“How does this happen?”
Judge Barbara Zuniga asked that question of Stanislaus County Chief Deputy District Attorney Marlisa Ferreira three times within a minute Thursday morning during the preliminary hearing for Modesto attorney Frank Carson and two co-defendants charged with murder.
The prosecution had just revealed it found additional evidence Wednesday night in the form of recorded conversations – 82 audio files – and “four regular folder files” that may or may not have been turned over to the defense. The news prompted the judge to later claim she’d never seen a District Attorney’s Office make so many mistakes “with respect to discovery.”
Carson and brothers Baljit Athwal and Daljit Atwal, accused in the killing of Turlock resident Korey Kauffman in March 2012, had been held in custody without bail since their arrests in August 2015. On Thursday afternoon, Zuniga ordered their release from jail on their own recognizance after prosecutors’ disclosure. She also said she’ll impose sanctions on the District Attorney’s Office.
“I realize that this is completely unacceptable to the court, as well as to defense counsel, on the eve of our resting in the case and closing arguments are due to begin ... ,” Ferreira said, according to a court transcript. “I apologize for the late discovery, for these issues, and we are trying to address it within our office to provide the defense with the basis so that they can make their defense in the case.”
The apology was followed by Zuniga’s repeated demand to know what happened. “I thought you had a procedure,” the judge said. “We went through this problem that your office is having with respect to discovery.”
Zuniga said District Attorney Birgit Fladager should have been in the courtroom Thursday. “It is her reputation that is on the line. She sets the example for people in her office. This is totally unacceptable.”
After Ferreira said Fladager was out of town for the holidays, the judge added that given other problems with the sharing of evidence discovery in the case, the district attorney “should have been sitting here and hearing what the problems are in your office. I don’t get it. I have never seen a case of this magnitude – as you know, I have tried some cases of some magnitude – where the District Attorney’s Office has made so many mistakes with respect to discovery.”
In an email to The Bee on Friday, Fladager said, “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.”
Ferreira told the judge of a meeting held, at the court’s request, for all agencies involved in the prosecution. The agencies were asked to review all their documents, audio, evidence lockers and more, then bring anything they found to the DA’s Office. The meeting led to photographs, recordings and more that were provided in September, Ferreira said.
She said the discovery brought up Thursday morning was in the possession of the DA’s Office but “inadvertently not disseminated” to defense counsel. “When you asked me, ‘How does this happen?’ I can only say that it shouldn’t happen and I’m apologizing that it did,” Ferreira said.
The apology didn’t fly with defense attorneys. Percy Martinez, representing Carson, said the defense has “over and over and over again” raised the issue of the prosecution not complying with its discovery obligations.
The newly shared evidence is information the prosecution has had since 2014, he said. The court has bent over backward to have the DA’s Office comply with its obligations, Martinez told Zuniga.
Because the defense now has 82 audio discs to review, delaying the case, the attorneys asked that Carson, Atwal and Athwal be released.
“It’s just reprehensible that here we are on the eve, and they want to say, ‘I’m sorry’?’ ” Martinez said. “On the eve of closing their case and right before argument, they present us with these 82 discs or files, and they want to say, ‘I’m sorry’? There has to be some sanction for their outrageous conduct, your honor.”
Michael Vitiello, a professor at the McGeorge School of Law, told The Bee it’s “pretty much unheard of in criminal law” for a preliminary hearing to go on as long as this one has. The hearing began in mid-October 2015. “If there is significant evidence that these are the people responsible (for a murder), then the handling of this case is just a terrible injustice.”
Hans Hjertonsson, attorney for Atwal, said in court Thursday that when the defendants in the murder case were arrested, the prosecution already should have prepared all discovered evidence and provided it to the defense. He said issues have been “ongoing since early on. ...”
“And that’s where the problem is. They do not have the infrastructure to deal with this. They should have done that from the start. They have an obligation to provide us with all the discovery.”
Ferreira said she and lead prosecution investigator Kirk Bunch take full responsibility for the problem. Zuniga replied that the problem lies with the “internal structure” of the DA’s Office. “There really needs to be some something done by your office for the individuals who are responsible, the supervisors who are responsible for what happened,” she told Ferreira. “Yes, the ultimate responsibility lies with you and – it’s actually with the DA.”
Fladager agreed. “No one understands the obligation to do our best more than I do,” she told The Bee. “If there are any shortcomings or failures, it is my responsibility as the elected district attorney.”
Zuniga said she ordered the release of the three defendants not as a sanction against the DA’s Office but as a move necessary to protect “the integrity of the proceedings.”
But she quickly added that she does intend to impose sanctions. “I just need to find the appropriate section” under the Code of Civil Procedure, she said. “... I want to sanction the DA’s Office so that it sticks and it doesn’t get reversed.”
She referred to Section 128.7, which allows the court to impose a sanction upon attorneys, law firms and other parties that have violated discovery procedure. It says a sanction “shall be limited to what is sufficient to deter repetition of this conduct.”
It also says a “sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or ... an order directing payment ... of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the violation.”
Zuniga said the hearing will resume Jan. 3 and indicated an urgency to conclude the preliminary hearing. “I don’t want to do a week here, a week there. ... We have to finish this.”
Bee staff writer Garth Stapley contributed to this report.
Deke Farrow: 209-578-2327