Jeff Jardine

As 1-year mark looms, no finish line in sight in preliminary murder hearing

The former U.S. Bankruptcy Court in Modesto is where the preliminary hearing for Frank Carson and other defendants began in mid-October 2015. The former U.S. Bankruptcy Court building on 12th Street is now being used as a Stanislaus County courtroom.
The former U.S. Bankruptcy Court in Modesto is where the preliminary hearing for Frank Carson and other defendants began in mid-October 2015. The former U.S. Bankruptcy Court building on 12th Street is now being used as a Stanislaus County courtroom. Modesto Bee file

One year ago come Thursday, people lined up in front of the former U.S. Bankruptcy Court building on 12th Street in downtown Modesto.

It is now used as a Stanislaus County courtroom, and many of them came that day to support longtime Modesto criminal defense attorney Frank Carson. He is among six people facing charges ranging from murder to accessory and obstruction of justice in one of three separate prosecutions stemming from the 2012 killing of Korey Kauffman.

Now, just shy of a year since the preliminary hearing began, the case involving Carson continues with no immediate end in sight. It already was overly long when Bee reporter Rosalio Ahumada wrote about the snail’s pace of the case in April and again in August. The purpose is to determine whether there is enough evidence to hold a defendant to stand trial.

Do preliminary hearings usually drag on as painfully as, say, presidential campaign cycles? No.

“Most are pretty short,” Stanford Law School professor Robert Weisberg said. “That one (the Kauffman case) is one of the longest I’ve ever heard of.”

A two-month-long prelim generally is considered stretching it. Scott Peterson’s prelim lasted a less than a calendar month. His entire trial – from the start of his preliminary hearing to jury selection to the guilty verdict – spanned just over 13 months.

Cary Stayner’s prelim took only a few days because he’d basically confessed to investigators after being arrested in the killings of three Yosemite tourists and a National Park naturalist in 1999. But in the cases of Peterson, Stayner and the majority of other murder defendants, they were solo acts. The evidence on each merited taking their respective cases to trial and didn’t involve a busload of cohorts.

The Kauffman case, originally predicted to run about a month, is an exception and not the norm. Certainly, a couple have gone longer. A Canadian case prelim lasted 2 1/2 years followed by an 18-month trial, only to have the case tossed by the judge in 2007.

In the U.S., the preliminary hearing for the McMartin Preschool child molestation case in Los Angeles in the mid-1980s lasted 19 months.

Stanislaus County Superior Court Judge Linda McFadden, then a young law school graduate who had just taken the bar exam, worked as a prosecution researcher on that case, though not until after the prelim had ended.

“There were several defendants,” she said. “Basically, everyone who worked there (at the preschool) at the time was charged initially. It was a lot more difficult because there were multiple defendants.”

That the victims were children made their testimonies extremely sensitive and time-consuming. Questioning and cross-examinations had to be limited to short amounts of time, spreading testimonies over several days in some cases. And many adult witnesses spent days on the stand. By the time the case finally went to trial, the field of defendants was whittled down to two. Both were exonerated. At $15 million, the seven-year-long case ended as the most costly in history. The case turned in the defendants’ favor because a key witness had lied.

Similarly in the Kauffman case, Robert Lee Woody – who is accused of killing Kauffman but cut a deal with the prosecution to become a witness against Carson and others – has recanted what he originally told investigators. And there are numerous defendants, each with an attorney who cross-examines the prosecution witnesses at length. Many have testified for several days each.

The sheer volume of evidence and testimony presented, Stanford’s Weisberg said, can be by design by both sides. The caveat: Weisberg hasn’t followed the Kauffman case specifically and spoke only in general terms based on his experiences in other cases. Such cases with multiple defendants often are extremely complicated, he said. The number of witnesses called in the preliminaries can make them more so.

“It has a lot to do with lawyers’ strategies,” he said. “The prosecution might be trying to beat down the defense to get pleas.” Or, Weisberg said, defense lawyers might opt for a longer prelim in which an impartial judge might rule that the prosecutors didn’t make their case for trial, thus avoiding a jury that might otherwise convict.

Under just about any circumstances, he said, the defense gains an advantage when the prosecution “overloads” the preliminary hearing with witnesses and evidence.

“They can go for impeachment from the discovery and testimonies,” he said.

Having multiple defendants doesn’t guarantee a lengthy preliminary hearing, though. In the 1990 Salida murders, one defendant’s preliminary lasted a day on his way to a death penalty verdict. The prelim for his three accomplices lasted only four days in a separate trial, and one of them also got the death sentence, while the last two were retried and convicted. Those trials, like the Peterson and Stayner cases, were norms and not the exceptions.

The Kauffman preliminary hearing has gone exceptionally long by any standard.

The chances of swearing in a new president before Judge Barbara Zuniga decides whether Carson and the others will stand trial in Kauffman’s murder case are looking better by the day.