FRANK CARSON ET AL 8-22-2018 (TOM)

FRANK CARSON ET AL CASE

FOR ALL THE MARBLES

MORNING SESSION

08/22/2018

BY WILLIAM THOMAS JENSEN (TOM)

Week 18, Day 64 (Cook Caught In Mistakes)

We start out at 9:21AM this morning with the continuing cross examination of Jim Cook by defense attorney Hans Hjertonsson. Hans starts asking Jim Cook about a call on 02/06/2011. He was asking about a very short call that Jim Cook had said lasted only 5 seconds. Hans starts talking about seizure time, which is the amount of time it takes to actually make a connection with a cell phone. It is determined that the seizure time is 27 seconds. Hans adds five seconds to this amount of time which equals 32 seconds. Cook had to admit that it took 32 seconds for the call to vacillate between the South-East sector and the South-West sector on the South-East Turlock cell phone tower site. I think he was trying to show that the phone could have been moving, instead of staying at the same location. Jim Cook had testified that the cell phone of Christina DeFelippo had vacillated between those same two sectors on the South-East Turlock cell phone tower. Hans gets Cook to admit that Baljit Athwal’s cell phone during the time period of 03/30/2012 and 03/31/2012 did not ever connect connect to the South-East Turlock cell phone tower on the South-West sector.

Hans Hjertonsson now starts asking Jim Cook about his testimony that the cell phone devices associated with Baljit Athwal, Daljit Atwal, Walter Wells, and Frank Carson had gone dark during certain periods of time. Hans reminds Cook that he had testified that “Dark” meant that the device was either turned off, or the device did not connect to the network. Hans gets Jim Cook to admit that he made a mistake when Marlisa Ferreira had asked him a question concerning a call made on 04/09/2012. Cook had testified that the cell phone was dark for 12 ½ hours when the cell phone data records clearly showed that the cell phone was only dark for 1 ½ hours. Hans catches Jim Cook in another “Mistake” when he testified that on 04/13/12 the cell phone associated with Daljit Atwal was dark when a text message was actually made from that device. It is clear that Hans Hjertonsson is trying to show the jury that Jim Cook’s testimony can’t be trusted.

Hans Hjertonsson now asks Jim Cook about a trial he did in 2011. I believe Hans called it the Dunkirk trial. In that trial, Jim Cook said that the overlap was 5-10 degrees rather than the 10-15 degrees that he now claims in his testimony. Hans asks Jim Cook when the overlap degrees changed. Jim Cook gets testy, and will not answer the question, even after being able to read his testimony. Judge Zuniga presses Jim Cook for an answer to the question. Jim Cook tells the judge he can’t answer the question as posed. Everybody in the courtroom is getting upset with Jim Cook at this point. Hans asks Jim Cook what other information he needs in order to answer the question. Marlisa Ferreira is making frequent “Speaking Objections” at this time. Judge Zuniga: “Stop making speaking objections.” She starts making more speaking objections. Judge Zuniga: “Excuse Me.” The judge sends the jury out of the courtroom. Judge Zuniga tells Jim Cook that he needs to give a time frame when the degrees of overlap changed. Jim Cook: “I don’t have a specific date.” Judge Zuniga: “There has to be a time frame when it changed.” Jim Cook: “It changed sometime between 2011 and 2012.”

It is now 9:43AM, and the jury is brought back into the courtroom. As the jury walks back in, it is obvious to me that Marlisa Ferreira is once again having trouble smiling. Hans Hjertonsson immediately asks Jim Cook when the degrees of overlap changed between 2011 and 2018. Jim Cook states that the overlap changed between 2011 and 2012. It would have been so much easier if he had just said this in the first place. Hans asks Jim Cook if prior to 2011 the overlap was always between 5 degrees and 10 degrees. Jim Cook states that he can’t answer the question as posed. He is asked this question in several different ways, and each time refuses to answer the question as posed. Hans Hjertonsson now shows Jim Cook how he had previously testified that between 1995 and 2006 the overlap was between 10-15 degrees. Hans shows Jim Cook the transcripts concerning this. Jim Cook had to admit on the stand that he had testified to that earlier in his testimony. Once again, Jim Cook’s testimony is impeached in front of the jury. We now have another side bar. After the side bar, Hans once again presses Jim Cook on the subject. Hans shows Jim Cook how he had testified on 05/11/2018 that between 1995-2006 the degrees of overlap were 10-15 degrees. He has to admit on the stand that he had said that. Jim Cook makes some sort of a comment that the overlap can vary between the carriers. Hans asks Jim Cook what carriers he is speaking about. Jim Cook lists Metro PCS, Voice Stream, Mountain Cellular, and Golden State Cellular. Hans: “Did AT&T change between 2011-2012?” Jim Cook: “I can’t answer that question as posed.” After being pressed by Hans on this question, Jim Cook finally says: “No Sir.” Hans Hjertonsson: “So AT&T has always been 10-15 degrees?” Jim Cook: “I can’t answer that question as posed.” Jim Cook says something about the overlap varying based on the cell site. Hans Hjertonsson pulls up a slide where Jim Cook listed the overlap as being 10-15 degrees. Hans has no further questions.

Jai Gohel takes over on cross examination of Jim Cook. He starts asking Jim Cook questions concerning how Cook had testified that the cell phone devices associated with Georgia DeFelippo and Christina DeFelippo were vacillating between cell phone towers and sectors. Jai points out to Jim Cook that he does not know if the devices were staying at the same location at Fleetwood Drive in Modesto or moving down McHenry Ave. Cook has to admit that the devices could have been moving. Jai Gohel starts talking about 58 different days where Jim Cook had testified that the devices were vacillating between cell phone towers and sectors. Jai Gohel shows Jim Cook that there was basically no vacillation between the hours of 12:00AM and 8:00AM during any of these 58 days. Jai was trying to show that this was the time period where Georgia DeFelippo and Christina DeFelippo would have been home in bed, and not driving around.

Jai Gohel brings up a slide that shows an aerial view of the area near the Carson property in Turlock. Jai points out several different businesses in the area of the Carson property that could have been frequented by Georgia DeFelippo and Christina DeFelippo. Jai Points out the Carson property, and how Cook has testified that it is within the overlap area, and points out the Cooley house where Cook has testified that it is outside of the overlap area. We now take our morning break.

After the break, Jai Gohel brings up the Google Map once again that shows the aerial view of the area near the Carson property. He once again speaks about how Cook had testified that the Carson property is within the overlap, and the Cooley house is outside of the overlap. Jai Gohel states that there must be a line somewhere between the two properties where the overlap changes. He asks Jim Cook where the overlap changes between the two properties. Jim Cook refused to answer the question as posed. He is really losing the jury every time he gives this answer. Jai Gohel gives a hypothetical where Christina DeFelippo is home, then goes to the nearby Pizza Hut, and stays for 15 minutes. Jai Gohel asks Jim Cook if the cell phone connection would change from the South-East sector to the South-West sector, and then change back to the South-East sector. Jim Cook refuses to answer the question as posed. Jai Gohel is making a very powerful point. Jim Cook can’t tell if the devices are moving, or if they are vacillating in the same location.

Jai Gohel now goes through around eight different slides where cell phones associated with Daljit Atwal and Baljit Athwal did not connect to either the South-East or South-West sectors of the South-East Turlock cell phone tower. Jai Gohel then asks Jim Cook: “Therefore none of these show any vacillation?” Jim Cook: “Correct.”

Jai Gohel now asks Jim Cook about the Bradley Duenkerken case. He gets Jim Cook to admit that Mr. Duenkerken’s cell phone device was an AT&T device. Jai Gohel has Jim Cook review some transcripts from the case. Jai Gohel shows Jim Cook how he had testified in 05/13/2011 that the overlap was 5-10 degrees. Jai now reminds Jim Cook how he had just testified that the overlap changed to 10-15 degrees between 2011 and 2012. Jai Gohel: “When did it change?” We have another side bar. Jai Gohel asks Jim Cook to narrow down the time period when it changed. It is now time for our lunchtime break. I will be back tomorrow morning to report on what I see and hear. Sincerely; William Thomas Jensen (Tom)

California Senate sends landmark bail reform bill to Gov. Jerry Brown


Assemblyman Rob Bonta (D-Alameda), left, and Sen. Bob Hertzberg (D-Van Nuys)

celebrate after the bail overhaul was approved by the Assembly.

California lawmakers on Tuesday passed a landmark bill that would overhaul the state’s cash-bail system, replacing it with one that grants judges greater power to decide who should remain incarcerated ahead of trial.

The proposal moved out of the chamber with a 26-12 vote and now heads to Gov. Jerry Brown, who last year pledged to work with lawmakers and the state’s top Supreme Court justice to pass the legislation.

“Today, the Legislature took an important step forward in reducing the inequities that have long plagued California’s bail system,” Brown said in a statement Tuesday.

The two-year effort puts the state at the forefront of a national push to change the way courts impose monetary fines and payments on defendants as conditions of their release from jail. But the historic victory has been bittersweet for lawmakers, as opponents — including some of the bill’s most ardent former supporters — argued the final version of the legislation could lead to more people behind bars.

Senate Bill 10 would virtually eliminate the payment of money as a condition of release. Under last-minute changes, judges would have greater power to decide which people are a danger to the community and should be held without any possibility of release in a practice known as “preventive detention.”

On the Senate floor, Republicans argued the bill was rushed through the process after major last-minute changes unveiled last week.

Sen. Jim Nielsen (R-Gerber) contended it was passed “in the dark of night.” He said the provisions would automatically grant release to many people, and warned senators would be reading the sad stories of the people they harm.

Sen. Ted Gaines (R-El Dorado Hills) said the bill was likely to face successful constitutional challenges in court, and pointed to the financial burden faced by counties in New Jersey after bail reform efforts in that state.

“It is not a template California should follow,” he said.

But supporters argued the bill was the first step to overhaul a predatory system that hurts poor defendants and had taken into consideration input from law enforcement, as well as recommendations from a judicial task force assembled by state Supreme Court Chief Justice Tani Cantil-Sakauye.

Sen. Holly Mitchell (D-Los Angeles) pointed to provisions in the bill that would require courts to collect and report incarceration rates and undergo in 2023 an independent review of the legislation’s impact on the criminal justice system.

“The reality is…. we don’t thoroughly collect the data to really, unequivocally give us the answer to that question,” Mitchell said, commenting on whether the final version of the bill would lead to worse outcomes in marginalized communities.

Sen. Bob Hertzberg (D-Van Nuys) teared up as he thanked staffers and lawmakers who worked to help pass the bill, saying the Legislature would not come this close to addressing the issue again for a decade.

“The fundamental change is that we are treating people as people,” Hertzberg said.

California’s bail system has long been ripe for reform, both Democrats and Republicans agreed. Police officers and prosecutors point to dangerous or repeat offenders who pay their way out of jail time, bail agents to the high number of people who jump bail and criminal justice advocates to the hefty fees levied on families.

Under Senate Bill 10, co-authored by Hertzberg and Rob Bonta (D-Alameda), counties would have to establish their own pretrial services agencies, which would use “risk-assessment tools,” or analysis, to evaluate people arrested to determine whether, and under what conditions, they should be released.

Only people charged with certain low-level, nonviolent misdemeanors — a list of charges that can be further narrowed by county — would be eligible for automatic release within 12 hours of being booked into jail.

All others arrested would have to undergo the risk analysis, a system that would sort defendants based on criminal history and other criteria into low-, medium- or high-risk categories. Courts would be required to release low-level defendants without assigning bail, pending a hearing. Pretrial services offices would decide whether to hold or release medium-risk offenders. Judges would have control over all prisoners in the system.

Martin Hoshino, administrative director of the Judicial Council, said the organization looked forward to working with Brown and lawmakers on implementation, which tasks the judicial group with developing standards for counties on the best practices to follow on risk assessments.

Some organizations that have supported the legislation from the start applauded the bill’s passage.

“For decades, the money bail system has created a two-tiered system that prioritizes profit and penalizes poverty, and has been especially detrimental for communities of color,” California billionaire activist Tom Steyer, president of progressive advocacy organization NextGen America, said in a statement.

Laphonza Butler, president of the Service Employees International Union Local 2015, called the bill’s passage a turning point, saying it “would make California the first state in the nation to completely eliminate the use of money to determine detention.”

But other criminal justice reform groups, including the American Civil Liberties Union, have rescinded their support and actively worked to kill the legislation — landing on the same side as a bail industry that has worked to sink the bill from the beginning.

On the Senate floor, lawmakers warned the bill would decimate an industry of roughly 3,200 registered agents in California. Outside the Senate chamber, Sacramento bail agent Greg “Topo” Padilla, president of the Golden State Bail Agents Assn., said his organization was already looking into ways to block the legislation, either in court or through a voter referendum.

DAWG SAYS:

NOTICE THESE THINGS ARE GOING TO THE VOTERS LESS AND LESS ALL THE TIME.

DAWGS BLOG PODCAST TONIGHT 6:00 pm…….

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DAWGS BLOG PODCAST TRANSCRIBED 8-21-2018

Good Evening Everybody! This Marty from Dawg’s Blog. Tonight’s podcast on 8/21/2018 on the Frank Carson, et al trial. As a reminder this is week 18, since the jury has been selected and opening arguments. (There are different standards for actual trials, but we are going by from when the jury was selected and they started opening arguments). So, it is week 18, court day 63.

I apologize for the noon report. I broke out a brand new microphone, it obviously had a short in it. I think you could listen, but it was annoying and I have alternatives for tomorrow.

I also mentioned in the noontime report that I had some information on Scott McFarlane. They had court on Monday and it was supposed to be an arraignment. However, Marlissa Ferriera was not able to be there, she had a family emergency and so they were doing a continuance. Scott McFarlane wasn’t there, no family members were there, it was just attorneys. I didn’t go, I was going to and wish I had now. I talked to Larry Niemeyer, who is Scott McFarlane’s attorney. He said Judge Moody set a date for next month and that Judge Moody wants to take judicial notice that a homicide has occurred from reading a transcript from the Frank Carson Preliminary Hearing. Larry Niemeyer strenuously objected to that. First, Scott McFarlane was not part of that preliminary hearing. Second, if they are going to do that he should have been allowed to cross examine witnesses in that preliminary hearing. It is not appropriate and doesn’t sound right. They never really established a cause of death at any time to my knowledge, not in the preliminary hearing and they haven’t in the trial as of yet either. Judge Moody wants to take judicial notice, so they don’t have to prove a homicide. He is trying to save time. A judge can take judicial notice, say the facts are obvious to him that a homicide occurred. Larry Niemeyer is saying no, there has not necessarily been a homicide.

That is bridge that will have to be crossed later on. It kind of goes with the reputation Judge Moody has. If you Google Judge Moody out of Monterey you will see this kind of stuff.

Judge Moody feels the Preliminary Hearing will only take 1.5 days. The DA present (Not Marlissa Ferreira of course) says it will be a 4 week Preliminary Hearing. Remember, this is just an obstruction charge on Scott McFarlane. But they plan to take 4 weeks on this. I don’t know, you got me.

So, that is the information I have on Scott McFarlane. I plan to cover the McFarlane Prelim one way or another.

1:30 the attorneys are back, the jury is supposed to be back at 1:45pm, because one juror has a phone interview for a job promotion. The Judge wanted attorneys back at 1:30 because that they ended the morning with objections. Marlissa Ferriera doesn’t show up until 1:45pm, thinking that was when court was supposed to start, forgetting about the objections she made just before lunch.

Percy Martinez continued arguing that Jim Cook examined CDR’s of the Cricket phone (Korey Kauffman’s phone) on 3/31/2012, and now the DA is objecting to them going into some of these things. He’s stating that the DA opened up this area on direct, that Jim Cook reviewed the records and had a piece of evidence (C-N was the evidence number) and talking about some of the “dark periods” of many of the devices. Percy Martinez is saying in the preliminary hearing and in the past Jim Cook, even wrote on the paperwork “the device was turned off” and has said the device “was turned off”. But then Jim Cook testified he didn’t have room on the whole side of the page, that he blackened ito ut, but wrote the device was turned off, that he didn’t have room to write “or not connected to the network”

Then Percy Martinez went into the Korey Kauffman overlays of calls from Eula Keys and the DA has referred to the phone being “dark”. Before they used the term “turned off”. Percy Martinez says they are going over the same information that they want to go into, that the DA brought in in her redirect.

Hans Hjertonsson asking about texts on 8/16/12, said the DA did talk about that particular exhibit and records (he’s talking about the transcript from the prelim). Judge Zunia was showing Percy Martinez the transcript and where they were talking about whether the devices were dark or turned off. Percy Martinez says the DA did elicit testimony about whether they were dark or off. He says ” that’s what it says”. On 3/31/12 there are 3 calls from Eula Keys to Korey Kauffman’s phone and Jim Cook decides that the device is off. Now he’s saying the device is dark. Judge Zuniga says it sounded like Percy Martinez was asking about Eula Keys records, but they are actually talking about the Korey Kauffman device. The DA says they didn’t go into Eula Keys calls (Actually they did). Judge Zuniga says questions by Percy Martinez was in regards to Korey Kauffman being called by Eula Keys. Judge Zuniga says it will be allowed.

Jai Gohel says the DA opened the door with her comment that 6 attorneys cross-examined Jim Cook in the preliminary hearing. He says that needs to be clarified, because it sounds like 3 defendants had 6 attorneys and they need to give clarity to the Jury. JZ says again you are trying to talk about some the defendants that were discharged in the preliminary hearing and that won’t be allowed. Preliminary Hearing ruling stands – cannot refer to what they claimed in the preliminary hearing.

2:03pm Jury called up. While waiting for the Jury, Judge Zuniga asked Marlissa Ferreria what the status of the Carmen Sabatino situation is. Marlissa Ferreira said they have a possible solution and it will be worked out soon. It is scheduled to be heard this Friday. So it may be resolved. This intimate relationship that Gene Forte and Carmen Sabatino have with the DA’s office now, it doesn’t surprise me there is s solution.

Percy Martinez starting cross examining Jim Cook and they were talking about when the device was off. Now he’s saying there is a possible alternative as the device is not connecting to the network. Jim Cook says at the time that C-N was prepared the calls to Korey Kauffman’s phone was from Eula Keys’s device (obviously, no one ran Eula Key’s device back then). They do not have call records of Eula Keys or Michael Cooley or any device related to these people. He was asked why he didn’t put up those calls. Jim Cook said it was not connected to the network, so they weren’t relevant to him, he started reading the transcript that PM provided him (It doesn’t seem like JC has a good memory, he has to look many things up. He writes things down and then looks them up) Jim Cook says in the Prelim he was looking at the totality and that the device was probably turned off. There were other calls associated with Eula Keys on 3/31/12, the next day there were some calls and each day up until 4/2/12 there were 8 calls associated with Eula Keys. He says no calls went through. The phone wasn’t answered, but the calls did go through when Eula Keys called and only Eula Keys. So at that time he decided the device had been turned off. On 4/2/12, from 1:56pm – 7:36pm Korey Kauffman’s phone had no connection and the device was off. Jim Cook didn’t have good recall on these, so PM went one-by-one on the calls. There were 17 -18 calls and during that time, 3/31/12 – 4/6/12, all those calls it was only one 5 times and all when Eula Keys called. The device was turned on, Eula Keys called, it connected, was not answered, then the device turned off. There were other calls around that time period that were not connected to the phone at all, so it was either off or not connected to the network. Again Percy Martinez was trying to mail Jim Cook down asking would it only connect when Eula Keys called? Jim Cook had to review records and then said yes. Asked why at the Prelim he determined the phone was purposely turned off.

The DA objected and was sustained. Hans Hjertonsson objected: the DA is objecting but she brought this into play with her direct examination of Jim Cook. The Judge will still not let them go into the areas.

Percy Martinez talked about 8 more events with Eula Keys, the device was turned off/on. Jim Cook was asked what he means by vicinity? Can he get an exact location? Jim Cook: vicinity means within the coverage of the cell site and sector. He cannot pinpoint exact location and needs more information. (Again historical records do not provide exact GPS location, you can get that information in real time, however.) PM had no more questions at that time.

Hans Hjertonsson started questioning Jim Cook in regards to Korey Kauffman’s device from 3/31/12 – 4/16/12, his testimony in the Prelim and now is different and has changed if the device is on/off. Jim Cook said he did that with the totality of the record and the times of the activity. In 2016 KK was turned off? Jim Cook said yes? Hans Hjertonsson: Only certain numbers connected? JC: Not enough information to say it was off, despite what he said in Prelim. Hans Hjertonsson: was asked about what he said in prelim that somebody purposely turned Korey Kauffman’s device off. Massive objections. The Jury was sent out at 2:46pm (Here we go again….)

Judge Zuniga says she looked at the Preliminary Hearing and there was an objection made, which she sustained and now says was wrong. It was an objection that Jesse Garcia made. The question was about the phone deliberately being turned on/off, but she was wrong when she made the ruling. It wasn’t clear to me what she was talking about. So she is not allowing the defense to do things now because she screwed up then.

The DA argued facts are not in evidence that any person who had the phone was turning it off (that what they said in the Prelim). There were 5 numbers that were calling when it was one (that’s not my recollection, but there was more than Eula Keys. I believe Kevin Pickett made contact and maybe Lori Freitas too).

Hans Hjertonsson was citing prelim transcript and they were both reading it. Apparently there was a little bit of difference between the transcript. He’s telling Judge Zuniga it’s ok to ask Jim Cook about it being on/off because only certain numbers were connecting to it. Jim Cook determined to was being turned off then and whoever had the phone had turned it on/off again. The DA has gone into whether the device was turned on or off and it impeaches Jim Cook conclusively based on his preliminary hearing testimony.

DA: the defense is changing their argument now, no foundation, improper impeachment. The C-N document is being offered by defense not here. She never asked who was turning it off. They are the only ones that went into the boxes of the C-N documents. Facts are speculative because there are 5 different people calling and making connections.

Hans Hjertonsson: the DA brought this up during the Preliminary hearing Jim Cook is now saying not connected to the network and he wants to go into this area. Now he’s saying the phone is on, just not connected. Also Jim Cook was lying during some of his testimony and concluded the phone was purposely turned on or off. One way or another, if you take his preliminary hearing testimony or take his testimony now, he’s lying in one of them. He didn’t know at the preliminary hearing that it was Eula Key’s number. The DA talks about it in some of the slides that she put in at the trial. Also, Jim Cook and the DA are trying to put the phone in Baljit Athwal, Daljit Athwal and Walter Well’s hands and this is a gross misstatement. (Remember, this is a major reason why Walter Wells was held to answer at the preliminary hearing and she can reverse that ruling right now. I bet she doesn’t do it.)

The DA argued the entire time she was objecting, it was Korey Kauffman’s cell site, it was way outside of direct. The evidence was not prepared by the DA and can’t be used for impeachment. Objection: it is outside of direct. Judge Zuniga ruled in favor of the DA. The defense will be limited in some of the calls Eula Keys made.

Took a break.

3:35pm – Hans Hjertonsson: Asking about Christine Deflippo’s device oscillating between sectors. There are 58 events of oscillation in 4 years (2011-2014). How many days was that? Jim Cook: Has no idea and doesn’t want to speculate. Hans says approximately 1,460 days. Jim Cook: I wouldn’t want to speculate. Hans Hjertonsson picked a few days out of the period that Jim Cook was referring to and asked him, Is the property in the overlap area? Jim Cook: Needs more information and can’t answer the question. They are talking about SE Turlock Tower and the SE sector of that tower, which includes 838th 9th St. He finally said yes to that.

Asked about evidence #368, the Google Earth map he prepared last weekend, does he know all the tools associated with Google Earth Maps that give distances? Jim Cook: says he is familiar, but doesn’t use it. Hans Hjertonsson: Asked if he was familiar with the tools you can use to measure cell tower sectors, it can measure a 360 degree circle and pie chart. Jim Cook prefers to use a protractor and eyeball it.

We were done for the day at this point.

NOTE:

Someone has graciously chosen to donate these transcriptions for me and you, but cannot do it everyday.  Still looking for someone else to help out if they can.