Justice at snail’s pace for Modesto attorney Carson in murder case

It was supposed to last three to four weeks. Six months later, the preliminary hearing continues for Modesto attorney Frank Carson and five others charged in the slaying of Turlock resident Korey Kauffman. And it’s unclear when it will end.

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.

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 a vindictive District Attorney’s Office intent on ruining a prominent criminal defense attorney who has been successful in defending his clients.

The preliminary hearing has been in session 56 court days over the past six months, delayed by scheduling conflicts, holidays, vacations, challenges to evidence and now a defense attorney’s injury.

Jesse Garcia, who represents Carson’s wife, says he will return to the case Tuesday, when testimony can resume. Garcia recently suffered a serious ankle injury and underwent extensive surgery.

At the conclusion of the hearing, the judge will decide whether there’s enough evidence for the defendants to stand trial. If the judge issues a holding order, defense attorneys have already informed the court that their clients will want to go to trial right away. The trial is expected to last longer than the preliminary hearing.

More to lose

Two law professors with expertise in criminal court procedure say the prosecution has more to lose the longer the preliminary hearing takes.

Gerald Uelmen, professor at the Santa Clara University School of Law, said the defense gets to file motions for discovery evidence to learn as much as possible about the prosecution’s case.

“It’s a field day for the defense,” said Uelmen, who is better known for serving on the defense team in the O.J. Simpson murder case. He said the Simpson preliminary hearing lasted less than two weeks. The trial ended with Simpson’s acquittal in 1995.

Law professor Michael Vitiello says the standard of proof at trial is much higher than a preliminary hearing, where only probable cause is needed to order a defendant to stand trial. But he also says the evidence in the Kauffman murder case is complicated and requires the prosecution to build a case based on the claim of a criminal conspiracy.

Complicated evidence and numerous witnesses can result in lengthy preliminary hearings. Vitiello said the defense gets to see how well the prosecution’s case holds up in court.

“It’s a matter of testing the evidence,” said Vitiello, who specializes in criminal cases and court procedure at the University of the Pacific’s McGeorge School of Law in Sacramento.

The Kauffman slaying investigation went on for three years before Carson and seven of his co-defendants were arrested. Robert Lee Woody was the only person charged in Kauffman’s death for more than a year before he decided to cooperate with the prosecution.

Woody told investigators he saw Kauffman at Carson’s property moments before the 24-year-old man was killed. The defense calls Woody a liar who has claimed sole responsibility for Kauffman’s death and is now changing his story to get a plea deal.

“My question would be: Why didn’t they go to the grand jury?” Uelmen said about the case against Carson and his co-defendants. “This case has grand jury written all over it.”

Prosecutors in California have the option to seek an indictment from a criminal grand jury, which would allow the case to skip the preliminary hearing phase and move straight to trial. The grand jury proceeding is held in a closed courtroom without the defendants or their attorneys.

Criminal grand jury

District Attorney Birgit Fladager said she cannot comment specifically about this pending criminal case, but she did speak in general terms about some of the factors considered when deciding whether to take a case to a criminal grand jury.

She said hearsay is not permitted in a grand jury hearing, but it is allowed in a preliminary hearing if it comes in through a sworn peace officer. That means that every necessary witness must testify in front of a grand jury.

Grand jury testimony is not subject to cross-examination, so it can’t be used at trial if the witness becomes unavailable, Fladager said. If a witness testifies in a preliminary hearing and is not available for the trial, the prosecution can still use that testimony to prove its case at trial.

Preliminary hearings are typically conducted quickly, because the prosecution is required only to prove probable cause that a crime has been committed. Fladager said the grand jury process is frequently used to push forward a case that has been sitting around for a long time.

Carson was formally charged in August and the preliminary hearing was scheduled not long after that. Each of the six defense attorneys has an opportunity to cross-examine the witness testifying, a lengthy process that at times has gone on for days for most of the prosecution witnesses.

Heated arguments from the attorneys have also delayed testimony. Barbara Zuniga, a visiting judge from Contra Costa County, repeatedly has had to stop attorneys from attacking each other verbally. Witnesses have been asked to leave the courtroom numerous times, so the attorneys can argue over the admissibility of evidence.

“That sounds like a nightmare for everyone involved,” Uelmen said.

Carson is being prosecuted with his wife, Georgia DeFilippo; her daughter, Christina Anne DeFilippo; Baljit Athwal and his brother Daljit Atwal; and former California Highway Patrol Officer Walter Wells. Christina Anne 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.

Woody is being prosecuted separately; so are former CHP Officers Eduardo Quintanar Jr. and Scott McFarlane, who are charged with conspiracy to obstruct justice and being accessories in Kauffman’s death. Quintanar and McFarlane were initially placed on administrative leave when they were arrested in August, but as of Nov. 5 no longer work for the CHP.

Impacting other cases

Vitiello said he’s not too surprised the preliminary hearing has gone on this long, because Carson is an experienced trial attorney with a lot of knowledge of courtroom tactics and legal strategies. “The defendants are getting a free view of the prosecution’s case,” he said.

With so many attorneys committed to the Kauffman murder case, other criminal cases are being held up. One case, involving the death of Erick Gomez, which is believed to have been gang-related, was scheduled to go to trial Feb. 29. But the prosecutor, Chief Deputy District Attorney Marlisa Ferreira, also is assigned to the Kauffman case.

On March 28, Ferreira was in court asking Stanislaus Superior Court Judge Thomas Zeff to postpone the start of the Gomez trial. She explained that the Kauffman preliminary hearing could end by mid-May if everything went smoothly. But she said it could be later than that, depending on the injured defense attorney’s return.

The prosecutor told the judge that at that moment there appeared to be a “dark cloud” over the Kauffman case. Judge Zeff quickly responded, “At the moment or from the very beginning?”

Rosalio Ahumada: 209-578-2394, @ModBeeCourts

Notable preliminary hearings

Scott Peterson case: Concluded in 12 court days stretching over three weeks in fall of 2003. Peterson was ordered to stand trial on charges of murder in the death of his wife, Laci Peterson, and their unborn child, Connor. Peterson was convicted in 2004 and sent to death row.

McMartin preschool molestation case: Considered to be the longest in state history, the hearing in Los Angeles County went on for 17 months in the mid-’80s. The hearing ended with all seven defendants ordered to stand trial, but the prosecution dropped charges against five of them shortly after that. Ray Buckey and his mother, Peggy McMartin Buckey, stood trial, but the case did not result in any convictions.

Night Stalker case: The hearing for Richard Ramirez, known as the “Night Stalker,” went on for 30 days stretching over two months and two weeks in 1986. He stood trial and was convicted of 13 murders, five attempted murders, 11 sexual assaults and 14 burglaries. He was sent to death row and died of complications of blood cancer in 2013.

Sources: The Modesto Bee and Los Angeles Times