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Defense points to 3 others

This story originally appeared January 18, 2007

By JESSICA LOGAN, Californian staff writer
e-mail: jlogan@bakersfield.com | Friday, Feb 16 2007 12:21 PM

Last Updated: Friday, Feb 16 2007 12:21 PM

An unidentified trio may have killed the Harper family, not Vincent Brothers, the suspect's defense attorneys wrote in a motion filed in Kern County Superior Court on Wednesday.

Earnestine Harper; her daughter, Joanie Harper; and Joanie Harper's three children, Marques, Lyndsey and Marshall, were found dead inside their house in 2003.

Brothers was charged with the killings in April 2004 and has pleaded not guilty.

After more than two years of investigation, the defense found two witnesses who say they saw two men and a woman around the Harper house at the suspected time of the killings.

But the defense blacked out the names of the witnesses and other important facts from the motion to keep that information away from the media, according to the motion.

One of the witnesses said the woman looked like Kelsey Spann, the woman who found the Harpers' bodies and a close friend of the family. Spann was the last to see them alive.

But the man couldn't name Spann.

Spann could not be reached for comment Wednesday.

A defense attorney asked Kern County Superior Court Judge Michael Bush to allow the defense team to present this information at trial.

Deputy District Attorney Lisa Green was not able to discuss this motion because a gag order prevents attorneys on the case from discussing details with the media.

In November, a witness told a defense investigator that on July 6, 2003, he saw Joanie Harper talking to two men and a woman around the Harper house.

About a half-hour later, the neighbor heard a shot and saw a flash coming from inside the Harper house, the motion states.

The neighbor said he slept in his car that night and noticed one of the men return and go into the Harpers' backyard. Ten minutes later, the man came out and said "they're all done," the neighbor is quoted as saying in the motion.

The neighbor said in the motion he has seen these people in the neighborhood before and said they are "very dangerous."

In December, a second witness said he too saw two men and a woman at the front door of the Harper house around dusk on July 6, 2003, the day the Harpers are believed to have been killed. Then one of the men went into the backyard, the second neighbor said.

Both of the men said the trio did not include Brothers, the motion states.

The defense would also like to introduce evidence that DNA not belonging to the Harpers or Brothers was found in the Harper house.

The DNA was found on a gum wrapper, an AC adapter, a phone base unit and at the tip of a glove, according to the motion.

The prosecution believes DNA evidence found in the tip of a glove belongs to Brothers. Bush has not yet decided if this evidence will be presented to the jury.

The defense also wants to present evidence that unidentified "prints" were found in the house and shoe prints were found outside the house, according to the defense motion.

In a second motion, the defense asked to keep evidence that Brothers may have been an "unloving" stepfather during a marriage previous to his marriage with Joanie Harper out of the trial.

The defense does not want his stepdaughter to testify that Brothers separated her and another girl physically during a fight, administered "physical discipline" when the stepdaughter almost knocked over a Christmas tree, looked at her while naked in the shower and verbally threatened her, according to the motion.

Defense attorney Michael Gardina argued in the motion this could be prejudicial to Brothers.

The prosecution believes Brothers was an unloving father to the three children he is accused of killing and this was a pattern in his life and a motive for the murders.

The defense also wants to keep the prosecution from arguing that Brothers had affairs because the defense believes the affairs never happened.

Bush has said he will have to hear further evidence before he can rule on this motion.

The defense also wants to keep the jury from hearing from three witnesses who place Brothers in Bakersfield on July 4, 2003.

The defense believes it is impossible for Brothers to have been in Bakersfield at this time.

Green believes Brothers flew to Ohio to establish an alibi, then drove back to Bakersfield to commit the killings.

But the defense said in its motion that Brothers was in Ohio and visiting siblings in neighboring states around the time of the killings.

These motions will lay the groundwork for the upcoming trial, which is expected to begin in February.

Bush is expected to hear the defense's motion to move the case to Los Angeles County today. The defense fears Brothers can't get a fair trial in Kern County because of immense publicity.