Defense attorney seeks dismissal in Korey Kauffman murder case

An attorney claiming “outrageous government misconduct” is asking a judge to dismiss the charges against her client, who is among nine people charged in the murder of Korey Kauffman.

Martha Carlton-Magaña, Baljit Athwal’s attorney, says her client’s due process rights were violated by the actions of Stanislaus Superior Court’s presiding judge and District Attorney Birgit Fladager and that the only appropriate remedy is dismissal.

The attorney argues that in May 2012 Superior Court Judge Ricardo Córdova, presiding judge at the time, agreed that he and every other judge would recuse themselves from the Kauffman murder case at Fladager’s urging, without any details of the case.

“When the district attorney repeatedly interferes with that right by maneuvering behind the scene to interfere with the assignment of a judge, that is outrageous misconduct,” Carlton-Magaña wrote in her filing.

The attorney also argues that it should be considered misconduct when a presiding judge fails to give the other judges on the local bench the opportunity to decide for themselves whether their recusal is necessary.

Baljit Athwal and Daljit Atwal, who own the Pop-N-Cork Liquor stores in Turlock, and Robert Lee Woody are accused of participating in Kauffman’s murder in March 2012 and hiding the Turlock man’s body until it was found more than a year later in rural Mariposa County. Woody was the first defendant in the case to be arrested and has been in custody for more than a year.

Defense attorney Frank Carson is accused of orchestrating a criminal conspiracy that resulted in Kauffman’s death and the cover-up of his murder. Authorities allege Carson was frustrated with repeated burglaries at his 5-acre Turlock property and recruited a group to send a violent message to thieves stealing from him.

Carlton-Magaña filed the motion to dismiss Tuesday, and the document has been posted on the court’s website along with 80 other documents filed by the prosecution, the defense and the court itself. A response to the defense attorney from the prosecution or the court has not been posted online.

The case has not passed the arraignment phase for Carson, his wife and three others arrested on suspicion of murder last month in Kauffman’s death. The defendants charged with murder remain in custody. Three other defendants arrested last month on less serious charges in the Kauffman murder and released on bail have pleaded not guilty.

MEETING WITH PRESIDING JUDGE

On May 4, 2012, Fladager and Chief Deputy District Attorney Dave Harris met with Córdova, advising him of the Kauffman investigation without providing the judge any details, because the prosecutors said it was extremely confidential and they believed all the local judges would recuse themselves from the case, according to Carlton-Magaña’s motion.

The defense attorney based her written arguments on a filed affidavit in support of an application to intercept wire communications. The investigators were seeking cellphone and financial records.

According to the affidavit, the prosecutors reviewed the investigation and had determined the local judges would recuse themselves and not be able to review applications of search warrants. That decision was bolstered by the fact that Carson, the target of the investigation, had accused the presiding judge of being biased against him, and the Administrative Office of Courts had appointed a visiting judge to handle one of Carson’s local cases.

Córdova accepted the prosecutors’ representation that the local judges would likely have conflicts of interest in the Kauffman case, and court staff would contact state officials to find a judge from another county to review the wiretap application.

Fladager, Harris and investigator Froilan Mariscal on June 7, 2012, met with Córdova to ensure the prosecutor’s previous request was appropriate. This time, the prosecutors told the judge the nature of the alleged crime and that Carson was the target of investigation, according to the affidavit.

Córdova told the prosecutors that their request was appropriate and that he determined the local judges would recuse themselves from reviewing any warrants or this wiretap application in this case. The judge advised them to proceed as directed by the Administrative Office of Courts.

San Joaquin Superior Court Judge George Abdallah reviewed the wiretap application and denied it, based on a lack of probable cause, according to the affidavit. The judge also said he did not review the affidavit supporting the application and advised the prosecution that they were free to take the affidavit to another judge for review.

SANTA CLARA JUDGE APPROVES WIRETAP

On June 21, 2012, Santa Clara Superior Court Judge Risë Jones Pichon authorized the wiretap application. Later in the course of the investigation, Madera Superior Court Judge Mitchell Rigby reviewed and authorized additional wiretap applications, along with search warrants and arrest warrants.

Carlton-Magaña argues that it should also be considered misconduct when the local presiding judge fails to step in and stop the District Attorney’s Office from shopping around for judges to approve requests for wiretaps and warrants.

In another matter before the court in the case, the prosecution is challenging a defense request to reduce bail for Carson’s wife, Georgia DeFilippo. She initially was being held without bail, then a judge on Aug. 25 agreed to set her bail at $10 million.

Chief Deputy District Attorney Marlisa Ferreira argues that DeFilippo’s bail has already been reviewed and set at $10 million after an all-day bail review hearing, so the defendant must wait for another bail review until after a preliminary hearing to determine whether she will stand trial.

The prosecutor also argues that the defendant has failed to show good cause or a change in circumstances to grant a bail reduction, according to the prosecution’s opposition filed Thursday.

BAIL REDUCTION REQUEST

Judge Barbara Zuniga, a visiting judge from Contra Costa County assigned to handle the murder trial, has already heard some testimony regarding DeFilippo’s bail reduction request. Stephen Krimel, a defense attorney assisting Carson in the case and a Nevada bail agent, testified that DeFilippo’s bail should drop to $1 million.

At a Sept. 14 hearing, Krimel said DeFilippo owns at least four properties in the area, has family in the county and has no history of violence or substance abuse. Krimel also said she turned herself in, which “shows commitment and proper respect to the judicial system. ... She understands her obligations to the court.”

Zuniga is expected to take up DeFilippo’s bail reduction request at a hearing Monday.

Meanwhile, an effort by the State Bar of California to assume jurisdiction over Carson’s law practice continues, but there is some indication that a conclusion to this legal matter is near.

State Bar prosecutor Robert Henderson argues that Carson is incarcerated and incapable of devoting the necessary time and quality service to protect his clients’ interests. They say Carson’s clients could be harmed if action isn’t taken. At the time of his arrest, Carson was representing 71 clients in Stanislaus County.

If the court grants the application, the State Bar would notify all clients it took over the practice, advise them to obtain new attorneys and file necessary motions on their behalf.

STATE BAR CASE STATUS

In a status report filed Monday, Carson’s attorneys indicated that a large majority of his clients have agreed to be represented by other attorneys hired by Carson. Only three clients have not been able to be reached, and Carson will ask the court to withdraw from those cases as soon as possible.

Henderson has suggested that the State Bar’s concerns would be satisfied with the steps Carson has taken to protect his clients, according to the status report filed by Carson’s attorneys, Kathleen Ewins, Jessica MacGregor and Noah Rosenthal. But the State Bar prosecutor added that first the criminal court needs to approve the new attorneys or Carson’s withdrawal in each case.

Carson’s attorneys argue that if these requirements are met, the court should deny the State Bar’s request to take over his practice.

This story was originally published September 19, 2015 at 6:29 PM with the headline "Defense attorney seeks dismissal in Korey Kauffman murder case."