RECUSAL MOTION ARGUMENTS AND RULING
by Marty Carlson
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.
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.
At that time court was adjourned to be continued for another motion on sanctions tomorrow at 9:30 AM in department two.