Ex-prosecutor denies withholding evidence in murder case

By: SCOTT MARSHALL - Staff Writer
Judge Casserly writes that he shared medical records with defense attorney | Wednesday, January 9, 2008 11:43 PM PST ∞

NORTH COUNTY -- A Superior Court judge, who as a prosecutor 14 years ago in Vista obtained a murder conviction in a high-profile case against a doctor, has adamantly denied allegations that he withheld the victim's medical records from the doctor's trial defense attorney.

Current attorneys for Samson Dubria, 44, have alleged in court documents that the medical records could have supported Dubria's claims of innocence but were withheld by prosecutors until 2006.

A Superior Court judge in July ordered the district attorney's office to show why Dubria's first-degree murder conviction should not be set aside. Prosecutors filed their response Friday, arguing several reasons why Dubria's conviction should stand. The documents prosecutors filed included a written declaration signed under penalty of perjury from Judge Timothy Casserly.

Casserly was the deputy district attorney who prosecuted Dubria at his trial in 1993. Casserly became a judge in 1996.

The state's canons of judicial ethics prohibit judges from making public comments about pending proceedings in any court.

Dubria, 44, is serving life in prison without parole for the Aug. 16, 1991, death of Jennifer Klapper, 20, of Cincinnati at the Allstar Inn in Carlsbad. Dubria and Klapper were traveling together in Southern California and stayed at the motel.

Prosecutors contended that Dubria gave Klapper chloroform, an anesthetic drug, with the intent of raping her and accidentally administered a fatal dose. Dubria said at his trial that he did not know how Klapper died and denied having chloroform.

Dubria's attorneys allege in court documents that Klapper died from a sudden cardiac arrest. Dubria's attorneys allege that medical records they obtained from the district attorney's office in 2006 show Klapper's medical history included episodes of rapid heart beat and heart palpitations.

Casserly wrote that he shared Klapper's medical records with Dubria's trial defense attorney as soon as he saw them. Casserly wrote that he did not receive any of Klapper's medical records until her personal doctor brought them with him to court on the day he was scheduled to testify.

Casserly wrote that he recalled being under the impression that Klapper's doctor, Michael Jennings, believed she was in good health. Casserly did not need medical records for that and did not subpoena them, he wrote.

When Jennings came to court, he brought Klapper's medical records with him, and Casserly informed Dubria's trial attorney, who received a copy of the records, Casserly wrote.

Casserly wrote that Dubria's trial attorney had the chance to go over the records with Jennings before he testified, but that the defense attorney never raised any concern about the records, nor did he say he needed more time to cross-examine the doctor or have his experts review the records, Casserly wrote.

"Any express or implied allegation that I withheld discoverable material from the defense in this case is patently false," Casserly wrote.

Deputy District Attorney Richard Armstrong argued in the documents filed Friday that the medical records also point to Dubria's guilt more than his innocence. Glenn Wagner, the county's medical examiner, wrote in a declaration that if Klapper had a heart condition, it would have made her more susceptible to heart damage from chloroform and that the chloroform levels found in her system were sufficient to cause death.

Tracy Emblem, one of Dubria's attorneys, said Wednesday that she and her colleagues were still in the process of going through the district attorney's documents "piece by piece" and will reply to them in additional documents that likely will be filed in three or four months.

"We have plenty of stuff to say," Emblem said.

Then, a judge will decide whether to conduct a hearing or resolve some or all of the issues based on the documents, attorneys involved with the case said.

A visiting judge from outside San Diego County will decide the issues because Casserly is a Superior Court judge now, Armstrong said.

-- Contact staff writer Scott Marshall at (760) 631-6623 or smarshall@nctimes.com.