FRANK CARSON et al 11-15-2015 pm

SANCTION MOTIONS PUT ON HOLD (AGAIN)

by Marty Carlson

11-15-2017


The afternoon session was scheduled to start at 1330 hrs. and upon entering the courtroom all attorneys were called into chambers, in fact they were called in there twice that usually means some type of problem. Court finally went into session around 1400 hrs.

The judge stated that during the lunch hour she checked into the motion that attorney Hans when referred to in his argument during the morning. The judge was confused on whose motion it was initially that was filed and never saw Hans motion either. Apparently, she is also supposed be notified by email when these come in and she was not. She stated apparently this one fell through the cracks as it was originally scheduled to be on another date, but it did not happen.

She advised Hans that he can supplement his current motion that he’s arguing today and also give the District Attorney’s Office a chance to respond. There appeared to be a lot of confusion with judge Zuniga about when to have the remaining arguments of the sanctions motion. The district attorney also noted that they may want to put on some evidence.

Judge Zuniga stated that there was a tentative ruling in chambers and stated that she was looking at section 177.5 CCP, listed below, and called it a specific statute and not just a general statute for sanctions.

She then decided to discuss some scheduling, and then again really got confusing. She stated that she wants her the case cites by the 22nd in addition to the DAs opposition on the 22nd. She stated there is a 1538.5 hearing scheduled for the 28th and 29th possibly the 30th of this month, in addition to other motions like a 1539 contempt motion against Kirk Bunch. She also noted that there is a hearing this Friday at 11 AM and to tell you the truth I have no idea what that is for because this hearing was totally screwed up and unable to comprehend.

She also requested all attorneys to meet and confer for possible resolution of some of the in limine motions and other issues that are coming up.

Again, another reason why these hearings never get finished because of the lack of coordination and organization in this courtroom. It apparently does no good to put out a schedule of court dates because they constantly get changed, and like today attorney Hans argument got interrupted in the middle and is now unable to finish it in a timely fashion.

It is probably just a coincidence, but it is interesting that this occurred during a segment of Hans argument in discussing some of the issues with the evidence like the jacket and the shirt and discrepancy in the testimony and the so-called injuries in the clothes.

California Code of Civil Procedure Section 177.5

177.5. A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term person includes a witness, a party, a party s attorney, or both.

Sanctions pursuant to this section shall not be imposed except on notice contained in a party s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.


FRANK CARSON ET AL AM AUDIO 11-15-2017

080617_1506_WAZZUPDAWG1.jpg

Here is the am report

ROBIN BOYER GRANDAUGHTER RECIEVES RESPONSE FROM WHITE HOUSE…….

AS YOU CAN SEE ON THE AUGUST 11,2017 POSTING ON THE TOP ON DAWGS BLOG ROBIN BOYERS GRANDAUGHTER MADE A PLEA TO DONALD TRUMP TO TRY AND GET HELP IN HIS CASE, HER IS THE RESPONSE SHE RECEIVED:

THIS YOUNG LADY SHOULD BE VERY PROUD.

FRANK CARSON et al 11-14-2017 pm (Marty)

RECUSAL MOTION ARGUMENTS AND RULING

by Marty Carlson

11-14-2017

Even though it wasn’t in the order of events this afternoon, I am jumping to later in the afternoon when the arraignment of Walter Wells and Scott McFarlane was done in front of Judge Zuniga.


The judge confirmed that the attorneys and their clients have reviewed the complaints and noted a second time today that the complaint listed that included Patrick Hampton as an overt act is to be stricken as she stated Patrick Hampton has no credibility whatsoever. There were other sections that were strict and based on her rulings of the preliminary that were also stricken.

Scott McFarlane was arraigned on the charge of 32 PC and pled not guilty.

Walter Wells was arraigned on the charge of 32 PC and 182 a PC and also pled not guilty.

Marlisa Ferreira request a date of January 25, 2018 to come back to set the case for trial and a time waiver was given by both defendants as it is past the 60-day period to go to trial.

Peter Rodriguez, Walter Wells attorney, address the court asking that his clients bail be exonerated as it needs to be renewed next month if it continues. He requested his client bail status be set as an OR release. The District Attorney’s Office was opposed to that, but the judge stated that she was willing to exonerate his bail and to an OR release, but the conditions of his OR would be the same as the other three defendants that were released last December.

What that means is Walter Wells was out on bail was allowed to travel anywhere in the state, but not allowed to leave the state. Under the conditions of the OR release he is not allowed to leave Stanislaus County without the court’s permission. So instead of costing him another large amount of money for another bail bond he took had the conditions of the OR release. One other thing of note judge Zuniga ordered Walter Wells to surrender any firearms he may have in his possession, Judge Zuniga agreed that the firearms could be turned over to Walter wells his attorney and secured in his office for safekeeping. This is to be done by tomorrow. They also asked for a condition that he can travel anywhere in the state as he has relatives out of county, but the judge denied that request.

Walter Wells and Scott McFarlane cases were continued in till January 25, 2018 and 9:30 AM.

Continuing on in the recusal motion

The afternoon session started about 1350 hrs. with the Atty. Gen.’s office continuing her argument referring to the bar complaint alleged by the defendant that was made by the District Attorney’s Office but there’s no evidence on the record that occurred. Frank Carson’s allegations that he has filed a complaint but again there is no evidence of him doing that.

As all the attorneys she cited numerous case laws and I was unable to write them down. She referred to the lawsuit that was filed against the District Attorney’s Office personnel, re: Dave Harrison Steve Jacobson, but stated that Frank Carson is actually a witness in the other cases. She stated that prosecutors cannot recuse themselves due to lawsuits.

Miss Gimli from the Atty. Gen.’s office stated that prosecutors have immunity for their actions that they take the course of their duties. Prosecutors need to have no fear of lawsuits, by law, to keep them from having the fear of intimidation. Investigators do not make final decisions on the charges that are filed. District attorney Birgit Fladager would not be aware of the issues alleged involving the investigators. She stated that judge Zuniga did not find any misconduct in regard to the 1385 hearing and Marlisa Ferreira is not a witness in this case, but Ms. Nichols is.

She stated the argument of a conflict is weak and again no evidence of the DA went out of her way to show any bias and constantly stayed professional. She stated the Supreme Court has ruled that these issues are not a conflict. Recusal is only when a prosecutor has extraneous activities in a case. She stated there is no evidence to grant the motion.

At this time Marlisa Ferreira address the court stating the allegations made need to have substantial evidence and it does not meet the prima facie to disqualify the District Attorney’s Office in this case. She stated defense is not meant their burden, the declarations in the motion have no basis, and there’s no pinpointing evidence that anyone at any time used a personal bias in bringing these charges against these defendants. She stated in Birgit Fladager’ s declaration she had found that there were no personal issues used to determine whether or not the file charges it was all based on evidence.

She stated the lawsuits claim that it created animosity is ludicrous. Steve Jacobson does not come in until February 2014. When the search warrant was done on the Woody property. The information provided to simply does not fly. She also stated that Birgit Fladager was not aware of the lawsuit against Steve Jacobson.

The deals given to witnesses that are claimed in this case is flawed and does not make sense. The defendants in these deals are the witnesses and not the district attorneys handling the cases. She also stated that Betty Nichols, who she went out and talk to on her own, is the witness and she is not going to be called as a witness in this case.


She stated the evidence cited by Robert Forkner contradicts the allegations. Dave Harris and Steve Jacobson were involved in a contempt proceeding, and judge Steffens said no order to show cause was granted. The history between Frank Carson and the District Attorney’s Office started in the 90s prior to Birgit Fladager was involved as district attorney. She also noted some more case law and said the DAs office bus not be recused due to the fact they simply filed a case.

She noted that Frank Carson was not immediately arrested after the disappearance of the victim, but there was a long-involved investigation leading to eventual arrest several years later based on the evidence. She noted that there was no antagonism or resentment with Frank Carson by anybody from the District Attorney’s Office.

Robert Forkner then gave a rebuttal stating that Birgit Fladager filing a case due to animosity is not the reason for the motion. The brief is about the DAs office inability to act fairly without bias. The District Attorney’s Office put Frank Carson in this case and investigators were saying early on, like Kirk Bunch, that Frank Carson would be arrested. In fact, they had sought a Ramey warrant for Frank Carson’s arrest in April 2014.

Robert Forkner then reading from a transcript of the OSC by Judge Steffan, on a May 15, 2015 court date, stating that the order to show cause was in fact issued and he stated that the District Attorney’s Office is arguing apples and oranges. He went on to say Frank Carson filed a legitimate lawsuit and if the Atty. Gen.’s office would handle this case it would absolutely eliminate any bias that appears to be in this case.

Robert Forkner also went on to say that Marlisa Ferreira “called out” Ms. Nichols is not being truthful. He stated all the witnesses got sweet deals and numerous benefits for giving their information in testimony.

Attorney Hans then addressed the court regarding Marlisa Ferreira statements that Birgit Fladager declaration said she would not file charges unless evidence pointed to guilt. He noted that Georgia DeFilippo and Christine DeFilippo charges were dismissed as they were not held to answer. Proving that the charges were not adequate for a holding order.

ZUNIGA

At this time judge Zuniga started to make her ruling first saying that not holding a defendant does not undermined Birgit Fladager beliefs of reasonable doubt. She stated to Robert Forkner that she did not say the District Attorney’s Office did not handle the case badly or created misconduct in previous motion. She only stated they bumbled through discovery and were not prepared.

In regard to Ms. Gimli in the issues that she discussed during her argument the laws have changed and that particular case cited it says a court must determine if a conflict exists and it is so grave that the defense would not be treated fairly during the proceedings.

Again, quoting case law the defense bears the burden of a definitive conflict. She stated the win loss record of either party does not equate basis for a disqualification. District attorney’s that end up being witnesses in a case does not disqualify them. Previous hearings and hostile history between parties again does not give grounds for recusal. In previous cases like orange county there was a recusal when the District Attorney’s Office was putting informants in the same cell as defendants to gain information, and the district attorney office was complicit with law enforcement in those activities.

She stated due process was not given in other recusal’s. Judge Zuniga also noted that there is very little evidence left after she has stricken much of it and some of the arguments made by all parties were not actually part of the record. There was no record of Kathy criminals nor any information submitted about newspaper ads about Steve Jacobson.

She noted that the information in regard to Michael Cooley being released to visit his dying brother, and the confirmation that was done by Kurt Bunch in regard to that matter.

She noted the OSC dismissal for Dave Harris and Steve Jacobson is not part of the record in this motion.

She stated that motions need to be some reported by evidence in the affidavit.

She stated that some declarations that were made like Doug Manor are just opinions that are alleged about Melissa Ferreira. She stated in the Frank Carson declaration it is obvious that he has a great deal of contempt toward the District Attorney’s Office and its investigators. She says it showed in the declaration where the district attorney’s responses and declarations did not show that same contempt.

Judge Zuniga stated that Frank Carson has a confrontational and combative behavior in defending his clients. She stated that Frank Carson creates the conflict by his way of handling cases. That is not a basis for recusal.

The Atwals lawsuits shows you cannot ignore they were in instigation by Frank Carson after the disappearance of Korey Kaufman. She stated all of the arguments submitted are not endorsed by evidence in front of the court.

Judge Zuniga also noted it is unknown why they would think Ms. Ferreira would be called to testify when they have the witness, Ms. Nichols, that would be available.

Motion denied.

At that time court was adjourned to be continued for another motion on sanctions tomorrow at 9:30 AM in department two.

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

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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.