Defense seeks dismissal in case against attorney, five others charged in Kauffman slaying
A defense attorney has filed a motion to dismiss the case against Modesto attorney Frank Carson and five others charged in the death of Turlock resident Korey Kauffman.
Robert Forkner filed the motion Monday. He focuses some of his argument on witnesses in a preliminary hearing for the defendants. He claims the prosecution violated court rules by failing to disclose in a timely manner information about promises of leniency to these witnesses in exchange for their testimony.
Forkner calls the prosecution witnesses a “group of career criminals.” He suggests that the prosecution is misleading the court in an effort to sell a story that a methamphetamine-fueled theft ring that spends its days looking for lost kitties and toting around dead dogs like luggage “wouldn’t have hurt a fly.”
Some of these witnesses were among those who last saw Kauffman alive March 30, 2012.
“This court should dismiss this case against all defendants of both prosecutorial misconduct and prosecutorial error,” Forkner wrote in his motion. “This dog of a case needs to be buried and stay buried.”
Chief Deputy District Attorney Marlisa Ferreira filed an opposition to the defense motion Friday.
“The defendant’s motion is unsupported by relevant facts or law,” Ferreira wrote. “To quote Mr. Forkner, it is ‘a veritable screed of alleged misconduct, innuendo and character assassination.’ ”
The judge has scheduled the dismissal motion to be heard Thursday. But the matter might have to wait until after the conclusion of an evidentiary hearing to determine whether leniency was promised or given to witnesses. The hearing, which began Nov. 5 and continues Tuesday, has stalled testimony from witnesses.
The prosecution alleges that Carson was frustrated over repeated burglaries on his property on Ninth Street, so he recruited a group of men to send a violent message to those thieves. Testimony in the hearing has indicated that Kauffman said he wanted to steal irrigation pipes from Carson’s property, and he disappeared later that night.
Forkner argues that the prosecution has no intention of providing exculpatory evidence unless the defense discovers it on its own or the court orders it.
“The mindset of withholding and ambush makes tactical sense if you know you’ve gone over the line in trying to arrest and convict,” Forkner wrote in his motion.
The chief prosecutor has told the judge that neither she nor anyone else associated with the prosecution has met with witnesses to discuss leniency since the preliminary hearing began Oct. 13. Ferreira has argued that there hasn’t been any time to negotiate deals with any witnesses. She has said in court that there will be testimonial agreements with these witnesses in the future.
Forkner argues that the preliminary hearing has already revealed that assurances, benefits and considerations of leniency have been extended to each prosecution witness who has faced charges or court sanctions since 2012.
The defense attorney claims the prosecutor is misleading the court when she says no deals have been made with witnesses, because authorities promising the possibility of leniency is relevant to determine the witnesses’ motivation for providing testimony. “It violates both the spirit and letter of the law which requires disclosure of inducements (for testimony),” Forkner wrote in his motion.
Ferreira argues that she has given the defense information about the witnesses’ pending criminal cases. She says the witnesses have been extensively cross-examined about whether they’ve been offered plea deals. She also says the judge can assess the credibility of the witnesses’ potential motivation.
A deputy public defender has testified that Michael Cooley was promised leniency in unrelated criminal cases in exchange for testimony in the Kauffman slaying case.
Cooley is a defendant in two pending drug cases. Prosecutors have asked to delay the cases to continue negotiating a possible plea deal. His attorney said Cooley has been promised he will not serve prison time in the drug cases.
Forkner claims the prosecution’s case against Carson and his co-defendants is weak. He says prosecutors have not provided real compelling facts, hoping the judge will accept questionable evidence and “mistake smoke for fire.”
Rosalio Ahumada: 209-578-2394, @ModBeeCourts
Witnesses’ other cases
Defense Attorney Robert Forkner and Chief Deputy District Attorney Marlisa Ferreira are at odds over unrelated criminal cases involving prosecution witnesses in the Korey Kauffman murder case.
Armed robbery
Forkner argues that the defense wasn’t aware that Michael Cooley and Keith Hobbs, the son of Cooley’s girlfriend, Eula Keyes, were suspects in a “brutal armed robbery” until the day after Keyes finished her testimony.
Cooley and Keyes were among those who last saw Kauffman alive before he left their home. A cyclone fence separates Cooley’s home on Lander Avenue from Carson’s 5-acre property, where he houses numerous antiques, old vehicles and piles of scrap metal.
The attorney says the Stanislaus County District Attorney’s Office decided not to file charges against Cooley and Hobbs two days after they were arrested, even though Hobbs was reported to have been found in a vehicle with the victim’s stolen property and knives the victim said were used in the robbery.
Ferreira argues that the victim and a witness did not implicate Cooley in the reported robbery. She also says prosecutors in that robbery case noted that statements from Hobbs and two other witnesses were consistent about a heroin theft occurring, not a robbery. The prosecutor felt the victim lacked credibility due to drug use at the time of the incident, and the case against Hobbs couldn’t be proven beyond a reasonable doubt.
Stolen antiques
Keyes has testified that Michael Cooley, his brother Rick Cooley and their sister Linda Burns were involved in sales of antiques stolen from Carson’s property. Forkner argues that none of the prosecution witnesses has been criminally charged.
Ferreira says police tried to investigate the possible thefts, but Carson refused to be questioned.
Embezzlement
Sabrina Romero faces a felony charge of embezzling from an employer in a February 2013 unrelated case. Forkner argues that Romero’s case has repeatedly been postponed. “On an embezzlement charge, in this county, that is unheard of,” Forkner says.
Meth sales
Keyes testified that she has admitted to investigators that she was selling meth. Forkner claims Keyes was not booked at the jail after her February 2014 arrest, and that prosecutors rewarded her with a diversionary drug program in exchange for her continued help on the Kauffman case.
Domestic violence
Ronald Cooper Jr. was accused of breaking into a home carrying a knife and threatening to kill his girlfriend. Forkner has argued that Cooper could have faced up to 25 years in prison, but he received a plea deal from the prosecution that resulted in a four-year sentence.
Ferreira argues that authorities could not find the woman said to have been the victim in the domestic violence case to serve her with a subpoena. Because Cooper was refusing to waive his time to a preliminary hearing in a timely manner, the prosecutor in that case offered the plea deal to make sure the defendant spent some time in prison.
This story was originally published November 14, 2015 at 4:24 PM with the headline "Defense seeks dismissal in case against attorney, five others charged in Kauffman slaying."