WEEK 31, DAY 107


As I was walking from the parking garage to the courthouse this morning, I could see two jurors across the street heading the same direction. I was thinking that possibly today, they could finally hear a full morning of testimony. I could have not been any more wrong. They heard none. This trial has literally ground to a halt. The entire morning was consumed hearing arguments while the jury sat downstairs waiting to be called up to the courtroom. I was pleased to be greeted by my friend Marty Carlson when I reached the second-floor elevator area. He is finally well enough to endure some more of this torture. This day had so much promise. Present was Jack Able, who was last on the stand, and Eduardo Quintanar with his attorney Alonzo Gradford.

Judge Zuniga was once again on time to the courtroom, and we started discussing issues concerning the testimony of Jack Able, who had worked as a Private Investigator at times for Frank Carson. Percy Martinez starts out by stating that Jack Able’s attorney Mr. Bonilla is going to turn over to the court transcripts and tapes of interviews that were done during this work. Percy states that it is clear that Jack Able had been hired by Frank Carson to find out why Frank’s property was involved in the investigation concerning Korey Kauffman. Percy states that the contract was signed on 07/13/2012. Percy states that the contract was signed before the search warrants had been signed on 07/15/2012, and executed on 07/20/2012. Percy Martinez states that they are claiming attorney/client privilege. Percy states that the People have introduced an E-Mail to the court requesting information concerning cell phone usage at the time.

Percy Martinez speaks about a case that was handled by Frank Carson named the People v Kelly Valle that has not been totally completed. He states that Jack Able was involved with that investigation while working for Frank Carson, and Frank Carson would not be able to defend himself because he would not be able to disclose details in court that involve his client in that case. Percy states that Frank Carson would be forced to disclose privileged information, and that this information would give the People an undue advantage. Marlisa Ferreira states that during the Kelly Valle case, the pinging of Korey Kauffman’s cell phone was impossible because it was either turned off or was not working at the time. Marlisa Ferreira states that Kelly Valle was given another attorney to handle his legal defense. She states that it was Georgia DeFelippo who signed the contract with Jack Able, and not Frank Carson. Percy Martinez states that Jack Able has testified on the stand that he was hired by Frank Carson, and that this signing happened after the search warrant had been executed. Percy states that therefore, Jack Able’s assignment had changed from what was originally signed in the contract. Percy Martinez states that Frank Carson has a right, as an attorney, to represent himself. Percy states that the defense has not used the Jack Able interviews to impeach any of the witnesses put on by Marlisa Ferreira. Because the defense did not use these interviews, Percy Martinez states that the People can’t use a Subpoena Ducas Tatem (sp?) to get access to these interviews. Jai Gohel chimes in by stating that what Marlisa Ferreira is trying to do is not supported by the law. He states that the defense did not open the door on cross examination by asking any questions concerning the interviews. Jai states that it was the People who called Jack Able to the stand, and that the crime/fraud exemption does not apply because Jack Able committed no crime or fraud.

At this time Judge Zuniga realizes how much time this issue is going to take, and tells Eduardo Quintinar, and his attorney Alonzo Gradford that they will have to come back at 10:00AM next Tuesday.

Judge Zuniga begins to speak and tells the attorneys that she has heard so many arguments, and that some conflations had been made by both sides. Jai Gohel states that Jack Able is not a party to this litigation. He speaks about Frank Carson putting his initial on one of the copies of the Jack Able contract. Judge Zuniga states that the issue is who has privilege. She states that the crime/fraud exemption would apply more to Frank Carson than Jack Able. Judge Zuniga now goes into Justice Hoffstedt’s book, and how it states that the attorney/client privilege does not apply when it would enable anyone to commit a crime or a fraud. She cites Gillum v Superior Court. She states that the party trying to pierce the privilege has the burden of proof that a crime or fraud has been committed. She states that there needs to be an intention to abuse the client/attorney privilege in order to cover up a crime or a fraud.

Percy Martinez speaks about making an assessment of the credibility of the prosecution witnesses. Judge Zuniga states that based on the evidence presented to the court, and the timing of the contract, that Frank Carson had hired Jack Able to find out what the police knew to protect himself, and to obstruct justice. She states that the problem is that the crime/fraud exemption does not apply to work product. Work product is exactly what Jack Able produced when he worked for Frank Carson. Judge Zuniga speaks about a case named BNP Petroleum Alaska v Superior Court, which seems to be the only case law that applies to this issue. She states that she has her research lawyer working on analyzing this issue right now. She questions how Marlisa Ferreira is going to pierce the work product privilege, and is concerned about an appeals court tossing out a conviction if one is obtained. She has Alonzo Gradford’s attorney Mr. Bonilla put all of his report in a large envelope, and she seals the envelope. Mr.Bonilla tells the court that he has already turned over some of the interviews via an E-Mail to the DA’s Office. Marlisa Ferreira states that the DA’s Office has been unable to open up the files because she thinks they are password protected. I don’t believe this to be true, but that is just my opinion folks. Judge Zuniga tells Marlisa Ferreira that 3rd parties (Like Jack Able) can still exert work product privilege. Judge Zuniga orders Marlisa Ferreira to delete the E-Mail that had been sent by Mr. Bonilla, and wants confirmation from DA Investigator Steve Jacobson that the material had not been accessed. She states that she wants to see a copy of the Subpoena Ducus Tatum. (sp?) She is provided a copy, and tells Mr. Bonilla that she agrees with him that it is overbroad.

Judge Zuniga finally thinks about the jury that has been sitting in the basement since 9:00AM, and tells the Bailiff to release them until 1:30PM. She then tells Mr. Bonilla that his sealed papers will not be opened up without an order from this court. Judge Zuniga: “I don’t know how you are going to proceed Ms. Ferreira.” The problem is that Marlisa Ferreira will be very limited in the questions she can ask Jack Able on the stand until Judge Zuniga rules on the defense motion to re-consider her earlier ruling on the admissibility of the Jack Able interviews. These interviews were done on people that were spelled out in the contract that was signed. Marlisa Ferreira states that her questions will be based only on what Jack Able told the officers when he was interviewed. She states that she will stay away from what the people on Jack Able’s list said to him. It is stated in court that Jack Able is leaving for vacation to Viet Nam on December 3rd. If Judge Zuniga rules that Marlisa Ferreira can pierce the work/product privilege, he will have to return to the stand after he returns from vacation. It is now 11:33AM, and everyone is sent out for their lunchtime break. Marty Carlson will be back for the afternoon session to report on what happens. I certainly hope that the jury can finally hear some testimony, and this trial can make some progress towards an eventual end of the People’s case in chief.

Sincerely; William Thomas Jensen (Tom)