MADERA COUNTY – The jury was not in the courtroom on Monday, Mar. 23, as the court dealt with a motion for a mistrial in the arson trial of Kenneth Jackson and Alice Waterman.
One of Jackson’s defense attorneys, Martin Jones, filed the motion after a Cal Fire investigator testified last week that it was his opinion that a cigarette butt collected at one of the fires contained a match head from a paper match, creating an incendiary device.
The defense argued that this testimony differed from the witness’s expert opinion offered at the preliminary hearing, and that the prosecution did not fulfill their obligation to disclose this to the defense when it became known that the investigator had re-examined the item of evidence and changed his opinion back in mid-February.
“This is extremely prejudicial,” said Craig Collins, attorney for Jackson. “Had I known what this witness was going to say, I would have asked the court to preclude the testimony. Having it stricken and instructing the jury to disregard doesn’t have as much teeth.”
Prosecutor Sally Moreno agreed that the information should have been disclosed weeks ago, but told the court that this was an oversight in the midst of a very complicated case, and was not a willful act.
She also told the court that whether this was disclosed two months ago or now, it is still relative, probative and admissible.
After a 402 hearing to determine whether the testimony of the investigator was admissible, Judge Dale Blea ruled that the court found sufficient evidence for the admission of the testimony, assuming there were no chain-of-custody issues in regard to the item of evidence. He also noted that the defense could retain an expert to examine the exhibit, and witnesses could be recalled to refute this expert’s opinion.
As to the motion for a mistrial, the judge agreed that the discovery was late, but saw no reason to believe that the failure to disclose was willful on the part of the prosecution. He denied the motion, but said remedial action needed to be taken, and that he would consider sanctions against the prosecution.
The trial, which began on Jan. 28, is now entering its 9th week. So far, three jurors have been excused for various reasons, at least one health-related, leaving five alternates to step into the jury box in the event of any further attrition.
Jackson and Waterman remain behind bars, where they have been held on $1,000,000 and $500,000 bonds, respectively, since their arrest in late June 2013. They face 31 total counts of arson, plus conspiracy charges. Jackson is also charged with resisting arrest and assaulting a police officer.
Both defendants are from the Yosemite Lakes Park area of Coarsegold, where a string of suspicious fires occurred during a 6-week period in May and June of 2013.
The judge anticipates the trial will last through the end of April.