COMMENTARY ON JUDGE ZUNIGAS RULING
IN THE McFARLANE/QUINTINAR PRELIM
by Marty Carlson
I took it upon myself to purchase the transcript for Tuesday, October 24, 2017 in department #4 when judge Zuniga ruled in the McFarlane/Quintanar preliminary hearing. I was very disappointed I was not able to attend that day that we got a good indication what happened reading Tom’s report plus now reading the transcript.
Talking to Tom and other people that were present in court, I was told that it appeared the judge seemed a little disheveled at times during her ruling and the transcript tends to bear that out.
She starts out by reading some case law in regard to its applications and some of the citations giving by the attorneys. She stated that she was reading out of Justice Simons book on preliminary hearings and was referring to she did the same thing when she ruled and the Frank Carson et al. preliminary hearing previously.
Specifically, she cited section 872 of the Penal Code and states, in substance, that if it appears from the preliminary examination of public offense has been committed and there is sufficient cause to believe the defendant guilty thereof, the magistrate must make in order holding him to answer. She also gave some citations on several cases, but for some reason felt the need to mention that was before the law had been changed to a gender-neutral wording.
She also cited some other cases referencing reasonable and probable cause in addition there was ironically a reference to the Cooley case which is unrelated to Michael Cooley in this case. She spent a lot of time prefacing her ruling and trying to show justifications. Also regarding a magistrates role in the proceedings.
Again, note I was not there, but talking to several people that were and looking at the transcript of the hearing it appeared the judge did seem a little bit the shelved and unorganized and was being very selective about her words. The hearing took about 1 hour and 27 minutes, and reading the transcript there was approximately 30 pauses where the judge either misspoke or was at a total loss for words, and appeared to be shuffling papers are trying to locate notes or information to refer to. This was also confirmed by people in the courtroom observing. She also had several instances where she misspoke and advised the court reporter to strike that part of the record.
Looking at the transcript it also appears that she had referred to some information brought out in the prior Frank Carson et al. preliminary hearing. Specifically, in the area of the threats that were allegedly made to Mike Cooley by Robert Woody and Bobby Atwahl. That was part of the reference that she used in holding Scott McFarlane. If she did not intend to do that that still the way the record reads, and it appears that she used information not brought out in this particular preliminary hearing.
It appears that she also was not clear about the relationship between Scott McFarlane and Frank Carson. She also seemed to give a lot of credibility to Detective Jon Evers who spent a large portion of his testimony on the stand stated he did not recall, and still had some trouble referring to his reports and notes. It also appears that she feels that Scott McFarlane was attempting to disrupt the investigation when he said he saw the alleged victim riding his bike the day after their timeline theory. Also note there was another witness that said the same thing but after investigators interviewed the gentleman he changes story is so many have in this entire case.
Scott McFarlane was a police officer who had initially made contact with Deputy Barringer of the Sheriff’s Department regarding this matter, but the judge did not seem to understand that he was always cooperative he’s a one that initiated contact with Deputy Barringer was part of the task force that was put together in this case. Apparently, the judge felt no significance that the investigators did not go back and talk to Scott McFarlane for two years after he had made that initial contact.
Apparently, the judge felt no significance that investigator Jon Evers felt that someone’s memory should never fail, as he put it, all of their lives in this type of situation. He was referring to Scott McFarlane who had not been interviewed for two years after he initiated contact but could not remember some details. Jon Evers stated on the stand doesn’t somebody’s memory should last a lifetime, but he could not remember interviews in a report that he had been reviewing for two days prior to him testifying.
The judge also took exception to some the arguments made by Marlisa Ferreira regarding conspiracy and aiding and abetting. She was very critical of the way Mme. DA made some arguments and the lack of facts or knowledge of the law regarding those type of crimes. And the lack of relevance and some of the evidence that she tried to enter, due to it being more character assassination of the defendants than actual evidence. But in my opinion, it appears it did have an effect the judge.
Some of the wiretaps she referred to, she did not like the way the officers talked. Eduardo Quintanar terminology of using the word “dude” and “bro” and it appeared that she did not think that CHP officers should talk in that manner. In addition, there was some wiretaps played in court where some disparaging comments towards women were used and she did not allow that evidence to be admitted as is not relevant, but it did appear that she had been offended and possibly developed a bias because of those terms used.
In the transcript she noted that just because someone refused to talk to the police does not make them an accessory, nor does it make them an individual responsible of obstruction of justice. And Scott McFarlane’s case he was a police officer that did what he is supposed to do, he gets paid to give information or take action concerning criminal activity, and that’s just what he did by contacting Deputy Barringer right from the start. In addition, he did not refuse any interviews and was always cooperative, and even the investigators stated on the stand that he was the most cooperative of the group. He was a police officer that’s what they’re supposed to do.
So, what have we learned here?
- Scott McFarlane cooperated with the investigation and has been held to answer,
- Eduardo Quintanar refused to cooperate and was not held to answer.
- As I have said many times it is not in your best interest to talk to investigators, but to an attorney first. This rule absolutely applies to police officers too, as they do not give up their right to self-incrimination or anything else just because they are a police officer.
- Also noted prior to Jon Evers testimony in the Frank Carson et al. preliminary hearing, he refused to testify about his actions during the investigation until he could talk to the union representatives and their attorneys. Keep that in mind when an officer says: “if you haven’t done anything wrong you don’t need an attorney.”
- The CHP command structure appears to be in a little bit of a disarray, that was also noted by Judge Zuniga throughout the hearing. Lieut. Domby could not testify regarding personnel matters concerning these officers. Even though I do not know for a fact, indications are, then Sgt. Domby had held those discussions with Kirk Bunch. For some reason Kurt Bunch’s conversations with command initiated an internal affairs investigation.
- Even though the district attorney’s office appears to be in a complete disarray at this time, especially in regard to discovery, the judge was very critical and even mentioned current district attorney Birgit Fladager by name when these issues came up before and she released all the defendants on their own recognizance is basis. Also at that time the judge stated that she had done that to save the district attorney case. More proof that judge Zuniga is acting in the best interest of the prosecution and not justice, after all she is a former prosecutor.
- Note Birgit Fladager had never made an appearance in the courtroom of any their preliminary hearings in this case, it appears she’s taking a hands-off position, even when the defendants got released on a capital case charge in December 2016. Note also Judge Zuniga called the district attorney out on that fact, but still did not induce Birgit Fladager to appear.
- Also note the inability of courtrooms to start on time, delaying the process for defendants to get resolution in their cases. This delays them in moving on with their lives in knowing which way they can go forward from there. An out of county judge who continually states she wants to get the case is resolved and move them along, they cannot get the court on time even when she is starting at later times. Defendants have a right to justice it appears that is been taken as a secondary consideration.
Initially preliminary hearings were started to help weed out some cases that do not belong in the justice system. If you take a preliminary hearing for a simple DUI, you’re talking about less than an hour for prelim. You’re talking about a homicide case, like O.J. Simpson, his preliminary hearing took about 10 court days. For a preliminary hearing to last 18 months, which is as far as I can tell a record across the country, is unheard of and totally irresponsible of the justice system to delay it like that. In my opinion there are no excuses for that happening and there are many reasons for it happening.
Understand I am not anti-law enforcement by any means, but I believe that the law enforcement community, based on the authorities and powers given to them should be held to a higher standard. In my personal opinion they are not living up to that standard, based on what I’ve seen in the activities and investigators in this case. And sadly, their testimonies on the stand or even worse than the investigations themselves.