In Chambers Meeting, Prosecutorial reprimand
Today's session began, again, with a session in chambers. When the attorneys and the Judge returned, absent the jury, the Judge delivered a strongly-worded sermon to the Modesto Police Department for its violation of Judge Girolami's gag order over the weekend.
Among some of the matters that were discussed at the in-camera hearing, which was sealed, is this issue of the Modesto Police Department making, at least making a comment or press release with respect to the Detective Brocchini's testimony which occurred last week. Now, I understand we have Captain Aja here. Captain, where are you? Do you want to step up here, please, Sir? I'm not picking on you, but you are going to be the messenger, okay? I have Judge Girolami's protective order here. It's very clear. It says, without reading it in great detail, for any law enforcement employee, or any agency involved in this case, not making any comments. It goes on to say, make any statement outside of court as to the nature, substance, or effect of any statements or testimony that have been given. My understanding is, that no matter how it came out, it was attributed to the Modesto Police Department. And I'm telling you that this has to stop. So I'm, you are my delegate. You go tell the Chief that he's going to have to sit on his folks. And if any of this, if there is any further press conferences from the Modesto Police Department making any comments about this case, there is going to be trouble. Okay? I'm not a policeman. I don't mean that in the same way that you are talking about. I'm here as a judge trying to try this case. I don't want to spend hours trying to discipline other institutions that are involved in this case with respect to these orders. I think they should be listened to, adhered to, most of all by law enforcement. Okay? So you can express my sentiments to Chief Wasden and your PIO officers, that this is going to have to stop. And any other officers that are involved. And if it doesn't stop, then I'll have to do something about it, okay? And in that regard, I want to reaffirm this, that this order was made to people like this: Nor any attorney, it is the order of this court, this is Judge Girolami's order, that no attorney connected with this case as prosecutor or defense counsel, nor any other attorney working in those offices, nor their agents, staff, or experts, nor any judicial officers or court employees, nor any law enforcement employee, or any agency involved in this case, nor any person subpoenaed or expected to testify in this matter, shall do any of the following. And it's also set forth. Now, this applies to any subpoenaed witnesses. This applies to anybody who been subpoenaed as a witness in the case, including parents. Anybody. They are under the auspices of this gag order. And if worse comes to worst, I'm going to have to enforce it. Now, everybody should be well advised. Because, like I said, I'm here to try this case, not to police everybody. And I don't like to do it, but if my hand is pushed, I will do it. So, Captain, thank you very much. I hope you express my sentiments to the Modesto Police Department.
CAPTAIN AJA: I understand.
Prosecution Witness #48: Allen Brocchini, MPD Testimony Prelm Testimony
Highlights of today's testimony included:
What is missing from Brocchini's reports is documentation that he asked Scott if he had a girlfriend on Dec. 24 and Scott denied it. As much as he wanted the Jury and the spectators to believe that he really did ask Scott that question and Scott really did lie, it just wasn't in the reports. Geragos skillfully noted the great detail about everything else -- and yet no mention of that question.
Brocchini admitted that Scott told a "lot of truth" in the interview on the 24th.
Brocchini admitted that statements attributed to him in 3 or 4 different affidavits used to obtain search warrants and wire taps were incorrect.
Brocchini admitted no follow-up on Kim McGregor and the individuals associated with her, even though McGregor lied repeatedly to him and other LE and her alibi was never verified.
Among other things, Kim McGregor stole a pair of Scott's underwear and Laci's Social Security card on Jan. 19.
Kristen Reed informed Brocchini that Laci had stopped walking, but wanted to resume after Thanksgiving/early December as she was feeling "heavy" and concerned about her weight.
Reed also informed Brocchini that she saw a van parked on Covena the morning of the 24th, across the street, facing north.
Amber was with a Fresno detective on Dec. 24, and he is the one who urged her to call the MPD.
Amber's previous boyfriend, Dave, had told her his wife died the previous February, but then Amber saw her at a car wash.
Prosecution Witness #48: Allen Brocchini, MPD Testimony Prelm Testimony
Distaso brought up the tip that Scott told a friend 9 years ago how he would dispose of a body? It seemed intended to plant in the minds of the Jury that Scott is someone that murder would come to easily, since he could talk so nonchalantly about it.
Yet, Brocchini admitted that the tip was not taken seriously, and thus not followed up on. Did Distaso risk driving the Jury to the irrevocable conclusion that Brocchini made too many judgments in this investigation from a chair behind a desk, and without the benefit of thorough foot-work?
Prosecution Witness #49: Ronald Welsh, CA DOJ Criminalist firearms Testimony
Welsh examined the hand gun Brocchini found in the glove compartment of Scott's Ford pickup on the night of December 24, 2002. His initial observation of the gun was that the grips were missing and it had a lot of adhering material, like fibers and dust, just seemed like it was dirty. The gun is a Llama and is .22 Long rifle, which designates the cartridge type that is used not only in rifles but many different types of firearms, including small semi-automatic pistols, such as this one. Semi-automatic means that the firearm uses the energy from the cartridge to not only force the bullet out of the barrel, but also uses some of that energy to cycle the firearm, which means that it extracts a spent cartridge case and ejects it from the gun, and then loads a fresh cartridge, all using the power of the cartridge that was fired. The bullet is the actual projectile that comes out of the gun. A cartridge is composed of a cartridge case, gunpowder, primer, and a bullet. A striking mechanism in the firearm hits the primer, ignites the powder, and the expanding gases from the burning gunpowder push the bullet out. The power of the cartridge forces the top of the gun, which is called the slide, backwards. That extracts and ejects the empty cartridge case and also compresses a spring, and that spring returns the slide forward again, and it picks up a fresh cartridge from the magazine in the process. A magazine is a generic term for any mechanism used by a firearm to hold extra cartridges in the firearm. Scott's gun had 8 cartridges in the magazine when Brocchini seized it, the maximum capacity. This is a single action type of firearm, which means that the hammer has to be cocked, and then the hammer is released by a pull of the trigger; as opposed to a double action firearm where, if the hammer is down, you can pull the trigger and it will both cock and release the hammer.
Welsh test fired the gun with similar ammunition from their reference collection. It fired all 5 times, with no function problems. He did a similar test with 4 of the cartridges that were in the magazine when it was booked into evidence, and the gun fired without function problems all 4 times. Welsh also said that if the gun misfired, it would leave an impression on the cartridge, and none of the 8 cartridges in the magazine when he received it had any such impression.
On cross examination, Welsh confirmed that the gun had no blood or tissue on it and had not been recently fired. Two rust stains that appeared to be blood was tested using LMG (Leuko Malachite Green) a chemical test for blood. When Welsh tried to remove the debris from inside the barrel, the first attempt took some force, but the second was easier. He said lead deposits would account for that.
According to Welsh's testimony, the chain of custody was:
AB Jan 15, 03 booked as evidence
Jan 22, received by CA DOJ lab and put into evidence vault
Jan 28, examined by Welsh
Prosecution Witness #50: Eric Olsen, former Trade Corp employee Testimony
The Prosecution played the adultery card again, calling attention to the conversation between Scott and Shawn Sibley the first time they met. Scott and Eric Olsen, his employee, had gone to the trade show in Anaheim together. Eric knew Shawn from a previous employment. He also knew a David Fernandez, and setup a dinner for the four of them (Scott, Eric, David, and Shawn) so David and Shawn could meet. However, Scott and Shawn became involved in a steamy "sex position" conversation that both Eric and David said made them very uncomfortable. Eric is the one Shawn called on December 2 to find out if Scott was married. He said he did not want to become involved, and he told her she'd have to talk to him. The Defense drew out of Eric that Scott admitted he had made a mistake and done something stupid with his conversation with Shawn.
Eric also testified that he was at the warehouse at the end of November of first of December, but the boat was not there. He noted a partial bag of cement, and some old dried cement patches on the flat-bed trailer, like someone had been working with cement on the trailer. That would seem to diffuse the Prosecution claim that cement on that flat-bed trailer related to the making of anchors for weighting down Laci. Scott had not yet even purchased the boat.
Prosecution Witness #51: David Fernandez Testimony
Fernandez attended the convention in Anaheim, where Scott first met Shawn Sibley. He related the sexual nature of their conversation at the dinner, and that Scott seemed to be trying to find out how committed Shawn was to her fiancé.
Prosecution Witness #52: Mike Almasri, worked with Shawn Sibley Testimony
Mike applied for a job with Trade Corps and interviewed with Scott. He also was the one who, on Dec. 6, called Shawn's attention to Scott's married state. Geragos asked no questions on cross.
Prosecution Witness #53: Shawn Sibley, Amber Frey's friend Testimony
Sibley met Scott at a trade show in Anaheim CA on Oct. 24. Under direct, she recounted the dinner conversation that night, the conversation that continued on until after 3 am in the morning, setting up Scott and Amber, the discovery that Scott was married, his denial and then his claim that he "lost" his wife, her suspicions, and finally how she and Amber found out that Scott was married to the missing Modesto woman. That happened during a birthday party at her house on Dec. 29. Amber received a phone call. Shawn is the one who first called the tip line, but they did not receive a call back from the police. Then Amber called.
On Cross, Geragos did a lot of name dropping, asking Shawn if she knew several people. He also highlighted the efforts Shawn made to find out if Scott was married by doing the internet search, and asked if she went even further by hiring a PI, or if Amber did. He also tried to diffuse the cad-image by noting that Shawn, in an email to Scott, asked him if he was "chickening out" because he had not yet contacted Amber.