Monday, January 24, 2011

Stacey Barker Hails The Massiah!

Today was another pre trial hearing in the murder case of Stacey Barker, 26, at the Michael Antonovich Antelope Valley Courthouse in Lancaster, CA. Barker is accused of killing her 18 month old daughter, Emma Leigh Barker, on March 18, 2009. When I titled this story, "Stacey Barker Hails the Massiah!" I'm not referring to her praising the lord, Messiah, I have no idea what her religious tenets are. I'm referring to a motion her defense has filed that claims that the State of CA has violated her 6th amendment rights. I'll get into that soon, but first a little background to a case that seems to get stranger and stranger.

Barker originally reported to police that she was loading her daughter into the car after playtime at the Lancaster City Park, when she was attacked and rendered unconscious for several hours before she came to and realized her daughter was missing. After a trip to the hospital to treat her injuries, Stacey Barker was taken to the sheriff's department for questioning. Eleven hours after Emma was reported missing, Barker led law enforcement to her daughter's body that she had left in tall grass on the side of the freeway. Barker claimed her daughter's death was an accident, but because she was afraid of being blamed she disposed of her baby's body then inflicted injuries ( that were consistent with an attack )on herself,  removed and hid parts of her clothing and reported the kidnapping claim. It should be noted that Barker didn't call 911, she called her brother who made the 911 call to law enforcement. When LE arrived at the scene her brother and boyfriend were already there.( Just one more thing in this case that makes you go hmmmm.)

It was nearly a month after Emma's death, before Barker was arrested on April 23, 2009. The charges filed against the Stacey Barker included one count of Second-degree murder, one count of Assault on a Child Causing Death and one count of Child Abuse. Barker has been held at the Century Regional Detention Facility on a one million dollar bond since her arrest. Stacey Barker pled not guilty to all counts at her formal Arraignment on August 12, 2009.

The proceedings today, January 24, 2011 lasted only about a half hour. Stacey Barker's case wasn't called until 11:30 a.m.. The court lists her hearing as starting at 8:30 so Tori and our other friends did have to wait a while. ( I know that sometimes it can be an interesting wait because the court hears other cases in the mean time, but just the same.....Thanks again guys for your time and sharing what you see and hear!)

Defendant Barker didn't look so good when she came in today. Her hair looked like she had been wearing braids that she just took out and hadn't brushed, no makeup today either. Barker's mood seemed to match her appearance, she didn't make eye contact with her family or boyfriend in the courtroom.

I almost feel like I'm putting the cart before the horse by talking about the hearing before explaining the Massiah motion the defense has filed. I'll do that and then go back to the hearing.There have been no issues raised ( that we are aware of ) regarding "Miranda" warnings in this case, but as I said above the defense has filed a "Massiah" motion to suppress any testimonial evidence gathered by Witness X  and the content of the hearing was related to the motion. Let's go over both because the Massiah doctrine supplements Miranda, even though it is a separate and distinct rule.

Most US citizens know that law enforcement must give a  Miranda warning  before subjecting someone to any interrogation when being arrested ( taken into custody and are not free to leave, a situation the court ruled was inherently coercive ).  The purpose of the warning is to ensure the accused is aware of, and reminded of, their rights under the U.S. Constitution. The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present at anytime during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him. A person must clearly waive their fifth Amendment right against self incrimination and the right to an attorney before any evidence gathered in the interrogation will be considered admissible in court.

Just as Miranda gives us Fifth Amendment protection after an arrest, according to the Massiah Doctrine, after the initiation of adversary judicial proceedings (by indictment or by information, preliminary hearing or arraignment), the Sixth Amendment guarantees a defendant the right to rely on counsel as the “medium” between himself and the government. Thus, once adversary proceedings have begun, the government cannot bypass the defendant's lawyer and deliberately elicit statements from the defendant himself.. Massiah is based on the right to counsel. It's application turns not on the conditions surrounding police questioning, but on whether, at the time the government attempts to elicit incriminating statements from an individual, the criminal proceedings against that individual have reached the point at which the Sixth Amendment right to counsel attaches.

The difference between Massiah and Miranda is underscored by the “jail plant” situation, the case where a secret government agent is placed in the same cell with a person and instructed to induce him to implicate himself in the crime for which he has been incarcerated. Miranda does not apply, for the inherent coercion generated by custodial police interrogation is not present when a prisoner speaks freely to a person he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect. Therefore, unless a person realizes he is dealing with a government agent, the government's efforts to elicit damaging admissions from him do not constitute “police interrogation” within the meaning of Miranda.

However, the Massiah doctrine would prohibit the government from using such tactics if adversary proceedings had already been initiated against the person. But the secret government agent was not completely passive in that case; he stimulated conversations about the crime charged. The Court, however, has permitted the government to place a completely “passive listener” in a person's cell and use the statements acquired by such an agent even though adversary proceedings have commenced against the person.

In order for a court to determine that a Massiah violation has occurred two conditions must exist:

1) There must have been an indictment, preliminary hearing or arraignment already held when the violation   occurred..
 2) The informant has to be acting as a government agent, he had to have acted under the direction of the government and there is a preexisting arrangement between the informant and the police.

The line between “active” and “passive” agents—between eliciting incriminating statements and merely listening—is an exceedingly difficult one to draw.

The Supreme Court held that when an inmate working for the government actively prompts an accused to make incriminating statements, this involves active interrogation and is a violation of the accused's Sixth Amendment right to counsel (United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 [1980]). However, when a government agent passively listens to the accused's incriminating statements, there is no violation of the accused's Sixth Amendment right to counsel (Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616, 91 L. Ed. 2d 364 [1986]). In Kuhlmann, the Court held that, to prove a violation of the Sixth Amendment, "the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks."

Deputy District Attorney Kelly Cromer presented one witness today. Her name is Ellen Aragon. We learn she was the DA in the case which Witness X reportedly testified for the state against, in his own words, " a local street gang that I was trying to get out from under...."  Aragon said that Witness X was subpoenaed to testify in that case, it wasn't voluntary and his life and family had been threatened so he was placed in witness protection. I'll spare you a play by play of the questions Ms. Aragon was asked by DDA Cromer and Stacey Barker's Public Defender, Roberto F. Dager, because the questions were repetitive and in some cases vague, but the jest of it is....the state is trying to show that Witness X is/was NOT a government agent and the defense is trying to show that he IS/WAS.

The burden is the defendants to show that a Massiah violation has occurred and to be fair their efforts have been hampered somewhat by the fact that the case, X admits testifying in, is under seal. The state gave the defense transcripts concerning X's testimony in that case and recordings of Witness X interviews with the state about testifying. Judge Zackey made it very clear that no one except Dager and his investigator are allowed to see the information and neither are allowed to even talk about the contents with anyone else, including the defendant and her family.

Evidently the receipt of a benefit for testifying for the state implies an informant is an agent for the state ??? It's confusing because jailhouse snitches testify all the time for benefits, I guess the question is when was the agreement for benefits made.

Dager tried repeatedly to get Aragon to admit that X asked for benefits in exchange for his testimony (and convince the court?) that when Witness X was put into the Witness Protection Program that was the same as receiving a benefit. Judge Zackey said that Dager's use of the term "benefits" was vague and he didn't agree that entering a witness protection program is a benefit. The next hearing is February 7, hopefully at that hearing we will learn how the judge rules on the defense Massiah motion, if Witness X will be allowed to testify and regardless of his decision a trial date will be set. Judge Zackey stated again he wanted no more delays unless for an important reason adding that this delay caused by the introduction of Witness X to this case is very important.

Superior Court Judge Hayden Zackey has his hands full with this decision.  No one wants a do-over in the event of a conviction in this case. Constitutional violations are definitely a consideration of an appellate court.

Preliminary hearing coverage



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Sunday, January 9, 2011

A Visit to Orlando For A Hearing In The Casey Anthony Murder Case

I was fortunate to be able to spend 10 days in Tampa (Brandon), FL with family over the Christmas holiday. It was a fantastic trip....a lot of wonderful family memories were made :) However, one memory is not of time spent with my family, but a little side trip I made to Orlando, on December 20, to attend a hearing in the Casey Anthony case. Although the experience was interesting for me, the hearing ended up being pretty short and uneventful, so I decided not to take more time from my family to write about it.

Casey Anthony is charged with first-degree murder in the 2008 death of her 2-year-old daughter, Caylee Marie. She has pleaded not guilty, claiming a babysitter kidnapped her toddler. Caylee was last seen in June of 2008, but she was not reported missing until a month later. Her remains were found in woods near the family's home in December 2008.

Now that we've been home a few weeks and I'm caught up on some other cases I've been following, it seems like a good time to share my Orlando experience. Before leaving IL, I had printed up directions on Mapquest with directions from my nieces home to the Orange County courthouse in Orlando. The route was a pretty direct shot, but I'd be remiss if I didn't give kudos to Mapquest for their helpful directions... for example step #10. Take the 2nd LEFT onto E LIVINGSTON ST. If you are on N ORANGE AVE and reach E ROBINSON ST you've gone about 0.1 miles too far. (When you've never been to a location before, those extra details really help and Mapquest offers them through-out :)

Even though I drove between 70-80 mph (keeping up with traffic....honestly) most of way, the 90 mile trip took about 1 1/2 hours. Once I completed step 10 on my directions I noticed a sign that said "Juror Parking" leading into a parking garage, I took the turn and found a spot to park.

Orange County Courthouse complex  Orlando, FL
Coming out of the parking garage(building on left in picture) on ground level, I notice the courthouse is right in front of me (it's huge). I follow signs directing to the main entrance, right before entering, I pass Jose Baez heading in the other direction. I assume the attorneys have a different access but make a mental note that Baez has that "Dennis the Menace" type smile on his face that many (including me) have referred to as a "smirk".....seems that's his regular look. LOL, I bet he was an ornery kid.

I head on into the courthouse through the main entrance and see a long line of people going through security. Before taking my place in line, I ask at the information desk, "Where is Judge Belvin Perry's courtroom?" Without even looking up, the employee tells me, "Up on 23".  It took just a few minutes to go through the security line and then I head for the far bank of elevators that will go up to 23. Once on the 23rd floor I see Judge Perry's chamber on one side and the courtroom is on the other side of a waiting area. There are several people sitting and standing around. No one looks familiar until I notice the back of Dave Knechel (aka Marinade Dave) speaking to someone behind a pillar. I stand back until I have a chance to catch Dave's eye so that I can introduce myself to him. I then notice the person Dave was speaking with is Casey's attorney for the penalty phase, Ann Finnell. She appears to be looking for something in her briefcase so I'm not really interrupting. Right after we shook hands, a man with a walker called Dave over to him and introduced himself and his wife to Dave. Evidently a fan of Dave's blog. That's nice :).

There were a dozen or so people standing and sitting around the waiting area when Jose Baez got off the elevator and says hello to Ann Finnell and Dave. Baez says the hearing is down on the 19th floor and heads back to the elevator, everyone in the waiting area follows him. Dave and I end up on the same elevator as Ann Finnell and Jose Baez, there were others but I can't tell you who because no one is familiar. From the conversation, I learned one was local media and another was Cindy Anthony's current attorney, Mark Lippman. I don't remember who said it ( probably JB ) but there was work being done on Judge Perry's courtroom so the hearing will be held downstairs. Dave told me the courtroom on 19 is the smaller courtroom where Judge Strickland presided over the hearings in this case before he recused himself. (I guess I should have asked the information guy where Casey Anthony's hearing was instead of Judge Perry's court. Oh well, it was an interesting ride down.)

When we get off the elevator, Jose Baez, Ann Finnell and Mark Lippman  head on into the courtroom.
Evidently the rest of us have to wait :(  Moments later Cindy Anthony appears, peaks into the courtroom and is allowed in. Cindy is alone today. I wonder to myself if Cindy isn't single these days....pure speculation of course.....but the way she is dressed seems to be trying to lean towards a " younger, sexy ? " look and she may just be trying to hook up with a biker dude.. She is wearing gray jeans that are "muffin top tight". The legs of her jeans are tucked into boots that have buttons or buckles on the side. I remember them as a charcoal color with a felt or knit shaft, but have heard them referred to as black leather.(I could be wrong) She also has on a gray sweater with an black and purple argyle print on the front  and a purple knit shirt underneath. It seems she has toned down the jewelry a bit, but just an FYI from one 50ish gal to another....too tight boot cut jeans do not take the place of the current trend to wear skinny jeans tucked in boots and matchy matchy gives our age away every time.he..he... I don't want to seem too harsh on Cindy because I doubt she has money to keep up with the clothing trends, just saying.... If ya can't do it right......

I'm pretty sure I'm not alone to speculate that Cindy's attempt at a "tight younger look" and George's repeated absence from court  may be an indicator of trouble in Anthonyland. I noticed after the hearing that George Anthony authorized Lippman Law Offices, P.A. to issue a media statement on December 17, 2010  rebutting statements George's "alleged" girlfriend, Krystal Holloway (aka River Kruz) made to the Sheriff department, in a February 2010 interview. The interview was released as a  2 part audio as part of a document dump on December 17. Who knows?  The state of the Anthony's marriage really isn't relevant to the criminal case...personally, given what we know about their "history" I  would have dumped him long ago.

When we (the public) are allowed into the courtroom Casey has already been brought in. The prosecution side (on the right) is pretty empty but behind the defense in the front row is Kathy Belich from WFTV, at the end of her row is a huge television camera. There are people from various media working with electronics in each row on that side as well. In the second row behind KB is Cindy and her attorney. There was another couple behind them......until they moved over to my row.....later I read the couple came down from NY for the hearing and she is a regular over at The Hinky Meter. I'm disappointed I didn't know who they were. (Waving at Kathy now!)

There is a tall bald man (accompanied by a short blond woman), that Dave had spoke with earlier out in the hall, sitting in the second row behind the state. I assume he is with the media because he got into the courtroom ahead of us. Later I learn he is Jim Lichtenstein, a producer from NBC for the Today show. I've had heard this guy usually sits with Cindy Anthony in the courtroom, but not today. Dave K. took the aisle seat in the third row behind them. I take a seat in the back row (after checking to make sure I have a good view of Casey if she turns to the side).


December 10
For the most part, I can only see Casey Anthony from behind, but I noticed at the hearing a week or so ago, Dec 10, that Casey seems to have lost the weight she gained during her first year or so in jail. Wonder if this is a factor in her weight loss? (I came across that article looking for a photo online of the courthouse. ew!) I've never followed much on Casey's commissary purchases, beyond her own account in her letters to Robyn Adams, but it seems she has options beyond the meals served to prisoners at the jail, so the weight loss must be intentional.
December 20


Right away, I notice Casey has on the same shirt she wore at the last hearing, a long sleeve blue and white pinstripe oxford with ruffles along the buttons. Honestly, it looks like she has been sleeping in it for the past 10 days. Today Casey has a multi-level ponytail that looks thrown together. Did she even plan on attending court today? Within minutes the gallery is filled behind the state and the hearing is ready to get under way. Judge Perry calls the case at 1:31 p.m. Jeff Ashton is the only representative for the state today (He looks very tired). . The attorney for the Orlando Sentinel, Rachel Fugate is sitting in the well behind the state's table.

This hearing was scheduled to hear a motion filed by Ann Finnell on November 23, seeking to seal the defense witness list for the penalty phase from public and media view. The motion couldn't be heard on the 10th because the media hadn't been noticed in the original motion.(oops Annie, don't let Jose rub off on ya) Judge Perry agreed to put a temporary seal on the list until the media had an opportunity to respond on sealing any part of the record.....and that brings us to today.

This is a video of the hearing:



Since I included the video of the hearing and it has already been heavily covered, I won't go through a play by play of the hearing but rather just provide a summary and some highlights.

Ann Finnell gave a 10 minute presentation to the court of her "MOTION TO SEAL PENALTY PHASE DISCOVERY RESPONSE" . Basically the defense stance is that with the excessive publicity making these witness' names public would impede Ms. Anthony's right to a fair trial and furthermore would result in a chilling effect with some witnesses being unwilling to come forward with information for fear of harassment and stalking. When Ms. Finnell  was finished Judge Perry asked if there was a response from the state. Assistant State Attorney Jeff Ashton said no.(The state already has access to the witness list so they have no stance on the sealing of the penalty phase witness list)

Rachel Fugate came to the podium to argue the Orlando Sentinel's motion to intervene. Fugate argued that there should not be a blanket seal, but that the defense should argue to have certain witness's information sealed on a case-by-case basis adding the burden to prove a predjudice exists is the defense burden, not the court's.

Oops...no talking out of turn Jose
 Just One and a half  minutes into Ms. Fugate's argument, Jose Baez rose from his seat to object to the still photographer zooming in on notes his client was writing. (20.33 on the video above). Immediately Judge Perry stopped Baez and reminded him court procedures 101....by pointing out that only one lawyer has the floor....and it wasn't him.! Ann Finnell quickly stood and objected. “Well,” the judge added, “unfortunately, the objection will be noted and overruled.” Ms. Fugate not only picked up her argument where she left off, she also made statements in defense of the court photographer who is a seasoned pro and challenged the defense to find an example where something like that has been published. Judge Perry gave Ann Finnell the opportunity to rebut Ms. Fugate's argument, particularly the part of her argument that the claims the defense motion is too broad.

After Ms. Finnell's short rebuttal, Judge Perry says he will reserve ruling on the motion to seal penalty phase witnesses, adding the list will remain temporarily sealed until his ruling is made .

Perry also reminded defense attorney Jose Baez that he has until Thursday (December 23) to file a motion to pursue meter reader Roy Kronk as a possible suspect in Caylee's death. Kronk found Caylee's body in a wooded area on Suburban Drive near the Anthony home. Perry said he assumed Baez had given up on that defense strategy, but Baez said he misunderstood his deadline and thought he has until December 31 to file.  Judge Perry makes it clear that deadline was for motions to be heard not filed.

Jose Baez was on his feet again about an issue regarding a previous sidebar ruling. Perry called the attorneys up for a short sidebar. I'm not certain, but I think the sidebar had something to do with Dr. Henry Lee. The judge told Baez to supply him with some info he needs re Dr. Lee and the hearing was over.....all 26 minutes of it. :)

I almost forgot to mention....the guy sitting next to me had a small camera/video recorder in his hand throughout the hearing. Several times I thought he was going to sneak a picture of Casey, when the defense went to the stand for the sidebar he made his move. I don't know if he got the shot, but a bailiff came over and told him to knock it off.

I rode down in the elevator and walked out in front of the courthouse with Dave Knechel. I met Dave for the first time in person today, but as a long time reader of his blog, I feel like I have known him for a long time so I felt comfortable enough to give him a big ole hug before I left the courthouse. Just for the record, Dave doesn't smell like dirty laundry, but very much like Polo cologne.Nice! LOL

On January 7, 2011 Judge Perry issued a ruling that denied the defense motion to seal that was argued on December 20th. The order states that arguments made by Casey Anthony's attorneys fell short of the standards required to seal the list of witnesses who will be called if Casey is convicted and there is a sentencing phase.I couldn't find the order itself but here is the article that appeared in the Orlando Sentinel.

This case is expected to go to trial on May 9, 2011. If convicted of 1st degree murder of her daughter Caylee, Casey Anthony may face the death penalty.
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Wednesday, January 5, 2011

Will Witness X "Melt" Stacey Barker's Defense ? Chances Of A Forecasted Plea Deal Diminishing....Blizzard Hits The AV !

When last reporting to you about the Stacey Barker murder case, we told you about a storm that was brewing in the case of the 26 year old Lancaster, CA woman who is accused of killing her 18 month old daughter, Emma, dumping the baby's body along the freeway and falsely reporting she was attacked and Emma kidnapped, on March 18, 2009. Barker has been held on a $1 million bond, in the Central Regional Detention Center in Lynwood since her arrest on April 23, 2009.

There have been several delays since this case was first scheduled to go to trial last Summer. The trial is now expected to take place early 2011. The "storm" that's been picking up momentum this winter involves an inmate who exchanged written and recorded communications with Barker during their 90 mile transport each direction to Lancaster for court hearings.Over the last couple months, during the exchange of discovery some 'flurries' with potential to develop into a plea deal have blown in concerning these communications. On December 3, 2010, when Superior Court Judge Hayden Zackey scheduled the hearing for December 17, he said," It's my understanding the parties are having an ongoing discussion regarding this case....we'll see if those discussions are fruitful on December 17th" adding, "Kelly will make a motion......you will make a motion, right?" DDA Cromer agreed. Zackey continued," If an agreement can't be reached and this goes to trial, January 7 will be a pre-trial hearing that will start 0 of 59." The next day's headline of the Antelope Valley Press (AVP) was much more blunt, reading,  " Baby Barker's Mom Seeks Plea Deal !!"
 
Well...The hearing was held on December 17 at the Michael Antonovich Antelope Valley Courthouse in Lancaster, CA....... One of the rulings by the court, early on in the hearing, is in reference to the inmate who may testify of his communication with the defendant. From here on, the court ruled, in court this witness will be identified as "Mr. X" or as "Witness X". Neither the content or time line of the communication between Witness X and Stacey Barker has been disclosed in open court, but when the state told the court there are 4 Audio recordings, Barker's Public Defender, Roberto F. Dager shook his head and said I only have one.....so we  learned from this hearing that the winds of discovery are still blowing.

Even though there wasn't a plea agreement reached between the parties and a court date wasn't set,  this proved to be a very interesting hearing.  Afterward, some are forecasting this case will develop into a full blown trial instead of a plea agreement.

For some reason the next hearing is scheduled for January 24, 2011 instead of on the 7th as Judge Zackey had eluded to on December 3. (I'm not sure how this affects the count? Does 0 of 59 now start on the 24th? Anyone know? That would take us into March, if so.)

It sounds as though our "friends in the courtroom" had a long day in court on the 17th, not just because there was testimony from several witnesses, but because this case didn't come up until almost lunch time. (Again,  all of you who attend, thanks so much for using your time to attend the hearings and especially for sharing what you see and hear with us.)

Several of the witnesses to testify at this hearing were law enforcement who have also been present at the last several hearings.....apparently in anticipation of being called to testify. Detective. Sgt. Sandra Nava, Detective Sgt.Walls and a uniformed Sheriff's officer, whom we have seen in court before, but didn't know either his name or relevance to the case (Both Detectives had testified at the preliminary hearing so they were familiar)...The uniformed officer's  name is Sims and he is a module officer in the 'high power' section of the Men's Central Jail . We'll hear more from him in a bit.

Tori took some very extensive notes from the testimony in this hearing. She commented that she couldn't keep up with the pace the hearing was moving. I think you'll agree, she did a great job of capturing the "climate" in the courtroom. It was a blizzard! 
I wanted to share this picture T sent, this is taken  looking out her window in the Antelope Valley on January 2, 2011. It was a blizzard.....certainly not a common occurrence in the desert!
A note of interest....January 2 is Stacey Barker's birthday........hmmmm....... is that blizzard an omen or coincidence?


Here is Tori's report from the December 17 hearing:

When Stacey Barker came into the courtroom, she had her hair in a pony tail, all curled with full make up on  in contrast to her yellow scrubs.We were about the only ones in the gallery (the usual people) besides the defendant's family. SB came into the courtroom with a half smile looking at her family behind the defense table before she sat down next to Dager and looked straight ahead.

First called to the stand is Officer Sims. Before Sims is sworn in, PD Dager asks Judge Zackey to make Detective Nava  and Detective Walls leave the courtroom during Sims testimony. Dager says they going to testify and he doesn't want them to hear what Sims has to say....so they can't change their testimony. DDA Cromer told the court she needs Nava to help her with questioning. Judge Zackey announced it was his understanding Detective Walls wouldn't be testifying (Walls agreed) and decided to allow Detective Nava  to stay. PD Dager said he wants it on the record that he does not like it. Judge Zackey said " Detective Nava will be under oath and I don't feel she will change her testimony based on Sims testimony."

Men's Central Jail
 Officer Sims is sworn in and takes the stand. Cromer asks him about his job, then she asks him how he knows Mr.X. Sims said he is an officer in the unit that housed Mr.X  in Men's Central Jail. The unit is a Protective custody unit and Mr.X is classified as a "High Power Inmate". Next, Kelly Cromer asked Sims why Mr.X contacted him?  Sims said X told him that he had information on a case and wanted him to contact the homicide detectives working the case for him. Sims said he told X ok, he wasn't sure what he could do, but he would try.

Now it's the defense' turn for cross examination. Roberto Dager asked Sims if he and X are friends? Sims replied, " There is a line of separation between an inmate and officer " adding," I don't cross that line with any inmate." Dager asked, " Well do you have friendly conversations with him? " Sims said, "What do you mean?" Dager continued," Like do you talk about football and stuff?" Sims said "Football ?....No..it's just a inmate/officer relationship sir!

Dager asks Sims," Do you trust Witness X? Sims said "I trust no one sir." Next, Mr.Dager asks the officer if X has discussed the reason he is in jail with him? Sims said," Not really." Dager makes several attempts to ask Sims a question, but NO one can understand what he's asking....evidently Judge Zackey understood where the attorney was trying to go....he asked the question in a way that the officer and the rest of us  understand...Dager wants to know how was it that every time SB and X had to go to court, they always seemed to be next to each other on the bus? Sims said," I don't know, X may have asked the transport driver or the bus officer if they could sit next to each other." Dager replies, "Oh, so you get to pick your own seat on the bus?" Sims said," NO." Dager asked, " Then why was HE allowed to pick where he sat?" Sims told Dager he didn't know, adding he wasn't the bus officer. Now PD Dager asks Officer Sims, "Did you put X in contact with Detective Nava at some point ? " Sims said, Yes, he set up the call between the detective and X. Dager asks," How many calls did he get from Nava? Sims said, "A few." Dager gets in a few more questions (didn't note) and then we're told to go to lunch and be back at 1:30pm

While having lunch we discussed the possibility that Witness X is at the courthouse and going to be on the stand today. We heard  X  mentioned and someone said "You can ask HIM that question yourself"  but don't remember what question it was or who asked it because things were going fast!

Sure enough, when we go back after lunch, the Judge asks everyone in the front rows to move back 2 rows....then they bring out Mr.X... He is in chains so tight that his hands look deformed in front of chest....he is wearing glasses and doesn't look as evil as he did the first time we saw him....I think he knows that we are the 'bloggers' because he looks right at us and SMILES a broad smile (admittedly, no one else was really there in the gallery) We noticed when X came in, he and SB also shared looks, he had a joker grin on his face and she just had a sour look on her face. Witness X has been housed at The California State Prison at Lancaster since entering into the 10 year plea agreement with the state.

Judge Zackey tells the inmate he will be identified as Witness X from now on.

DDA Kelly Cromer starts the questioning of this state's witness, " How did you meet Ms.Barker? Mr.X said he "conversated" with her on the bus ride to court, she was in the CAGE next to his cage. He said that she started talking about her case and  at first, he thought she was innocent.

Kelly asks X, " How did you come to talk to with Detective Nava?" Mr X replied he no longer believed Stacey Barker's story of what happened because she had told him so many different stories of what happened on every bus ride. Mr.X emphasized that he just wanted justice for a dead child.....so no matter how much drama he had to go through it was the RIGHT THING TO DO.

Next Cromer asks Witness X if he works for the Government in any official way? NO was his answer.
Kelly asked," Are you a Agent for the Government?" Again, X replied NO.
 "Did you get any special deals for your testimony against Ms. Barker?" X replied," No I didn't , I did not ask for anything in return." 
Cromer asked a few other questions and then PD Roberto F. Dager is on cross....

Dager starts, "WITNESS X, How did you come in contact with Detective Sandra Nava?" Witness X relies, " I had been talking with Stacey Barker......she loves to talk about her case......I started not believing her story and asked to talk to the Detectives working her case."
Dager questioned X further, "So you talked to Nava and told her that you had information from Stacey Barker about this case and you wanted to try to get more out of her?" Witness X answers,"Yes."  Mr. Dager asked X, "What did Sandra Nava say during your phone call?" X said, "She wasn't interested in this information , but she said she would contact the District Attorney and ask if they needed what he knew or thought he could get from her."

Dager then asked X some (allegedly ) dumb questions.8D Witness X ( and others) looked dumbfounded as to what Dager was asking. Judge Zackey asked the question another way and X, without missing a beat, said OH, Ok and answered the question, then shook his head and said "This guy is making me dizzy" ....Judge Zackey asked X if he wanted some water and X said "Yes, please". LOL

Dager started questioning X about how he got next to SB on the bus. Witness X answered," Because I asked and you know......they know I don't see girls that often, so it was nice."

Dager asked X, "Why did you want to get information from Ms. Barker? X answered, " Because, like I said before, I started to think she was guilty and if she was, I wanted her to spend the rest of her life in jail!"
Next, PD Dager asked witness X," Why were you in love with her? " Kelly Cromer said, "OBJECTION!" ...X answered anyway, laughing, he said, " NO WAY. " Dager fired back, " Then why did you want her in jail for life?"  X said, " Because I thought it was the right and moral thing to do for this child. I am against abuse and murder of women and children.

Dager kinda smirked like sure buddy.....
"So you get what you want, huh?" Mr X said," No." Dager asks X if the Bus driver knows he is trying to get information from Stacey Barker?"  This time X said," Yes."  Dager says, "Oh.... so that is why you got the seating?"

Dager then asked  X how long he has been in the system.  X said, "Since 1993."
PD Dager- "How long was your first stint in prison?"
Mr.X-..."About 4 years."
PD Dager-"And the second time?"
X-" About 5 years, I don't know something like that."
PD Dager- "So you know the system and know how to work it...
DDA Cromer Objects..argumentative! Judge Zackey, "Sustained."
PD Dager moves on..."How many times have you been to court here?"  Mr.X replies,"A lot."
Next Dager said to X, "So you have a friend in lock up that can do things for you? X replied," I have no friend here. I think all the officers don't really like me." Dager continues, "What about (? ), a lock up officer at the court that is a woman. You say on tape to Stacey Barker that you can get special treatment from her." Witness X said, "What... like extra lunch or what kind of special things??"?  Dager said, "Sure." X said, "No, nothing special, I eat a peanut butter and jelly sandwich and a apple, just like everyone else!"

Mr.Dager seems to finally come to the point he is trying to make when he says, "Do you know what a SNITCH IS?" Mr.X said, "Sure."  Kelly spoke up and said, " DEFINE Snitch....I am sure Mr.Dager can."

Barker's Public Defender, Dager, then asks X, " Are you a jailhouse informant and have you testified as an informant in other cases? X said, " I testified in one other case." Dager asked X," Did you get anything special for that testimony?" Witness X answered,"No."  Dager asks," What about the apartment and money?  Mr.X replies," Oh. Well, I was in the witness protection program that is why."
Dager asks/states,"So you gave information on the MEXICAN MAFIA?" X replied," No, I gave information on the gang I was in ( that was affiliated with the Mexican Mafia)." Dager asks X, "What kind of gang was that?" Witness X told Dager, "It was a local street gang that I was trying to get out from under...."

Dager asks X if he has Agent status? X says, "No, I'm not a Agent." 
Dager said," Then why on the tape do you ask, 'Do I get a badge'? and one of the officers said," Ok, you'll get a badge?" X laughed and said, " That was a joke..." 

 PD Dager now asks, "Who suggested you wear a wire?  X said  he did. Dager said, "Who wired you?" Witness X says, " It wasn't really a wire, it was a tape recorder that was in my pocket." Dager, "Did they tell you how to question her?" X said," The only thing they told me was to let her talk, do not question her about  her case, just let her do the talking and if she goes on to other things just guide her back to her case."
Apparently Mr. Dager has a hearing problem, he asks again," So they told you what to ask her?" Witness X said,"NO, They me NOT to question her, just let her talk, she does talk a lot." Dager asked X, "Who wrote who first? X said, "She wrote me first."

Next, Dager asked X about his other case. X said his first trial hung and when it was going to go to trial again he was offered 10 years...Dager asks," How does a 25 to life 3rd strike felon get a deal for 10 years? X told Dager, he was offered that and it was 'sweet' so he took it.

Obviously, Dager is wanting to know if (or imply that) the DA on that case gave X a sweet deal in the other matter because he was working Stacey Barker for the state. X was relaxed on the stand and did not get mad at the questions asked. He kinda laughed at a lot of them asked by Dager. When X answered some of the questions, SB would make a look and lean in to Dager's ear and tell him things. X did not give Dager an INCH...he stood his ground, it's obvious he knows his way around the court.


Detective Sandra Nava is next on the stand. The state only has a few questions for Nava, just foundational things like credentials, involvement with the case......

When Dager does cross, he asks Nava most of the same questions he asked X.... about the wire,  how many times was X on the bus when he had no hearing (6 to 8 times)...Nava was only on the stand for a short time...

The last witness called was Ted Swanson, again, the state just laid out the foundation for Swanson's testimony. He was the prosecutor on X's most recent criminal case. Swanson was asked by Dager if he had given X any reward for ratting on Barker? Swanson said, No, he didn't. At that time he didn't even know what or who X had information about, he was just working X's case from the file...
Dager asks Swanson how does a 25 to life felon get a 10 year sentence? Swanson said that the 3rd strike law is based on the merits of the case..(3 strikes law has changed since it's inception) Dager asks Swanson why X said "he got a sweet deal" and Swanson said, "Well, anything other then life is a sweet deal, I would guess."

Dager is taking X's words and phrases as a man of 45-50 or so would, some of the things that X said are in street terms and young adult lingo. I am sure Dager doesn't know that. Sweet deal to Dager means X got some type of consideration for ratting SB out....To X it means....hell yeah, sweeeettt (good) I don't have to do life behind this POS child molester. 

For those who don't know about X's 3rd strike, it was a charge of robbery from an incident with a registered child molester who had tried to arrange private guitar lessons with Witness X's daughter. According to X, a new trial could have gone either way because witnesses were caught in lies and other things. Reportedly, the jury was hung in a 7 to5 split to convict...when they went to the table the state may have thought it better just to make a deal with him given  almost half of the last jury was ready to acquit X.

Again, Dager seems to think ( or imply)  that Swanson's boss made a deal with X for the information against SB but as Swanson said " I knew little or nothing about what information X had " so Dager is going to interview Swanson's boss to see if he might have made a deal with X. As desperate as this may seem, the defense really must try to discredit this testimony.....particularly if it supports statements Barker made to law enforcement before she was arrested.

Dager told the court he  wants to talk to X's Public Defender on the that case, the DDA Swanson's boss and he also wants to revisit previously filed motions.....Change Of Venue, Excluding media, etc... Judge Zackey said that can all be done on the 24th.... this was just a fact finding hearing and that he would offer a ruling next month. Should he find the inmate was acting as a government agent, Zackey said he suspects his only order would be that all audio tapes be given to Dager before trial.. ( Perhaps the state has just turned over the one audio recording they plan to use at trial ?) " The reality is, the information gathered by this witness was recorded " Judge Zacky said adding, "The documents and recordings speak for themselves."

We should learn more at the hearing on the 24th.....Will witness X 's testimony and communications with SB be allowed at trial? Will there be a trial?.....Or,  once the blizzard has blown over will this case result in a plea deal? If only we knew a weatherman who could predict this for us......
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