A judge Monday ruled in favor of the prosecution on three key pre-trial motions made by the defense in the case of the man being tried for a 1971 El Dorado County murder.
Philip Arthur Thompson, 64, was linked to the now 36-year-old murder of Sacramento beautician Betty Cloer after his DNA was allegedly found on her clothing near where her body was discovered off a gravel road in Cameron Park.
At the time of the alleged match in 2003 Thompson had nearly completed serving a 20-year prison term at Solano State Prison in Vacaville on kidnapping and armed robbery convictions.
In Monday’s hearing, Superior Court Judge James R. Wagoner ruled to allow testimony regarding a possible sighting of Thompson’s vehicle at a Texaco station not far from where Cloer’s body was discovered.
According to sheriff’s records from 1971, two detectives went to the gas station to speak with employees shortly after they found the body. At that time they reportedly requested copies of gas station receipts and other records the station kept on June 18 and 19. One of the detectives took notes from the station’s records; his notes included the notation of license plate “DUK323,” which has been linked to Thompson through a second sighting of the plate by a Sacramento County prosecutor who reportedly trailed him for a period of time in regard to another case. Thompson’s attorney Dain Weiner argued that testimony with regard to the license plate should not come into trial on the basis that it’s hearsay. His reasoning was that the actual records from the gas station were not saved and that all the prosecution has are the detective’s notes. Weiner went on to say that two employees who worked at the station at the time don’t have any recollection of ever being contacted by officers.
The license plate issue had previously been heard by Judge Daniel B. Proud, who did not allow it in a 2005 preliminary hearing conducted in his courtroom. Wagoner, however, ruled that the testimony could be heard by jurors in the trial scheduled for October over which he will preside.
The second ruling Wagoner made in the prosecution’s favor was to allow testimony from the transcript of a 1971 preliminary hearing in which Thompson was tried for raping a woman in Sacramento County. He was found not guilty by a jury after the case went to trial. Though the transcript of the preliminary hearing still exists, the trial transcript was at some point destroyed.
Weiner said it is unfair to let the jury hear only what was presented in the preliminary hearing, because it lacks the intensive cross-examination of the purported victim that was allowed during the trial, which might have led jurors to acquit Thompson. He also contends that parts of the transcript are missing.
Wagoner said while he would rather have the jury hear both transcripts, he will still allow them to hear only the one, subject to prosecutor Trish Kelliher laying the proper foundation.
The final ruling Wagoner made against the defense was to crush its motion proposing that Thompson be allowed to use a non-standard jail phone and have access to the law library to conduct research for his case.
Weiner said that due to the case’s age, his investigation team needs all the help it can get. He added that Thompson is currently charged $2
a phone call at the El Dorado County Jail (where he is being held without bail), and that if he were able to communicate with at least two members of his defense team, pressure would be eased on the investigators as the approximately 60-day countdown to trial continues. Weiner said he currently has two investigators and a law school student working the case. He also said the investigation has been made even more difficult since the prosecution has yet to release its final witness list. He said one of possible witnesses has a criminal history and without knowing if he’s going to be called, his team is “spinning their wheels.”
In her response Kelliher said Weiner’s citing as the witness list being a reason is disingenuous and that there has been no such request for the list. Kelliher also argued that Thompson’s two documented escape attempts in the 1970s make him a liability and because of that, he should not have special privileges at the jail.
Wagoner agreed and ruled that Thompson not have the access requested by Weiner. Weiner had also requested that Thompson be named co-counsel in the case against him (which would give him similar privileges), but Wagoner also denied that request.
The Thompson case has made headlines in recent months regarding Wagoner’s decision to seal some of the case files, which are usually available to the media and public under the California Public Records Act. Under seal as of yesterday were Cloer’s autopsy reports and two motions filed during Monday’s proceedings. At the time the motions were heard, Wagoner cleared out the entire courtroom, so the discussion would stay private.
Bay Area Web journalist Virginia McCullough holds that something is fishy about Wagoner’s move to seal the records and issue a gag order to Kelliher and Weiner barring them from discussing the case with anyone. “It’s a very small camp and (Wagoner’s) part of it,” McCullough said. That’s why he’s doing everything the prosecution wants, even if it includes reversing rulings made by other judges.” She cited the fact that Wagoner previously worked as a prosecutor in the El Dorado County District Attorney’s Office.
McCullough and Dixon recently took the issue to a California appeals court, which has tentatively reversed Wagoner’s ruling to seal the autopsy report. Wagoner and Kelliher were given 30 days to respond to the June 28 ruling. If the appellate court does not find valid reasoning in the response it receives, the report could be made public prior to the start of the trial.
E-mail Eric Laughlin at or call 344-5064.