by Alan Emmins
THE JUDGE: The basis there is that Section 1054 and the other criminal discovery statutes go to the material in the State’s possession; not material that the State does not control.
To the extent that you’re seeking material that third parties have, you’re required to proceed by way of subpoena, as opposed to the criminal discovery statutes. And that, of course, would provide a forum in which to litigate any problems with respect to that. So the discovery argument is overruled.
MR. FELDMAN: Judge, I’m going to raise a further concern then, if I can have a moment please.
[Pause in the proceedings.]
MR. FELDMAN: I’m going to raise a further concern, Judge, which is that there may be government action involved in the interview of my client by Mr. Walsh. What I am going by are a couple of instances in the newspaper article itself where there has clearly been contact between the investigating officers in this police report and Mr. Walsh. So my concern is that there is government action involved in the taking of this statement.
THE JUDGE: Mr. Beckelman?
MR. BECKELMAN: I have no information of that. I asked Inspector Pera and I will represent to the court that she was not an agent. I asked the same thing of Mr. Walsh just in the hallway, and he laughed.
So if there was any of that, I’m not aware of it.
THE JUDGE: Mr. Beckelman, if you would like to proceed.
MR. BECKELMAN: THANK YOU.
DIRECT EXAMINATION
MR. BECKELMAN: I would like to hand you what’s been marked People’s 19 and show it to you and ask whether you recognize it?
THE WITNESS: It’s a copy of the Bay Area Reporter from October third, 2002.
MR. BECKELMAN: And did you write an article for that newspaper?
THE WITNESS: Yes.
MR. BECKELMAN: And for that article did you interview a James McKinnon?
THE WITNESS: Yes.
MR. BECKELMAN: And do you see James McKinnon here in the courtroom?
THE WITNESS: Yes. He’s wearing an orange sweat suit.
THE JUDGE: The record may reflect the witness has identified the defendant.
MR. BECKELMAN: Did you ask Mr. McKinnon questions about the death of Gary Lee Ober?
THE WITNESS: Yes.
MR. BECKELMAN: Did you ask him whether he was forced to kill Mr. Ober?
MR. FELDMAN: Objection! Leading!
THE JUDGE: Overruled!
THE WITNESS: (No response.)
MR. BECKELMAN: The question began: Did you ask Mr. McKinnon whether he was forced to kill Ober?
THE WITNESS: I don’t recall if I used those exact words, if he was forced to kill Mr. Ober, but I did ask him if he killed Mr. Ober.
MR. BECKELMAN: And what did he say?
THE WITNESS: He said he killed him in self-defense.
MR. BECKELMAN: Did he tell you where this homicide or this killing took place?
THE WITNESS: He said it was in the apartment that he was briefly living in—Mr. Ober’s apartment. He had been living there when this happened.
MR. BECKELMAN: Did he tell you how he came to be living in Mr. Ober’s apartment?
THE WITNESS: He said he was homeless, and that he was friends with Mr. Ober and Mr. Ober agreed to let him stay with him.
MR. BECKELMAN: Did you ask why he had to resort to killing a man 20 years older than him?
THE WITNESS: Yes.
MR. BECKELMAN: And what did he say?
THE WITNESS: He explained that he was very vulnerable at the time, he was very sick, and that Mr. Ober was taking advantage of him at a period of weakness, physical weakness. And so even though Mr. Ober was older, he was the weaker because he was sick.
MR. BECKELMAN: Did you ask him how many days when he killed him in relation to when he began living with Mr. Ober?
THE WITNESS: He said he had been living with Mr. Ober for three days, you know, before this happened.
MR. BECKELMAN: Did you ask him if he used any weapons in killing Mr. Ober?
THE WITNESS: Yes.
MR. BECKELMAN: Did you ask specifically about a knife?
THE WITNESS: He said he—something to the effect that he didn’t know anything about a knife.
MR. BECKELMAN: Do you recall writing or him answering you and you writing, quote: “I don’t know why anyone is talking about a knife for I don’t know nothing about no knife. I really don’t. I did not use any weapons at all. I was sitting on the damn toilet.”?
THE WITNESS: Yeah, I was very careful to quote him exactly what he said on my tape.
MR. BECKELMAN: Did you point out to him that Ober’s body—that it was reported to you that Ober’s body was found sprinkled with baking soda in an attempt to mask the smell?
THE WITNESS: YES.
MR. BECKELMAN: And what did he say?
THE WITNESS: He said something to the effect that he didn’t want to comment on that, I believe.
MR. BECKELMAN: Did you ask him—did you ask him if he went to the police?
THE WITNESS: Yes.
MR. BECKELMAN: And what did he say?
THE WITNESS: “No.”
MR. BECKELMAN: Did he tell you why he did not go to the police?
THE WITNESS: He said he was a human being, and he was scared, and he said, “It doesn’t matter what happens to me.”
MR. BECKELMAN: Did you ask him about a report that you were aware of that he allegedly said to a customer at the Pendulum Bar about him doing a bad thing? Did you ask him about that?
THE WITNESS: Yes.
MR. BECKELMAN: And what did he say?
THE WITNESS: He said he didn’t remember if he said that or not, if he did, it could mean a lot of things. It could mean that he, you know, spilled something or, you know, I think the example he gave is peeing somewhere on something accidentally.
MR. BECKELMAN: That was the analogy he gave? THE WITNESS: Yeah.
MR. BECKELMAN: Let me ask you this, Mr. Walsh. You were employed as a journalist when you conducted this interview with Mr. McKinnon?
THE WITNESS: Yes.
MR. BECKELMAN: And where did this interview take place?
THE WITNESS: In the San Francisco County Jail.
MR. BECKELMAN: And did you go to the county jail at the direction or the request of the San Francisco Police Department?
THE WITNESS: NO.
MR. BECKELMAN: Thank you very much. I have no further questions.
THE JUDGE: Thank you. Mr. Feldman, cross-examination.
MR. FELDMAN: Thank you, Judge.
CROSS-EXAMINATION
MR. FELDMAN: Good afternoon, Mr. Walsh.
THE WITNESS: Hello.
MR. FELDMAN: The interview took place in the county jail on the sixth floor of this building, right?
THE WITNESS: Yes.
MR. FELDMAN: How did you know where Mr. McKinnon was?
THE WITNESS: Well, I knew from reading articles in the press, not mine, but I think it was the Chronicle article mentioned that he was in custody, and so I came to the jail to see if he was here.
MR. FELDMAN: What jail did you go to see if he was here?
THE WITNESS: I went to this one first.
MR. FELDMAN: There are several jails at the Hall of Justice.
THE WITNESS: I believe—you know, I don’t really recall. I think I went to—I may have gone to the sixth floor first or I may have gone to the one at 7th Street first, but either way, I was directed to the correct prison he was at.
MR. FELDMAN: You spoke with a deputy somewhere to try and find out where he was in custody, right?
THE WITNESS: You know, I honestly don’t recall if I just lucked out and happened to be at the jail he was at, or if I spoke to a deputy first at the wrong jail and they directed me to the right jail. I don’t really remember.
MR. FELDMAN: Did you review any kind of jail records?
THE WITNESS: NO.MR. FELDMAN: At some point you did speak to Inspector Pera, right?
THE WITNESS: I spoke with her on the phone, yeah.
MR. FELDM
AN: Did you interview any other police officers or did you speak with any other police officers in this case?
THE WITNESS: Yes, I believe that there was another officer that I spoke with …
MR. FELDMAN: And who was that?
THE WITNESS: … early on. I don’t recall.
MR. FELDMAN: How did you reach that officer?
THE WITNESS: By telephone.
MR. FELDMAN: How did you know to call that officer? THE WITNESS: I was just checking on the story, and I called—I don’t recall which officer that I spoke with, but it was somebody at San Francisco Police Department that gave me some basic information on the case early on.
MR. FELDMAN: And is that before you spoke with Mr. McKinnon?
THE WITNESS: Yes.MR. FELDMAN: Your interview with Inspector Pera, was that before you spoke with Mr. McKinnon?
THE WITNESS: I believe that was after.
MR. FELDMAN: Your article concludes with a request that anybody having information about this case should call the San Francisco Police Homicide Department; is that right?
THE WITNESS: Yes.
MR. FELDMAN: Why did you put that in your article?
THE WITNESS: It’s just something that I discussed with my editor, and I think our thinking was for anybody with information on either side of the case, whether it be pro or con, pro defense or whatever, or pro prosecution, for people to come forward. I think it’s in the interest of the community for people with information on a crime to come forward.
MR. FELDMAN: So in other words, a neutral request?
THE WITNESS: Yes.
MR. FELDMAN: Would you say that your article is written in a neutral fashion?
MR. BECKELMAN: objection.
MR. OLSON: Objection. Irrelevant.
THE JUDGE: Sustained.
MR. FELDMAN: How would we know when you spoke with Inspector Pera? How would we get that piece of information?
MR. BECKELMAN: Objection, relevance.
THE JUDGE: Sustained.
MR. FELDMAN: The other officer that you spoke with, that was before you went to see Mr. McKinnon, right?
THE WITNESS: Yes.
MR. FELDMAN: And did you discuss any specifics of the case with that officer?
THE WITNESS: Just the basic, you know, details, what, where, when. You know, just the basics of the case.
MR. FELDMAN: Was that officer involved in the investigation of the case?
THE WITNESS: I don’t recall if that officer was or if he was just somebody in the public affairs department that was giving the information.
MR. FELDMAN: When you went into the jail did the Sheriff’s deputies … Were they aware that you had a tape deck?
THE WITNESS: I don’t know if they were or not.
MR. FELDMAN: You’re aware of the rules that say you can’t take any kind of thing into the jail?
MR. BECKELMAN: Objection, relevance.
THE JUDGE: Sustained.
MR. FELDMAN: You have some information in this report, for instance, coming from a guy by the name of Franco, a quote about Mr. McKinnon suddenly being flush with money. Did you get that piece of information out of a police report or did that come from an interview with Mr. Franco?
MR. OLSON: OBJECTION, SHIELD LAW.
THE JUDGE: Mr. Feldman?
MR. FELDMAN: Judge, I’m still concerned about government action. I would like to know if this gentleman had a chance to review any police reports prior to going into the jail.THE JUDGE: Is the suggestion that Mr. Franco is a police officer?
MR. FELDMAN: No, the suggestion is that, by way of offer of proof, it’s a direct quote from a police report.
MR. OLSON: My problem with that, Your Honor, is that would fall within the definition of unpublished information under Evidence Code Section 1070, Article 1, Section (2) (b).
THE JUDGE: The objection is sustained.
MR. FELDMAN: Judge, I can’t find out about government action if I can’t ask this gentleman if he has had the chance to review prior police reports, if anybody gave him that report prior to him speaking with Mr. McKinnon.
THE JUDGE: That would be a different question.
MR. FELDMAN: Did any police officers provide you with any police reports in this case?
THE WITNESS: NO.MR. FELDMAN: Did you review any police reports prior to interviewing Mr. McKinnon?
THE WITNESS: NO.MR. FELDMAN: Mr. McKinnon told you that he was forced to kill Mr. Ober to fend off a sexual assault, right?THE WITNESS: Yes.
MR. FELDMAN: Mr. McKinnon told you, “It was self-defense, that’s all I’m going to say. I was attacked while I was on the toilet,” right?
THE WITNESS: That’s correct.
MR. FELDMAN: Mr. McKinnon told you at that time he had pneumonia and a temperature of over 102 degrees, right?
THE WITNESS: Yes.
MR. FELDMAN: He told you that when he was assaulted he was on the toilet with his pants down around his ankles, right?
THE WITNESS: Yes.
MR. FELDMAN: He said Mr. Ober let him stay with him because he was homeless, right?
THE WITNESS: Yes.
MR. FELDMAN: And that they were friends and not boyfriends, right?
THE WITNESS: Yes.
MR. FELDMAN: Did Mr. McKinnon say anything to you that struck you as a little bit strange in terms of the way he presented himself to you?
MR. OLSON: Your Honor, I’m going to object to that under Evidence Code Section 1070. I think the witness’s mental state, which this is essentially calling for, is also unpublished information.
THE JUDGE: I’ll sustain the objection. His mental state, also, I don’t think is relevant.
MR. FELDMAN: You asked him why he didn’t go to the police, right?
THE WITNESS: Yes.
MR. FELDMAN: And he told you that he was just a human being and that he’s scared, right?
THE WITNESS: Yes.
MR. FELDMAN: Did he make any biblical references to you? THE WITNESS: Yes, I believe he did.
MR. FELDMAN: Something to the extent, “It doesn’t matter what happens to me,” that, “There’s a plague coming,” right? Did he express any paranoia towards the government?
THE WITNESS: I don’t recall specifically him expressing paranoia, but…
MR. FELDMAN: He told you that the government has done more wrong in five minutes than he has done in his entire life, right?
THE WITNESS: Yeah, but … MR. FELDMAN: Yes or no?
THE WITNESS: Yes.
MR. FELDMAN: And he talked about Saddam Hussein, right? THE WITNESS: Yes.
MR. FELDMAN: And he talked about Bin Laden, right? THE WITNESS: Yes.
MR. FELDMAN: I’ve got nothing further. Thank you, sir.
THE JUDGE: Thank you, Mr. Walsh. You may step down.
[The witness stands down.]
THE JUDGE: Did the defense wish to present any evidence today?
MR. FELDMAN: We’re not going to be presenting any evidence, Judge.
THE JUDGE: All right. Mr. Beckelman, did you wish to address the charge?
MR. BECKELMAN: Subject to rebuttal.
THE JUDGE: Mr. Feldman, did you wish to address the charge?
MR. FELDMAN: The court has heard competent evidence that Mr. McKinnon was inside 182 Bemis at a time that there most likely was a corpse inside 182 Bemis. That’s 95 percent of what we talked about was.
Then we got this, we got a report from a reporter acting surreptitiously. He’s not allowed to take a tape deck in there, and that’s a confession, and the entire evidence of a murder is based on what Mr. Walsh told us.
There was no evidence of a murder before …
THE JUDGE: That’s not true. I mean we have Dr. Stephens telling us that it was a homicide, and that there were knife wounds, and that his opinion is that that’s what the cause of death was.
MR. FELDMAN: Let me change that. The only evidence that Mr. McKinnon murdered Mr. Ober came out of this man’s mouth based on an interview where Mr. McKinnon sounds paranoid, sounds scared, he’s tal
king about the Bible, he’s talking about the government. That shouldn’t be enough to hold him to answer.
I will submit it.
THE JUDGE: All right. Mr. McKinnon, would you please rise, sir?
[The defendant stands.]
THE JUDGE: Mr. McKinnon, the court has heard the evidence presented today and I’ve considered the argument of counsel.
Let me say first of all, I’m sympathetic to counsel’s frustration in being presented with the task of having to cross-examine with respect to what he’s characterized as a confession without additional information.
I know that’s an issue that will be litigated further. I don’t know ultimately whether that confession will survive for trial. That’s an issue that will be tested down the road. But there is evidence before me today that Mr. Ober was murdered, that you were the one there, both at the relevant times, that you continued to be there for at least a few weeks, if not longer, after the murder occurred with the body in the tub and, of course, I also have evidence in front of me that you admitted killing Mr. Ober.
So for all those reasons, it appears to the court that from the production of satisfactory evidence that a crime of felony has been committed; specifically, a violation of Penal Code Section 187, and there is reasonable and probable cause to believe that you are guilty of that offense, it is now the order of this court that you be held for trial before the Superior Court of the State of California in and for the City and County of San Francisco.