Fifteen months into the longest preliminary hearing in Stanislaus County history, Judge Barbara Zuniga hit her breaking point in a case that appears to be unraveling.
Before she let Frank Carson, a prominent Modesto defense attorney, and two other defendants charged in the Korey Kauffman murder case out of jail Dec. 22, Zuniga called out District Attorney Birgit Fladager about as pointedly as possible. She chastised Fladager for not being there in the courtroom to answer for yet another instance in which her prosecution team suddenly turned over discovery that the defense should have had all along. Discovery is legal jargon for evidence the prosecution must share with the defense.
Prosecutor Marlisa Ferreira told the judge she bore responsibility. DA investigator Kirk Bunch said he did, too. And, later to The Bee, so did Fladager, who responded by email while she was out of town for the Christmas holiday. But Fladager wasn’t there in the courtroom when it counted, which clearly peeved the judge.
This case could ultimately define Fladager’s tenure as the county’s district attorney. Her office charged a local attorney and former political opponent with murder, putting him behind bars since August 2015 and embarking on a case that is rumored to have cost the county millions with the meter continuing to run. And if they lose or Carson isn’t even held over for trial, think federal civil rights lawsuit and more taxpayer dollars.
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“It is her reputation that is on the line,” Zuniga said, according to the court transcripts. “She sets the example for people in her office. This is totally unacceptable.” Later, she added, “I don’t get it. I have never seen a case of this magnitude – as you know, I have tried some cases of this magnitude – where the District Attorney’s Office has made so many mistakes with respect to discovery.”
Which means Fladager indeed should be there in person when the case resumes Tuesday, if only to support her staff and take the heat as the county’s highest-ranking elected law enforcement official. But she said by text message Friday she will be at a meeting in Sacramento instead.
In an email to The Bee, Fladager offered lawyerspeak:
“Challenges and complications are inherent in prosecuting any serious case, and we address each one realizing we face the usual restrictions of short staffing, limited resources and a massive caseload of tens of thousands of other cases. In this prosecution, we have already provided over 10 terabytes of data to the defense. That is a massive amount of discovery in a murder case.”
None of that matters to the judge. Zuniga cares only she that told the prosecution to get its discovery act together long ago, and the problems keep resurfacing. Zuniga promised sanctions against the prosecution, which she could announce as soon as Tuesday, when the preliminary hearing resumes. Sanctions, according to California Penal Code Section 128.7, could range from fines to cover attorneys’ fees for time spent reviewing the late discovery items to “nonmonetary directives.” A retired local judge told me Zuniga could opt to forbid the prosecution from using any new information gleaned from the discovery against the defendants while allowing the defense teams to use whatever evidence benefits their clients.
All of which suggests the DA’s case against longtime courtroom nemesis Carson – never smoking-gun damning to begin with – is in trouble. Murder defendants almost never are freed on bail or their own recognizance. Zuniga obviously does not deem them the same kinds of threats to society as does the DA, and their releases certainly must be humiliating to Fladager and her charges. That Ferreira and Bunch exited the court through the rear of the building and avoided the media following the Dec. 22 hearing certainly does little to bolster confidence.
A ninth defendant who is being prosecuted separately, Robert Lee Woody, is the only defendant remaining in custody. After cutting a deal with prosecutors to testify against Carson and the others, he then recanted much of his testimony. (“When a case is cast in hell, you don’t have angels as witnesses,” the old legal adage goes.) He is scheduled to be sentenced Jan. 26.
Zuniga said she released Carson and co-defendants Daljit Atwal and Baljit Athwal not as a sanction against the DA’s Office, but as a move necessary to protect “the integrity of the proceedings,” to limit the risk of any potential guilty verdicts being overturned on appeal. Thus the preliminary hearing will resume Tuesday, and when it finally ends some day, Zuniga will determine whether the prosecution made strong enough cases to hold over all or some of the defendants to stand trial.
The DA’s mistakes have made a sympathetic figure out of Carson, a talented but bombastic attorney who has tormented them while defending clients in criminal cases for years. The most recent problem with discovery only bolsters the suspicions of Carson’s backers: that the DA is prosecuting him as retribution for beating prosecutors in court, including a case in which Chief Deputy DA David Harris and investigator Steve Jacobson faced contempt of court charges that were dropped only after the defendant, a bail bondsman, was acquitted. Carson’s supporters also believe the DA set out to personally and professionally destroy Carson because he challenged Fladager for her DA job two years ago. Fladager won with nearly 71 percent of the vote.
Meanwhile, her office has experienced much turnover in recent years, with veteran prosecutors taking jobs elsewhere. Among them, John Goulart went to work for the city of Modesto and Tom Brennan, who once teamed with Ferreira to prosecute gang-related crimes, left for the State Attorney General’s office in Sacramento. John Baker went to Tuolumne County and then to Madera. And longtime prosecutor Douglas Maner claimed his civil rights were violated when he was demoted after backing Fladager’s opponent in the 2006 election. He lost the federal lawsuit, but has appealed the decision.
Again, the judge cares about none of that. She wants only to try the Kauffman case by the book and demands that the DA quit misplacing the pages, no excuses.