Tahoe Daily Tribune
SOUTH LAKE TAHOE Ñ El Dorado County prosecutors sought a search warrant Thursday to determine whether alleged serial killer Joseph Nissensohn was able to view pornography while in custody at El Dorado County Jail in South Lake Tahoe.
Earlier this month, jail staff allegedly found Nissensohn looking at sexually explicit photos on a computer in a classroom at the jail he uses to examine case material
During a Thursday hearing, defense attorney Tom Wirtz contended the photos are part of evidence Nissensohn is legally allowed to view to assist in his own defense.
But El Dorado County deputy district attorney Dale Gomes disagreed, saying the material is not part of the caseÕs discovery.
Nissensohn is charged with the 1989 killing of South Lake Tahoe 15-year-old Kathy Graves and the 1981 slayings of Seaside teenagers Tammy Jarschke and Tonya Jones. He could face the death penalty if convicted.
In July 2008 Superior Court Judge Suzanne Kingsbury restricted NissensohnÕs access to sexually explicit police photos of the Monterey County crime scene to when defense attorneys are present. Gomes said he requested the restricted access to protect the victims and their families, as well as prevent Nissensohn from using the photos for sexual pleasure.
The photos Nissensohn allegedly viewed on the jail computer earlier this month did not include photos of the Monterey County crime scene, but were evidentiary photos showing nude or semi-nude photos of men and women.
The attorney said he asked Nissensohn to review the photos because he was the only one who could determine when and where they were taken, as well as who was pictured.
NissensohnÕs ex-wife, Cheryl Rose, is among the people in the photos. The photos could be used to show she did not live in fear of Nissensohn, Wirtz said.
But Gomes said the photos jail staff saw Nissensohn viewing are not part of the discovery in the case.
The warrant will allow for the examination of the computer and a portable hard drive Nissensohn has been allowed to use to view case documents, Gomes said.
Inmates are typically required to view discovery via paper documents, but defense attorneys have been allowed to give Nissensohn the portable hard drive containing court files because of the large volume of documents in the case.
The prosecutor will use information gathered through the warrant to determine if Nissensohn violated jail rules, state law and possibly show deviant sexual proclivities by Nissensohn, such as rape fantasies, Gomes said.
How Nissensohn could gain access to explicit material not included in the discovery in the case is unclear. The computer at the jail does not have an Internet connection.
A special master, someone who assists peace officers in conducting searches for documentary evidence under the control of attorneys, physicians, psychotherapists and clergy members, will be sought to examine GomesÕ allegation.
On Thursday, Kingsbury clarified the July 2008 order after Wirtz contended its wording was overly broad and prevented Nissensohn from properly assisting attorneys in his defense.
Gomes agreed to individually mark photographs from the Monterey County crime scene Nissensohn should not be allowed to view outside of the presence of defense attorneys.
Other court news
Several other defense motions were also heard during separate hearings this week.
On Wednesday, Judge Robert Baysinger denied a defense motion to dismiss charges against Nissensohn. The motion contended NissensohnÕs constitutional rights were violated during previous hearings and a preliminary hearing in February did not include enough evidence to hold Nissensohn for trial.
On Thursday Kingsbury directed Gomes to contact authorities in Florida to determine whether additional information is available regarding RoseÕs death. Rose, 52, was found dead in her Ocala, Fla. home on July 6, according to an article in the Daytona Beach News-Journal.
If tissue samples from RoseÕs body are available, they should be preserved, Wirtz said.
RoseÕs credibility as a witness could be undermined if she was found to be abusing drugs in the time leading up to her death, Wirtz said.
Testimony Rose gave during a February preliminary hearing will be included in the record during trial and Gomes has said her death will not prevent a successful prosecution of Nissensohn.
During a break in ThursdayÕs proceedings, Wirtz and Gomes argued over the pace of the case, with Gomes pushing Wirtz to establish a more firm timeline of pre-trial motions.
The defense plans to file several more motions, including a change of venue, the separation of the South Lake Tahoe charges from those in Monterey and one contending due process has been violated.
Both attorneys at ThursdayÕs hearing, as well as Kingsbury, acknowledged a scheduled January trial start date is likely infeasible.
After Gomes expressed further frustration with defense progress, Kingsbury ordered Wirtz to develop a timeline of how long each pre-trial step is expected to take prior to the caseÕs next hearing on Oct. 14.