woody continues to deny involvement in the killing of Korey Kauffman, or moving his body. Jesse Garcia states that Bruce Perry’s argument that the defense already has impeachment material on Robert Woody should not preclude the defense from seeking more impeachment material on Woody.
Bruce Perry responds by citing Littlefield, which speaks about a similar situation on impeachment material. Perry then goes into the specific language that was used in Woody’s waiver of attorney/client privilege. Perry states that he believes it is a limited waiver, taken in context of what they were talking about. Perry asserts that Perry was given the transcripts after the waiver was done.
Defense attorney Robert Forkner states: “We have the facts.”
Defense attorney Jesse Garcia speaks about the 1982 case that Perry has been using in his arguments. Jesse states that: “We don’t want Perry’s notes.”
Defense attorney Robert Forkner states that these notes were most likely discussed between Woody and Jacobson during drives from Tuolumne County. Robert Forkner states that the transcripts were provided to Woody behind the back of Bruce Perry, who was unaware that they had been provided to Woody. Forkner states that there were no limitations placed on the waiver that Robert Woody signed.
Defense Attorney Percy Martinez states that: “This case stands on its own merits.” Percy states that Woody changed his testimony, and Beverly Woody lied on the stand. He states that Robert Woody provided a story, then recanted. Percy states that Woody had frequent visits from his family where he discussed the case, and that Woody asked Steve Jacobson for the transcripts. Percy states that Steve Jacobson would have had to go to the DA, and ask for the transcripts. He states that it was an effort to have Robert Woody give false statements. Percy cites some case law that concerns this issue.
Percy Martinez refers to Woody’s August 15th testimony, where Woody said that he had 6 inches of transcripts that he had obtained a couple of weeks ago. Percy states that: “there are notes, we do not know who wrote the notes.” Percy says that Woody has a history of making false statements. Percy states that Bruce Perry never communicated with Robert Woody.
Defense attorney Martha Carlton-Magana states that Woody’s notes are not protected. She states that Woody has plead guilty, therefore his need to prepare for testimony is non-existent. She states that the transcripts were provided to Woody by DA Investigator Steve Jacobson, and not by Bruce Perry. Martha speaks about how Special Agent Brody spoke of conversations that were had with Woody concerning the “Facts” of this case while he was driven from Tuolumne County to Modesto. She says that they went over Woody’s many versions of the events, and how it was part of his preparation for giving perjurous(sp?) testimony. Martha states that perjury is an exception to the attorney/client privilege. Martha states that there is already evidence that Robert Woody has already perjured himself on the stand in this trial.
Bruce Perry responds by citing Rieber, and how it is no longer the law. Perry states that: “We knew about the transcripts all along.” Perry states that he and Martin Baker had given the prosecution permission to provide the transcripts to Woody.
Defense attorney Jesse Garcia brings up page 15,378 line two where Woody says that he asked for the transcripts from Steve Jacobson, and had also asked for them from his lawyer. In this reading of transcripts, Woody said that he had no conversations with Bruce Perry, and had obtained the transcripts around two weeks ago. Jesse Garcia states that whatever notes that Woody made on the transcripts were never communicated with his lawyer Bruce Perry.
Defense attorney Martha Carlton-Magana states that: “It is not just questions and answers with Woody.” She states that the investigators gave Woody facts of the case in interviews that were directly in conflict with all physical and forensic facts that have been disclosed in this case. She states that this is perjurous.(sp?)
Marty Carlson will be doing the afternoon, as I have personal business to attend to. The judge will give her ruling. I expect her to take the hard line and support the attorney/client privilege. She seems to be bending over backwards to help the prosecution. God I hope I am wrong on this.
Sincerely; William Thomas Jensen (Tom)