Defense attorney alleges illegal questioning in pot murder case | TheUnion.com

Defense attorney alleges illegal questioning in pot murder case

Finley Fultz

It's less than a week before Finley Fultz is set to stand trial in the murder of Isaac Zafft.

But at a hearing Wednesday, his attorney continued to argue that incriminating statements made by Fultz to an undercover officer posing as his cellmate should be thrown out.

Fultz, 28, Nathan Philbrook, 34, and Daniel Devencenzi, 33, all had been charged with murder in the July 7, 2014, shooting of Zafft while he was caretaking a marijuana grow in Penn Valley. Philbrook and Devencenzi since have taken plea agreements.

The chain of events that led to the trio being arrested two years after the homicide, and possible legal issues with the delay in charging them and providing them counsel, was raised by attorney Greg Klein more than a year ago.

Fultz reportedly was booked into jail on a Friday, and was placed in a cell with an officer masquerading as an inmate. That Sunday, Fultz spoke with investigators in connection with the shooting. He was not arraigned until Monday.

Last year, Superior Court Judge Robert Tice-Raskin ruled that Fultz did invoke his right to remain silent late in the conversation with investigators, and that only portions of the interrogation after that were inadmissible.

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But Klein argued to Judge Tom Anderson, who will oversee the trial, that an issue remained that should invalidate any of the incriminating statements his client made that day.

The crux of Klein's argument is that Fultz's Sixth Amendment right to counsel was violated and therefore the covert questioning was illegal.

According to Klein, Fultz was taken into custody after a criminal complaint was filed, an action that should have triggered the appointment of an attorney to represent him.

"This taints the entire investigation," Klein said, adding. "He didn't have counsel to advise him — it's that simple."

Deputy District Attorney Jesse Wilson, however, argued that there was no impermissible "softening up" of the suspect.

Anderson said he would take the issue under submission and expected to have a ruling ahead of the pre-trial conference already set for Friday.

Jury selection is expected to get underway Tuesday, with opening statements to the jury on Sept. 13.

Contact reporter Liz Kellar at 530-477-4236 or by email at lizk@theunion.com.