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A defense motion to exclude evidence taken from recorded jailhouse telephone conversations failed Thursday in a Marin County murder case going to trial for the second time. Superior Court Judge John Sutro Jr. denied the motion, which argued that a possible phone system malfunction deprived defendant Darrell Hunter of hearing the automated warning that his phone calls were being recorded. Sutro said he based his decision to deny the motion in part on the testimony of an earlier prosecution witness � a former jail officer � who said he personally tested the phone system and confirmed it worked, according to Hunter’s attorney, San Francisco solo Gary Dubcoff. Dubcoff said he didn’t plan to file a motion to reconsider and “respectfully disagreed” with the judge’s ruling. Deputy District Attorney Otis Bruce Jr. declined to comment on the ruling. Both the defense and prosecution would not describe what exactly was said in Hunter’s taped jailhouse conversations. But in an earlier search warrant seeking tapes of the conversations, detectives argued the tapes showed a pattern of communication with other suspected co-conspirators in the murder. Hunter is accused of murder as a co-conspirator in the 1997 plot to kill Ronnie Small Jr. Small allegedly was killed at a party in Marin City, after Hunter and another man burst into the gathering and fired shots, according to court records. Hunter did not fire the shot that killed Small, but was convicted in 2000 of murder and several other charges arising from the incident. Dubcoff succeeded in getting the convictions reversed five years later on appeal, based on juror misconduct. In January and February of 1997, Hunter made multiple phone calls from jail to his mother and Iman Kennedy, another suspected co-conspirator in the murder, according to the prosecution’s court filings. On Thursday, one of the two inventors of the telephone system at Santa Rita Jail in Dublin, where Hunter was being housed, testified that the system may have had a glitch around the time Hunter’s conversations were being taped. “I hate to say this about my baby, but it was not 100 percent foolproof,” said Paul Wakefield, a patent holder for the jail’s telephone system. “Most systems are susceptible to failure at some point.” Wakefield explained that a number of factors � such as old and new hardware not working well together � could have caused the warning not to play. The jail had the option of switching the warnings on and off, Wakefield said. But upon cross-examination by Bruce, Wakefield acknowledged he had never visited that particular jail and could not testify that the warning failed to play in those particular calls Hunter made in 1997. “You testified to a number of ifs and could have beens,” Bruce said. A prosecution witness, an AT&T customer service manager, had previously testified that a receipt documenting the times of Hunter’s phone calls proved that the defendant had been notified through the phone system that his calls were being recorded. Thursday’s hearing was just a small part of a convoluted case with more than 21,000 pages of records and 280 listed witnesses for the prosecution. The trial is set to start in January.

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