Thursday, November 28, 2013

Happy Thanksgiving 2013

 "Bronze" turkey (Wikipedia)

UPDATE 11/29: clarity, accuracy of page load activity
T&T Gives Thanks
As we come closer to the end of 2013, Thanksgiving is a time where our nation looks back on the many things we have to be thankful for. I am thankful that T&T continues to be recognized as a respected news source for gavel to gavel trial coverage.

Within the next couple of days, T&T's page loads will pass the 2,550,000 mark.  It's been 22 months since Stephanie Lazarus was convicted, and almost 6 months since Kelly Soo Park was acquitted. However, those two cases still draw a considerable amount of T&T's traffic. Many thanks to T&T readers who continue to support and appreciate our work. 

Recently, I've been trying to put up more "Quick Links" archival pages of past cases that T&T contributors have covered. You can now find in one place (right side of the page), links to the complete coverage of all the high profile cases T&T has covered.  Quick Links pages that still need to be completed are Phil Spector 1, Casey Anthony, and Mark Jensen trial.

What's Ahead for Trials in 2014
It looks like the Gerhard Becker case will go to trial in early January 2014. Sources tell me this case could take as long as six to eight weeks and I don't know if I can devote that much time to the case. I plan on attending opening statements once a jury is selected.

From the last pretrial hearing in the Cameron Brown case, if there are no further bumps in the road, that case will start sometime in April 2014. The Brown case is my top priority case and the one I've been waiting on the longest.

The Michael Thomas Gargiulo case is most likely, a year away from trial. Once the prosecution has turned over all it's discovery, it will be interesting to see what motions Gargiulo files in the months ahead.

It appears the Ka Pasasouk case will go to trial faster than some of DDA Akemon's other cases I've been following (Gargiulo, Barnes & Bolden)

There are a couple of other interesting cases that I might pick up. The Alberd Tersargyan case and the Samuel Little case.

Future of T&T
For over five years, T&T has brought our readers unparalleled, advertising free, trial coverage from inside the courtroom. During the Lazarus trial, T&T put a donation link on the blog. The generous donations from T&T readers during the Lazarus and Park trials have helped to offset some of my travel and court expenses. However, Mr. Sprocket picks up the rest.

For 2014, T&T will be exploring other avenues to make T&T self supporting and profitable. Advertising and sponsorship are just some of the ideas that we will be looking at in the months ahead.

In closing, T&T would like to wish everyone a safe and memorable holiday season this year.

Tuesday, November 26, 2013

Michael Gargiulo Case: Pretrial Hearing 13, Part II

Michael Thomas Gargiulo, possibly on arrest date.

Complete Case Coverage

Continued from Gargiulo Pretrial 13.....

November 22, 2013
Mr. Sprocket drove with me down to court today. It was a quick, easy drive.

Up on the 9th floor, the hallway is pretty empty when we arrive. Not long after, a large family, almost two dozen people arrive and wait quietly on the hall benches.  When DDA Daniel Akemon arrives, I introduce him to my husband. We have a quick chat about the 50th anniversary of JFK's assassination.  While we are waiting Judge Ohta leaves his courtroom.  DDA Akemon greets him as he passes.

8:50 AM
We're inside Dept. 108.  Judge Ohta is back inside his courtroom.  LA County Sheriff Detective Mark Lillenfield is here. I first saw Detective Lillenfield testify in the Phil Spector trial. Not only is he involved in the Gargiulo investigation, he had a small part in the Cameron Brown case.  DDA Garrett Dameron, DDA Akemon's co-counsel, is not here for today's hearing.

As soon as we take a seat in the second row, Mr. Sprocket points out a large bowl of candy on the court reporter's desk. He wants to know if he can go up there and get a piece of candy. I have to tell him "No, you can't."  I remind him that he can't have his cell phone out when Judge Ohta takes the bench.  There is a suited gentleman with a briefcase sitting in the back row.

There is a female prosecutor sitting at the people's table, most likely for another case.  I overhear that Gargiulo's case will be heard first. Judge Ohta, still out of his robes, chats with the woman at the prosecution table. He then leaves the bench.  DDA Akemon drops off a stack of papers on the defense table. These documents will go directly to Gargiulo.   Judge Ohta asks DDA Akemon if Mr. Filipiak will be here today.  Akemon responds, "No, your honor." The pretty court reporter comes out and starts setting up her equipment.

8:58 AM
Judge Ohta has put on his robe and takes the bench. We are now waiting for Gargiulo to come out. Wheneve Judge Ohta takes the bench, his black robe looks dark brown to me under the florescent lighting.  I whisper to my husband to keep his eyes on the door off to our right where Gargiulo will emerge.

Once Gargiulo sits at the defense table, he gives a quick look back to the gallery. Mr. Sprocket whispers to me that Gargiulo specifically looked back at me. I don't believe that's true, however, I can't recall the last time that I saw Gargiulo look back at the gallery.  The other possibility, is that Gargiulo was looking for his other court appointed investigator.

The man sitting in the last row of the gallery steps up and stands beside Gargiulo in the well.  In a prior pretrial hearing, Gargiulo had told Judge Ohta that he needed a new investigator because the woman who was doing research had been on vacation for a month and (I believe) was also studying for the bar. This must be the new investigator Gargiulo has been assigned.

It's my understanding that the US Supreme Court ruled that defendants facing the death penalty (and typically unable to pay for their own counsel) should have two defense attorneys and two investigators. I believe the reasoning behind it is, that a defendant (whose defense counsel just lost the case on the guilt phase) should not have the same attorney then arguing before the jury to spare the defendant's life in the penalty phase. Since Gargiulo chose to represent himself, he doesn't get a second counsel, but he does still get two investigators.

There are two casually dressed young men sitting on the bench to our left.  They are engrossed with their smart phones with in-ear headphones.  The man beside Mr. Sprocket, is nervously tapping his leg and it's causing the bench to vibrate a bit. It's driving Mr. Sprocket crazy and he wants us to move to a different row.  I tell him he's just going to have to deal with it. We're not moving since the judge is about to take the bench.

We go on the record in People v. Gargiulo and the appearances are documented.  The investigator who joined counsel in the well states his name as Chris Nicely. Judge Ohta states for the record that as of today the case calendar is zero of 90.  I believe Judge Ohta asks DDA Akemon if he has turned over any more discovery to the defendant.

DDA Akemon states that he has delivered document pages number 28,168 through 28,600 to the defendant.  Akemon states he has also provided a copy of the papers to defense investigator Christian Filipiak.  Judge Ohta asks, "Do you have that in front of you, Mr. Gargiulo?"  "Yes, I have," Gargiulo responds.

Judge Ohta notes, "Last time ... in court, ... Mr. Akemon, you filed a (bound? large?) volume, ... 402 Motion in Limine.  In terms of the discovery process, are we (close?)?  Akemon responds, "Almost, your honor. ... We are epecting a report from an expert in mid January."  Akemon suggests that they come back in late January.  "When that happens, the discovery process, ... (will be) more or less complete," Akemon adds.

Judge Ohta comments that there are quite a few documents to look through in that last motion the people filed. He then asks DDA Akemon about the report he's waiting on. "The expert is preparing a crime scene linkage report," Akemon explains.  Judge Ohta then addresses the defendant, explaining to him that he also has a discovery obligation under 1054, if he has something to turn over to the prosecution.

Judge Ohta then asks Gargiulo once the prosecution hands over it's last discovery, "Do you have any idea in your mind... [how long you will need to prepare?]..?  I believe Gargiulo responds "At least within a year. ... I don't really have a date. ... I have a lot of motions to file. ... [there's] lots of discovery."  Gargiulo tells the court there are things he has asked for, things that the DA says he doesn't have, so he's trying to find them. I believe he states he's issued subpoena's, but nothing has come back on them yet.

Then Judge Ohta asks the defendant if he truly plans to go forward with representing himself. "In my years of experience as a judge, I've dealt with many pro per's. ... Some try to see it (all the way through) [to trial] ... and some see it .... I've had many who ... had to gain control of the case. ... Some I think (always?) ... to do it ... and some (?) before finding ... thinking that (they) can prolong the case and then have an attorney step in. .... I just want to make sure this is something you've come do on your own."

I believe Gargiulo replies, "Yes."

Judge Ohta continues, "I don't want to wait a year then you relinquish, and then (ask for an attorney)."  Gargiulo replies, "Your honor. That's not my intention."

Gargiulo explains to the court that he has a conflict with (?) He's not going to trial with an attorney he has a strong conflict with. (I believe that Gargiulo is referencing his former court appointed attorney, Charles Lindner. Then he goes into a long explanation that he's had a (recent?) conversation with another attorney (Gayle?) Rubin, who was also assigned to his case but that counsel had to drop out due to financial difficulties. So Rubin had to file a conflict and was taken off. Gargiulo kept in contact with Rubin, who told him that at any time he would step in and take over as first chair.

Judge Ohta explains to Gargiulo that he's not involved with that. "I'm not privy to that or am I concerned about that. ... What I'm concerned is keeping the trial on track and not derailed. ... I don't want to see it hamstrung. ... Mr. Akemon seems reasonable."  I believe Gargiulo states that's (derailing his trial?) not his intention.

A date to return is chosen: Friday, January 31, 2014.  Judge Ohta gets Gargiulo's waiver to have his trial within 90 days of today's date.

At the last moment, Gargiulo addresses the court. "Someone told me that you might be leaving. Someone told me that you applies to the California Supreme Court."  Judge Ohta responds, "No. Where did you hear that? ... I'm still here."

We're done and the court goes off the record.  DDA Akemon informs the court that Mr. Gargiulo signed for the discovery he handed over today.   Judge Ohta addresses Gargiulo. "Sounds like, Mr. Gargiulo, you want me to do your case?"  Gargiulo replies, "I do."

The defendant is taken back into custody. In the well, DDA Akemon and Gargiulo's new, second investigator shake hands and introduce themselves. They have a short chat before exiting the courtroom. Once Mr. Nicely leaves the courtroom I stop him to ask for his business card so I can get the correct spelling of his name.

And that's it for this hearing.

P.S. I almost forgot to mention that I asked Mr. Sprocket what he thought of Gargiulo. Mr. Sprocket thought Gargiulo's sideburns went well with his long face. 

Saturday, November 23, 2013

Kelly Soo Park Trial: Synopsis Part IV -- Non-Admitted Evidence via Pretrial Motions

 Juliana Redding, undated photo


UPDATE: spelling, clarity
On June 4th, 2013, a jury found Kelly Soo Park not guilty of the murder of Juliana Redding.  Redding was found strangled to death in her Santa Monica apartment on March 16, 2008. Park was arrested for Redding's murder over two years later.

Juliana Redding's living room where prosecutor's believe 
Juliana fought for her life.

After the trial was over, I promised T&T readers that I would present a synopsis of the trial to help them understand the jury's verdict. Many readers did not understand the verdict when the state presented evidence that Park's DNA was found on several items, including the victim. Criminalists testified at trial that Park's DNA was found around Juliana's neck, on the T-shirt Juliana was wearing at the time of her death, on her cell phone left on a bedside table, as well as on a stove knob in the kitchen.

This is my last post in a four part series, that gave a detailed, post-trial analysis of the case. Part IV covers pre trial motions argued before trial, as to the admissibility of evidence one side or the other, wanted to introduce.

Special thanks and shout-out to my fellow journalist Lonce LaMon of for her assistance in purchasing motions as well as photographing the evidence once the trial was over. You can see more of the exhibits in the Part III posts. I have purposefully not published a photo of Juliana as she was found out of respect for her family and friends.

Tonight, CBS 48 Hours will profile the murder of Juliana Redding and the trial of Kelly Soo Park  who was charged with her murder. All three major networks had producers who attended pretrial hearings and attended most or some of the trial. (T&T was the only source for daily updates on the trial. T&T also reported the verdicts before any other news source. Sprocket) Journalists for NBC and CBS worked together to try to get Judge Kennedy to approve video taping of witness testimony. For the court to agree to that request, Judge Kennedy wanted the network to mount cameras on the wall.  The problem is, those cameras are not something the networks readily have at their disposal, and the daily cost of one camera is several thousand a day. Consequently, only opening statements and closing arguments were video taped.

I knew something was in the works when respected LA Times reporter Jack Leonard sent out this tweet:

Leonard is an excellent journalist and that was most kind of him. (It's a good bet that CBS has an arrangement with the LA Times to feature their journalists on cases they profile.) Not long after, former prosecutor Alan Jackson made a post about the upcoming episode on his Facebook Page.  The initial prosecutors, Jackson and his co-counsel at the time, Eric Harmon (now Judge Harmon),  probably know the case facts as well as DDA Stacy Okun-Wiese, who prosecuted Park.

I will be most interested to see if CBS producers were able to track down any of the jurors and get them to appear on camera. After the verdicts were read in court, the jury asked to be escorted out of the courthouse via a private elevator.  Back on June 13th, a T&T reader left a comment with information about the jury's verdict. Since the commenter asked that I not publish the comment, I have honored that request.

Throughout my coverage of the trial, several people who knew Kelly Soo Park over a significant portion of her life, contacted me and shared what they knew about her. Unfortunately, every single person spoke off the record and were not willing to share this information publicly.

Kelly Soo Park Trial Synopsis
Part I Opening Statements
Part II Prosecution Witnesses 1-10
Part II Prosecution Witnesses 11-18
Part II Prosecution Witnesses 19-21
Part II Final Prosecution & Defense Witnesses
Part III Prosecution Opening Argument
Part III Defense & Prosecution Closing Argument
Part III Additional Arguments to Jury

Before the trial even started, both sides presented motions to admit or exclude evidence at trial. Here's brief review of some of the more significant motions. 

James Bond Girl - Defense Motion to Exclude
From the moment Park was arrested, news agencies were reporting that Dr. Munir Uwaydah --the only connection between Park and Juliana-- had bragged to Juliana's father, Greg Redding that he had an enforcer, a female "James Bond" who would do his bidding. The public heard about this alleged statement but the jury didn't.

Dr. Uwaydah was not on trial; Kelly Soo Park was. Judge Kennedy ruled that Dr. Uwaydah's statement to Greg Redding could not be admitted because it was hearsay.

1101b Evidence People's Motion to Admit Other Conduct -- Defense Opposition Motion
The people alleged "The defendant has a history of threatening and intimidating individuals who have an ongoing dispute with her employer, Dr. Uwaydah." The people had two instances of this type of conduct they wanted to introduce at trial.  This evidence would have supported their theory of the case that Park was acting on the orders of Dr. Uwaydah because of the failed business venture with Juliana's father, Greg Redding.

Judge Kennedy ruled that this evidence was inadmissible. With this ruling, the people lost their ability to present to the jury their theory of Park's true relationship with Dr. Uwaydah. In closing arguments, the defense told the jury that there was no evidence presented that Park had any personal desire to harm Juliana, or that she had the murderous heart, capable to carry out such a violent act.

Dr. Uwaydah's Alleged Criminal Conduct -- Defense Motion to Exclude evidence of Uwaydah's Departure -- Defense Motion to Exclude Evidence of Fraud
The defense filed a motion to excluded references to alleged criminal conduct by Dr. Uwaydah. Dr. Uwaydah was not on trial, so it was not surprising to me that Judge Kennedy ruled this evidence was inadmissible.  The defense also argued to exclude references to when Dr. Uwaydah fled the country. Judge Kennedy ruled that there could be more than one reason for why Dr. Uwaydah fled, so that evidence was also excluded.

Drugs Found in Park's Possession During Arrest -- Defense Motion to Exclude
When Park was arrested with Ronnie Case, police "...found several bottles of prescription drugs in the bed of the truck [they were in when arrested], carrying the names of various doctors and various patients." Judge Kennedy ruled for the defense and this evidence was not admitted at trial.

John Glimore's Alleged Conduct & Statements --
Defense Motion to Admit Evidence of Third Party Culpability
The defense tried to present evidence to the jury that John Gilmore could have been the individual who killed Juliana Redding.  Gilmore was an on again, off again boyfriend of Juliana. Witnesses allegedly had seen him become violent against objects (furniture, etc.) when he argued with the victim.  The defense argued to have another girlfirend of Gilmore's, "M.A." testify about alleged violent conduct against her (choking) and statements he made to her about Juliana.  The defense also argued to present evidence of other acts by John Gilmore to show his violent nature.  The defense also filed a supplemental statement by defense counsel Mark Kassabian to support the 3rd Party Culpability evidence.

Judge Kennedy ruled that this evidence did not meet the standard of 3rd Party Culpability, and was excluded at trial.

Friday, November 22, 2013

Michael Gargiulo Case: Pretrial 13 & JFK Assassinated 50 Years Ago

Michael Thomas Gargiulo, after his arrest in 2008

Friday, November 22, 1963
Our nation looks back fifty years today, to remember the death of our 35th president, John Fitzgerald Kennedy.  As a young child, that day is seared in my memory because it was also my birthday.  I remember being sent home from elementary school. I didn't get to pass out the lollipops I had brought for my classmates. In my mind, I can still see the US flag in our classroom that we said our pledge of allegiance to, draped in black. When my mother got home from work, she took me with her to the post office to pick up a birthday present my father had mailed me. It was a small ceramic figurine, a princess with the month November at the base. I can still see the pain that was etched on people faces, many uncontrollably sobbing. Walking past the news stands, I remember seeing JFK DEAD in black type that looked like it was five inches tall.  Ever since that day, I've felt a connection and admiration of the man who died on my birthday.

Friday, November 22, 2013
There is a pretrial hearing in the Michael Gargiulo case today. In California, Gargiulo is alleged to have killed Ashely Ellerin in 2001, Mario Bruno in 2005, and the attempted murder of Michelle Murphy in 2008.

Today is also our 12th wedding anniversary. Mr. Sprocket is coming to court with me this morning. After the hearing, we'll be helping my friend and author Matthew McGough with some last minute research. Then it's off to celebrate.  I will have an update on the Gargiulo hearing over the weekend.

Continued in Gargiulo Pretrial 13, Part II.....

Thursday, November 21, 2013

Det. Stephanie Lazarus - A Vintage Video

I promised T&T readers after the Stephanie Lazarus trial that I was working on additional stories related to her case. I’ve been busy covering other cases, and helping Mr. Sprocket with a long overdue project. However, I haven’t forgotten my promise to get back to the Lazarus case. This is the first of two stories. I hope to post the second before the holidays.

Not long ago, I heard an intriguing rumor about Stephanie Lazarus -- that sometime during her LAPD career, Lazarus had appeared in uniform on a TV game show. There was no mention of it during Lazarus' trial, or in any media reports I've seen. When I began my research, I wasn't sure if the rumor was true. Then I found this clip:

For those of you who haven't seen Lazarus' pre-arrest interrogation video, and may not recognize her, she is the officer holding the oversize check for charity.

I believe the episode aired on May 26, 1995. If so, Lazarus had just made detective. When this episode taped, nine years had passed since Sherri Rae Rasmussen's murder.

This clip is the only part of the episode I’ve been able to find. If someone has a complete copy of the episode, please contact me. T&T will honor all requests for confidentiality.

Cameron Brown 3rd Trial, Pretrial 13 & Mark Berndt Takes A Plea

Inspiration Point, Rancho Palos Verdes, CA
Lauren Serene Key, 4, fell or was thrown off this cliff Nov. 2000

UPDATED 11/22: spelling, clarity
Friday, November 15th, 2013
On Thursday, I received the 'advisory' from the District Attorney's office that there would be a pretrial hearing in the Mark Berndt case in Dept. 107 on Friday morning. When the district attorney's office sends out a notice like this to the media, it's a good bet that the defendant is taking a plea. Berndt, a Miramonte Elementary School teacher was arrested in January 2012 after a film processor notified police about images involving blindfolded children. T&T had reported on the Berndt case shortly after he was arrested. I wondered if the Brown case would go first or not.

When I arrive on the 9th floor of the downtown criminal court building, there's already a large media presence waiting outside Dept. 107.  I recognize a few local television on air personalities like NBC4's Toni Guinyard and Carlos Granda. Also in the crowd was a CNN reporter Lindy, who I met during one of the Spector trials.

Cameron Brown's wife Patty was waiting on a hallway bench. I made a point to say hello and tell her that she looked lovely in her wedding photo she provided for the recent Huffington Post article about her husband's case. I believe she asked me what all the media was here for and I told her it had to do with Mark Berndt, an elementary school teacher charged with lewd acts involving children that he labeled "tasting games."

A little after 8:30 AM, Judge Lomeli's bailiff (the same bailiff who was assigned to Judge Fidler's court in Spector 1), tells the group in the hall that the media will be allowed in first. We're asked to line up and show our media badges. I don't have a badge, but I'm hoping the bailiff will let me in anyway.  When I get to the door I tell him I don't have a badge but that I'm recognized by the court. Thankfully the bailiff tells me, "I know you," and I'm allowed in with the other journalists.

Inside Dept. 107, we're told to sit only in the first two rows. I get a seat in the second row behind City News reporter Terri Keith and the long-time Associated Press reporter. I happened to mention to Lindy and her associate (who were sitting to my left) that I was here for another case, Cameron Brown.  The gentleman to my right mentioned that his paper covered the Brown case, or rather his former associate, Denise Nix did.  I have read many articles by Daily Breeze reporter Larry Altman, but this is the first time I got to meet him in person.  Altman covers crime and courts for the South Bay area. I tell Altman that Nix did a phenomenal job covering the second trial closing arguments. The best I'd ever seen.

8:38 AM
DDA Craig Hum arrives and checks in with Judge Lomeli's clerk, David. With all this media here and the camera crews set up in the jury box, I'm thinking that Brown's hearing will be after Berndt's. DDA Hum is chatting with an attorney in the well that I later learn is Berndt's counsel.  There's lots of bustling going on in the gallery and the well.  Pat Kelly from the Public Information Office is here giving instructions to the photographers in the jury box.  The bailiff is chatting with the DDA on the Berndt case. Familiar faces, but I don't have names to go with them.

The first two rows in the gallery are jammed with media.  Once they were filled, then the bailiff allowed the public in the last two rows. DDA Hum comes over and speaks to Terri Keith. Hum explains that he told Judge Lomeli at the last Brown hearing that the court can't do a Marsden hearing when competency hasn't been decided.  Evidently Hum was wrong. The Supreme Court says you can. So Hum went back to Judge Lomeli on that issue.

8:40 AM
I learn from other journalists there were three DDA's on the Berndt case. Those of us in the second row get the names of the prosecutors from Terri Keith. If there's anyone who is a walking encyclopedia of significant cases and the names of the prosecutors on them, it's Terri Keith. DDA Gloria Marin is wearing the navy jacket. DDA Allison Meyers is in gray. DDA Darci Lanphere, wearing the green skirt, was on the case earlier but she is in a different unit now.  Some of the reporters ask about the Brown case and what his hearing is for.  The courtroom is packed with victim's parents, attorneys representing the families of the victims and more media. The sheriff's are setting up more chairs in the courtroom.  They are even considering putting people behind the photographers and video camera in the jury box.  We are told that the parents will be giving interviews on the 12th floor after the hearing.

Now Judge Lomeli's regular bailiff is addressing the media. His priority is to maintain court (comportium? decorum?). "We all know why we're here. ... My priority is the court decorum." If there are problems, the courtroom will be closed (to the public). "Those of you not in the media, no cell phones. Children, if they make noise, or you can't keep your composure, leave. ... we'll try to let you back in.  ... Everyone understand?"

Now a female deputy gets up to address the crows in Spanish. Then the court's Spanish interpreter starts speaking from the far side of the room and the deputy stops.

9:08 AM
Cameron Brown's defense attorney arrives and chats briefly with DDA Hum. There appeared to be a bit of a shock on Aron Laub's face when he entered, obviously unaware of the other hearing.

There are six sheriff's deputies inside Dept. 107 now.  It's confirmed. The Brown hearing will be after the Berndt hearing.  DDA Hum and Mr. Laub exit the courtroom.

9:22 AM 
It looks like things might get started soon. Berndt is brought out.

Mark Berndt Hearing

Defense attorney Manny Mendrano, left, Mark Berndt

Berndt is in an orange jumpsuit. People in the gallery sitting behind me start to weep. It's difficult to ignore the sound of their pain.

Judge Lomeli is on the bench. Counsel state their appearances for the record. Judge Lomeli asks, "I understand this is going to be a plea, is that correct?" I miss getting who answers him. Judge Lomeli asks the defendant, "Mr. Berndt, do you wish to be heard regarding sentencing at this time?"  His defense counsel answers the court, "Mr. Berndt has authorized me to speak on his behalf."

"Mr. Berndt expresses his thanks to the court and the prosecutor for the utmost professionalism in the year we have been working on this."  ... As you know, your honor, a case of notoriety or a high profile case, even when each side reach a decision not to speak to the media, there are leaks and innuendo, and frankly, there are misstatements. "We are here to set the record straight, " Mendrano continues.

Berndt sat looking straight ahead while his counsel spoke. Mr. Mendrano then turned to the gallery and addressed the gallery. "Mr. Berndt is profoundly sorry. ... He (has?) profound remorse for any pain and discomfort that he may have brought any victims and family members."

There are some statements about being concerned with other factors.  Mr. Berndt taught for over 30 years. He was a dedicated educator, well respected by teachers and peers at school.  He was loved by many.  After his arrest in January 2012, Mr. Berndt received a multitude of letters from the students and (other children?).  He cared for them and they cared. He cared for the many ... they cared for him.  "The last thing Mr. Berndt wanted to see was 23 child victims walk to that witness stand. And he didn't want that to happen. ... He readily admits to the 23 counts. ... Close with this. ... want to be very clear about this .Mr. Berndt is apologetic and remorseful for any conduct he engaged in that brought disrespect to the school."

Judge Lomeli asks the people if they wish to be heard on sentencing.  The people thank the court as to how they are handling this matter. One of the prosecutors states, "We are pleased with the defense position and are grateful that 23 children will not have to come forward."  Judge Lomeli states, "It's my understanding that is the people (?) that there will be several impact statements?" The people reply, "Yes, your honor."  Judge Lomeli states that they can do that now, or just before sentencing. The people state they would like it just before sentencing.

The defendant waives time for arraignment and judgement. Before the court will impose sentence, the court will turn to the people for the appropriate time to present impact statements.  The people have one house keeping matter, regarding the correct spelling of a name in count 21.  Judge Lomeli then addresses the defendant. He tells him that the prosecutor is going to advise him of your constitutional rights. It will require a response. To the extent you do not understand something, you must notify the court so you have an opportunity to consult with your attorney.

The people and the defense have reached an agreement of 25 years.  The defendant will plea to all 23 counts.

And then the prosecutor starts reading from a standard script.

DDA: Mr. Mark Berndt, is that your true and correct name?
MB: Yes.
DDA: And your date of birth (DOB) is that your true and correct date of birth?
MB: Yes.

The DDA reads the case number and asks if he understands the charges against him. "Yes," Berndt replies. The DDA mentions the agreed sentence of 25 years.  It's standard language the prosecutor is reading. The defendant states he will plead "no contest" to the charges.

DDA: You have to understand those rights and voluntarily give them up. ... You have the right to have a preliminary hearing in this matter. ... The people would have to present evidence. ... Do you waive and give up this right? ... You have the right to have a trial, either by a court or a jury.

The prosecutor explains a jury trial to the defendant.

DDA: At either type of trial, the people would have to prove each and every one of these counts beyond a reasonable doubt. ... Do you understand?
MB; Yes.
DDA: Do you waive and give up this right?
MB: Yes.

The prosecutor then moves onto Berndt's constitutional rights.

DDA: You have the right to confront and cross examine the witnesses against you.

There's more of this legal language, explaining each of his constitutional rights. For each right, the defendant is asked if he understands his rights and if he is giving up that right. It's explained to Mr. Berndt that after a trial, he would have the right to an appeal.

DDA: You no longer have the right to an appeal. Do you understand that?
MB: Yes.
DDA: I have to advise you, if you are not a citizen, you will be deported. Do you understand this?
MB: Yes.
DDA: By pleading to this count, you would be in violation of (?) or probation (that may be in effect). ... You will have to serve a minimum of 85% of your sentence.

The prosecutor explains the requirements he will be under if and when he is paroled. Each and every time her replies, yes, and that he understands.  He is told he will be required to pay any actual restitution. He does have a right to have a hearing to determine that restitution. It is the defendant's obligation to pay back any restitution determined by the court.The defendant will be required to provide a DNA sample and and AIDS testing sample.

The prosecutor tells Berndt that the charge is for the rest of his life.  He will be registered as a sex offender.  He will need to go to local law enforcement and register with them (if/when paroled). The defendant has an obligation to register in the new area if he moves. He will be required to register annually. If he fails to do so, it can be filed against him as a new and separate felony charge.
The counts are strike offenses. They are violent felonies. If the defendant violates the law, they can be used against him to increase punishment on any future crimes.

There is a possibility that, because of the nature of the crimes, the defendant can be eligible for commitment to a state psychiatric facility. If the defendant is found to be a sexually violent offender, he could spend the rest of his life in a state hospital.  I believe as part of his (registration?) he will have to pay a one time fine of $300.00.

There are no other concerns and the court has no inquiries. I'm not sure who makes it, but there is a request now to take the plea. I believe it's the prosecutor who continues to ask the defendant questions.
DDA: Before I take the plea, are you pleading freely and voluntarily?
MB: Yes.
DDA: Are you pleading because you feel it is your best interests to do so?
MB: Yes.
DDA: No one has threatened or persuaded you to do so?
MB: No.

Each of the 23 counts are read. Each and every time the defendant pleads, "No contest."

After the last count, his counsel addresses the court. "Mr Berndt does agree that there is direct and indirect touching of children. However, there is no evidence of 'overt' touching of a sexual part."

At this time both counsel join in a waiver (but I miss what that waiver is). Then the impact statements are taken. Those of us in the gallery are wondering if the court has allowed the victim impact statements to be filmed. I've seen them filmed in the past, but considering the charges, they may not be.  My only concern is the video camera and if it will be pointed at podium that's in front of the gallery.  As a woman approaches the podium, the video camera is still aimed at the defendant.

Most likely, Judge Lomeli stated the victim impact statements would not be filmed, but they would be heard on the video recording.

The first mother steps up to the podium. It's not in my notes but I believe most of the impact statements are presented via an interpreter.

"I am the mother of one of the 23 innocent victims that Mark Berndt impacted. Mr. Berndt sexually abused my child. He is violent and disgusting. .. He fed them semen on a spoon. He fed them semen on a cookie. He intimidated the children by blindfolding them (bondage) style and placing cockroaches on their faces. ... He has destroyed my child. She suffered serious, emotional injury, emotional distress.  She used to love eating cookies but now the thought of a cookie disgusts her. .. She's adverse to touching now, especially her eyes, where Mr. Berndt blindfolded her. ... No matter how much therapy she receives, she will be scarred for the rest of her life."

The prosecutor reads the second impact statement. "I could not be there today because I have to work." My notes are not clear at this point.  I believe I miss the rest of the prosecutor's reading and now have a third impact statement.

"Your honor, I beg for you to do justice as the mother of two girls who were the victims of someone who may not be called teacher. He is an animal. I want justice to be done." She starts to cry as she is speaking. "I want to be just and do the right thing so that other girls don't suffer the same thing. I know that my daughter's are not going to forget what happened to them, and unfortunately their lives may not be the same as children." The emotion on this mother's face is overwhelming. "My daughters went to school to learn, and not these type of things that were done to them."

The fourth impact statement is taken, another woman.

"I want to thank you, the (honor?) God, and justice, ... the people from CBS. And if it hadn't been for them and for you, we wouldn't have found out about all of this."  The woman is sobbing, outright crying. "My daughter is not the same anymore because this man, grabbed my daughter and told her everything that happened to him when he was a child. ... About this (deal?) and going into the stores and seeing movies for free. ... That he would go in and the other one would go in through the exit. ... I don't understand why the district wasn't aware of all of this. ... My daughter is clear on everything that was said about when he was a child. ... Why didn't he get psychological help? ... Why did he do this to my daughter?"  The woman continues to sob uncontrollably. "I'm destroyed. My daughter is destroyed. ... No more. ... No more. ... I leave it in justice's hands, because I have no hate in my heart. I have no hate in my heart and I don't know, how the person like this, to have the opportunity to work with children like these. Innocence is the most beautiful thing that a child could have. ... How could it be that the district didn't know all of this?"

This woman's sobbing is getting to me. I'm trying to keep my own eyes from tearing up. As I type this, I'm remembering her words, her emotion and I'm right back in that courtroom, experiencing her pain. Judge Lomeli addresses the mother. "Thank you mam. And, I'm sorry."

More people in the gallery are crying, sobbing. It's like a low, continuing wail coming from the back of the gallery.

The next impact statement is taken.

"The impact this has caused on my family is devastation. I don't wish to harm anyone. ... To know the damage that has been done to my daughter, by someone who was there to educate her. I wake up every morning, asking God to give me the strength to explain this to my daughter. How can I explain to a nine-year-old that one of her favorite teachers did something like this to her? ... My life has been changed forever and my daughter's life also. The first things I was concerned about was my daughter's emotional stability. ... While I locked myself into my room and cried, what could I do to my daughter?  What I will never forget, when I got the call from (?) to have my daughter checked. ... I asked myself, crying, how could that have been done to my daughter? Why didn't I notice. ... If it hadn't been for the help from the psychologist .... I'm very nervous."  Judge Lomeli addresses the woman. "It's okay mam. Take your time."  It's obvious the woman is very upset.

"I will try. ... It's been very hard and continues to be very hard. I want justice for my daughter and for all the children that have suffered. That's all I have to say."  The court responds, "Thank you mam."  Weeping continues to be heard in the gallery.

The next woman who steps up to the podium, is trying to maintain her composure as she speaks.

"I think he deserves a little bit more. I don't think he is sorry for what he's done to the kids. If he would have been sorry he would never have done that to the kids."  She addresses the letters the defendant has received in jail. "I think they should give him more than 25 years." She then tells the court she thinks it should be like in the days when they had burned them in woods. No other parents can know what they've been going through.  "Sometimes my daughter doesn't sleep with the light on. ... I have to cook for her.  ... she won't even buy anything to do with cookies.  She won't even socialize. I ask that you give him more than what he's asking."

Another statement, handed in from one of the attorneys in the gallery, a statement from an individual not on the witness list. It is handed to the clerk who then gives it to Judge Lomeli.  There are no other impact statements. Judge Lomeli reads the statement then asks if there is anything further on behalf of counsel.  There's nothing from the defense.  Judge Lomeli asks, "Defense, do you waive time for sentence?"  "So waive," is the response.

Judge Lomeli addresses the last mother who testified. "She asked that I give him more time than proposed. ... Understand that Mr. Berndt did ask (for?) less time, and the district attorney's office did go along with that. He chose to give the offer that was given to him. ... Coupled with his age ... this could amount to a life sentence. ... (The mother stated she) ... would like to see him burned to the stake, but I'm not able to do that (nor would I)."

The court agrees with the recommended sentence. The court is going to impose the following with respect to defendant's sentence.

Count 1, three years.
Counts 2 through twelve the mid-terms, 2 years each per count.
Two through thirteen amount to 22 years.
Coupled with count one, those will be (composed?) consecutive.
Counts 13 to 23 low term of three years, time less for on count 1.

I'm showing a total credit in the 656 days. He is entitled to 15% credit, will add an additional 99 days equals (759? ??) days. I know there is a request for opposing custody time. That the defendant be housed in protective custody. Obviously, that discretion lies with the sheriff's deputies (?) and how they classify the defendant. Court will make that recommendation. There is information about the victim's compensation board and that future restitution is yet to be decided. It's unknown at this time. The court will put it on the people to put it on the calendar should that situation arise. Mr. Berndt and his counsel waive his appearance at any restitution hearing.

There are more rulings about registering with local law enforcement as a life time sexual offender. There are fees for each count that the court imposes. There are specific counts where the sentences is concurrent. The prosecutor mentions something about the fines and accuracy of the fines. The prosecution moves that all photos (be received?) into evidence. There is something about dismissing allegations based on (?).

The court asks the defense if there is anything on behalf of Mr. Berndt. The defense responds, "May I have a moment your honor?"  I believe there's nothing else. The court orders that the defendant is to provide DNA and print impressions.  And that's it.  The media files out and I stay for the Cameron Brown hearing.

10:15 AM - Cameron Brown
Judge Lomeli addresses his clerk. "David, let me know when they're ready."

10:30 AM 
DDA Hum and Laub are now sitting at the prosecution table, having a conversation. When they're finished, Laub slides his chair down over to the defense table and waits for his client to be brought out.

10:34 AM
DDA Hum and Laub are speaking to Judge Lomeli over at the clerk's desk. Judge Lomeli doesn't have his robes on and his arms are crossed over his chest.  While Laub is speaking, Judge Lomeli is nodding his head.

10:35 AM
Brown is brought out. He looks much the same as he did at the last hearing. His hair is cut short and he still has the ZZ Top looking beard.  He also looks a bit more gaunt than the last time he was here.

I remember back in June when Brown spoke up and told the court he wanted to go pro per, Judge Lomeli told the defendant that if he wanted to represent himself, he would not be lenient.

Patty Brown took a seat in the bench row behind me.  While we wait for Judge Lomeli to take the bench she makes some statements about Mr. Laub. She claims that Mr. Laub took on other clients after he was assigned her husband's case and worked those cases instead of her husbands.  To me, this contradicts what I heard Mr. Laub tell the court. Several months ago, Mr. Laub told the court that Brown was his newest case. That all his other cases he has had for much longer.  Mr. Laub is a court appointed attorney.  The court would have instant access to any and all cases that Mr. Laub is currently assigned.

Judge Lomeli comes out and addresses counsel. "Ready?" He asks.  He then goes into the back area to get his robes. I see Judge Lomeli pop a piece of muffin or pastry into his mouth as he gets ready to take the bench.

Counsel are asked to state their appearances for the record. Judge Lomeli brings up the issue of the Marsden hearing, and that DDA Hum indicated that the Marsden motion could not be heard until competency was decided.  Judge Lomeli cites the relevant cases where the ruling was different. Judge Lomeli states that, "The court was inclined to hear the Marsden on the 8th." (If there was a hearing on November 8th, I missed it. Sprocket.) Addressing Mr. Laub the court asks, "I take it that between the 8th and the 15th, you had a chance to converse further with Mr. Brown?"

Mr. Laub tells the court that he withdraws his prior declaration and mentions that he filed something under seal. Brown directed Mr. Laub to make corrections to the declaration he filed with the court months ago. Mr. Laub filed a new document with addendum's. Mr. Laub met with his client on the 4th and they went through the document and prepared corrections. "At this time, Mr. Brown is prepared to sign the corrected declaration, ..." that it is now a true and correct statement.

The court asks, "At this point, you wish to withdraw ... Marsden?" "Yes," Mr. Laub replies.

What is left now, is the issue of competency. Judge Lomeli addresses the defendant. "I've had a chance to observe (you) ... number of appearances ... you appear to this court to be competent and your communication skills did not suffer in any way ... If the court had to evaluate Mr. Brown ... I understand Mr. Laub had a chance to interact with Mr. Brown and (discuss?) the consequences he is facing. ... "

Mr. Laub tells the court, "He said he will not talk to Dr. Knapke." I believe Laub goes onto say, "Believe he and I are able to communicate in a (?) and mutual understanding."

Judge Lomeli bases his opinion on past cases. He goes onto talk about how some defendants don't understand the rules of evidence. The defendant may want something to come in, but the court is not able to let that evidence in, due to the rules of evidence the court is bound to.  "The court is inclined to reintroduce criminal proceedings."  DDA Hum states that he concurs with the courts observations (about Brown's ability and competency).

There are a couple of issues that need to be addressed. The court indicated the defendant wont' speak to Dr. Knapke. I believe it's DDA Hum who asks if an inquiry can be made if he will speak to another doctor.  Judge Lomeli asks the defendant, "Are you willing to speak to another doctor, not Dr. Knapke, but someone else?"   Brown responds, "I've already spoken to two different (psychiatrists? psychologists?) during my incarceration."  Brown seems to think this is sufficient to determine his competency. The court tells Brown, "You have to realize that was a time back. ... Those reports can't be used." Brown has to be evaluated anew.  Brown is asked again if he will be interviewed by a doctor. 

Brown responds, "Only if it's mandatory, otherwise it's not needed." I believe Brown is told that he can't just say yes or no, he has to interact with the doctor for a bit of time. "Are you willing to talk to someone, and have your attorney ..." find another doctor to speak to?  I believe Brown responds, "I still stick to my same statement."

It appears Brown agrees to speak to a new doctor.

Judge Lomeli talks about his calendar. He's booked January through mid March. The earliest the court could hear the case is mid March or April. Laub states he is looking at his own calendar. The earliest he is available is April. Judge Lomeli comments that he would like to get this case done.  I believe it's DDA Hum who states he can't predict what will happen in April. The court notes that the people have been very accommodating. I believe Laub asks again if the court would be mandating (that Mr. Brown speak to a doctor).  Judge Laub states that he will reinstate criminal proceedings in abeyance in pending a report from the doctor.

A new court date of Friday, January 10th is chosen to return. Laub states that he is going to submit corrections to his declaration and it's to remain under seal.

There is further discussion about the choice of a doctor for the defendant to speak to. It's made clear to Mr. Brown that his attorney will be picking the doctor for him to speak to.  The criminal proceedings will remain suspended. DDA Hum makes it clear that he won't have any input into choosing the doctor Brown speaks to. He won't even know who the doctor is.

And that's it. Brown returns on January 10th.  Afterwards, Patty Brown makes a statement to me that shocks me speechless. With a smile on her face she tells me, "Now you know why Cam wouldn't talk to Dr. Knapke. It's because Hum suggested him."

I can't believe this. Brown obstinately refused to see a doctor that he had seen previously, only because DDA Hum suggested the name.  A doctor that he had seen at the request of his own defense counsel before the second trial.  All these months of delay are due to the defendant, and nothing else.

(Note: I am working on getting my notes covering the preliminary hearing for Joshua Woodward. I hope to have them up over the weekend. Sprocket.)

Huffington Post - Mark Berndt Arrested
LA Weekly - Berndt Quietly Resigns after $40,000 payout
LA Times Now - Settlement with Victims
NBC - Ex Teacher Sentenced to 25 Years 

Tuesday, November 19, 2013

Stephanie Lazarus Criminal Appeal - Appellant's Opening Brief

Stephanie Lazarus prison intake photo

Last week, I reported that Nels and Loretta Rasmussen's wrongful death lawsuit against Stephanie Lazarus is on hold until her criminal appeal is resolved.  Lazarus was convicted of the 1986 cold case murder of their daughter, Sherri Rae Rasmussen. Lazarus was found guilty of first degree murder in March 2012 and sentenced to 27 years to life.

Lazarus' opening brief was filed in June 2013. You can read the brief HERE.

The State Attorney General filed their response last week. I will post the respondent's brief as soon as I obtain a copy.

I am working on another Lazarus story and hope to publish soon.

Thursday, November 14, 2013

Gerhard Becker & Cameron Brown Updates

Thursday, November 14, 2013
Gerhard Becker
Last I heard, Gerhard Becker was scheduled for a pretrial hearing this morning.  The case was listed on the District Attorney's weekly calendar for this week. However, when I received the daily calendar late yesterday evening, the Becker case wasn't listed.  It was too late to call the courtroom or the court's public information office. So this morning, I thought I would go to court just in case the hearing was still on but not listed on the calendar.

While I was trying to grab an elevator in the lobby, I waved hello to DDA Beth Silverman, who with her tiny figure was able to squeeze into a packed elevator.

I didn't get up to Dept. 104 on the 9th floor until 8:30 AM. I did not see Mr. Becker or his defense attorney Donald Re in the hallway, so I peeked inside Judge Perry's courtroom. I didn't see anyone inside the courtroom either. I could tell that there were counsel in the well setting up for trial.  I asked Judge Perry's clerk, Melody, if Becker had been rescheduled. She informed me the case was rescheduled about two weeks ago to December 3rd. She didn't know the reason.  I thanked her and then headed out to the hallway to decide what to do next.

On the drive into downtown, I had heard Eric Leonard of local radio station KFI give a report on the Andrea Spaccia trial, part of the larger Bell City Counsel public corruption scandal.  Spaccia, who has been charged with 13 counts, was Bell's former assistant city manager.  Eric's report indicated that after four days on the stand under direct, Spaccia would be under cross examination today.

When I get down to that end of the hallway, I see beautiful DDA Deborah Brazil quickly enter Dept. 102 with a large set of files. I wish I had asked her which case she was working.

Local CBS 2 on air reporter Dave Lopez told me that the Spaccia trial resumes at 9:30 AM.  That meant an entire hour to wait.   I'm still debating on whether to stay when more of the mainstream media start to show up.  I see the lovely Miriam Hernandez from local ABC 7, and Terri Keith from City News Service. Although it would be interesting to see a defendant under cross examination, I decided not to attend the hearing because I am not adequately familiar with the case, or the charges against Spaccia, to cover it.

Before I leave the courthouse, I log into the LA County Sheriff's inmate web site to check on Cameron Brown's next court date.  During the last hearing, Judge Lomeli ruled that Brown would be brought down to the courthouse to meet with Dr. Knapke, but that date had not been set yet. Brown's next scheduled date is November 15, 2013, so I'll be back down here tomorrow.

Huffington Post Article on Brown Case
Hunter Stuart of the Huffington Post has written an extensive article on the Brown case.  This Saturday, November 16, 2013, marks ten years that Brown has been in custody. I agreed to let Stuart use one of my photos I took of Inspiration Point for his article.

There are a couple of issues Stuart's article mentions that I will expand upon.

Although Brown had two trials that ended in hung juries, it should be noted that every juror in both trials voted for guilt. What the jurors were unable to agree upon was the degree of Brown's guilt.

In the first trial, two jurors voted for first degree, eight jurors voted for second degree and two jurors voted for involuntary manslaughter. Not a single verdict form was completed.

In the second trial, the jurors were deadlocked six to six.  Six jurors voted for second degree murder and six voted for involuntary manslaughter.  I was in the courtroom when Judge Pastor questioned the jury foreman. The jury foreman told Judge Pastor that not a single juror voted for first degree. Although on the surface, it would appear as if the jury found Brown not guilty of first degree murder, that is not the case.

In California, jury instructions are very specific as to how jurors are supposed to fill out the verdict forms, and in what order they are supposed to do it. Each juror has a copy of these instructions with them in the jury room.

Jurors are instructed that they must decide on the most serious charge, first.  That would be first degree murder.  They have to unanimously decide whether or not the defendant is guilty or not guilty of first degree murder. If they decide the defendant is guilty, then they fill out the first degree verdict form, sign it and their job is done.  However, if they decide the defendant is not guilty of first degree murder, they still have to fill out the verdict form, indicating the defendant is not guilty of that charge and sign it.  After that, they are to decide whether or not the defendant is guilty or not guilty of second degree murder. If the jury finds the defendant not guilty of second degree murder they complete the form and move onto the involuntary manslaughter charge.

In Brown's second trial, it is my understanding that although the jury foreman told the court that no one voted for first degree, the first degree verdict form was not filled out and signed. So legally, the jury never made a decision on that charge.

My understanding that the reason Brown has not been allowed bail, is because of the special allegation that Brown murdered his daughter for financial gain. Defendants who have this special allegation added to a first degree murder charge are not eligible for bail.

Rasmussen v. Stephanie Lazarus - Civil Case

Sherri Rae Rasmussen, murdered by Stephanie Lazarus

UPDATED 11/14: Clarity
Tuesday, November 12, 2013
There was a hearing today in the Rasmussen family civil suit against Stephanie Lazarus for the murder of their daughter, Sherri.  Nels and Loretta Rasmussen are suing Lazarus for wrongful death. Although the Rasmussen's lost their suit against the Los Angeles Police Department, their case against Lazarus continues to go forward.

I arrived at the Stanley Mosk Courthouse at about 8:15 AM. The line to get in the building was wrapped half way around the side street. I didn't know if I would make it inside in time. My friend Matthew McGough arrived a few minutes later. 

Up on the fifth floor, the hallway was a sea of dark suited men and women.  There were very few casually dressed people in the hallway. John Taylor was sitting on a hallway bench, waiting for Dept. 48 to open. He was wearing a medium grayish-beige suit with a subdued pattern in the threads.

When I arrived John Taylor indicated that it would just be a status conference and a request to the judge to trail Lazarus' criminal appeal. For her criminal appeal, Lazarus is represented by attorney Donald Tickle of Volcano, California. Once her appeal has been heard and ruled on then Taylor would present a motion for summary judgement against Lazarus in the civil case.

This is the same strategy Taylor used for the Clarkson family lawsuit against Phil Spector, and to me it makes the most sense. Taylor also indicated that Mark Overland is Lazarus' attorney of record.  Apparently, Overland's criminal defense of Lazarus also included representation for a single appeal. Overland's representation is not an 'appeal' per se, but a defense. I'm not surprised he would defend Lazarus in the civil case and not the criminal appeal.  Appeals are usually handled by counsel who specialize in those cases. Overland did not make the hearing today.

When Dept. 48 opened, we entered and sat in the front row.  Most of these courtrooms in the Stanley Mosk Courthouse are quite small.  They are not like the courtrooms that are depicted on most crime dramas, with lots of space and a stately bench for the judge. They are little square boxes. In the gallery, there were six seats across on each side of the single center aisle, and four rows, making a total of 48 individual seats.

Due to the fiscal crisis in California, there have been severe budget cuts to the LA County Superior Court. The court no longer provides a court reporter in civil cases. If a plaintiff wants to have a record of a court proceeding, they must pay for a court reporter themselves. It's my understanding that a court reporter can cost $750.00 a day, or $350.00 for half a day. And, there isn't a deputy in the courtroom either.  They were replaced by a civilian assistant of some sort, who ends up helping the clerk with their work. The court clerk does keep minutes of the judge's rulings for the case file, but that's it.  Civil cases that request a jury trial (as opposed to a bench trial), must pay the court a deposit ($150.00) and pay jury fees.  The clerk prepares a bill to the plaintiff at the end of the week.

When Judge Elizabeth Allen White takes to the bench, my first impression is of a woman straight out of the 50's. She's wearing glasses and has short brown hair. Three other cases are heard first. There is a final ruling in a car jacking case where an individual was injured. There was a case against the Walt Disney company that is given a trial date in October, next year. Another case where only one attorney showed up. The defendant's counsel did not respond to some motions filed by the plaintiff. The plaintiff's attorney then decided on a bench trial instead of a jury trial.  Next, the Rasmussen case was called.

Taylor tells Judge White where the criminal appeal stands regarding the filed briefs. The Attorney General's responding brief was filed on November 8, 2013. A trial date of May 12, 2014 is put on Judge White's calendar. A final, pre-trial status conference of May 7, 2013 is also scheduled.  And that's it.

At minimum, it could take at least two months or more for Lazarus' defense to file a responding brief to the Attorney General's response.  It will probably be another couple of months after that before oral arguments are scheduled.  Then, the state has about two months to issue a ruling on the appeal.

I am still trying to get a copy of Lazarus' appeal brief, just to see the arguments that were raised. For some unknown reason, the LA County Library has not been able to locate a copy of the brief yet.  As soon as I get it, I will publish it.

Once Taylor moves for a summary judgement in this case, it will be up to Judge White to make a determination as to what the damages will be. In wrongful death suits, it's usually the spouse who is in first position to sue. Next in line after a spouse are children; after that are parents.  It's my understanding that John Ruetten does not want any part of this civil lawsuit against Lazarus. Since John and Sherri didn't have children, that leaves her parents.  There's loss of love, affection and pain and suffering.  It's difficult to understand how a value can be placed on a human life, but somehow, the court must do exactly that.

It's unknown what Mark Overland's strategy will be, once the criminal appeal is finished. Most likely, Taylor will put Nels and Loretta Rasmussen on the stand to describe the relationship they had with their daughter. From that testimony, Judge White will first decide compensatory damages then punitive damages. It's my understanding that Lazarus' pension cannot be attached by a lawsuit. The modest home she bought in Simi Valley after the 1994 earthquake is now in her husband's name. There are no big assets to go after, like there were in the Spector case. However, once Judge White makes her ruling on damages, that will follow Lazarus for life.

After the hearing, Matthew and I dropped by the Law Library to check on the status of obtaining a copy of Lazarus' appeal.  Next hearing date: May 7th, 2014.

Monday, November 11, 2013

Veterans Day 2013

U.S. Navy Memorial in Washington, DC. (Source)

This is a portion of a post originally published in May 2012 and republished on Memorial Day 2013. Sprocket.

My father was a WWII veteran.  He enlisted while still attending high school.  He reported to the Great Lakes Naval Training Center immediately upon graduation.  He shipped out of San Diego and served in the Pacific on a navy war ship.  His ship was under fire and he saw combat.  When his ship was hit with artillery, fellow shipmates fell around him.  In the mid fifties the Navy honored him with a miniature Iwo Jima statue because his ship was close to that action.

If you are near a Veterans Memorial today, please try to stop by and visit.

Sunday, November 10, 2013

Gerhard Becker Preliminary Hearing, Part VII

 Gerhard Becker, left, at a previous court hearing
 with his first counsel, Chad Lewin

This is the last part of a seven part series of the Gerhard Becker Preliminary Hearing. Sprocket

Continued from Prelim Part VI.....

November 28th, 2012
10:00 AM
After attending a hearing in the Michael Gargiulo case, I head down to the 3rd floor to Dept. 42, Judge Tynan's courtroom. When I enter, the courtroom is full. There are over 25 people, mostly men, sitting in the gallery.  Judge Tynan handles alternative sentencing programs, also known as "drug court" and the people in the gallery are just some of the cases he handles on a daily basis.

10:14 AM
Judge Tynan comes out from his chambers. He's wearing a dark blue shirt, burgundy tie with a stud pin. He puts on his robe, takes the bench then calls the first case.  It's a woman. Judge Tynan asks her how she's doing. She replies, "I'm okay, I think."  Judge Tynan tells her, "I don't think so. You're not taking your meds." Judge Tynan asks her counsel if he has any problem with speaking to his client in the vestibule. Both reply, "No, your honor." Judge Tynan takes the defendant back to his chambers to speak to her. After the private conversation is over, Judge Tynan retakes the bench and states for the record, "I had a talk with Ms. (the defendant) in full view of my bailiff and nothing untoward happened. ... She's not taking her meds. ... Have her back in one week."

I start to have a coughing fit and quickly exit the courtroom. I don't want to get a look from the judge that I'm disturbing the court proceedings. While I try to gain control of my lungs, I make a note of the people in the hallway. It's a sea of uniformed officers, under cover-looking officers and detectives mixed in with the general public. This is quite different that what I usually see on the 9th floor.  At the other end of the hallway, I notice Becker's defense attorney, Donald Re.  Feeling better, I head back inside Dept. 42.

10: 40 AM
A new defendant is before Judge Tynan and he is addressing him. "Do you play the violin? ... Your buddy plays the violin.  ... You're doing pretty good Mr. G____, But I think you're one of the guys playin' around. ... [I'm going to] ... keep you on second track and see you back in January."  The next defendant is up and Judge Tynan is told that he's doing great.  When the defendant is ordered back, about half the gallery gives him applause.

Another defendant who needs a Spanish interpreter.  His defense attorney tells Judge Tynan that his client is also doing well.  He will continue onto a third phase of recovery.  He's ordered back January 9th, and again there is applause in the gallery.

The next defendant is a woman.  I saw her crying earlier in the gallery.  Judge Tynan is told she suffered the loss of her husband four months ago. It's been 14 years since she last used cocaine. The death of her husband drove her back. She lives with her son and doesn't have a job. Judge Tynan rules she's allowed back into the program.  The defendant is very emotional and upset about her arrest.  I believe Judge Tynan addresses her, speaking encouragingly. "You see all these people in court. They were in the same situation you are. ... Just work the program and you'll do fine."

There are many defendants whose cases are to be heard.  Each and every time, Judge Tynan gives compassionate advice for these individuals who are struggling with alcohol and drug addiction. "If you're willing to work with us, we're willing to work with you," Judge Tynan tells one defendant. He adds a bit of advice, "They're going to test you when you get there, so don't use."

A reporter from the Associated Press enters the courtroom.

The next defendant was on the US Cole, and saw his buddies get killed. It messed him up. The defendant is originally from Chicago. When he first came out to California, he worked in a medical marijuana dispensary. I believe Judge Tynan tells him he shouldn't be "proud" of that. Judge Tynan asks the defendant's rank when he went in the Navy. "E4," he replies. Judge Tynan responds, "Well, I was only an E3."

11:00 AM
DDA Frances Young enters. She's wearing a deep purple jacket with her long black skirt.  The last defendant is being released from the Impact program.  I believe he's ordered back on December 4th for a preliminary hearing. Judge Tynan's court reporter lets out a loud sneeze.  Public Defender Mark DeWitt jokingly comments, "That's a sneeze for the records." Judge Tynan joins in on the humor, "For the Guinness Records" he adds. DDA Carney arrives. Becker, who was in the courtroom for a short time earlier, returns.

I have a quote in my notes here, that I remember Judge Tynan addressing a defendant, but I'm not sure if it's regarding a new defendant who just entered or an earlier case. "I want you to write one thousand words about what you did, why you did it and how you're not going to do it again.  My bailiff will give you some stamped papers ... with some questions on it."  This is one of the ways Judge Tynan tries to get the defendants before him to look be introspective about their own behavior.

11:17 AM
I think we're about to go on the record with Becker. There's a discussion in the well between the court reporter and counsel.  I believe the court reporter asks, "What's your favorite movie and why."  There is another question that I believe she asks, "Where do you get your news and if the Internet, which sites."  The AP reporter is asking Carney some questions.  DDA Francis Young replies her movie is Top Gun, and Donald Re responds, The Godfather.  Young tells the group she was a "quasi navy brat."

11:27 AM
Detective Greg Stearns is called to the stand.  He brings a very large three ring binder with him.  Stearns gives his background. He was the lead investigating officer for this case.  He responded to the location on Viewsite Drive. He conducted a search of the residence and found a business card that included an email address belonging to the defendant. Detective Stearns found a set of architectural plans on top of a fire place (in one of the lower levels).

People's exhibit #35, the structure's architectural plans. Stearns also found the multicolored, code check book for California.

SC: Is that the same booklet identified as exhibit 51, that I showed to Mr. Bescos?
GS: Yes, it is.
SC: Did you also find a contract with Tressor Entertainment, US, LLC?
GS: Yes.
SC: Where was that found?

Detective Stearns checks his report to refresh his memory.

GS: I believe it was in the office area.
SC: Exhibit #36, ... a contract. ... Appears to be a photo of the first page of the contract?
GS: Yes.
SC: Did you also seize a computer at some point?
GS: Not from the house.

A computer was seized from Mr. Becker at some point after the interview with the arson investigator, and also a (cell) phone. Detective Stearns believes something else was seized from a residence where the defendant was staying with a friend. Both items were submitted to Detective Hunter for review.

SC: The location agreement, had that contract been initialed on each page and signed?
GS: Yes.

The contract was between Tressor Entertainment and Gerhard Becker.

SC: Did the contract state ... that there was a move-in date of February 24th, 2011?
GS: Yes.
SC:And the date of the fire was February 16th?

The contract was for filming Germany's Next Top Model.  Gerhard Becker was to be paid $100,000.00 for filming at the Viewsite residence.  Detective Stearns acquired several search warrants to obtain copies of Becker's emails.

People's exhibit #37, a copy of the authentication document for records received from Microsoft. The search was for the email address just presented.

SC: Did you receive...
DRe: Objection! There is no foundation that these were received by ... written to Mr. Becker.

I miss the ruling.  Detective Stearns testifies that he verified the exchange of emails from Becker's email account and a couple of different employees of Colorado Hearth & Home, regarding the ordering of several fire pits.  The text of the few emails are read in court.

From Colorado Hearth & Home to the defendant:
Okay, are you aware that the manufacturers specifications ... they are only for outdoors. ... want to be sure before you buy these.
This was in regards to burner troughs described in prior emails. Mr. Re object that there is no foundation. I believe the ruling is it's admitted for the purposes of the preliminary hearing only. There are questions about whether or not Becker informed Tressor Entertainment, that they were aware of the modifications to the house (the missing guard rail and the missing fire sprinklers).  Mr. Re objects but DDA Carney states the information is relevant to Becker's state of mind.  Carney reads from an email Becker sent Tressor Entertainment about the building code violations and wanted to ensure Tressor would hold Becker harmless if anyone gets hurt. Judge Tynan over rules the objection.

A new set of emails are reviewed between Becker and his realtor. Re objects because hey are well after the incident. DDA Carney states these also go to Becker's state of mind. The email is after the fire. It's after he was told to install outdoor sprinklers. Becker rips them out. After the fire, he puts them back in for code check then, complaining to the realtor that he doesn't like how they look, he wants to take them out again.  The objection is over ruled.

The listing agent for Becker's house is Marci Hartley.  DDA Carney goes over Becker's communication questions to Ms. Hartley about removing the sprinklers before the sale.  The three options Becker gives in the email are presented.  1. De-install again after the final. 2. Leave and paint. 3. Cover with drywall so that heads are the only thing seen.

People's exhibit #39, it's a text of the email just discussed without the header and raw data information.  People's exhibit #40, another email from the defendant to a Mr. Jeff McQueen. It's a chain of emails.  The emails discuss a Gel Fireplace.  A Gel fireplace is a ventless fireplace that uses ethanol as fuel. People's exhibit #53, an email exchange between Becker and a Walter Hanes (sp?).

In the email, Becker wants to order this fireplace. "I want this installed after the inspection so that we don't have any further delay by the inspector."

A text message is introduced for the purpose of the preliminary hearing only.  That Detective Hunter was called, sworn and testified that he obtained this text message that Detecitve Stearns submitted to him. Re will only stipulate that the detective (Hunter?) pulled this off Becker's cell phone.

Carney asks Stearns if he is familiar with text messaging. The text message was sent 1/31/2011, a couple of weeks before the fire.
Hi Jose, Did you (use/take) already all the tiles or can I have four back? I forgot to make one fireplace.
 Sent to a phone number belonging to Jose Briseno. Briseno was a general contractor who worked for the defendant on site. A photo of the bathroom fireplace is up on the screen.

SC: Did you talk to Mr. Briseno about what tiles?
GS: Yes. ... They were 12" x 12" tiles.
SC: They were ones affixed to the back of the fireplace?
GS: Yes.

The lunch break is called. Judge Tynan orders the parties back by 1:45 PM.

1:30 PM
I forgot to mention that a reporter named Andrew from the LA Times was here for part of the morning.  Andrew is back for the afternoon session. Andrew's colleague, Andrew Blankstein sent him over to cover the prelim. There's some laughter and conversation between the court and the parties in the well.

1:48 PM
The crime reporter from the AP arrives.  Detective Stearns retakes the stand.

People's exhibit #38, a text message recovered from Becker's phone.

SC: You interviewed Mr. Briseno?
GS: Yes.
SC: Was he one of the contractors?
GS: Yes.
SC: Did you ask Mr. Briseno if he received a text message?
GS: Yes, I did.
SC: Did you ask him when he received it? ... text message?
GS: Yes. ... Two weeks before. ... There was tile that was excess. He delivered it back to Mr. Becker.
SC: Did you have a conversation with Mr. Bescos regarding gel fireplaces?
GS:: Actually, that conversation was before that.
SC: When was that?
GS: Three to four months ago.
SC: Did you ask Mr. Bescos whether a gel fireplace could be installed in California?
GS: He said that it's not allowed because it's not a listed appliance.

People's exhibit 36A, the full contract between Tressor Ent. and Gerhard Becker. Stearns verifies that it's an accurate copy of the contract that was retrieved from Mr. Becker's house.

SC: Did you speak with Greg Steck of Hearth Products Construction Company?
GS: Yes.
SC: Did you meet with him?
GS: Yes.
SC: In Ohio?
GS: Yes.
SC: Was that at the company?
GS: Yes, at the company.

People's exhibit #54, a photo of a packaged product from Hearth Products.

SC: Did you discuss with Mr. Steck how a product is shipped?
GS: [Yes.] ... and he produced one and I took a photo.

Stearns discusses the photo of the packaged product. Stearns explains that the photo shows the standard way their product is shipped from their company. People's exhibit 55A and 55B. They're photos of the living room area of the house.  The defense will stipulate that the photos were found by Detective Hunter on (Becker's) iPhone for the purpose of the prelim only. A date of 1/21/2011 is mentioned but I'm not sure what it references.  The photos depict the fire trough enclosure and where the trough was cut out.  The meta data has a date of 9/23/2010.  The enclosure for the trough is built but the trough is not there.  Another photo is of a bathroom.   Counsel stipulate that Detective Hunter extracted the photo from the iMac Computer.  The photo is of a bathroom fireplace near a tub that's located on the 2nd floor.  The photo depicts that there is no tile.  The photo is dated 10 days before the text message to the contractor.

Another email is discussed that was retrieved via the search warrants for Becker's email account. There are photos attached to the email.   These are People's exhibits 53 and 52.  One photo is of a new fireplace.  The photos were sent to Mr. Becker.

SC: In your conversations with Greg Steck, did you ask if whether or not the company had ever been sued over product liability?
DRe: Objection!

I believe DDA Carney argues that counsel brought up this issue in cross. Judge Tynan will allow for limited (effect?) on credibility.

GS: He said they had not.
SC: Did he have any (diagrams?) with gas appliances similarly installed in this case?
GS: Yes, he did.

Carney presents a digital exhibit in three dimensions.  It's a computer aided diagram.  Mr. Re objects. He's not seen it.  Carney explains he only brought it in for the court, because the court had previously inquired about a diagram.

SC: Did you interview the person who worked at the Viewsite house for (electrical?)?
GS: Yes.
SC: Who was that?
GS: Amir Schinter (sp?)
DRe: Objection! It's irrelevant what Mr. Schinter thinks.
JT: (Objection over ruled?)

My next set of notes appear to be argument by DDA Carney. I don't believe they are testimony.

Mr. Schinter was the electrical contractor. 1. He told detectives he had a (difficult?) relationship with Becker.  Becker wanted to do things in violation of the Building Code so Mr. Schinter quit.  2. At one point, he observed what would be a fireplace enclosure and Becker told him "No."  3. This supports Besco's statement he asked about Becker about a fireplace and Becker said no.

Mr. Re responds, "I hate to say (it's) ... really getting far afield. .... I think it's too far afield."

My notes are not clear who is speaking, if it's DDA Carney or Detective Stearns explaining.

Mr. Schinter first met Becker in 2010. (He was referred?) based on a neighbor and engaged in May 2010 to work on the project.  Becker was asking Schinter about the speed of the project. The first floor wiring. The defendant wanted some things taken out and his own wiring put in.   Bescos testified the original wiring was code.  The monster wire that Becker wanted installed, although bigger, didn't meet code.  Becker took out the original wiring Mr. Schinter did. When Schinter returned to the work site and saw the electrical work had been changed, it was troubling. He stopped working for Becker.  Schinter told Detective Stearns about a conversation he had with Becker about the fireplace and the structure used as a fireplace and Becker denied it.  The article in the paper about the fire is what led the electrical contractor (to contact LE?).

Direct is finished and cross examination begins.

DRe: Mr. Schinter, did he tell you he quit?
GS: Yes.
DRe: When did he (start?)?
GS: He started in May 2010. ... would have to look at (his) statement to verify. I don't have independent memory of when he quit.

Detective Stearns looks through his paperwork.

GS: He indicated he left the job in November 2010.
DRe: Did you go into depth in ...
GS: He was a licensed electrical contractor. ... He found people that were doing work, electrical work [on the property?], as I understand it and he wasn't going to be responsible for it.
DRe: He stopped doing work at the house and called that quitting?
GS: Yes.

People's exhibit 55A, a photo of inside the house.  It's a long range photo of a cut-out on the upper floor.  People's exhibit 55B shows a cut out in the middle. The date of the photos is pinned to 9/23/10.  The photo shows the flat portion of the fireplace area.  A small portion, a middle of the space where the metal trough would go.

DRe: In September, that cut out area was already there?
GS: Yes.

There is some more back and forth about this photo and what the detective could testify to regarding what the photo shows.

DRe: The photo was taken five to six weeks before the final?
GS: A couple of months.

Detective Stearns states that is appears something that, when they executed the search warrant there was a space left that is similar to the space in the photo.

DRe: Who was Mr. Brisneo ?
GS: Contractor on the project.

He worked on some closets.

DRe: And he told you at some time, he saw what he thought was a fireplace on the upper floor? ... When was that?

Detective Stearns looks to that individuals' statement.

2:25 PM
Judge Tynan calls the afternoon break.  It passes quickly and we're back on the record.  The parties stipulate that Mr. Brisneo said he had worked on some closets from sometime between early to late September 2010.  Another photo is shown to Detective Stearns. He believes it is the bottom floor. There are tiles in the alcove of the fireplace near the tub. Mr. Brisneo said they were similar to tiles he had delivered to Mr. Becker.  There are questions about the construction of the fireplace and how it had to be constructed.

DRe: You're not saying that because the tile was installed on that date, that the trough assembly was installed on that date?
GS: No.
DRe: Did you ever see a gel fireplace installed in this place, ever?
GS: No.
SC: Objection! Foundation!
JT: Well, Mr. Re did object earlier.

I think Mr. Re has a bit of surprise in his voice when he denies making an objection. There's a bit of laughter among counsel.

DRe: Are you aware of a gel fireplace ever being installed in this residence?
GS: No.

Mr. Re asks Detective Stearns what he knew Mr. Bescos said about "Wait until the final and then you can remove it? Stearns replies, "No."  There are questions about the emails to the real estate agent and that they might have been questions Becker had about what to do was best.

DRe: Do you know if the sprinkler system was removed?
GS: No, I do not.
DRe: [The contract with Tressor, people's #36A] Do you know the date that contract was written?
GS: The date of execution was 2/11/2011, six days before the fire.
DRe: Did you come across emails from Germany's Next Top Model?
GS: Yes.

Detective Stearns doesn't have an independent memory of the dates of the emails.  I believe Re asks Stearns if he recalls Mr. Bescos' testimony.  I believe Detective Stearns reviews the documents.

DRe: Does that refresh your memory about what you put in your affidavit?  ... The fireplace had been covered over?
GS: That was my [understanding].

Cross is finished and there's no redirect.  DDA Carney tells the court they do have some stipulations that they all agree to.  DDA Young tells the court about testimony they would have heard from the medical examiner. Dr. Ortiz performed the autopsy on 2/19 at 11:30, LA Co Coroner case number 2011-01252, (I don't think I have that number correct. Sprocket.)  Dr. Ortiz's conclusion, he would opine that the cause of death was in layman's terms, the result of trapped debris of a roof, that prevented normal ambulatory ... constriction of lungs ... presented by the presence of petechiae.

Re states this is for the purpose of the prelim only. The court takes the stipulation. Re also has stipulations regarding what Mr. Bescos did or told Mr. Becker. I believe the first stipulation is that Mr. Bescos did not inform Mr. Becker that the insulation was an approved fire block. [Mr. Bescos] never checked the second and third levels. He never checked where the wall meets the attic. Mr. Bescos stated I don't care about insulation. I care about electrical and (framing?). Most (interestingly?) Mr. Bescos said, that fireplace could have been there in September.  Mr. Bescos used the example of pool alarms as to how to get around the codes.  Re adds Mr. Bescos' comment that residences are not (as important?). It's not a Macey's.

DDA Carney states they will stipulate for the purpose of the preliminary hearing only. DDA Carney offers to admit the exhibits by reference only. Re moves to object to all exhibits he's objected to previously. Re then mentions the defense exhibits.
 Defense Arguments
The defense goes first. Re states that Mr. Becker and (Fiana?) were sleeping in the home at the time the fire broke out. It shows a level of non-knowledge.  People v. Penny.

Re goes through a list of items. The warnings, the combustible fire stops, the wonder board. Re states that Fire Investigator Thost didn't seem to know that insulation couldn't be used as a fire stop. Re states that the people have talked about the reason for the fire was lack of venting, but he still doesn't see how that caused the fire to be drawn down.  Re goes over the various issues with Mr. Besco's testimony. The claim that Mr. Bescos said Mr. Becker told him there would be no fireplace.

The fire stops. No mention in his report about his discussion with Mr. Becker about fire insulation and fire stops.  Mr. Bescos mentions it 19 months after the fire. He first told the DA (when?) he was interviewed (about the?) fire stops.  Go to his computer notes, they don't mention fire blocks. His hand notes in September mention fire stops.  He admits that relates to the water heater and added later. I suggest to the court that he added that note after the fire.  The question is, did he inspect fire stops? "He came here and said he did inspect, yet, told the DA he didn't. ... He didn't check to see what type of insulation was okay. ... So he either lied to the DA or he lied her on the stand." It gives a glimpse into his motive. I suggest he removed from the records any notes about fire blocks.

We know that he is willing to blame Mr. Becker for this because he said he inspected fire blocks. I said before, in (the?) initial report he says shocked he didn't know there were any fireplaces.  The "covered over" issue in regards to fireplaces.  Re argues that Bescos had a self-interest for dereliction of duty for how he testified on the stand. We know this is a man who is wiling to alter his records because he added (the note about?) the water heater. I suggest he knew there would be a fireplace. I suspect that he didn't know that Mr. Becker took so many photos.  Re goes over the photos. Mr. Bescos says that he never saw it. He tells the DA that could have been there in September .... possibly talked about a fireplace in September. In here (on the stand), he tells us that he "means it was covered up at that time."  He tells the DA that it was covered up. Then he comes in here again and says that he saw pebbles and tile, two years later is the first time (we hear about it). Why didn't he tell the fire inspector?

Re continues. "He said oh, they're not for a fireplace. Those are for display." Re argues, "That's ridiculous ... that,  ... no one would display anything 18" off the ground.  Re continues to argue to show what he believe the photos show. That the gas line was there, and Bescos identified it as a gas line.  Re proposes that Mr. Bescos was lying.  Re then presents another case that was ruled entrapment by estoppel, to support his argument that this case is the same issue. Re continues to argue for his client but I stop to rest my note taking. Re brings up the Building Code, and the fact that the city can't be sued ... it's because of civil suits. It has nothing to do with Mr. Becker and his house that they signed off on.

3:25 PM
There is a short break. I have in my notes some information about Judge Tynan's court. If I'm remembering correctly, those of us in the jury box ask the court or his staff a few questions.

Judge Tynan used to preside over Dept. 113 before moved to Dept. 42.  The chair that is between the bailiff's desk and the door to the jail holding area is the chair that Richard Ramirez sat in during his 14 month trial. The dolls and stuffed animals that are piled up in the witness box are gifts people dropped off. They help to relax people; make them feel better.

I believe I had mentioned previously that I had noticed high up on a wall ledge over the clerk's desk, an old toy that I couldn't identify. It's finally identified. It's an Inspector Gadget doll. He was originally in Judge Tynan's old courtroom. Someone mailed that to Judge Tynan as a Christmas gift.  Judge Tynan tells the room, "I have a rather fun bunch of staff I work with." Judge Tynan mentions the Ramirez case he presided over and that he sentenced Ramirez in 1989.  The DDA who prosecuted the case, Phil Halpin is also mentioned. DDA Carney mentions that his father was a deputy DA. "When I was a boy I remember him talking about Phil Halpin. ... Some of Dad's office mates talked about him."  There's more discussion about the case.  The name of the saloon, Little Joe's, that everyone went to after court ended for the day.

Prosecution Arguments
DDA Carney uses a PowerPoint program to help present his arguments. [Lets] "Bring this case back to what it's all about. Mr. Bescos is not on trial. .. What let to the fire is this defendant's construction and this ludicrous fireplace made of wood. ... That is sufficient because no reasonable person would build a fireplace out of wood." (A fire) would eventually have happened. "My three year old knows the difference between indoor and outdoor yet he put them in there anyway. ... And that's what caused the fire. .. What caused the fire was the defendant's arrogance, because he thought he knew better. ... Because he was in charge in Europe. ... It was made out of combustible materials.  ... The burner was put in wood.  ... Even if there was approved fire block it wouldn't eliminate the defendant for his liability."

Because of the ceiling collapse, because of the (defendant's?) conduct, the fire breaks is just an aside. When he built, put in these fireplaces, there were no fire breaks. The expert, he described what he saw as free flow of fire. "We know who built that wall; the defendant did. He said so in his interview with fire inspectors," Carney states. "We know that he was warned by the vendor who supplied the device."

He would break out his code book. He held himself out to be an expert. He would argue the code. Even after a firefighter dies in his house, he tells the contractor ... that's rebuilding his house ... sends an email that he want to put in a gel fireplace, (which is) not an approved appliance, after the final inspection.  "Not only was he the one building a fireplace that killed Glenn Allen, but he was ready to do it again," Carney argues.

Carney goes over the 911 call. He mentions the burned out wooden supports in the false ceiling that collapsed. Carney mentions the testimony of Captain Watters, and the hole venting. We can see in that photo, flames venting out of the attic space. "There was nothing that retarded the flow of that fire into the ceiling," says Carney.  "The aftermath. Glenn Allen was covered in very heavy construction materials. ... He was compressed into a clam shell (position). He couldn't breathe and he dies. ... any reasonable person would have known because of the warnings on the product."

Glenn Allen died because the defendant used an outdoor fireplace inside. The interior of the fireplace was made of combustible materials, two-by-four framing next to the burners. There was no venting 18" under the trough. The fire spread rapidly due to the failure to install any fire stops.

Carney then moves onto Becker's interview. He admits to installing the fire appliance and building the enclosure. Carney quotes the defendant in the interview. "I designed it. I built it. ... I did the drywall work around the fireplace because I wanted it done right. ... I ordered the fireplace myself."

The fire burned the available combustibles. The left control box, the fire burned around the box itself. DDA Carney presents a photo. When the defendant ordered the fireplace, the email from the distributor said, "You are aware that the manufacturer's specifications...."  The defendant replied, "I'm aware, I just don't see the difference. It is a pit with a pipe. I am aware that I have to cover the area with fire resistant (materials)."  Warning instructions about the fire pit were included with the appliance.  Carney tells the court, "Becker followed none of them. ... Mr. Becker engaged with a pattern of deception in this case. ... Mr. Becker had contempt for Building and Safety. ... In August 2010, Mr. Becker told Building and Safety he did not plan to install any fireplace in the home."  The original plans had one.

Carney then moves onto Dale Feb's testimony.  "Because as Dale Feb said, because the building code says that even though the inspector approved (construction?) it doesn't relieve the builder of the responsibility."  You don't build a fireplace out of wood. The defendant absolutely knew he was violating safety standards.  Carney gives an example of police not catching criminals, bank robbers.  Carney adds, "Building and Safety is not to ensure everything complies with the code, it's to try to ensure that it does." Dale Feb said, "What we rely on is like anything else in our society is the good faith that the builder (would build to standards)."

Carney mentions again that Becker told Bescos there would be no fireplace. He mentions the plan of deception emails Becker wrote that say, "after inspection." He tells the electrician to install wiring that's not to code. Carney says, "The arrogance of listing Building & Safety violations in a contract is amazing to me."  Carney reads from the contract. "The Building and Safety violations in the house, ... So for Mr. Re to say that Mr. Becker relied on Building & Safety is entirely ludicrous."

Mr. Becker didn't mention in the contract the fireplaces were out of code. The carbon monoxide went back into the lower bedroom. The same bedroom that if not for the upstairs fire would have occurred in where those models would have lived.  Carney mentions another email Becker sent after a firefighter died in his house. Carney argues that for the defense to say that Mr. Becker relied on Brad Bescos, totally disregards the emails to the real estate agent, about removing fire suppressant sprinklers on the lower floors.

Carney accuses Becker of gross negligence.  He cites speed and cost.  The appropriate fireplace (that was eventually installed) cost at least $30,000.00.  Carney argues the Becker's building was total gross negligence.  "Any reasonable person, having seen all the red flags, with his background, knowledge, ... would certainly have known."  Carney states the fireplace need not be the sole cause of Glenn Allen's death. If (independent?) cause brings death ... still causation if (independent?) cause foreseeable, or the type of injury caused was death.

Defense counter argument
Main issue is the fireplace downstairs. The question of the insulation, fire breaks, again goes back to Mr. Bescos. Mr. Re addresses the warnings on the products.  "Those warnings are put on products by the company to avoid product liability." There's no evidence Mr. Becker put in a gel fireplace. "There is only a crime here if the acts were done in a particular way."  Re argues the intention of the code regulations, ... and what it means.  "The people are going into his mental stand and what his [Becker] mental state is. ... I f the court should find construction improper, is the defendant responsible in the face of a government authority that passes it?  And if the court says it can't I don't know where that leaves it."  Re mentions the mental state again.

Judge Tynan
The arguments are over and the court gives it's ruling. "Mr. Bescos is a problematic witness for the prosecution."  Mr. Re asks the court, "Do you want Mr. Becker to stand?" Judge Tynan replies, "I don't see why. We're all sitting here."

"I want to compliment all the attorneys. It's been a genuine pleasure to be here." Judge Tynan is concerned by the structure, the box the fire pit was put into, is on 18" high and the flame goes 16" high and the drywall above it." I'm convinced that Mr. Becker, as charming a fellow as he is, was deceptive in the building construction. ... I think he acted recklessly."  Judge Tynan is terribly sorry that Mr. Allen died. Judge Tynan states that he thinks Mr. Becker should be (committed over?) for trial and there is sufficient evidence that Mr. Becker is guilty.

The 2 million bond is discussed. Judge Tynan states that the date of arraignment will be December 16th in Dept. 116. Mr. Becker is still out on bail and his bail will stand. The court orders a pre-plea report.

The prosecution needs a moment to check with their supervisor to determine if they are going to file/claim 170.6 against having the case transferred to Dept. 116. It's just a matter of seeing if Bill Hodgeman is within arm's reach.  While this issue gets resolved (the case does get transferred to Dept. 116), Judge Tynan and his court reporter share with the room how she came to be assigned to Judge Tynan.

And that's it for the preliminary hearing.

Gerhard Becker Quick Links