Carson preliminary hearing, already longest in county history, on hiatus for a month

A judge on Tuesday placed a 15-month preliminary hearing for six defendants charged in the Korey Kauffman slaying on hiatus until February to give defense attorneys time to review evidence the prosecution did not reveal until recently.

The hearing to determine whether a trial is needed began in mid-October 2015 for Modesto attorney Frank Carson and five other defendants. Carson is accused of being the ringleader of a criminal conspiracy to thwart thieves from repeatedly stealing antiques and scrap metal from his property on Ninth Street in Turlock.

Carson is being prosecuted with his wife, Georgia DeFilippo; her daughter, Christina DeFilippo; Baljit Athwal and his brother Daljit Atwal; and former California Highway Patrol Officer Walter Wells. Christina DeFilippo is charged with conspiracy to obstruct justice and being an accessory; the other defendants each face a charge of murder in Kauffman’s death.

Judge Barbara Zuniga abruptly released Carson, Atwal and Athwal on their own recognizance last month after prosecutors revealed they had located more audio recordings in evidence not handed over to the defense. Wells was released from jail Dec. 13 on $50,000 bail. These defendants had been incarcerated since their arrest a year and a half ago.

The prosecution believes Carson recruited a group of people to send a violent message to burglars, which resulted in Kauffman’s death after he was caught stealing. The defense believes this is a case of wrongful prosecution by vindictive prosecutors intent on ruining a prominent criminal defense attorney who has been successful in defending his clients.

Martha Carlton-Magaña, Athwal’s attorney, told the judge that the prosecution suppressed evidence that supports the longtime contention that her client and his brother are innocent. She said this information was left out of the warrants used to arrest the defendants in August 2015.

“This case should be over, yet here we are,” Carlton-Magaña said in court.

She said the prosecution’s conduct will likely extend the hearing a few more months. The defense attorney told the judge she’s hopeful the court will impose an appropriate sanction for what she considers to be 108 incidents of contempt of court by prosecutors.

On Tuesday morning, Chief Deputy District Attorney Marlisa Ferreira went over an itemized list of 108 audio recordings that had not been provided to the defense. The prosecutor said some of those recordings were already included in police reports and video recordings.

Hans Hjertonsson, Atwal’s attorney, told the judge that audio recordings paint a different picture than the information in the police reports.

Percy Martinez, Carson’s attorney, told the judge they need time to review more than 100 hours of audio recordings. He said they need to determine what information the defense should’ve had before proceeding with the preliminary hearing.

Martinez said the recordings include a March 2014 interview of key prosecution witness Robert Lee Woody, who agreed to a plea deal in exchange for his testimony. Woody, who is being prosecuted separately, was the first person charged in Kauffman’s slaying and remained in jail for more than a year before deciding to cooperate with the prosecution.

Woody claims Kauffman was shot to death on Carson’s property and he helped move the 26-year-old man’s body. Martinez argued Tuesday that the audio recording shows Woody denies any knowledge of moving Kauffman’s body, and prosecution investigator Kirk Bunch telling Woody to consider how his statements can affect his own charges and “sleep on it.”

Zuniga said she is concerned the Stanislaus County District Attorney’s Office will continue to find more audio recordings as prosecutors audit the information they gathered in the murder case that dates back more than four years, not long after Kauffman disappeared in 2012.

The judge told the prosecutor that someone not involved in the murder investigation needs to review the prosecution’s master list before the hearing resumes Feb. 7.

“Because this has got to end,” Zuniga said in court. “This has really got to stop.”

Ferreira told the judge that they worked every day since Dec. 22, except Christmas and New Year’s days, to create an indexed list of 108 recordings that had not been provided to the defense. She said they will continue to work on creating the master list of evidence and identifying someone to be in charge of the list.

The prosecutor mentioned that District Attorney Birgit Fladager is back from vacation now and able to assist. But the judge pointed out that Fladager was not in the courtroom Tuesday. On Dec. 22, Zuniga said Fladager should have been in the courtroom that day, because it’s her reputation that is on the line.

Robert Forkner, Christina DeFilippo’s attorney, asked the judge to defer her ruling on sanctions against the prosecution until after the defense has a chance to review the recordings. He said some of these recordings are interviews of witnesses who have already testified in the hearing.

The judge said she intends to impose sanctions on the prosecution for withholding this information, but she first wants to determine what extent of the information was already provided before deciding what sanctions will be imposed.

“It’s not something I’m going to do until I have full understanding of the violations,” Zuniga told the attorneys.

Former CHP Officers Eduardo Quintanar Jr. and Scott McFarlane are charged with conspiracy to obstruct justice and being accessories in Kauffman’s death. They also are being prosecuted separately. The judge on Tuesday scheduled them to return to court March 23.

This story was originally published January 3, 2017 at 1:18 PM with the headline "Carson preliminary hearing, already longest in county history, on hiatus for a month."