02082 – august 2nd 2002 -Transcript of David Westerfield Trial Day 27 – morning 2

TRIAL Day 27- Part 2 – morning 2


SAN DIEGO, CALIFORNIA, FRIDAY, AUGUST 2, 2002, morning 2


Instructions and misc.. No testimony


9279

1 THE COURT: THAT BRINGS US TO 8.70. I’M NOT SURE OF THE

2 APPLICABILITY OF THIS INSTRUCTION GIVEN THE COURT’S RULING.

3 MR. CLARKE: IT APPEARS THE USE NOTE TO 8.70 SAYS “DO NOT

4 GIVE THIS INSTRUCTION.”

5 THE COURT: THAT’S EXACTLY RIGHT. SO YOU WANT ME TO MARK

6 THAT AS PROFFERED BY THE DEFENSE?

7 MR. BOYCE: YES, YOUR HONOR.

8 THE COURT: ALL RIGHT.

9 THAT PRESERVES THE INTEGRITY OF THE ISSUE YOU’VE

10 RAISED. SO 8.70 WILL BE INDICATED AS PROFFERED BY THE DEFENSE.

11 IT WILL NOT BE GIVEN BY THE COURT.

12 ALL RIGHT. THEN THAT BRINGS US TO 9.50, WHICH IS

13 THE SUBSTANTIVE OFFENSE OF KIDNAPPING AS CHARGED IN COUNT TWO.

14 NOW, IT WOULD APPEARS THAT THE BRACKETED PORTIONS IN PARAGRAPH

15 THREE OTHER THAN THE LAST SENTENCE WOULD ALL BE APPROPRIATE.

16 ALL RIGHT.

17 MR. DUSEK: YES.

18 THE COURT: DOES EVERYBODY AGREE THAT THE LAST BRACKETED

19 PORTION IN PARAGRAPH THREE SHOULD NOT BE GIVEN?

20 MR. DUSEK: YES.

21 THE COURT: ALL RIGHT.

22 MR. BOYCE: AND WE HAVE, YOUR HONOR, REQUESTED, BASED ON

23 THE HILLHOUSE CASE, THE ADDITIONAL REQUIREMENT THAT THE MOVEMENT

24 MUST HAVE COMMENCED AT A TIME WHEN THE PERSON WAS STILL ALIVE.

25 THE COURT: ALL RIGHT. THANKS.

26 MS. JONES: SPECIAL NUMBER 10, PAGE 11.

27 THE COURT: THANK YOU.

28 THE COURT: ALL RIGHT.

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1 THE PEOPLE? ALL RIGHT, MR. CLARKE.

2 MR. CLARKE: YES. I THINK THE ONLY COMMENT WE HAVE, YOUR

3 HONOR, IS THE CALJIC INSTRUCTION IS USED FOR LIVE PERSONS, AS

4 YOU CAN SEE. IT’S KIDNAPPING EVEN WITHOUT RELATIONSHIP TO

5 MURDER. I THINK THAT ALONG WITH THE LANGUAGE OF FEAR, FORCE, NO

6 CONSENT, THOSE ARE ALL ASSUMING A LIVE PERSON, SO WE DON’T FEEL

7 THERE’S A NEED TO MODIFY CALJIC.

8 THE COURT: ALL RIGHT.

9 MR. BOYCE.

10 MR. BOYCE: YOUR HONOR, 9.50 DOES NOT MAKE EXPLICITLY

11 CLEAR THAT IT REQUIRED A CALIFORNIA SUPREME COURT CASE TO DO IT,

12 A 2002 CASE. I BELIEVE THAT THAT’S THE APPROPRIATE ADDITION TO

13 THE DEFINITION OF KIDNAPPING TO MAKE IT CLEAR TO THE JURY THAT

14 ANY MOVEMENT HAD TO COMMENCE AT A TIME WHEN THE PERSON WAS STILL

15 ALIVE FOR THE DEFINITION OF KIDNAPPING. IT’S NOT MADE CLEAR

16 ANYWHERE ELSE IN THE INSTRUCTION.

17 THEIR THEORY IS IF SHE WAS — IF DANIELLE WAS DEAD

18 IN THE BED, THEN WHOEVER DID THIS, WHETHER IT’S MR. WESTERFIELD

19 OR SOMEBODY ELSE, UNDER THEIR THEORY THEY’RE NOT GUILTY.

20 THE COURT: WELL, FRANKLY, I DON’T SEE THIS AS CAUSING A

21 PROBLEM FOR EITHER SIDE BECAUSE THERE’S NO WAY — WELL, I’M NOT

22 GOING TO COMMENT ON ALL OF THE EVIDENCE THAT INDICATES THAT SHE

23 WAS STILL ALIVE, BUT IT APPEARS TO ME THAT IT’S A PROPER

24 STATEMENT OF THE LAW AND THAT THE INSTRUCTION, AS I READ IT, IN

25 THE DEFINING PARAGRAPH, WHICH IS PARAGRAPH TWO OF 9.50, IT

26 DOESN’T SPECIFICALLY STATE THAT.

27 SO WHAT I’LL ASK MR. BOYCE IS, YOU PREPARE A CLEAN

28 COPY OF 9.50 ADDING THE FOURTH ELEMENT AND I’LL ALLOW IT OVER

9281

1 THE OBJECTION OF THE PEOPLE.

2 MR. CLARKE: WE CAN PREPARE THAT IF YOU WANT, YOUR HONOR.

3 WE’RE GOING TO MODIFY ALL OF THESE.

4 THE COURT: THAT’S FINE. THAT WOULD BE FINE. I’M SURE

5 THE DEFENSE DOESN’T MIND.

6 ALL RIGHT. 9.52 WILL BE GIVEN. 8.80.1 NEEDS TO BE

7 MODIFIED.

8 MS. JONES: YOUR HONOR, WE’VE PROPOSED SOME MODIFICATIONS

9 TO THAT IN OUR SPECIAL NUMBER ONE AT PAGE TWO OF OUR PACKET.

10 THE COURT: ALL RIGHT. THANK YOU.

11 ALL RIGHT. MR. CLARKE.

12 MR. CLARKE: JUST A COUPLE OF COMMENTS. FIRST, IT

13 APPEARS THE DEFENSE VERSION DROPPED THE NAMES THAT WAS IN THE

14 PROFFERED INSTRUCTION BY THE PEOPLE. AND THEY ALSO APPEAR TO

15 HAVE DELETED THE LANGUAGE IN CALJIC ABOUT THE ABSENCE OF ANY

16 REQUIREMENT OF SPECIFIC INTENT. SO WE FEEL THAT THOSE — THAT

17 LANGUAGE IS IN THERE FOR A REASON AND IT SHOULD BE MAINTAINED.

18 THE COURT: WHAT ABOUT PARAGRAPH FOUR?

19 MR. CLARKE: THAT WE DON’T BELIEVE IS APPROPRIATE BECAUSE

20 THIS IS NOT A CASE OF AN ACCOMPLICE.

21 THE COURT: IT APPEARS THAT THAT’S WHAT IT’S DESIGNED

22 FOR.

23 DOES THE DEFENSE WANT TO MAKE ANY KIND OF AN

24 ARGUMENT ON THAT?

25 MR. BOYCE: WE’RE DELETING IT.

26 THE COURT: YES.

27 MR. BOYCE: WE AGREE, YOUR HONOR.

28 THE COURT: I’LL DO THAT RIGHT NOW.

9282

1 MS. JONES: AND I BELIEVE PARAGRAPH FIVE AS WELL, YOUR

2 HONOR, IS A CONTINUATION OF THAT.

3 THE COURT: I’LL GET FOUR OUT OF THE WAY AND THEN I’LL —

4 FIVE.

5 THE COURT: AND THEN THAT LAST PARAGRAPH, YOU’RE CORRECT,

6 MS. JONES, RELATES TO THE PARAGRAPH IMMEDIATELY PRIOR TO IT

7 WHICH THE COURT HAS DELETED.

8 ALL RIGHT. SO THE COURT WILL MARK FOR THE RECORD

9 PROFFERED INSTRUCTION NUMBER ONE FROM THE DEFENSE AND IT WILL

10 NOT BE GIVEN.

11 THE COURT WILL GIVE 8.80.1 AS OUTLINED IN CALJIC.

12 I HAVE, HOWEVER — I THINK I HAVE ANOTHER COPY OF THE VERY SAME

13 ONE FROM A DIFFERENT PLEADING, SO I’M GOING TO ALSO MARK THAT

14 ONE.

15 ALL RIGHT. THEN WE HAVE 8.81.7.

16 MR. BOYCE: YOUR HONOR, JUST FOR THE RECORD, ON 8.08.0.1

17 WE ARE REQUESTING INTENT TO KILL. WE BELIEVE THAT CONCERNS

18 OF — 8TH AMENDMENT CONCERNS OF CRUEL AND UNUSUAL PUNISHMENT,

19 AND ALSO A RELIABLE SPECIAL CIRCUMSTANCE DETERMINATION FOR

20 IMPOSITION OF MURDER AND ALSO DUE PROCESS UNDER THE FIFTH, SIXTH

21 AND 14TH AMENDMENTS, REQUIRE THAT A SPECIFIC INTENT BE FOUND BY

22 THE JURY.

23 THE COURT: ALL RIGHT. ALL THOSE — GO AHEAD.

24 MR. BOYCE: ALSO THAT AND UNDER 8.27 FOR THE SPECIAL —

25 OR FOR THE FELONY MURDER THEORY, TOO. I THINK WE PUT OFF

26 DECIDING RULING ON THAT BUT WE’RE REQUESTING FOR BOTH.

27 THE COURT: ALL THOSE OBJECTIONS ARE DULY NOTED, AND THE

28 COURT DOES NOT INTEND TO GIVE SPECIFIC INTENT AS IT RELATES TO

9283

1 THE MURDER FOR THE REASONS PREVIOUSLY NOTED.

2 ALL RIGHT. THAT BRINGS US TO 8.81.17 THE

3 BRACKETED PORTION IN THE INSTRUCTION COMES OUT BECAUSE I HAVE

4 DEFINED IT.

5 NOW, THERE’S A SPECIALTY INSTRUCTION. IS THIS A

6 SPECIALTY INSTRUCTION FROM THE PEOPLE LABELED NUMBER ONE?

7 MR. DUSEK: YES.

8 MS. JONES: YES.

9 THE COURT: OKAY.

10 ALL RIGHT. MR. BOYCE.

11 MR. BOYCE: YOUR HONOR, WE BELIEVE THAT THIS IS

12 ADEQUATELY COVERED UNDER 9.50 AND THE SPECIAL CIRCUMSTANCE AND

13 REQUEST THAT IT NOT BE GIVEN.

14 THE COURT: ALL RIGHT.

15 PEOPLE CARE TO RESPOND?

16 MR. DUSEK: ONLY THE KIDNAPPING IS MUCH LIKE THE ROBBERY

17 AND BURGLARY SITUATIONS FOR FELONY MURDER AND THE SPECIAL

18 CIRCUMSTANCES. THE JURY NEEDS TO KNOW HOW LONG THE CRIME GOES

19 SO THAT THEY CAN MAKE THE DETERMINATION AS TO WHETHER OR NOT

20 THAT HOMICIDE IS COMMITTED DURING THAT TIME PERIOD.

21 THE COURT: ALL RIGHT.

22 IT IS A CORRECT AND PROPER STATEMENT OF THE LAW

23 AND, GIVEN THE FACTS OF THIS CASE, APPEARS APPROPRIATE.

24 MR. CLARKE, I’LL ASK THAT YOU PREPARE A CLEAN COPY

25 DELETING THE HEADING AND THE AUTHORITY.

26 MR. BOYCE: AND ALSO THE ATTEMPTED COMMISSION, I BELIEVE.

27 THE COURT: OH, AND THE WORDS “ATTEMPTED COMMISSION.”

28 THAT’S RIGHT, I DID SEE THAT.

9284

1 MR. CLARKE: I WILL, YOUR HONOR.

2 THE COURT: ALL RIGHT.

3 ALL RIGHT. THEN WE HAVE 8.83 WHICH WILL BE GIVEN

4 AND WE HAVE 8.83.1 THAT RELATES TO THE SPECIFIC INTENT. I’LL

5 TAKE OUT “MENTAL STATE” WHEREVER IT APPEARS.

6 THEN 8.83.2 WILL BE GIVEN. THAT BRINGS US TO COUNT

7 THREE, THE POSSESSION OF THE IMAGES. AND IN THAT REGARD, I HAVE

8 FROM A PRIOR PLEADING A NUMBER OF PROFFERED INSTRUCTIONS FROM

9 THE DEFENSE AND I BELIEVE, MS. JONES, YOU HAVE SOME OTHERS IN

10 THE NEW PACKAGE; IS THAT CORRECT?

11 MS. JONES: I DO, YOUR HONOR. AND I TOLD COUNSEL THAT

12 I’VE REWRITTEN THE SUBSTANTIVE INSTRUCTION THAT’S NUMBER FOUR

13 PAGE THREE, BECAUSE I INADVERTENTLY OMITTED ONE OF THE ELEMENTS.

14 AND IN REVIEWING THEIR PROPOSED INSTRUCTION, I SAW THAT WE HAD

15 FORGOTTEN THAT ELEMENT. SO WE SHOULD BE GOING FROM TODAY’S

16 PACKET IN TERMS OF ALL THOSE.

17 THE COURT: TODAY’S PACKET, OKAY. SO I’LL WITHDRAW LAST

18 WEEK’S PACKET. OKAY.

19 ALL RIGHT. MR. CLARKE, ARE YOU GOING TO BE

20 RESPONDING TO SPECIAL INSTRUCTIONS PROFFERED BY THE DEFENSE?

21 MR. CLARKE: YES, AT LEAST THIS ONE.

22 THE COURT: ALL RIGHT.

23 MR. CLARKE: IF THAT’S ACCEPTABLE.

24 HAVING READ THIS THIS MORNING, CERTAINLY THE

25 ADDITION ALLEVIATED ONE CONCERN. BUT I BELIEVE THAT OUR

26 CONSTRUCTION COVERS THIS MORE CLEARLY. THERE’S SOME ADDITIONAL

27 TERMINOLOGY WE BELIEVE IS UNNECESSARY. “SEXUAL STIMULATION OF

28 THE VIEWER” IS NOT CONFUSING IN OUR VIEW. I THINK THAT’S VERY

9285

1 CLEAR. AND WHILE THESE ADDITIONAL FACTORS ARE DISCUSSED IN THE

2 CASE CITED BY COUNSEL, IT’S NOT AN INSTRUCTION CASE.

3 PEOPLE VERSUS KONGS ACTUALLY MAKES REFERENCE TO

4 SOME FEDERAL OPINIONS THAT ARE I THINK OF QUESTIONABLE

5 ASSISTANCE IN THIS PARTICULAR CASE. WE THINK THIS IS A FAIRLY

6 SIMPLE ISSUE AND THAT, IN FACT, WITHOUT DEFINING THE TERM IT’S

7 MORE CLEAR AND CONCISE. WE JUST DON’T BELIEVE IT’S NECESSARY.

8 THE COURT: ALL RIGHT.

9 MR. BOYCE.

10 MS. JONES: ACTUALLY, YOUR HONOR, I’M GOING TO ADDRESS

11 THIS ONE.

12 THE COURT: ALL RIGHT.

13 MS. JONES, YOU GET A CHANCE AT IT.

14 MS. JONES: THANK YOU, YOUR HONOR.

15 THE COURT: ALL RIGHT.

16 MS. JONES: I THINK, FIRST OF ALL, THE PROSECUTION’S

17 DESCRIPTION OF SEXUAL CONDUCT INCLUDES DESCRIPTIONS THAT ARE NOT

18 PROFFERED IN THE EVIDENCE HERE. ALTHOUGH THERE WERE DISCUSSIONS

19 REGARDING IMAGES OF BEASTIALITY, NONE OF THEM, I DON’T THINK,

20 WERE REGARDING ANY SORT OF ALLEGED IMAGES OF MINORS. AND SO, I

21 THINK IT FOCUSES THE JURY ON IMAGES THAT HAVE NOTHING TO DO WITH

22 THIS COUNT AND IS UNDULY PREJUDICIAL.

23 SECONDLY, I THINK THAT WHAT THE CASE KONGS THAT WE

24 CITED POINTS OUT IS THAT IT’S VERY DIFFICULT IF YOU’RE HAVING A

25 PHOTOGRAPH OF AN ALLEGED MINOR THAT’S NOT EXPLICITLY ENGAGED IN

26 WHAT MOST PEOPLE RECOGNIZE AS SEXUAL CONDUCT, IE., SEXUAL

27 INTERCOURSE OR MASTURBATION, BUT THERE IS DIFFICULTY IN THE JURY

28 TRYING TO FIGURE OUT IS THAT SEXUAL CONDUCT OR NOT.
9286

1 AND THE FACTORS THAT WE TOOK FROM KONGS GIVE THE

2 JURY SOME DIRECTION IN HOW TO DETERMINE WHETHER THOSE IMAGES

3 ACTUALLY INVOLVE SEXUAL CONDUCT AS WELL.

4 AND I WOULD ALSO POINT THE COURT’S ATTENTION TO OUR

5 SPECIAL INSTRUCTION I THINK SUBMITTED THE OTHER DAY THAT FROM

6 CANTRELL, THAT SAID MERE NUDE PHOTOGRAPHS NOT CONSTITUTE — IT’S

7 OUR SPECIAL INSTRUCTION NUMBER FIVE THAT WE SUBMITTED

8 PREVIOUSLY. MERE NUDE PHOTOGRAPHS DO NOT CONSTITUTE SEXUAL

9 CONDUCT OF PROHIBITED MATTER UNDER THE STATUTE.

10 I THINK THAT’S GOING TO BE A DIFFICULT CONCEPT FOR

11 THE JURY TO UNDERSTAND. I THINK THAT THERE’S LIKELIHOOD THAT

12 THEY’RE GOING TO BE DISTURBED THAT THERE’S PHOTOS OF NUDE

13 CHILDREN, BUT THEY HAVE TO BE FOCUSED ON WHAT ACTUALLY VIOLATES

14 THE LAW ON THIS POINT.

15 AND SO I THINK OUR INSTRUCTION MORE PROPERLY

16 FOCUSES THEIR ATTENTION ON WHAT THEY NEED TO CONSIDER IN MAKING

17 A DETERMINATION WHETHER THESE IMAGES ARE ILLEGAL.

18 THE COURT: ALL RIGHT.

19 MR. CLARKE.

20 MR. CLARKE: YOUR HONOR, CAN I INQUIRE FIRST WHICH

21 INSTRUCTION THE COURT HAS FROM THE PEOPLE? WE HAVE FOR SOME

22 REASON A POTENTIAL OF A MISTAKE.

23 THE COURT: OH, I’VE GOT WHAT APPEARS TO BE A PRETTY

24 STANDARD ADAPTATION OF 3.11.10 SUB (A).

25 MR. CLARKE: WHAT’S IT TITLED AT THE TOP, IF I MIGHT ASK?

26 THE COURT: POSSESSION OR CONTROL OF MATTER DEPICTING

27 SEXUAL CONDUCT OF A PERSON UNDER THE AGE OF 18.

28 MR. CLARKE: ALL RIGHT. THAT I BELIEVE IS AN INCORRECT

9287

1 INSTRUCTION SUBMITTED BY US.

2 MS. JONES: OH.

3 MR. CLARKE: BECAUSE IT DOES NOT DEFINE SEXUAL CONDUCT,

4 WHICH MUST BE DEFINED.

5 THE COURT: MS. JONES, I THINK YOU’RE ABOUT TO READY TO

6 EARN YOUR GOLD STAR.

7 MS. JONES: WE DON’T HAVE THAT ONE EITHER.

8 THE COURT: I THINK YOU DO.

9 MS. JONES: WE DON’T HAVE THEIRS BUT OURS OFFERS A

10 DEFINITION.

11 THE COURT: YOURS DOES DEFINE IT.

12 MR. CLARKE: I THINK THE WRONG INSTRUCTION WAS SUBMITTED.

13 PERHAPS WE WOULD SUBMIT IT TO THE COURT AND ADDRESS IT AT A

14 CONVENIENT TIME TO THE COURT AND COUNSEL.

15 THE COURT: ACTUALLY, I’VE REVIEWED IT. MY FEELING ON

16 THE PROFFERED INSTRUCTION FROM THE DEFENSE, WHICH IS LABELED IN

17 THE CURRENT PACKAGE “PROPOSED INSTRUCTION NUMBER FOUR”, APPEARS

18 TO CLEARLY AND ACCURATELY DEFINE WHAT THE JURY IS REQUIRED TO DO

19 IN TERMS OF THE FINDINGS THEY HAVE TO MAKE.

20 IT ALSO APPEARS TO ADEQUATELY DEFINE THE NATURE OF

21 THE IMAGES. PROPOSED INSTRUCTION NUMBER FIVE FROM THE PRIOR

22 PACKAGE IS AN ACCURATE STATEMENT OF THE LAW. AND SINCE WE HAVE

23 ANIME’, I THINK I HAVE TO GIVE THE PROPOSED INSTRUCTION NUMBER

24 SIX.

25 MS. JONES: AND, YOUR HONOR, AS TO THE PROPOSED SIX, I

26 WOULD POINT OUT THAT THAT’S AN AMENDMENT FROM — WE SUBMITTED

27 THAT PREVIOUSLY AND I AMENDED TODAY’S PACKET TO INCLUDE THE

28 ACTUAL TERM “ANIME'” AND I CHANGED “COMPUTER GENERATED IMAGES” 9288

1 TO “COMPUTER MODIFIED IMAGES” BECAUSE I THINK THAT MORE

2 APPROPRIATELY REFLECTS THE HOLDING IN ASHCROFT.

3 MR. CLARKE: IN THE VERSION THAT WE HAVE WE ARE SAYING

4 THE SAME THING. I DON’T HAVE A REAL PROBLEM WITH THE

5 INSTRUCTION THEY’VE SUBMITTED. THERE IS A TERM THAT I THINK

6 CERTAINLY SHOULD COME OUT AND THAT’S THE TERM “PORNOGRAPHY.”

7 THE CRIME HAS NOTHING TO DO WITH PORNOGRAPHY, EVEN THOUGH WE

8 HAVE USED THAT TERM OBVIOUSLY VERY LOOSELY.

9 THE COURT: I’LL TELL YOU WHAT WE’LL DO. AS MUCH I’D

10 LIKE TO AVOID US GETTING TOGETHER ON MONDAY, BECAUSE I KNOW YOU

11 ALL HAVE BIGGER AND BETTER THINGS TO DO, I WILL GIVE YOU ENOUGH

12 TIME, BECAUSE THIS DEALS WITH THE ENTIRE COUNT THREE, I’LL MAKE

13 TENTATIVE RULINGS AS FOLLOWS, MR. CLARKE, AND THEN ON MONDAY

14 WE’LL GET TOGETHER AND I’LL HEAR YOU.

15 IT WOULD BE THE COURT’S INTENT TO GIVE DEFENDANT’S

16 AMENDED PROPOSED INSTRUCTION NUMBER FOUR, TO GIVE DEFENDANT’S

17 PROPOSED SPECIAL INSTRUCTION NUMBER FIVE AS IT RELATES TO SIMPLE

18 NUDITY, AND TO GIVE DEFENDANT’S AMENDED PROPOSED SPECIAL

19 INSTRUCTION NUMBER SIX.

20 HAVING SAID THAT, I’LL MARK ALL OF THEM FOR

21 DISCUSSION ON MONDAY, AND IT WILL JUST BE A BRIEF HEARING FOR

22 SOME LIMITED PURPOSE. BUT I THINK WE’RE ALL ON THE SAME PAGE

23 AND I WILL WITHDRAW THE PROFFERED INSTRUCTION FROM THE PEOPLE.

24 NOW, THE DEFINING INSTRUCTION FOR 3.11.1 THAT HAS

25 BEEN PROPOSED DOES NOT INCLUDE, HOWEVER, THE WORDING THAT

26 CONTAINS THE DEFINITIONS OF CONSTRUCTIVE AND ACTUAL POSSESSION.

27 SO, MR. CLARKE, IF YOU WANT TO REDO THAT ONE, I’M

28 PERFECTLY WILLING TO LOOK AT IT BECAUSE I NEED TO DEFINE
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1 POSSESSION, EVEN THOUGH WE’VE GOT IT IN A DIFFERENT LOCATION. I

2 LIKE THE FORMAT WITH IT RIGHT IN THERE. SO WE’LL REVISIT THAT

3 ON MONDAY.

4 ALL RIGHT. THEN WE HAVE 1.21, KNOWINGLY DEFINED,

5 AND I MAY OR MAY NOT GIVE 1.24, POSSESSION DEFINED, BECAUSE I

6 THINK IT WILL BE INCLUDED IN THE INSTRUCTION ON COUNT THREE.

7 AND THEN THE PEOPLE ARE GOING TO BRING UP 17.02.

8 MS. JONES: YOUR HONOR, WE HAVE 17.01. THAT’S OUR

9 SPECIAL NUMBER 11 FROM TODAY’S PACKET, PAGE 12 AS TO COUNT

10 THREE.

11 THE COURT: ALL RIGHT.

12 MS. JONES: YOUR HONOR DEFERRED THAT FROM THE OTHER DAY

13 AS WELL.

14 THE COURT: ALL RIGHT.

15 MR. DUSEK: THE PEOPLE WERE GOING TO BRING IT AND THOUGHT

16 WE HAD.

17 THE COURT: ALL RIGHT.

18 WELL, WE’RE GOING TO GATHER TOGETHER BRIEFLY ON

19 MONDAY ANYWAY, SO 17.02, YOU CAN BRING IT IN.

20 PEOPLE’S RESPONSE TO PROFFERED PROPOSED SPECIAL

21 INSTRUCTION NUMBER 11 AS IT RELATES BACK TO COUNT THREE?

22 MR. CLARKE: OH, YES. WE DON’T BELIEVE THAT’S AN

23 ACCURATE STATEMENT OF THE LAW. IF THESE WERE POSSESSIONS AT A

24 DIFFERENT TIME AND PLACE, THEN I THINK THAT WOULD BE

25 APPROPRIATE. BUT IN THIS INSTANCE THIS IS POSSESSION AT THE

26 SAME TIME, SAME PLACE, THEREFORE, AT LEAST FROM MY READING OF

27 CALJIC, IT’S NOT TO BE USED.

28 THE COURT: ALL RIGHT. 9290

1 MS. JONES OR MR. BOYCE.

2 MS. JONES: I’LL ADDRESS IT, YOUR HONOR. THANK YOU.

3 THE COURT: ALL RIGHT.

4 MS. JONES: ALTHOUGH THEY’RE NOT NECESSARILY IN DIFFERENT

5 TIME, I THINK THAT SOME OF THESE IMAGES WERE IN DIFFERENT SPACES

6 IN TERMS OF THE MEDIA THAT THEY WERE PUT ON. AND ONE OF THE

7 PURPOSES OF 17.01 IS TO PERMIT THE JURY TO CONSIDER THE FACT

8 THAT THE DEFENSE IS OFFERING DIFFERENT DEFENSES TO VARIOUS

9 IMAGES. AND WE HAVE MULTIPLE — MULTIPLE DEFENSES TO THE IMAGES

10 HERE.

11 THERE’S SOME IMAGES THAT WE’RE GOING TO BE ARGUING

12 DON’T CONSTITUTE SEXUAL CONDUCT. THERE IS GOING TO BE OTHER

13 IMAGES THAT WE’RE GOING TO BE ARGUING DO NOT DEPICT MINORS, AND

14 THERE’S GOING TO BE A THIRD DEFENSE AS TO ALL THE IMAGES OR MANY

15 OF THE IMAGES, THAT MR. WESTERFIELD DIDN’T POSSESS THEM.

16 SO BECAUSE THERE’S A VARIETY OF DEFENSES AND AGAIN,

17 I THINK GIVEN THE SENSITIVE NATURE OF THE IMAGES THAT WERE

18 PRESENTED TO THE JURY, THERE’S A GREAT POSSIBILITY THAT SOME OF

19 THEM ARE GOING TO BE SO UPSET BY THE IMAGES THAT THEY’RE GOING

20 TO CONVICT JUST BECAUSE THEY SAW PHOTOS THAT LEGALLY DO NOT

21 CONSTITUTE PROHIBITED MATTER UNDER SECTION 311.11. I THINK THEY

22 HAVE TO BE REQUIRED TO UNANIMOUSLY AGREE ON WHICH IMAGE.

23 THE COURT: GIVEN THE LARGE NUMBER OF EXHIBITS AND IMAGES

24 THAT ARE CONTAINED IN THESE MATERIALS AND, EVEN THOUGH THEY HAVE

25 BEEN PARED DOWN TO A MANAGABLE AMOUNT IN THIS TRIAL, IT DOES

26 APPEAR THAT SOME OF THE IMAGES BY DEFINITION MAY NOT BE

27 PROHIBITED IMAGES.

28 AND AS A RESULT WHAT I’LL DO, MS. JONES, IS ASK
9291

1 THAT YOU DO UP A CLEAN COPY OF YOUR PROPOSED NUMBER 11 AND I’LL

2 PUT IT AT THE END OF THIS SERIES. AND I’LL LEAVE THE DOOR OPEN,

3 MR. CLARKE, FOR FULL DISCUSSION ON THAT ON MONDAY, SINCE WE’RE

4 GOING TO HAVE TO VISIT THE ENTIRE ISSUE.

5 MS. JONES: THANK YOU, YOUR HONOR.

6 THE COURT: OKAY.

7 AND THEN THE CLOSING INSTRUCTIONS, I’LL JUST GO

8 THROUGH THEM RAPIDLY BECAUSE WE’VE ALREADY DISCUSSED THEM.

9 17.30, .31, .40, .41., .42, 17.43 AS MODIFIED SHOWING THAT THEY

10 SIMPLY SUBMIT ANY QUESTIONS IN WRITING. 17.45 WITHOUT “IF YOU

11 SO REQUEST.” I’M SAYING I’M GOING TO PUT A COPY OF THE PACKAGE

12 IN. 17.47 WILL BE GIVEN, 17.50 AND 17.53.

13 ALL RIGHT. HAVING GONE THROUGH THEM ALL, I SEE NO

14 MORE PROFFERED INSTRUCTIONS FROM THE DEFENSE AND I SEE NO MORE

15 PROFFERED FROM THE PROSECUTION. SO IT APPEARS THAT WE’VE GONE

16 THROUGH THE ENTIRE GROUP.

17 MR. DUSEK: LET ME GIVE YOU 17.02.

18 THE COURT: OKAY. THAT’S GREAT. THANK YOU.

19 OKAY. YESTERDAY YOU FOLKS ASKED ME ABOUT CLOSING

20 STATEMENTS AND THE AVAILABILITY OF THE LIMITED SEATING IN THE

21 COURTROOM. I’M GOING TO LET YOU KNOW THAT, I MEAN, I’VE TAKEN A

22 LOT OF HEAT FROM A LOT OF COMMENTATORS ON A LOT OF THINGS, BUT I

23 SUSPECT THE ORDER THAT I’M GOING TO MAKE RIGHT NOW IS GOING TO

24 CAUSE A FURY LIKE HAS NEVER BEEN SEEN BEFORE.

25 I HAVE VERY LIMITED SEATING IN THIS COURTROOM, AS

26 I’VE INDICATED, AND WHAT I HAVE DECIDED AS THE MOST EQUITABLE IS

27 THE FOLLOWING:

28 EACH SIDE, MEANING THE PEOPLE AND THE DEFENSE, WILL

9292

1 BE PERMITTED FOUR SEATS IN THE AUDIENCE. BEFORE THE SESSION OF

2 COURT EACH DAY THEY ARE TO DESIGNATE OR INTRODUCE TO STAFF WHO

3 THOSE FOUR PERSONS ARE. YOU CAN ALLOCATE THEM ANY WAY YOU

4 ELECT.

5 MR. AND MRS. VAN DAM WILL BE PERMITTED IN THE

6 COURTROOM WITH ONE SUPPORT PERSON. THAT SUPPORT PERSON CAN BE A

7 FAMILY MEMBER, SOMEONE FROM THE DA’S STAFF, WHOEVER THEY WANT.

8 MR. WESTERFIELD’S IMMEDIATE FAMILY WILL HAVE THREE

9 SEATS AS WELL IF THEY ELECT TO USE THEM. IF THEY ARE NOT GOING

10 TO USE THOSE THREE SEATS, THEY WILL BE TURNED OVER TO THE

11 PUBLIC.

12 IN THE PAST PEOPLE WHO ARE NO LONGER RELATED TO MR.

13 WESTERFIELD HAVE CLAIMED FAMILIAR LINEAGE IN ORDER TO GET THOSE

14 SEATS. THESE WILL HAVE TO BE ACTUAL FAMILY MEMBERS.

15 THE MEDIA SEATS IN THE FRONT ROW REMAIN PLUS ONE ON

16 THE SIDE. THAT’S TEN MEDIA SEATS.

17 WHEN ALL IS SAID AND DONE, THAT IS ONLY GOING TO

18 LEAVE TEN SEATS FOR THE PUBLIC. SO I REALIZE ALL OF YOU WOULD

19 PROBABLY LIKE MORE SEATING BUT THIS MEANS THAT THERE WILL — THE

20 MEDIA WILL NOT BE PERMITTED TO GET ANYONE IN. I MEAN, IT’S

21 GOING TO BE THE DESIGNATED SEATS. CAMERA PERSONNEL CANNOT

22 INVITE ANY GOOD FRIENDS AND FAMILY MEMBERS.

23 I’VE TRIED TO SHOOT IT AS CLOSE TO DOWN THE MIDDLE

24 AS I CAN GO, SO THOSE ARE BASICALLY THE GROUND RULES THERE.

25 FOR THE EDIFICATION OF THE MEDIA, I HAVE MET WITH

26 MY STAFF AND WE HAVE PUT IN PLACE SOME TENTATIVE PLANS AS TO

27 INTERVIEWING THE JURORS. I’LL TALK TO COUNSEL ABOUT THOSE ON

28 THE RECORD AND GET YOUR INPUT BEFORE I SET ANYTHING IN CONCRETE 9293

1 AFTER THE JURY GOES OUT AND AFTER THE ALTERNATE JURORS ARE

2 PLACED ON STANDBY, BECAUSE THERE ARE A NUMBER OF VARIABLES THAT

3 WE NEED TO DISCUSS. BUT I AM THINKING ABOUT IT AND WE ARE

4 WORKING ON IT.

5 AND FOR MR. FELDMAN, FOR YOUR PURPOSES SINCE YOU’VE

6 RAISED THIS ISSUE, I AM LETTING YOU KNOW RIGHT NOW THAT IT

7 APPEARS TO THE COURT THAT, BASED ON THE FEELINGS OF THIS JURY

8 AND EVERYTHING I’VE SEEN TODAY, THAT I DO NOT INTEND TO

9 SEQUESTER THE JURY. I REALIZE YOU’VE MADE THAT REQUEST AND IT’S

10 OVER YOUR OBJECTION.

11 THE STAFF OF THE COURT HAVE MADE INQUIRIES AND, DUE

12 TO THE NUMBER OF ROOMS AND, WHAT SHOULD I SAY, THE SEASON WE ARE

13 IN GETTING THESE FOLKS IN A NICE PLACE THAT I WOULD WANT TO STAY

14 IN, AS EVERYONE IN HERE WOULD, AS OPPOSED TO SOME OTHER PLACE,

15 IT’S BEEN VERY DIFFICULT TO FIND A PLACE WHERE WE COULD

16 BASICALLY ALLOW THEM TO STAY IN CONSECUTIVE NIGHTS. NOT KNOWING

17 HOW LONG THIS IS GOING TO TAKE, SOME PLACES COULD ACCOMMODATE US

18 FOR PERHAPS AS MUCH AS A WEEK, THEN WE’RE THROWN OUT LIKE EVERY

19 OTHER PERSON.

20 SO AT ANY RATE, THAT HASN’T BEEN THE REASON I’VE

21 MADE THE DECISION. IT IS PART OF THE REASON I TAKE INTO

22 ACCOUNT. I THINK THIS JURY CAN STILL DO ITS JOB AND ABIDE BY

23 THE COURT’S ORDER. SO TENTATIVELY AS OF RIGHT NOW MY INTENT

24 WILL BE TO INSTRUCT THEM, THAT THEY’LL BE PERMITTED TO RETURN

25 HOME EACH NIGHT AND SO FORTH.

26 MR. FELDMAN: YOUR HONOR, ON THAT ISSUE.

27 THE COURT: RIGHT.

28 MR. FELDMAN: WE’RE OFF JURY INSTRUCTIONS? 9294

1 THE COURT: YES.

2 MR. FELDMAN: LAST NIGHT AS I WAS DRIVING HOME ON THE

3 MERGE TO 163 AND 15, THE FREEWAY SIGNS WERE READING KIDNAPPING,

4 TWO GIRLS ARE KIDNAPPED AND A LICENSE PLATE.

5 LAST NIGHT YOU KNOW THE READER CAME OUT WITH DAD’S.

6 YOU’VE ALREADY MENTIONED THAT TO THE JURY. I HAVE INFORMATION,

7 I HAVE NOT INDEPENDENTLY CONFIRMED IT, IT’S BEING REPORTED THAT

8 BRENDA VAN DAM HAS CALLED SAMANTHA RUNNION’S MOTHER AND ISSUED A

9 PRESS RELEASE. THERE WAS A WOMAN’S CHAT SHOW THAT APPEARED ON

10 CABLE WITHIN THE PAST 24 TO 48 HOURS WHEREIN NANCY GRACE, WHO IS

11 APPARENTLY A COURT TV COMMENTATOR WHO’S NOT BEEN PARTICULARLY

12 FAVORABLE TO THE DEFENSE, OR ALLEGEDLY NOT PARTICULARLY

13 OBJECTIVE, IS NOW TALKING ABOUT OUR CASE.

14 SO THAT JUST BROADENS THE RANGE OF THE CABLE TV

15 THAT’S NOW BECOME A MINE FIELD. I WANTED TO RAISE THOSE. I

16 DIDN’T KNOW —

17 THE COURT: SURE.

18 MR. FELDMAN: I’M NOT SURE WHETHER YOUR HONOR WAS AWARE

19 OF THAT. FRANKLY, I WAS VERY SURPRISED AT WHAT I SAW JUST

20 DRIVING HOME, THAT OUR TRAFFIC SIGNS ARE NOW COMMUNICATING

21 INFORMATION ABOUT KIDNAPPINGS. AND ALL OF A SUDDEN, I MEAN, YOU

22 KNOW, YOUR HONOR, WE ALL KNOW SUDDENLY THERE’S AN OUTBREAK SINCE

23 THE CASE HAS STARTED AND I THINK IT’S BEYOND ANYTHING ANY OF US

24 CONTEMPLATED. SO I’D ASK YOUR HONOR TO PLEASE KEEP AN OPEN MIND

25 WITH REGARD TO THE SEQUESTRATION. SO I DID WANT TO RAISE THAT

26 ISSUE.

27 THE COURT: I WOULD AGAIN USE THE WORD “TENTATIVELY,” MR.

28 FELDMAN. I MEAN, I’M LEANING THAT WAY. I’M GOING TO INSTRUCT

9295

1 THE JURY THAT WAY UNLESS THERE ARE DRAMATIC CHANGES.

2 I, ON THE WAY HOME, FOLLOW 15 AND 15 AND THE 805

3 MERGE HAD THAT NEW ALERT SYSTEM.

4 MR. FELDMAN: YES.

5 THE COURT: THE ONE I READ WAS THE ONE WHERE THE YOUNG

6 CHILD WAS IN A CAR THAT WAS STOLEN OR HIJACKED OR WHATEVER AND

7 TAKEN INTO MEXICO, TO BE ON THE LOOK OUT FOR. SO THAT’S THE

8 ALERT SYSTEM THAT IS STATEWIDE RIGHT NOW. AND OBVIOUSLY, IF

9 YOU’RE A JUROR DRIVING HOME YOU’RE GOING TO SEE THOSE THINGS.

10 BUT I’VE TALKED TO THIS PANEL, I’VE WATCHED THEM

11 AND, YOU KNOW, I’VE HEARD ABOUT SOME REPRESENTATIONS THAT HAVE

12 BEEN MADE ON THE RICK ROBERTS SHOW THAT SOME CALLER IDENTIFIED

13 SOME JUROR THAT’S LISTENING TO RICK ROBERTS ON A REGULAR BASIS,

14 AND THEN WE HAVE NO NAME AND WE HAVE A HANG UP.

15 IN THE PAST, AS THE FILE WILL REFLECT, WE HAD A

16 LETTER FROM A PERSON THAT OVERHEARD TWO EMPLOYEES AND WAS

17 ABSOLUTELY CERTAIN THAT ONE OF THE PERSONS WAS OUR JUROR AND IT

18 TURNS OUT IT WASN’T. SO YOU KNOW THERE’S A WHOLE LOT OF THINGS

19 OUT THERE BUT I’LL KEEP AN OPEN MIND, AND I’M JUST GIVING YOU A

20 HEADS UP SO YOU KNOW WHAT THE COURT’S THINKING. OKAY.

21 MR. FELDMAN: ON THE SUBSTANTIVE MATTER ON THE MANNER IN

22 WHICH YOUR HONOR PRESENTS THE INSTRUCTIONS TO THE JURY, I RECALL

23 THAT YOUR HONOR SAID, AT LEAST IT’S MY RECOLLECTION, THAT I

24 THOUGHT YOU SAID YOU WERE GOING TO SEND THEM IN JUST AS THEY’RE

25 USUALLY DONE. MY REQUEST WOULD BE THAT YOU REDACT THE TOP. I

26 MEAN, MY PREFERENCE WOULD NOT BE TO HAVE DEFENDANT’S REQUESTED

27 SO AND SO OR PEOPLE’S REQUESTED SO AND SO.

28 THE COURT: NONE OF THE INSTRUCTIONS I SUBMIT WILL HAVE

9296

1 ANY OF THAT ON.

2 MR. FELDMAN: BUT MY EXPERIENCE IS — MY PREFERENCE WOULD

3 BE — MY MOTION WOULD BE THAT THE COURT JUST NUMBER THE

4 INSTRUCTIONS ONE THROUGH WHATEVER, AND SEND THEM IN HOWEVER YOU

5 WANT TO DO THAT, AND THE LAWYERS CAN ARGUE THE INSTRUCTIONS,

6 LADIES AND GENTLEMEN, LOOK TO INSTRUCTION 37. I’VE SEEN THAT

7 DONE IN OTHER CASES AND I’VE ARGUED THAT. THAT WOULD BE A

8 PROPOSAL. BUT HOWEVER YOU WANT TO DO IT, I’VE BEEN THINKING

9 ABOUT THAT PROCESS.

10 THE COURT: WELL, THE PEOPLE WANT TO BE HEARD ON THAT?

11 MR. CLARKE: JUST THAT THE TITLING IS NEUTRAL. IT HELPS

12 JURORS IF THEY WANT TO FIND AN INSTRUCTION. TO FIND IT

13 OTHERWISE, THEY’RE ON A SEARCH.

14 THE COURT: I’LL NOTE THAT AS A REQUEST.

15 MY EXPERIENCE WITH THE HEADINGS AND THE

16 INSTRUCTIONS IS — AND, EVEN THOUGH LAWYERS AREN’T TOTALLY

17 VICTIMS OF HABIT, GENERALLY THEY ARGUE THE CALJIC NUMBER.

18 MR. FELDMAN: RIGHT.

19 THE COURT: AND I THINK THEY’RE BASICALLY NEUTRAL IN

20 TERMS OF THE HEADINGS. SO I’LL NOTE THAT AND DENY THE REQUEST.

21 MR. FELDMAN: AND FINALLY, I THINK YOU HAD INDICATED,

22 YOUR HONOR, YESTERDAY THAT, DEPENDING ON HOW THE SEQUENCE OF THE

23 ARGUMENTS GOES, THAT IF MR. DUSEK WERE TO TAKE UP MOST OF THE —

24 WHATEVER DAY, THAT IT WOULD GO OVER TO THE NEXT DAY.

25 I’M THINKING THAT IF MR. DUSEK FINISHES EARLY

26 ENOUGH ON DAY ONE, WHENEVER THAT MAY BE, THAT I WOULD WANT TO

27 GO — I WOULD WANT SOME TIME THAT DAY, IF YOU WOULD PERMIT THAT.

28 IT WOULD TAKE SOME TIME TO READJUST THE BOARDS AND STUFF

9297

1 DEPENDING ON HOW MR. DUSEK FINISHES IT, IF HE FINISHES ON DAY

2 ONE, IF YOU’LL PERMIT IT, I’LL WANT THE OPPORTUNITY TO START AS

3 SOON AS I CAN.

4 MR. DUSEK: I THINK WE CAN TAKE A FIVE MINUTE BREAK

5 BETWEEN THE ARGUMENTS.

6 THE COURT: YES.

7 MR. FELDMAN: WE MIGHT NEED A LITTLE MORE THAN FIVE

8 MINUTES, DEPENDING ON WHAT HE DOES TO THE CHARTS.

9 THE COURT: I’LL TELL YOU HOW WE’LL HANDLE IT, MR.

10 FELDMAN.

11 I WILL SEE AT WHAT POINT MR. DUSEK CONCLUDES. IF

12 HE CONCLUDES AT 4:15 YOU’RE GOING TO NEED A CERTAIN AMOUNT OF

13 TIME, I’M SURE, TO GET YOUR ARGUMENT PREPARED. IF, HOWEVER, HE

14 FINISHES AT 3 O’CLOCK, AND WE STILL HAVE AN HOUR AND A HALF

15 LEFT, THEN CERTAINLY, YES. NO, I’LL — I’M ALL FOR GETTING THE

16 MATTER TO THE JURY AS QUICKLY AS WE CAN.

17 MR. FELDMAN: THEN ON THE ISSUE OF ARGUMENTS, I KNOW FROM

18 MY OWN EXPERIENCE THAT PEOPLE HAVE TOLD ME I’M A FAIRLY FAST

19 TALKER. AND I ALSO KNOW CANDIDLY THAT THERE’S AN INTENSITY TO

20 THE ARGUMENT THAT’S DIFFERENT THAN ANYTHING ELSE IN THE CASE.

21 MY REQUEST WOULD BE THAT YOU PERMIT US TO TAKE

22 BREAKS DIFFERENT THAN THE ORDINARY BREAKS DURING ARGUMENT,

23 BECAUSE AT ABOUT 50 TO 70 MINUTES, MANY TIMES I SEE THE JURORS

24 GLAZE. AND IN THE PAST I’VE ASKED COURTS TO PERMIT ME TO ASK

25 FOR A RECESS, EVEN IF IT’S FIVE MINUTES TO STRETCH, LET THEM GET

26 OUT AND COME BACK. AND I AM GOING TO MAKE THAT REQUEST OF THE

27 COURT BUT I DON’T WANT TO MAKE THE REQUEST IF YOU’RE GOING TO

28 SAY NO. 9298

1 THE COURT: WELL, NO. GENERALLY SPEAKING, NO, I THINK

2 BREVITY IS THE SPICE OF LIFE. AND I’D LOVE TO THINK THAT

3 THEY’RE GOING TO BE SHORT ARGUMENTS, BUT GIVEN 200 EXHIBITS AND

4 ALL THE ISSUES YOU’VE GOT TO DEAL WITH, IT’S OBVIOUSLY GOING TO

5 TAKE SOME TIME.

6 WHAT I WOULD SUGGEST IS THIS. I WILL INTERRUPT AND

7 BREAK AT 90 MINUTES IF YOU DON’T REQUEST IT AHEAD OF TIME.

8 MR. FELDMAN: THANK YOU.

9 THE COURT: SO IF YOU WANT TO SET A PACE, AN HOUR WITH A

10 15 MINUTE BREAK. I’M SURE CERTAINLY THE COURT REPORTERS WILL

11 APPRECIATE IT. SO I’LL LEAVE THAT TO YOUR STYLE AND HOW IT FITS

12 INTO YOUR PRESENTATION, BUT I WOULD LIKE TO GO AT LEAST AN HOUR

13 A SESSION —

14 MR. FELDMAN: OH, YES.

15 THE COURT: — BECAUSE I THINK THE JURY CAN HANDLE IT.

16 THE SAME WOULD APPLY TO YOU, MR. DUSEK. IF YOU SEE

17 WE’RE GETTING TOWARDS A CERTAIN HOUR AND YOU WANT TO TAKE A

18 BREAK, JUST ASK TO TAKE A BREAK.

19 MR. DUSEK: VERY WELL.

20 THE COURT: AND I’LL GRANT IT.

21 MR. FELDMAN: THANK YOU.

22 MR. DUSEK: THE INSTRUCTING OF THE JURY, I THINK THE

23 COURT PROPOSED A POSSIBILITY YESTERDAY, IF THE DEFENSE PUTS ON

24 EVIDENCE ON TUESDAY, THE COURT INDICATED IT WOULD THEN INSTRUCT

25 RIGHT AFTER THE EVIDENCE.

26 I WILL REQUEST AND DO REQUEST, BECAUSE OF THE SMALL

27 NUMBER OF INSTRUCTIONS, THAT THEY GET THE INSTRUCTIONS BEFORE

28 THE ARGUMENT. I THINK IT’S GOING TO TAKE MAYBE 20 MINUTES TO GO

9299

1 THROUGH THESE.

2 THE COURT: WELL, THAT’S BEING OPTIMISTIC. EVEN THOUGH

3 THEY’RE NOT THE STANDARD PACKAGE, IT’S GOING TO TAKE AT LEAST A

4 HALF HOUR.

5 MR. DUSEK: ALL RIGHT.

6 ANOTHER 10 MINUTES. BUT I THINK IT IS STILL

7 WORTHWHILE HAVING HEARD THE LAW AND THEN THE ARGUMENT RATHER

8 THAN HEARING THE LAW A DAY BEFORE.

9 THE COURT: WELL, ALL RIGHT. WHAT I’LL DO IS I’LL

10 BASICALLY TAKE THAT ONE UNDER SUBMISSION, MR. DUSEK, BECAUSE

11 HERE’S THE SCENARIO THAT I WOULD DENY THE REQUEST.

12 AND THAT IS, THAT ASSUME FOR A MINUTE THE EXPERT IS

13 ACTUALLY CALLED, ASSUME HE COMES IN, ASSUME HE’S DONE AT —

14 BEFORE NOON, THEN WE’VE GOT THE JURY HERE. IT’S ONLY BEEN A

15 HALF DAY, WE’LL TAKE A SHORTENED LUNCH BREAK, AND I WOULD GIVE

16 THEM THE INSTRUCTIONS BECAUSE, FRANKLY, I WOULD LIKE TO KEEP

17 THINGS MOVING.

18 IF, HOWEVER, THE CROSS-EXAMINATION TAKES INTO THE

19 AFTERNOON, THEN THE LAST THING YOU WANT TO DO RIGHT IMMEDIATELY

20 AFTER TESTIMONY IS READ JURY INSTRUCTIONS, BECAUSE NOT ONLY DO I

21 PUT 18 PEOPLE TO SLEEP BUT HALF THE COUNTRY WOULD BE MELLOW AS

22 CAN BE AFTER LISTENING TO IT.

23 SO I’LL JUST TAKE IT UNDER ADVISEMENT AND GIVE YOU

24 A HEADS UP WHEN WE SEE WHAT OCCURS. NOW, OF COURSE, IF THE

25 WITNESS DOESN’T TESTIFY, INSTRUCTIONS ARE FIRST OFF THE BAT.

26 SO OKAY. ANYTHING ELSE?

27 ALL RIGHT. NOW, TOMORROW IT WILL BE FOR THE VERY

28 LIMITED PURPOSE OF WRAPPING UP JUST THESE FEW INSTRUCTIONS — I

9300

1 MEAN MONDAY, EXCUSE ME. THANKS. I’M NOT GOING TO BE HERE

2 EITHER, MR. CLARKE, TOMORROW.

3 MR. CLARKE: OH, WE WILL.

4 THE COURT: WELL, HOW ABOUT DO YOU WANT TO MAKE IT A

5 STANDARD 8:30 SO YOU HAVE THE BALANCE OF THE DAY, OR WOULD YOU

6 PREFER TO GET TOGETHER AT 9:00?

7 MR. FELDMAN: LATER. SOMEWHAT LATER IF YOU WOULD

8 CONSIDER THAT, PLEASE, YOUR HONOR.

9 THE COURT: 9:00?

10 MR. DUSEK: WE’LL BE HERE.

11 THE COURT: IT’S GOING TO BE VERY BRIEF, JUST THE LOOSE

12 ENDS AS IT RELATES TO JURY INSTRUCTIONS.

13 MR. DUSEK: ARE WE GOING TO UNPLUG MR. FELDMAN ALL

14 WEEKEND?

15 THE COURT: I EXPECT THAT YOU GUYS ARE GOING TO BE

16 COMMUNICATING ONE WITH THE OTHER AS THINGS PROGRESS, AS I

17 INDICATED TO YOU YESTERDAY, IN TERMS OF THIS EXPERT.

18 MR. FELDMAN: YES, YOUR HONOR.

19 THE COURT: ALL RIGHT. WE’LL BE IN RECESS THEN UNTIL 9

20 O’CLOCK. THAT WILL BE MONDAY MORNING. 9 O’CLOCK MONDAY

21 MORNING.

22 (AT 11:34 A.M. AN ADJOURNMENT WAS TAKEN
UNTIL 9:00 A.M. MONDAY, AUGUST 5, 2002.)
23
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01084 - august 1st 2002 -Transcript of David Westerfield Trial Day 26 - afternoon 2
01081 - august 1st 2002 -Transcript of David Westerfield Trial Day 26 - morning 1