My private attorney finally filed a "Writ of Err Corum Nobis" (notice of a serious error in facts) with the Superior Court of Santa Clara County in January of 1992 requesting that the court temporarily set aside my "Nolo Contendere" (No Contest) Plea Bargain for the sole purpose of allowing the original tape evidence to be analyzed by a forensic tape expert. We stated that we believed that major alterations had been made to those tapes, and in support of those accusations we presented our evidence to show that certain portions of conversation on the tape seemed in the wrong order, and that certain background sounds were out of place. We supplied marked up transcripts of the tape evidence, showing all of the places we felt that edits had been made.
The single piece of evidence used to discount our claims was the following sworn statement by Police Officer Brenda (Wells) Herbert, the undercover policewoman who had used the identity of Barbara on the phone. In that statement she declares that the evidence tapes were always in her possession and were not altered in any fashion (as if a police officer who altered evidence would actually admit it). Because of this sworn statement the writ was denied and the tapes were not released to be analyzed. This decision was then appealed to a higher court, where the lower court's decision was reaffirmed. In July of 1995 the "original" evidence tapes were routinely erased for re-use.
Note: At the time of this sworn statement, we had not acquired the proof of the additional letters.
Please excuse my taking certain liberties in not showing portions of this document here.
This court document is marked "EXHIBIT A"
Click on the Hot Spots within the document to learn the truth.
GEORGE KENNEDY, DISTRICT ATTORNEY CYNTHIA SEVELY, DEPUTY DISTRICT ATTORNEY COUNTY GOVERNMENT CENTER, WEST WING 70 W. Hedding Street San Jose, California 95110 Telephone: (408) 299-7400
Attorneys for The People
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA
PEOPLE OF THE STATE OF CALIFORNIA, NO. 139218 Plaintiff, DECLARATION OF OFFICER -vs- BRENDA HERBERT
JOHN HARVEY WEBSTER, Defendant. __________________________________/
I, Brenda Herbert, hereby declare that I am a police officer
employed by the City of San Jose. I have been a police officer
since 1975. In February of 1990, I was currently assigned to the
Child Exploitation Unit of the San Jose Police Department working
in an undercover capacity. Working in this capacity, I received
information that an individual by the name of John Harvey Webster
had responded to an ad placed in a magazine called Swingers'
Digest. This ad was placed by an individual working in an
undercover capacity for a federal agency. This ad stated:
White female with children, seeks the right man who understands my needs and those of my children, society does not. Please be discreet. Ad digest #FDG-30622
I was aware that Swingers' Digest is a magazine that contains ads
for adults wishing to engage in every sexual act imaginable.
[******** Page Break *********]
John Harvey Webster responded to this ad and wrote three
letters indicating his interest in having sex with children. John
Harvey Webster wrote his phone number in one of these letters. On
February 23, 1990, I assumed the identity of the person placing
the ad and telephoned John Harvey Webster at his residence. This
telephone conversation was recorded. Prior to this telephone
conversation, I was aware that John Harvey Webster had two
children, a daughter age sixteen and a son age fourteen who live
in Washington with his ex-wife based upon the information
contained in the first letter written by John Harvey Webster. In
this conversation, John Harvey Webster talked about his daughter,
[***** Deleted lines -- see note 1 below *****]
On March 5, 1990, I again telephoned John Harvey Webster.
This conversation was recorded. In this conversation John Harvey
[***** Deleted lines -- see note 2 below *****]
[**************]. John Harvey Webster also fantasized about [***]
[********]. During the course of my investigation, I told John
Harvey Webster that I had three children ages twelve, ten, and
three. He stated he had a fantasy [******** Deleted text *****]
[****** Page Break ******]
[****** Deleted Lines -- fantasy ******]
On March 7, 1990, I again telephoned John Harvey Webster.
This telephone conversation was recorded. He stated that he was
fantasizing about [****** Missing Words -- fantasy ******]
[****** Missing Lines -- fantasy ******]
On March 8, 1990, I again telephone John Harvey Webster.
This telephone conversation was recorded. He stated he wanted to
take a camping trip with my family to a nudist beach. There it
would be easy for the children to accept taking nude showers
together. He stated a camping trip could take place on the fourth
of July in Washington. At the time he would separate his two
children; his son to be dropped off with me at a motel and that he
would have his daughter to himself.
On March 9, 1990, I met with John Harvey Webster at Denny's
Restaurant at Capitol and Berryessa. This was to confirm the
offer of his children for sexual purposes. At that time he was
arrested. Each of these phone conversations were recorded and
were not altered in any fashion. I personally made copies for the
[***** Page Break *****]
defense which was subsequently given to John Vaughan. During
these phone conversations, I took notes and used these notes to
refresh my memory at the preliminary hearing when I testified on
June 18, 1990. A copy of my notes were given to John Vaughan by Deputy District Attorney Cynthia Sevely prior to the preliminary
I declare under penalty of perjury the foregoing is true and
correct. Executed this 3rd day of January, 1992, in San Jose,
Note: In this sworn statement Officer Brenda (Wells) Herbert supposedly gives the dates of all the phone calls (Feb. 23rd, Mar. 5th, Mar. 7th, Mar. 8th). Yet, we now know that there also was a phone call from her on the morning of March 3rd, 1990. That phone call officially didn't occur but portions of my talking from that call were used to replace her talking on the other tapes in order to make her sound like only a passive listener. [See Big Mistake in Editing]
Note 1: Deleted item refers to exaggerated discussion of incidents in the past that even if true were clearly past the 6 year statute of limitations; ie. nothing that I could be arrested for (see "Why I am a Politically Incorrect Parent" within the introduction of The Scam).
Note 2: Deleted item refers to details of the "Gee it would be nice" fantasy scenario of how we might teach my son about sex using show and tell (see "My Actual Heinous Crimes" off of The Scam main menu).
with a Politically Incorrect group -- people that openly enjoy sex. In reality very few of the ads in a swingers magazine are concerning illegal activity, and most of those that are, are between consenting adults but where there is a hint that money is required (ie. "Looking for Generous man", and many of these are probably police entrapments).
The implication is that all of the ads are about sexual perversions. But on the tape evidence supposedly of Wednesday March 7th I talked about a previous ad in the Swinger Digest that I had answered:
J}But um.. I'm a programmer, and she's a programmer. (B} uh huh) Ah.. Her ad was basically that she was looking for somebody that was actually into programming and..
B} In.. one of those magazines ?
J} Yea, right. It says "Not just interested in the guy's [sexual organ] size", and all that..
The Scam was to get the victim into a phone sex situation where he would be trying to fulfill her demands for fantasies which got weirder and weirder. I, being a trusting soul, would come up with anything she demanded as long as she said the magic word: That it was a fantasy.
In total, on the evidence tapes (even after editing by police) the word "fantasy" (& fantasizing, etc.) was used fifteen times. For example:
B} Can we.. ah look, can we finish my fantasy here for a second.
J} Yea, sure go ahead.
B} With [* Name of boy living at my household - beeped out by me*]. So, if I wore something that zips down the front, what.. what would happen?
(Note: some reduction of inter-word timing in this .WAV file, to reduce file size)
Prosecution presented the argument that the intended purpose of the relationship between myself and "Barbara" was for the realization of fantasies, therefore supposedly all of the expressed fantasies were things that I intended "Barbara" and myself to do in the future.
Apparently, to support this type of argument, some of the tape edits that were done were taking segments of conversation, out of context, and putting them immediately after a fantasy I expressed to make it sound like I intended to carry out that fantasy.
the following snippet of conversation actually came from the phone call of March 8th immediately following my talking about how I would like to spend some time alone with my daughter during my visitations, instead of in the presence of her mother or step father.
In the evidence tapes it showed up on the March 5th tape immediately following a far out sexual fantasy involving my daughter that I expressed saying "This is a fantasy". Effectively this edit transformed a desire on my part for time alone with my daughter, into the appearance of a desire to carry out the expressed fantasy. It transformed a question by "Barbara" of whether or not my daughter would want to be alone with me, into a question of whether or not my daughter would trust me enough to be tricked if the fantasy was to be carried out.
Was: (Talking about how I wanted time alone with my daughter)
Changed to: (Sexual Fantasy where daughter would be tricked into having a sexual experience)
B} You don't think she would remember um.. whats gone on in the past.. between you two?
J} She.. She ah.. shes affectionate to me, ok.
Incidentally, several sentences later I answer her question with:
J} She doesn't have unpleasant things from th.. from the past.
Of course, most of the expressed fantasies had a certain amount of "suspend disbelief" or a jump in logic. For example, the camping trip to Washington where we would pick up my children when in reality I only had supervised visitation.
This clearly was a "Gee it would be nice" fantasy with about as much chance of happening as me winning the lottery. While technically I had full visitation rights, in 1983 during my visitation with my children, I took them along with my girl friend and her children, to a nude beach in Santa Cruz, California. Afterwards, my ex-wife, their mother, discovered this and convinced them that I was trying to corrupt them. She got them to agree to require that all my visits be supervised visitation [see transcript of Prelim: Ex-wife discussing visitation]. .
Since I stick to my libertarian principles even when results are painful, I did not believe that I had the right to use the force of law to force my children to be with me under conditions that they did not want. So for the six and a half years preceding this whole entrapment incident, I had nothing but supervised visitation with my children.
The actual statements that I made in the phone conversations to "Barbara" were that we could go on a camping trip to the state of Washington. That during that time I could have my visitation with my kids, and maybe with "Barbara" being there with her kids, my ex-wife would let me take my children with us. In my preliminary hearing, when my ex-wife witnessing against me, she stated in effect that it would have to be a cold day in hell before she would ever allow me to take my children anywhere without either herself or her husband being present. And of course I had realized this (and even eluded to it in the letters).
Also note that this statement about what we might do in the future, if our relationship developed, was supposedly made on March 8th about what we might be able to do for the fourth of July weekend, four months away.
Unfortunately, the way the California law is written, it doesn't matter whether or not an "offer" can be carried out. So whether I would spend the next ten years in prison would depend on how a jury would interpret the law and whether they thought my "maybe" scenario was an offer.
Was not to confirm an offer of anything. Brenda states the reason for our meeting so clearly in the evidence tape of the evening of March 8th.
B} So I'm thinking that maybe we could meet at a coffee shop or something, and just sort of get to know each other, (J} Okay.. ) Thats all right ?
J Yea, sure. Um..
Remember that the prosecutions "story" was that we were meeting to transact child pandering
while the real story was two people ( who supposedly shared values on how to best raise children) meeting to decide if there was enough chemistry there to start a physical relationship.
Although technically her wording is such that she might later claim that she didn't mean to imply that I only wrote a total of three letters, this statement is part of the cover-up of the fact that I wrote eight letters (or at least seven, by police admission in sealed document) and that the undisclosed letters are the ones that would refute the prosecution's version of the story.
It is very likely that Officer Brenda Wells (later married, changing her name to Herbert) never actually saw the additional letters, possibly so that she could more easily make just such a sworn statement. The additional letters being held by the US Postal Inspection Service, or at least by her supervisors.
However, there is evidence that she was at least aware of the additional letters. In the evidence tape supposedly of the phone call on Friday February 23, 1990, I mention the additional letters and their contents and she states that she has not yet received them (ie. her "friend" in Poway CA., who supposedly was letting her use his P.O. Box, had not yet forwarded them) :
J} And then I sent one the day I got back from the trip. (*Feb 18th*).
B} Oh.. I don't have that one either.
And on the subsequent tape of a call on March 5th I ask "Barbara" if she has gotten the additional letters. She remarks that she had:
B} Yea, I did.
Note that she would not have said this without knowing that those extra letters had been received. Otherwise it would have been an unacceptable risk to blowing her cover. If I had not actually sent them or had sent them to the wrong address (where the letters would be returned as undeliverable) I would know that she was lying.
in having sex with children.
This is a continuing theme of this whole entrapment mentality: Not acknowledging the difference between a caring though politically incorrect parent talking about how he would like to raise his children, and a pedophile looking for a helpless victim to rape and abuse.
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