Michael Gargiulo Pretrial Hearing 14

Michael Thomas Gargiulo, date unknown

UPDATED 2/2: clarity, spelling
Friday, January 31, 2014
I'm in the cafeteria of the Clara Shortridge-Foltz Criminal Justice Center.  A long-time girlfriend has come to court today to sit in on the hearing. Like some people might be, she's curious as to how Gargiulo looks, since he's been in custody for over five years. After court, we'll take in a film at the ArcLight.

When  I re-entered the deserted lobby I was pleasantly surprised to see a long-time fellow colleague clearing security. I had not seen them in over two years. We had a great time catching up on cases in the elevator to the 9th floor.

After clearing 9th floor security, I see Gargiulo's two private investigators, Christian Filipiak and Chris Nicely.  Filipiak is the investigator on the guilt phase of the case. Nicely is Gargiulo's investigator on the penalty phase. Filipiak is friendly and engaging. Nicely doesn't speak.

8:50 AM
When I see DDA Daniel Akemon, DDA Garret Dameron and LASD Detective Mark Lillienfeld coming down the hallway, my girlfriend and I follow them inside Dept. 108.

We take a seat in the second row. DDA's Akemon and Dameron are chatting with Filipiak. They brought two brown file boxes with them. This is either discovery or something else.

Judge Ohta comes out from the back area but he's not in his robes. I point him out to my friend.  Lillienfeld takes a seat in the well in front of the jury box. In the gallery behind me are two women. They are either reporters or clerks for either side.

Now the DDA's and Filipiak are going over several large, brown envelopes.  I'm guessing these are SDT's otherwise known as subpoena duces tecum. Counsel can issue a subpoena to a person but a SDT is a subpoena for documents.  When documents are subpoenaed, they are delivered to the court. They are not opened unless the opposing side agrees the requesting side can see the information.

Judge Ohta is currently in trial, and the counsel involved in that case start arriving and setting up their equipment and files.  The parties in the Gargiulo case are still going over the subpoenaed documents.

More deputies start entering Dept. 108.  The bailiff from Dept. 107 and an attractive, black female deputy I've seen many times before.

9:10 AM
Judge Ohta's pretty court reporter comes out and starts to set up her equipment.  The bailiff sets up the chair for Gargiulo to sit in.  Since he has two investigators sitting with him, he places the chair without wheels at the end of the table.  This means those of us in the gallery will be able to see Gargiulo face on, instead of from he back.

A bit later, Judge Ohta, has taken the bench asks DDA Dameron, "Who's taken over Brazil's spot?" I miss hearing the name that Dameron answers. "Brazil" former DDA Deborah Brazil, who was sworn in as a judge on December 11th. At some point, Filipiak asks Judge Ohta if he can have a few minutes with his client before the proceeding starts.

We are waiting for Gargiulo to come out. She asks me if he will be handcuffed. I tell her he will be handcuffed and he will have a waist chain on. I point out the door to my friend to watch where Gargiulo will be brought into the courtroom. He's finally brought inside the courtroom, and I'm surprised. He looks even more gaunt and pasty than the last time I've seen him. He doesn't look anything like the photo at the top that was probably taken when he was arrested.

Gargiulo has completely shaved off his dramatic mustache. He has grown a goatee on his chin that's about two inches wide and three inches long. The goatee is mostly black but there are very noticeable gray hairs on one side. He's also not wearing the black, horn-rimmed glasses.  Without the glasses to break up his face, it appears longer, thinner.

9:30 AM
On the record in the Gargiulo matter. The DDA's state their names for the record. Judge Ohta states that Gargiulo is present and requests that his investigators state their names.

Judge Ohta stats off by stating there have been court appearances for the exchange of regular discovery. There is a document from the people stating this is the 13th set of discovery turned over. Judge Ohta asks the defendant, "Mr. Gargiulo, you have (discovery?) about that?" "Yes, your honor," Gargiulo replies.

Judge Ohta asks DDA Akemon if all the discovery has been turned over to the defendant.  "Not yet. ... expecting a report in the next couple of weeks. ... that's the bulk ... still some odds and ends."  Judge Ohta responds, "That's the nature of the process."

Then Judge Ohta asks the defendant, "What would you like to do Mr. Gargiulo?"  Gargiulo submits a new date, March 7th, for a return to court.  That date works for the DA. Judge Ohta asks the defendant, Mr. Gargiulo, you want that at zero of 90? "Yes, your honor," he replies.  Gargiulo has stated in prior hearings that Fridays are preferable for him. The reason is unknown.

Judge Ohta asks the parties if there is anything else that needs to be addressed.

DDA Akemon tells the court about SDT's that Gargiulo issued to the El Monte PD. The DA's office filed a motion to quash. If it's not going to be quashed, it needs to be dealt with.  The prosecution also issued subpoena's for records.  DDA Akemon explains the documents they subpoenaed. First, they subpoenaed Gargiulo's visitor records at the jail. (These are not public documents. Not anyone can request to see them.)

The other documents are Gargiulo's medical records.  That's what the two brown files boxes are. DDA Akemon is requesting to open the visitation records. The DA's office doesn't need to open the medical records at this time. The DA's office would simply like to lodge them with the court.

Judge Ohta replies, "Thank you for increasing the amount of boxes in this trial."  Judge Ohta then asks the defendant, "Mr. Gargiulo, were you aware that the prosecution issued a motion to quash?" "Yes, I got it yesterday. ... and because of the phone issues ... What I plan on doing is withdrawing the subpoena and agree with the DA, .... if (they?) are willing to hand over (the claimed? ?) discovery. ... I don't wish to make it difficult."

Judge Ohta tells Gargiulo, "You don't have to cede to the DA. It's your decision." Gargiulo says something to the effect that the DA has been very open and helpful in making documents available. He gets along with him. My notes are not clear, but I believe it's Gargiulo who adds, "Thing is, I have nothing to hide."  Smiling, Judge Ohta addresses DDA Akemon, "He's saying you're a nice guy."

DDA Akemon tells the court that they are not willing to hand over the documents in the specific El Monte PD subpoenas. Gargiulo plan now is to issue an informal SDT request. DDA Akemon states they plan to litigate.  Judge Ohta asks Gargiulo if he understands. Gargiulo states he does.  Judge Ohta then states for the record that Gargiulo is going to withdraw those specific SDT's at this time.

DDA Akemon states that they are requesting to open the visitation logs. Gargiulo doesn't appear to understand. He thinks that these logs were already turned over many times already.  I believe he asks if it's all the same stuff. DDA Akemon explains that it's additional visitor records. New logs.  Once that's explained, Gargiulo agrees that the prosecutor can open the subpoenaed records. They will be copied and given to the defendant.

DDA Akemon also tells the court, "Mr. Gargiulo has subpoenaed other records I'm not privy to."  Akemon doesn't know what they are and doesn't know if he as grounds to object.  "Without knowing what's there, I have an objection to [Gargiulo] opening. Akemon requests that the court view the documents in camera.

I believe Gargiulo is asked, or Akemon offers to the court that there are two SDT's. One is for the LA County Sheriff, and the other is for the City of Monterey Park. I believe Gargiulo offers, "It's for impeachment evidence."

Apparently, no one has spoken with the legal departments of LA County Sheriff or the City of Monterey Park. Representatives of those entities would need to be here.  DDA Akemon tells Judge Ohta, "We're objecting to Mr. Gargiulo opening and looking. ... A defense subpoena to any law enforcement agency, ... must go through a DA review."

Judge Ohta doesn't agree with all of Akemon's argument. He agrees they have to go through the DA, but he's not sure he agrees with the entirety of Akemon's statement. Judge Ohta needs to get started with his trial. He has a jury coming in. He suggests they put this matter over to another day where they can spend all day on the issue.

Filipiak wants to make it clear to the court that the only subpoena's that are being withdrawn are the ones to El Monte PD. All that needs to be decided is a date to return to argue about the other subpoenas.

February 21st is the date chosen to return to take up the matter of the SDT's.   And that's it. Right before Judge Ohta leaves the bench, he tells Gargiulo, "I've signed your medical order." Gargiulo replies, "Thank you, your honor. ... (May?) you have a good day."

After Gargiulo is taken back to the holding area, I ask my friend what she thought of Gargiulo. She was surprised at how engaged he was in the court process, but that's understandable since he is representing himself. She was surprised by how he looked, and that he didn't look like his photo in news articles.

Joshua Woodward Ordered to Stand Trial on 4 Counts of Attempted Murder of a Fetus

Joshua Woodward at a previous court hearing.

UPDATE 4:45 PM
January 23, 2014
A few moments ago, Judge Michael Pastor ruled that the prosecution has met their burden for Joshua Woodward to stand trial on all four counts of attempted murder of a fetus. His arraignment on those charges is scheduled for February 6 in Dept. 111.

I will have a detailed report of the proceedings later tonight.

4:45 PM
After arguments from both sides on a defense motion to dismiss the case, Judge Pastor ruled as follows:

"The court is aware of it's duty ... to establish probable cause. The court does not have to find if the defendant is guilty. ... The court only has to find probable cause. ... I've done so. ... Based on the evidence presented, ... the people have met their burden on counts one through four. ... [They have] met their burden to establish each one of these instances: That the target was a fetus. That he had an intended specific intent to kill."

The court did not find, (as the defense argued in court that for the first count -Jamba Juice incident- the defendant must know the fetal age was beyond the embryonic stage) that the defendant must have known at the time of the attempt the fetus age.  "However, if required [by law], I'm satisfied the defendant knew the development ... of the fetal age."

Joshua Woodward Preliminary Hearing, Day 5

Joshua Woodward at a prior court hearing in 2012.

December 16, 2013

8:48 AM
I'm on the 7th floor of the Clara Shortridge Foltz Criminal Justice Center, waiting for Judge Pastor's courtroom, Dept. 51 to open.

Judge Pastor's court clerk and his court reporter, Mavis, arrive around the same time. Mavis says hello.

Once inside Dept. 51, I see Woodward take a seat in the last gallery row on the defense side of the room. He's hard at work on his cell phone.  It's another day with a cold courtroom. The defense has their materials all set up. I think this is a new bailiff in the room. I don't recognize him.

The clerk goes right to work and Mavis starts setting up her desk. Mavis is wearing a very nice gray and black outfit with a long jacket. It's freezing, freezing cold in here. As Mavis and the clerk chat, I overhear the clerk say that she's comfortable. I'm amazed because she's wearing a short sleeved top. I hear that the back rooms behind the courtroom are warm, stifling, but the courtroom is freezing.

8:58 AM
Detectives Shafia and Fairchild arrive. Greetings are exchanged in the well. Detective Fairchild sits at the prosecution table and Detective Shafia takes a seat in the jury box. Clerks from the DA's staff arrive to set up the overhead screen.

9:00 AM
DDA Rizzo and Balian arrive. Ms. Rizzo is wearing a lovely cream trench coat. It has these very large tortoise-shell  looking buttons down the center of the back. I love this coat. The defense team works with moving the overhead projector device to use for exhibits during cross.

Marguerite Rizzo sets up the prosecution's files. DDA Balian is at the clerk's desk, going through a stack of files, possibly the exhibits.  The clerk asks the room, "Are we ready?  People, are we ready?"  Habib Balian answers, "Yes."

There are two defense attorneys in the gallery row in front of me and 2 directly behind me.

9:05 AM
On the record in People v. Woodward.  Appearances are stated for the record.

Judge Pastor starts off by stating there was a telephonic conference last week to defer (arguing of the motions).  I believe either Judge Pastor states or DDA Balian states that the people are researching more electronic documentation.  They will return on January 23 for argument.

Ms. Levine gets up to continue her cross examination of Detective Shafia.

There are questions about screen shots on Ms. Doe's blackberry.

JL: Was that a direction you asked Mr. Hernandez?
JS: Yes. ... I directed him to take photos of what he thought were relevant.
JL: So he made a decision?
JS: (Yes.)

Questions about the names of the other detectives in the Wilshire Homicide Unit in 2009.  Detective Wong: Director of the unit. Detective Carrilo (sp?) is D3, supervisor of Homicide Unit.

JS: He's one step above me.

JL: (?) returned to Ms. Doe's apartment next day?
JS: Yes.
JL: (?) Retrieved some items?

Detective Shafia was appraised of that and items were collected afterwards.  Now there are questions about phone calls between him and Ms. Doe.

JS: She was complaining about how long it was taking.
JL: Do you recall an email from Detective Fairchild inquiring about those calls in 2012/
JS: Yes.

Detective Shafia states he wrote her back that he didn't remember the conversations and he has nothing else to help him remember. Shafia states he's never been inside Ms. Doe's apartment that she had in October 2009. Detective Shafia states he had no personal knowledge of what her view was from her apartment.  People's exhibit 2 is put up on the overhead screen.

Judge Pastor asks for a moment. He leaves his bench for a moment to turn on his computer.

JL: Detective, do you recognize this?
JS: yes.
JL: ... and this is the area where you arrested Mr. Woodward?
JS: Yes.
JL: This photo has (indications?) of what's north?
JS: Yes.
JL: He was arrested on the northeast corner of 3rd & (Houser?)
JS: Arrested in a cut-out area for wheelchair (access?).

Woodward was arrested with the assistance of Officer Hernandez. There are questions about where his car was parked and what direction it was facing.

Defense N. Photo of parking lot of KFC and apartment building where Ms. Doe resided.

Detective Shafia points out in the image where a white car is parked, that his car was in the approximate same position but his car was facing out (not in).

JL: The photo is a fair depiction of what his view was like?
JS: Yes.

Detective Shafia states he could not see how or when Woodward arrived in the area.

JL: Do you know if any time elapsed between the time Mr. Woodward arrived in the area and time he arrived...
HB: Objection!
JP: Sustained.

Question about the direction Woodward arrived walking when he was arrested.

JS: He was walking from Pointsetta towards Fuller.

Detective Shafia had pulled out from the spot when he first saw Woodward. He pulled out as if exiting to the street.  The KFC was completely closed there was no staff inside.

JL: Did you see a taxicab drop Mr. Woodward off?
JS: No.
JL: In direct, you said Mr. Woodward dropped a substance in a plastic bag?
JS: Yes.
JL: And Detective Hernandez swabbed the item?

(Exhibit 18 - photo of swab tube against pants).

JS: (Yes.)

There are questions about the swab tube and it's description.

JL: Did you see Mr. Woodward earlier that day or was that the first time you saw him?
JS: First time.
JL: Nothing further.

Cross ends and redirect begins.

HB: Prior to taking the swab, did Detective Hernandez touch the defendant?
JS: Yes.
HB: Describe (that).
JS: He took a tactical position and searched him for weapons.

The witness is asked to describe the tactical position.

JS: Got him ready to be handcuffed.
HB: Did you observe Detective Hernandez touch Mr. Woodward's hands?
JS: Yes.

There are questions about the underwear. Detective Shafia did not examine the two pairs of panties for powder.

HB: Why?
JS: Those items had already been booked into evidence.
HB: (Regarding the incident at) Jamba Juice. I believe you testified about what Ms. Doe told you. Did she ever tell you in the October 20 interview ... Did Ms. Doe tell you whether the nausea she experienced, compared to other times?
JS: Yes.
HB: What did she say?
JS: She said she had only been nauseous a few times. ... This was much more violent ... of puking.

The questions about alleged incident on October 18th, in reality were late ... Sunday AM. 

HB: During her description to you of symptoms, she had with the defendant during that incident, did she tell you she experienced any vomiting?
JS: Yes. ... That she had been puking.
HB: Now, late Friday, early AM Saturday, October 17th. ... She did not tell you about any symptoms she had? ... On that interview and that date, she did not tell you about any symptoms she experienced?
JS: Yes.

Detective Shafia did not ask her any questions or follow up questions. He didn't really ask her any questions at all. "It was more an informal interview. ... I just listened." Shafia is asked about the reference in the file to coroner Dr. Young.

The clerk interrupts to speak to Judge Pastor. It's a quick exchange.

HB: Does that note have anything to do with this case or investigation?
JS: No.

This is a hand written log that he made up to try to remember the case as well as other cases. He also responsible to other death investigations.  Those other notes were turned over that had nothing to do with this case.

Now questions about LAPD SID employee, Dan Anderson (Anderson testified in the Lazarus trial as well as the two Spector trials.) and inquiring about the potential of the coroner's lab testing Misoprostol.  The lab did not have the blanks for the Misoprostol to test.  Dan Anderson gave Detective Shafia the contact of another person to help him with the case.  Anderson is a toxicologist at the lab.

The chrono log, Defense exhibit L, is a log he prepared in relation to his testimony. He did not prepare it while investigating the case. It's what he prepared, in order to get ready for the case. Detective Shafia testified on cross there was no record of the conversation with Ms. Doe.

HB: Didn't you in fact document that in ..  You did document that contact in the original arrest report?
JS: Yes.
HB: Which report did you document?
JS: The original arrest report.
HB: Regarding the 2010 calls he received from Ms. Doe, I believe you testified on cross they were case related?
JS: The calls received ... were inquiries from Ms. Doe.  (Such as) Who was the DA. What could she do to speed things up.

There are questions about the calls. Detective Shafia doesn't remember. It was about the content of the calls.

HB: Questions about how you were parked in KFC. What were you focused on?
JS: We were in a stand down position; waiting.  ... call from Ms. Doe that Woodward was in route.

Detective Shafia wasn't looking at traffic or particular cars.

HB: Why were you there on that night?
JS: I had information from Ms. Doe that Woodward would be in town. That he would be coming there after he closed the restaurant, and that Ms. Doe told him that he usually would come through that north gate.

HB: The final incident.  Did she tell you how long after the final incident she started experiencing cramps?
JS: 8:30 AM ... The intensified to extreme hard cramps. Enough to notify her doctor and sister.

DDA Balian asks the detective to go to Page 28 line 20 of Ms. Doe's interview to refresh his memory.  Detective Shafia reviews the transcript then testifies.

JS: That the cramping symptoms were in full swing. The worst she ever felt. Nothing like it.
HB: What was her exact words?
JS: They were just full on. Like I'd never felt.
HB: Experienced when? What time?
JS: 10 AM.

Redirect is finished and Ms. Levine recrosses the witness.

JL: Communications with Detective Fairchild, about calls (from Ms. Doe), you could not remember the calls or the content?
JS: Yes.

There's no more redirect.  Judge Pastor asks, "Should Detective Shafia remain on call?"  The defense replies, "Yes."

Detective Shafia is ordered back on January 23 at 9 AM. There is a discussion about a health issue Detective Shafia has scheduled to address on January 24 and the stress of being in court the day before.

JL: Maybe we don't need Detective Shafia.
JP: That would be great.

Detective Kimberly Fairchild is called to the stand. She's still under oath. 

DDA Balian presents the witness.

9:50 AM
Detective Fairchild is currently assigned to LAPD Robbery Homicide - Special assault section. She's been a detective for 12 years. Her assignment in 2009 was to the Juvenile Division, Abused Child Unit. She investigated deaths of children under 11 years of age.  She was officially assigned the case on November 2, 2009. This is the type of case she would routinely handle.

She handled and booked (evidence?) under case number 09-0719880. She also wrote reports under 09-0719173. 

On January 29, 2010, she interviewed Cheryl Will (sp?), supervisor for LAPD narcotics lab, who was overseeing the analysis of evidence collected in the case.  Those were items #15, #16, #17, #18 and others.

HB: What did she tell you?
KF: Their labs were not equipped to do the testing.
HB: February 3, 2010, what action did you take with respect to this case?
KF: Transported items to the DEA lab in Vista, CA.

Detective Fairchild thinks the individual she handed the evidence items over to was a supervisor named (Cheche? sp?).

HB: Did you participate in an interview with Ms. Doe and Ms. Rizzo in this case/
KF: Yes.

Detective Fairchild identifies a photo of Ms. Doe. (The photo is not put up on the overhead screen.)

HB: What was her demeanor?
KF: She was very upset at times, crying and (other times) would be angry.
HB: Did it appear to you ... recalling information...
JL: Objection! Calls for conclusion.
(missed ruling)
HB: Did you ask her ... were questions asked of her?
KF: Yes.
HB: That asked for specific information?
KF: Yes.
HB: Based on questions asked, did she ever indicate to you, even though she was upset, crying, did she...
JL: Objection!
JP: Sustained.
HB: Given her demeanor, did she ever indicate to you she had difficulty remembering events?
KF: No.

Ms. Doe related events regarding (her interactions?) with Woodward. Also spoke to her afterwards. Ms. Doe identified a photo of Woodward. Detective Fairchild also identifies the defendant for the record.

HB: June 24, 2010, you interviewed Ms. Doe on that date. Did she tel you when she met the defendant?
KF: She said she met him in 2000. ... At the time she was a bartender at Saddle Ranch and she had met him there.

Detective Fairchild has been to Ms. Doe's apartment. She's also been to Jamba Juice; it's in The Grove mall.

HB: Interview on June 24, 2010. Did she at some point, she told the defendant she wanted to know the baby (due date?)/
KF: She said that he became very angry. (He told her) "You can't keep this. It would ruin me." ... I think she said that he threw himself on the floor and he was so angry.
HB: Did she tell you he did anything else while on the floor?
KF: That he would buy her a real estate business if she would abort.
HB: No, I mean, what else he did?
KF: No, I don't recall.

(Question or answer) He was crying and he told her it would ruin his life and she couldn't have it.

HB: Did she talk to you about the Jamba Juice incident at The Grove?
KF: Yes.
HB: Did she give you a specific date?
KF: She didn't give a date.
HB: ... went through steps to give an approximate time line?
KF: Yes.

Questions about Ms. Doe having (interview? meeting? with defendant?) at 8 Ounce Burger to, (possibly) a friend buy (her?) a business.

KF: Approximately in September. .. Her impression was, they were going to talk about the baby but they talked about his bankruptcy problems.

Another meeting Ms. Doe had with Woodward is discussed.

HB: Approximately when was the next time?
KF: She said weeks later ... would be in October 2009.


I believe the entire answer to the last question is stricken.

KF: She said next meeting was weeks later, after the 8 Ounce Burger meeting.
HB: The meeting at The Grove (Jamba Juice) was before that meeting? (Before Oct 18th?)
KF: It was before.  ... She said she received a text message from Joshua telling her to meet him at The Grove. ... She met him there. He had a Jamba Juice ready for her. It was watered down. ... She did not ask him to order it. She accepted it. ... As they were shopping, she started to feel ill. ... They were talking about the baby and he seemed to be more accepting. ... She told him it tasted funny. ... He grabbed it; tasted it and said nothing was wrong.  ... She continued to gt ill and went home. Twenty minutes to an hour later, her symptoms .... violently ill. She was vomiting and had diarrhea ... about five times during that period.

HB: During the interview on June 24, 2010, did she talk about the incident on October 17th, early morning ... Saturday?
KF: Yes.
HB: Did she tell you about what time he arrived?
KF: ... they are together and ended up in bed. She was describing the foreplay.

They began kissing. He reached down to his pants, then reached into a back pack. Then he put his fingers insider her. It was the same hand. He penetrated her vagina with his hand for about five minutes. It was very hard and uncomfortable. That was something out of their ordinary, in their sexual routine. He had never done that before.  He stayed for a little while and left after seven or eight AM.

KF: She said she experienced abdominal cramping, fatigue and sweating, ... feeling out of it. She called the on-call doctor at Cedars.  ... She called her work and called in sick.
HB: (What work?)
KF: She called into her bar tending and also her real estate (job).
HB: Did you write into your report Saddleback Ranch? ... Did you write into your handwritten notes?
KF: I would have to refer to my notes.

I am freezing in this courtroom. I don't know how I am going to last through the morning.

KF: It's not in my notes.
HB: Did you participate in an interview with Ms. Do, Ms. Rizzo and myself (on) December 12, 2012/
KF: Yes.
HB: (What was the purpose of the interview?)
KF: For Ms. Doe to meet you and also clear up what phone she used to make calls, and if she used a land phone.
HB: What was her response?
KF: She said she never called a doctor at Cedars in 2009.
HB: Did I confront her? ... Did I ask her if she had told you and Ms. Rizzo?
KF: She said, "I never said that, and you must be mistaken."

There are questions about Ms. Doe and the October 17 event.

KF: She then said, "I never said that. I never said there was cramping. I just said I was out of it and tired." Like she was in a fog.
HB: How adamant was she that she didn't experience cramping on the 17th?
JL: Objection! Conclusion!
JP: Sustained.

She was upset and very forceful that she had never called the on-call doctor and was very certain that she had never said (about) the cramping. (In relation to Oct. 17.)

HB: What was her demeanor when she said she never called the doctor?
KF: She was very sure, very forceful that she had never had that call. ... She was again very forceful that she had never called Saddleback Ranch. ... She said she didn't work at Saddleback. She worked at another location.

Detective Fairchild called Saddleback Ranch and spoke to a Mr. Pollack. He said Ms. Doe worked there from 2000 to 2002. She was not employed there in 2009.

10:30 AM
I'm watching the clock like a hawk since I am so cold.  (They keep saying Saddleback however online it states the restaurant is Saddle Ranch. Sprocket.)

HB: June 24, 2010 interview ... where you said in your report where you report Ms. Doe experienced cramping. Is it possible that Ms. Doe did not tell you? ... How quickly, during that interview was Ms. Do speaking/
KF: She spoke very quick, very fast.


HB: She was speaking quickly?
KF: Yes.
HB: Was it hard to take notes?
KF: It was hard to follow. ... She would skip around on events, between October 17, October 18. Back and forth between dates.

10:32 AM
The morning break is called. I get up and move around to get some blood circulating again. Several of the attorneys are shivering like I am and commenting on the cold courtroom.

10:52 AM
HB: June 24, 2010 interview. Did you speak to her about the alleged incident that occurred on October 18, 2009?
KF: Yes.
HB: Did she discuss with you symptoms she experienced after Mr. Woodward left her apartment?
KF: Yes. ... She said that almost immediately after he left, she had cramps, feeling feverish, sweating and diarrhea.

DDA Balian ask her about a follow up investigation (report? chrono in log?) dated August 9, 2010.

KF: She said that she got chills. She began sweating and started violently vomiting. ... This was around seven to eight in the AM. ... Cramps like she never experienced before. ... She then laid down. ... She contacted the on-call doctors at Cedars. ... At 10:15 AM, she was still feeling sick, cramping and called in sick to her real estate job. ... She still was feeling sick, ... some cramping.

She said at about two to three PM, she went to the toilet to urinate and noticed spotting from her vagina when she wiped herself. ... She was concerned so she called the on-call doctor. At five PM she started to feel a little bit better.  At six PM she was still feeling (okay?). Not a lot of symptoms. No symptoms in report. She said she still felt pressure in her abdomen.

At nine PM she stood up and water came out of her vagina. She went to the bathroom; there was more gushing out of her vagina, blood clots. She then looked in the toilet and saw her baby in the toilet. She wiped herself, called McKell, (sp?) her friend, and told her about it.

(A date, May 6, 2011 is discussed. This is possibly an interview with "McKell" (sp?). My notes are not clear. Possibly the interview was also with Ms. Rizzo present. Sprocket.)

McKell went to Ms. Doe's apartment. (Ms. Doe?) knew that it was Woodward's baby because she had not had sex with anyone for about a year.  She had never seen a black backpack before.

McKells husband, Jay (Cremin? sp?) is mentioned. I believe Detective Fairchild interviewed him also. He was married to McKell.  While Ms. Doe was miscarrying her baby, she called McKell.

Now there are questions about what Mr. Aremis said his wife said to him. There are several questions and then there's an argument about what Detective Fairchild can testify to.

HB: In interview with Jay Cremin, did he tell you what if anything ...
KF: He said that McKell received a phone call from Ms. Doe.  ... He was present in the home. ... McKell left the apartment. ... The car ride from his apartment (to Ms. Doe's?) was about five to seven minutes. He had contact with mcKell, five to seven minutes after.
HB: Did he tell you that McKell asked him to do something?
KF: Yes.

There are lots of objections with this testimony.

KF: First, he went to Ralph's (grocery store) to pick up gloves and maxi pads. ... When he arrived (at Ms. Doe's apartment) Ms. Doe was out of it, upset and crying. McKell was there. ... He saw blood on the floor and on a towel.  He opened the toilet lid and saw blood and saw a baby that was smaller than his fist and looked normal. ... He said he got some toilet paper and cleaned up and flushed the contents of the toilet. It took several attempts. ... He then went into Ms. Doe's bedroom. ... McKell was there. Ms. Doe was upset.

HB: Did he tell you whether he looked into a pair of turquoise underwear?
KF: Yes. ... He saw white powder on the turquoise underwear. ... He said that the police should be notified.

According to Jay, Ms. Doe did not want to call the police. She was not out to get the defendant. She had to be talked into it.

There is argument between counsel as to if this is relevant. Judge Pastor rules that he is going to allow it.

KF: Jay said that Ms. Doe told him that she didn't believe that Joshua would do that to her and she wasn't inclined to call police.
HB: Did Jay tell you whether Ms. Doe ... willingness to go and call police?
KF: He said at one point McKell Googled white powder. ... He observed McKell on the computer Googling white powder.

JP: In regards to Ms. Doe, evidence code 1250.

KF: Ms. Doe was present (as?) to McKell's Google search. ... Sometime after that, Ms. Doe (? prayed?) together.
JL: Objection!
JP: Sustained.

Gail became angry and decided to go to the police.  Direct is finished and cross begins by Ms. Levine.

Ms. Levine asks about the Google search. The name "Google" was given to Detective Fairchild.
JL: Who's computer was it? ... Who told you which computer? ... Who searched what computer when and was the search for "white powder" and abortion?
(miss answer)

11:20 AM
October 5, 2012. Detective Fairchild verified that M.s Doe told her she searched "white powder & abortion."  Detective Fairchild never searched Ms. Doe's work computers. A roommate named Sam, Detective Fairchild never interviewed.

JL: Do you know if Sam had a computer that was on the premises?
KF: No.
JL: When did you first obtain Ms. Doe's computer?
KF: I don't recall.

She first seized it in April 2010 and seized it again in 2012. There are questions about Detective Fairchild's training. She's been an officer 23 years and a detective 12 years. Ms. Levine asks the witness if she ever asked someone if they could slow down, or ask to repeat. Detective Fairchild is asked if she has ever taped interviews and about her experience in interviewing subjects before.

JL: Did you expect if Detective Shafia had spoken with Ms. Doe, he would tell you about it?
KF: Only if it was relevant to the investigation.
JL: You are aware that there were two calls in 2010 that lasted at least 20 minutes? (Between Shafia & Ms. Doe?) ???
HB: Objection!
I believe Judge Pastor rules 352.

Ms. Levine asks about an interview I believe in May, 2011. Detective Fairchild has been in Ms. Doe's apartment five or six times in the last three to four years.  Detective Fairchild has interviewed Ms. Doe three times. During those different interviews (and /or visits to Ms. Doe's apartment), Detective Fairchild took photos, Ms. Do identified Mr. Woodward from photos and she returned Ms. Doe's laptop to her.

11:30 AM
JL: Did you ask Detective Shafia about the tape not working of the first interview?
KF: He just said that the tape just shut off.

In a question about missing photos when the file was transferred over:

KF: When I got the murder book, I thought everything was there?
JL: In conversation with Ms. Doe, did you ever have a conversation that (wasn't?) recorded on notes or?

The dates she interviewed Ms. Doe: April 2010; June 2010; May 2011; Sept. 2012.

JL: Did she ever call you ...
KF: (She would complain about the case.)
JL: Did you ever ask her any questions?
KF: No.

KF: She had mentioned that she was going to sue Mr. Woodward civilly.

Detective Fairchild didn't write that in any notes or logs.

JL: Did you inquire what she was suing him for?
KF: No.
JL: In that interview in Ms. Rizzo's office, was there some time limit?
KF: No.

After the interview, she wrote notes contemporaneously.

JL: Written contemporaneously? ... We you taking notes as Ms. Doe was talking?
KF: Yes.
JL: then you went back and wrote a report?
KF: Yes.

Defense exhibit P, her report (dated October 9, 2010?).

JL: Did you write this based on your memory and your notes? ... Did you ask Ms. Rizzo or did you do it all by yourself?
KF: I did it all by myself.

Detective Fairchild reviewed all the reports in the file and was aware of prior interviews.

JL: Were you present at a November 11, 2009 interview?
KF: It was conducted at Ms. Doe's apartment.
JL: You did not do an inventory of Ms. Doe's ...?
KF: No.
JL: Do you know if there were any drugs or alcohol ... in her apartment?
KF: No.
JL: Any Misoprostol?
KF: No.

Detective Fairchild was not present during the "sting." In the first interview with Ms. Doe with Ms. Rizzo, it went from topic to topic.

JL: You knew that she was an actress and taking acting lessons?
HB: Objection!
JP: Sustained. 352.
JL: At the time you interviewed her in 2010, you heard testimony that Mr. Hernandez was (authorized? with?) to take photos of text message of what he determined was relevant?
KF: ... first saw those .... can't remember. ... did not have those with me when questioning Ms. Doe.

Defense exhibit I. (I miss rewriting what this document is. It might be a list of text messages.)

Going over the photos of the texts dated October 7, 2009. The text messages mention Jamba Juice.

"I almost puked on you that's why I left."

JL: So that means the Jamba Juice took place before the first visit with Dr. Tsu.

More questions about the text messages.  Part of the report said Ms. Doe accused Woodward of poisoning her. There's a question about the missing text messages that Ms. Doe deleted (off of her phone).  Now there are questions about the first time Detective Fairchild saw the panties and the powder in the panties.

The first time she viewed the panties was at the property room and viewed the underwear.

JL: September 2013 about right/
KF: That's correct.

JL: Was the first time Ms. Doe told you you were wrong, was when Mr. Balian and Ms. Rizzo were all together?
KF: Yes.

The September 2012 meeting was to determine if she used a land line in 2009. That was the first time she asked Ms. Doe if she used a land line. Detective Fairchild never asked Ms. Doe for her phone bills.  Detective Fairchild obtained Ms. Doe's phone number. She had two cell phones.

JL: She had two physical cell phones?
KF: Yes. ... I believed she used one and then it stopped. And then used another.
JL: Did she have more than one cell phone number?
KF: (No.)
JL: did she have more than one text address?
KF: No.
JL: Did you know that she communicated with Detective Shafia by email?
HB: Objection!
JP: Sustained.

JL: In the September 2012 interview with Ms. Doe, you were asking if she communicated with Mr. Woodward by cell or land line?
KF: I think that was to determine which phone she used to call in sick and to call the doctor.

JP: Did she indicate she had more than one bartender job in 2009-2010?
KF: No.

Detective Fairchild did not interview her boss at the bartender job. She did not interview him to verify Ms. Doe called in sick.

JL: Did you ask for information to show they dated?
KF: She said they had known each other for ten years and had communicated on and off.
JL: (She said?) she hadn't spoken to him in over a year in August 2009?
KF: Yes.

I believe Ms. Levine asks if Ms. Doe first told the detective she called in sick on October 17 but in a later interview she said she hadn't.  Fairchild is asked abut the date of when she went to Table 8. Detective Fairchild's report says they were all drinking alcohol. Detective Fairchild states that Ms. Doe was referring to Joshua and the friends.  Her report doesn't say that.

Cross is not finished yet.

1:30 PM
There are four defense attorney's in the well and four defense staff in the gallery. Woodward takes his seat at the defense table. Thankfully, the courtroom is much warmer.

1:33 PM
The clerk asks, "Counsel, are you ready?"  DDA Balian replies, "Yes."

Judge Pastor takes the bench. He apologizes to Detective Fairchild for addressing her with an incorrect name.   She retakes the stand.

There is some discussion about photos that had not been in the murder book in print form but were on disk. There's a question about cell phone numbers of Ms. Doe's phone and if it was used to obtain cell phone records.  Detective Fairchild also had Mr. Woodwards' cell records by search warrant.

Cell records were obtained from August 2009 to October 26, 2009 for Ms. Do and Mr. Woodward.

JL: Did you compare photographs from Officer Hernandez photographing (the texts) to cell phone records obtained via subpoena?
KF: No.

There are questions about who did a computer search for "white powder" and "abortion" and who didn't.

KF: Ms. Verde (sp?) (This must be McKell's last name. Sprocket) said that she and Ms. Doe did the computer search.

Detective Fairchild talked to Ms. Verde about what she saw that evening.

JL: That she saw Mr. Woodward on the street.
HB: Objection! Beyond scope.
JP: Sustained.

JL: .... asked Ms. Verde about the 18th and the 25th?
HB: Objection about the 25th.
JP: Sustained on the 25th.

I believe the defense argues to get this information before the preliminary hearing.  I believe it's Ms. Levine who makes an offer of proof to the court.

JL: Ms. Verde was parked on fuller on the 25th. She was waiting outside. She saw him get out of a cab. ... get out walking around ... on cell phone smoking.
HB: All of this testimony what she saw, would have been out of Detective Shafia's view.

I have in my notes more questions, and it appears that these questions were allowed by Judge Pastor.

JL: She (Ms. Verde) was parked on Fuller?
KF: Yes.
JL: She saw him walk up and down the street?
KF: Yes.
JL: She saw him make several phone calls?
KF: Yes.
JL: She saw him arrested?
KF: Yes.
JL: Did he walk around the block?
KF: Yes.

Now a question about the October 17th incident. Ms. Doe discussed the mechanics of the placement (of the white powder).  Detective Fairchild went into Ms. Doe's apartment. The bed is higher than the floor.  Ms. Doe was simply watching what Mr. Woodward was doing.

JL: Did you ask her if he used a lubricant? ... How the powder got off her hand ... got into her vagina?
KF: She said that she was excited and that the powder would have adhered to her.

Apparently, Detective Fairchild had not told that to anyone before today.

JL: Where is that in your reports?
(miss answer)

Ms. Levine goes over the sequence of events that Ms. Doe claimed happened on October 17 and 18.  On the 17th, it happened once (insertion of powder into her). On the 18th, several times.

JL: Did you ask about (lighting?) conditions of ... room?
KF: No.
JL: Did you ask Ms. Doe if the light was on?
KF: She didn't specify.
JL: Did you ask Ms. Doe if she used glasses or contact lenses?
KF: No.

Cross ends and redirect begins.

HB: During the June 24, 2010 interview with Ms. Doe, did she say whether she saw the defendant before early 2008 - 2009?
KF: She said she didn't see him.
HB: Counsel asked you on cross examination whether Ms. Doe told you she was drinking alcohol when she was (drinking at the restaurant with friends & Joshua) ... that would have been .... do you recall that?
KF: Yes.
HB: Counsel said in report ... In your hand written notes, did you write: "Entered restaurant and sat down with friends that were drinking?"
KF: I meant that Josh and his friends were the ones that were drinking.

Question about an interview with McKell Verde (sp? on September 7, 2012.

KF: Yes, they were friends.
HB: Did she tell you about her relationship with Mr. Cremins?
KF: Yes. Her husband was Jay.
HB: Regarding the arrival of the suspect on October 25, 2009. Where did she (McKell) tell you she parked her car?
KF: She parked it on Fuller.
HB: Where did she tell you she parked?
KF: I believe it was on the west side.
HB: Could you look at your report?

Detective Fairchild takes out her report and reviews it.

KF: She said she had parked her car across from Kentucky Fried Chicken facing the apartment complex.

She (Ms. Verde) said Woodward arrived via taxi, just est of Ms. Doe's complex. He began walking down Fuller towards his car and he walked right past her.  She observed him smoking a cigarette and talk on his cell phone. He was walking back and forth, pacing. Then he took off down the street and walked around the (corner?).

People's exhibit 3. Overhead view of the streets. DDA Balian asks the witness to indicate where.

KF: He walked past her car northbound.

The witness is asked to place an X on Fuller and a cross street.

She saw him go right. ... He left her view, eastbound. The next time she saw him, she saw him walking west bound on 3rd Street. That was toward KFC.   This would be consistent with walking around the block.  The cab dropped off Woodward in a spot that would be blocked (from Detective Shafia's view).

Ms. Levine has no more recross.

People would move all of people's exhibits into evidence. Ms. Levine asks that they hold on that until the 23rd of January. Then Ms. Levine asks for a few minutes as to whether or not they will decide to go over the exhibits now and decide on which ones to accept into evidence.

There is a short break. They go off the record.

2:07 PM
The prosecution returns.  Ms. Levine asks to withdraw Detective Shafia's notes, informally 24A.

2:10 PM
Back on the record. Exhibit 24A is withdrawn.  People's 1-24 are (received?) for in evidence.  At this juncture, contingent on the upcoming (1/23).

I believe Judge Pastor asks, "Do you ... an affirmative defense?" Ms. Levine responds that it will depend on the results of the search (of records?) they are doing today.

I believe Judge Pastor asks, " Do you want any defense exhibits admitted?" I believe the prosecution offers, "If they want to let us know..." Judge Pastor responds, "I'd just would have as much notice as possible."  I believe Ms. Levine states she would let the people know by January 10th.

Judge Pastor tells counsel, "If there is something else by (discovery?) standpoint, I'd like to be notified."  I believe he then asks, "When can the defense have motions filed?"

The rest of the discussion is when motions and responses are due.  Defense motion due by Jan 13th. Peoples response by 4 pm Friday 17th. That will give Judge Pastor time to review all motion documents.

Mr. Woodward remains on bond. He is ordered to come back January 23rd at 9 AM Thursday.  There is a question about a telephonic conference and Woodward gives his waiver that his attorneys can represent him at that conference.  And that's it.

Joshua Woodward Preliminary Hearing, Day 4, Part III

 Joshua Woodward at a previous court hearing.

Continued from Day 4, Part II....

December 9th, 2013

1:33 PM
The lunch break is over and I'm inside Dept 51.  I got a confirmation that the November 18 date was just a discovery hearing and not considered a part of the preliminary hearing. The clerk asks counsel to let her know when they are ready.  Ms. Levine, who is now at the podium states she is ready.  I notice that the gray haired man is wearing a Picasso-like tie.

1:35 PM
Detective Shafia retakes the stand. Levine asks the detective whether he considered Ms. Doe's apartment a crime scene. He answers, "... could have been. Correct."  Levine states he took no steps to secure the crime scene. Detective Shafia states he never went into that apartment.  He doesn't know if (Ms. Doe?) there was a prescription for Misoprostol at that apartment.

JL: Sometime later, were you aware  photos were taken of that apartment?
JS: No.

The chrono log reflects that the initial officers appeared anxious to make an arrest. The initial report listed Ms. Doe as a homicide victim.  Initial searches (Det. Shafia performed?) were for a probable drug based on what the initial officers told him.

Defense F is introduced. Judge Pastor asks, "Did we misplace Defense E?"  It's explained that Defense E is a lab report.  Defense F is not put up on the overhead screen. Defense F is described as a Wikipedia search.

JL: Is this the search you did?
JS: (He thinks so) It doesn't have a complete date on the document.

Levine asks if the search result told him Misoprostol could be applied as a powder.  Shafia looks over the document.

1:47 PM
Shafia is asked if he knew Ms. Doe told detectives she found powder in her panties?

JS: No.
JL: (Did you) search online line for women using powder?
DDA: Objection!
JP: Sustained.

Shafia states he looked through a number of search engines and this was the most comprehensive so he printed it out. Shafia is asked about documentation on his search history. There is none.

Shafia called Ms. Doe and had her come to Wilshire Station to be interviewed.  She came with her friend McKell (sp?).

JL: Were you aware that McKell had been at Ms. Doe's house when she claimed to have miscarried?
DDA: Objection!
JP: Sustained.

JL: Were you aware that McKell had been in the vicinity of (where?) Mr. Woodward was when he was arrested?
DDA: Objection!
JP: Sustained.

Ms. Levine asks if McKell was in (present?) on Ms. Doe's interview?

JS: No.

There are many questions Levine asks that are objected to and sustained by Judge Pastor. Shafia states that Ms. Doe came in for an interview and that interview was taped. The video portion of the interview ends before the interview actually ended. Shafia states he learned of it a couple of months later.

JP: Did you do that on purpose?
JS: No.

Shafia had other discussions with Ms. Doe, but that was the only interview that was taped. Ms. Levine wants to question Shafia off of the defense copy of the interview transcript, bu there is a pagination between that copy and the prosecution's copy. Ms. Levine states there is no difference of any substance.

The discussion began of Ms. Doe's relationship with Mr. Woodward and that they were friends and that they had dated off and on.  Shafia states he did not do any investigation to determine if that was true.

JL: Did you interview any friends ... or ask to see any photographs of her and Mr. Woodward?
(miss answer)

Ms. Doe sent Detective Shafia (a text she wrote Woodward?) after the miscarriage.  "Just got back from doctor. Everything okay." It appears Ms. Doe showed Detective Shafia that text at that first meeting.

JL: Before your sting or snare, ... you knew that she, later she sued Mr. Woodward?
JS: No I did not know (that).

(JL: You asked her to pretend to still be pregnant but she had already decided to do that?)
(JS: Correct.)
JL: So, she was using you?
DDA: Objection!
JP: Sustained.

Shafia directed Officer Hernandez to take photos of Ms. Doe's cell phone but Shafia doesn't recall what day the photos were taken (of the phone).

Defense H. Detective Shafia's chrono log, about 29 pages.

Detective Shafia does not know if Officer Hernandez took photos of all the messages on that phone.

Defense I. (Photo?) of a package? There are no BATE stamps. There's a blackberry on top in a photo. Appears to be photos of text messages. Shafia is asked to review them to determine if there were any not contained in this group.

JS: These appear to be all the photos that Officer Hernandez took. ... I did not look at the phone. I just looked at the photos.


There are more questions about what Ms. Doe told Detective Shafia she told Woodward about her pregnancy being "okay."

I believe Shafia repeats that Officer Hernandez told him that Hernandez took photos of everything on Ms. Doe's phone.

JL: In that meeting you told her not to erase anything on that phone?
JS: Correct.

Levine crosses Shafia on more of Ms. Doe's interview.  Shafia is asked if he knew if the District Attorney got phone records.   There are questions about another text of Ms. Doe's, but that text was (apparently) not on the phone when it was photographed.

JL: Did she tell you he (Woodward) was wealthy?
JS: I believe she talked about bankruptcy issues.
JL: Did she tell you he came from a wealthy family?
JS: Not sure. I don't recall.
JL: Look at page 79 of the transcript, line 7. She suggests Mr. Woodward comes from a family with money.  ... and talks about Mr. Woodward's mother and father having some money.
JS: (Yes.)
JL: And them traveling to a private island?

Detective Shafia doesn't recall that part of the conversation.

JL: Did you look into Ms. Doe's finances?
JS: No.
JL: (Do you) remember she told you that her hands itched?
JS: Yes.
JL: At any time, did she tell you that her vagina itched?

I believe Levine asks if Ms. Doe told him something that she didn't tell other detectives. She directs him to Page 32, line 17.

JL: She's talking about some meeting around mid September, is that right?
JS: Yes.
JL: And she claims that she and Woodward had sex in late August 2009?
(miss answer)

There's a question about what Ms. Doe said about when the "dates" were that Woodward and the victim got together. Levine continues to question Shafia about this interview. October 17, she went to restaurant but there was "too much smoke."  The "Jamba Juice" occurrence had to occur in September, before she saw the doctor on October 8th. (I'm not sure if this last statement is from the interview or Ms. Levine questioning Detective Shafia.)

Levine asks what Detective Shafia did to look at Ms. Doe's computer.  Shafia states he never seized her computer. The Jamba Juice incident. Ms. Doe felt sick 30 minutes later. Detective Shafia testifies that he just let her talk about the incident.

Jamba Juice incident, she described vomiting, nausea. Of the (October) 18 incident, she described as cramps and somewhat sickness.

JL: In the course of the interview, she watched 20/20, Dateline and Oprah and she learned how to deal with things according to those shows?
S: Yes.

Detective Shafia did not test her for drugs or cocaine.  He did no ask her if she smoked, drank or any behavior that would lead to miscarriage.

JL: You did not see any (office? official) records that pinned down the date of the miscarriage?
JS: No, I did not.
JL: As she put it to you, they had sex that one time?
JS: Correct.

She didn't expound on it, just that she didn't hear from him in the last year. There are questions about prior abortion and that it scarred her. Ms. Doe said that he (Woodward) suggested to her that she use a pill. (Late August, early September.)

Ms. Doe said he mentioned this to her early on.   After the miscarriage, she noticed powder in her undies.  (At that time, McKell was already in the apartment.

JL: You (discovered?) they (Ms. Doe & McKell) looked u on the Internet. Did Internet searches?

2:30 PM
JL: But she knew there was a pill, back in August ... there was a pill she could take?
JS: Yes.

JL: At some time during the interview, she was upset and cried. ... did you do any investigation of her?
JS: No.
JL: Were you aware that she was an actress?
DDA: Objection!
JP: Sustained.

JL: When Mr. Woodward (& Ms. Doe) spent the night together, the Saturday .. it was at 2 AM?
JS: Yes.
JL: So the evening began late?
JS: Yes.
JL: She said they spent Friday night together?
JS: Yes.
JL: She didn't mention anything about symptoms on that night?
JS: Yes.
JL: She said it could have happened on Friday night, too?
JS: Yes.

JL: She did not complain of no cramping on that Saturday?
JS: Correct.
JL: Didn't complain about diarrhea?
JS: Correct.
JL: Didn't complain of any symptoms that could have been caused by Misoprostol?
JS: (Correct.)

JL: Did you search police records to see if she had made any other complaint about anyone?
DDA Objection!
JP: Sustained!
JL: Did you get into the mechanics as to how the powder got into her vagina?
JS: I did not get specific, but she offered details.

There are questions if:
he asked her if she knew how powder got on his hand.
he asked her how much.
he asked her if she felt anything unusual.

I believe there are questions about if there was a discussion about this might be a difficult case to prove.  Would it be difficult to prove without the fetus.

JL: You told her that you would need to speak to the coroner?
JS: Yes.

JL: This was said in the context that you said this case would be difficult to prove?
JS: Yes.

I believe there is a question that Detective Shafia told Ms. Doe that he would have to speak to her doctors.

2:40 PM
I'm watching the time because I want to get to the break, and I'm wondering how much more Levine will be questioning the detective.

JL: Page 79, line 2. Well you said it would be an accumulation of details ... going to end up (?) talking to coroner.

Levine then asks about something from Detective Shafia's notes, not his interview of Ms. Doe.

Defense J.
JL: If you look at this (BATE/EVID stamp 1873) ... Are these your notes?
JS: Yes.
JL: Is this your handwriting?
JS: Yes.
JL: Meeting with Dr. Young, correct?
JS: Yes.
JL: And that doesn't have anything to do with the case?
JS: Correct.
JL: What coroner did you meet with in this case?
JS: None.

Defense K (BATE/EVID stamp 1821)
JL: Is this your handwriting as well?
JS: Yes.
JL: Met with coroner ... People v Davis.  People v. Taylor.  ... Those are both cases .... ?
JS: Yes.
JL: What do those have to do with (this case?)?

I don't have it in my notes, but from memory, I believe Detective Shafia may have filed papers in the wrong case and/or wrote his notes on another case inside this case file.

Shafia asked about a Deputy District Attorney (Shiller?), about cases similar to this.  In Shafia's chrono, DDA Shiller is listed there.  Chrono page 10.    He called (Lomis?) at LAPD SID. Talks might have coroner ... better response.

JL: Does that relate to this case?
SJ: Yes.

2:48 PM to 3PM
Afternoon break.

During the break, there is a discussion in the well between the prosecution and the defense having to do with getting electronic inner-departmental communication of the LAPD. The LAPD keeps electronic records, not in an archival form, but keeps back-up tapes. I'm not really getting the whole gist of the conversation of what the defense is looking for.  Possibly something to do with conversations with other potential witnesses.  The prosecution will have to figure out how long it might take to do this type of search of LAPD inner-department communications and if it's even possible.  However, this discussion may have to do with Brady material and not potential witnesses.

DDA Balian disagrees. "We don't know what's ... anything there. ... It is a fishing expedition. We don't accept that. At this point, it's beyond the scope of our duties. ... This would be information we don't know if it does or doesn't exist. ... only to verify if what (the) detective told us. ... Would we have to go through file cabinets or go to their homes?"

Judge Pastor, who is part of the conversation states they are not on the record.  "If you want to brief it, brief it."  Judge Pastor tends to agree with the people. I believe Ms. Levine responds, "I expect we would do something like that. (Brief their request.)

Balian states the people's position is to conclude the hearing as scheduled. On December 16th, they are going to return.  There is a discussion about the days needed for he brief, the people's response and then the defense rebuttal to that response. I believe Judge Pastor responds, "I'm telling you right now, I'm not going as far as the defense wants me to go."

Judge Pastor now goes on the record and describes what just happened. "The people have a Brady obligation, but don't believe they have free range... "  There are discussions about the date and time the filings and responses will be done by.

Detective Shafia retakes the stand and Judge Pastor states he's still under oath.

Levine is going over notes Detective Shafia put in the chrono that refer to a different case. Then it's back to the interview transcript with Ms. Doe, page 17.

JL: Another reference of Mr. Woodward  coming from a wealthy family is that correct?
JS: Yes.
JL: So that (interview?) ends with what you refer as "the sting" then afterwards, you wrote a summary report?
JS: Yes.
JL: (You?) asked security at her building to burn a video of Mr. Woodward leaving the apartment?
JS: Yes.
JL: She asked her security to do that before she met with you is that correct?
JS: Yes.
JL: Did you ever get that video?
JS: I don't recall.
JL: (You) never asked for any other video, from Table 8?
JS: No, I did not.
JL: Do you know if she searched on her computer for someone elses' for abortion pill?
JS: I do not.

JL: (You? She?) ... talked about what happened in the bedroom, about scooting around and about a backpack. Do you know if that was ever possible?
JS: No, I did not.
JL: Do you know if she used contacts or glasses?
JS: No, I do not.

There are questions about Ms. Doe's computer and land line that are objected to and sustained.

Questions about snare verses sting.
JL: ... but in the police report you referred to it as a snare?
JS: I don't recall using the word snare.

Ms. Levine has the witness look over a document.

JL: Did you review the arrest report?
JS: Yes.
JL: Did you refer to "snare" ... Mr. Woodward?
JS: Yes.

3:22 PM
JL: The (interview?) tape with Ms. Doe ends around the time you talk about a snare ...
JS: Don't know how long it took, but was trying to find out what she wanted to do as far as (the LAPD) investigating.
JL: the tape ends where you talk about what steps she wants to take, to do next.
JS: Yes. ... The bulk of (the discussion?) was I to notify her doctors and she had to decide what she wanted to do next as to Joshua Woodward.  ... The interview ended with she had options and what she wanted to do next. ... It was mostly to give me time to determine if any of this even happened.

Shafia states he did not meet with Ms. Doe and Ms. McKell after the tape ends.

JL: Did you put in place plans to next speak to her?
JS: No.
JL: What happened next between you and Ms. Doe?
JS: At some point I informed her I was comfortable in making a decision and wanted to know how she wanted to handle it.
JL: Where is that in your log?

Defense exhibit H?  Defense exhibit L.

Several evidence pages BATES/EVID stamp 1774, 1775, 1825, 1821, 1822, 1823, 1824 are presented to the witness.

JS: These was the notes I had written down before the prelim date to get myself ready for testimony.
JL: So this was not a log created at the time ...

The first two pages he created, put together in advance to help him testify. 1774, 1775. More questions about which pages were created at the time he first investigated the case. 1821 - 1825. Pages 1774 and 1775 are pages that consolidate other pages in the investigation.

JL: Let me know what it is that shows you next communication with Ms. Doe.
DDA: Objection. Relevance.
JP: Sustained.

JL: When did you next talk to Ms. Doe?
JS: I believe it was after I obtained a search warrant for Mr. Woodward.
JL: You spoke to her on October 20 ... then spoke again after (you) obtained a search warrant?
JS: Yes.

Defense M. First page.

JL: Court order sealing search warrant?
JS: Yes.
JL: Bottom EVID 2235. Is that (the?) search warrant you're referencing?
JS: Yes.

DDA Rizzo asks for the BATES/EVID number. 0233? 0238?

Ms. Levine asks about something specific on the search warrant. Judge Pastor asks a question. There is another question that has an objection with the ruling as 352.

Another question about the powder in Ms. Doe's underwear.

JS: She told me she didnt' use any products that would leave a powder.
JL: When did she say this?
JS: (Not that I recall.)

After the search warrant was obtained, Detective Shafia called the victim and she was willing to help in the "snare." That phone call was after October 23. Shafia told Ms. Doe to tell the defendant she had a bad episode.

The phone call was on the date of the search warrant.

JL: Did she tell you that she had communicated with Mr. Woodward on the phone?
JS: No.

Ms. Doe usually communicated with Mr. Woodward by text.

JL: Did you ask her to tape conversations on the phone?
JS: No.
JL: Did you monitor her calls?
JS: No.

There are many, many questions about what he did and did not say and do in his investigation of this case.

JL: Do you and Mr. Hernandez have the same number reflected at the station?
JS: Homicide has a main number and five other lines assigned.

Levine asks about a specific number.

JL: Did you speak to her (Ms. Doe) two times that day?
JS: I don't recall.

Now there are questions about how he left the case.  I believe Levine asks if on October 26 he was told the case would be transferred to child abuse.

JL: Is that normal, usually?
JS: It happens on occasion.

Shafia was not notified on that date.

JS: I was told that I had to share for those few days and on November 2, totally transferred.
JL: (Did you) communicate with Ms. Doe after that date?
JS: Yes.
JL: When communicating with Ms. Doe, did you notify Ms. (Detective) Fairchild?

Ms. Doe was upset about the transfer. Ms. Doe called him and was upset about it.  Now Detective Shafia is asked about an entry on the log dated 10/27/09: Victim came to station to deliver medical records.

JL: that's what facilitated Detective Hernandez taking the shots (photographs)?
JS: Not on that day.

That's the day that Ms. Doe came to the station to object to the transfer. Detective Shafia spoke to her on other occasions.

JL: Did you contact Detective Fairchild about those communications?
JS: I don't remember.

Ms. Levine asks about other communication beyond the calls in April.

JL: Do you know prior to that date if Detective Fairchild was going to seize (?) computer?
JS: I think she may have told me.
JL: Did you tell Ms. Doe that her computer would be seized?
JS: No. ... It was more along the lines of how long the case would take.
JL: the materials turned over to Ms. Fairchild .. .was that everything?
DDA: Objection!
(352)

JL: (You?) spoke with Ms. Doe on October 23. ... Do you know if Officer Hernandez spoke with her that day?
JS: No.
JL: But do you know how many times ...

The next time Shafia spoke to Ms. Doe was the 25, about when Mr. Woodward was coming into town.

JL: (You?) don't remember if Ms. Doe told you on the 23 or the 25?
JS: I'm not positive what day it was that Mr. Woodward came into town.

There are questions about a note on a supplement log that Ms. Doe called Detective Shafia on October 21 but it's not on the original log.  Ms. Levine questions if in fact, there is no record of Detective Shafia ever speaking to Ms. Doe on October 21.  There are more questions about the chrono log and I'm so confused here.  Ms. Levine is making a statement or question that Detective Shafia's memory is not accurate about when he spoke to the victim.

Now there are questions about what Detective Shafia told Ms. Doe to tell Mr. Woodward.

JL: What was that?
JS: (I?) told her to tell him she was still pregnant. ... Stay home, answer texts and to let me know when he (Woodward) was on his way.

Ms. Doe had information that Woodward was going to come to her after (he closed?) the restaurant on October 25. Detective Shafia did not write it down.

JL: Did you tell Officer Hernantez?

I believe he answers that it was Detective Carillo (sp?).

JL: When did you tell them this detective?
JS: (On the night of the sting.)
JL: Do you know when you got that information?
DDA: Objection!
JP: Sustained. Asked and answered.
JL: Did you get any other communication?

Detective Shafia doesn't recall if it was a text or message.

JL: Where did you write that down detective?
JS: I did not write it down.
JL: Where were you when you got that information?
JS: I was parked behind the KFC.
JL: How long ... there? ... What time (did you) arrive?
JS: I got there a little after eleven.

Now there are many rapid fire questions and I can't keep up.

JL: Did she tell you that her friend McKell was watching (from) the street as well?

Shafia states he was told that later by someone else.

JL: If there was a car circling, would you have been able to see it?
DDA: Objection!
JP: Sustained.

JL: (Well?) You set yourself up as to what you could see .. the cars on the street and what businesses were open. I want to understand where you were. ... I want to be sure that we're in the same area, because that area is very busy (busiest?) in the city...
DDA: Objection!
JP: Sustained.

The Grove shopping center is mentioned as being near by.

JS: Well, it would depend on what you want to consider (is) close.

Ms. Levine asks where Cedars Sinai hospital is.

JP: Now we're going to the beach.

Ms. Levine argues about where Cedars Sinai was and why Ms. Do didn't go there. It's about two miles from where Ms. Doe lived. Now Judge Pastor over rules his own comment. I note that the defense attorney (or staff person with the defense) has left the courtroom.

Judge Pastor interrupts the questioning to go over again when motions will be due for the next hearing.  The target issue on scope, anything on Brady. He's asking to keep on schedule for Monday.  Court will resume at 9:00 AM on December 16th.

DDA Balian asks for a redirect questioning of Detective Shafia, if he recalled any email communication for the purpose of this motion (that's yet to be written).

HB: Do you have any email communications with Ms. Doe describing the facts of the case?
JS: No.
HB: Did you ever interview her via email?
JS: No.

There are new questions, but I believe it's Ms. Levine doing the questioning.

JL: Detective, there's at least one email or text that has to do with the facts of this case.
JS: The only email that I remember .. .is one in (the) murder book and put in evidence. ... Any other email/texts had to do with scheduling of this case. ... I don't talk about cases that are not my case.

I believe Detective Shafia continues...

JS: I remember her having concerns over the years about the case.

Detective Shafia did not keep records of those communications.

JS: I don't know what media; ... I just have memory of her (calling? asking?).

DDA Balian asks a question.

JS: To the best of my knowledge, it was her calling asking about timeliness.

And that's the end of my notes for Day 4.

Kelly Soo Park sues Detective Karen Thompson, Santa Monica PD - The Complaint

I obtained a copy of the lawsuit that Kelly Soo Park filed against Detective Karen Thompson of the Santa Monica Police Department.

   Kelly Soo Park v. Detective Karen Thompson, Santa Monica PD by Betsy A. Ross

You can also read the document on T&T's SCRIBD account HERE.

Gerhard Becker Case: DDA Sean Carney Speaks to the Media After Sentencing

© Thomas Broersma 2012  thomasbroersma@yahoo.com

Gerhard Becker left, with first counsel Chad Lewin, during a 

pretrial hearing early in the case.

UPDATE 10:57 AM clarity
January 3rd, 2014
After German national Gerhard Becker was sentenced on January 3rd, 2014 in the death of career firefighter, DDA Sean Carney spoke to the media.  Becker was sentenced by Judge Robert J. Perry to 1 year in LA County jail and 3 years probation.

After DDA Carney spoke, retired firefighter Captain Kevin Mulvehill addressed the media, and spoke about fallen firefighter Glenn Allen.

 Matthew McGough kindly shared with T&T his audio and photos of the presser.  Special thanks to T&T contributor Days Like This for combining the audio and image files.

Full case coverage on T&T.

Kelly Soo Park Sues Santa Monica Police Department

6/4/13: Kelly Soo Park reacts after being acquitted on murder 
charges in a downtown Los Angeles courtroom.

Los Angeles Times Now is reporting that Kelly Soo Park is suing the Santa Monica Police Department:

A woman acquitted of murder last year in connection to the high-profile slaying of an aspiring model filed a lawsuit Wednesday accusing Santa Monica police of intimidating witnesses and damaging her reputation.

Kelly Soo Park, 48, alleges three witnesses who planned to testify on her behalf were scared off or tainted by Santa Monica Police Det. Karen Thompson.

T&T covered the Kelly Soo Park trial.

In 2010, Kelly Soo Park was arrested for the March 2008 murder of 21 year old Juliana Redding.  Redding was found beaten and strangled to death in her apartment. Park's fingerprint and a drop of her blood were found on a ceramic dinner plate in Redding's kitchen sink. Park's DNA was found around Redding's neck, on the front and back of the t-shirt Redding was wearing, on Redding's, blackberry cell phone as well as on a stove knob.

Deputy District Attorney Stacy Okun-Wiese prosecuted the case.  The prosecution alleged that Redding was killed after her father, Arizona pharmacist Greg Redding, backed out of a business deal with Dr. Munir Uwaydah, who dated Juliana for a short time.

Park was acquitted of all charges on June 4, 2013.

I clearly remember when the defense argued these motions to present this evidence just days before the trial was about to start.  Judge Kennedy ruled over and over again that this evidence did not meet the standard. That there was no "nexus" between John Gilmore and Juliana Redding's murder.

Regarding Melissa Ayala, Judge Kennedy said something to the effect that if you asked Ms. Ayala on Wednesday how she felt about John Gilmore, she would say she loved him but if you asked her on Thursday, she would say she was afraid of him.

Samuel Little Pretrial Hearing 1

Samuel Littel, March 4, 2013, via ABC News.

Tuesday, January 14, 2014
I was rushing this morning. I got out the door late and I got into downtown Los Angeles about 8:15 AM. I had to park at the Catholic Diocese, Cathedral of Our Lady of the Angels on Temple, (an expensive parking lot) because I was worried I wouldn't make it to the 9th floor on time. It's a toss up if the lines to get into the building will be long, or how long the wait will be in the elevator bay.

Samuel Little is charged with three cold case murders: Carol Alford in 1987 and Audrey Nelson and Guadalupe Apodaca in 1989. Here are a few mainstream media stories that give some background on Samuel Little. Little appears to have criminal records in quite a few states. He was a suspect for murders in two other states. (The ABC report includes a short interview with LAPD Cold Case Detective Mitzi Roberts, Detective Rick Jackson's old partner.)

1/07/13 LA Times - LAPD Arrests Serial Killer Suspect from 1980's
1/07/13 LA Times - Copy of Complaint
01/17/13 LA Weekly - Samuel Little 3 Cold Case Murder Charges
4/7/13 Fox News - Timeline retraces the steps of a career criminal, alleged serial killer
04/07/13 Fox News - Cold Case Arrest Prompts Mulitstate Probe
04/12/13 ABC -Alleged Serial Killer Suspected in Murders Nationwide (inc. video rpt.)

I was interested in following this case because 1) I've had a life-long interest in the psychology of serial killers; 2)DDA Beth Silverman is prosecuting and 3)Retired Cold case detective Rick Jackson worked the case. Back in 2009, I was following a case of Silverman's at the Van Nuys Courthouse but the defendant eventually pled. I've heard many wonderful things about how sharp a litigator Beth is and I wanted to sit in on one of her cases for a long time.  

I was under the impression that the Samuel Little case was assigned to Judge Perry, Dept. 104 (that's what the LASD web site said Little's next appearance was) but the DA's calendar said Dept. 107. Back on July 11 last year, I knew the case was assigned to Dept. 104 from Dept. 100. If in fact, the case was in Dept. 104, I had to be on time because Judge Perry starts his day right at 8:30 AM.

I'm in luck clearing security and getting an elevator.  When I get to the 9th floor, there's a sign on Dept. 104 that the Judge Perry's courtroom is dark this week and all filings are being handled in Dept. 103.  I head down the hallway to Dept. 107, Judge Lomeli's court.

8:34 AM
Two sheriff's deputies arrive at Dept. 107 and one of them asks the other, "What time is it?" Since I have my laptop open at the time, I tell them the time is 8:34 AM.  They then unlock the doors to Dept. 108 and Dept. 107. I decide to stay in the hallway so I can be on my laptop a bit longer.

A few minutes later DDA Silverman arrives with another attorney and a young man I'm assuming is an intern or clerking for the DA's office.  I don't recognize the male attorney with Silverman. Beth gives me a quick smile and I follow everyone into Dept. 107.

8:45 AM
Judge Lomeli is standing behind his desk but he is out of his robes. As soon as counsel arrive, all three are discussing the case and scheduling. Judge Lomeli warns counsel that he is stacked four cases deep, meaning, there are four cases already lined up on his calendar.  The parties mention a few dates to come back and argue motions. March 21 to return, with the intention of starting the trial May 9th. That's changed to May 9 for a status and May 12th to pick a jury.  Now Silverman is going over motions she intends to file.  The ease at which Silverman and the defense attorney are communicating is refreshing to see.

I believe there is a discussion about using a jury questionnaire. Judge Lomeli asks counsel if there's been a lot of interest in the case. I believe the defense attorney states there was interest back when Little was arrested.  Lomeli tells the parties he's inclined not to use one.  I believe the Judge asks when Little will be brought out and his bailiff states he's in a wheelchair and he will be up momentarily.

Silverman is now going over her witnesses she's going to call with the defense attorney. It's all quick, and amazingly efficient. The conversation is very amicable between them. I hear that the prosecution will file an 1101b.

8:52 AM
Little is brought into the courtroom in a wheelchair via the front doors. Little is 73 years old. He's stocky, but he appears to be sunk down into the chair. There is a white blanket over his shoulders.

I remember another time when a defendant was brought in through the front door in a wheelchair for a pretrial hearing. It was  during the first Spector trial in Fidler's courtroom. The defendant had something covering his mouth and a female sheriff was filming the defendant the entire time he was being moved. Whispers flashed among the press that the defendant was a killer with HIV. The mouth guard was because he would try to spit at the jailers.

As soon as he's put before the defense table, his attorney starts speaking directly into Little's right ear.

8:52 AM
Judge Lomeli takes the bench. Counsel are asked to state their appearances for the record. Michael Pentz for the defense. Judge Lomeli starts out by addressing the defendant. He tells him, "Your attorney is still preparing for trial. ... several motions that have to be filed ..."

The court reporter interrupts Judge Lomeli to tell him she had a problem. It could be with her equipment. She gets it fixed and Judge Lomeli continues. "... once ... prepared for motions ..."

DDA Silverman tells the court she will be filing a 1101b motion and a third party culpability motion. (I believe People v. Hall is the case that is usually used to guide opposition to admitting third party culpability evidence.)  Judge Lomeli asks if she's filing a third party culpability motion. Silverman clarifies that she will be filing an opposition to admitting evidence to third party culpability. If I'm understanding correctly, it apears Silverman is ahead of the defense and already anticipating a defense third party culpability motion, before they've even filed it.

Judge Lomeli gets all the prior agreed upon dates on the record. March 21st for the next pretrial hearing (where I think motions will be argued).  May 9th for a last minute status hearing and May 12th for trial.   The defendant is asked if he agrees to postpone his case until the next hearing.  He pauses for a moment and then nods his head. I don't hear him answer but he may have.  Judge Lomeli asks the defense, "Counsel join?"  The defense joins. The defense also agrees to give a potential continuance for the people, because Silverman has another case in another courtroom that may interfere with the May 12 start date. And that's it for the hearing.

Outside the courtroom, I introduce myself to Little's defense attorney for the correct spelling of his name.Mr. Pentz is with the public defender's office.

It's my understanding that at some point in the case, the prosecution filed a 170 motion (I don't know under which sub-heading.) to get the case moved out of Judge Perry's court and in front of another judge.  This is why the case is no longer in front of Judge Perry. I also understand that the DA's office is going for life without parole (LWOP)  instead of the death penalty because of the defendant's age.

Legal History of the Jahi McMath Case

GUEST ENTRY by VenomousFeminist!

T&T is fortunate to have one of our readers, VenomousFeminist, a California attorney, explain the court documents and rulings in the Jahi McMath case. I have verified that VenomousFeminist is a real attorney, licensed with the California State Bar. Sprocket.

Prior stories: 
01/01/14 Jahi's Legacy - by CaliGirl9
01/03/14 The Long, Sad Death of Jahi McMath - by CaliGirl9
01/05/14 Jahi McMath: Merely Dead, or Really Most Sincerely Dead? - by KZ
01/10/14 Jahi McMath: A Body in Limbo - by Sprocket

LEGAL HISTORY OF THE JAHI MCMATH CASE
by VenomousFeminist

There has been a lot of confusion about the court proceedings in the Jahi McMath case, and a number of questions as to why Judge Grillo extended the initial temporary restraining order (TRO) out to January 7,  nearly 3 weeks after the initial  TRO was granted.  I think part of the confusion is that this case has been heard now in three separate courts – the Alameda County Superior Court (state trial court), the First (Second? – the pleading captions vary) Appellate District Court (state sppeals court) and the District Court of California (federal trial court).  Let me see if I can sum up the actions that have occurred in each court, and their outcomes, thus far, to help clarify why the extensions were granted, and by which court.  I’m not going to address CHO’s response unless someone is unclear on their position and specifically asks for clarification, nor am I going to address the merits of the arguments made.

Alameda County Superior Court (incorrectly identified as “Oakland County” by Petitioner in one pleading):

12/20/13 Hearing – ex parte hearing on initial request for Temporary Restraining Order (ex parte means the requesting party doesn’t have to give advance notice to the other side, and can have a hearing without the opposing party present, something that is usually not allowed.  The court disallowed the ex parte request and requested CHO to submit a response prior to the hearing) [Winkfield v. Children’s Hospital Oakland Exhibits Part 1, filed 12/30/13 pgs. 8-74]:

On 12/20/13, Jahi McMath’s family (Plaintiff or Petitioner) filed a request for a Temporary Restraining Order (TRO) and a request for a court order to force the hospital to provide medical treatment for Jahi.  Specifically, the request asks the court for an order to prohibit the Children’s Hospital of Oakland (CHO) from discontinuing ventilation (this is a temporary request initially, with the further request that after the hospital has a chance to respond, it be made permanent), and further asks the court to order the hospital to provide a feeding tube, antibiotics and any other medicines that would support organ function.  At this time, the Petitioner’s court documents describe Jahi as in a comatose condition with brain damage.  They also ask for time to get another opinion on treatment and prognosis for Jahi.

There are three main arguments advanced by petitioner in this document:

• 1. California law gives the McMath family the right to make medical decisions for their minor child, including the decision to continue ventilation, and if the hospital and family can’t agree, the hospital must make arrangements to transfer the patient (Jahi) to a facility that will provide the requested treatment.  Petitioners cite various provisions of the California Probate Code to support these arguments.

• 2. There must be evidence that withdrawing life support is in the best interests of the patient or in compliance with their wishes, that when the patient can’t decide for herself, a family member can make that decision, and when the patient’s wishes are unknown, California law errs on the side of preserving life.  A number of California appellate cases are cited to support these contentions.  None of these cases involve brain dead individuals.

• 3. CHO has a conflict of interest, and shouldn’t be able to benefit by turning off the ventilator because by doing so, they limit their potential damages in a malpractice action.  Interestingly, they state on pg.  25, line 8, “[h]er daughter died . . .”  No statutes or case law are cited to support this argument.

The cases cited in this petition generally detail legal precedent, in the form of California case law, to make decisions in favor of sustaining life-support in cases where the patient’s wishes are unknown, and in giving parents the right to make medical decisions for their children.  (Note, I haven’t read all of these cases, I’m going off what is represented in the court documents, and the quotes of the cases themselves.)  None of the cases cited by petitioners involve patients who have been declared brain dead.

Along with the petition for the TRO, the plaintiff filed a proposed order (this is typical practice), which the court chose NOT to sign.   Typically the court will either sign the proposed order, or have one of the attorneys draft an order for his/her signature.  There’s an image of the areas of the proposed order with items crossed out in the above link that I find quite interesting.  The court in the signed order, declined to order medical treatment as requested by the McMath family, and declined to find that all the facts and allegations in the petition were true and correct.  There are other deletions on the proposed order that are worth looking at as well to get an idea of how limited in scope this initial TRO actually was. (pgs. 46-47) 

What the court does order is for CHO to maintain the status quo (i.e. ventilation) until an independent determination of brain death can be made.  The court does NOT order that the hospital leave Jahi hooked up to a ventilator indefinitely, nor will it order additional treatment for Jahi.  Essentially, what the court does is say, yes, there is a presumption towards preserving life in CA, so let’s get an independent expert in here to resolve the issue of brain death so there’s no question about it on appeal.  A status conference is set for 12/23/13 so the parties can pick an expert.  This is a “win” for petitioner only in that it buys them time to get their own expert – Paul Bryne – before the court. 

12/23 Hearing – Alameda Superior Court (pgs. 76-93 of the above link)

Petitioners request that Paul Bryne is appointed as the independent expert to determine brain death, despite the fact that he’s not licensed to practice medicine in California.  They also ask again for a permanent order to prohibit the hospital from removing ventilator support, and for an order requiring the hospital to insert a feeding tube and provide additional medical care as requested by the McMath family. 

The arguments advanced in this document are as follows:

• 1. California allows patients to determine their own medical care, and if they can’t, their family can decide for them.  This argument, and much of the case law, is simply recycled from the first brief.  Again, none of the cases deal specifically with brain death.

• 2.    Latasha Winkfield has a Constitutional right to make health care decisions for her child and force medical providers to comply with her requests.  No statutory or case law is cited to support this argument.

Again the cases cited in this brief deal with California legal precedent, in the form of case law, that supports the right of an individual to determine medical treatment for him/herself.  In fact, the cases cited in this second brief are largely identical to the cases cited in the original brief. 

The court again orders “status quo” until December 30 and appoints Dr. Fisher as the independent expert, which is a huge loss for Petitioner as they were really focusing on getting a feeding tube in place and in granting Jahi’s mom unlimited decision making power over Jahi’s future medical care. A hearing is set for the following day so they can go over Dr. Fisher’s report.  Petitioner’s request to appoint Dr. Bryne is denied. (Modified TRO12/23/13 )

12/24/13 Hearing – Alameda Superior Court

The court issued a written order detailing the reasoning for its findings.  This is typical when it is expected that such an order will be appealed.    (Winkfiled v. Children's Hospital Oakland, Exhibits Part 2, filed 12/30/13 pgs. 60 of 77 through end)

The court denies the Petitioner’s request for continued ventilation and for decision making authority (essentially being able to require the hospital to provide requested medical treatments, such as a feeding tube).  This order also gives some insight into the information provided to the court at the various closed-door hearings.

Judge Grillo admits that while the statute doesn’t specifically require that one of the two physicians making a finding of brain death be unaffiliated with the hospital, because of the allegation of conflict of interest raised in the initial brief, he decided to order a third evaluation for brain death by a doctor unaffiliated with CHO. 

The hearing on December 24 was again a closed door hearing (the closed door nature of the hearings, and the sealing of the medical records admitted into evidence, was at the request of Petitioners) where the findings of Dr. Fisher were addressed, and testimony by one of the CHO doctors who originally made the finding of brain death was heard.  It should be noted that the court states “petitioner’s counsel stipulated that Dr. Fisher conducted the brain death examination and made his brain death diagnosis in accord with accepted medical standards.”  Basically, Mr. Dolan agreed that the determination of death complied with California law.

There was a slight kerfuffle when Mr. Dolan requested a continuance so he could review Jahi’s medical records (which he had recently received) with his expert witness, which was denied by the court on the grounds that it wouldn’t be relevant to the issue of whether the brain death determination was legally sufficient.  This issue reappears later.

The court, at 5 p.m. on Christmas Eve denied the Petitioner’s motion, and dissolved the TRO effective on December 30.  The reason the TRO remained in effect until December 30 was to allow the parties time to file an appeal, which the Petitioner did.

State Court of Appeals

12/30/13 – Petitioners file an appeal to the State Court of Appeals.  (Writ petition)
The Petitioners request to extend the trial court’s order keeping the ventilator on while their appeal of that order is pending.   As part of this request to extend the TRO, the court documents allege there is a facility in New York (probably New Beginnings) that is ready to take Jahi and treat her, and that there is an examining doctor who indicates that Jahi is not suffering from irreversible brain damage. 

The second part, the actual grounds on which the lower court order is appealed, is based on the following arguments:

• 1. The law allowing the hospital to discontinue respiratory support after a finding of brain death violates Petitioners’ rights to freedom of religion and to privacy under the California Constitution.  The analysis of this argument is basically the same as was alleged in Petitionerss briefs to the lower court – an individual’s right to privacy guarantees them the right to make their own health care decisions – the new argument is that turning off the ventilator and refusing to insert a feeding tube would violate the religious beliefs of the Petitioners.  The case law cited is again virtually identical to that cited in the lower court briefs.  There is no case law cited to support the argument that turning off the ventilator would violate the Petitioner’s religious beliefs.

• 2.  It was a violation of the Petitioners’ Due Process rights for the trial court to deny Mr. Dolan a continuance to allow time to review medical records.   There is case law cited which generally states what is considered to be due process.  (I did tell you this issue would come back up.)

Thus far, there has been no further action on the appeal that I am aware of.  In light of Jahi having been moved out of CHO, it is likely the appeal will be considered moot (no longer at issue).

District Court of California

12/30/13 – At the same time that the appeal is filed in the California court of appeals to overturn the lower court ruling denying the request to continue ventilator support and to place a feeding tube, Petitioner also filed a federal lawsuit alleging violation of civil rights and various federal laws which apply to persons with disabilities and again requests a order to keep the vent on and to order a feeding tube.  (Federal lawsuit alleging violation of civil rights)

Since this is essentially a complaint, a statement of fact which also says various laws have been violated, there is no case law required . None of the causes of actions (laws that were violated) are substantially different from what has previously been addressed.  The Petitioners’ position has remained consistent – put in a feeding tube, keep the vent on, and allow Petitioner to dictate what medical procedures will be performed by CHO. 

(As an aside, this complaint refers to privacy rights as being granted by the 4th Amendment.  While the 4th Amendment does grant the right to be free from unreasonable search and seizure, the privacy rights being addressed here are typically recognized under the 1st Amendment.  This isn’t really relevant to the legitimacy of the underlying argument, but it’s more evidence of the sloppiness and tortured logic seen throughout Plaintiff’s pleadings).

On December 20, 2013, the district court issued a written ruling in reply that grants part of the request, and denies part.  The court outright denied the request to insert a feeding tube, and set a hearing on the issue of whether ventilation should be continued.  That effectively extended the right to keep Jahi on the ventilator until that 1/7/17 hearing.  Basically, the order mirrors the state trial court order to maintain the status quo until both sides can be heard. 

As we know, this 1/7/14 hearing never happened because Jahi was transferred out of CHO per a mediated agreement before the hearing could happen.  As a result, the TRO was denied, and the underlying case mooted. 

- VenomousFeminist