JUST A FEW THOUGHTS FROM DAWGS BLOG…….
By Marty Carlson
As everyone knows this week judge Zuniga finally submitted her ruling on the sanctions that she had promised on December 22, 2016.
The ruling was filed on February 1, 2018 after motions filed by defense attorneys to get these sanctions. Because it did appear Judge Zuniga was not going to respond to her own promise to do so.
As you read in the ruling on page 1 Marlisa Ferreira, informed the court, after all parties had rested in the preliminary hearing, that they had another 82 items of discovery to turnover to defense. She did note however that she believes some of the information contained in the recordings had already been disclosed. One such recording was a video from March 3, 2014 of an interview with Robert Woody. Defendants were in a time not waived status and were in custody. The information was turned over to defense and additional time was granted to review the information.
I was present during that day in court and there was total outrage by all parties involved, including the judge, who at one point it’s stopped off the bench into her chambers. She then returned about 10 minutes later. The court indicated that she intended to sanction the District Attorney’s Office and was releasing all in custody defendants at that time. The sanctions would take place at a later date as a court needed time determine the applicable statute. The court also noted in a ruling that she was an extremely emotional state as to what had occurred, my personal observation she was furious.
As I’ve noted throughout that preliminary hearing there had been an ongoing problem with discovery being turned over to defense. This was the final straw after the judge had been bending over backwards to accommodate the District Attorney’s Office.
On numerous occasions my recollection is defense attorneys were constantly requesting any further discovery, recordings either audio or video, written or digital, and the consistent response coming from the district attorney Marlisa Ferreira was that “I believe I have complied with my Brady obligations” that term was used extensively when these issues were brought up. It is an obvious attempt to provide a legal response instead of an answer.
This new discovery that was turned over on December 22, 2016 put a new light on many aspects of this case. Jesse Garcia, the defense counsel for Georgia DeFilippo, informed the court he intended to recall Patrick Hampton and investigator Steve Jacobson. Again, this caused a lot of disharmony in the room even between some defense attorneys. Maybe that was the plan all along I don’t know. Jesse Garcia stated that this sheds new light on some very precise information that went to Robert Woody’s credibility.
Martha Carlton Magana also stated she wanted to recall investigator Kirk Bunch.
It all came down to March 7, 2017 where the defense again rested. And those witnesses were never actually called.
In June 2017 defendants Carson and Atwal filed a motion for sanctions, possibly because it didn’t appear the judge is going to follow through on her promise.
Frank Carson cited authorities under the Code of Civil Procedure’s 128 (a)(3),177.1 CCP,177.5 CCP, and 1054pc
(a)Every court shall have the power to do all of the following:
(3)To provide for the orderly conduct of proceedings before it, or its officers.
Every judicial officer shall have power:
1.To preserve and enforce order in his immediate presence, and in proceedings before him, when he is engaged in the performance of official duty;
A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term “person” includes a witness, a party, a party’s attorney, or both.
Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.
This chapter shall be interpreted to give effect to all of the following purposes:
(a)To promote the ascertainment of truth in trials by requiring timely pretrial discovery.
(b)To save court time by requiring that discovery be conducted informally between and among the parties before judicial enforcement is requested.
(c)To save court time in trial and avoid the necessity for frequent interruptions and postponements.
(d)To protect victims and witnesses from danger, harassment, and undue delay of the proceedings.
(e)To provide that no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.
But the judge did note for some reason that Penal Code section 1054 does not apply to a preliminary hearing. Discovery at up luminary hearing is guided by Brady and related issues.
Frank Carson claimed though he was allowed to reopen the preliminary hearing he was never the last prejudiced. The judge then said something interesting, in a ruling, that Frank Carson use “boiler plate” statements in the brief.
In response to that motion Mme. DA Marlisa Ferreira acknowledged the audio recordings had not been turned over to the defense prior to the conclusion of the preliminary hearing, she also went on to say this a motion was not willful but merely inadvertent on her office as part. She also noted that Robert Woody’s statement in that recording had been discovered by a report written by Detective Evers on the same day. That report had been discovered in September 2015.
Daljit Atwal’s motion, did not cite any authorities asked the court to place a Dist. Atty.’s discovery department under the supervision of the Atty. Gen.’s office or with special counsel to assist them in rebuilding their infrastructure.
They also noted that Marlisa Ferreira failed to acknowledge or be aware of that Patrick Hampton had previously been a potential witness in a homicide case.
In the oral arguments that were made in November 2017 Attorney Hans change somewhat the basis of his motion, and the people objected, and the judge advised to file a supplemental brief if he wanted to go in a different direction. In subsequent papers defense counsel argued that the prosecution withheld information from a criminalist until after the holding order was argued. His client was prejudiced and that his client was deprived of Brady information that could have impeached Robert Woody and establish a third-party culpability. This was regarding the two bullet holes in the jacket. In addition, there were cuts in the jacket being made with a knife, which I believe was actually the T-shirt and not the jacket. This leads to speculation, knowing Mike Cooley’s propensity for use of knives, that he could be the actual killer. In addition, more than one bullet hole in the jacket was not consistent with Robert Woody’s testimony that he only heard one gunshot.
Defense also argued that Marlisa Ferreira had withheld the examiners findings from the defense counsel even though it was noted she was present during the examination and/or interview after the examination. It also noted that during Marlisa Ferreira’s final argument she cited Robert Woody heard multiple gunshots. That is not the testimony that I heard from Robert Woody. He said that he heard one gunshot and did not see who did it because he had his back turned.
Defense attorneys were requesting an opportunity recall Robert Woody and to call the criminalist.
The judge’s response to defendant Atwals motion stated that she they were asking for sanctions that were not contemplated in the original notice by the court. In addition, the court stated in her ruling on page 6 line19 there was evidence in the record Korey Kauffman was shot more than once. That information was based on the 115 testimony of Robert Woody son as well as Detective Cory Brown’s testimony that there were defects in the clothing due to bullet holes.
So basically, the judge was saying the issue before her is whether the District Attorney’s Office had violated a lawful court order with respect to discovery. As noted many times by defense attorneys prior to judge Zuniga as involvement in this case judge minute had made orders for all discovery to be turned over as soon it was available.
Judge Zuniga stated that setting aside her anger and frustration with the manner in which the District Attorney’s Office handled discovery throughout the preliminary hearing, the court finds the imposition of sanctions is not legally tenable.
Judge Zuniga noted the record reflects the existence of Robert Woody’s March 3, 2014 audio recording was disclosed in a timely manner through Detective Evers report. More importantly his report specifically mentions there was an audio recording. She also noted all this drama could have been avoided if the District Attorney’s Office had done their job and turned over the recordings initially. She did say that the District Attorney’s Office discharge their Brady obligations and complied with the court orders to provide discovery.
She noted none of the defendants were prejudiced by their failure to have physical possession of the recording. The in-custody status of the defendants was changed to release on their own recognizance, and none were prevented from putting on additional evidence.
Then the court went on to cover herself some more, by saying that all the defense counsel are seasoned criminal defense attorneys. Barring evidence to the contrary the court assumes the failure of an attorney to recall the witness or put on additional evidence was a tactical decision. So, she was blaming the defense for not putting on more evidence.
Judge Zuniga also noted that defendant Carson’s assertion the discovery problems during the preliminary hearing resulted in the hearing being interrupted for months is not supported. Note: this was an 18-month preliminary hearing. The judge Zuniga ruled that the discovery issues did not interrupt a proceeding for months as stated by Frank Carson.
She noted that defendant Daljit Atwal’s motion focused on discovery violations that occurred prior to and after December 22, 2016. Which of course Marlisa Ferreira objected to as the motion was in regard what occurred on just that one day. And the court agreed with that argument.
But yet the judge felt the need to respond to defendant Atwals motion even though she said is not applicable. She stated she is not convinced that Marlisa Ferreira had access to the examiners findings regarding the cuts on the clothing prior to the holding order.
She also noted there was evidence in the record there was more than one gunshot. That’s not the testimony I heard sitting in the courtroom. All of Robert Woody’s prior inconsistent statements were before the court when the court ruled on his credibility and it was before the court the possibility of Michael Cooley had killed Korey Kauffman was considered by the court.
Accordingly, she stated defendant Atwals claim that the prosecution withheld evidence resulting in prejudiced or not supported by the record.
On April 10, 2017 Judge Zuniga made her ruling on the hold orders for all the defendants.
In referencing Frank Carson Judge Zuniga noted and I quote “Frank Carson put all this in motion”
on December 22, 2016, Judge Zuniga noted, talking to the DA that she wanted to save the integrity of the process, and that is why she released the defendants. In subsequent hearings during the summer of 2017, the judge made a comment to the district attorney that “she saved the DAs case for her”. I noted at the time and I still to this state note that is not appropriate for a judge to save the case for anybody especially the District Attorney’s Office. The judge’s role is to be an unbiased finder of facts or the purpose of justice, not to prolong a hearing or save the case.
Also noted in recent 1101 motions judge Zuniga noted, regarding Frank Carson’s prior bad acts, that he instigated most of these instances that have occurred with Cooley Jacobson and other people. That in many other instances of bias tendencies have been shown by this judge regarding Frank Carson and the defendants.
It may be as simple as she is a former prosecutor and believes that there nothing but the good guys or she has other interests involved here especially after getting so emotional on the bench on December 2016 she had to walk out in the middle of court to compose herself.
Is this how we want our judges running our courtrooms?
PODCAST FRIDAY 2-9-2018 AT 6:00 PM TO TALK ABOUT THIS STUFF. LET ME KNOW WHAT YOU THINK.