Sunday, October 4, 2015

Lonnie Franklin, Jr., Pretrial Hearing 8

Lonnie Franklin, Jr., date unknown.
Photo credit: AP - pool camera

The previous post on this case can be found HERE.

Note: I am behind in reporting on the Franklin hearings in September. Notes on two more hearings are coming. Sprocket
September 14, 2015
I’m back on the 9th floor for another pretrial hearing in the Lonnie Franklin, Jr., trial.

LAPD Detective Daryn Dupree arrives and sits next to one of the older family members that I’ve seen  in court every time.

Amster arrives with his private investigator. A few moments later DDA Beth Silverman arrives with an another attorney that she is friendly with. DDA Silverman sits on the bench beside Detective Dupree for a moment before she gets up to knock on the door to Dept. 101. 

Dept. 101 is opened by the clerk and DDA Silverman asks, “Can we do this real quick?” The clerks replies, “Sure. What are we doing?” DDA Silverman and the other attorney head into Dept. 101. About the same time, a group of family members arrive.

8:32 AM
Dept. 109 opens, defense attorney Louisa. Pensanti arrives and the group in the hallway heads into Dept. 101. A few moments later, I follow them in.

Inside Dept. 109
DDA Marguerite Rizzo arrives. A moment before, the bailiff called over  defense attorney Seymour Amster for a quick chat. Afterwards, Amster and his investigator go into the ante chamber to chat privately. DDA Rizzo is in the well reviewing a document. Detective Dupree is sitting beside her.

8:41 AM
Finished in Dept. 101, DDA Silverman arrives with her two clerks. She greets the family members in the gallery. DDA Rizzo hands her the document she was reading. DDA Rizzo gives a small shake to her head.
 At first, DDA Silverman states she can’t sign for the document until she knows what it is. There is an envelope that’s attached to the back with items inside. A moment later the court reporter comes out and starts to set up her desk. Louisa Pentsani comes out from the custody area.

8:43 AM
Franklin is brought out. I don’t believe he’s chained to the chair, but I may have  missed it.

Now DDA Silverman appears to be going over documents with the defense investigator to verify what she is signing for.  When she’s done with that, Silverman drops off a couple documents with the court clerk. The court clerks tells the court reporter, “I’m going to call her [Judge Kennedy] out.”

Judge Kennedy takes the bench. The case is called, People v. Franklin.

Defense filed a document and people filed documents. Defense has filed a protective order. Defense sent their experts psychological evaluation to the prosecution’s expert. They still have not sent the same information to the prosecution directly.

Defense filed a reply to prosecution regarding 3rd party culpability. 

Judge Kennedy briefly looked over the defense motion. “I thought when you were here last, you indicated you were not intending to present 3rd party during penalty.  Now reading the document, [correct me if I’m wrong since I went through it so quickly] sounds as if you’re going to present it in  both.”

DDA Rizzo tells the court [This was discussed] in the hearings two hearings ago.

Amster, my preference is to present all 3rd party evidence in the penalty phase. But the people have raised the issue [?]  that we are in disagreement, that if not presented in guilt it can’t be presented in penalty.

Rizzo. Firmly states, “That’s not what we said. We said the law for [admissibility of this evidence] applies the same whether it’s presented in guilt or penalty.”

I believe Judge Kennedy speaks again and DDA Silverman interjects, “That’s what we said.” Judge Kennedy snaps back, “Ms. Silverman. Don’t interrupt me.”

The court continues to address Amster’s answer and what’s in the motion. “Now you saying out loud on the record, taking that position, you were of the understanding that the people were of the position that, that if not presented in guilt, it can’t be present in penalty?”

Kennedy and Amster go back and forth. The court tells Amster, "They’re [people] saying that the evidence is not admissible in either phase and the same rule applies to each phase. They’re just saying it’s not admissible." Amster replies, "I think it’s an interesting area of law. ...  I stand by the proposition that I presented in the past. ... We’ve tried to fully brief this issue as to how the evidence can come in. We believe on at least Chester Turner and others ... we have more evidence than what we realized and it could rise to 3rd person."

I'm trying to get up to speed since I don't have a copy of the defense motion. My understanding is, the defense is presenting that their forensic experts found the DNA of Chester Turner on several victims.

[Turner was another serial killer that was operating in the same area and time as the alleged killer in this case. Turner was convicted of 11 murders in 2007 and 4 more in 2014. DDA Silverman and DDA Bobby Grace prosecuted Chester Turner in the second trial.]

Kennedy asks Amster,  “Is it your strategic decision to present in the penalty phase?" Amster replies, "If it’s allowed, yes. ... I would prefer to stand by my position I’ve always stated.

8:55 AM
People Magazine reporter Christine Pelisek arrives.

The court continues: “I’d like to pick a date a few days from now. I’d like the opportunity to read the brief so that everyone can argue their [position].”

DDA Rizzo responds. “Two weeks ago, the only person we were talking about [was] Chester Turner. ... And now, we’ve got ten other names. This is all new as well. Two weeks ago it was limited to Chester Turner. Now we have to just [pick a name?].”

Amster tells the court that "other attorneys" have pointed out to him the DNA connections. Judge Kennedy asks, "They pointed out to two other people?" Amster answers, “The identities were always there but I didn’t realize how many other victims they were associated to.” 

DDA Silverman tells the court. “We’ not going to be ready for a trial in a month. ... We’ve received voluminous materials verses [including a] CD [and a flash drive]. ... Last week when I asked for the witness list so I can include it in the jury questionnaire ... [Today?] I got a list that includes an additional 24 names that I don’t know. ... There are, I don’t how the court plans on do this ...

DDA Silverman continues explaining to the court. "The defense turned over a list where some of the names have no first names.  “Baskter. Bernal. Kapos. ... Gonzales. ... The list has no first names. ... They had duplicate names they had misspelled names. ... Craig. ... I don’t know if that’s a first or last name. ... What are the jurors [to make of this?]. ... Now we have a list of 166 names and I want to go through [them all]. ... The people will be filing a 1050 [motion to continue].”

Amster: “There might be misspellings. .... Those are our best guess from the handwriting. ... I think the people know.”

Judge Kennedy screws up her face, almost as if she's perplexed, when she addresses Amster. “A last name especially, common name is not very helpful.”Amster gives the court his explanation. "All we have is an officer and an ID number. I think the people, if they wanted to, they would be cooperative on that point." Judge Kennedy counters, "You didn't even say they were officers."Amster clarifies, "The last names only are officers."

DDA Silverman it’s not our responsibility to determine who these people are. ... It’s not someone else responsibly ...  it’s the counsels responsibly." Judge Kennedy appears to agree. "This needs to be done sooner rather than later." She then asks Amster, "Did you turn over additional discovery today?"

Amster first replies, "Everything ... what we can think of." Then tells the court there are some items still outstanding that he doesn't have yet, to turn over.  One investigators notes, evidence from Sorenson.  I believe he adds, "It's not like we've gone out and found new evidence."

Judge Kennedy clarifies for the record. "It [wasn't] turned over because you haven't complied. It was supposed to have been turned over on September 9."

DDA Silverman tells the court, "There are three CD's and a flash drive." Amster counters, "We are not waiving time. ... We believe we've done due diligence. ... We're ready now. ... This is [competent?] way to handle the trial and that's where we are at."

The court asks what the CD's and flash drive contain. Amster speaks so quickly I can't get down exactly what he tells the court. Sorenson's last test; three investigative reports; two of them don't think they are of any value but turned them over anyway. There's one on Mr. Harris. Somehow Amster didn't see it until [?] ... Ms. Gozawa asked for everything from every investigator.  Amster states he had to redact [it?] because there was information that was disclosed with an interview with the defendant.

The court asks, "Who is Mr. Harris?" Amster answers, "Mr. Harris is a neighbor if Mr. Franklin who was involved, or exchanged photographs between these men in the neighborhood." DDA Silverman asks, "When was that interview?" Amster answers, "Back in June."

The court states they want to put this over for a few days. DDA Rizzo adds that in the 3rd party defense motion, there are 20 other individuals in the motion.  The court asks Amster about DNA from all these individuals. Amster replies, "There are 20 other individuals whos DNA has been identified."

DDA Rizzo tells the court. "That's an incorrect statement. They are not mentioned in Sorenson's reports." Amster counters, "They are mentioned in Dr. [Salister's ? Sours?] reports. ... This is not the first time they got 20 names. ... We just utilized it and put it all together. ... This is not all new evidence. ... This is stuff that they [people] had. ... These are names in the police report and we put it all together."

The court asks a question and I believe Amster replies, "There are 20 profiles, DNA, that are linked to 20 individuals. That information was turned over to the prosecution long before this morning."

DDA Rizzo adds, "We don't have Dr. Sours report regarding this new information." Amster responds, "We will get it by the close of business today. ... I don't think we've mentioned any of those individuals in our 3rd party reply."

The court informs Amster, "... all that information has to come forward." Amster replies, "I agree. ... At the close of business today, they will have Dr. Sours report." Judge Kennedy replies, "So why don't we come back on Monday?"

DDA Silverman interjects, "I don't think we've made our record of what's missing. Beth continues with a long list. It was difficult to keep up with her and list everything.

Dr. Fredrick [Schmitz?]. No report, no notes, nothing. Amster replies that he's not going to be called.  Anthony Paul? Amster explains that he's a potential rebuttal witness.
John [Pickens], only a preliminary report. Amster states that's the only report he has created.

The court asks, "Who is [this?]" Amster responds, "Metallurgist."

Amster then explains what he's turned over on the flash drive.

William Tobin; received nothing from him. Amster tells DDA Silverman to take him off the list.
Bruce Crowley; only recieved a set of notes. No lab files that indicate how he went about doing his analysis. Amster states that everything Mr. Crowley has done has been turned over. It's on the CD.
Everyig Mr. Cowl had done has been turend over.

DDA Sliverman now talks about Mr. Sours. No notes, no lab field [notes] no indication of as to how he went about his analysis. Amster states that they are turning over his reports. "As far as his notes and how he has gone about .... it's been turned over. Even the source code of his computer program. .... Other than the notes, I .... but I will make sure I've made myself clear [to his experts]."

DDA Silverman asks if they also received on the [CD's], all the proficiency testing along with ...." Amster states there are two individuals that [Sorenson] does not do proficiency testing for." DDA Rizzo asks, "Who would that be?" Amster gives them the two names.

DDA Silverman asks about a Dr. Fuentes and a Dr. Gold. Amster states his experts have been asked to give everything, but it appears that there's something that hasn't been turned over. The people ask about a Michael [Nuneos?]. There's no statement, no notes, no discovery. Amster insists there was a written report and a "second page."

DDA Silverman tells the court, "We have  no idea what he’s going to say except the second page, that appears to be a journal article." Amster disagrees. "That’s not a journal article. It’s a record of my conversation with him."

The people continue with another name. They ask about a Kent Dixon. Amster replies, "I thought we turned over everything to him."

The people ask about another witness where they have received no notes. Amster tells the court, "We gave them a report last year." But he adds that he'll check into that. The people ask about a Rich [Isen?]. No report.  The people ask about two more names. Amster states that those witnesses are not going to be called. However, if he changes his mind, they would have to have a meeting in chambers with Judge Kennedy.  A Michael Jones is discussed and what he will testify to. Something about "identifying images."

Another name, Diana Geyser. The people ask about more names, including a Linda Lewis, where there are no notes, no recording. Amster replies that he [the investigator?] did it all from memory. If something else is stated on the stand ....

And it goes on. Defense witness name after defense witness name where the people have receive nothing or next to nothing. Amster replies, "Every single investigator was told, notes, reports, everything. ... they were told to give to us.

DDA Silverman goes through more names the people received last week, a long list, that they don’t have anything on. She adds, "I don’t know who any of those people are. and we’ve not received any discovery." Amster states they all belong to Chester Turner [issue].

Judge Kennedy tells Amster, "If you intend to call these people, you need to give their full names number one, and something about what they are testifying about. 

Jk if you intend to call these peole yo uneed ogive their full names humber one. and something about what they are testifying about." Amster states he will talk to a Mr. Erickson, and that he gave to the court his list [of names]. Amster then adds, "For me to get this information on Chester Turner, I made a request from the people."

The court looks more than dismayed when she answers him. "Giving a list of names, and a last name only, and you say it's up to them to figure it out?" Amster insists that the people have the information on Chester Turner. The court states, "These apparent witnesses are not on the list and were disclosed today?" Amster replies, "This is not true. They were on my witness list way back when."

The court does not appear to be amused. She has to explain what the witness list is for to this seasoned attorney.  "Those witness list are relied on not only by the people and [the jury] but also by the court. ... I don’t have what you gave them [people] today." The court adds, "They're saying there are 24 names that were not on any previous witness list."

Amster insists, "The names we gave them for the witness list are the names we are working with. I don’t know what they are talking about."

Amster continues to insist that he gave this task to Mr. Erickson and did not review it.

Silverman states that they [the people] will create their jury questionnaire without the defense list and they [the defense] can attach their list of witness to over 200 copies of the jury questionnaire.

Judge Kennedy addresses Amster. It's like she can't believe what she is having to explain to the defense attorney. "I’ve done a number of death penalty cases. I've never had a case where, the defense had 200 names. Generally it's a short list of names. ... That's the reality of it. ... But the job is ... we have, is to pick jurors for this case that are [not] connect to or familiar with the witnesses. Or if they do have some familiarity, is so that you and the prosecution can properly exercise challenge for cause or peremptory challenges. ... So giving jurors a list that only has the last name of witnessies is not helpful that process. ... There is a witness on the list, a [Gonzales?]. It doesn't even say officer. That is not helpful."

Amster's reply is, "Are the people going to give us the murder book on Chester Turner?" DDA Silverman replies, "At 60 plus boxes, no we are not." Amster insists that the people know who these people are.

Judge Kennedy informs Amster,  "We are not going to go over the validity of every witness in the Chester Turner case. That's not going to happen." Amster is not happy with the courts decision. The court replies, with a bit of frustration in her voice, "Mr. Amster. Please." The court adds, "You are going to prepare a witness list of first and last names of witnesses and it will be in writing. ... And if we just have to hand it out as an addendum, fine, but that's your responsibility. ... And you don't need [91875?] funds to do that."

I believe the court adds that it's a waste of funds. The defense needs to work this out.  DDA Silverman adds that the state of the witness list is a mess and they should not put the burden on the jury to figure out who "Craig" is, is not [reasonable].

The court steers the conversation back to picking a date to litigate the 3rd party culpability motion and deal with the witness list. It has to be after the prosecution has had time to review [these items].

The people ask for 402 hearings for [at least] 14 witnesses and ad hoc for any witness name.

Dates are suggested back and forth. They settle on September 18 in the afternoon, since DDA Silverman has a sentencing in the morning on that date. That date is set.

Bottom line. The defense still has not turned over all their discovery. The defense is asking for the discovery on witnesses in the Chester Turner trial.

If I hadn’t been in court today and observed it first hand, I’m not sure I would have believed it. For a time, I thought I was in the middle of a Saturday Night Live skit on the absurdities of explanations that come before a judge.

Potential witness names, that are attached to a jury questionnaire in a high profile, death penalty case is one of the most important pieces of information you need to disclose before starting the voir dire process.

Counsel and the court need to know, if a potential juror knows, in any capacity, people who may be called as witnesses at trial. It’s why the names of the witnesses need to be disclosed to the jurors before you question them. And those names need to be complete names.

Regarding 3rd party culpability evidence, defense cannot just throw something into the mix to see if it sticks. There must be a "nexus" between the 3rd party and the event [in this case, murders]. There must be evidence that links a third party, to the crime. It cannot be innuendo. In the Stephanie Lazarus case, the defense tried to introduce evidence that there was another burglary in the same area. The burglars brandished a weapon at another victim. Judge Perry ruled that evidence was not admissible because there was no nexus between that event and Sherri Rasmussen's murder.

The next post on this case can be found HERE.


David In TN said...

I think we can see where the defense is going with this. One of the other DNA hits (Turner) was the actual killer and Franklin just happened to have sex with them sometime before the other party killed the victim(s).