Tuesday, July 9, 2013

Gerhard Becker Preliminary Hearing, Part IV

Gerhard Becker, soon after his arrest, February 2012.

Continued from Gerhard Becker Preliminary Hearing, Part III...

UPDATE 8/27/13 spelling
Tuesday, November 20th, 2012
As I enter Dept. 42, Judge Tynan is walking out.  When he comes back in he says good morning to me.

9:12 AM
There is a bit of banter in the well between the court staff.  One of the clerks did not see Judge Tynan leave.  I believe Judge Tynan states, "There's an invisible wall here."  Judge Tynan's clerk replies, "You have super human powers. ... Well, not yet, you don't have your cape on."  Judge Tynan's staff clearly adore him.

Judge Tynan's current courtroom is one of the old 'municipal court' courtrooms.  That was back when there was municipal court and superior court.  One of the noticeable differences is the California State Seal on the wall over Judge Tynan's bench is much smaller than the state seals over the benches on the 9th floor and above.  In addition, there is no Plexiglas surrounding the bailiff's desk. There are two name placards on Judge Tynan's bench.  The bench and attached clerks area are in a slightly different shape than the courtrooms on the upper floors.

Two people are set up in the jury box.  I don't know what rehabilitation agency they are with.  The same female prosecutor is in the well. She's a slender, pretty blond woman with short, pageboy like hair.

I believe it's a public defender who represents most of these defendants in Tynan's courtroom.  He's a tall slender man with graying hair.  He currently has a limp but I don't know if that's from a recent injury or not.

9:20 AM
Defense attorney Donald Re arrives.

Mr. Boyd, (sp?) the public defender tells someone, "I'm a little hobbled, but okay."  More attorneys show up to Judge Tynan's courtroom.  Everyone in the well appears to know each other.  The current discussion is about the new appointments under incoming District Attorney, Jackie Lacey. For the first time, I notice a sign over a chair directly beside the bailiff's desk that says:

Richard Ramirez Memorial Chair

Judge Michael Tynan was the presiding judge in the Night Stalker trial back in 1988. Later, Matthew and I find out that Dept. 42 is not the courtroom Ramirez trial was held in but this is the chair that Ramirez sat in for the fourteen month long trial.

More attorneys and court staff check in with Judge Tynan's clerk.  There is a discussion about how long Judge Tynan's regular calendar will go today.  Al the last moment, a large stack of cases were added to his calendar.  I'm not positive, but I believe someone suggests that DDA Carney and Young not even arrive until 2 PM today.

The public defender Mark, and Judge Tynan discuss Mark's leg injury.  Evidently, he tore his groin muscle.

At 10 AM Donald Re packs up his things into his rolling cart and exits the courtroom.  It looks like the prelim will not start anytime soon.  I decide to stick around and listen to Judge Tynan handle his calendar of cases.  The court is waiting for the return of the public defender, who went into the jail area to speak to several clients.  I overhear that Dept. 42 has fifteen defendants in their 'tank' today.

10:15 AM
A woman in the gallery has stepped up and is hoping that Judge Tynan will let her take one of the defendants into her rehabilitation program. The problem is, it's located outside Los Angeles County.

10:18 AM
DDA Carney arrives with a witness.  He stops by the clerk's desk to check in.  Judge Tynan comes out and tells the witness he's excused. He then adds, "You must have caught it from Mr. Re."

Judge Tynan is on the bench and calls his next case.  There is a discussion about all the new cases.  The defendant steps up. He's doing fine and his probation is continued.

10:25 AM
Judge Tynan tells his staff, "I better call up and cancel my meeting."  Two defendants are brought out and handcuffed together.  Judge Tynan asks the first defendant, "How do you like the program?"  He's doing well so far.  He's ordered back in one week.  The second defendant's case is called. The defendant is a "SODC graduate."  He's ordered back.

A new defendant is brought out.  He was a month away from graduating from the program he was in when he was picked up on a new possession charge. The program, Impact, won't take him back.  Judge Tynan asks, "Any idea what made you start using again?" The defendant replies, "I think I just got too comfortable."  He's remanded.

Three defendants are brought out handcuffed together.  I believe Judge Tynan addresses one defendant, "You're in sea foam green. Their favorite color."

Judge Tynan reads an essay one of the defendant's was ordered to write.  While reading it, Judge Tynan gets angry. The defendant wrote that the treatment program costs too much. Judge Tynan tells the defendant, "I'm criticizing you because you think the world owes you a living!"  Judge Tynan adds that the defendant did a nice job on the writing.

Some time after 11 AM, my phone goes off.  I'm mortified.  I'd never had this happen to me before.  I quickly leave the courtroom.

1:30 PM
After lunch, I wait for Judge Tynan's courtroom to open so I can apologize for my phone going off.  When the door is opened, it's not Judge Tynan like I was expecting, but the bailiff.  I tell the bailiff I would like to apologize to Judge Tynan.

Once I get situated in the jury box, the bailiff tells Judge Tynan that I would like to apologize.  I tell the court, "I'm extremely sorry your honor. It's never happened to me before."  I hear Judge Tynan ask his bailiff, "What do you think? Should we charge her $500.00?"  My eyes go wide and I'm hoping Judge Tynan is joking. Judge Tynan accepts my apology and I don't have to pay a fine.

William Thost takes the stand.

Judge Tynan talks about a "fire report."  It's an "Incident Investigation Report" prepared by Fire Associates, in preparation for the testimony of a witness.

The defense asks the court read the material. It pertains to an expert witness.

1:45 PM
We resume with Thost's direct testimony.


DDA Carney reminds the witness that yesterday, they left off with Thost's interview with Becker at LAPD Headquarters.  Thost agrees that in his conversation with Becker, Becker went over his background as an architect.

An email address is discussed that Becker used to send (Thost?) him plans, etc. Becker discussed plans for filming at the residence.

D Re: Objection! Relevance!

I believe it's Carney who offers to the court that the defendant had a contract with a reality show. This was one of the things motivating the lack of construction standards, was the filming at the house of "Germany's Next Top Model."  The defendant was hurrying to finish the house for the contract. He had obligations to finish the house.  Re argues that one doesn't have anything to do with the other.  Judge Tynan over rules the objection, subject to renewal.

SC: Did you have a discussion with Becker regarding filming of a reality show to take place at the house?
WT: The filming company would have come in on the 18th (Feb. 18). Filming was to begin the following Tuesday,.
SC: What was the film company?
WT: Production company was Tressor Entertainment.
SC: What was the show?
WT: Germany's Next Top Model.
SC: Did Becker tell you how long the filming...
D Re: Objection!
JT: Sustained!
SC: Did Becker tell you (that) any of the models would be living in the house?
D Re: Objection! Relevance!
JT: What relevance?

DDA Carney mentions the carbon monoxide (exhaust system for one bedroom fireplace) that was vented back inside the bedroom.  It goes to gross negligence. Re states, "First off, Mr. Becker was living in the house."  Carney continues about how Becker knew he had created fireplaces using combustible materials, the carbon monoxide.  Re counters with something about the speed that Becker build the house has nothing to do with what he was going to do with it later.  Tynan rules. "I think your analogy is off point Mr. Carney. Focus more on... We won't be bringing in models, much to my despair."

SC: Did he tell you models (were going to be living there)?
The witness pauses to think and there's a bit of laughter in the well.
WT: I vaguely remember...
D Re: Objection to vaguely!
JT: Sustained!

SC: During the conversation with Becker at the Police Administration Building, did Becker tell you who performed the construction work in various parts of the house? ... Did he tell you who did the plumbing?
WT: He performed the plumbing. ... I remember him saying "I did it." ... The interior walls, I believe he said he did it but I believe he said he had help.
SC: Who did the natural gas hookup?
WT: He said he did it.
SC: The drywall around the fireplace?
WT: He did it himself because he wanted it done properly.

I believe Re brings up diagrams that were on the table in the interview.  There is a question about the diagrams and Becker installing items in the house himself.

A short video is played for the court of the interview Thost had with Becker.  The sound won't play at first.  After the video is played, Judge Tynan states, "It appears that Mr. Becker said not only that he planned it but built it himself.

SC: Did Mr. Becker tell you where he purchased the fire trough installed on the first floor?
WT: He said it was Colorado Fire Pit, but (I'd?) need papers to tell the exact name.

The witness spoke with Colorado Hearth and Home.  Mr. Roos at Colorado Hearth and Home had email correspondence with Mr. Becker. Mr. Roos told Thost he had a phone conversation with Becker. There is an objection to this information coming in. Re wants Carney to lay the foundation first.  Judge Tynan says something about cumulative evidence about the emails and phone call.

Thost testifies Roos stated it was a series of phone calls with someone who identified themselves as Gerhard Becker. The phone calls had to do with the ordering and installation of the fire trough. Roos also told Thost there were several emails in which the person identified was Gerhard Becker.  Thost went over the emails with Roos over the phone.

People's Exhibit 37, second page. (First page is a business record authentication page.)

The email is read. "Okay. Are you aware that the manufacturer's specs, they are for outdoor use? ...before you buy them." Dated 7/28/10 (Response) "I am aware, I just don't see the difference. ... It is a pit with a pipe. I will cover around pit with fire resistant materials. ... If my building inspector asks for a URL then I will have them installed after inspection."  Reply was sent 7/31/2010.

Page three of Exhibit 37.

SC: Top of that page. Did you discuss this email with Mr. Roos?
WT: Yes.
SC: Did he tell you it was a fifteen foot linear burner?
WT: Yes. That's what Mr. Becker ordered.
SC: That's what Mr. Roos told you?
WT: Yes.
SC: When you discussed with Mr. Becker (the sketches?) did you review them with Mr. Becker?
WT: I asked him about the drawings.
SC: Did you speak with Zlendick (Bill Zlendick, fire investigator. Sprocket.) after you interviewed Mr. Becker?
WT: Yes.

Zlendick in the morning hours of the fire. Becker did the drawings for Zlendick.

SC: Did Mr. Becker tell you what they portrayed?
WT: The fireplace on the first floor.
SC: Did Mr. Becker tell you about (how?) the first floor bedroom fireplace would come on?
WT: Said he turned it off and then shut off and stated that 'this part' he had left it open.

I believe the witness is pointing to a photo of the fire trough's gas key.

SC: It was in the on position, that's the position to allow gas to flow?
WT: Yes.
SC: After Zlendick and Becker interviewed, did he (Zlender?) tell you what Becker said was the cause of the fire?
D Re: Objection!
JT: Sustained!
SC: Did you talk with Zlendick what Becker said about the cause (of the fire)?
WT: Yes. ... He told him that he may want to check around the beam of the fire pit and that underneath the fire box had a lot of burn. ... He said he had problems with igniters coming on and off.
SC: Did Becker tell you when he installed the fireplace trough's in the house?
WT: In November, 2010.
SC: In November? Is that your recollection?
WT: I don't recall the date. It was either October or November.
SC: Would it help to look at your notes of the interview?
(The witness reviews his notes.)
WT: October 2010.
SC: Did he tell you when the gas was turned on?
WT: Shortly after the certification of occupancy.
(The witness is asked to review his report again to see if it refreshes his memory.)
WT: January 2011.
SC: Did Mr. Becker tell you the fire pit he ordered and the condition they were in, that they needed some assembly?
WT: He said they were already assembled and only had to drop them in.
SC: Did he tell you all the fireplaces vented to outside of the house?
(The witness references his notes.)
WT: They had vented to the outside and he constructed the venting himself.
SC: Did you ask Mr. Becker if he knew if the fire troughs were rated for inside or outside use?
WT: He stated he didn't remember.
SC: What was his body language when you asked him that?
D Re: Objection!
JT: Sustained!

Direct ends and cross examination begins.

Thost confirms that at the time of the fire, Becker was in the house and Becker's girlfriend was also in the house.

D Re: Mr. Becker said in the course of the interview, he said, "I built it." Did you follow that up with what he meant?
WT: No.
D Re: You know that when people say, "I built it," they don't mean they got hammers and nails and built it themselves.
WT: Yes.

Re puts up a photo of just the framing around where the fire trough was.  I believe the people object but I miss getting the ruling.

D Re: From the answers given by Mr. Becker, do you know if Mr. Becker built that by hammer and nail, and built it himself?
WT: I believe he did.

Re asks the witness questions about overseeing a build verses building it himself.

D Re: Is it your conclusion that Mr. Becker hammered together the entire structure? ... He said he designed and built it ... Did he say he picked up an hammer and nail (himself)?
WT: No.

Re asks Thost about the Next Top Model filming, and the purpose of the house and the "pressure" to finish.

D Re: In fact, Mr. Becker told you he built the house for himself, correct?
WT: Correct.
D Re: Do you know the height of the ceiling where Glenn Allen was standing on a table?
WT: No, I don't.
D Re: Glenn Allen had to push up then pull down on the ceiling. ... Do you know if there was a beam here, across where he was standing?
WT: No.

There are questions about the "drop ceiling."  There were two by fours every five feet, hanging down. Every five feet horizontal. Approximately every sixteen inches on center.  So every sixteen inches there were one of these two by fours.

D Re: I take it you have no personal knowledge of where Glenn Allen was when the ceiling (fell)?
WT: I'd have to look a the photos (and testimony).
D Re: Can you place Glenn Allen within sixteen inches (in the structure)?

Re now asks about the fire box. The fire box is the control box.  Above that is the blow-out box. People's Exhibit 16, a photo of the control box. The blow-out box is an area where the igniter and the pilot would be.  When the trough lights, they come on because the gas is flowing. There is a confusing question about whether there is a flame in the control box.

D Re: Is heat by the fireplace generated by flame?
WT: Yes.
D Re: And the flame portion was in the trough apparatus?
WT: That's how it's supposed to work.

People's Exhibit 12, a photo of the entire fifteen foot trough. There are questions about the structure of the trough, and if the structure design was a fireplace.  Now showing a photo of the area, pre-construction. It looked like it should have been a fireplace.

DDA Carney objects. "What he perceived, if it was a fireplace is immaterial as to whether or not the inspector saw a fireplace construction."  Re counters, "He's an expert, expert in fireplaces and he would know."  There's more argument as to what the inspector saw and what statement he retracted. Carney argues, "What he testified to is, he did not see a fireplace."

D Re: What Mr. Bescos is claiming is he did not see a fireplace on final inspection. ... There's no way on his prior inspection that he missed this fireplace construction.
JT: Any testimony that there was plans for a fireplace and...?

Someone states that the only place that was recorded was after the fire. Re replies, "I'm saying there's no recording of this any place." Judge Tynan responds, "I'm troubled Mr. Re, because there was testimony there was no fireplace there."  Re gives another argument, after which, DDA Carney states, "The issue is whether it's appropriate to testify as to what the inspector saw (or?) should have seen. ... It goes to the argument of the entire case. ... Regardless of the inspector, it doesn't alleviate Mr. Becker's responsibility."  Re disagrees to the shifting of liability. "Our contention is he approved it. There is an estoppel that occurs, ... because  the state told him he could do it. ... They cannot then say to you, they can prosecute you for what we said you can do."

DDA Carney tells the court he's done research on what Mr. Re is claiming, of entrapment by estoppel.  Carney goes into a brief argument, or example about this issue.  Someone is told a demonstration is okay, then arrested for demonstrating. There are very specific considerations for entrapment. "He would have to be specifically told the fireplace is okay to be installed."  Carney further explains the three prongs that have to be met. In this case, they fail to meet estoppel.

I believe Judge Tynan states he respectfully disagrees (with Re?).  I believe Judge Tynan rules that the discussion (discovery?) of whether the scope of this witness ... if that's a fireplace is out of bounds. The court calls for a break.  The AP reporter and Terri Keith from City News come in and ask the prosecution and defense where they are at in the preliminary hearing.  Becker and Carney have some of the cheesecake that is offered to everyone by the court staff.  The other reporters leave.

I believe Judge Tynan tells counsel that the arguments presented were "fabulous" by both sides.

The (defense? defendant?) believed the inspector did see the fireplace and did approve it.

While everyone in the well is feasting on the cheesecake, DDA Young asks Judge Tynan, "Do you get treated like this all the time?"  Judge Tynan responds, "Hard to believe but my staff actually like me."

I have another note in my book about the defense argument: Because it would have been impossible for him (Bescos, the building inspector) not to have seen this construction as a fireplace. The only time he mentions about the fireplace is after the fact.  I note that Young's jacket is a pink weave with a hint of white threads.

3:20 PM
Back on the record in the Becker preliminary hearing. Cross examination continues.

D Re: Yesterday, you spoke about fire blocking, fire blocks. They slow the progression of a fire?
WT: That's my understanding.
D Re: Does it come from your expertise as a fire investigator?
WT: No. ... Well, yes it does.

Thost goes onto explain about his childhood experience of instruction from his father. His knowledge comes from childhood hanging out with his father. He also got training as an expert.  His understanding about fire blocking, all through his training.

D Re: You testified that there was some absence of fire stop?
WT: Yes.

Fire stop should be at the ceiling and floor. There's some statement about anything over ten feet. Re asks a question about where a fire stop should be installed.

SC: Objection!
JT: Sustained!

I believe Carney states the witness doesn't know about building codes. Re asks about the reference to no fire stop in the void space.  The witness describes and points to an area on an exhibit.

D Re: Are you aware of insulation as a fire stop:
WT: No.
D Re: (Are you) aware of any conversations of Mr. Bescos said about fire stops?
WT: No, I did not.

Re asks the witness, in his expert opinion, if fire stops are significant in this case. If the fire allowed to spread to the ceiling area, (that) weakens the ceiling.  Thost replies, "Yes."  Re asks if the lack of fire stops could be the cause of the collapse of the drop ceiling.

Re shows the witness a photo of the fireplace area with just the framing and a yellow hose type line coming out of the floor of the framed area. Re asks the witness if he knows what the yellow thing is.
WT: I believe a gas line connected to the control box.

D Re: Is it your opinion that the control box is too close to combustibles?
WT: No. ... It was the blow-out box.
D Re: Is it possible for the blow-out box to malfunction?
WT: I don't know.
D Re: Do you know if this product had any history of malfunction?

Thost states that he spoke to someone in Ohio (where the devices are manufactured), and that individual said no.

D Re: Did you speak to anyone who didn't have a financial interest?
WT: No.

Cross ends and redirect begins by DDA Carney.

SC: In your conversations with Mr. Steck, did you ask him (about) conditions that might cause a flame to be drawn down?
WT: There is a possibility if there is a draft for the flame to be brought down.
SC: What did he say to the lack of venting?
WT: He said if there is a draft, the flame could be drawn down.
SC: In your investigation, did you see evidence of direct flame impingement?
WT: Yes, below the blow-out box.

Another post-fire photo exhibit is put up and the witness is asked to describe the drop ceiling.  (It's complicated for me to explain without a photo. Sprocket.)  There were two by four cripples.  Twenty-six inches of two by fours, nailed to ceiling joists. Those points out in the photo, "These were the hangers."

People's Exhibit 6 is presented to the witness.  Carney asks the witness to describe where Glenn Allen was standing. He also asks Thost to describe the type of damage to the ceiling and roof structure in the area where Allen was.

WT: Ceiling joists were burned heavily in that area.
SC: It suffered deep charring?
WT: Yes.
SC: Did the cripples suffer sufficient burn to lose their structural integrity?
WT: Yes.

Carney asks Thost when he looked at the area in Exhibit 12, where the wall meets the drop ceiling if he looked for any remains of fire blocking, if it had been burned. Thost replies, "No." Carney asks Thost question after question if there were any remains of insulation or drywall used as fire blocking.

Redirect ends and recross begins.

Re puts up People's Exhibit 7, another photo.
D Re: There were large amounts of insulation?
WT: Yes.
D Re: And areas were insulation may have existed?
WT: Yes.
D Re: That could have been pulled down by fire fighters?
WT: Yes.

Re asks about the drop ceiling. It was two by fours attached together to make four by fours. I believe they were sixteen inches apart. Re asks, "And insulation extended across all portions of the ceiling?"
Thost replies, "Yes."

People's Exhibit 19, a photo of the control box. The witness talked about charring.  Thost points out the underneath area and states, "This dark and gray area is charring."

I believe Re states that he's color blind, and then makes a joke, "This sir, is gray here," pointing to his hair.  Carney laughs at the joke.

I try to draw the narrow view structure of the "trough" because Re is now asking about "flanges" on the edge of the trough. [  --v-- More questions about the construction of the trough as well as what's below the blow-out box. "Open space," Thost responds.  At the moment, Thost doesn't remember talking to the Ohio expert about inadequate venting.

Recross ends and redirect begins.

Carney puts up People's Exhibit 50.  It's an upward image from under the fire pit trough.  A tube pipe extends up through the trough's "V" shape.  Carney sets up his question by stating two things go up. One is the pipe, and the second is the blow out box. If you removed the cover to the blow-out box, you could see down through to the control box.  Carney asks the witness to review his notes of his conversation with Mr. Steck.

WT: He stated that it was not properly drafted. The flame could be drawn down to the blow-out box below.

The witness doesn't remember the explanation of 'properly drafted.'  People's Exhibit 15, a photo. There is a steel beam. It also shows the blow-out box and a "T" connection in the pipe for the pipe going downwards.  I believe another photo is presented to the witness.  There is a gap, in the floor of the trough next to the steel beam. There would be access to draw oxygen down.

Redirect ends and recross begins.

Re asks about the items in Exhibit 50, a photo.
D Re: What is the bottom of the blow out box made of?
WT: Nothings there. It's open.

Re asks about the thermocouple and the pilot.

I believe Carney redirects his witness. He presents him with People's Exhibit 14, a photo.
SC: Does that (show?) the blow out box with the cover removed?
WT: Yes.
(Carney asks about a measuring tape in the photo.)
SC: Does that tape go all the way to the floor?
WT: Yes.

Judge Tynan has a recommendation that a diagram be presented to the jury. Carney tells the court they will bring in the actual trough to court to present. Re asks the court for the witness not to be excused.  Judge Tynan asks about People's Exhibit 6, a photo of where everyone is, and asks where the "cripples" are.  The location of the cripples in the photo are verified for the court.

The preliminary hearing will resume on Monday at 1:30 PM.  Re addresses the court, "Thank you to you and your staff. They are really spectacular."

To be continued in Part V.....