Good evening everybody, this is Marty from DAWGS blog with tonight’s podcast for Thursday, March 7, 2019. If you listened to the noon report they were discussing again, and we had a full 24 hours with no jury in the courtroom listening to any evidence. Yesterday afternoon and this morning no jury in the courtroom. They were waiting downstairs. They were talking about these transcripts of the wiretaps on July 12th, 13th and 15th of 2012. The search warrant was done on July 15, 2012, so this is two or three days leading up to the search warrant and the day of the search warrant. Just to review briefly, they had transcripts of these wiretaps, evidence number 36A. The recording the wiretap itself is evidence number 36 and the transcript is 36A. These are what they used to go over in limine motions back in December 2017, prior to the trial. This is what the Judge depended and ruled on was that transcript.
I remember this conversation because they had talked about a term that was constantly used in there, sisterf****** and they wanted to remove some of that language because it could be prejudicial. They also had some editorializing that was done by the district attorney employees, who were transcribing the wiretaps. One of them was the late officer Singh from Newman and Ms. Sandel, she’s a victim advocate for the District Attorney’s Office. They did the transcribing of the Punjabi language and they editorialized somewhat in those transcripts.
The Judge told Marlisa Ferreira that’s inappropriate and she wanted it removed. They would they would say something and put in parentheses referring to Frank Carson or something along that line. I didn’t see them, so I don’t know exactly what they said. Some of the language would be prejudicial she had told them to remove it. That was not actually done on the record, it was just done informally because there’s no record of the Judge telling her, but everybody agreed yes that’s what Marlisa Ferreira was told.
So Steve Jacobson for the District Attorney’s Office Mr. Steve “the Juice” Jacobson re-did these transcripts and he actually changed the paragraphs. From what I understand from the arguments, he had added some information so the sentence would make sense because of the language barrier with Daljit Athwal. Daljit Athwal speaking English and he speaks very broken English much of the time and so they added words, what they thought he was meaning and so on. So it changed the transcripts, I don’t know if it actually changed the meaning of what was said or not, I didn’t get to read them.
They re-submitted those transcripts under evidence number 361, Marlisa Ferreira did and she distributed them to the Judge and the attorneys. She never notified anybody that they had redacted and changed some of the language, other than what she was told to do. They went beyond that and changed some things. I’m trying to make it as brief as possible but this is what caused all the problems yesterday when Hans Hjertonsson kept objecting, saying it’s doesn’t state the facts or the fact not in evidence. Because Marlisa Ferreira was using 36A,the old transcript, but anybody else had a copy of 361A. So that’s why things got messed up because they had different wording and it may have had different meanings the way sentence was restructured once he got done with it. I don’t know, like I said I didn’t see them.
The Judge emphasized she did find the original transcripts last night, she went through all the paperwork in their office. She said that this was in the closet and they were also in some of the stuff for the McFarlane and Quentinar preliminary hearing.
On December 7, 2017 when there were doing some limine motions, she knew that there were changes in 36A, but she was not aware of any other changes to the transcript. The argument that Hans Hjertonsson made is that they didn’t critique the transcripts they received. Marlisa Ferreira said they received them, they had time to review them, they could’ve, they had plenty of time. They even played the transcript of the audios and the transcripts that were changed were given to the jury to follow along and read while the wiretaps are being played. Hans Hjertonsson is saying there was no information given that anything changed, so he assumed and the Judge did exactly the same thing, that they only did what they were told to do, but they did more and they changed more. There is a real issue and the Judge is trying to how to figure out how to resolve this issue.
Defense is asking for sanctions against Marlisa Ferreira for doing this. The District Attorney’s Office, and my understanding was Steve Jacobson was there yesterday afternoon and this morning and he was acknowledging that he did a lot of this stuff. He kept shaking his head yes and no about things are being said. He apparently did add some words or do some things that that could have changed the meaning. The defense was asking that they tell the jury what it happened especially in regards to July 15, 2012. The sanction that they were asking that they not be allowed to use the July 15 wiretap.
The Judge already ruled once was not admissible because of the contents of that wiretap. Then they relitigated it again yesterday because Marlisa Ferreira wanted to use it for impeachment of Scott McFarlane, but what it does is gives her a back door to get information about Daljit Athwal. It’s more about getting Daljit Athwal and she’s using McFarlane as a pawn in this.
Judge Zuniga ruled that she is not going to tell the jury that Marlisa Ferreira caused this issue and she flat out said it: Marlisa Ferreira caused this issue. I agree with Judge Zuniga on this. She’s not going to get in to playing the game well Marlisa Ferreira did this and telling the jury and then Hans Hjertonsson did this, so she has to tell the jury and then Jai Gohel did this and she has to tell the jury. She doesn’t want to play that game. She says she protects the attorneys and takes the heat and she really doesn’t tell the jury. She does kinda put it on herself that she has an issue to deal with. So again she’s not going to tell the jury that Marlisa Ferreira caused this issue, even though she did. Judge Zuniga was not too happy. Judge Zuniga said she is so angry with these issues that started with the preliminary hearing. She’s going back to the prelim now, talking about all these issues that have come up and even before the release of the Frank Carson and the Athwal brothers from jail because of the discovery violations. She said there has been mistakes in this case where people are not paying attention and she was staring and glaring at Marlisa Ferreira. She is tired of these issues. She is very upset. Not being allowed to impeach with the transcript of July 15, 2012 is granted. That’s the sanction that she gave against Marlisa Ferreira. She’s not allowed to talk about the July 15, 2012 phone call between Daljit Athwal and Scott McFarlane.
Marlisa Ferreira initially wanted to argue little bit and Judge Zuniga glared at her and says you don’t want to do this, I’m very angry, you’ll regret it.
The jury came up that 1:40 PM. Scott McFarlane was brought back on the stand. Marlisa Ferreira continued her re-re-re-redirect of Scott McFarlane and they were talking about a conversation with Daljit Athwal on 7/13/2012. It was on the phone in regards to people calling Daljit Athwal and somebody called them “shit heads” and I think McFarlane had referred to that, but I’m not really sure. Daljit Athwal was calling because they were constantly coming over and bugging him and trying to bully him, something to that effect. Ken Behringer, somebody had said, was Scott McFarlane’s buddy. I believe Daljit Athwal may have said that and Scott McFarlane apparently had told Daljit Athwal to call Behringer and talk to him, apparently that’s exactly what he did. People had left flyers on friends of Daljit Athwal’s cars. These flyers were in in regards to Korey Kauffman.
Marlisa Ferreira tried to get him to say prior to July 13, 2012 that he knew that Korey Kauffman was missing. He was refreshing with the transcript a little bit. I felt that Scott McFarlane was pretty honest for the most part. There’s just a lot of things he doesn’t recall, it was a few years ago and he did have to refresh. Marlisa Ferreira was actually being a little more cordial today than what she’d been the last the last few court dates. So he said yes, Daljit Athwal did say Korey Kauffman was missing and it was said the day prior and I believe it’s a day prior on the phone call on July 13th. He was asking why people are coming over in regards to Korey Kauffman missing and he knew that Frank Carson was involved with the Athwals due to the thefts and he knew about that when he found out about the the trip that Bobby Athwal and Robert Woody had made to Mike Cooley’s house.
The search warrant at Pop and Cork was what made Scott McFarlane call Ken Behringer. He told him some information that he got in regards to what Robert Woody said talking about Korey Kauffman. (I wish I could write down everything, but I can’t, I wish I knew shorthand, but I don’t, I wish I could record everything, but I can’t) Robert Woody was talking about a container. That the body was removed in a container that had been moved from the property, we heard that early on in the prelim but there’s no evidence that a container was actually moved. I believe that the satellite views in 2012 were the same ones when they did a search warrants. He knew Frank Carson had represented Robert Woody on Woody’s criminal case (possession of stolen property, the stolen car with his brother. That was dismissed a Robert Woody’s behalf).
On July 17, 2012 he had called Ken Behringer in regards to some of the more Robert Woody information. This is a second time he called Ken Behringer. He called to ask Behringer in regards to the search warrant and to find out what was going on. He called back due to the information that he received in regards from Robert Woody (Remember Scott McFarlane at that time was a California Highway patrolman, he was a law enforcement officer and he was trying to find out too, if he needed to stay away from the Pop and Cork). When they talked about the container being moved on Frank Carson’s property there were objections. There was an extra extra long sidebar. It lasted at least 15 minutes and it really raises everybody’s curiosity. When they came back nothing else was said about the container.
Again Marlisa Ferreira asked about the call to Ken Behringer. McFarlane had told him Robert Woody said some other things in regards to Korey Kauffman and he had told Ken Behringer that. He felt the information was important to tell law enforcement officers. She asked him if he had information in regard to Daljit Athwal’s injuries on his hand and face and was it around the time that Korey Kauffman went missing? He didn’t really know the time frame when those injuries were seen on Daljit Athwal. He recalled he told the investigators, he did not recall as to the timeframe. She asked him a little different way and he said it again: I don’t recall the time frame on the injuries.
She asked him if he knew a cashier, a big heavy set Mexican guy, that worked at the Pop and Cork? Objections. Extra, Extra long sidebar again. This one lasted about 10 minutes. She came back from the sidebar and started going into another subject.
She asked him if he had information of the type the thefts were antiques, auto parts and such from the property? Objection. Overruled. He said yes that’s that was some of the thefts were going on. On 3/7/2014 interview with Kirk Bunch he told him that Bobby and D were watching the property and they told Scott McFarlane that they stopped at Mike Cooley’s house, in an effort to put a stop to the thefts. They didn’t give any details to Scott McFarlane in regard. Kirk Bunch asked if it was prior to the homicide or shortly thereafter? Scott McFarlane was not real sure about the timeframe on this, if it was the previous to or after their theory of the homicide date.
Marlisa Ferreira was asking if he had rototilled the side lot and had brought in a truckload of dirt? He acknowledged that. He said it took him several hours to rototill and do the work over there. Robert Woody did not help him rototill he did it himself. It was done in a couple hours, during daylight, when he did that. He did not recall if he told the Athwals when he was done working back there.
He was asked if he took Thomas O’Keefe to the lot? Objection. Sustained. Asked if he took Thomas O’Keefe to Pop and Cork. Objection. Sustained. Sidebar, this one wasn’t too bad compared to the earlier ones. Again she asked him if he took O’Keefe the side lot ? He said yes, I believe one time. It was during the nighttime hours and he did not recall if the Athwals were present when he did that. There was a some sort of social event. There was an objection when that was asked. Judge Zuniga’s told her to go into another area and get back to that, she didn’t want to have another sidebar at that point.
She asked him in 2012 and 13 was he working with O’Keefe in Merced? Objection. Sustained. He did not recall if he received a letter from the CHP in regards to not hang out at Pop and Cork anymore. There was an objection to that that was sustained. She turned right around asked did you receive a letter in regards to Pop and Cork? Objection again. It was beyond the scope of the previous questions asked. They went to a sidebar, it was brief.
The jury went out at 2:45 PM for an early break. McFarlane went off the stand. Judge Zuniga talked about the February 28, 2019 testimony and this is when everything hit the fan about a week and half ago when we ended up in the misconduct motion. So I don’t know really know why she asked that. We went to break. I think Judge wanted to review some of this information to see if it was inside the scope.
We came back at 3:15 PM. The Judge is going over the transcript on the February 27 and 28, last month and in the transcript sometime between 2012 and 2014 there was an order to not hang around Pop and Cork, but Scott McFarlane did say that he did not receive that order. She said it did come on cross on the compelled statement (the compelled statement was the statement that CHP said he was obligated to answer questions regardless if he was committing self-incriminating evidence on himself. Apparently if he wants to keep his job he has to answer the questions) but there were some objections during all that so Judge Zuniga again trying to figure it. She said Marlisa Ferreira had asked about Gov. code, I believe, 952. It got shot down and it was in the notice of termination to the Scott McFarlane. Marlisa Ferreira’s trying to emphasize these disciplinary actions he received. She’s trying to destroy his credibility on some of that stuff too. She said she wanted to ask Scott McFarlane if he has his termination letter with the codes he had violated to get terminated. The judge said the opinion of an Internal Affairs investigation is not relevant, so it’s not allowed. Their opinion of what they think he violated has nothing to do with going on here. Marlisa Ferreira kept arguing, as she always does. She says Scott McFarlane denied receiving the letter and Judge Zuniga has his employee file and she can just simply look at it. She wants to impeach with that letter. Judge Zuniga says the only information allowed to be used is what she’s released already.
There was a Pitchess motion anything that was discoverable or Brady was already released to the attorneys. She’s not going in and open up that can of worms again and that information is so important to her she has to get the Atty. Gen. down here and have a hearing. She has to go through that long drawn out process to get that stuff. I doubt if Marlisa Ferreira’s really wants to do that. I don’t see the value and at this point anyway. She’s already released all the information she can and everything else is privileged. She’s not allowing that to be discussed with Scott McFarlane.
The jury was called up at 3:25 PM. Scott McFarlane back on the stand. Marlisa Ferreira is asking in regards to the letter received from command to stop going to Pop and Cork, that he didn’t get, he did not know if O’Keefe or anybody else had received the same letter. Any information that that he gave to Ken Beringer is information that Daljit Athwal had said. Objections. She was talking about the phone call on 7/12 and 7/13 of 2012. He says no there was nothing that he had told Beringer about those calls. She asked him if he told Ken Beringer that Baljit Athwal and Robert Woody went by Michael Cooley’s house to talk to about the thefts? He said no, he did not tell Beringer. (Of course, she knows that because she has all the reports). She says no further questions.
Attorney Hans Hjertonsson is re-crossing McFarlane and he asked him if the law enforcement information in regards to Robert Woody and Mike Cooley, had he told law enforcement that information prior? He said yes. Marlisa Ferreira asked him about 3/8/15 interview where they had a conversation at Pop and Cork regards to Korey Kauffman and he had mentioned that in that interview. Kirk Bunch had talked to Baljit and Daljit in regards to Korey Kauffman living next door to him? He did not recall any conversations in regards to that. He was asked about the questions that Marlisa Ferreira asked about some of the internal affairs investigations? He says the he did not recall what conversations he had, she was asking about in the internal affairs investigations and he told Kirk Bunch that he didn’t remember a lot of those conversations at Pop and Cork. He said that Kirk Bunch did say that they developed an informant who gave information? He said yeah that’s true that’s what Kirk Bunch said. Scott McFarlane’s name came up in a conversation with Bobby and D Athwal. Kirk Bunch asked if Walter Wells was part of that conversation? McFarlane did not recall those conversations. He could not confirm the conversations. He said that numerous times in the interview and he said he had no recollection of that conversation at Pop and Cork with the Athwals or Robert Woody or anybody else.
In a 9/3/15 interview with Domby, Marlisa Ferreira asked him about, did he ask about Frank Carson’s property again and the checks that were being done? He said yeah, he had heard about that. It was based on the Mike Cooley incident that he knew about the Frank Carson property checks. That was the first time he knew they were checking the property was the Mike Cooley incident.
Was there any conversation about the flyers that were put up on the door in any conversation about the flyer and Korey Kauffman? He didn’t recall any conversations with Daljit Athwal in regard to that. There was another sidebar. Judge Zuniga was getting confused on which pages they were working off of. She was having trouble keeping up. Hans Hjertonsson was moving at a very rapid pace and I was having trouble keeping up. He did ask after the missing person if he talked to Daljit Athwal and Daljit Athwal said he didn’t know Korey Kauffman, didn’t know who he was. He had made two calls to Daljit Athwal on 7/12/2012 and 7/13/2012 and Daljit Athwal was wanting to talk to him about what was going on. He said yeah that’s true. Hans Hjertonsson asked him if Daljit Athwal was difficult to understand at times? He said yeah, especially when he is excited. Especially on the phone? Yes, especially on the phone. He had no further questions.
Jai Gohel went on cross and asks: If he was allowed to have attorneys in those internal affairs affairs hearings when taking compelled statements? He said they read him his rights and he said he was willing to talk. He said then they reversed the reading of his rights and felt it may be best if he doesn’t waive his rights, but then they turned around and said they can compel a statement from him irregardless. I don’t know what that was all about. but that’s exactly how he said it. He could have a representative there during the interview and he did have somebody there, but it was not an attorney from the union, it was the a private attorney, I believe. Was there a clear understanding that he had a right to an attorney? He says no, it wasn’t real clear to him. It sounded more like it was a hatchet job. He had reviewed the Ramey warrant online after 8/2015 I believe it’s what he said he had done that. There was information that law enforcement were developing leads during the investigation? He said yes, of course and that’s the only time he recalls Korey Kauffman being mentioned, after the missing person flyer came out.
Percy Martinez went back to cross and says in regards to rototilling the lot was there a blue tarp, jeans? He said yes to both. He was asked how deep does a Rototiller dig down into the ground? He said the tines go down about 10-12 inches. He asked him if there any odors of when he pulled up pieces of the tarp or the jeans? There were no foul odors at any time.
He was asked about Domby inquiring about Robert Woody and Baljit Athwal checking the property prior to the missing person case? He first knew about the property checks with the Mike Cooley visit. The Mike Cooley visit, they’re saying, was Robert Woody’s court date which was in May 2012. So that was two months after their theory date. But Marlisa Ferreira is saying some little bit different than what the defense is saying, it’s it’s a little confusing. Percy Martinez said no further questions.
Marlisa Ferreira went on re-re-re-re-direct again and asked him in regards to Baljit Athwal, Robert Woody and the Mike Cooley visit, did he believe that the visit was prior to Korey Kauffman going missing? He said yes, he believed that at the time. (Which kinda said to me, maybe he doesn’t now? I don’t know. He just said yes at the time). She asked him if he could understand Daljit Athwal in July 12, 2012 on the phone? He said yeah I could understand him, I didn’t have any major problems having conversation with him. At the time of the search warrant he was aware of some of these things that were going on leading up to the search warrant, but he says he didn’t know exactly what was going on or exactly what they are investigating. He had asked Daljit Athwal why they were being investigated, if they did something? Daljit Athwal said someone talked. Scott McFarlane asked who and I guess there wasn’t an answer, because nobody knew. He never asked Daljit Athwal to repeat himself in the conversation, so apparently Marlisa Ferreira is trying to say he was able to understand what Daljit Athwal was saying.
In the July 13, 2012 wiretap, she asked him if he knew Daljit Athwal was talking about the flyer in regards to Korey Kauffman missing? He said he had no problems understanding Daljit Athwal at that time. She asked him on the 3/8/2015 interview if he told the investigators that he knew that at the time? He said he didn’t recall exactly what he told investigators during that interview, but they also asked in that interview if he was sure he had conversations with the Daljit Athwal and he said yeah he was sure about that.
She asked him if there was a representative with him at the CHP during that compelled statement that he made in the Internal Affairs interview. Which there was.
She asked him if there were just small pieces of tarp and denim that came up when he rototilled? He said yes, no further questions.
Hans Hjertonsson had one more question on the 3/8/2015 interview he is sure he had conversations at the store? Again he was not sure, he doesn’t remember that well. He thinks he probably did, but he’s not really sure. He asked him if he didn’t really know anything that was going? He said yeah that’s true.
No further questions by all all attorneys. We were done. Scott McFarlane was finally off the stand this is around 4:05 PM. The jury was sent out right away. They’re back tomorrow at 9:30 AM.
Tomorrow we have this gentleman we’ve been talking about, Mr. Navar, an in custody witness. He facing some pretty serious homicide charges on a drug rip off that went bad and a couple people were killed. He’s made a deal with the District Attorney’s Office to testify. He says he was in custody with the Athwals at the jail. They had moved the Athwals over by him for about a 10 day period. It sounds to me like they had moved them over there to talk to him, they were trying to get information. Navar is claiming that that they drank some ???? together and they got drunk and that the Athwals made some statements. Again he facing some very serious and from charges here. It sounds like he’s getting a sweetheart deal. It was a drug deal got bad. Two people died, including a friend of his, that was tossed aside the road allowed to bleed out, because he want to get away. Eventually he was found in Mexico, but he only got 11 years.
There’s also some in the attorneys been in the courtroom interested in what Navar is doing because apparently he’s wanting to give some information on some other cases. I’m not going to talk any specifics about that. This may be a pattern, I don’t know, I have no way of knowing, but that’ll be interesting to listen to tomorrow. So back at 9 o’clock tomorrow.
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