Kelly Soo Park: Pretrial 9

 Defense attorneys George Buehler, Mark Kassabian 
with defendant Kelly Soo Park

November 27th, 2012
I arrive on the 9th floor a few moments before 8:30 AM.  DDA Eric Harmon and another gentleman are sitting on the bench facing me on the opposite side of the hallway.  A few feet from me Park’s fiancé, Tom Chronister is standing, wearing a black suit and chatting with Kelly’s defense attorneys, Mark Kassabian and George Buehler.  Park’s is wearing a hip length tan jacket and black pants.  Many of her supporter’s are here.

Lisa Tomaselli from ABC 20/20 arrives and says hello. I know she missed the last hearing and it’s nice to see her.  Santa Monica Detective Karen Thompson steps outside the courtroom to speak to a slender, nicely dressed Asian woman.

Harmon was here for a moment and then he left.

In the well, Kassabian and Stacy Okun-Wiese go over a scheduling calendar.  A few moments later, I hear Okun-Wiese say to Buehler, “Once the 1101b motion, we’re done, unless you have some discovery for us.”  This leads me to believe that the prosecution has no more motions they are going to file before trial.

There’s a new face today on the prosecution team, and I hear someone address him as “Mark.”  Mark, Okun-Wiese and Detective Thompson sit at chairs in front of the jury box and chat.

The court clerk, Lori (sp?) asks, “Did I see Eric?”  O-W answers, “He popped in for about five seconds.  He will be back.”

8:54 AM Harmon comes back into Dept. 109.  Sean the bailiff comes out from the jury room area.  There is a tiny woman who came in with the prosecution team.  She’s wearing a black pantsuit, glasses and her hair in a bun.  The bailiff has her move from the bench rows by his desk into the well of the court with the prosecution.

9:00 AM Judge Kennedy comes out from her chamber area.  She’s wearing a back sweater over a black lace design blouse.  She comes back out a few moments later wearing her robes.  Park enters the well of the court and stands with her counsel.  DDA Mark Burnley announces for the people. 

The slender Asian woman has also stepped into the well. I don’t catch her name but she is counsel for the City of Santa Monica.

Judge Kennedy states the defense has subpoenaed records from the City of Santa Monica, but it appears they are not yet on her desk.  “Hold on,” Judge Kennedy adds, “Something came late yesterday afternoon.”  She leaves the bench and then returns.  The court received from the City of Santa Monica a notice to quash the subpoena and a reply from the defense (also arrived?).

Judge Kennedy asks the parties, “Have you two conferred at all?”

Kassabian responds, “I’m sorry your honor. No. ... We have not. ....got caught up in other matters with the DA.”

Judge Kennedy asks, “Might you two want to confer and see if you can resolve this matter?” (I don’t have who specifically responds, ‘certainly your honor.’)  Judge Kennedy leaves the bench for a moment.

Kassabian and the Santa Monica City attorney whisper in the well.  Kelly Soo Park chats with Buehlerwhile the other two counsel confer.   Kassabian tells the clerk, “We’re ready.”

9:08 AM Judge Kennedy retakes the bench and Kassabian addresses the court. “(We?) apologize for the delay.  (We’ve) reached an agreement with the city .... protective order.  They will redact personal information and (this will?) take seven days.”  Judge Kennedy states she will sign the order.  I believe it’s Judge Kennedy who then asks, “I assume if there are any other issues...?”  The city attorney responds, “We will comply.”

Stacy Okun-Wiese asks the court, “Will the prosecution get a copy?”

Judge Kennedy responds, “I don’t know.  If (defense?) counsel...”

Kassabian tells the court, “The defense will share the information.”

Now Judge Kennedy addresses the many subpoena’s that have come into the court.  The first subpoena is from Embassy Suites. This is a prosecution subpoena.  The second envelope is from Enterprise, another prosecution subpoena.  One of the FedEx envelopes is empty.  The court asks (the clerk), “Did one of these other things come in it?”  The clerk replies that it may have.

Judge Kennedy continues, “Another FedEx package from the custodian of records for Bank of America, a prosecution subpoena.”  There are several others for Bank of America and I believe it’s O-W who replies there are three separate subpoena’s for records from B of A.  Judge Kennedy then says, “That’s all the materials that I have.”

Kassabian offers that they also issued a subpoena with the Sheriff’s Department but the document appears to have to come to their office. He hands the envelope over to the court.

The prosecution’s subpoena’s will be handed over to them so they can copy them. Judge Kennedy receives the defense subpoena envelope and comments, “The envelope from the Sheriff is not sealed.  Of all people they should know.”  Judge Kennedy then reviews the document. “There appears to be a subpoena and redaction's. ... If you can make any sense out of this you’re a better person than I. ... I’m going to release (it) to the defense.”

That’s it for the subpoena’s.  The next issue is the ‘wire tap’ motion.  Judge Kennedy states “I have read the motion filed by the defense and the (declaration?) of Mr. Kassabian with exhibits attached to the motion to unseal the wire tap motion to suppress evidence, and the prosecution’s response to that motion.”

If I’m understanding the gist of the argument (without seeing the actual motions), the defense is trying to suppress the evidence obtained in a wire tap obtained by the prosecution. Their argument is that the wire tap was illegally obtained.  The authorization for the wire tap was obtained from Judge Fidler.  Then there was action taken by detectives to initiate certain conditions. There was a gap in time between the set up. Seems like there was a claim that they shouldn’t have started the wire tap so early and it should have started later.    There was nothing (on the wire tap) related to the actual homicide, there was (?) in relation to other evidence (1101b).

Kassabian continues to argue, “But the bottom line is the wire tap order did not meet standards and should be excluded on that basis.” Judge Kennedy asks Kassabian, “All or part of it?”  Kassabian responds, “(Arguing) all material (from the wire tap).” 

I believe Kassabian still argues that the wire tap was issued without probable cause and did not take into effect a ‘triggering effect.’

The court asks, “Let’s just say that’s true.  Why wouldn’t that material be utilized?”  Kassabian responds, “Because the wire tap order was invalid. ... It’s different from the search warrant. .... Good faith exception.”  The court continues with it’s inquiry.  “Why should that apply to wire taps?”

DDA Burnley tells the court, “That’s true your honor. (It) does not apply to wire taps. ... The wire tap does not anticipate any triggering effect .... once the judge determines there is enough probable cause .... the 30 days commences. ... (There’s) nothing that says in the statute a triggering effect has to happen.  Penal Code 629.60 deals with the six days report. ... Law enforcement is supposed to update the judge and a (satisfactory?) explanation must be given.

The DA’s first six day report, the detective’s plan was outlined.  (There’s) nothing in the wire tap (statute) that says something in the wire tap must have a triggering event.  The only requirement is the six day report and to update the judge as to whether or not it should be confirmed.

The problem with the wire tap issued without probable cause ... that it would contain any information (about the) Redding homicide.

Kassabian responds that there was no probable cause that there would be communication two years later about this homicide. ... The offense was a single offense in 2008.  There was nothing in (the wire tap application) to talk about this homicide.

Judge Kennedy gives the parties the beginnings of where she stands.  “I don’t see it that way. ... I was not able to find a similar case with (a) triggering effect. ... Most wire taps are narcotics (related?).  It was different in that respect.”

If the purpose of the wire tap law is that ... law enforcement obtain an order ... and when one looks at the totality ... that Judge Fidler had to consider and there was a 30 day period ... “I don’t see how (ends? evidence?) of justice served the ... went through ... and that 30 day doesn’t .... and Judge Fidler, who is the wire tap judge for Los Angeles County, ... and he reviewed ...”

DDA Burnley adds the date that the wire tap was signed on and the number of days delay (in the triggering event?).

Judge Kennedy states she is not prepared at this time to rule that it (wire tap) was illegal as to what Judge Fidler signed.

There is discussion about “Hobbs” and that all material in Hobbs was turned over to the defense.  The prosecution states they have no objection to turning the Hobbs material over to the defense and that the Hobbs material has nothing to do with Parks.

Buehler speaks up and focuses on specific language that Judge Kennedy used in her ruling.  “You say, ‘at this point’ ... (if) there’s something further .... to suppress?”

Okun-Wiese chimes in that papers were given to the defense.

Judge Kennedy then brings up the 1101b motion by the people and whether the defense wants to argue that motion closer to trial.  The defense states that they may be there (at that point to argue the motion).  There’s more discussion about the 1101b motion.  The prosecution states they have a supplemental motion.

The parties are asked what date they want to come back and December 11th is the date they will return.

Now the parties talk about a realistic trial date.  The prosecution wants a date in January.  The defense wants a later start date.  Judge Kennedy states that January and February are out of the question.  On January 14th, she has the Bell case that is set to start January 14th, 2013 and that case will take six weeks.

The court states that March is a more realistic date.  Judge Kennedy asks the parties to “pick a date” in March.  She then asks the parties what is the time estimate for this case.  The prosecution states two to three weeks.  The Defense agrees the case will take three weeks.  That time however, does not include time for deliberation by the jury.  Another week is added for a total of four weeks for trial.

Judge Kennedy asks the parties if they will agree to pre screened jurors for availability.  The people have no problem.  I don’t believe the defense answers.  The court states they are not going to force the issue, but does make a plea to the defense to consider.  Judge Kennedy states that (recently) in a case before Judge Ito, it took three weeks to get a jury for voir dire.

The pre screening process is to eliminate jurors that can not serve on a long trial because they do not receive jury service pay from their employers or other hardship issues.  Judge Kennedy tells the defense there is a pre screened form that the court uses and to look it over.

O-W tells the court they would like to pick a March date and have something in writing.  The court states March is open and the second week in March is good. The defense would like the first week in March.  Judge Kennedy states that March 11th is a Monday, the beginning of the second week of March. 

The case is tentatively scheduled for March 11th, a four week trial.  The case is scheduled for further motions on December 11th.  The court asks Park for her waiver of her right to a speedy trial.  Okun-Wiese tells the court they will take the subpoenaed documents, make copies and return them to the court.

And that’s it. 

I happened to ride down the elevator with  DDA Burnley and I asked him for the correct spelling of his name.  He also indicated that his participation in this case was limited to arguing the people’s position on the wire taps.