1385 MOTION (MISCONDUCT) AND TROMBETTA MOTION
by Marty Carlson
September 19, 2017
The afternoon session started about 1338 hrs. with the witness by the name of Maureen Keller called to the stand by Robert Forkner. She is a chief deputy public defender with the Stanislaus County public defender’s office. She testified that there are no computer programs, which includes CJIS’, that allows her to access the jail information on visitors, let alone family or friends or professionals visiting. She says in the past whenever she wanted to gain that information she’s had to issue a subpoena to the sheriff department. She also stated that the current upgrades have just put in place last August still have not given her access to those jail visit logs, and to her knowledge nobody else has access in the public defender’s office.
The district attorney went to cross examine and asked her what CJIS was for and she stated case management and the again repeated no inmate information can be access to her knowledge. It’s she was asked if the reset upgrade gave inmate booking information, and she stated the only access that she has is the same as any other citizen can access the online in custody log through the Sheriff’s Department.
For some reason Marlisa Ferreira brought up a Mari Cicinato, who apparently was the investigator the public defenders at one time, and the district attorney was claimed that she had CJIS access and’s Ms. Heller was not aware if she did or not. Marlisa Ferreira then started running down a list of other investigators who have may have had access, in fact it became a long list and Ms. Heller was not aware. At that point objection was made by Robert Forkner’s as he was saying the motion only is regarding the visitor logs.
It’s the DA then asked a different question asking if the subpoenas had worked in regaining the information and the judge told her not relevant. She was asked by Mme. DA if she could look at the page assign ends when she went to visit somebody at the jail and she said yes, she could see that one page but didn’t normally review everybody that gone into the jail.
Attorney Hans inquired if CJIS’s was mainly used just to track cases in the system she said yes. She also stated that she has seen countless people throughout her court system’s travels that had access that she does not have.
At this point the testimony got very difficult for me to follow at times because they were bouncing back and forth between witnesses in the 1385 motion and the Trombetta motion, as they became available.
At this time Jon Evers took the stand when called by Robert Forkner in the Trombetta motion. Jon Evers was asked the information received about David McMillan when Kevin Pickett had talked to Jason Armstrong at pop and cork one day. And apparently Jason Armstrong had told Kevin Pickett he could take him to the gravesite or Kory’s body was found. He was also asked and confirmed this information was known prior to the Robert Woody’s body wire recording that was done by Sunny Dykes’s apparently Jason Armstrong had told Kevin Pickett he has seen the site as we it’s where he goes hunting.
Jon Evers had no idea a photo of David McMillan that was taken by the game cam is at this time. He stated he does not have it and he reviewed all the CDs with pictures on them and McMillan was not on any of those pictures. Most of the photos on the CDs start at number one on the picture count and go up to large numbers depending on. Many pictures are on the CD. But there is one set of pictures with there is a gap with three pictures missing, and that unknown what those pictures were.
Evers testified David McMillan picture on the game cam is where he had walked up to it almost directly to the camera to have his picture taken, and was wearing hunting clothes, but noticed no weapon, but his face appeared to be painted like a hunter. He did not recall seeing any other people or vehicles in the picture but he did say there will he thought there were some trees in the background.
Derek Perry had talked about deleting the photos on the first CD that he had retrieved but he did not ask Perry specifically in regard to McMillan’s deleted photo. He said Derek Perry had deleted those pictures on his first trip to the mountains as he told them there was no pictures of value only wildlife and scenery. And he did not know why the CDs and evidence ended up at Perry’s house.
Evers said he never actually talked to Perry about how the evidence ended up at his house it was unknown which CD David McMillan was on and he was not sure about when the pictures were taken.
He was also asked if he was aware that the remains had been found so close to where Bobby Ticknor had a marijuana grow, and Bobby Ticknor’s associate at a campground even closer to where the body was discovered. At this time Robert Forkner entered into evidence previous testimony by Jon Evers in the preliminary hearing.
Mme. DA began cross examination again talking about Derek Perry telling them the original photos were just trees and scenery and again Jon Evers stated that he told them not to delete the pictures regardless. David McMillan was investigated after being to the site and directed there by the hunter Gary Crosby. In addition, Evers was asked if McMillan had a son with him he did not recall. The DA then started going through the timeline of when the game cams were put up in the mountains which was in September to October 2013.
In addition, she stated the Kory Kauffman’s body recovery was not released to the public until August 2013. Evers stated that Perry was the only one that had burned CDs from the game cams and he did not know what it happened to any other pictures, David McMillan picture on the game cam was documented in a report, and that report has been discovered to defense. He stated the purpose of putting up the game cams was in investigative technique to coincide with wiretap that they had working at the time. In addition, the CD’s were read only and files could not be deleted off the CD’s.
He stated that persons of interest with the Atwahl brothers and Frank Carson at that time.
It’s he stated that David McMillan had walked up to the camera and was smiling, but did not recall if it was day or night. He was also asked if he had interviewed Bobby Ticknor and Jason Armstrong and David McMillan and he said he had and they were all cooperative, and they all gave consistent information. No further questions asked at this time.
Robert Forkner again asked him about a July 1, 2015 report saying he had received sevenths CDs to review, and the report was requested by the judge in the preliminary hearing and had not been done initially. He stated press releases about the body and detailed information of location of the body only said Stanislaus National Forest. In all the CDs have a numerical series.
They ran down a listing of the pictures on the CDs and one particular CD I believe it was the last started with the number 538 which was missing, then went to 539 which was missing, and then went to 540 which was missing, then the pictures went from 541-865 all containing pictures. So, there was three images that were not transferred or disappeared. No further questions asked by Robert Forkner at this point.
Peter Rodriguez inquired if he tried to recover the images that were on that disc Evers said he did not did not recall why he had made an effort. No further questions asked.
We went to break and when we came back the district attorney called Robert Van – treat, back on the 1385 motion.
This gentleman is a senior software developer for the Sheriff’s office and manages its CJIS computer system. He stated that he had reviewed the system, as requested prior to coming to court today. And when he was asked if the police departments in the area have access to the jail screens he said yes. The judge at this time stepped in told the DA she needed to focus on the visitor’s log as that is what the complaint is about and the DA wanted to argue that she needed to put more information out and the judge told her no it’s about the visitor’s log anything else is ill relevant. The witness said the public defender’s office as far as he knew is always had access to the visitor’s log. He was asked if the Superior Court has access he said yes. This probation has access he was unknown about probation, and he and then he was asked about outside agencies and again he said unknown.
Robert Forkner asked Mr. Van -Treat if he was present in court when the public defender was testifying, and he said yes, he was. He stated that he was not aware if clerks in the courtroom have access to the visitor’s logs.
At this time, the judge admonished Marlisa Ferreira were being on her phone at the counsel table while court is in session, and Mme. DA stated judge I have to look at it, I’m looking at the list of people that have access to this system, then said “do you want to see.” In a very sarcastic manner, and the judge took her to task again advising her to change her tone of voice with her. Judge Zuniga was not happy.
The witness stated that the Superior Court employees do not have the same level of access as to the District Attorney’s Office, and he did not know who else had access to jail visit logs or who in the Superior Court has access, he would have to do a review to for find out.
Attorney Hans asked the witness if the system was designed initially at the case management system, and the witness said in part it is and again he repeated the public defender does have access and has had for some time.
Alonso Gradford then started asking the witness if he did a search today of Superior Court access. At this point, again Mme. DA interfered and began talking to the judge about an unrelated issue in the judge very smartly told her to let Mr. Gradford finish his question. Apparently, there was a list of 178 people in the court system that have access.
Mme. DA then gave the witness the list of those users in the Superior Court and he was not sure if all are able to access jail screens it depends on the role that has assigned them in the system, basically means the level of access they have.
Robert Forkner asked the witness if he looked at each and every individual that has access, and he stated he had spot checked seven or eight, but was not totally sure about the total levels of access. Apparently, some of the people on the list are former employees or retired employees in such.
Peter Rodriguez then inquired if he confirmed the access level of anybody on the list he said no not really, I just did a surface check.
At this time Kirk Bunche took the stand.
Mme. DA had Kurt Bunch look at the list of people in the Superior Court that was provided by the previous witness and asked if he recognized me the names. He said there was three judges and a couple of court clerks that he was familiar with. Robert Forkner objected at this point saying there is many people on the list that says their access is closed as they no longer work for the county or at least in that area.
Robert Forkner asked Kurt Bunch what closed means and he stated closed out active staff at status some may still be working there.
At this point they went back to the Trombetta motion discussing the missing evidence.
Kirk Bunch then took the stand again and discuss the David McMillan picture was taken during the day by the game cams. He said there was a young child that was also in the picture and David McMillan was wearing hunting attire. He stated Dale Lingerfelt had written a report on the interview with the image that was used during that interview. Kirk Bunch said he is not read Dale Lingerfelt report. Kirk Bunch stated he had asked Derek Perry to place the pictures in evidence is that’s where they belong. And that conversation occurred when the judge made a request for him to interview Perry and search his house.
He also stated that David McMillan and Jason Armstrong were all cooperative anytime they were talk to. He also confirmed that the tow company that had towed Ticknor’s truck and had documentation that was included in report that was written.
Robert Forkner started asking Kirk Bunch questions and Kurt Bunch stated that Derek Perry had speculated about photographs of the game cams and he was asked if Perry had actually shown Kurt Bunch the game cams at Ceres Police Department like he testified, and Kurt Bunch said that was not true. Forkner asked team about Perry’s testimony that Kurt Bunch was the only one who had access to the cams he again said that was not true.
Bunch stated that Jason Armstrong had refused to take a polygraph when asked by Mike Brody. In addition Kurt Bunch stated that he was aware that Jason Armstrong had said many derogatory things about Korey Kauffman, and Korey had deserved what he got. Kirk Bunch stated that he had never gone to Ceres PD to view the game cams, and they did not know if there was a hard copy of the picture of David McMillan that was used in the investigation and interviews. He stated that he never used a hard copy of a picture of David McMillan himself and saw the photo one time only.
Attorney Hans then started asking questions and Bunch said that he saw the photo of David McMillan in the fall of 2013 and did not believe there had been any interviews of David McMillan prior to the photo. He stated he knew David McMillan from an interview with Jason Armstrong where McMillan’s name had come up. He said he did identified David McMillan through Gary Crosby and Jason Armstrong through interviews about who had been up to the site. He stated no one has ever pulled up a picture of David McMillan to his knowledge. Jason Armstrong told Kirk Bunch David McMillan was looking at the camera that was attached to a tree up near the site when the picture was taken. No one had confirmed a known picture of McMillan to confirm the identification on the picture.
That was the end of a very interesting day to be continued tomorrow 1:30 PM and hopefully finish these motions.
Also, some scheduling changes they were going to finish the preliminary hearing on Edward Quintanar tomorrow morning that has now been pushed back to the same date is final arguments for the CHP officers preliminary hearing on October 18.
In addition, Judge Moody is going to be in department #2 at 11 AM next Monday, September 25, 2017. That’s regarding the 995 motion that is still pending, as seen in the minute order sent by Judge Moody that I posted on Dawgs Blog yesterday. So, it must be to see if the District Attorney’s Office has complied with that minute order.
Back in court tomorrow at 1:30 PM