Prosecutors Fail to Locate Ernst Brother

The case of the woman accused of killing her twin infants by leaving them in a car for five hours last summer took a detour Monday when a key prosecution witness--the defendant’s brother--could not be located.

At a hearing that lasted much of the day, the attorney for Beverly Jean Ernst, 26, argued against letting prosecutors read to the jury the brother’s testimony from a previous hearing.

Steven Ernst’s testimony is important to the prosecution’s case against his sister, who is accused of leaving the 3-month-old twins in her car, with the windows up, from shortly after 7 a.m. until shortly after noon on July 20, 1986. During this period, Beverly Jean Ernst was sleeping in a nearby storeroom with her boyfriend.

Ernst is charged with involuntary manslaughter and felony child endangerment, and the prosecution hopes to show that she had been warned before about leaving the babies in her car, unattended, in the heat. But the evidence about the warnings came from Steven Ernst, who made such statements to police and testified about the warnings at her preliminary hearing last October.

Now that the trial has begun, Deputy Dist. Atty. Wallace J. Wade wants the brother to testify in person before the jury about the warnings.

Superior Court Judge Jean H. Rheinheimer said she would decide on the prosecution’s request to read in Steven Ernst’s earlier testimony if he still isn’t in court. But the judge criticized the district attorney’s office for making only a “superficial” effort to locate the brother and indicated that she will probably bar introduction of his earlier testimony unless prosecutors can show they made a serious effort to locate him Monday night.

Wade did not accuse the brother Monday of deliberately hiding from him. But he told the court that circumstances surrounding Steven Ernst’s absence are “highly unusual.”

Testimony from three prosecution investigators showed that repeated attempts were made to reach Steven Ernst at the Anaheim residence he shares with his sister and their mother.

Last Tuesday, with the trial already started, investigators who went to the house were told by Beverly Jean Ernst that her brother was a patient at South Coast Medical Center in South Laguna.

On Thursday, prosecution investigators were told by hospital authorities that Steven Ernst was there and that his attending physician would not be in to see him until Monday.

Last Friday, hospital officials refused to let investigators serve a subpoena on Steven Ernst, according to testimony before Judge Rheinheimer Monday. So investigators subpoenaed Johanna A. Allard, the hospital records custodian.

Allard showed up in court Monday with an attorney. Prosecutor Wade sought a court order from the judge which would let prosecutors enter the hospital despite the wishes of the hospital’s administration.

But after considerable debate over the issue, Allard eventually volunteered that Ernst had been discharged on Friday. A startled Wade noted that Steven Ernst had been discharged by the doctor who had told investigators before that Ernst’s own doctor would not be back until Monday.

Wade indicated to the court that Steven Ernst must have known he was needed to testify.

“He lived with the defendant; he certainly would have known when the trial was,” Wade said.

But Rheinheimer agreed with Deputy Public Defender Dennis P. O’Connell that investigators who went to see Steven Ernst should have left their card or a phone number, or a message that prosecutors wanted him to appear in court.

“I am not impressed with the diligence (of the prosecution),” Rheinheimer said.

Steven Ernst had appeared at the preliminary hearing voluntarily, without a subpoena. Wade said he had no reason to think the brother would not be a cooperative witness, and that he was unaware when the trial began that Ernst would be so difficult to locate.

The prosecution expects to rest its case against Ernst today.

Beverly Jean Ernst’s defense is that the boyfriend, Scott Morrow, had agreed to watch the children while she took a nap. Morrow denied that in his own testimony but admitted that he lied before about not inviting her into the storeroom while the babies stayed in the car.