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Trial of David Westerfield, criminal defense trial San Diego California
Feldman: criminal defense lawyer
Index transcript Westerfield criminal defense | Westerfield criminal defense - Home
TRIAL Day 29- august 7th 2002
Closing arguments - Defense Feldman -4
9571
1 THE COURT: OKAY. WELCOME BACK, LADIES AND GENTLEMEN.
2 ALL RIGHT. MR. FELDMAN.
3 MR. FELDMAN: THANK YOU, YOUR HONOR.
4 SOME CLARIFICATIONS. GIVE US AN HOUR TO THINK,
5 RIGHT?
6 WITH REGARD TO THE TESTIMONY OF DENISE KEMAL THAT
7 DAMON VAN DAM NEVER CAME DOWNSTAIRS, THOSE WORDS WERE NOT
8 UTTERED IN THE COURTROOM THROUGH HER MOUTH, RATHER SHE WAS
9 IMPEACHED BY OUR PRESENTATION OF THE PRIOR INCONSISTENT
10 STATEMENT THAT SHE MADE TO DETECTIVE GERBACK. YOU'LL REMEMBER
11 THAT DENISE TESTIFIED SHE TOLD FRANK, AND SHE REFERRED TO
12 DETECTIVE GERBACK AS FRANK, EVERYTHING THERE WAS TO TELL. WELL,
13 WHAT SHE TOLD FRANK, WHO IT TURNS OUT TO BE DETECTIVE GERBACK,
14 IS THAT DAMON NEVER CAME DOWNSTAIRS.
15 SO WHEN YOU LOOK TO EVALUATE HOW ACCURATE THE
16 TESTIMONY OF MS. KEMAL WAS, LOOK TO DETECTIVE GERBACK SO THAT
17 YOU WILL UNDERSTAND -- ALSO I THINK SOME OF DETECTIVE HALL -- SO
18 THAT YOU'LL UNDERSTAND UNDER DIFFERENT CIRCUMSTANCES PEOPLE SAY
19 DIFFERENT THINGS. SHE TESTIFIED AFTER SHE HAD THE OPPORTUNITY
20 TO CONSIDER, TO BE PREPARED, TO GO THROUGH OTHER HEARINGS. WHAT
21 SHE SAID TO YOU IN COURT WAS NOT WHAT SHE TOLD YOU WHEN THE
22 EVENTS WERE FRESHEST IN HER MIND.
23 WITH REGARD TO A STATEMENT I MADE TO YOU CONCERNING
24 BRENDA VAN DAM AND WEARING A RED SWEATER, THE TESTIMONY AT TRIAL
25 WAS THAT ON DAD'S, I BELIEVE ON FEBRUARY THE 1ST, SHE WAS
26 WEARING A RED SWEATER. HOWEVER, IN COURT I CAN'T RECALL -- MY
27 RECOLLECTION IS IN COURT SHE HAD AN ORANGE SWEATER ON.
28 MR. DUSEK: OBJECTION, THERE IS NO RECORD OF THAT.
9572
1 THE COURT: THE RECORD SPEAKS FOR ITSELF, LADIES AND
2 GENTLEMEN. YOU'RE GOING TO BE THE ONES THAT ARE GOING TO
3 DETERMINE ALL OF THIS. THIS IS JUST ARGUMENT.
4 ALL RIGHT. GO AHEAD, MR. FELDMAN.
5 MR. FELDMAN: AND YOU'LL SEE ON THAT ISSUE OF IT'S JUST
6 ARGUMENT, BOTH SIDES. AND SO I GOT THIS -- I'M TELLING YOU,
7 FOLKS, AS SOON AS I SIT DOWN THERE'S GOING TO BE SOME FIREWORKS.
8 THEY'RE GOING TO START LEVELING ON THE OTHER SIDE. THAT'S
9 COMING, ALL RIGHT. THIS IS PART OF THE SYSTEM. IT'S AN
10 ADVERSARY SYSTEM. WE DON'T FIGHT WARS IN OUR SOCIETY IN THE
11 STREETS. THIS IS WHY I USED THE WORD "TALIBAN" YESTERDAY. WE
12 DON'T FIGHT OUR WARS IN THE STREETS. LITERALLY OUR WARS COME TO
13 THE COURTROOM. WE DON'T HAVE LYNCHINGS ANYMORE. WE DON'T HAVE
14 GUN FIGHTS AT THE OKAY CORRAL, WE BRING THEM INTO THE COURTROOM.
15 AND THIS REALLY IS A VERY, VERY ADVERSARIAL INTENSE
16 EXPERIENCE, AND YOU CAN BET THE OTHER SIDE IS LOADING UP. SO
17 KEEP THAT IN MIND. YOU'RE -- YOU'RE THE OBJECTIVE PARTIES, NOT
18 THE LAWYERS. IT'S YOU WHO HAS TO DECIDE THE FACTS, NOT THE
19 LAWYERS. IT'S YOU WHO HAS TO DECIDE WHAT'S ARGUMENT, WHAT'S
20 REAL, WHAT'S NOT, NOT THE LAWYERS. AND THE JUDGE WILL MAKE SURE
21 YOU FOLLOW THE LAW. THAT'S HOW WE'RE STRUCTURED. THAT'S OUR
22 SOCIAL CONTRACT. THAT IS OUR SOCIAL CONTRACT, FOLKS. IT'S HOW
23 WE FUNCTION IN OUR SOCIETY. IT'S WHY WE'RE A DEMOCRACY. IT'S
24 HOW OUR DEMOCRACY WORKS. AND IT'S WHY IT'S SO IMPORTANT EACH OF
25 YOU UNDERSTAND YOUR INDIVIDUAL DUTIES, YOUR INDIVIDUAL
26 RESPONSIBILITIES. THAT'S WHY I STARTED YESTERDAY BY SAYING EACH
27 OF YOU IS EMPOWERED, YOU ARE ALL CITIZENS, WE'RE ALL EQUAL IN
28 THIS COURTROOM.
9573
1 YOU HEARD EVIDENCE THAT, AND I STARTED RIGHT BEFORE
2 THE BREAK, YOU HEARD EVIDENCE ABOUT SOME ALLEGATIONS THAT A
3 TRACKING DOG WAS INVOLVED IN THIS CASE. AND I READ YOU A
4 PORTION OF THE JURY INSTRUCTION THAT THE JUDGE HAS GIVEN YOU
5 CONCERNING WHETHER OR NOT HOPI, NOT CIELO, HOPI WAS A TRACKING
6 DOG.
7 AND YOU LEARNED THAT HOPI HAS NOTHING TO DO WITH
8 THIS CASE EXCEPT INSOFAR AS GEE, THERE'S NOT MUCH ORANGE, IS
9 THERE? I'M NOT SAYING THIS IS ORANGE ACRYLIC BUT THERE SURE IS
10 A LOT OF ORANGE. AND YOU HEARD TESTIMONY IN THIS CASE FROM
11 THEIR WITNESS THAT ORANGE WAS AN UNCOMMON COLOR. BUT IF YOU
12 LOOK AT 181, YOU'RE GOING TO SEE A DOG AND ANOTHER DOG IN "B"
13 AND "D", AND YOU HEARD TESTIMONY THAT AS TO ONE OF THE DOGS THEY
14 DID AN EVALUATION OF THE DOG VEST, BUT YOU DIDN'T HEAR IT AS TO
15 THE OTHER DOG.
16 AND REGARDLESS, WHAT THESE SHOTOS PHOE -- WHAT
17 THESE PHOTOS SHOW IS THE TRAFFIC OUTSIDE MR. WESTERFIELD'S
18 PREMISES. THIS ISN'T JUST A COUPLE OF GUYS WALKING BY. WE SEE
19 DETECTIVE HOLMES, WE SEE MR. FRAZEE, WE SEE PEOPLE WE DON'T EVEN
20 RECOGNIZE, DETECTIVE PARGA. IT'S UNFORTUNATE THAT MR. GRIPP,
21 FRANKLY, COULDN'T MORE CLOSELY GET THE PHOTOS, BUT THESE ARE
22 SCREEN CAPTIONS, THEY'RE NOT THE QUALITY OF REPRESENTATIONS THAT
23 WE GET FROM THE DISTRICT ATTORNEY'S OFFICE.
24 RESOURCES AGAIN. ANOTHER REASON THE BURDEN OF
25 PROOF IS THE WAY IT IS. IT'S BECAUSE OUR SOCIETY RECOGNIZES THE
26 RESOURCES ARE ON THE STATE, NOT THE DEFENSE. IT'S WHY THE
27 BURDEN IS WHAT IT IS. IT'S WHY THEY'VE GOT THE ONLY BURDEN OF
28 PROOF IN A CRIMINAL CASE. IT'S WHY WE DIDN'T HAVE TO SHOW
9574
1 ANYTHING. IT'S WHY WE DON'T HAVE TO PRESENT EVIDENCE. I TOLD
2 YOU IN VOIR DIRE IT WASN'T EVEN NECESSARY FOR ME TO ASK A SINGLE
3 QUESTION, AND IF THE PROSECUTION DOESN'T PROVE ITS CASE, MR.
4 WESTERFIELD'S ENTITLED TO AN ACQUITTAL.
5 SO ON THE 4TH OF FEBRUARY, CIELO GOES TO THE MOTOR
6 HOME AND NOTHING HAPPENS. THEY RUN THE DOGS UP TO HIGH VALLEY
7 AND APPARENTLY NOTHING HAPPENS. ON THE 6TH THEN WE HEAR -- I
8 THINK WE LEARNED, BY THE WAY, THAT AS TO 49, WHICH IS THE CHART
9 I GOT UP, I THINK "A" -- NOW AGAIN THIS IS MY RECOLLECTION, THE
10 RECORD'S GOING TO SPEAK FOR ITSELF, AND I'M SURE COUNSEL'S OVER
11 THE NOON HOUR GOING TO THE RECORD AND THEY'RE GOING TO BE
12 READING YOU OTHER THINGS. "A", MY RECOLLECTION IS, IS A PHOTO
13 DEPICTED AT MR. SHERMAN'S RESIDENCE. I'M NOT SURE THAT ABOUT
14 "C", "D" AND "E" DEPICT THE MOTOR HOME AS IT APPEARED THERE.
15 BUT REGARDLESS, THE POINT IS ONLY THIS -- OR THE POINT IS THIS.
16 IF YOU LOOK AT "A" THAT'S THE COMPARTMENT THAT THE
17 DOG ALLEGEDLY ALERTED ON, THE COMPARTMENT THAT THE DOG ALLEGEDLY
18 ALERTED ON THAT HAD THE SHOVEL, THE SHOVEL THAT MR. WESTERFIELD
19 DUG HIMSELF OUT OF THE DESERT ON. BUT REMEMBER, DANIELLE VAN
20 DAM WAS NOT BURIED, SO THAT SHOVEL CERTAINLY WASN'T USED TO BURY
21 HER.
22 NOW, ALLEGEDLY THE DOGS ARE MOVED AROUND. I THINK
23 THE TESTIMONY WAS THE DOGS WENT INSIDE THE MOTOR HOME. MAYBE
24 THAT'S HOW LAYLA GOT THERE, I DON'T KNOW. THE DOGS WENT IN THE
25 HOUSE. MAYBE THAT'S HOW LAYLA GOT THERE, I DON'T KNOW. THE
26 DOGS WERE IN EVERY SINGLE HOUSE IN THE NEIGHBORHOOD. THAT'S THE
27 EVIDENCE.
28 YOU HEARD TESTIMONY THAT I THINK IN THE MOTOR HOME
9575
1 THERE WERE CARPET FIBERS. WE GOT THAT SAME PROBLEM WITH THE
2 CARPET FIBERS. OKAY, THERE WAS THE ALLEGATION THAT THEY WERE
3 TRILOBAL CARPET FIBERS THAT COULD HAVE HAD A COMMON SOURCE WITH
4 THE VAN -- WITH BRENDA -- I'M SORRY -- DANIELLE VAN DAM'S
5 BEDROOM OR THE VAN DAM'S RESIDENCE, BUT IT'S THE SAME PROBLEM.
6 THERE'S TWO REASONABLE INTERPRETATIONS, ACCORDING TO THE
7 EXPERTS. MA'AM, COULD IT HAVE COME FROM THE SAME PLACE? YES,
8 IT COULD. COULD IT NOT HAVE COME FROM THE SAME PLACE? WELL,
9 THAT'S TRUE, TOO.
10 IF THERE'S TWO REASONABLE INTERPRETATIONS OF THE
11 EVIDENCE, HERE IT IS AGAIN. THE CASE IS ENTIRELY
12 CIRCUMSTANTIAL. THE PROSECUTION IS OBLIGATED TO TRY AND FIND
13 SOME INTERPRETATION OF THE EVIDENCE THAT'S CONSISTENT ONLY WITH
14 THE PROSECUTION THEORY AND INCONSISTENT TOTALLY WITH THE
15 DEFENDANT'S THEORY. AND EACH FACT WHICH IS ESSENTIAL TO
16 COMPLETE A SET OF CIRCUMSTANCES, THAT TRILOBAL CARPET FIBER MUST
17 NOT ONLY BE PROVED BEYOND A REASONABLE DOUBT, BUT I WANT YOU TO
18 LOOK AT IT TO SEE WHETHER OR NOT IT'S NOT ONLY BEYOND A
19 REASONABLE DOUBT SUCH A FIBER, BUT THAT IT'S BEYOND A REASONABLE
20 DOUBT INCONSISTENT. THAT IT ABSOLUTELY HAS TO MATCH THAT WORD.
21 NOT COULD HAVE COME FROM A COMMON SOURCE, MATCH. AND THAT
22 FINDING YOU CANNOT MAKE ON THIS EVIDENCE.
23 SO WE KNOW, WE GOT MORE AMBIGUITY, AND WE ARE IN
24 PURSUIT OF CLEAR AND UNAMBIGUOUS EVIDENCE. THAT'S WHAT THE CASE
25 REQUIRES. BECAUSE IF THE EVIDENCE IS AMBIGUOUS, THE
26 CIRCUMSTANTIAL EVIDENCE INSTRUCTION CONTROLS AND MR.
27 WESTERFIELD'S ENTITLED TO AN ACQUITTAL.
28 THE DOGS. WELL, ACCORDING TO MR. FRAZEE THERE WAS
9576
1 AN ALERT. AND I SAID TO MS. REDDICK, MA'AM, THE ALERT IS CLEAR
2 AND UNEQUIVOCAL. I KNOW ABOUT THE CIRCUMSTANTIAL EVIDENCE
3 INSTRUCTION. YES, YES. AND SO WE INTRODUCE EXHIBITS 154 AND
4 153.
5 NOW, UNDERSTAND JAMES FRAZEE IS ASKED TO RUN HIS
6 DOGS IN THE BIGGEST CASE IN SAN DIEGO HISTORY, THE CASE THAT'S
7 DRAWING THE MOST MEDIA ATTENTION OF ANY CASE IN THE UNITED
8 STATES. HE'S EXCITED. HE GETS TO SHOW HOW WELL HIS DOGS ARE
9 GOING TO BEHAVE. THE ONLY PURPOSE OF THOSE DOGS IS TO GIVE A
10 TRAINED ALERT. AND THEN FRAZEE CLAIMS THERE'S SOME CODE OF
11 SILENCE, THAT IF A DOG ALERTS HE'S NOT SUPPOSED TO TELL THE
12 COPS? HE'S NOT SUPPOSED TO TELL THE LEAD SERGEANT IN THE
13 INVESTIGATION? SHHHHH, THE DOG'S ALERTED BUT WE'RE NOT GOING TO
14 TELL. I'M SORRY, THAT IS ABSURD. THAT IS HIS TESTIMONY.
15 HE FINDS CHILLING INFORMATION, HE SAID. BUT HE
16 DOESN'T SAY ANYTHING ABOUT IT TO ANYBODY. HOW DO WE KNOW?
17 DETECTIVE TOMSOVIC, COME ON BACK. THAT POOR GUY, IN AND OUT, IN
18 AND OUT, IN AND OUT. SIR, WERE YOU PRESENT WHEN FRAZEE RAN THE
19 DOGS AROUND THAT MOTOR HOME? I WAS. AND DID THEY DO ANYTHING
20 UNUSUAL? I DIDN'T SEE ANYTHING. AND DID THEY SAY ANYTHING
21 ABOUT AN ALERT? THEY DID NOT. ANOTHER RED HERRING. THAT
22 SHOVEL IS A RED HERRING, FOLKS. IT'S THE FISH MARKET SMELL
23 AGAIN. IT'S OUT THERE TO GET YOU SUSPICIOUS. IT'S OUT THERE TO
24 GET YOU TO THINK SOMETHING GOT DONE THAT DIDN'T GET DONE. IT'S
25 OUT THERE BECAUSE IF YOU SPIN IT RIGHT IT'S SINISTER, BUT IT'S
26 ONLY A SHOVEL. AND IT WAS USED, AS WE SAW, TO DIG MR.
27 WESTERFIELD OUT OF A HOLE IN THE DESERT.
28 FURTHERMORE, AT THE TIME MR. FRAZEE MADE THIS
9577
1 CHILLING DISCOVERY THE BODY HADN'T BEEN FOUND YET, SO HE THOUGHT
2 HE WAS ABOUT TO CRACK THE CASE. HOW EXCITING. HOW REALLY
3 WONDERFUL. HE GOT SO EXCITED, HE GOT SO, SO TREMENDOUSLY PROUD
4 OF HIS DOGS THAT HE WROTE AN E-MAIL TO MARIA ZIRCONI, AND HE
5 SENT IT TO A COUPLE OTHER FRIENDS, AND HE CALLED IT A SECRET
6 MESSAGE. PRETTY COOL, HUH? A SECRET MESSAGE. "I'M BUSTING
7 WITH PRIDE," HE SAYS. "THEY ASKED ME TO SENT HOPI. I CAN'T SAY
8 WHAT HIS REACTION IS." WHAT? "I WASN'T SURE. HE MIGHT HAVE
9 BEEN GIVING AN ALERT."
10 READ IT. READ IT. TAKE THIS TO THE JURY ROOM. "I
11 WASN'T SURE." WHAT HIS DOG WAS DOING. I'M SORRY, THE DOGS ARE
12 TRAINED TO GIVE A CLEAR AND UNEQUIVOCAL ALERT. THIS MAN COMES
13 BEFORE YOU, SAYS THE DOG'S ALERTED BUT HE'S NOT EVEN SURE, TO
14 HIS TRAINER, TO DETECTIVE TOMSOVIC. BUT I'VE TOLD YOU, PEOPLE'S
15 MEMORIES HAVE A WAY OF CHANGING IN THIS CASE. BY THE TIME HE
16 GETS TO THE WITNESS STAND, BOY, OH BOY, HE'S RIGHT ON THE MONEY,
17 THE DOG'S ALERTED. BUT THAT'S NOT WHAT REALLY HAPPENED. AND
18 YOU NEED TO KNOW WHAT REALLY HAPPENED, NOT WHAT THE WITNESSES
19 WANT YOU TO BELIEVE HAPPENED.
20 AND THEREIN LIES THE DIFFICULTY OF YOUR JOB,
21 BECAUSE AS YOU EVALUATE THE CREDIBILITY, YOU'RE DIRECTED TO
22 CONSIDER -- I COVERED THE CHART -- THE PRESENCE OR ABSENCE OF A
23 FACT. DID IT REALLY HAPPEN. NO. YOU KNOW REDDICK -- THEY'RE
24 GOING TO SAY REDDICK WAS THERE. TOMSOVIC WAS THERE. HE WAS THE
25 DETECTIVE. HE WAS THE RESPONSIBLE PARTY. HE WAS WORKING UNDER
26 SERGEANT HOLMES. THIS MAN IS A VETERAN HOMICIDE DETECTIVE.
27 THESE GUYS, I'M TELLING YOU FOLKS, THERE IS NO
28 QUESTION LAW ENFORCEMENT DID A GREAT JOB IN THIS CASE. THESE
9578
1 GUYS KNOW WHAT THEY'RE DOING. NOT ONLY DO THEY KNOW WHAT
2 THEY'RE DOING, THEY WERE REALLY EXQUISITELY CAREFUL IN THIS CASE
3 AS BEST THEY COULD BE, AS BEST THEY COULD BE. SO THERE'S NO
4 WAY, UNLESS THE PROSECUTION CALLS TOMSOVIC A LIAR, FOR YOU TO
5 BELIEVE THAT THERE WAS AN ALERT BECAUSE TOMSOVIC WAS STRAIGHT.
6 THAT MAN IS A STRAIGHT ARROW. HE'S AN EXPERIENCED HOMICIDE
7 DETECTIVE. HE WAS HONEST AND HE TOLD YOU TIME AND AGAIN WHAT
8 REALLY HAPPENED INSTEAD OF THE SPIN THEY WANTED ON THE SHOVEL.
9 REALISTICALLY ANYWAY, IF IT'S TRUE THAT THAT SHOVEL
10 WAS GONNA BE USED TO BURY DANIELLE, AND TWO DAYS BEFORE OR TWO
11 DAYS AFTER -- YEAH, TWO DAYS BEFORE, WHY WASN'T THE BODY BURIED?
12 WHY WOULD DAVID TAKE THAT SHOVEL HUNDREDS OF MILES, ACCORDING TO
13 THE PROSECUTION'S THEORY, DRIVE IT WHO KNOWS WHERE TO DEHESA,
14 WALK THE BODY UP A HILL THAT THE COPS COULDN'T EVEN GET TO --
15 REMEMBER THE ACCESS ONLY CAME FROM THE NORTH -- WALKED THE BODY
16 UP THE HILL AND NOT USE IT? COMPLETELY DOESN'T MAKE SENSE.
17 DOESN'T MAKE SENSE.
18 BUT WHAT THEY'RE TRYING TO DO IS TAKE A FACT, A
19 SINGLE FACT, CLAIM THAT IT ONLY POINTS TO GUILT. AND YOU, THE
20 JUDGES OF THE FACTS AND THE FOLLOWERS OF THE LAW, WILL SEE
21 THERE'S TWO REASONABLE INTERPRETATIONS. THAT'S GRASPING, OKAY?
22 ANOTHER WAY THE GOVERNMENT WAS GRASPING, THE STATE
23 WAS GRASPING WAS IN THE PORNOGRAPHY. NOW THEY RECOGNIZE THEY
24 GOT A SERIOUS PROBLEM. THAT'S NO JOKE. THE ISSUES. YOU HAVE
25 TO DECIDE ON THE ISSUE OF WHETHER OR NOT MR. WESTERFIELD
26 COMMITTED THE CRIME OF POSSESSION OF CHILD PORNOGRAPHY. I THINK
27 WE DECIDED THAT'S THE WRONG WORD BUT PLEASE BEAR WITH ME. THE
28 PHOTOS HAVE TO SHOW CHILDREN HAVING SEX OR PHOTOS OF CHILDREN
9579
1 DEPICTING SEXUAL CONDUCT OR PHOTOS OF CHILDREN SIMULATING SEXUAL
2 CONDUCT. THEY DON'T. YOU WERE SHOWN THE BOARDS.
3 MR. DUSEK: MISSTATES THE LAW, YOUR HONOR.
4 THE COURT: THE LAW IS LAID OUT FOR YOU IN THIS
5 INSTRUCTION, LADIES AND GENTLEMEN. IT'S IN BLACK AND WHITE.
6 YOU CAN READ IT FOR YOURSELVES.
7 MR. FELDMAN: THANK YOU.
8 THEY'LL SHOW YOU PICTURES, AND THEY SHOWED YOU A
9 PICTURE YESTERDAY THAT WAS PUT UP ON THE BOARD. OKAY. IT WAS
10 ONE OF THE BETTER POINTS, THE POWER POINT, RIGHT? THEY SHOWED
11 YOU A PICTURE OF A GIRL WHO WAS HAVING INTERCOURSE. AND I
12 LOOKED AT THAT PHOTO AND I THOUGHT WHAT IS THIS? THEY'RE TRYING
13 TO SHOCK YOU? THEY'RE TRYING TO SAY TO YOU THAT SHE'S UNDER 18?
14 CLEAR AND UNEQUIVOCAL, YOU ALL ARE OBLIGATED TO
15 DECIDE, IF YOU DECIDE THAT THE CRIME WAS COMMITTED, YOU HAVE TO
16 DECIDE WHAT PHOTO OR PHOTOS. NOT THAT ONE BECAUSE THAT ONE'S
17 AMBIGUOUS. WE DON'T KNOW HOW OLD SHE IS. THE SAME WITH THE M
18 PEGS, FRANKLY. I'M SORRY, MY SLANG. THE RAPE VIDEOS THAT YOU
19 ALL, ALL OF US HAD THE EXPERIENCE WITH. IF THOSE FEMALES ARE
20 OVER 18, THERE'S NO CRIME. END OF DISCUSSION. GROSS, OKAY.
21 DISGUSTING, OKAY. INAPPROPRIATE, OKAY. ENOUGH TO SHOCK YOU,
22 OKAY. ENOUGH TO BIAS YOU, DEFINITELY. ENOUGH TO PREJUDICE YOU
23 AGAINST MR. WESTERFIELD, ABSOLUTELY. THE PLAN.
24 BUT YOU'RE NOT ALLOWED TO CONSIDER BIAS, PASSION OR
25 PITY OR PREJUDICE. OBJECTIVELY, THOSE PICTURES DON'T DEPICT
26 FEMALES UNDER THE AGE OF 18. PERIOD. LOOK. AND I'M NOT
27 ENCOURAGING TO LOOK FOR ANY PURINE INTEREST OR ANY INTEREST.
28 THAT'S BAD ENOUGH. BUT WHAT THEY DID WAS TAKE TWO OR THREE
9580
1 VIDEOS OUT OF THOUSANDS AND CLAIM THIS IS A TRUE AND ACCURATE
2 REPRESENTATION OF MR. WESTERFIELD.
3 WHAT THEY DID WAS TAKE STILLS. I THINK THE
4 ULTIMATE EVIDENCE WAS THERE WERE I THINK 85, POSSIBLY 89
5 QUESTIONABLES. THAT WAS WHAT WATKINS SAID, QUESTIONABLES.
6 ULTIMATELY I BELIEVE THERE'S A TOTAL OF 29, BUT YOU'LL CHECK THE
7 RECORD ON THAT, OF CHILDREN SIMILAR TO THOSE DEPICTED IN WHAT
8 THE PROSECUTION WAS RUNNING ON THE BOARD. OKAY.
9 YOU DECIDE WHETHER ANY OF THOSE FIT THE DEFINITION
10 OF THE PORNOGRAPHY, FIT THE DEFINITION OF THE CRIME AS THE JUDGE
11 HAS DEFINED IT. AND I SUBMIT TO YOU THAT'S NOT GOING TO HAPPEN.
12 BUT WHAT IT DOES, AND EVEN IF YOU FIND IT, THAT'S -- THOSE
13 CHARGES AREN'T ABOUT THE POSSESSION OF THOSE PICTURES. THEY'RE
14 ABOUT THEIR DESPERATION, SEARCH FOR A MOTIVE. HOW DO YOU
15 EXPLAIN WHY A 50 YEAR-OLD WOULD DO THIS? THERE IS NO
16 EXPLANATION. THERE'S NO HISTORY. AH, WE FOUND A HISTORY. WAIT
17 A MINUTE. IN THE THOUSANDS OF DOWNLOADS WE FOUND A VIDEO OR TWO
18 OR FIVE OR TEN THAT MAYBE PROVE THE POINT. SO BY THAT LOGIC,
19 ANY OF US WHO MAY POSSESS ANYTHING LIKE THAT ARE GOING TO GO OUT
20 AND KILL CHILDREN. RIGHT? ISN'T THAT THE LOGIC? YOU GOT 'EM
21 IN YOUR POSSESSION, AS IT WAS ARGUED TO YOU YESTERDAY, IT WAS A
22 FANTASY. WE'RE GOING TO ACT ON OUR FANTASIES. BECAUSE WE
23 POSSESS THESE WE'RE GOING TO GO OUT AND COMMIT CRIMES? NO.
24 DON'T. PLEASE KEEP IN MIND, THESE WERE DELIVERED
25 TO YOU TO INFLAME YOU, TO ENRAGE YOU IN THE SAME WAY MR. DUSEK
26 HAS LAID PHOTOGRAPHS OF DANIELLE VAN DAM OUT IN FRONT OF THE
27 AUTOPSY BOARDS, AT COUNSEL TABLE. THAT'S A DIRECT APPEAL TO
28 YOUR PASSIONS, YOUR PREJUDICES, YOUR PITIES, YOUR SYMPATHIES,
9581
1 YOUR EMOTIONS, YOUR EMPATHY. BUT THAT'S NOT AN OBJECTIVE
2 APPROACH TO THE LAW.
3 AND WHO GETS VICTIMIZED BY THIS PROCESS? NEAL
4 WESTERFIELD, AN 18 YEAR-OLD BOY, IMAGINE. AN 18 YEAR-OLD BOY
5 DRAGGED DOWN TO A POLICE DEPARTMENT, A DISTRICT ATTORNEY'S
6 OFFICE WITH HIS MOM, SAT AROUND WITH FOUR MEN, SAYS TO DETECTIVE
7 COOKSEY, BY THE WAY, YEAH, I WAS LOOKING AT PORN. REMEMBER, I
8 HAD TO CALL COOKSEY TO SAY THAT. REMEMBER, COOKSEY WAS ONE OF
9 THE LAST WITNESSES. HE'S THEIR INVESTIGATOR. THAT POOR BOY,
10 YOU KNOW, IT'S -- I GUESS YOU COULD CALL IT COLLATERAL DAMAGE.
11 TRIALS LIKE THIS IN LIFE HAVE COLLATERAL DAMAGE. HE'S A
12 COLLATERAL VICTIM. 142A, 143. OKAY. THIS IS WHAT HE WAS
13 DOING. IT'S NOT SUBJECT TO ARGUMENT. IT'S NOT SUBJECT TO
14 DISPUTE. IT'S NOT -- YOU KNOW, I'M NOT ARGUING WITH HIM.
15 MARCUS LAWSON'S JOB WASN'T TO GO TRASH THE FAMILY.
16 IT WAS GET US -- JUST TELL US WHAT'S THERE. WE DON'T KNOW.
17 HELP US. THIS IS WHAT WAS DELIVERED. 2/4/02 AT 4:47 AND :58
18 P.M. AND THEY'RE GOING TO SAY IT WAS JUST AN E-MAIL. AND OH,
19 MR. WATKINS, HE RAN AN INTERNET SEARCH. AND, YOU KNOW, YOU LOOK
20 THROUGH THE INTERNET SEARCH AND IT'S WWW DOT UNION TRIB DOT COM,
21 AND IT'S THIS AND IT'S THAT. BUT THE ONE THING THAT'S
22 EXPLICITLY CLEAR IS -- IT'S A LITTLE DISTRACTING.
23 THE COURT: SO ARE SLEEPING PEOPLE IN THE AUDIENCE.
24 LADIES AND GENTLEMEN, THE REASON MY BAILIFFS HAVE
25 STARTED TO STIR AROUND IS -- I REALIZE IT'S AFTER LUNCH. IF YOU
26 CAN'T KEEP AWAKE OUT THERE, YOU'RE OUT OF HERE. IT'S THAT
27 SIMPLE.
28 SORRY FOR THE INTERRUPTION, MR. FELDMAN.
9582
1 IN ADDITION TO THAT, ONE OF THE JURORS HAS SAID
2 PLEASE KEEP YOUR VOICE UP AT ALL TIMES.
3 MR. FELDMAN: OKAY.
4 THE COURT: THANK YOU.
5 MR. FELDMAN: I HAVE TO SAY SOME PEOPLE HAMMER ME FOR
6 YELLING TOO MUCH. THIS IS TRUE. YOU DON'T SEE THE CARDS AND
7 THE LETTERS. DON'T YELL. I'LL DO MY BEST TO KEEP MY VOICE UP
8 BUT I'M NOT YELLING AT YOU.
9 ONLY IN THIS COURTROOM COULD THAT HAPPEN, I'M
10 TELLING YOU.
11 HERE'S THE INTERNET HISTORY. DAVID WESTERFIELD
12 LIFETIME OPPORTUNITY, LIFETIME OPPORTUNITY STATS DELIVERED.
13 THIS WAS ALL GREAT. AND REMEMBER, MARCUS LAWSON WAS ON THE
14 WITNESS STAND AND IN CAME THE DISTRICT ATTORNEY, AND THE
15 DISTRICT ATTORNEY SAYS "AND WHAT'S THIS, MR. LAWSON?" AND HE
16 SAID SHOOT, I DON'T HAVE ANY IDEA. I DON'T KNOW.
17 AND THEN IN COMES WATKINS WHO SAYS WELL, IT'S THE
18 INTERNET HISTORY, AND THIS PROVES THAT -- WELL, WHAT DOES IT
19 PROVE? WELL, IT PROVES THAT NEAL WESTERFIELD WAS GETTING INTO
20 GAMES. HE TOLD YOU HE WAS PLAYING VIDEO GAMES. AND INDEPENDENT
21 OF THIS, WE DON'T NEED THIS. THIS DOCUMENT DOES NOT FOLLOW
22 WATKINS' LOGIC, IF YOU BELIEVE IT. AND HE'S -- I'LL TELL YOU,
23 THERE'S SOME ISSUES WITH MR. WATKINS. JUST REMEMBER, HE'S THE
24 GUY THAT TOLD YOU THAT E-MAIL WAS RECEIVED BEFORE IT WAS SENT.
25 I DON'T MEAN TO KEEP HAMMERING THAT POINT, BUT I'M SORRY. THE
26 JUDGE TOLD YOU TO WEIGH THE CREDIBILITY OF THE EXPERTS. I
27 INVITE YOU, WEIGH MARCUS LAWSON'S HISTORY AGAINST JIM'S WATKINS'
28 HISTORY. MARCUS LAWSON IS A FEDERAL AGENT. HE'S WORKED FOR 20
9583
1 YEARS INVESTIGATING THESE CASES. THAT MAN HAS MORE EXPERIENCE
2 THAN VIRTUALLY ALL OF SAN DIEGO. SO THEY WANT YOU TO DISBELIEVE
3 HIM BECAUSE THEY THINK HE WAS CALLED A HIRED GUN. NO.
4 EXPLICITLY CLEARLY IT WAS ASKED, SIR, WHAT WAS YOUR TASK. I
5 JUST WAS TO LOOK AND TELL YOU WHAT HAPPENED, AND THIS IS WHAT HE
6 DID. AND WHAT HE DID WAS SAY I KEPT FINDING NEAL WESTERFIELD.
7 AND THEY'RE SAYING OH, THEY'RE BLAMING NEAL FOR THE KILLING.
8 I TOLD YOU YESTERDAY THAT WAS TOO OUTRAGEOUS. IT
9 GETS ME TOO ANGRY JUST THINKING THAT. NO. IT DOES RAISE THE
10 ISSUE, THOUGH. IT DOES RAISE THE ISSUE. THE ANIME', HOWEVER IT
11 WAS STORED, OKAY, THAT MR. DUSEK READ TO YOU DOESN'T HAVE I. E.
12 A. ON IT. DOESN'T COME FROM A ZIP -- I'M SORRY, DOESN'T COME
13 FROM A C. D. AND AGAIN, PLEASE LOOK, NOT TO GROSS YOURSELVES
14 OUT, BUT IF YOU TRACK LAWSON'S WORK YOU'LL SEE THERE'S NO
15 QUESTION. YOU KNOW, CAN YOU IMAGINE BEING 18 YEARS-OLD AND
16 LOOKING AT YOUR DAD'S PLAYBOY AND HAVING YOUR DAD COME IN AND
17 BUST YOU? NOW, FOR THE WOMEN THAT'S PROBABLY NOT TOO MUCH, BUT
18 FOR THE MEN IT'S EMBARRASSING. YOU DON'T WANT DAD TO KNOW
19 YOU'RE DOING THAT.
20 AND IT'S WORSE THAN THAT. IT'S THESE GUYS WHO ARE
21 BRINGING MURDER CHARGES AGAINST DAD, AND THEY'RE PUTTING HIM IN
22 A ROOM WITH MOM WHO'S DIVORCED FROM DAD AND WHOSE LOYALTIES ARE
23 OBVIOUSLY WITH CHILDREN, APPROPRIATE, COMPLETELY APPROPRIATE.
24 BUT CONSIDER THE CIRCUMSTANCES OF HOW AWFUL THAT WAS. AND THEY
25 HAD TO DO THAT. THEY HAD TO DO THAT, HUH?
26 AND WE KNOW, WE KNOW THAT IT WAS IMPOSSIBLE FOR
27 DAVID WESTERFIELD TO BE ACCESSING PORN AFTER 2:00 TO 3 O'CLOCK
28 ON FEBRUARY THE 4TH BECAUSE HE WAS IN CUSTODY. YOU KNOW HE WAS
9584
1 WITH MR. REDDEN. YOU KNOW HE COULDN'T GET BACK INTO THE HOUSE
2 AT MIDNIGHT. YOU HEARD THAT FROM NEAL. SO THE ONLY PERSON IT
3 COULD HAVE BEEN WAS NEAL. AND IT DOESN'T MATTER WHAT KIND OF
4 STUFF JIM WATKINS COMES WITH. LOOK TO WHAT LAWSON DID. NO
5 QUESTION.
6 THIS MIGHT BE A MORAL ISSUE, MIGHT BE AN EMOTIONAL
7 ISSUE. IT IS NOT A LEGAL ISSUE. DON'T GET SIDETRACKED INTO
8 THEIR SPECULATION. THEY DON'T HAVE A MOTIVE. THEY'RE
9 STRUGGLING. THEY'RE GRASPING AT STRAWS. THEY'RE DESPERATE.
10 AH, WE GOT A MOTIVE. WE FOUND A VIDEO. GOOD. HEY, I BET YOU
11 IF WE LOOK THROUGH WHATEVER'S IN HERE WE COULD FIND SOMETHING
12 THAT WOULD GIVE THEM ANOTHER THEORY. NOW, YOU MIGHT HAVE MORAL
13 PROBLEMS WITH WHAT MR. WESTERFIELD DID OR DID NOT DO, BUT MORALS
14 AREN'T THE SAME AS LAW. CERTAINLY WE HOPE EVERYBODY'S A MORAL
15 PERSONAL. BUT IF YOU FIND THAT THIS IS IMMORAL BEHAVIOR, THAT'S
16 NOT ENOUGH.
17 BY THE WAY, WE KNOW THAT WHEN YOU REVIEW, IT'S 147
18 IS THE DEFENSE EXHIBIT, ANIME' DOT COM AND VIDEO WAS VIEWED
19 ABOUT EVERY TWO WEEKS. HMM, ABOUT EVERY TWO WEEKS IS WHEN NEAL
20 WOULD VISIT HIS DAD. THAT'S THE EVIDENCE.
21 SO THE BOTTOM LINE ON MR. WATKINS IS, WITH REGARD
22 TO THE PORN, WE CAN'T TELL WHEN IT WAS LAST ACCESSED. A VERY
23 VERY SMALL SELECTION WAS SHOWN TO YOU. IT MADE IT SEEMS TO BE
24 AS THOUGH THERE WAS MORE YOUNG CHILDREN THAN IN POINT OF FACT
25 THERE WAS. HE, WATKINS, WAS NOT ASKED TO IDENTIFY WHO THE
26 DOWNLOADER WAS. HE SPECULATED THAT THE CLOCK WAS ALTERED. DO
27 YOU REMEMBER THAT? I THINK MR. CLARKE'S QUESTION: SIR, WHAT
28 ABOUT IF THE CLOCK WAS ALTERED, WOULD THAT CHANGE YOUR OPINION?
9585
1 OH, YEAH, IT WOULD. OH, DID YOU HAVE ANY EVIDENCE THE CLOCK WAS
2 ALTERED? NO. HE CAME BACK SOME DAY LATER AND SAID MAYBE THERE
3 WAS AN HOUR DIFFERENCE, OR WAS THAT THE DAY YOU SAID IT WAS
4 ZOOLOO, I'M SORRY I CAN'T RECALL. CHECK YOUR NOTES.
5 ONE THING'S CLEAR. LAWSON, LAWSON IS THE EXPERT ON
6 THIS ISSUE. SO THE MERE PRESENCE OF PHOTOGRAPHS BY A -- OF
7 ADULTS ENGAGED IN SEXUAL BEHAVIORS DOES NOT INFER ACTING OUT,
8 EXCEPT IN THE SPECULATIVE ARGUMENTS OF COUNSEL. THERE'S A MAJOR
9 DIFFERENCE BETWEEN THE PRIESTS AND THE BOBBY SOCKER COACHES WHO
10 ARE OUT DOING WHAT THEY'RE DOING THAN DAVID WESTERFIELD. THIS
11 IS THEIR OWN MOTIVE. THEY HAVE NOTHING ELSE ON DAVID
12 WESTERFIELD AS A PEDOPHILE. IT'S THIS OR IT'S NOTHING.
13 SO I SAY TO YOU, IS POSSESSION OF 29 OR 85 PICTURES
14 OUT OF 6- TO 10,000 TO 15,000 TO 20,000, TO 25,000, IS THAT
15 PROOF? IS THAT LESS THAN .00001 PERCENT? MAYBE GOOD ENOUGH FOR
16 GOVERNMENT WORK, NOT GOOD ENOUGH FOR A JURY TRIAL.
17 IN THE MOTOR HOME -- I'M CHANGING. I WANT TO TALK
18 TO YOU ABOUT FIBERS A LITTLE BIT. WHEN YOU ALL WALKED THROUGH
19 THE MOTOR HOME YOU ALL SAW -- WE ALL SAW, WE ALL GOT THE
20 EXPERIENCE, MORE PAINFUL FOR OTHERS THAN SOME -- WE SAW CUTTINGS
21 OFF OF CLOTHING. I'M SORRY, WE SAW CUTTINGS OFF OF CLOTH OFF OF
22 VIRTUALLY EVERY SINGLE PIECE IN THE MOTOR HOME. THEY LOOKED FOR
23 ANY EVIDENCE OF DANIELLE VAN DAM FIBERS -- I'M SORRY. THEY
24 LOOKED FOR FIBERS FROM THE MOTOR HOME IN THE BODY BAG IN WHICH
25 THEY FOUND DANIELLE VAN DAM. THEY SCOURED THAT MOTOR HOME.
26 THEY SEARCHED THE MOTOR HOME. THEY CUT IT UP IN EVERY WAY THEY
27 COULD TO TRY AND FIND A SINGLE FIBER THAT THEY COULD AT LEAST
28 COME TO COURT AND SAY COMMON SOURCE. AND GUESS WHAT? NONE.
9586
1 SO IF DANIELLE VAN DAM WAS REALLY IN THE MOTOR HOME
2 WHEN THEY SAY SHE WAS, WHERE IS THE TRACE IN THE BODY BAG THAT
3 LINKS BACK TO THE MOTOR HOME? THERE IS NONE. NONE. ZERO.
4 THEY WERE VERY CAREFUL. REMEMBER FOLKS YOU HAD THE VIEW.
5 REMEMBER THE FRONT SEAT. REMEMBER THERE WAS A CUTTING OF THE
6 DRAPES. REMEMBER THE PASSENGER SEAT. REMEMBER WHERE THE
7 KITCHENETTE AREA WAS. EVERY SINGLE PLACE THEY CHECKED FOR
8 TRACE. THEY DID THE CUTTINGS SO THAT THEY COULD EVALUATE THE
9 FIBER EVIDENCE. THEY FOUND NOTHING.
10 BY THE WAY, WHEN IT CAME TIME TO DO THE BODY
11 RECOVERY, OR WHEN IT CAME TIME FOR THEM TO DO THE SEARCH OF THE
12 FIBERS, FAY SPRINGER WAS BROUGHT DOWN FROM SACRAMENTO. FAY
13 SPRINGER, YOU'LL RECALL, IS THE MASS SPEC MORE OR LESS EXPERT
14 FROM SACRAMENTO. SHE PUBLISHED A CHAPTER IN A BOOK. I ASKED
15 HER ABOUT THE COLLECTION PROCESS, BECAUSE THEY'RE ALL AWARE OF
16 LAW ENFORCEMENT, AND SIMPSON IS VERY MUCH AWARE OF
17 CONTAMINATION, RIGHT? SO SHE WROTE A BOOK. SHE WROTE A CHAPTER
18 IN A BOOK AND SHE SAID THIS IS HOW YOU'RE SUPPOSED TO BE BECAUSE
19 WHAT WE WANT TO DO IS AVOID THE TRANSFER. BECAUSE WE ALL
20 RECOGNIZE THERE'S THIS THING CALLED THE LOCARD TRANSFER
21 PRINCIPLE THAT MESSES UP CRIME SCENES, THAT IF WE PUT TOO MANY
22 COPS IN THE SAME SPOT IT'S GOING TO GET THINGS SCREWED UP, SO
23 THIS IS HOW YOU'RE SUPPOSED TO DRESS. AND THEN WHEN I ASKED
24 SPRINGER ABOUT IT, WELL, HA-HA-HA-HA, THAT MUST HAVE BEEN
25 SOMEBODY ELSE'S IDEA, THAT WASN'T MINE. THIS IS THE TEXT ON HOW
26 TO DO THIS WORK. THIS IS WHAT THEY TEACH LAW ENFORCEMENT. THIS
27 IS HOW THE EVIDENCE TECHNICIANS ARE TRAINED. THIS IS WHAT
28 THEY'RE TAUGHT TO WEAR BECAUSE OF THE OBVIOUS. THE FEET
9587
1 CONTAMINATE, THE HANDS CONTAMINATE, THE CLOTHES CONTAMINATE, THE
2 HAIR CONTAMINATES.
3 AN ARGUMENT WAS MADE YESTERDAY THAT THE ONLY WAY
4 FOR HAIR TO GET PULLED OUT -- I'M SORRY -- TO GET HAIR ROOTS,
5 WAS IF YOU PULL IT OUT. BUT LADIES, ANY OF YOU WHO'VE HAD
6 PONYTAILS KNOW IF YOU JUST TAKE YOUR HAIR OUT OF A PONYTAIL,
7 WHOOPS, THERE GOES THE ROOTS. THOSE OF US WHO MAYBE HAVE HAD
8 LONG HAIR IN ANOTHER PART OF LIFE KNOW THIS, TOO. PUT YOUR HAIR
9 UP IN A PONYTAIL, TRY AND REMOVE IT AND SEE HOW MANY HAIR ROOTS
10 YOU GET OUT. DON'T TELL ME THERE'S ONLY ONE REASONABLE
11 EXPLANATION FOR THE PRESENCE OF HAIR WITH ROOTS.
12 AT THE BODY SCENE, INTENSITY OF THE FOCUS SHIFTS.
13 BY NOW DAVID WESTERFIELD IS IN JAIL. THEY THINK THEY GOT HIM
14 BECAUSE THEY FOUND THE FINGERPRINT AND THEY GOT SOME D. N. A. IN
15 THE MOTOR HOME. OKAY. IT'S THERE. I'M NOT GOING TO COME IN
16 HERE AND TELL YOU IT'S NOT. IT'S THERE.
17 I'M GOING TO SAY THIS TO YOU THE SAME WAY I SAID TO
18 THEM. WAIT A MINUTE. WHERE IS THE SMOKING GUN? CAN YOU TELL
19 ME WHEN IT GOT THERE? NO. CAN YOU TELL ME HOW IT GOT THERE?
20 NO. CAN YOU TELL ME HOW LONG IT'S BEEN THERE? NOPE. OKAY.
21 WE'RE GOING TO TELL YOU HOW LONG DANIELLE VAN DAM WAS THERE. WE
22 KNOW MORE THAN THEY DO ABOUT THAT, DON'T WE?
23 UNDERNEATH DANIELLE VAN DAM'S BODY WAS A SEVEN
24 CENTIMETER HAIR, JENNIFER SHEN, THIS IS NOT THE SAME HAIR THAT
25 JEN SAID SHE CLEANED AND TURNED OUT TO BE DANIELLE'S. THIS IS A
26 DIFFERENT HAIR. I'M SORRY, I REMEMBER BACK TO THE CRIME SCENE
27 WHERE THERE'S FINGERPRINTS THAT AREN'T MATCHED. I'M THINKING
28 ABOUT THE CRIME SCENE WHERE I GOT A CLIENT WHO SWEATS SO MUCH
9588
1 THAT AT 9 O'CLOCK IN THE MORNING OR 8:50 IN THE MORNING ON
2 FEBRUARY THE 4TH THE COPS LOOK AT HIM AND SAY JEEZ, PARGA SAID
3 IT WAS SO FREEZING I WAS WALKING AROUND LIKE THIS, AND THIS GUY
4 HAD SWEAT RINGS DOWN TO HIS ARMPITS. NOW, THAT WAS -- SHE
5 DIDN'T SAY QUITE SO MUCH, BUT OBVIOUSLY GIGANTIC SWEAT RINGS.
6 WELL, SO I'M THINKING IF SOMEONE'S SWEATING THAT
7 MUCH AND HANGING OUT IN DANIELLE'S ROOM, WHERE IS THE D. N. A.?
8 YOU KNOW IF IT WORKS TO SHOW THAT HE'S NERVOUS, WOULDN'T HE BE
9 NERVOUS IN THE BEDROOM? WHERE IS THE PROOF? WELL, OF COURSE,
10 THERE ISN'T ANY. THAT INFERS HE WASN'T THERE, DOESN'T IT? LET
11 ME SEE, IS THAT ANOTHER REASONABLE INTERPRETATION? IS THERE TWO
12 WAYS TO INTERPRETER THAT OR ONLY ONE?
13 I TALKED TO YOU EARLIER TODAY ABOUT THE LOCARD
14 EXCHANGE PRINCIPLE. I DISCUSSED WITH YOU THAT IT COULD GO FROM
15 BRENDA TO DAVID, FROM BRENDA TO DENISE, FROM BARBARA AND BACK
16 AGAIN TO DAVID. IN DANCING, WE HAD TESTIMONY THROUGH ONE OF THE
17 EXPERTS RELYING ON ROBERTSON AND GREEVES THAT A HUNDRED FIBERS
18 COULD TRANSFER JUST IN THE PROCESS OF DANCING. WE KNOW THAT
19 THOUSANDS OF FIBERS WERE COLLECTED IN THIS CASE, THOUSANDS.
20 THEY PRESENTED TO YOU WHAT, EIGHT OR TEN IMPORTANT OR 40? AND
21 AT THE BOTTOM LINE OF THE CONCLUSION OF THE EIGHT OR TEN OR 30
22 OR 40, COULD HAVE COME FROM A COMMON SOURCE, COULD NOT HAVE COME
23 FROM A COMMON SOURCE. THEY ONLY TESTED A FEW.
24 AND THEN WHEN THEY PUT THOSE BOARDS UP, YOU'LL
25 REMEMBER, I HAD TO CROSS-EXAMINE SHANNON (SIC) DULANEY ABOUT THE
26 CONCLUSIONS, BECAUSE YOU'LL RECALL THEY SAID THERE WERE 20 OR
27 30, I THINK ON ONE OF THE BOARDS, FIBERS. I SAID WAIT A MINUTE,
28 MA'AM. YOU DIDN'T TEST ALL THOSE, DID YOU? NO, NO, NO. WE
9589
1 JUST TOOK A REPRESENTATIVE SAMPLE. OH, YOU'RE TELLING THE JURY
2 THAT 20 MATCHED BUT YOU ONLY TESTED FIVE? OH, YOU'RE DRAWING
3 INFERENCES? YEAH, COULD HAVE COME FROM A COMMON SOURCE, COULD
4 NOT HAVE COME FROM A COMMON SOURCE. TWO REASONABLE
5 INTERPRETATIONS.
6 BUT I SAY THIS TO YOU, FOLKS. YOU HAVE TO FEEL AN
7 ABIDING CONVICTION THAT THERE'S ONLY ONE SOURCE. YOU HAVE TO
8 KNOW IT IN YOUR HEART, KNOW IT IN YOUR BONES, BE SO SURE OF IT
9 YOU PULL THAT PLUG.
10 MR. DUSEK: OBJECTION, MISSTATES THE EVIDENCE.
11 ARGUMENTATIVE.
12 THE COURT: WELL, IT IS ARGUMENTATIVE BUT THE LAST
13 PORTION WILL BE STRUCK AND THE JURY'S TO DISREGARD PULLING PLUGS
14 OR ANY REFERENCE TO PENALTY OR PUNISHMENTS OR ANYTHING ELSE AS
15 PROHIBITED.
16 MR. FELDMAN: OKAY. MY ANALOGY IS NOT TO PUNISHMENT.
17 PLEASE UNDERSTAND THAT. IT'S ONLY TO THE SEVERITY, TO THE
18 NATURE, TO THE NATURE OF THE DECISION-MAKING PROCESS. I DON'T
19 MEAN IN ANY WAY TO RAISE PUNISHMENT. I UNDERSTAND.
20 BUT WHAT I WANT TO COMMUNICATE TO YOU IS THE
21 DIFFICULTY OF THE DECISION OF PULLING THE PLUG. IT IS NOT AN
22 ADDRESS TO PENALTY. IT'S AN ADDRESS TO HOW SURE DO YOU HAVE TO
23 BE BEFORE YOU MAKE THAT DECISION. HOW SURE DO YOU HAVE TO BE
24 BEFORE YOU HAVE AN ABIDING CONVICTION, BEFORE YOU FEEL, RIGHT?
25 THE WORD IS FEEL. WE'RE HUMAN BEINGS. THE LAW SAYS IN CASE OF
26 A REASONABLE DOUBT, IN CASE OF A REASONABLE DOUBT. AND HOW DO
27 YOU DEFINE IT? YOU FEEL AN ABIDING CONVICTION OF THE TRUTH OF
28 THE CHARGE. SO I SAY TO YOU, YOU GOT TO FEEL THAT THERE'S ONLY
9590
1 ONE REASONABLE INTERPRETATION. IT'S NOT A PENALTY STATEMENT.
2 IT'S A CERTAINTY STATEMENT.
3 THIS IS THE SINGLE MOST, I SUBMIT TO YOU, THE
4 SINGLE MOST DIFFICULT DECISION YOU'LL EVER HAVE TO MAKE IN YOUR
5 LIVES. NEVER, EXCEPT AS JURORS, DO 12 PEOPLE HAVE TO GO INTO A
6 ROOM WHO DON'T KNOW EACH OTHER, SIT DOWN AND REACH AN ACCORD.
7 CAN YOU IMAGINE WHAT LIFE WOULD BE LIKE AT HOME? YOU GOT FOUR
8 CHILDREN, COME ON, LET'S GO OUT TO MCDONALDS. WE GOT TO VOTE ON
9 IT. AH, SOMEBODY WANTS TO GO TO, I DON'T KNOW, CARL'S JR..
10 SOMEBODY WANTS PIZZA. SOMEBODY WANTS CHINESE FOOD. NOW WE GOT
11 TO NEGOTIATE. WE DON'T MAKE DECISIONS IN LIFE LIKE THAT.
12 SOMETIMES THERE ARE EXECUTIVE DECISIONS LIKE IN A COURTROOM, AND
13 WE GOT THE CEO SITTING UP ON THE BENCH, HE MAKES THE CALLS. WE
14 DON'T DEBATE IT. ONLY IN THE JURY ROOM DO WE BRING CITIZENS
15 WITH DIVERSE POINT OF VIEWS AND BACKGROUNDS WHO HAVE TO
16 UNANIMOUSLY AGREE OR WE DON'T HAVE A RESULT. BUT THAT'S OKAY.
17 BECAUSE YOUR JOB IS TO VOTE YOUR CONSCIENCE. THAT'S ALL WE ASK
18 OF YOU AS CITIZENS. VOTE YOUR CONSCIENCE.
19 WE HAVE AN EXCLUSION OF A KEY FIBER IN THIS CASE.
20 WE HAD AN EXCLUSION OF THE ORANGE ACRYLIC FIBER. DO YOU
21 REMEMBER THAT FIBER AROUND DANIELLE'S NECK? MS. SHEN, LET'S
22 TALK ABOUT FIBERS. OKAY. MA'AM, YOU GOT NOTES, RIGHT? RIGHT.
23 YOUR NOTES ARE PREPARED CONTEMPORANEOUSLY, RIGHT? RIGHT. YOU
24 CONCLUDED THAT THAT PARTICULAR ORANGE FIBER COULD HAVE COME FROM
25 A COMMON SOURCE, RIGHT? RIGHT. NOW, MA'AM, YOU DESCRIBED --
26 THE WAY YOU DESCRIBED THE FIBERS IS IN DIFFERENT WAYS, RIGHT?
27 RIGHT. FOR INSTANCE, WITH REGARD TO THE ORANGE FIBERS, YOU
28 DESCRIBED WHETHER OR NOT --
9591
1 YOU'D AGREE WITH ME, WOULDN'T YOU, A BRIGHT FIBER
2 IS DIFFERENT THAN A DULL FIBER?
3 "ANSWER: YES. REMEMBER. DO YOU REMEMBER, MA'AM?
4 WOULD YOU AGREE THAT THERE IS A DIFFERENCE BETWEEN
5 A DULL ORANGE FIBER AND A BRIGHT ORANGE FIBER?
6 "ANSWER: YES." THEREFORE, MA'AM, YOU'RE TELLING
7 US THAT THERE IS AN EXCLUSION, RIGHT? RIGHT. BUT
8 YOU DIDN'T FORM THAT OPINION.
9 MR. DUSEK: OBJECTION, THAT MISSTATES THE EVIDENCE.
10 THE COURT: THAT MISSTATES THE EVIDENCE, LADIES AND
11 GENTLEMEN. YOU'RE TO DISREGARD THE LAST STATEMENT.
12 MR. FELDMAN: I'D LIKE A SIDE BAR.
13 THE COURT: YOU'RE CERTAINLY WELCOME TO IT.
14
15
16 (BENCH CONFERENCE NOT A PUBLIC RECORD.)
17 --OCC--
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9592
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9593
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20 (THE FOLLOWING PROCEEDINGS WERE HELD IN
OPEN COURT IN THE PRESENCE OF THE JURY:)
21
22 MR. FELDMAN: WITH REGARD TO THE ORANGE FIBER, REMEMBER,
23 JENNIFER SHEN WAS SHOWN HER NOTES. REMEMBER, FIRST SHE CLAIMED
24 THAT THERE WAS A COMMON SOURCE. THE ISSUE IS WHETHER OR NOT SHE
25 EXCLUDED IT. YOU DECIDE THAT BASED ON HOW HER FACE LOOKED WHEN
26 SHE REALIZED THAT HER NOTES CONTRADICTED HER TESTIMONY. IF
27 THAT'S NOT AN IMPLIED EXCLUSION, THERE IS NONE. THAT WOMAN
28 COULD NOT SAY IN THIS COURTROOM YOU'RE RIGHT. BUT IF YOU
9594
1 REMEMBER THE EXPRESSION ON HER FACE, IT WILL NEVER GO AWAY.
2 IT'S ONE OF THE THINGS LAWYERS UNDERSTAND. WE GO
3 TO THE NOTES. YOU LOOK TO THE NOTES OF THE WITNESSES. YOU SEE
4 WHAT THE NOTES SAY. CHECK THE TRANSCRIPTS. THE TRANSCRIPTS
5 WILL HAVE HER TELLING YOU THAT THERE'S A DIFFERENCE BETWEEN AN
6 ORANGE ACRYLIC FIBER THAT'S DULL AND A BRIGHT ORANGE ACRYLIC
7 FIBER. AND THE EVIDENCE AND THE TESTIMONY WILL SHOW THAT SHE
8 MADE THE DISTINCTION, AND THE EVIDENCE AND THE TESTIMONY WILL
9 SHOW THAT SHE WAS CAUGHT. AND IT WAS ONLY ON REDIRECT WHEN MR.
10 CLARKE REALIZED IT THAT HE TRIED TO FIX IT. YOU DECIDE WHETHER
11 IT WAS FIXED OR NOT. BUT REGARDLESS, THE CIRCUMSTANTIAL
12 EVIDENCE TAKES CONTROL HERE, TOO.
13 THERE'S TWO REASONABLE INTERPRETATIONS AND THE
14 GOVERNMENT'S BEST ON -- THE PROSECUTION'S BEST POSITION COULD
15 HAVE COME FROM A COMMON SOURCE, COULD NOT HAVE COME FROM A
16 COMMON SOURCE. THAT'S THEIR VERY BEST POSITION. TWO REASONABLE
17 INTERPRETATIONS.
18 THERE WAS A NUMBER OF OTHER FIBERS THAT WERE FOUND
19 IN THE WASHING MACHINE AND OTHER PLACES. RED FIBERS, PINK
20 FIBERS WITH DOG BONE CROSS-SECTIONS. A DELUSTERED RAYON AND RED
21 POLYESTER FIBER THAT WAS REMOVED FROM DANIELLE VAN DAM'S
22 FINGERNAIL. NO MATCH TO THE WESTERFIELD ENVIRONMENT.
23 ONE OF THE TECHNICIANS -- I'M SORRY -- SHEN OR
24 DULANEY, I DON'T RECOLLECT, LOOKED AT THE RED FIBERS AND COULD
25 NOT FIND ANY SIMILAR IN WAYS THAT SHE COULD TEST AND EXCLUDED.
26 SO WHAT I'M TELLING YOU IS THE BODY BAG FROM WHICH MUCH OF THE
27 EVIDENCE OF DANIELLE VAN DAM SOURCED, WHERE MR. DUSEK ARGUED
28 YESTERDAY, DANIELLE WAS SPEAKING TO YOU FROM THE GRAVE, SHE WAS.
9595
1 SHE WAS TELLING YOU THERE'S A UNIVERSE OF FIBERS ON ME THAT
2 DON'T APPLY TO DAVID -- DAVID WESTERFIELD. IT'S SOMEBODY ELSE.
3 THAT'S -- THAT'S A MESSAGE. SAME FIBER EVIDENCE, TWO
4 INTERPRETATIONS.
5 THERE WERE SPECIAL FIBERS OF NOTE IN THE VAN DAM
6 ENVIRONMENT. A BRIGHT GREEN LONG ACRYLIC FIBER, A BRIGHT RED
7 ACRYLIC FIBER, A LIGHT BLUE LONG ACRYLIC FIBER, A BRIGHT RED
8 ACRYLIC FIBER, A BLUE MEDIUM DELUSTERED FIBER OF NOTE. NONE IN
9 THE WESTERFIELD ENVIRONMENT. AN EXCLUSION. AND THEN THERE'S
10 THAT AFGHAN THAT I MENTIONED TO YOU EARLIER. YOU LOOK TO THE
11 FIBERS. YOU'LL SEE. THEY'RE IN EVIDENCE.
12 BOTTOM LINE IS THEIR EXPERT SAID WE CAN'T COMPARE
13 THE EMERALD GREEN ACRYLIC FIBER DOG BONE CROSS TO ANYTHING. ALL
14 WE CAN DO IS OPERATE ON COLOR, AND THEN WE ONLY GET AS CLOSE AS
15 WE CAN BECAUSE THE STATE OF THE ART, IT'S AN ART.
16 IN FACT, IN TRYING TO DETERMINE IF THERE WERE RED
17 ACRYLIC FIBERS IN THE WASH WERE SIMILAR TO THE RED ACRYLIC
18 FIBERS IN THE BODY BAG, THEY DIDN'T CORRELATE. THEY EXCLUDED
19 ONE ANOTHER, AND THE ONLY OPINION STATEMENT WAS THEY DO NOT
20 SHARE A COMMON SOURCE.
21 BUT THEY DID SAY THAT THE ACRYLIC FIBERS IN THE
22 BODY BAG COULD HAVE COME FROM A MULTI-COLORED SWEATER OR A
23 BLANKET. BUT ASK YOURSELF, WOULD A MULTI-COLORED BLANKET SHED
24 ONLY ORANGE FIBERS? I DON'T THINK SO.
25 ON THE ISSUE OF THE D. N. A., ON THE ISSUE OF WHAT
26 WAS IN THE MOTOR HOME, WE KNOW THE MOTOR HOME WAS THERE SINCE --
27 WHAT DID WE DECIDE THE DATE WAS -- NOVEMBER OF 2000. WE KNOW
28 FROM EVERY WITNESS WHO TESTIFIED THAT THAT MOTOR HOME WAS IN THE
9596
1 NEIGHBORHOOD. IT WAS A PAIN. THE DOOR WAS OPEN. BARBARA CRUM,
2 HIS MOTOR HOME WAS THERE. SHE WAS TALKING TO MARK ROEHR.
3 BARBARA CRUM HAS SEEN DANIELLE VAN DAM IN THE NEIGHBORHOOD ON A
4 BIKE ALONE UNSUPERVISED. SHE'S SEEN THE MOTOR HOME PARKED IN
5 THE AREA OF MR. WESTERFIELD'S HOME FOR DAYS ON END. SHE'S TOLD
6 THE INVESTIGATORS THAT THAT BOTHERED PEOPLE.
7 ACCESS TO THE MOTOR HOME IS THE ISSUE. ACCESS TO
8 THE MOTOR HOME. THAT'S MY ISSUE TO YOU. MARTIN FRANKLIN, I
9 THINK HE WAS THE GENTLEMAN THAT HAD THE BRITISH ACCENT. ONE OF
10 THE FIRST WITNESSES, SEES THE MOTOR HOME IN THE NEIGHBORHOOD,
11 AND SEES DAVID DRAINING THE MOTOR HOME ON THE 4TH. I'M SORRY,
12 ISN'T ON THE 4TH WHEN HE'S DRAINING THE MOTOR HOME THE SAME TIME
13 HE'S GOT A KIDNAPPED CHILD?
14 YOU KNOW, I SAID THE 4TH. THE 2ND. CHECK YOUR
15 NOTES. IT'S THE 2ND. IT'S THE MORNING HE LEFT. SO HE'S DOING
16 THAT. JON STINEBAUGH: IT'S 9:15 IN THE MORNING ON THE 2ND AND
17 THEY SEE DAVID. HMM, WHAT'S HE DOING IN HIS NEIGHBORHOOD? MR.
18 MEERCHAUM: THIS VEHICLE IS IN THE NEIGHBORHOOD ALL THE TIME.
19 IT'S NOT LEAVING. MR. WOODS: I'VE SEEN DAVID DRIVING THE MOTOR
20 HOME. ALICK LAU: THE MOTOR HOME'S PARKED ACROSS THE STREET.
21 IT'S OFTEN IN THE AREA. ANGELA ELKUS: THE MOTOR HOME'S AROUND
22 WHEN HE'S LOADING AND UNLOADING. THE DOORS ARE OPEN SOMETIMES,
23 THE DOORS ARE SHUT SOMETIMES. CHRISTINA HOEFFS: SAW -- THEIR
24 WITNESS, THEIR FIRST OR SECOND WITNESS. THIS IS A WOMAN WHO
25 COULDN'T -- WHO WORKED FOR LAW ENFORCEMENT, REMEMBER? SHE WAS
26 THE DISPATCHER FOR THE POLICE DEPARTMENT. SHE WAS THE NEIGHBOR
27 WHO LIVED RIGHT NEXT DOOR, WHO WAS LOOKING INTO MR.
28 WESTERFIELD'S BACKYARD, WHO SAID IT WAS UNUSUAL TO HAVE THE
9597
1 CURTAINS SHUT. REMEMBER? THAT'S WHO SHE WAS. MS. HOEFFS. SHE
2 SAID SHE SAW THE MOTOR HOME DOORS OPEN. THOSE DOORS WERE OPEN,
3 FOLKS. THAT'S ACCESS. CAN I PROVE TO YOU WHEN THEY GOT THERE?
4 NO. CAN THEY? NO.
5 THE BLINDS WERE SHUT, SAYS MS. HOEFFS, THE LIGHT
6 WAS ON. THAT'S UNUSUAL? TO A TRAINED LAW ENFORCEMENT OFFICER?
7 WELL, WHAT TOOK HER SO LONG TO REPORT IT TO THE POLICE? SHE
8 WAITED DAYS. IF IT'S SUCH A BIG DEAL, THERE'S HUNDREDS OF
9 POLICE IN THE AREA. WHAT'S SHE WAITING FOR? GODOT: SHE DIDN'T
10 REPORT THIS, QUOTE "UNUSUAL CIRCUMSTANCE," UNQUOTE FOR DAYS.
11 THE NEIGHBOR PAUL WONG: FOR FOUR YEARS HE'S A NEXT DOOR
12 NEIGHBOR. THERE'S NOTHING UNUSUAL ABOUT THE MOTOR HOME BEING
13 THERE. IT'S THERE ALL THE TIME. MARK ROEHR: ANOTHER TIME YOU
14 SAW SOME AGGRESSION IN CROSS-EXAMINATION, REMEMBER THAT? DIDN'T
15 LIKE THE ANSWERS TOO MUCH. THE CROSS-EXAMINATION, BECAUSE THIS
16 WAS A DEFENSE WITNESS NOW. FOR SOME REASON THE PROSECUTION
17 EXERCISING ITS ADVERSARY TACTICAL RIGHT CHOSE NOT TO CALL THE
18 ROEHRS. BUT THE CROSS LET YOU KNOW HOW THEY FELT ABOUT THEM.
19 REGARDLESS, IN THE SAME WAY MR. LASPISAS HELD HIS OWN. HE DID.
20 HE TOLD THE TRUTH. HE TOLD THE TRUTH. IN THE FACE OF THE
21 PRESSURE OF A VERY, VERY EXPERIENCED PROSECUTOR. DAVID
22 WESTERFIELD'S FRIENDLY. I'VE BEEN TO HIS HOUSE MANY TIMES. WE
23 WENT INTO THE MOTOR HOME. WHOOPS, TRANSFER. WHAT KIND OF
24 CARPET FIBERS COULD COME IN IF THEY DID THAT? WHOOPS, IT'S THE
25 SAME NEIGHBORHOOD. WHOOPS, THEIR HOUSE WAS BUILT AT THE SAME
26 TIME AS THE VAN DAM'S. BEEN TO MR. WESTERFIELD'S HOUSE MORE
27 THAN TWO DOZEN TIMES. JANET ROEHR: THE MOTOR HOME'S OUT ALL
28 THE TIME. IT'S A PAIN. WE TALK ABOUT IT. IN FACT, BRENDA VAN
9598
1 DAM TALKED TO RICH BRADY ABOUT WHAT A PAIN THE MOTOR HOME WAS
2 BECAUSE THEY HAVE CC&RS, COVENANTS, CONDITIONS AND RESTRICTIONS
3 IN THIS SABER HILLS SPRINGS NEIGHBORHOOD WHICH REQUIRES THEM TO
4 COMPORT WITH CERTAIN REQUIREMENTS, IE., YOU CAN'T LEAVE YOUR CAR
5 PARKED IN A PARTICULAR LOCATION FOR TOO LONG.
6 AGAIN I SAY TO YOU, IF WE WERE ABLE TO PRODUCE A
7 SINGLE WITNESS THAT WOULD HAVE SAID THEY SAW DANIELLE PLAYING IN
8 THE MOTOR HOME WOULD WE BE HERE TODAY? DOES THAT FAILURE OF
9 PROOF ON OUR PART MEAN THAT THEY PROVE SHE WAS THERE, OR IS THAT
10 JUST YET ANOTHER INTERPRETATION? WE HAVE AN ACCESS ISSUE. AND
11 YET, WE HAVE TIME OF DEATH TO TALK ABOUT.
12 I COMPLIMENTED THE SAN DIEGO POLICE DEPARTMENT FOR
13 THEIR WORK, BUT I'VE GOT A COUPLE OF COMPLAINTS TO LODGE WITH
14 YOU ON WHAT THEY DID WITH REGARD TO THE D. N. A. I WANT TO KNOW
15 HOW THAT BLOOD GOT THERE. YOU HAVE A RIGHT TO KNOW HOW THAT
16 BLOOD GOT THERE. THE ONLY WAY ANY OF US COULD KNOW IS IF WE
17 WERE ABLE TO GET A BLOOD SPATTER EXPERT, SOMEONE WHO UNDERSTANDS
18 THAT IF THERE'S SALIVA -- OR I CAN'T REALLY DO THIS, BUT IF YOU
19 THINK OF THIS IT THIS WAY. IF THERE'S A HAMMER THAT HIT
20 SOMEBODY AND COMES BACK, THERE'S A SPATTER. THAT'S WHAT
21 HAPPENS. IF I PUT MY PEN IN THIS AND WENT WONK, THERE WOULD BE
22 A PATTERN. IF THIS PEN LEAKED AND I WENT WONK, IT WOULD LEAK,
23 IT WOULD DROP, IT WOULD DEPOSIT. WE NEED TO KNOW WHAT THAT
24 LOOKED LIKE. MS. PEER, WHAT DID IT LOOK LIKE? HOW BIG WAS IT?
25 I DON'T REMEMBER. WHAT? OH, I JUST REMEMBERED IT'S A QUARTER
26 OF AN INCH. WAIT A MINUTE, MA'AM. IN THIS COURTROOM FOR THE
27 VERY FIRST TIME YOU ARE, THE TECHNICIAN, WHOSE RESPONSIBILITY IT
28 IS TO EVALUATE PRESENCE OR ABSENCE OF BLOOD, TO COME TELL THE
9599
1 JURY IT'S ONE TIMES TEN TO 240 ZEROS, IT'S YOUR JOB TO DO THOSE
2 CALCULATIONS AND YOU DID NOT PRESERVE THE EVIDENCE? YOU NEVER
3 TOOK A PICTURE OF THE WAY IT LOOKED AT THE SCENE? NO.
4 SO IT'S IMPOSSIBLE FOR ME TO DISCUSS WITH YOU
5 WHETHER IT WAS A DROP, WHICH YOU HEARD AN ARGUMENT MADE, A
6 SPLATTER, A TRANSFER, ANYTHING. WE DON'T KNOW. MR. SORIANO,
7 SAME PROBLEM. WITH MR. SORIANO WE SCANNED UP A PICTURE. YOU'LL
8 SEE IT. 121. YOU DIDN'T TAKE PICTURES OF THE JACKET. REMEMBER
9 WE LOOKED AT THAT JACKET AS HARD AS WE COULD. ALL WE SEE IN
10 COURT IS TWO HOLES. TWO HOLES. THIS DOES NOT TELL US WHAT DID
11 IT LOOK LIKE. IT JUST TELLS US THE CUT. DID YOU TAKE A
12 PICTURE, MR. SORIANO? (DEFENSE COUNSEL SNAPS FINGERS). NO.
13 TOOK A POLAROID WHICH WE BLEW UP WHICH DOESN'T SHOW ANYTHING.
14 YOU CAN'T TELL ANYTHING. WHEN DID THIS GET HERE? BEYOND A
15 REASONABLE DOUBT. WHEN DID THIS GET HERE? THEY DIDN'T TAKE
16 PHOTOS THAT WOULD ALLOW US TO TELL HOW THE BLOOD GOT THERE.
17 THEY DIDN'T DO ANYTHING THAT ALLOWS US TO KNOW HOW IT GOT THERE,
18 WHEN IT GOT THERE OR HOW LONG IT WAS THERE.
19 YOUR HONOR, I'M ALMOST --
20 THE COURT: ALL RIGHT. WE'LL TAKE A BREAK.
21 ALL RIGHT. LADIES AND GENTLEMEN, PLEASE REMEMBER
22 THE ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE
23 OR TESTIMONY, NOR FORM OR EXPRESS ANY OPINIONS ON THE MATTER
24 TILL IT'S SUBMITTED TO YOU.
25 PLEASE BE OUTSIDE THE DOOR AT 2:15. QUARTER AFTER
26 2:00.
27 (AT 2:00 P.M. THE COURT WAS IN
RECESS UNTIL 2:15 P.M.)
28
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