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WEEK 45, DAY 158




Today, I had to stay home in the morning to care for my puppy who had surgery recently. I decided to take a chance and attend the afternoon session. Boy was it a great afternoon. Judge Zuniga made her ruling on Marlisa Ferreira’s last-minute request to have DNA Expert Gary Harner come back to the stand, and to have Detective Cory Brown come back to the stand. I must commend the judge for making her best, and most cognitive ruling that I have heard. It was said succinctly, precisely, and eloquently. I am really getting the feeling that Judge Zuniga is concerned about having this be a fair trial. All week long, we have had a reporter from the Los Angeles Times in the courtroom. Many of the people in the audience feel that his presence has changed Judge Zuniga’s attitude. Whatever the reason for her change, it is appreciated by this writer.

The afternoon session began at 1:30PM with Judge Zuniga stating that she had reviewed her comments from yesterday afternoon. Judge Zuniga states that this is what a trial is all about, with each side trying to undermine the other side’s case. Judge Zuniga states that her issue is whether or not this situation creates a due process violation. Judge Zuniga states that the defense has argued that they will not be able to properly cross examine the expert witness because they were given no prior notice. Judge Zuniga: “Ms. Ferreira, you have been dismissive of the defense attorney’s comments.” Judge Zuniga: “As far as I am concerned, they have made sufficient record that they need time to prepare and have been deprived of the ability to call their own expert to review the evidence.” Judge Zuniga: “Fairness has always been an issue for me.” Judge Zuniga: “When you came in front of me yesterday, I became extremely angry.” Judge Zuniga: “At the side bar, you commented to me that I am on you all the time.” Judge Zuniga: “Yes I am.” Judge Zuniga: “The DA is held to a higher standard, which is the law.” Judge Zuniga: “If at the end there is a conviction, I want to be sure it is done right.” Judge Zuniga: “My frustration began in Department 26 because of the way you and your office handled the case made it much more difficult.” Judge Zuniga: “Hans Hjertonsson back in January wanted to know if you wanted to recall the DNA Expert, and an argument ensued.” Judge Zuniga: “You notified the defense attorneys at 9:00PM the night before and did not notify the court of your intentions.” Judge Zuniga: “The jury is always an issue, and we are abusing their time.” Judge Zuniga: “I was letting my anger to you affect my objectivity.” Judge Zuniga: “I needed to step back, and not let it affect my objectivity.” Judge Zuniga: “I realized the key issue is of late discovery.” Judge Zuniga: “I agree there is no law against new evidence being presented in a trial.” Judge Zuniga: “The issue is was the discovery provided in a timely fashion.” Judge Zuniga: “I made a comment to myself last night where I said: “How could you not know you were going to need to re-call the DNA Expert?” Judge Zuniga: “He is not a hostile witness.” Judge Zuniga: “I would have run him as well.” Judge Zuniga: “Percy Martinez and Jai Gohel stated that they can’t argue that it is Michael Cooley’s DNA on the bullet.” Judge Zuniga: “They have other evidence that points the finger at Michael Cooley.” Judge Zuniga now states that Gonzalez talks about this issue, and she cites Taylor vs Illinois. She states that these cases say that the court must determine how excluding evidence can affect a trial. She states that the Supreme Court has ruled that the court can’t allow the jury to be misled. Judge Zuniga states that the 3rd party culpability defense during the Preliminary Hearing was much broader than it is during the trial. She states that the defense is committed to the 3rd party culpability claim. Judge Zuniga: “That is still available.” Judge Zuniga: “The prosecution is trying to rip up one part of the defense’ case.” Judge Zuniga: “Would it have helped if the prosecution gave the defense a heads up on this?” Judge Zuniga: “Yes.” Judge Zuniga: “You argued to me that you were too busy.” Judge Zuniga: “I don’t know, or you just forgot.” Judge Zuniga: “The issue is whether it is fair, or is it a violation of the defendant’s due process rights?” Judge Zuniga: “You kept arguing that it is a proper rebuttal.” Judge Zuniga: “Jai Gohel argued that he thought this was going to be brought up in rebuttal.” Judge Zuniga now goes through the case law that Marlisa Ferreira provided in her arguments. She tells Marlisa Ferreira that Judge Simon disagrees with her arguments. Judge Zuniga tells Marlisa Ferreira that the court has discretion in this matter. Judge Zuniga: “As I pointed out, the only evidence that came out was impeachment on Michael Cooley.” Judge Zuniga: “That evidence still has to come in.” Judge Zuniga: “I assumed they are going to call Michael Cooley to testify.” Judge Zuniga: “I hear your argument Mam.” Judge Zuniga: “The record has been made Mam.” Judge Zuniga: “They have made the record that they are not ready to cross examine this expert.” Judge Zuniga: “Right now, I am focusing on the DNA.” Judge Zuniga: “The DNA evidence will not be allowed to be put in your Case in Chief, but you have a right to bring it up in rebuttal.” If the defense attorneys are careful about what they get into with their Case in Chief, there will be no rebuttal on this issue. Judge Zuniga: “The issue of CODUS is different.” Judge Zuniga: “It came up on your direct examination.” Judge Zuniga: “Hans Hjertonsson, on cross examination, explored false confessions on CODUS hits.” Judge Zuniga: “What you want to do is similar.” Judge Zuniga: “It reminds me of what you wanted to do with Mr. Cook’s testimony.” Judge Zuniga: “Mr. Harner was not asked to run the sample by you on CODUS.” This CODUS testimony is precluded Mam, it is not rebuttal.” It is now 2:04PM and Judge Zuniga instruct the bailiff to get the jury up into the courtroom. Judge Zuniga: “Your next witness is Kirk Bunch.” At this point, I could see Marlisa Ferreira looking like she was going to explode. She really looked defeated. It was another bad time for her to stop sniffing glue. Kirk Bunch looked like he was shocked by having to testify today and appeared to be red-faced the rest of the afternoon.

At 2:09PM, Marlisa Ferreira calls Kirk Bunch to the stand. He testifies that he has been in law enforcement for over 30 years. He states that he has worked for the Stanislaus County DA’s Office for 19 years. Before that, he worked for the Pittsburg, CA Police Department. He testifies that he has been involved with 35 homicide cases. Kirk Bunch testifies that he was part of the Central Valley Impact Gang Task Force. He seems to be getting very nervous on the stand at this point. He testifies that he was sworn in by the FBI as a Task Force Officer and has an ID badge. Kirk Bunch testifies that Officer Dave Shaw was also on the Task Force. Kirk Bunch states Dave Shaw was on the Task Force between 2004 and 2012, and he was on the Task Force between 2005 and 2013. He states that he has had over 100 hours of training, where he was assigned to multiple crime scenes. He is a member of the California Homicide Investigation Association. Kirk Bunch states that he has a BA in Public Administration. At this point, my notes say Bla Bla Bla as Marlisa Ferreira goes into an endless stream of qualifications concerning Kirk Bunch. Kirk Bunch testifies that it is not unusual for the Task Force to work with other agencies and investigations. He states that the Task Force was involved with several other homicides.

Kirk Bunch testifies that he began working for the DA’s Office in 2001 working with general crimes. He states that he was called by Detective David Shaw in April of 2012. He states that he has no bias against Frank Carson, and never planned to target Frank Carson. Marlisa Ferreira asks Kirk Bunch what was the nature of the call he got from David Shaw. This results in a side bar. After the side bar, he states he was contacted concerning a missing person’s case. Kirk Bunch testifies that he was provided details about the case by David Shaw. He states that David Shaw got this information from Michael Cooley and Eula Keyes. Kirk Bunch testifies that he then called Michael Cooley on 04/05/2012, and did not get an answer. He states that he then contacted Detective Jason Varner of the Turlock Police Department to discuss the missing person’s case. He states that he talked to the family of Korey Kauffman on 04/03/2012 to get more information concerning the case, and to get the names of associates of Korey Kauffman, and dental records. Kirk Bunch states he talked to Kevin Pickett, and that Kevin Pickett told him that Korey Kauffman went missing on 03/30/2012. This does not match the testimony of Kevin Pickett where he insisted more than once that Korey Kauffman went missing on 03/29/2012. Kirk Bunch states he talked to Jason Garner, and was told that Korey Kauffman went missing on 03/30/2012. Kirk Bunch states that he then talked to Detective Ken Barringer to try to get some new information. He states that he did not get new information from Detective Ken Barringer. Kirk Bunch now testifies that he had a face to face conversation with Michael Cooley at his Lander Ave home on 04/28/2012. He states that this conversation was recorded, and he got information concerning Korey Kauffman. Kirk Bunch testifies that Michael Cooley spoke to him about seeing around 15 pipes that were stacked up on the property behind his house on Lander Ave. He was told by Michael Cooley that these were irrigation pipes. Kirk Bunch states that he went to the back of Michael Cooley’s property during the night time to look towards the pipes. He states that Michael Cooley told him that the pipes were stacked up near a truck. We have another side bar. Kirk Bunch testifies that Michael Cooley told him that Korey Kauffman left the Cooley residence for the first time around 2:00PM, came back, and left the second time between 1:15PM and 11:30PM. He states that Michael Cooley told him that Korey Kauffman went out the front door, and went around the corner to a vacant field by a laundromat and was going to go onto Frank Carson’s property. Kirk Bunch denies that Michael Cooley told him about run- ins with Frank Carson. Kirk Bunch states that Michael Cooley told him that he had contacts with the people who lived behind him. Kirk Bunch states that Michael Cooley told him that the contact was Frank Carson’s brother who told him that he was a Private Investigator. Kirk Bunch testifies that Michael Cooley told him that he had contact with this person in front of his house on Lander Ave. Kirk Bunch states that he showed Michael Cooley a picture of Frank Carson during his next visit with Michael Cooley, and he identified the picture as the person he had contact with in his front yard. Kirk Bunch states he showed Michael Cooley this picture to confirm that the person was Frank Carson, or to eliminate the person as being Frank Carson. Kirk Bunch testifies that he has met Terry Carson, and has spoken to him. It is now around 3:00PM, and the jury is sent out for their afternoon break. Kirk Bunch steps down from the stand. Judge Zuniga tells Marlisa Ferreira: “Don’t do that” when she states that she wants to show that Terry Carson is not a Private Investigator. The courtroom is now cleared for the break.

At 3:23PM, the jury is brought back into the courtroom, and Kirk Bunch is put back on the stand. Kirk Bunch states that after he learned that Frank Carson was identified by Michael Cooley, he ran Frank Carson through the DA’s internal data base and did some research. He states that he then contacted the Stanislaus County Sheriff’s Department. Kirk Bunch states that he was able to learn who owned the property at 838 9th Street, who owned the property at 1364 Lander Ave, obtain phone numbers, and who was on the real estate titles to the properties. He states that the two properties were in two different jurisdictions. He states that this created an issue on who was going to store the evidence, and provide the services during the investigation. We now have a very long side bar. After the side bar, Kirk Bunch testifies that he then talked to his Supervisor Kevin Bertolotto, and requested more resources. He then met with Acting Chief Prosecutor Dave Harris, Sheriff Adam Christianson, a person named Ralph Gamenti (sp?), a person named Gene Ballentine, and Detective Ken Barringer at the DA’s Office. He states that Sheriff Adam Christianson decided at the meeting who was going to take charge of the investigation. He states that he then started working with Detective Cory Brown, Detective Ken Barringer, Detective Frank Navarro of the Turlock Police Department, and Detective Jon Evers of the Modesto Police Department. He states that the Modesto Police Department was included because of an anonymous letter that was received by the family of Korey Kauffman.

Kirk Bunch testifies that the first place that the investigators met was at the Stanislaus County DA’s Office on 05/10/2012. He states that the investigators then started meeting at the Ceres Police Department because of the security of that office. It is now 3:53PM, and Judge Zuniga sends the jury home for the day. She tells the jury to be back by 9:30AM, and to check their E-Mails. Judge Zuniga has Kirk Bunch step down from the stand. Judge Zuniga tells Marlisa Ferreira that she has a concern about what Kirk Bunch will provide concerning Dave Harris. She states that Dave Harris testified in the Preliminary Hearing about misconduct, and the mishandling of discovery. Judge Zuniga: “The issue is with your asking about the security at the Ceres Police Department.” At this point, Judge Zuniga realizes that Kirk Bunch is seated next to Marlisa Ferreira. Judge Zuniga: “Step out sir.” Marlisa Ferreira states that Detective Ken Barringer, Detective Frank Navarro, Detective Cory Brown, and Detective Jon Evers testified about the same thing. She states that the Ceres Police Department is away from other agencies, and was used to make sure the investigation remained confidential. She states that the investigators did not want the investigation to affect other cases that were being handled. Jai Gohel argues that suggesting that Frank Carson would get information he was not supposed to get is irrelevant. Jai Gohel states that implicating that the investigators were in danger might implicate his client, or the other defendants.

Marlisa Ferreira argues that the defense had argued that the investigation had been directed by the DA’s Office, and this rebuts their arguments. She states that the investigation was paid for by the Stanislaus County Sheriff’s Department. Marlisa Ferreira states that the Ceres Police Department was used to protect Frank Carson. This brought loud laughter from everyone in the courtroom. Marlisa Ferreira looked pissed at this laughter. Poor baby! Percy Martinez states that previous testimony has already shown that the investigators met at the Ceres Police Department. He calls this “Totally prejudicial.” Percy Martinez: “They are trying to describe a bunker.” Judge Zuniga disagrees, and says this issue of meeting at the Ceres Police Department is indeed relevant. She overrules the defense objection. Judge Zuniga now states that the details about the facility are irrelevant. She tells Marlisa Ferreira that she will need to know what she intends to ask Kirk Bunch about this. Judge Zuniga: “Have you provided the defense with discovery on this?” Marlisa Ferreira: “Yes.” We are now done for the day. I will be there tomorrow afternoon to report on what I see. I will be busy in the morning.

Sincerely; William Thomas Jensen (Tom)


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