Judge: Modesto attorney Frank Carson, his co-defendants must post bail or go to jail

Frank Carson leaves court Monday (01-23-17) during a break at the Stanislaus County Superior Courthouse in Modesto, California.
Frank Carson leaves court Monday (01-23-17) during a break at the Stanislaus County Superior Courthouse in Modesto, California.

A judge has ordered Modesto attorney Frank Carson and his two co-defendants to post bail before Tuesday morning, or they will be sent to the Stanislaus County Jail as they await the conclusion of their trial in the death of Korey Kauffman.

Carson and brothers Baljit Athwal and Daljit Atwal are accused of murder in Kauffman’s death. The 26-year-old man went missing in 2012; his body was found more than a year later in Mariposa County.

Judge Barbara Zuniga on Aug. 28 revoked the defendants’ release from jail on their own recognizance. She said Carson was ordered not to communicate with his co-defendants; and they were not allowed to communicate with Carson, according to a court transcript of last week’s bail review hearing.

The judge said she made sure the defendants knew of these specific restrictions shortly before she granted their release from jail. She determined the defendants violated those conditions of their release.

“So there isn’t an issue, folks, that the defendants did not know what the OR (own recognizance) conditions were, and they accepted those conditions,” Zuniga told the attorneys last week.

In late December 2016, Zuniga abruptly released Carson, Atwal and Athwal on their own recognizance after prosecutors revealed they had located more evidence not handed over to the defense.

AA Carson Release10
Frank Carson thanks Tom Jensen and others after his release from the Stanislaus County Jail in Modesto, Calif., on Thursday, Dec. 22, 2016. Andy Alfaro

Last week, the judge set bail for Carson at $600,000; Daljit Atwal at $250,000; and Baljit Athwal at $200,00. Testimony in the trial was put on hold last week, and the jury was not in the courtroom. So, the judge gave the defendants a week to post bail.

“If they don’t, then on Tuesday morning they’re going into custody,” Zuniga said in court.

The defense attorneys argued that Chief Deputy District Attorney Marlisa Ferreira asked for a bail review hearing in retaliation after the defense caught her speaking to a witness outside the courtroom. The judge said she had given the prosecutor permission to speak to the witness.

Zuniga told the attorneys that Ferreira’s motivation was beside the point; the prosecutor has a responsibility to notify the court when a defendant is violating the condition’s of his release. The judge said she holds the prosecutor and Carson as officers of the court to a higher standard.

“He of all people should know what it means to comply with the terms of an OR release,” Zuniga said about Carson. “And he of all people should know how he should behave around witnesses.”

The judge determined that it was “intimidation,” when Carson reportedly made disparaging comments under his breath to the prosecution’s lead investigator Kirk Bunch. But Zuniga also was concerned that Bunch would respond to Carson’s comments and escalate the incident.

“Because of the history of this case and what’s going on and the nature of this litigation, he should not have said a word to Mr. Carson,” Zuniga said.

Prosecutors accuse Carson 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. The prosecution alleged Carson recruited a group of people to send a violent message to burglars, which resulted in Kauffman’s death after he was caught trying to steal irrigation pipes from Carson.

The defense has said this is a case of wrongful prosecution by a vindictive District Attorney’s Office intent on ruining Carson, a prominent criminal defense attorney. The defense attorneys have argued that the prosecution relied on witnesses who lied to investigators or on the witness stand after they were coerced by an investigative task force that ignored other potential suspects in Kauffman’s death.

The prosecution’s key witness, Robert Lee Woody, testified in the preliminary hearing that Baljit Athwal and Daljit Atwal were fighting with Kauffman on Carson’s property moments before Daljit Atwal shot Kauffman to death. He also has claimed that Kauffman’s body was buried just outside the brothers’ Turlock liquor store before Kauffman’s body was unearthed and dumped in Mariposa County.

The defendants’ trial began four months ago. The defense argued that the prosecutor’s motion for bail review should have been filed a year ago, when Ferreira first alleged the defendants were communicating with each other.

The judge seemed to agree with the defense, saying it would have helped a great deal if the motion had been filed in a more timely manner, “so we wouldn’t wind up where we are right now.” But Zuniga said she did not have to find that the integrity of proceedings had been violated to revoke the defendants’ release.

“The only thing I need to find is that a defendant failed to comply with the condition of his or her release,” the judge said.

Zuniga also said her 2016 order to release the defendants was contrary to law, because the law doesn’t allow a defendant charged with homicide and special circumstances to be released on their own recognizance. She said she doesn’t know whether her order would have withstood an appellate review requested by the prosecution.

“But it was something, I felt that it was right and that I had to do in order to resolve the case one way or the other for everyone involved,” Zuniga told the attorneys last week.

She was more concerned about what could have happened had she not released the defendants. Zuniga said she was worried any order for the defendants to stand trial would’ve been challenged by the defense and resulted in a dismissed case, throwing out all the testimony and evidence that had been presented in the previous 15 months.

Her order to release the defendants was in the middle of a record-setting 18-month preliminary hearing that ended in April 2017 with the judge ordering the three defendants to stand trial.