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.
9280
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
9289
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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