CONTINUED SANCTIONS MOTION
By Marty Carlson
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