FRANK CARSON 11-17-2017 PM

CONTINUED SANCTIONS MOTION

By Marty Carlson

11-17-2017

This is the report on the afternoon session, try to bear with me it was very difficult to follow and contentious all afternoon.


Marlisa Ferreira continued her argument the afternoon and stating the circumstances surrounding the criminalist examination on February 10, 2017 and stated there was no further contact but there was an email on March 30, 2017 to Detective Cory Brown who was out of town for two weeks. At the time. The report was sent to the District Attorney’s Office on April 15, 2017. Now understand not all these dates may be precise I’m doing the best I can.

Marlisa Ferreira says the report was discovered twice during the preliminary hearing. States he could not have been disclosed any earlier as they did not have the information prior to the end of the preliminary hearing.

Mme. DA stated there is no authority to sanction under 1775.5 CCP. She stated there is only for cases cited for that section and they are for minor offenses like punctuality.

She also noted about the standard which the DAs are held to and there is no authority as the DA can hold evidence and not discover with no accountability. She is saying that that section 177.5 CCP does not apply nor does any other section. She stated these are preliminary hearing rules and not trial rules. She also noted any sanctions if any is a simple “do over” but no actual punishment to the district attorney office or any Deputy DA’s personally.

She stated some of the other cases under that section was one where a defense counsel was ordered not to make a particular argument to a jury, and another was a sanction over a frivolous appeal of the case.

She also noted the court does not have responsibility to enforce State Bar regulations, if an attorney willfully refuses a court order. She stated the sections are designed to keep cases moving forward and to prevent delays, and that is not the occurrence in this 18-month preliminary hearing.

She asked if any delay was caused by Brady violation or did it cause any unnecessary delays because of Brady violations. Or was it caused by bad faith actions or tactics. She stated the proceedings were continually stopped in this preliminary hearing because of the defense not the prosecution.

At this point judge Zuniga interrupted saying that on December 14, 2016 Martha Magana had received elite recording, with the witness it was on the stand, causing a delay.

Marlisa Ferreira stated the court needs to look at all the circumstances of that delay and was there any effort or willful conduct done on their part to implement that delay. She says all the facts and authorities show that there was no deliberate Brady violations especially after the defendants were released, as time was wave so no harm done to the defendants after that point.

She stated that these issues have led to improvements in the system as apparently it was in need and audits were done and upgrades were made. Stating that sanctions are unnecessary because the issues that caused the delays have been dealt with.

Judge Zuniga interrupted her again and stated that she totally disagreed telling Mme. DA releasing the defendants was not paid to sanction but an attempt to keep the sanctity of the process. She also stated that she was “fed up” with the way the handling of the discovery in this case. She also noted she has never seen such a bungling of discovery and any type a case in your entire career as a judge or a prosecutor.

Marlisa Ferreira for some reason says to the judge I’ll bet she’s never had a case like this.

Judge Zuniga stated she has never seen attorneys so contentious in all her years on the bench.

Mme. DA apparently would not stop talking and in fact interrupting the judge, and I noted judge Zuniga getting that irritated look on her face and still insisted under 177.5 that it does not change anything or for the future changes of already been made.

CCP § 128 (a) (4)

“(a)Every court shall have the power to do all of the following:(4)To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.”

Judge Zuniga asked if 177.5 does not apply then maybe what Percy Martinez said that 128.4 CCP does apply. It appears that Mme. DA does not know when to stop talking at times, and under 128.4 the District Attorney’s Office can be removed from a case or be ordered to pay defendant’s legal fees due to delays.

Marlisa Ferreira stated the 128.4 section only says if they failed to do it before the preliminary hearing was over.

Judge Zuniga he again interrupted and said the preliminary hearing was over and wrapped up, they were doing some final bits of business as all parties had rested. She stated judge him a new key ends order and her orders to comply with Brady discovery and the DA had not complied with those orders.

Again, Marlisa Ferreira felt that she needed to keep arguing with the judge and Saying that the preliminary hearing was over even though everyone had rested, and the defense had an opportunity to reopen as they did too. She then stated this is a no “harm no foul” issue.

At this time Percy Martinez started arguing to the court stating that they are going over the same things over and over again and getting repetitious. This is not necessarily problems with Marlisa Ferreira personally but the actions of the District Attorney’s Office and her inability to discover evidence. There had been repeated delays due to that late discovery. There was Brady material not disclosed until after the preliminary hearing. He stated the court has discretion.


Attorney Hans then started arguing that he does not know the infrastructure that is in place at the District Attorney’s Office. But he does know that information is continually not been turned over. The T-shirt and jacket photographs were taken prior to Marlisa Ferreira’s claims by the examiners. He stated there are pictures of the items at the Sacramento County District Attorney’s Office lab, in my earlier reports I may have said it was the Department of Justice and that was wrong, and the examiner was Jill Spriggs, who had taken pictures on January 18 of 2017, also on January 26 of 2017 an additional picture was taken on January 31, 2017. He stated Marlisa Ferreira did not go to the lab until February 10, but those pictures show a different story.

Attorney Hans continued saying Cory Brown to report say there is two bullet holes in the jacket, in 115 testimonies during the preliminary hearing Robert Woody son Woodrow said that his dad said there were several gunshots and the district attorney’s argument during her closing talked in multiple gunshots being fired. But again, Marlisa Ferreira had injected herself into this case and did not reveal that exculpatory information.

The DA says the jacket was in court, so everyone saw the bullet holes, but attorney Hans stated that is for experts to determine if there are bullet holes are not as there were numerous holes in all the items that were displayed. In addition, it was an extreme condition with the clothing as it been out in the elements for a long period of time and there is excessive deterioration.

Attorney Hans stated that the holes looked to him as possibly animals or many other things could have created those holes. Robert Woody stated he heard one gunshot so is it their theory that their main witness was then lying at the preliminary hearing. He stated Robert Woody statements are continually inconsistent and the victim, by Woody’s account, was never stabbed. Robert Woody also stated too many people during the body wire that the body was fed to the pigs on a farm.

On stated that the district attorney was privy to that information it did not let the defense know until later on when it was too late. The district attorney says there is an index of all the discovery but there are continued inconsistencies with the evidence in the statements by witnesses. The district attorney says some clothes were taken to be examined on February 10, 2017 but again dated lab photos show pictures of the items on January 18, 2017. He asked the court to impose sanctions to rectify the situation.

During the time we took a break in the hearing judge Zuniga revealed that the special master in charge of doing the forensics on Frank Carson’s computers had sent her a reply email. She has stated she ordered him to provide copies of the hard drive to Frank Carson and stated the special master was trying to get a hold of the forensic person in charge. She stated that she had advised the special master to provide a copy of the computers the Frank Carson by December 1. She also signed an order at that time at the bench for that to be done.


Getting back to the sanctions motion, at this point Marlisa Ferreira decided it was necessary to put Cory Brown on the stand. He stated there were items at the lab in Richmond, called Seri labs, that had the victim’s clothing initially and they had been moved to Sacramento district attorney office lab for further examination for blood and DNA. Apparently, there was an item that had been left at the Richmond lab, when it was transported by Dale Lingerfelt, and Melissa Ferreira and Cory Brown went to Richmond to get the shirt and then they went to the Sacramento County lab and met with the examiner.

During direct by Marlisa Ferreira Cory Brown stated the clothing was sent to Sacramento lab in December 2016 but the shirt, or at least item number CB 105, did not get there until February 10, 2017 when he hand-delivered it, with Marlisa Ferreira present. He stated the examiner made a determination in the coat there are two holes in the back of the coat that are consistent with gunshot holes, and the finding of lead on the material.

He also noted that the fabric in the coat in the armpit area had some cuts that were apparently made by his sharp object, but they were not tears. He said the examiner said the shirt was a different material, so she could not do an inspection of the shirt due to it would not show anything due to that material. At that point a little confusion was had by Detective Brown as about any prior dates and whether the shirt was already there. In fact, Marlisa Ferreira started objecting to Detective Brown’s answers when he started saying I believe, because he apparently was not sure.

She then had him step through the evidence stages saying the district attorney’s lab in Sacramento did not have all the clothing and there was one item left in Richmond. And on February 10, 2017 they had both picked up the item in Richmond and took them to the Sacramento lab. Again, the DA objected to a couple of Cory Brown’s answers because he did not seem real clear.

He stated that he received a report in his email from the examiner on March 30, 2017, but he was out of town on vacation at the time until April 7, 2017. Marlisa Ferreira started questioning that date and had him refer to a report that saying he returned to work on April 11, 2017 and had checked his email sometime after returning.

Cory Brown stated that he had a heavy workload due to some in custody deaths at the Sheriff’s Department, and some personal time he had to take off, and he had given that report to the District Attorney’s Office sometime after April 11, 2017 but he was not clear about when.

He also noted that he had not read that examiner’s report after receiving it, even though he printed it out and hand-delivered it to the District Attorney’s Office, but just recently found out two days ago that the examiner said there was a cut in the shirt that look like he was a slice by a sharp object. He also stated he was never told by Jill Spriggs what may have caused those cuts.

He also stated that the clothes were made available to defense attorneys prior to the preliminary hearing. He was also shown by Mme. DA the form that was filled out by him and taking property to the lab which he confirmed it was his handwriting and signature. Mme. DA then handed him a large stack of papers and asked him if he recognized with those paper was, and he stated the first three pages were his report the rest was information on the close in the report that was there was dated November 15 that he was asked to write.

Attorney Hans then began asking questions and stated it did not seem clear about what was picked up in Richmond. Cory Brown stated that he went to the Sacramento lab in January 2017 one time and one time only. He was shown a form from the Sacramento district attorney’s lab dated January 17 of 2017, that showed Dale Lingerfelt’s name on the form. Apparently, he had dropped off the property earlier.

Cory Brown also admitted Marlisa Ferreira as well as himself were asking questions of the examiner Ms. Spriggs and also stated that they had about a 25 to 30-minute conversation. He also admitted that he was not sure what was in the package, #CB 105, that he delivered after attorney Hans shooting pictures of the shirt being at the lab prior to February 10, 2017.

At that time Marlisa Ferreira asked Cory Brown again if he had never read the report on the cuts from the knife on the shirt, which he confirmed.

Percy Martinez finished it up by asking Cory Brown if he could not find the same findings on the shirt as was found on the coat on February 2017 because of the different materials.

All attorneys were done asking questions at this point in the judge advised that she is taking the ruling under submission and will rule within 90 days.

The sanctions motion is done and it’s up to the judge at this point the next court date is November 28, 2017 where they’re going to do in limine motions

FRANK CARSON et al 11-17-2017 AM AUDIO…….

122716_0836_WAZZUPDAWGP1.png

HERE IS THE MORNING REPORT

UPDATE ON FRANK CARSON MOTION ON JON EVERS…….

DAVE HARRIS LETTER TO MPD ON JON EVERS INCIDENT

11-15-2017

MPD logo

In the interest of trying to be fair in regard to the Jon Evers incident that occurred in 2007, I received information in regard to an audit done by Dave Harris of the Stanislaus County District Attorney’s Office and evaluate the incident that occurred at Jon Evers residence in 2007. Here is the report of the audit done by Dave Harris in December 2007, click below to see.

Harris audit

This is a subject of a motion that was filed by Frank Carson to see the previous post and motion click HERE.


FRANK CARSON ETAL 11-14-2017

HERE IS THE AM REPORT:

UPDATE: NEW FRANK CARSON ET AL MOTION…….

NEW MOTION FILED BY DEFENSE IN FRANK CARSON CASE

By Marty Carlson

11-13-2017

Evers.jpg

evers pitchess

On November 7, 2017 a pitchess motion was filed with Stanislaus County Superior Court, in an effort to get a court order to seeing the background and personnel file of Modesto police detective Jon Evers. Det. Evers was part of the task force assembled in the Korey Kauffman missing person case.

According to the brief filed there have been altercations at the Evers home where law enforcement had to get involved. In addition apparently there was a neighbor that got involved in the altercations too. There were some accusations of possible impropriety by the detective, that was on a computer, which had led to the altercations originally.

I will not go into great detail of the brief as you can read it for yourself and it is self-explanatory. And I personally hope that we do not have detectives involved in these activities. Future court dates will be interesting on this subject.

evers pitchess

WAZZUP DAWG: ABOUT JUDGE ZUNIGAS RULING……..

COMMENTARY ON JUDGE ZUNIGAS RULING

IN THE McFARLANE/QUINTINAR PRELIM

by Marty Carlson

11-4-2017

ZUNIGA

I took it upon myself to purchase the transcript for Tuesday, October 24, 2017 in department #4 when judge Zuniga ruled in the McFarlane/Quintanar preliminary hearing. I was very disappointed I was not able to attend that day that we got a good indication what happened reading Tom’s report plus now reading the transcript.

Talking to Tom and other people that were present in court, I was told that it appeared the judge seemed a little disheveled at times during her ruling and the transcript tends to bear that out.

She starts out by reading some case law in regard to its applications and some of the citations giving by the attorneys. She stated that she was reading out of Justice Simons book on preliminary hearings and was referring to she did the same thing when she ruled and the Frank Carson et al. preliminary hearing previously.

Specifically, she cited section 872 of the Penal Code and states, in substance, that if it appears from the preliminary examination of public offense has been committed and there is sufficient cause to believe the defendant guilty thereof, the magistrate must make in order holding him to answer. She also gave some citations on several cases, but for some reason felt the need to mention that was before the law had been changed to a gender-neutral wording.

She also cited some other cases referencing reasonable and probable cause in addition there was ironically a reference to the Cooley case which is unrelated to Michael Cooley in this case. She spent a lot of time prefacing her ruling and trying to show justifications. Also regarding a magistrates role in the proceedings.

Again, note I was not there, but talking to several people that were and looking at the transcript of the hearing it appeared the judge did seem a little bit the shelved and unorganized and was being very selective about her words. The hearing took about 1 hour and 27 minutes, and reading the transcript there was approximately 30 pauses where the judge either misspoke or was at a total loss for words, and appeared to be shuffling papers are trying to locate notes or information to refer to. This was also confirmed by people in the courtroom observing. She also had several instances where she misspoke and advised the court reporter to strike that part of the record.

Looking at the transcript it also appears that she had referred to some information brought out in the prior Frank Carson et al. preliminary hearing. Specifically, in the area of the threats that were allegedly made to Mike Cooley by Robert Woody and Bobby Atwahl. That was part of the reference that she used in holding Scott McFarlane. If she did not intend to do that that still the way the record reads, and it appears that she used information not brought out in this particular preliminary hearing.

It appears that she also was not clear about the relationship between Scott McFarlane and Frank Carson. She also seemed to give a lot of credibility to Detective Jon Evers who spent a large portion of his testimony on the stand stated he did not recall, and still had some trouble referring to his reports and notes. It also appears that she feels that Scott McFarlane was attempting to disrupt the investigation when he said he saw the alleged victim riding his bike the day after their timeline theory. Also note there was another witness that said the same thing but after investigators interviewed the gentleman he changes story is so many have in this entire case.

Scott McFarlane was a police officer who had initially made contact with Deputy Barringer of the Sheriff’s Department regarding this matter, but the judge did not seem to understand that he was always cooperative he’s a one that initiated contact with Deputy Barringer was part of the task force that was put together in this case. Apparently, the judge felt no significance that the investigators did not go back and talk to Scott McFarlane for two years after he had made that initial contact.

Apparently, the judge felt no significance that investigator Jon Evers felt that someone’s memory should never fail, as he put it, all of their lives in this type of situation. He was referring to Scott McFarlane who had not been interviewed for two years after he initiated contact but could not remember some details. Jon Evers stated on the stand doesn’t somebody’s memory should last a lifetime, but he could not remember interviews in a report that he had been reviewing for two days prior to him testifying.

The judge also took exception to some the arguments made by Marlisa Ferreira regarding conspiracy and aiding and abetting. She was very critical of the way Mme. DA made some arguments and the lack of facts or knowledge of the law regarding those type of crimes. And the lack of relevance and some of the evidence that she tried to enter, due to it being more character assassination of the defendants than actual evidence. But in my opinion, it appears it did have an effect the judge.

Some of the wiretaps she referred to, she did not like the way the officers talked. Eduardo Quintanar terminology of using the word “dude” and “bro” and it appeared that she did not think that CHP officers should talk in that manner. In addition, there was some wiretaps played in court where some disparaging comments towards women were used and she did not allow that evidence to be admitted as is not relevant, but it did appear that she had been offended and possibly developed a bias because of those terms used.

In the transcript she noted that just because someone refused to talk to the police does not make them an accessory, nor does it make them an individual responsible of obstruction of justice. And Scott McFarlane’s case he was a police officer that did what he is supposed to do, he gets paid to give information or take action concerning criminal activity, and that’s just what he did by contacting Deputy Barringer right from the start. In addition, he did not refuse any interviews and was always cooperative, and even the investigators stated on the stand that he was the most cooperative of the group. He was a police officer that’s what they’re supposed to do.

So, what have we learned here?

  1. Scott McFarlane cooperated with the investigation and has been held to answer,
  2. Eduardo Quintanar refused to cooperate and was not held to answer.
  3. As I have said many times it is not in your best interest to talk to investigators, but to an attorney first. This rule absolutely applies to police officers too, as they do not give up their right to self-incrimination or anything else just because they are a police officer.
  4. Also noted prior to Jon Evers testimony in the Frank Carson et al. preliminary hearing, he refused to testify about his actions during the investigation until he could talk to the union representatives and their attorneys. Keep that in mind when an officer says: “if you haven’t done anything wrong you don’t need an attorney.”
  5. The CHP command structure appears to be in a little bit of a disarray, that was also noted by Judge Zuniga throughout the hearing. Lieut. Domby could not testify regarding personnel matters concerning these officers. Even though I do not know for a fact, indications are, then Sgt. Domby had held those discussions with Kirk Bunch. For some reason Kurt Bunch’s conversations with command initiated an internal affairs investigation.
  6. Even though the district attorney’s office appears to be in a complete disarray at this time, especially in regard to discovery, the judge was very critical and even mentioned current district attorney Birgit Fladager by name when these issues came up before and she released all the defendants on their own recognizance is basis. Also at that time the judge stated that she had done that to save the district attorney case. More proof that judge Zuniga is acting in the best interest of the prosecution and not justice, after all she is a former prosecutor.
  7. Note Birgit Fladager had never made an appearance in the courtroom of any their preliminary hearings in this case, it appears she’s taking a hands-off position, even when the defendants got released on a capital case charge in December 2016. Note also Judge Zuniga called the district attorney out on that fact, but still did not induce Birgit Fladager to appear.
  8. Also note the inability of courtrooms to start on time, delaying the process for defendants to get resolution in their cases. This delays them in moving on with their lives in knowing which way they can go forward from there. An out of county judge who continually states she wants to get the case is resolved and move them along, they cannot get the court on time even when she is starting at later times. Defendants have a right to justice it appears that is been taken as a secondary consideration.
  9. Initially preliminary hearings were started to help weed out some cases that do not belong in the justice system. If you take a preliminary hearing for a simple DUI, you’re talking about less than an hour for prelim. You’re talking about a homicide case, like O.J. Simpson, his preliminary hearing took about 10 court days. For a preliminary hearing to last 18 months, which is as far as I can tell a record across the country, is unheard of and totally irresponsible of the justice system to delay it like that. In my opinion there are no excuses for that happening and there are many reasons for it happening.

    Understand I am not anti-law enforcement by any means, but I believe that the law enforcement community, based on the authorities and powers given to them should be held to a higher standard. In my personal opinion they are not living up to that standard, based on what I’ve seen in the activities and investigators in this case. And sadly, their testimonies on the stand or even worse than the investigations themselves.


FRANK CARSON ET AL 10-18-2017 (Tom)

HOPING FOR SANITY IN RULINGS

EXPECTING SOMETHING ELSE

FRANK CARSON ET AL CASE

10/18/2017

jensen

BY WILLIAM THOMAS JENSEN (TOM)

I was in the courtroom yesterday, but coming down with some sort of stomach ailment. Listening to Marlisa Ferreira, and her outrageous arguments made me physically ill. I am better this morning, and I will try to give you a short opinion piece of what I think is happening. Marty Carlson has provided you with an excellent account of the details of what happened yesterday, so I will not try to duplicate what has already been done.

My impression of what I witnessed yesterday is that Marlisa Ferreira was doing everything she could to take up as much time as she could. She literally did not leave the defense attorneys very much time to present their arguments. I found her arguments to be filled with untruths, and her assumptions to be absurd. She seemed to be trying everything she could to get the judge to issue holding orders on the very thinnest technicalities of the law.


At times yesterday, I felt that the judge was seeing through the smoke and mirrors Marlisa was trying to use. At other times, I saw a judge that seems to be determined to issue holding orders.

I was particularly upset about Judge Zuniga’s reluctance to take up the issue of sanctions. Sanctions were supposed to be dealt with yesterday, but once again, Judge Zuniga refused to allow them to be discussed. This issue was moved once again to November 14th. There is much to be done on that day, and I don’t have any faith in Judge Zuniga to actually impose any sanctions against the prosecution. She seems to be doing everything she can to keep this freight train rolling down the tracks, and issuing sanctions will complicate her plans.

Defense attorney Robert Forkner wants the computers that were seized from Frank Carson returned. They have been searched extensively, and have been in the possession of the DA’s Office for over two years. Marlisa Ferreira wants to search the computers using a different key word. Judge Zuniga stated that Marlisa will have to seek a new search warrant from another judge in order to do this expanded search. This issue is going to be taken up again on November 14th. There was some talk from Robert Forkner about having all the papers being sent to a neutral magistrate.

Next Tuesday, at 10:00AM, I expect Judge Zuniga will defy all logic and hold Eduardo Quintanar and possibly Scott McFarlane over for trial. There really is no evidence to support holding orders, but I have the feeling that she is determined to find a way to justify insanity. In the end, a jury of twelve sane people will put an end to this travesty of justice.

Sincerely; William Thomas Jensen (Tom)