Good evening everybody. This is Marty from DAWGS blog with tonight podcast on the Frank Carson et al. trial. Today is Wednesday, March 27, 2019. This is the afternoon session.

Court actually started a couple minutes early this afternoon. The Judge wanted everybody back in to talk about some of these remaining issues that never go away. They were talking about the Steve Jacobson/ Frank Carson incident and Frank Carson had signed a citizen’s arrest against Steve Jacobson. It was what they call 849.1, it is a Penal Code section that allows police officers that have detained somebody and released them. They typically have a form that goes with that too. For example, if you get in a in a beef with somebody and officers detain you; they do their investigation; they release you for whatever reasons, it could be because a misdemeanor occurred that’s not in their presence, it could be drunk in public that is taken to a six-hour kick out. That kick out is done under 849.1. They’re detained but they’re released. Percy Martinez is going to be allowed to go over that Frank Carson did sign a citizen’s arrest form (what they call a CA form) on Steve Jacobson, when he grabbed the phone out of his hand.

The jury came up. It was right at 1:30 PM when they came up. While the jury was coming up Marlisa Ferreira addressed the court and says Cory Brown and Gary Harmon will be the next witnesses to testify. Now the defense has major objections to this because they were notified at 9 o’clock last night in an email that these two would be testifying.

Judge Zuniga was a little tiffed, because she was not advised of this in an email. She did not receive that email it only went to the attorneys from Marlisa Ferreira. She gave notice at 9 o’clock last night that an expert would be on the stand again today. Remember Gary Harmon testified in October. Judge Zuniga told her that the there are unresolved issues with that and the defense made objections at the time, when there were some things in January there was some information that was turned over. Also the defense kept asking her, and the court did too, who the witnesses were, who was next to testify, and so on.

Marlisa Ferreira’s response was I don’t know yet. I don’t know yet. She even said it yesterday, she didn’t know.

So Judge Zuniga kinda took her to task a little bit that she just brought in two witnesses, Cory Brown and Gary Harmon. Gary Harmon, he’s the DNA expert from Richmond lab, SERI lab or whatever the name of it is. The Judge told her she needs to hear arguments on this first, you can’t just bring someone in when there’s major objections to this. She told her you gotta send Mr. Harmon home. He is a busy guy and he probably made special arrangements a last-minute to be here, without Marlisa Ferreira doing proper notification and he was sent away. So I imagine he’s not happy.

Marlisa Ferreira wasn’t happy that she had to send him away. In fact she started making comments under a breath that was caught on the microphone that the Judge heard and the Judge was not pleased. In addition she was doing this while the jury was starting to walk in the room, so the Judge took her to task on that also.

The jury was up around 1:41 PM and Mr. Saint Juice on the stand. Mr. St. Juice Jacobson is really a good guy and it is really a pleasure watch him work up there. They started to ask questions of Mr. St. Juice and Marlisa Ferreira walked outside to talk to Gary Harmon and then she came back in and she asked for a sidebar. The jury was sitting there waiting. I saw them looking at a calendar and some other things, so they were looking at scheduling a hearing or something. She went back out and I think he was already sent on his way.

Jai Gohel started his re-re-re-re-re cross of Steve “Saint Juice” Jacobson and he talked about the February 26, 2010 incident again. He was interviewed by Ofc. Tim Schwartz of the Sheriff’s Department who works in court services, now a sergeant. Steve Jacobson did not tell Deputy Schwartz about the arguing and the name-calling and the activities of the group. St. Juice said he didn’t recall if he told him or not. He read the transcript of the report that was written, it did not refresh his memory. So he has no recollection of that at all, even though he read the report. He was asked if he was there to protect Ms. Mims and Brad Nix? He said well yes/no. This seemed to be the answer of the day yes/no. Was he as a case officer concerned for the safety of the attorneys when he slapped the camera out of Frank Carson’s hand? He said no. Did he tell Tim Schwartz that there was an issue of having the camera in your face? Objection. Sidebar. Judge says it is not clear. So he was asked again did he tell a Deputy Schwartz about the argument between Carson and St. Juice due to the photos that were taken? He took a page out of Jim Cook’s book and he said CANAQAP (cannot answer question as posed). The question was re asked. Cannot answer questions as posed. CANAQAP. He said he did take issue with the camera in his face and Frank Carson, he said, refused to stop taking the photo, so he took it upon himself to put a stop to it. He was asked if Frank Carson took at least two photos? He said yes, at least two. Did he tell the investigators that Frank Carson refused to stop and when he didn’t stop, he knocked the camera out of his hand? He said yes/no. So Jai Gohel asked him, is that of your typical way of answering things, yes/no? He doesn’t want to really just fess up. Steve Jacobson has admitted that he grabbed the camera and the tussle for the camera (this was a mini camera, a little Fuji camera, on of those one shot camera things) Frank Carson pulled back and Mark Davis was in between them and the camera fell on the floor and Frank Carson picked it up and apparently he went and talked to a bailiff.

Percy Martinez started into questioning St. Juice. He said yes Frank Carson had signed a citizen’s arrest form. St. Juice went into department #12, he said he was never disarmed. There was an objection to the question. That led to a sidebar. He said after the incident he agreed to go store his firearm in the lockbox, that they have at that the courthouse, for officers that need to store weapons. Percy Martinez asked him did he mentioned to Tim Schwartz or the Deputy investigating this if Frank Carson use foul language? He did not recall. He did not recall if the other people were using foul language. He was asked if he gave the attorneys card, meaning Ms. Mims or Brad Nix, to investigators? He said no. Percy Martinez asked if the investigators or Deputy Schwartz or anybody had talked to Ms. Mims in his presence? He was not a really it sure if they had or not, and he said he took it upon himself to try to resolve the conflict with Frank Carson and go up to him and take the camera way. So he tried to resolve the conflict by creating another conflict. No further questions by Percy Martinez.

Marlisa Ferreira went on re-re-re-re-re direct and she asked him if he told Deputy Schwartz that he took upon himself to knocked the camera out of his hand? He said no, I didn’t say that. In regards to Attorney Mims, did Deputies take her back or escort her back to his office? Apparently they did. Frank Carson tried to disarm him? He said no, but apparently a Lieut. or somebody asked if he was armed, but never really asked him if he would give up his firearm. He says he voluntarily, being the good guy that he is, chose to put his gun up in the gun locker so as not distract from the investigation that was going on. The attorneys that were by the door had moved away from the disturbance is what he said. In regards to the contempt proceeding,Marlisa Ferreira for some reason, asked him if the Modesto Bee wrote an article about his contempt charges? They did. Did they write an article when the charges were dismissed? He said no, they didn’t. But actually yes, they did, I saw it myself. She asked about the yes and no answers? There was objections to that. He really was trying to be evasive, it seemed with everybody. He said the yes/no answer was because of Frank Carson photographing and he made contact? He said no, he never knocked the camera out of his hand and he never took a swing at Frank Carson. Frank Carson claimed that he was manhandled by Jacobson and Jacobson says no he did not. There was two photos, unknown if there was more photos than that.

Marlisa Ferreira started going another area questioning and had something to do with investigators and their questioning and Judge Zuniga put an immediate stop to it. She says I know where this going and she says no.

Marlisa Ferreira asked him, when he was talking to Tim Schwartz and there was an objection that was sustained immediately and I think is what it was based on was hearsay. So the information that he had received or relayed to Tim Schwartz was not going to be allowed. Frank Carson, he said, was not the attorney on record in that case. He was actually stepping in for somebody else, just for that one day, making a courtesy appearance. She started going in about the Frank Carson doing a case and the Judge said you’re not going to do that and the Judge called an immediate sidebar. It was a very aggravated, very animated long sidebar. She came back from the sidebar and she asked the same question again. It was objected to again, but he said he was never arrested on the CA (that’s the citizens arrest) and he says he was released on the 849.1. She asked him what is an 849.1? He says that is not a lawful arrest.

That is not true. What he said was not true and if he actually read the Penal Code that’s not what it says. If you’re detained by law enforcement and they release you from a detention of a possible suspect in a crime or something along that line. Like I said if you’re drunk in public and you went to jail for six hours to detox you are released under 849.1. It’s a misdemeanor the does not occur in police officer’s presence. They still take the CA, they cite him in the court, refer to the District Attorney’s Office, they will do a lot of things and then they release them under a 849.1. It does not necessarily mean that is not unlawful arrest, it could mean that, but that’s not the only thing means. But that’s all he was willing to say about that.

Marlisa Ferreira had no further questions.

Percy Martinez says that the camera came out of Frank Carson’s hand and described the camera it was a disposable camera, because he grabbed his hand because he was reaching for the camera. They went into some other things like he was a handler for Praveen Singh and stuff like that. It was all objected to and not allowed. Percy Martinez was done.

Hans Hjertonsson went on re-re-re-re-re-re cross again and asked him if he told Tim Schwartz that he had knocked the camera out of the Frank Carson hands? Again he did not recall what he said to Deputy Schwartz. Marlisa Ferreira was objecting to just about every question here, as she normally does. He didn’t really recall exactly the wording that he used. So there was no further questions by Hans Hjertonsson.

Jai Gohel asked him if the hearing was in regards to the AJ case and photos or something? Objection, Objection. Marlisa Ferreira ran up a laundry list of objections on that.

Hans Hjertonsson showed Jai Gohel a piece of paper and he realized he was thinking about the wrong information, so he withdrew his questions. He was was done. So no more questions for Saint Juice.

The Judge read the 849.1 definition to the jury. She wanted judicial notice to the jury what exactly it reads. She actually read, I think a pretty abbreviated form but they got the point. The jury was sent home at 2:40 PM. The jury came up at 1:40 PM, so the jury got an hour this afternoon they got an hour this morning. So 2 total hours all day.

After the jury left, Jacobson was done, he was very relieved to be out of there.

There’s these witness, Gary Harmon and Cory Brown, that she wants to put on. In January of this year, three months ago, Cory Brown got a buccal swab from Mike Cooley. Gary Harmon had tested that sample and compared it against the third-party contributors that was on that 22 caliber bullet that she keeps saying now, is not the murder bullet, and the carabiner and that the other DNA extracts that were taken. Gary Harmon did the sampling him in regards to the third-party culpability arguments that the defense was doing in the cross-examination of Gary Harmon last October. There is a full DNA profile, they say, on the bullet that they don’t know who it belongs to and it was never compared in CODIS or any or against Mike Cooley or anybody else from the Cooley clan or that side of the fence. On cross-examine she said that the defense were asking questions why the full DNA profile that they had was not put into CODIS. She said now says there’s a lack of what they call markers or whatever she said, there’s another term for it. Cory Brown wrote a report in regards to the finding on the DNA and this is all follow-up due to the cross-examination by the defense on the third-party culpability claims of Mike Cooley. So she saying they only check Mike Cooley because of the defense’s claims in the third-party culpability in this case. They didn’t bother to check him 5-6 years ago. Judge Zuniga was looking for the exact dates of the testing that was done and when it was turned over to the defense and she had Kirk Bunch call the office to get the exact dates and when the DNA and stuff was ran. It was in the middle of January, forget the exact date I believe was on the 16th . The results were in by the 19th .

Percy Martinez argued, and that defense is objecting to Gary Harmon testifying, he’s already testified and they’re saying he’s an expert and they have no notice now that he’s coming back to testify to something different. They got notice at 9 o’clock last night and they are saying that’s not appropriate and it’s a due process violation. Percy Martinez argued this is been an ongoing investigation since 2012 and 2013 when the body was recovered. The DNA was extracted on the bullet many years ago. Gary Harmon testified in October 2018 and talking about the cross-examination and the information available and the testing that was done at the time and there was no Michael Cooley testing. It was clear there was a profile on that bullet. So he did testify that there was a profile on that bullet, it was an unknown contributor. He had no idea of who belong to and they never checked the database to to see if there’s a hit on the CODIS database. Gary Harmon had also testified to that there CODIS database because the investigating agency would have to initiate it. DNA testing were run on all the defendants and all came back negative. Mike Cooley was never asked to be tested till January of this year. This is after Gary Harmon it already testified in 2018. Defense cases have been based on all the information that was brought up earlier, that was given to them. They have to give them 30 days notice on an expert and so they had all the information that was supplied that the expert was going to be questioned about. He said the District Attorney’s Office did not do their work with due diligence as they did not check Mike Cooley back when they should have. This is due process rights and they will be violated if this is allowed. This is trial by ambush is what he called it. What he saying is they set their strategies a certain way for certain information they had, now this is a last-minute information of an expert that they’re trying to bring in after they been asking for weeks if they’re going to call this expert so they can prepare. They weren’t notified until 9 o’clock last night that he was going to be put on the stand today.

Attorney Hans says the ship had sailed. There was an unknown profile that has been there for several years. All the defendants came back negative to that profile. Harmon report was on January 18, 2019. That was after he testified in October 2018. The buccal swab was ran three days after receiving the sample from Cory Brown. Cory Brown went and got a buccal sample from Mike Coley to have it tested and it was never ran prior to this. Hans Hjertonsson said the defense attorneys plan their cases on reports that are provided, the information that turned over in discovery, information required by law and now again late last night they’re notified that she wants to put these two witnesses on. Mike Cooley was tested because he was brought up in the cross examination on why he wasn’t tested and the third-party culpability claims that the difference is making. Harmon actually wrote a secondary report in January and there was questions, constant questions he says, on almost on a daily basis if she was gonna put him on and her response was, I haven’t decided yet. They asked her that yesterday in court and in front the Judge and Marlisa Ferreira said I haven’t decided yet. He says expert testimony has to be noticed, so they can research and do their homework. This was not done. He is an expert in his field, he was certified in October and when they bring an expert in, it requires 30 days notice. Just because he testified prior, doesn’t mean that she doesn’t have to give that same notice that he is coming back with different information, in regards to Mike Cooley. Harmon’s testimony, he said, is that he believed there was enough of a profile for there to be a CODIS match if there’s anybody in the system. Gary Harmer told Kirk Bunch it is now not a sufficient profile. He is saying something different now. The remains were located in 2013 and there was no testimony in the preliminary hearing by Gary Harmon. Gary Harmon gave specific information and the defense strategy was made by that information. Marlisa Ferreira did not give a sample to Gary Harmon immediately and then wants Gary Harmon to go on at the last minute.

So he’s saying they didn’t test Cooley initially. The remains were found in 2013. In 2015 when the defendants were taken into custody, they did DNA samples on everybody. Mike Cooley was not done at that time, he would not done until January of 2019.

Jai Gohel argued Harmon’s testimony in October 2018 and he had tested the bullet. Marlisa Ferreira, he says, suggested some of the defendants have similar markers, but not the same. (Just about everybody does, in most cases, I believe) But there’s not enough to do a match or any other type of confirmation. The defense asked in regards if there was a hit or if it was run. Of course, it was not ran, it was never ran and apparently they still haven’t. This type of information is supposed to be presented 30 days prior to trial, as per 1054 of the evidence code. There were two sections after the evidence code that he cited. There’s been many witnesses that have testified Mike Cooley had confessed, like Padilla and Johnny Fields. They had they gave information to Mike Cooley and he was the last one to see Korey Kaufman alive. Then Mike Cooley that came back from Escalon, making a claim to Charlie Odell that he had gotten rid of somebody up in the mountains. That’s when Mike Cooley’s car with Eula Keyes and Keith Hobbs broke down in Escalon and Charlie Odell it went up to get them. He said defense motion for third-party culpability and they gave out a lot of information that Mike Cooley may have been involved in the death of Korey Kauffman and Marlisa Ferreira was on notice regards to alternate suspects. He also mentioned Mike Cooley, Jason Armstrong, Bobby Ticknor and there was several people that could have third party culpability. Again he said they kept asking if Marlisa Ferreira was gonna call Gary Harmer. She gave no answer, she continually gave no answers. Jai Gohel called this gamesmanship. The defense has a right to rebuttal witnesses and information, but they have to have notice of an expert testifying.There’s no notice done and trials are about credibility and that some of the tactics and strategies and stuff are important, based on the information is turned over. Some of the questions that were asked, he said, in October 2018 may or may not have been asked if this information had been available at that time. There’s rules in place for expert witnesses for a reason, to avoid this type of misinformation.

Marlisa Ferreira argued that the discovery received by them on January 23, 2019 and Cory Brown was going to testify to the chain of custody of the evidence and then the reports that were filed on January 23, 2019. The law allows them to continue investigating when there’s a trial going on. Michael Cooley was never a suspect by law enforcement officers. Based on the defense cross in October, they chose to test Mike Cooley. No one knew this information prior to Gary Harmon’s cross-examination by the defense and his testimony even on direct back in October. Gary Harmon was never released as a witness in this case or for that matter an expert witness. Marlisa Ferreira said that defense will argue Mike Cooley is a third-party culpability argument, is still the same, nothing will change so Gary Harmon needs to be put back on the stand. Again she says that they’ve had this information from January 23rd 2019, that was three months ago when they finally tested Cooley. Now it’s too late to claim that they weren’t allowed to have proper notice on this information. She said there was enough time for everyone to prepare for this witness. There are facts that come up during the trial, as it does in every trial. Padilla and Johnny Fields have not testified yet in this case, so there is no evidence in regards to what they said. Marlisa Ferreira claimed there’s not enough detail in the remaining DNA profile to input it into CODIS. Now that’s not what I heard Harmon say, but it sounds like now he’s changed his opinion. But it’s not his determination to make, it whoever is running that system. I believe it was the Sheriff’s Department somewhere in Santa Clara. She talked about how busy Gary Harmon is and he took the time out to come over here and how busy she is, this case is massive. So it’s okay for her to be busy, but not the others apparently. Sometimes they need to do some things or they can be stipulated to. This information has been available for three months now and the defense is done nothing. As far as Johnny Fields and Michael Cooley admitting to him that he did the homicide, she said Fields was full of psych meds and other stuff. So she saying that he he is a drug addict or something I guess. She said she is only going to do brief testimony with Gary Harmon on the Mike Cooley process of exclusion, which is a very short test. So all proper procedures and notifications she said have been done. There was a lot more that she said, but is mostly repetitive. She went into one of her rants. She kept trying to interrupt the defense arguments and respond then instead of letting them finish. So she was a little worked up.

Judge Zuniga said the issue to this is the defense is claiming a due process violation and the defense of a third-party culpability and no one did say that Mike Cooley’s DNA was on the bullet, they asked if he tested for his DNA on the bullet. Which they didn’t at the time. The issue for Judge Zuniga is the defense and their third-party culpability. She says there defense claim is a due process violation is actually a valid claim and she needs to do some research in this area. She said the Mike Cooley issue started in Department 26 with Martha Magana talking about some of the issues with Mike Cooley and Jason Armstrong and Bobby Ticknor and some of those other people. During Gary Harmon’s cross-examination Judge Zuniga wondered and she had actually made a note of it, she said in her notes why was not Mike Cooley ever tested? She couldn’t figure out why he never was. That’s a question a lot of us were asking. She is saying the question to her is if this information now going to undermine the defense and possible due process violations? If she allows it, is it a violation of the defense rights? She needs to research it. This issue, she said, is troubling to her. I think the Judge is going to granted the defenses motion, but I have no way of knowing. I think she’s kinda leaning that way right now, but the wind might be blowing a different direction tomorrow.

That was it for the day. We got out there about 4:15 PM. The Attorneys are scheduled for 9:30 AM and the jury will be up at 10:00 AM.

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