Wednesday, October 7, 2015

Lonnie Franklin Jr, 9: Judge to Defense Attorney "You are looking into my eyes and lying."

Lonnie Franklin, Jr., date unknown
Pool camera

The previous hearing on this case can be found HERE.

September 18, 2015
It's 1:30 pm on the 9th floor. During the morning session, I had attended the Cameron Brown sentencing. I had lunch downtown and waited for the Franklin hearing. The courtroom opens and I head inside. We wait, but not too long.

1:38 PM
Franklin brought out. On the record now with People v. Franklin. Kristen Gozawa on behalf of the defendant.

The prosecution has filed a motion to continue as well a motion to continue motion on 3rd party culpability.

State of the record. Mr. Amster for the fist time [wants] to present such evidence in the guilt phase, where additionally, there had been representation by the defense, the evidence related to Chester Turner. There are a number of additional individuals who are listed in the defendants reply to 3rd party culpability evidence.

Judge Kennedy asks, "I assume from that, the prosecution was not previously aware of that reply by the defense. ... That the prosecution ..."

DDA Silverman responds. "Prior, he was only going to present evidence to Chester Turner as to two victims. Now we have 20 different suspects as to every single victim."  Amster replies, "I don't believe I said that."

The court replies, "Oh yes." Amster continues with his denial. "In fact, I never said anything as to what the limits were going to be on the defense.  ... Anything at ... in discovery, ... at trial is fluid."

I believe the court responds, "We're not even in trial." Amster continues with his 'explanation.' "Yes, but now they are trying to limit ... The things related to these 20 people, they've had it for months. ... They've reviewed it, and ..."

Judge Kennedy interrupts Amster and tells him, "You are looking into my eyes and lying."

I've never heard a judge say anything like that before.

Amster in his reply, raises his voice to the court and denies he lied. DDA Silverman documents for the record that Amster has raised his voice to the court.

Judge Kennedy continues, "You stated to the court, ... I don't have the transcript in front of me, ... you stated to the court only 3rd party culpability evidence in the penalty phase. ... At the last time we were in court ... I don't know what you may have spoken about to each other. ... In court, you have made no mention of these issues.

Amster. replies, "One, things change. ... Where I'm having a problem, in guilt phase, is section 190.2c, that talks about every person, not the actual killer, aids, etc., has to be found true, in order to be eligible for special circumstance."

Judge Kennedy replies, "I'm not following you." Amster reads the penal code for 190.2 to the court. He then adds, "So we believe there is the burden that the people have, that Franklin is the actual killer. We are going to ask for a special verdict on that point. I think the jury is obligated to find that factually ... so that's why [they] ... now bringing it up at guilt phase because I don't know the courts position ... if that's binding at guilt or penalty phase."

The court patiently explains to Amster, "What you have read, essentially is a special circumstance under 190." I believe Amster speaks but I miss his statement.  DDA Silverman states, "It's the "aider and abettor" language. ... Apparently the defendant is going to testify that he committed other crimes with other people but he didn't kill them."

Amster,  responds,"There’s not been a decision whether the defendant will testify or not. ... I believe the people have the burden and not the defense."

Amster continues. "We have .... but no evidence. With Washington, we have sufficient evidence if not more if Chester Turner." Amster reads on, about different victims. and that the prosecution has the actual burden.

Aiding is and abetting is a theory of liability. It is one the defense can rely on if they wish to do so. Amster states he believes it's a burden. I'm having difficulty following Amster's arguments. Amster is hard to follow.

He continues with his soliloquy to the court.  "This has been a journey, and to tell you the truth, I didn’t realize how much we had on Chester Turner. And the other one that we have multiple issues on, Alan Thompson."

Amster mentions two more names that I don't get typed accurately.

Judge Kennedy states,  "These are people I’ve never heard of." Amster counters, "These were people that the people [prosecution] knew about." DDA Silverman answers, "They were ruled out by DNA. Looked at and ruled out."

Judge Kennedy states, "I read there may be semantics ... there were places where some person couldn't be ruled out. ... or that no one could be ruled out because of incomplete or [?] DNA. So what does that mean?"

Amster gives an explanation. "

We had all the evidence tested and found unknown alleles from various donors. ... We then looked at that to see ... looked at some of those other individuals."

DDA Rizzo [who I understand obtained her masters degree in the biological sciences], counters Mr. Amster's statement. "It's not exactly as counsel has articulated it. The question of items of evidence and the evidence tested. ... One hundred of the items he's relying on, Sorenson will not render an opinion, because they are context mixtures of, of two to six, or of seven to eight people."

DDA Rizzo explains that the court has seen these charts of several people mixtures, then adds, "These items that counsel is telling the court, that includes twenty-three parties, one parties, one marker has ten, twelve, fourteen alleles. ... [Allen Tut?] at that marker is a 14, 15. ... At the same marker, it has 12 alleles in it. ... We're going to find the same markers that [Mr. Tut] has. ... [It's a] ... complicated mixture, that no one would touch it. ... Sorenson wouldn't. Our lab wouldn't. You go against all the correct methods of statistical analysis. ... These are the items of evidence that Mr. Amster is calling into question that there's a third party."
[I will add a little DNA primer here. Bear with me.

Today, scientists look at thirteen or more locations (loci) on the DNA that have what are called, STR's, (short tandem repeats) in the DNA sequence that are highly polymorphic, or, unique to each person. The STR's are expressed as the number of repeats you got from each parent. If the repeats you got at a particular loci are the same number from each parent, it's expressed as a single number, instead of two.

For example, at loci one, you might have 11,12. At loci number two, you might have 18. At loci three, you might have a 21,22, and so on for all thirteen loci. Problems arise when you pick up too many numbers at each loci. This means you have a mixture of more than two individuals DNA. When scientists have a DNA mixture of too many alleles, they cannot make any type of predictable analysis on that DNA sample. It's basically garbage.

This is what DDA Rizzo is talking about when she told the court that the DNA lab, Sorenson, will not render an opinion on all these samples that Mr. Amster is talking about.]
Amster responds, "I think what counsel is arguing goes to the weight, not admissibility. ... This goes to third party culpability and needs to be litigated. ... I have to have Dr. Sours here hready to testify because it's Dr. Sours is the one who's willing to do it."

Judge Kennedy replies, "We've said that we need Dr. Sours. Are you saying that Dr. Sours is going to say something different than [what] Ms. Rizzo has said? ... Have you given them something different in writing that's something ... ?" Amster states, "We've given them everything we have from Dr. Sours." Then Amster seems to backtrack a little. "I can’t say I know what Dr. sours is going to state, but it’s somewhere in-between what Ms Rizzo and I have stated."

Judge Kennedy states the accepted interpretation regarding 3rd party culpability evidence. "Under Hall, there has to be some kind of nexus between, the victims and 3rd party."

Amster continues, "Whatever it is, ... we’ve harvested this evidence and made our position, we feel there’s a different position as to guilt. ... We put Mr. Sours on the stand and the court makes it ruling."

Judge Kennedy adds, "Let me inquire ... of this."

[It's not clear from my notes who replies, defense or people. ] There's still something that's yet to be tested. There was still a report to be provided on DNA that was late. All testing has been completed and everything turned over.

Judge Kennedy, "But you think everything has been turned over and you [people] have to have an expert look at it... Looking at that, [the large stack of paper on the prosecution's table] that’s about a foot of [paper]."

DDA Silverman responds 1,759 pages, not including the audio files. That was just since Monday."

Judge Kennedy asks, "This is an issue that involves experts? That 1700 pages of evidence turned over on Monday?" DDA Silverman answers, We haven’t even had it for five days. Some came in on Monday; some on Tuesday." The court asks, "When was the last time you got something?" DDA Silverman clarifies, "Yesterday."

The people also tell the court that they still have not received anything from defense expert Fuentes. Amster states he’s asked for him [Fuentes] to turn over everything.

Judge Kennedy asks the people, "What I want to know is, what period of time is necessary to digest that foot and a half of material turned over this week?" DDA Silverman answers, "I don’t think we will be ready to go to trial this year. We have to meet with experts and then we have to prepare."

Judge Kennedy concludes, "What I would like to do, ... when [can] this third party culpability motion, be heard, because it is fairly critical in this case." DDA Silverman states, "We expect to be ready to litigate after the experts have looked at it, a 30 day period, ... after a ..."

Judge Kennedy now addresses the defense. "You’ve put everybody in a box." Amster is firm in his answer. "I don’t agree."

Judge Kennedy counters back to the defense. "You’ve turned everything from you experts in volume, days before trial. ... It’s one thing to turn over a police or investigator report, it’s another thing to turn over scientific evidence at the last second. ... The issue seems to me is this. If your position is, that you're not waiving time and you're ready for trial. The remedy of the court has, is two [options]. ... One, is to find good cause. The second is to you’re not waiving time and your ready for trial. ... Then that evidence will not be presented at trial.

Amster goes back in time as to his view of what happened regarding getting the DNA evidence, regarding DNA testing.

I can’t follow his soliloquy because I’ve not been here for all the hearings.

Amster's tone is loud and firm in his answer. "No. We’re not waiving time. We are very comfortable as to where the record. is. This is all evidence that they’ve had for 20 years that they chose not to look out not to test. ... Now the court is considering ..."

DDA Silverman interjects. "For the record. Counsel was still raising his voice and yelling at the court."

The court replies, "I want nothing more, than to have a fair trial in this case. .. You have indicated to present this evidence in the guilt phase, and you’ve not made that before. ... But I’m not going to make the prosecution proceed unprepared. ... And they [defense?] indicated and that I assume it’s true, it was all turned over in the last few days. ...  And I assume that’s true."

Amster insists, "This week. The vast majority. ..." The court tells the parties, "I want everyone to be prepared." Amster responds forcefully, "The people have remedies. ... If the court wants to place that against the defendant in regards to a speedy trial ..."

DDA Silverman makes a record. "Again your honor, counsel is yelling."

Amster stands firm on his position. "Let me make it clear. We’re not waiving time. We’re ready for trial." Amster insists that they [the defense? initially?] requested November.

Judge Kennedy addresses Amster. "And you have been assuring me all along, getting [their?] experts and everything as quickly an expeditiously as you can, and problems getting the material to you, all of these things, ... and, here it is. ...  I assume this is all of it? There’s not going to be anything more?

Amster tells the court, "I don’t have anything else now."

Judge Kennedy weighs her options. "I’m telling you that, ... the choices involved, ... I am [not] happy not happy ... [not] willing to allow and deal with last minute evidence but, ... so that both sides get a fair trial, ... their experts have to have time to deal with what you’ve proffered at this late date."

Amster stays with his interpretation and position. "I'm comfortable with the record. ... I'm not waiving time." DDA Silverman responds for the people. "I’m not going to comment on counsel's comments about the prosecution. .. I think for appellate purposes, I think it's safer for the court to continue the case vs continuing [towards trial]. ... I think the court is seeing that counsel is playing fast and lose."

Judge Kennedy rules. "So, I’m going to find good cause. Mr Amster, because in ...[my interest? is not?] the same as your interest. ... My interest is to see that both sides have the opportunity to present their side. ... I do think there’s late cause in this late discovery. ... I don’t know what your expert is specifically going to say. But the issue is critical what the experts say on a third party culpability, on defense. ... And I can't make a ruling without their testimony. ... It changes the scope of the evidence presented. ... First it was going to be only in the penalty phase. ...  Then it was only going to be on a couple victims. ... Now it’s on many victims. ... I’m going to continue to give the people time to prepare." Addressing the people, the court asks, "Are your experts available to go through this material? ... So, you say 30 days? ..." DDA Silverman confirms, "Right."

The court asks the people to pick a return date. First, the week of October 19 is picked, and the people will verify with their experts. Amster mentions that October 23 is the death penalty seminar. He tells the court if he has to be here on that date, he would rather be at the seminar. Judge Kennedy responds that the court has a date for a seminar for judges, so that just might work out.

Then Amster addresses the court on the "lying" comment earlier. "I've been around for a long time. I do not like being called a liar your honor. ... I found that truly, ... truly did not like that."

Judge Kennedy stands firm and tells Amster to go back and look at the transcript. "Your representation with regard as to what you were going to present."

Amster makes some response that I don't quite catch, something to the effect of telling the court to look at the transcript too. DDA Rizzo informs the court, "It was in the motion we filed two days ago."

Back and forth the parties go, trying to pick a return date. First there's October 21. Then the court suggests October 20, but it's not an amicable discussion.

DDA Silverman adds for the record, "Again, counsel was yelling at the court. It’s not necessary." 

October 20th is settled on. They still need to pick a date to return, to see if defense counsel is able to bring in Dr. Sours on October 20.

Back and forth it goes again, to pick a return date. Thursday, September 24 is chosen. Apparently, there are not going to argue any motions or turn over more discovery on that date. It's just to let the court and prosecution know, when the defense will bring in Dr. Sours for questioning.

Judge Kennedy now steers the conversation as to setting a new trial date. October 14 as a trial date is vacated, because this hearing is going to occur after that date.

Judge Kennedy then asks, "I believe, and please correct me if I'm wrong, ... that this is the last major motion. ... I know there will be other 402's [but this is the last?] major motion before trial?"

Amster answers "Yes." He adds a bit more that I miss.

DDA Silverman responds, "Assuming all the other information not related to DNA [is in?] and that they will be able to give [you? us?] a ready date. ... Not all of this [the 1.5 ft stack of paper at the prosecution's table] is DNA, so we need to check with other individuals as well as their readiness."

Judge Kennedy asks, "Can we pick some realistic date?"

October 20th is the date. There may be another hearing with respect to defense firearms [expert]. DDA Silverman doesn't think it will be the whole day. Amster is making some complaints related to Dr. [Correll?]. DDA Silverman adds that a huge amount of this information has to go to the ballistics. She adds, "I notified the court two years ago that Mr. [Correll?] was excluded by other courts. And no one was going to get on the stand and claim they are an expert." Judge Kennedy decides, "We'll do it closer to trial.

I believe DDA Silverman adds that she subpoenaed multiple documents from the jail, and they would like to see if they are in the court file. Judge Kennedy doesn't know if they are yet. Amster states he did inquire if there were some sealed documents. Judge Kennedy asks if he subpoenaed some documents. DDA Silverman wants to handle the subpoenaed documents now.  Judge Kennedy takes the conversation back to the question of when to schedule a trial. They need lead time to get the jurors. The court also asks about the defense witness list. DDA Silverman states, that the people received a list today because of Ms. Gozawa. "She's excellent," DDA Silverman adds.

Next, the court goes over the envelopes [subpoenaed documents]. Everyone is in agreement that they can be turned over to the appropriate parties.

Judge Kennedy asks again, about a date for trial. DDA Silverman answers, "I hesitate to pick a date at this point. .... [waiting?] will be smarter ... but I think it would be smarter to get to the date in October and then pick a date."  Judge Kennedy disagrees. "I would prefer, [to pick a date today?] ... because I'm doing this on good cause. ... I need a date."  DDA Silverman answers, "December 15." Amster replies, as a question. "December 15? ... Okay. Any date works for us."  Judge Kennedy comments to Amster, "I understand. You have seminars, etc. ... " She then addresses both parties. "If either side changes their position with regard to that date, sooner rather than later when dealing with that issue, and the jury prescreening issues ... the 300 that we need to pick a jury."

DDA Silverman adds that if the people's experts look at this and then they come back and they will say they're ready. Judge Kennedy asks if there are any other issues to take up at this time. None. They will come back next week, September 24, to determine the availability of defense expert. The court states they are done and the defendant is remanded. DDA Silverman thanks Judge Kennedy, and that's it.

Next court date, September 24.

The next hearing on this case can be found HERE.


Corbie said...

Ouch! That's not really a comment you want to hear from a judge, particularly if you're an attorney! I think I like Judge Kennedy, though, from your descriptions.