I was not present but received a very good report of what happened today

DAWG

Present at lawyers table:
Prosecution:  Marlissa Ferreira and Kirk Bunch
Defense:  Robert Forkner and Frank Carson

Presiding Judge:  Zuniga

Scheduled for 9 am; Judge on the bench at 9:22 am

After courteous good morning greetings from the judge to the attorneys, Judge Zuniga started things off with a comment that seems to represent the mentality of the court.  Zuniga:  “Ok, ah, what are we doing folks?”

Note that it was very difficult to hear the defense attorneys as their microphones were not placed close enough to them. So, with that in mind, I tried my best to make out what they were saying. Likewise for Judge Zuniga.

Robert Forkner started the proceeding informing the Judge that the hearing was about the motion he filed, motion number 1585. However, before presenting that motion, he reminded the judge that though he had requested transcripts at the last hearing, over a month ago, he still hasn’t gotten them.  Zuniga wanted to know the date, which though relevant, the point is that he should have gotten them by now. Zuniga said she was smiling because this is  old times (I assume she is speaking of the beginnings of the Carson case?).  Forkner informed the Judge that Frank Carson would be arguing the dismissal issue.  

Zuniga questioned Forkner whether the dismissal is regarding Demur Dismissal Collateral Estopo? He clarified that the dismissal issue will be separate as he will be filing a separate motion 1385.

Frank Carson argued the current motion, citing factual findings on June 28, 2019; that once the verdicts of acquittal and innocence were read, it should have resulted in a dismissal of the prosecution of Walter Wells.  In April 2017, evidence was presented to the court that there was sufficient evidence to go forward with the Carson et. al case, which would include issues related to Walter Wells.  The prosecution did go forward and had their day in court, resulting in the longest trial in US history, and a complete vindication of the innocence of all parties.  The prosecution didn’t get the message, but the jury did.  

Frank mentioned that the prosecution should have interviewed the jury. Particularly with respect to evidence against Walter Wells, and particularly that presented by Mr. Cook.  They would have found out that the jury members didn’t believe any of the evidence presented by self-proclaimed cell phone expert Mr. Cook. Carson invited the prosecution to pick up the phone and ask any one of the jurors about the evidence of Mr. Cook.

Frank stated that the court has discretion to dismiss this case.  All the main defendants were cleared of all wrongdoing. It is intellectually dishonest to go forward. To think that another jury would find differently going forward is very unlikely.

Marlissa Ferreira began by stating that she has three issues and that she would stick to the facts.

I. Regarding Demurra, that Walter Wells took two pleas, one on arraignment and at another time took the same plea.  Apparently demurral should happen before the plea of the current litigation.(?) Zuniga wanted to know what issue Ferreira is referring to. She stated that since Carson didn’t discuss this, she would move on to point two.

II. Regarding Collateral Estoppel, it is for cases wherein the issues are argued and decided in a previous case.  

Marlissa argued that the citation in the defense motion isn’t applicable to this one for the following reasons:  

1) The cited case was a civil matter; this is a criminal case.

2) the issues must be identical; they are not.

3) The persons involved must be identical; they are not.  

4) The case was not litigated previously.

5) A decision was not made in regards to the person and the issues.  In this case, the jury didn’t decide anything about Walter Wells, even though some tangential matters involving him did come into that case.  

Marlissa presented some other citations that preclude Estoppel, including ones involving conspiracy. Lots of legal blah blah from my point of view.

She ended saying that nothing the defense presented warrants Estoppel.

Carson argued that it is well within the judges discretion to dismiss, citing that the jury found no crime committed by any of the defendants in the Carson et al case, which peripherally included Walter Wells. The same evidence will be presented in this case if it goes forward.  And, it would mean months of litigation with a foregone conclusion.

Zuniga cited that there was an agreement among the attorneys representing the CHP officers regarding separating the cases. Further, she states that the motion she is considering has no evidence warranting demurral has been presented and pleas have already been entered.  She speaks to each citation and why they don’t warrant demurral. Therefore she denies the motion for dismissal and will not exercise her discretion to dismiss the case. She states that passion and sympathy for Mr. Wells doesn’t warrant it either.

Forkner asks the Judge to hold off on ruling on this issue until after he submits a formal 1385 motion in a few weeks.  

Ferreira states that this motion has been presented and due process has been exercised and therefore a ruling is warranted at this time.

Zuniga states the motion as it stands now is denied as the law doesn’t support the motion, and she goes on to cite a few case authorities.

So there it is.  Motion to Dismiss denied.

Cleanup and scheduling dates:

Zuniga asks when Forkner will present the 1385 motion.  He states he will provide it by Friday November 22, 2019.

Ferreira states that she could respond by December 6th.

Zuniga isn’t available Dec. 6th through Dec 13th.  

A hearing is scheduled for 9am on Thursday December 19th

Discovery issues for reports from Jacobsen, Evers, Russcamp, and Bunch are discussed. Zuniga asks Bunch to contact the principals and find out whether there will be separate reports.  Bunch finds out that the reports are likely merged into one.

A pretty big “oh by the way”:  Zuniga casually states that she is investigating whether Frank Carson will be disqualified from participating in the Walter Wells case. She claims she may be obligated to do so. No time frame is given as to when she’ll decide this.

Forkner states that Carson has been building a considerable body of work in this case and that disqualifying him could result in significant delay.  

Zuniga responds that she will only do it if she is obligated.

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1 Comment

  1. Zuniga should disqualify Marlissa. Talk about a huge conflict of interest. How can she claim Carson has a conflict of interest? Although he has a tenuous financial interest in the outcome of the Wells’ case because of his wife and daughter’s lawsuit against Marlissa, Marlissa’s interest is far more direct and substantial. Marlissa should have been disqualified after the civil lawsuits were filed against her. I do not blame Zuniga for not wanting Carson on the case. She is just going to have to deal with it. She created this situation, IMO, now she gets to live with the consequences of the situation she created, in my opinion. Zuniga was over the top biased, IMO, for the prosecution. She did everything she could IMO to assist the prosecution and to damage the defense. If Judge Zuniga does not want to have to face Carson, she can just disqualify herself, and give a long, IMO, overdue apology to Carson and all the other defendants, which would be the appropriate
    and right thing for her to do, IMO.

    Judges like to believe there are no consequences for their actions…they would believe wrongly. A person reaps what she sews. Welcome to my little friend named Karma, she can be a bitch.

    It is a bit poetic when you think about it. The judge having to face the person she, IMO, has caused trememdous, unjustifiable harm to. I love it.

    On to collateral estoppel. The jury should be, no the jury must be informed that all the other defendants and alleged co-conspirators, other than Woody, were acquitted, as that issue has been resolved and decided. The issue is whether Wells can be found guilty if none of his alleged accomplices can be found guilty, well except for Woody. The question is: “Does the jury need to find that the other defendants were guilty in order to find Wells is guilty?” On the obstruction charge, probably not. But on the accessory charge, probably yes. So, the question becomes, “Does the jury need to find beyond a reasonable doubt that the underlying crime, for which Wells is charged as an accessory, happened?” If they do, then the case should be dismissed, not on sympathy, but on a lack of admissible evidence.

    Marlissa is wrong about points 3 through 5, IMO. The defendant need not have been a party to the prior proceeding, if he were, there would be no need for the collateral estoppel doctrine!

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