From: The Modesto Bee
By Rosalio Ahumada 10/2/15
A Stanislaus County judge has dismissed cases against a prosecution investigator and a chief prosecutor who faced contempt-of-court charges for allegations of improperly contacting an alternate juror and failing to notify the court.
The incident in question occurred during jury deliberations in a trial for Aleo John Pontillo. The jury on Dec. 10 acquitted the Modesto bail bondsman of kidnapping for extortion and bail-forfeiture fraud charges.
District Attorney’s Office Investigator Steve Jacobson was accused of questioning an alternate juror while the jury was deliberating in Pontillo’s trial. Chief Deputy District Attorney Dave Harris was accused of failing to promptly notify the court that Jacobson had improper contact with the alternate juror.
After both men apologized in court, Superior Court Judge Linda McFadden dropped the cases based on insufficient evidence and in the interest of justice. The judge says she believes the investigator and the prosecutor now recognize the mistakes they made.
Had the judge determined the evidence supported the contempt charges, Jacobson and Harris could have been subjected to penalties including jail time, community service and a fine.
Frank Carson, the Modesto defense attorney who brought the jury tampering allegations to the court’s attention, remains in custody charged with murder in the 2012 death of Korey Kauffman. The attorney in mid-May questioned a witness and argued in court, asking the judge to punish the investigator and the prosecutor for their actions in Pontillo’s trial.
In a Sept. 23 hearing, Jacobson explained to McFadden that he was under the mistaken belief that the alternate juror had been excused from the trial when he approached her to determine whether there were attempts to intimidate the jury. The investigator then “sincerely apologized” for contacting the juror, according to a minute order filed Wednesday in Jacobson’s case.
Allegations had been made that one of Pontillo’s employees had photographed the alternate juror in the courthouse hallway. Jacobson approached three alternate jurors and asked them if they remembered anyone taking photos of them outside the courtroom, according to testimony. A jury office staffer told Jacobson that he shouldn’t be questioning these jurors, so the investigator left.
In the minute order, McFadden wrote that Jacobson’s actions were not sufficient to warrant further proceedings on the contempt complaint. She dismissed the case based on insufficient evidence and in the interest of justice. Jacobson was not aware of any requirement to not contact jurors about alleged intimidation, according to the judge.
“Furthermore, Investigator Jacobson’s actions were not designed to achieve any advantage in (Pontillo’s trial),” the judge wrote.
The judge believes Jacobson now knows that he should have waited to investigate the alleged jury intimidation until after the case had concluded and all the jurors had been excused. “Thus, this court believes there is no future threat that the action will reoccur,” McFadden wrote.
Jurors are ordered not to talk to any witnesses during a trial. In May, McFadden said that Jacobson going to the jury area to question three alternate jurors about the suspicion that they were being photographed put those people in a situation that they could violate a court order.
A declaration from Superior Court Judge Scott Steffen initially was the basis for the contempt charges against Harris and Jacobson. Attorneys for the investigator and the prosecutor wanted to question Steffen on the witness stand, but they later agreed not to cross-examine the judge.
In exchange, Jared Beeson, a research attorney representing the court, agreed to withdraw from evidence Steffen’s written declaration about claims of improper conduct.
In a May 18 hearing, Beeson said there was still sufficient evidence to support the contempt charges based on declarations from the alternate juror, Jolinda Reddy, and Carson, Pontillo’s attorney. Beeson also said Harris’ written response to the allegations and a transcript of a Jan. 8 hearing are submitted as evidence to support the charges.
In Harris’ response to the contempt allegations, the prosecutor wrote that he told the investigator not to talk to anyone anymore about the issue until after the jury was done. Harris also explained to Jacobson that if the alternate had to be seated on the jury, they would then tell the court.
In the May 18 hearing, Carson argued that the inquiry about the photo incident should have been conducted by the court through the bailiff, but that Harris and Jacobson never told the court about the allegation. “Officers of the court know you don’t do it,” Carson said about approaching a juror before the trial ends.
On Sept. 23, the chief prosecutor apologized to McFadden, saying he now knows that he should have immediately notified the court about Jacobson’s conduct, according to a minute order also filed Wednesday in Harris’ case.
Harris explained to the judge that he did not know Jacobson was going to speak with the alternate juror. He also said he believed Jacobson’s question to the juror was not related to Pontillo’s trial, and he could notify the court if the alternate replaced someone on the jury.
McFadden determined that the prosecutor did not act with an intent to gain an advantage in Pontillo’s trial, so she dismissed the contempt complaint against Harris in the interest of justice.
“Furthermore, this court believes Mr. Harris has presented a sufficient apology to warrant dismissal of the remainder of the contempt action,” the judge wrote in the minute order.
The contempt-of-court proceedings had been suspended for more than a month.
Jesse Rivera, Harris’ attorney, on June 16 asked the state’s 5th District Court of Appeal to suspend the contempt-of-court proceedings and review a petition to have Carson removed. Rivera was asking the appellate court to order McFadden to limit Carson’s participation, which means he would only be allowed to testify as a witness in the proceedings.
On July 17, the appellate court suspended the hearing. The local judge was ordered to either tell Carson he can only be a witness or provide legal grounds for his participation as an attorney in the contempt hearing.
After Carson was arrested in the unrelated murder case, McFadden changed her decision about allowing Carson’s participation in the contempt complaints against Jacobson and Harris.
On Sept. 4, the local judge informed the appellate court that it would limit Carson’s participation to that of “witness” in the contempt proceedings. Rivera then dropped his appeal, and the appellate court on Sept. 24 lifted the suspension.
Since Aug. 14, Carson has been held without bail and was not in the courtroom when McFadden dismissed the contempt complaints against Harris and Jacobson. In the past few weeks, Carson has been in the process of hiring other attorneys to represent his clients in pending cases and prevent the California State Bar from taking over his firm while he remains in custody.