Saturday, November 13, 2010

Delays Push Stacey Barker's Murder Trial Into 2011


Emma Barker
In this entry I want to give an update on the pre-trial hearings of a murder trial that has been in the making since April 23, 2009 when Stacey Barker was arrested and charged for the death of her daughter, Emma Leigh Barker. After the update on the hearings and a little review, I want to take another look at the charges filed against Barker and what the California penal Code says about the elements of those charges that apply to this case.

Stacey Barker
For those who may not be familiar with the case, Emma Barker was 18 months old forever when her mother, Stacey Barker, led police to where she had disposed of Emma's lifeless body the day before, along side the Golden State Freeway in Sylmar, CA, . When Emma was first reported missing at about 11 pm on March 18, 2010, Stacey Barker claimed she had been attacked and knocked unconscious as she was loading Emma into the car after playtime at a Lancaster, CA Park. Barker claimed when she came to, Emma was gone, evidently taken by her attacker(s). Later Barker admitted she had made up the story of the attack and kidnapping, she said Emma had died accidentally and she feared being blamed so she dumped her daughter’s body, removed some clothing and injured herself to support her kidnapping claim.

On April 23, 2009, when Barker was arrested, nearly a month after Emma's death, the charges filed against the young mother included one count of Second-degree murder, one count of Assault on a Child Causing Death and one count of Child Abuse. The complaint alleges that Barker willfully caused and permitted the child to be injured and harmed and that injury resulted in death. Authorities have accused Barker of smothering her daughter. Stacey Barker pled not guilty to all counts on August 12, 2009. She has been held at the Century Regional Detention Facility on a one million dollar bond since her arrest.

Rather than give the "in the courtroom report" of the hearings, I'll just hit on some of the highlights; however,I still want to thank our friends from the AV for taking the time to attend the hearings and share with us what they see and hear. Your efforts are greatly appreciated by many who are trying to follow this case through the justice system.

For many, this murder case seems to be dragggging on.....(A July 26 trial date had been set but because the court was informed at a June 28th hearing that both sides and a witness(s) had a conflict with that schedule the judge agreed to another delay.) At the end of the June 28th hearing, as Judge Hayden Zackey set a new date for the trial to start, during the week of September 26, he was very clear that there would be no more delays.....

Judge Zackey addressed the lawyers for both sides," You both want it to stay in this court right?" They both said, "yes".  Zackey then said, "Alright then, there will be NO more delays unless I am in a trial, then you both agree to wait until I am finished to start the trial...the only delays will be from ME, agree?"  Both Deputy District Attorney (DDA) Kelly Cromer and Public Defender(PD) Roberto F. Dager said," Yes".
 
Well.....there have been more delays......no trial yet and we are almost half way through November, at this point we don't even have another tentative trial date. There have been several hearings since I wrote about the August 11 hearing in this case, yet there really isn't much to say beyond delay, delay, delay. ~sigh~

No doubt the judge's admonition when he set the trial for September was sincere, but Mr. Erin Sutton aka "Vampire" had just surfaced in an exchange of discovery on June 9 and the investigation was ongoing.....Sutton is an inmate who reportedly has had communication with Stacey Barker while they have been incarcerated. It wasn't until August 11 that Sutton appeared before the court "in camera" to answer questions. The  information from that hearing remains under seal for now. Undoubtedly more time has been needed to investigate Sutton's claims.

The hearing on August 26 was scheduled to wrap up discovery and hear some previously filed defense motions. Judge Zacky told the defense," All the other motions you want to file at that time will be heard", and then asked," You will be bringing in expert witnesses right?" - During the August 26 hearing we learned the defense needed more time for consulting an expert witness....which meant no September trial......just another hearing scheduled for September 15......
This is speculation, but because of the timing, it seems the proffer of Sutton's testimony in chambers on August 11 may have changed or shifted the strategy of the defense compelling the judge to grant another delay.....do they need a new expert to support a motion(s) to keep Sutton's testimony out, or rebut it in some way? It's possible the expert witness is for something unrelated to Sutton, there are other issues. Whatever the reason, it must be compelling for Judge Zackey to allow another continuance. I guess we'll have to wait for trial to find out.

The hearing on September 15- There was another Public Defender in court for the defense, because PD Dager had a family emergency. I don't know if the defense expert witness was there or not, but the judge said the hearing is rescheduled for October 8 and all witnesses are to come back on that date, adding with no explanation, the hearing will be held in camera (on the record with both parties but in judges chambers and under seal ). Sheriff's Homicide Detective Sandra Nava was at this hearing, accompanied by two men in suits, who appear to be LE.

Detective Nava testified during the preliminary hearing that when she questioned Stacey Barker, she changed her story several times blaming Emma's death on a variety of accidents in the back seat of her car on the freeway before "admitting" she had held her hand over Emma's mouth knowing that Emma had a baggy in her mouth. It seems likely this "admission" will be a focus of contention for both sides during trial. Will there be a video shown of LE questioning Barker, particularly if she was making admissions? At the Preliminary hearing Judge Carlos Chung didn't allow the tape to be played, citing length, but let Detective Nava testify to it before he ruled Stacey Barker would stand trial. Judge Chung didn't make a ruling about the admissibility of the video at trial and as far as we know Judge Zackey hasn't made any rulings. Was this an issue before the court during some of the recent meetings in camera as well? Sounds feasible.

October 8- "In Camera hearing" There was no explanation from the court for having the hearing in camera.

October 13- This was a short but contentious hearing.....DDA Cromer asked Judge Zackey if they could go in camera to discuss some problems she found with paperwork. After returning to the courtroom, Judge Z. announced that he found the state's request to be reasonable and that things need to redacted from records, such as witness information.
As the judge was speaking, Mr. Dager appeared to be furiously reading some papers, Ms.Cromer asked the judge, "Make him stop reading!". (Hmmm do you suppose he was trying to get a good look before the redaction was done?) The judge told Dager to go get his papers.  On Dager's way out of the courtroom he was overheard saying some very non-professional things about the DDA.....I won't go into it, but will say both sides have engaged in name calling.
 When Dager returned,  Judge Zackey said he has  the reports from both parties and they will be redacted per discovery rule 1054. Dager added he also wanted some redaction per 1054 in the first or second subpoena, adding he wants to interview everyone who has had contact with Barker since May (09 or 10 ?) Something was said about a government agent and Kelly Cromer said, "He's not a government agent!" (We know this refers to Erin Sutton, Dager announced in open court on June 28 that Sutton had identified himself as such to Barker.)
Discovery rule 1054 specifically requires that discovery be conducted informally between and among the parties before judicial enforcement is requested.....
Zackey says again he will redact and asks how long it would take them to read it? They agree to one week and made plans to return to court on the 20th. Zackey told the defense it wasn't necessary for the defendant to attend that hearing (exchange of paperwork). Court was recessed.

 The next court hearing is scheduled for December 3, 2010. Craig Currier reported in the Antelope Valley News(AVN) that the prosecution said the trial should begin within 45 days of that date. DDA Kelly Cromer told the AVN, "We're pretty much ready to go" adding, " The trial should begin in January." When asked if this was the last continuance, Cromer replied, "I'm hoping so."  I think a lot of people would agree with that hope. Cromer also told the AVN, when asked, she couldn't comment about the delays or the closed hearings.

I noticed on the LASD website that as of August 20th, Stacey Barker's visitor status has changed from a Y to a N. Does anyone think it's a coincidence her visitor status changed 9 days after her attorney questioned Erin Sutton / Vampire in the judges chamber? It came out  through discovery, that the state has some CD's consisting of taped visits with civilians that went to see Barker in jail and some letters to and from another inmate at the jail, Vampire. Have things been said during visits with others that could hurt the case? Why else shut off visits? Once again we'll have to wait for the trial, until then it appears inmate Barker won't be getting her twice weekly visits.

Because so much of the recent court business has been conducted in camera and there seems to be a number of motions and records that are sealed, there isn't a lot of court business to report. During this lull in the case it seems a good time to take a look at the California Penal Code and revisit the charges filed in this case.

 The California murder law

187.(a) Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.

Malice is "express" when there is clear evidence that someone intended to kill another person. Malice is "implied" when the person acted with a reckless disregard for human life. And while there are two degrees of murder…that is, first-degree murder and second-degree murder…  both require that the defendant acted with malice.
189. All murder which is perpetrated by means  of a destructive device or explosive, a weapon of  mass destruction, knowing use of ammunition  designed primarily to penetrate metal  or armor, poison, lying in wait,  torture,or by any other kind of willful, deliberate, and premeditated killing, o r which is committed in the perpetration of,  or attempt to perpetrate, arson, rape,  carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any murder  which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally  at another person outside of the vehicle  with the intent to inflict death,  is murder of the first degree.
All other kinds of murders are of the second degree.
Second-degree Murder
In cases where child endangerment leads to a child's death and thus murder charges, prosecutors generally charge it as a second-degree murder. This is because criminal negligence and lack of care usually invoke implied malice rather than an actual intent to kill. Prosecutors can charge second-degree murder charge in connection with child 
endangerment charges in one of two ways: 1)through the California felony-murder rule,  or (2) by demonstrating implied malice. These are two separate "theories" upon which prosecutors can base their second-degree murder charges. This means that a jury can convict a defendant of second-degree murder so long as it agrees with either of these theories. And, under certain circumstances, a jury may actually agree with both theories. Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life. There are longer terms possible for second-degree murder,  but they don't apply in the Barker case. Assault on a Child Causing Death 273ab. Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life. Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 or Section 189. Child Abuse
273a.(a) Any person who, under circumstances or 
conditions likely to produce great 
bodily harm or death, willfully causes
or permits any child to suffer, or inflicts 
thereon unjustifiable physical pain or mental 
suffering, or having the care or custody of any child,
willfully causes or permits the person or health
of that child to be injured, or willfully causes or 
permits that child to be placed in a situation 
where his or her person or health is endangered. 
 
A child abuse charge in CA is considered a "wobbler"
(can be charged as a misdemeanor or felony
 depending on the facts in the case) if prosecuted
as a misdemeanor shall be punished by 
imprisonment in a county jail not exceeding 
one year and a $6000 fine, if prosecuted
as a felony and there is a conviction the
penalty is  in the state prison for
two, four, or six years.
  
Sorry for the lapse in updates, my personal life called.
I love blogging, but this is a hobby so occasionally
I have to take a break. I am also not a lawyer, so I
interpret as best I can. I included the link to the
California Penal Code so anyone so inclined can look
for themselves. I found the penal code section
1054 - 1054.10 very interesting.  
 
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