TRIAL DAY 22 – PART 4 – afternoon 2
SAN DIEGO, CALIFORNIA, WEDNESDAY, JULY 24, 2002, (afternoon 2).
WITNESS:
James M. Watkins (Continued)
8537
1 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN. STILL NO
2 SCORE OUT AT THE MURPH.
3 ALL RIGHT. MR. FELDMAN.
4
5 BY MR. FELDMAN:
6 Q.: GOOD AFTERNOON AGAIN, MR. WATKINS.
7 A.: GOOD AFTERNOON, SIR.
8 Q.: SIR, I’D LIKE TO DIRECT YOUR ATTENTION TO WHAT’S
9 BEEN PREVIOUSLY MARKED COURT EXHIBIT 142.
10 COUNSEL.
11 SIR, 142 APPEARS TO BE A SCREEN CAPTURE, DOES IT
12 NOT?
13 A.: YES, SIR, IT IS.
14 Q.: AND IT’S A — I’M SORRY, 142 IS TWO IN PARTS; 142A
15 AND 142B, IS THAT RIGHT, SIR?
16 A.: YES, SIR. THAT’S CORRECT.
17 Q.: DIRECTING YOUR ATTENTION TO 142A, IT SAYS "C
18 WINDOWS," ACTUALLY IT SAYS "TRIPLE O." ONE IS THE PATH, "C
19 WINDOWS TEMPORARY INTERNET FILES, CONTENT. IE" — I’M SORRY?
20 A.: 5 BACK SLASH K1U7C9EF FORWARD SLASH TEENDREAM. IT
21 GETS CUT OFF.
22 Q.: BUT WE SEE AT THE BOTTOM OF 142 THE "R". THAT
23 MAKES IT TEENDREAMR, IS THAT RIGHT?
24 A.: YES, SIR.
25 Q.: AND THIS IS A SCREEN CAPTURE THAT REFLECTS A TIME
26 OF 2/4/02 AT 4:47:58 P.M. ON 2/4/02, IS THAT RIGHT?
27 A.: YES, SIR.
28 Q.: NOW, IS THIS AN ENCASE SCREEN CAPTURE?
8538
1 A.: YES, SIR, IT IS.
2 Q.: WAS THIS INCORRECTLY DONE?
3 MR. CLARKE: OBJECTION, VAGUE.
4 THE COURT: OVERRULED.
5 THE WITNESS: THE SCREEN CAPTURE WAS CAPTURED VERY WELL,
6 SIR.
7
8 BY MR. FELDMAN:
9 Q.: THEN THE CONTENTS, THEY WERE CAPTURED PRETTY WELL
10 TOO, WEREN’T THEY?
11 A.: YES, SIR.
12 Q.: AND AS TO 142B, SIR, 142B SAYS 2/4/02 AT 4:47:58,
13 CORRECT?
14 A.: YES, SIR.
15 Q.: IT INDICATES, YOU MENTIONED ON I THINK DIRECT,
16 LESBIAN BORDELLO; IS THAT CORRECT, SIR?
17 A.: YES, SIR.
18 Q.: AND IT SAYS ENCASE, IS THAT RIGHT?
19 A.: YES, SIR.
20 Q.: IT’S A SCREEN CAPTURE, IS THAT RIGHT?
21 A.: YES, SIR.
22 Q.: WELL DONE ON THIS ONE, TOO, WASN’T IT?
23 A.: YES, SIR.
24 Q.: SO YOU AGREE 142A AND 142B ARE WELL DONE SCREEN
25 CAPTURES?
26 A.: YES, SIR.
27 Q.: SHOWING YOU WHAT’S BEEN PREVIOUSLY MARKED 143, 143
28 IS ALSO A SCREEN CAPTURE OF DNWEST AT HOTMAIL; CORRECT?
8539
1 A.: YES, SIR.
2 Q.: THIS IS ALSO A — IS THIS A SCREEN CAPTURE, TOO?
3 A.: YES, SIR, IT IS.
4 Q.: AND DOES IT APPEAR TO YOU AS THOUGH ENCASE WAS
5 UTILIZED?
6 A.: ACTUALLY, I’M SORRY, LET ME REPHRASE. THIS
7 ACTUALLY IS NOT A SCREEN CAPTURE.
8 Q.: WHAT WOULD YOU CALL IT, PLEASE?
9 A.: IT’S A PRINTOUT OF THE MESSAGE.
10 Q.: OKAY.
11 WHAT WAS THE MESSAGE — I’M SORRY — YOU JUST TOLD
12 ME IT’S A PRINTOUT OF A MESSAGE, IS THAT RIGHT?
13 A.: IT APPEARS TO BE, YES.
14 Q.: THE MESSAGE IS FROM THE EDITOR AT NEWSLETTER PINK
15 FOR FREE DOT COM, IS THAT RIGHT?
16 A.: YES, SIR.
17 Q.: IT’S MAILED TO DNWEST AT HOTMAIL DOT COM; CORRECT?
18 A.: YES, SIR.
19 Q.: THEN IT SAYS "YOU ARE IN DEFINITELY," IS THAT
20 RIGHT?
21 A.: YES, SIR.
22 Q.: AND IT SAYS 2/4/02; IS THAT RIGHT?
23 A.: YES, SIR.
24 Q.: DNWEST AT HOTMAIL DOT COM; IS THAT RIGHT?
25 A.: YES, SIR.
26 Q.: AND IT SAYS THE FEATURED SITE IS LESBIAN BORDELLO,
27 IS THAT RIGHT?
28 A.: YES, SIR.
8540
1 Q.: AND THEN THERE’S SOME OTHER LANGUAGE WHICH IS
2 SEXUAL IN NATURE IN THE LOWER RIGHT CORNER, IS THAT RIGHT, SIR?
3 A.: YES, SIR.
4 Q.: THIS APPEARS TO BE ACCURATE, DOESN’T IT?
5 A.: YES.
6 Q.: YOU WOULD AGREE THIS IS ACCURATE, RIGHT?
7 A.: THAT IS A E-MAIL MESSAGE, YES, SIR.
8 Q.: DIRECTING YOUR ATTENTION TWO 149 — COUNSEL — SIR,
9 CAN YOU TELL ME WHAT’S 149?
10 A.: 149 APPEARS TO BE A SCREEN CAPTURE OF A SCREEN
11 CAPTURE WITH A — SOME SORT OF A CLASS SCHEDULE OR GRADE OR
12 SOMETHING.
13 Q.: WHOSE NAME IS ON IT?
14 A.: DAVID NEAL WESTERFIELD.
15 Q.: WHICH COMPUTER DID THAT COME OUT OF, DO YOU KNOW?
16 A.: I DO NOT KNOW.
17 Q.: DO YOU KNOW WHICH COMPUTER THE SCREEN CAPTURES OR
18 THE MESSAGES THAT ARE DEPICTED IN 143, 142A AND "B" CAME FROM?
19 A.: THE ONES FROM 142A AND "B" CAME FROM ONE — APPEARS
20 TO COME FROM ONE OF THE COMPUTERS IN THE OFFICE, ONE OF THE H.
21 P.S.
22 Q.: YOU TALKED ABOUT 188. WHICH COMPUTER DID 188 COME
23 FROM?
24 A.: IT CAME FROM ONE OF THE COMPUTERS IN THE OFFICE.
25 Q.: CAN YOU TELL ME WHICH COMPUTER DOWNLOADED WHICH OF
26 THE EXHIBITS THAT I’VE JUST SHOWN TO YOU, SIR?
27 MR. CLARKE: EXCUSE ME. OBJECTION, VAGUE.
28 THE COURT: I THINK WE’RE TALKING — YOU UNDERSTAND WE’RE
8541
1 TALKING ABOUT THE TWO OFFICE COMPUTERS?
2 THE WITNESS: YES, SIR.
3 THE COURT: YOU MAY ANSWER.
4 THE WITNESS: THE — OKAY. THE E-MAIL AND THEN THE
5 ASSOCIATED IMAGES CAME FROM — I BELIEVE IT WAS — IF I CAN
6 REFER TO MY REPORT, SIR?
7
8 BY MR. FELDMAN:
9 Q.: DO YOU HAVE A COPY WITH YOU? I THINK WE HAVE
10 COPIES IN THE COURTROOM.
11 A.: YES, SIR, I DO.
12 Q.: PLEASE, JUST FOR THE RECORD, AND JUST FOR
13 FOUNDATION, SIR, YOU DON’T HAVE AN INDEPENDENT RECOLLECTION;
14 THAT IS TRUE, ISN’T IT?
15 A.: THAT’S CORRECT, SIR.
16 Q.: YOU NEED TO LOOK AT YOUR REPORT TO REFRESH YOUR
17 RECOLLECTION IN ORDER TO ASSIST YOU IN ANSWERING MY QUESTION; IS
18 THAT CORRECT?
19 A.: YES, SIR, THAT IS.
20 Q.: THAT’S, IN FACT, WHAT YOU’RE DOING AT THIS MOMENT?
21 A.: YES, IT IS.
22 Q.: THANK YOU.
23 A.: I’M SORRY, SIR. IT WOULD BE THE HEWLETT PACKARD
24 COMPUTER SITTING ON THE DESK, ON THE RIGHT SIDE OF THE DESK AS
25 YOU’RE SITTING AT THE DESK.
26 Q.: SO PLEASE, BEHIND YOU WE SEE 102. AND YOU’VE JUST
27 DESCRIBED A PARTICULAR COMPUTER. CAN YOU PLEASE, JUST WHICHEVER
28 PHOTO YOU WISH TO, JUST PLEASE TELL US ON THE RECORD WHICH PHOTO
8542
1 YOU’RE LOOKING AT.
2 A.: THIS COMPUTER.
3 Q.: YOU’VE JUST SAID THIS COMPUTER REFERRING TO 102H?
4 A.: THAT IS CORRECT, SIR.
5 Q.: WHEN YOU SAID THESE COME FROM "H", THIS COMPUTER,
6 THE ONE ON THE RIGHT, WHAT — ALL OF THE SCREEN CAPTURES?
7 A.: THE ONE THAT CONTAINED THE E-MAIL THAT WOULD BE
8 ITEM EXHIBIT 143, BOTH OF 142, AND THEN — I’M SORRY — THAT’S
9 WHERE THESE CAME FROM, AND THEN THE INTERNET — I’M SORRY — THE
10 ONE THAT SHOWED THE ATTACK VIDEOS.
11 Q.: SORRY, 188?
12 A.: YES, SIR. 188 CAME FROM THE OTHER COMPUTER WHICH
13 WOULD BE "NG".
14 Q.: ALL RIGHT.
15 NOW I THINK YOU TOLD US ON DIRECT EXAMINATION THAT
16 YOU DIDN’T HAVE THE ABILITY TO TELL IF SOMETHING WAS ON A C. D.
17 WHEN IT WAS LAST ACCESSED, IS THAT RIGHT?
18 A.: CORRECT.
19 Q.: HOWEVER, YOU APPARENTLY HAD THE ABILITY TO TELL, ON
20 THE BASIS OF THE WINDOWS MEDIA PLAYER, THE NUMBER OF TIMES A
21 PARTICULAR FILE WAS ACCESSED; IS THAT CORRECT?
22 MR. CLARKE: OBJECTION, MISSTATES THE EVIDENCE.
23 THE COURT: OVERRULED.
24 YOU MAY ANSWER.
25 THE WITNESS: CORRECT.
26
27 BY MR. FELDMAN:
28 Q.: IN THE WINDOWS OPERATING SYSTEM, IF AN INDIVIDUAL
8543
1 GOES ON LINE OR HAS A PARTICULAR MEDIA FILE, THE WINDOWS
2 OPERATING SYSTEM WILL AUTOMATICALLY DEFAULT INTO THE MEDIA
3 PLAYER; ISN’T THAT CORRECT?
4 A.: YES, SIR.
5 Q.: WITH REGARD TO THE WINDOWS MEDIA PLAYER, YOU WERE
6 ABLE TO GO INTO THE — I GUESS THERE’S A MEMORY PORTION OF THE
7 WINDOWS MEDIA PLAYER TO ASCERTAIN WHAT HAD BEEN PLAYED THERE; IS
8 THAT CORRECT?
9 A.: THAT IS CORRECT.
10 Q.: AND YOU GAVE US 188; IS THAT CORRECT?
11 A.: YES, SIR.
12 Q.: HOW MANY DIFFERENT FILES WERE REALLY THERE AS
13 OPPOSED TO WHAT WE SEE IN 188, IF YOU KNOW?
14 A.: I WOULD SAY A COUPLE HUNDRED.
15 Q.: OKAY.
16 AND AGAIN, DID YOU JUST SELECT THIS — AT WHOSE
17 DIRECTION WAS 188 PREPARED?
18 A.: ACTUALLY, IT WAS AFTER — I WAS RECONSTRUCTING MR.
19 LAWSON’S EXAM, TRYING TO GO THROUGH IT AND MAKE SURE I MISSED
20 NOTHING, AND I FOUND THE — ONE OF THE THINGS I WAS LOOKING AT
21 WITH THE ATTACK VIDEOS WAS PRETTY MUCH ON MY OWN, AND THEN AGAIN
22 I FOUND THE ATTACK VIDEOS.
23 Q.: YOU TESTIFIED, I THINK, THAT SOME OF THE VIDEOS HAD
24 BEEN ACCESSED MORE THAN ONE TIME, IS THAT RIGHT?
25 A.: YES, SIR.
26 Q.: HYPOTHETICALLY, IF I DOWNLOAD A FILE THAT’S CALLED
27 "FELDMAN" AND IT’S A MEDIA FILE AND — IT WILL DEFAULT INTO THE
28 WINDOWS MEDIA PLAYER, IS THAT RIGHT?
8544
1 A.: YES, SIR.
2 Q.: AND THEN WHAT HAPPENS IF MY SON COMES ALONG AND
3 PLAYS THAT FILE?
4 A.: IT WILL GET TRIPPED AGAIN.
5 Q.: OKAY.
6 SO YOU CAN TELL THAT IT’S BEEN TWICE, IS THAT
7 RIGHT?
8 A.: YES, SIR.
9 Q.: YOU JUST CAN’T TELL WHEN, THOUGH, CAN YOU?
10 A.: NO, SIR.
11 Q.: SO, ALTHOUGH A PARTICULAR FILE MIGHT HAVE BEEN
12 PLAYED A HUNDRED TIMES, YOU COULDN’T TELL WHEN THAT HUNDRED WAS;
13 IS THAT CORRECT?
14 A.: THAT IS CORRECT.
15 Q.: AND THAT IS THE CASE WITH REGARD TO ALL C. D.S THAT
16 YOU EVALUATED; IS THAT CORRECT?
17 A.: YES, SIR. THAT IS CORRECT.
18 Q.: I THOUGHT YOU TOLD US THAT THERE WAS A FILE THAT
19 HAD A LAST ACCESS DATE 11/18/01. I THOUGHT IT WAS ONE OF THE
20 VIDEOS ABOUT WHICH YOU’RE SPEAKING, BUT YOU PROBABLY HAVE A
21 BETTER IDEA. I’M JUST NOT SURE WHICH —
22 A.: ACTUALLY, THEY ALL HAD THE LAST — THE ATTACK
23 VIDEOS ALL HAVE A LAST ACCESS DATE OF 11/18.
24 Q.: OFF THE C. D.?
25 A.: OH, I DON’T RECALL OFF THE TOP OF MY HEAD.
26 Q.: IF YOU CAN’T GET — IF THE C. D.S WON’T GIVE YOU A
27 LAST ACCESS DATE, WHERE WERE YOU GAINING THE LAST ACCESS DATE
28 FROM THEN?
8545
1 A.: I’M SORRY, MY MISTAKE. I THOUGHT YOU WERE ASKING
2 ABOUT — I THOUGHT WE WERE STILL TALKING ABOUT THESE FILES.
3 THAT’S WHY I MISSPOKE.
4 Q.: LET ME START AGAIN —
5 A.: PLEASE.
6 Q.: — JUST SO WE’RE CLEAR.
7 I THOUGHT YOU SAID ON DIRECT EXAMINATION THAT YOU
8 LOCATED A FILE THAT WAS LAST ACCESSED NOVEMBER THE 18TH OF 2001,
9 IS THAT RIGHT?
10 A.: WHICH FILE ARE YOU —
11 Q.: THAT WAS MY NEXT QUESTION WAS WHICH FILE WAS IT?
12 A.: I DON’T HAVE — I COULDN’T TELL YOU OFFHAND.
13 Q.: OKAY.
14 DIRECTING YOUR ATTENTION TO 188 —
15 A.: YES, SIR.
16 Q.: — CAN YOU TELL ME WHO ACCESSED THESE FILES?
17 A.: NO, SIR, I CANNOT.
18 Q.: DID YOU ASK NEAL WESTERFIELD, IN THE PRESENCE OF
19 HIS MOTHER AND THE FOUR OTHER MEN IN THE ROOM, WHETHER OR NOT HE
20 WAS ACCESSING LESBIAN BORDELLO?
21 A.: NO.
22 MR. CLARKE: OBJECTION, ARGUMENTATIVE AS PHRASED, YOUR
23 HONOR.
24 THE COURT: OVERRULED.
25 YOU CAN ANSWER THAT EITHER YES OR NO.
26 THE WITNESS: NO.
27
28 ///
8546
1 BY MR. FELDMAN:
2 Q.: DID YOU ASK NEAL WESTERFIELD, IN THE PRESENCE OF
3 THE FOUR OTHER MEN AND HIS MOTHER, WHETHER OR NOT HE WAS VIEWING
4 PORNOGRAPHY?
5 A.: I DIDN’T ASK, NO.
6 Q.: WHO DID?
7 A.: I BELIEVE MR. DUSEK DID.
8 Q.: DID YOU ASK MR. WESTERFIELD WHETHER OR NOT — OR
9 WAS MR. WESTERFIELD, NEAL WESTERFIELD, ASKED, IN THE PRESENCE OF
10 HIS MOTHER AND THE FOUR OTHER MEN, WHETHER OR NOT HE EVER
11 ACCESSED WWW DOT ROHAN DOT SDSU DOT EDU WEB MAIL?
12 A.: I DON’T RECALL SPECIFICALLY.
13 Q.: DO YOU RECALL WHETHER OR NOT, IN THE PRESENCE OF
14 THE MEN AND HIS MOTHER, NEAL WAS ASKED WHETHER HE EVER ACCESSED
15 PIGGS, P-I-G-G-S, HYPHEN, HAUSE, H-A-U-S-E DOT COM?
16 A.: NOT SPECIFICALLY, NO.
17 Q.: DID YOU REVIEW MARCUS LAWSON’S TESTIMONY, SIR?
18 A.: YES, SIR.
19 Q.: DID YOU BOTH READ IT AND WATCH IT?
20 A.: YES, SIR.
21 Q.: DO YOU RECALL THEN THAT PIGGS HAUSE IS A PORN SITE?
22 MR. CLARKE: OBJECTION, MISSTATES THE EVIDENCE.
23 THE COURT: OVERRULED.
24 IT’S WHAT YOU KNOW, SIR.
25 THE WITNESS: WHEN I EXAMINED PIGGS HAUSE IT WAS A
26 GAMING — IT WAS A BOARD — A BULLETIN BOARD, AND I DON’T
27 BELIEVE IT WAS A SEXUAL WEBSITE.
28 ///
8547
1 BY MR. FELDMAN:
2 Q.: ALL RIGHT. THE DOWNLOAD OF HISTORY THAT YOU ARE
3 DOING — I’M SORRY, I DON’T HAVE THE EXHIBIT NUMBER. IT’S WHAT
4 MR. CLARKE SHOWED YOU. COULD YOU TELL ME PLEASE WHAT’S THE
5 NUMBER?
6 A.: CERTAINLY, 158.
7 Q.: 158.
8 WITH REGARD TO 158, DID YOU TAKE NEAL THROUGH EACH
9 OF THE SITES IN 158?
10 A.: NO, I DID NOT.
11 Q.: 158 REFLECTS A SERIES OF ACTIVITIES ON ONE OF
12 THE — DAVID WESTERFIELD SR.’S COMPUTERS, IT LOOKS LIKE ALL OF
13 WHICH OCCURRED ON FEBRUARY THE 4TH, 2002, IS THAT RIGHT?
14 A.: YES, SIR. THAT IS CORRECT.
15 Q.: ON PAGE ONE WE NOTE THAT SOMEWHERE AROUND 1748,
16 WHICH WOULD BE WHAT, 5:48 P.M. THERE’S AT LEAST ONE ENTRY; IS
17 THAT CORRECT?
18 A.: ON 17 — ON PAGE THREE YOU MEAN?
19 Q.: YEAH. IT IS PAGE THREE. I’M SORRY, IT’S THE TOP
20 PAGE, THOUGH, RIGHT?
21 A.: RIGHT. AND IT’S WHAT, COUNSELOR?
22 Q.: WELL, IT STARTS AT 17:48:46. DO YOU SEE THAT?
23 A.: YES.
24 Q.: AND THEN THERE’S 32 SEPARATE CLICKS, ISN’T THERE?
25 A.: SEPARATE CLICKS, SIR?
26 Q.: THERE’S 32 SEPARATE ADDRESSES THAT ARE REFLECTED ON
27 THIS PAGE ALONE, ISN’T THAT TRUE?
28 A.: YES. I’D SAY IT’S PROBABLY NOT A — THAT’S FAIR.
8548
1 Q.: AND IF YOU LOOKED AT PAGE TWO, WE SEE SOME MORE
2 SURFING ACTIVITY THAT STARTS AT 1749 HOURS, IS THAT RIGHT?
3 A.: YES, SIR.
4 Q.: THAT’S AT THE VERY BOTTOM IS THAT CORRECT, SIR?
5 A.: YES, SIR.
6 Q.: AND IT SAYS URL 2/4/02 1749 DAVID WESTERFIELD,
7 RIGHT?
8 A.: YES.
9 Q.: AT HTTP: FRONT SLASH LW2FD?
10 A.: YES.
11 Q.: AND GOES ON.
12 WHAT IS LW2FD?
13 A.: IT’S A HOTMAIL SITE.
14 Q.: THEN IT GOES ON AND IT SAYS KERM BOX. DID YOU GO
15 TO THIS ADDRESS AND DETERMINE WHAT WAS THERE?
16 A.: THESE — THESE WERE SOME OF THE CALLS TO THE ACTUAL
17 INTERNET SITE TO GET AN IN BIN FOR THE HOTMAIL ACCOUNT, OR ELSE
18 TO GET THE ACTUAL E-MAIL MESSAGE FROM IT.
19 Q.: OKAY.
20 SO IT’S YOUR TESTIMONY THAT OF THE 42 OCCASIONS
21 THAT WE SEE DEPICTED ON PAGE TWO IT WAS JUST TO CHECK ADDRESSES?
22 A.: I’M SORRY. ON PAGE TWO, IT’S MY TESTIMONY THAT
23 YOU’VE GOT — IF I UNDERSTAND WHAT YOU’RE ASKING, IS YOU’VE
24 GOT — MAJORITY IS A VISIT TO THE UNION TRIBUNE, AND THEN YOU’VE
25 GOT A COUPLE OF VISITS TO THE HOTMAIL FOR E-MAIL.
26 Q.: AND THEN IF WE LOOKED AT PAGE ONE WE SEE A TIME
27 PERIOD BETWEEN 1943 HOURS, WHICH IS WHAT, ABOUT 17 MINUTES TO
28 8:00 P.M. AND 2029 HOURS, WHICH IS ABOUT 8:30, IS THAT RIGHT?
8549
1 A.: YES, SIR.
2 Q.: WE SEE 48 SEPARATE, I DON’T KNOW, IS IT HITS? WHAT
3 WORD DO YOU USE TO DESCRIBE WHAT WE SEE?
4 A.: ENTRIES.
5 Q.: OKAY.
6 SO DOES THAT MEAN THAT BETWEEN, WE’LL SAY,
7 15:50:38, WHICH IS ABOUT 3:50 IN THE AFTERNOON AND 9:30 IN THE
8 EVENING, 122 TIMES THAT SOMEBODY WAS CLICKING AROUND THIS
9 COMPUTER, IS THAT RIGHT?
10 A.: YES, SIR.
11 Q.: NOW, THE INTERNET HISTORY THAT YOU GENERATED, YOU
12 JUST WENT INTO THE COMPUTER AND DID WHAT, PRINTED OUT THE
13 HISTORY?
14 A.: I FOUND A FILE THAT MAINTAINS A HISTORY AND THEN
15 PRINTED IT OUT.
16 Q.: IF SOMEBODY WANTED TO ALTER THE HISTORY, COULD THEY
17 GO INTO THAT FILE AND DELETE OUT SOME OF THE ENTRIES?
18 A.: IT WOULD BE VERY DIFFICULT TO DO.
19 Q.: IN OTHER WORDS, YES?
20 MR. CLARKE: OBJECTION, ARGUMENTATIVE.
21 THE COURT: SUSTAINED.
22
23 BY MR. FELDMAN:
24 Q.: IS IT THE CASE THAT ONE WHO HAD THE KNOWLEDGE WHO
25 MIGHT BE DESCRIBED AS A COMPUTER NERD, HYPOTHETICALLY, COULD GO
26 INTO THE HISTORY FILE AND DELETE OUT AN ADDRESS?
27 MR. CLARKE: OBJECTION, ARGUMENTATIVE AS PHRASED.
28 THE COURT: OVERRULED.
8550
1 YOU CAN ANSWER.
2 THE WITNESS: I SUPPOSE IT WOULD BE POSSIBLE.
3
4 BY MR. FELDMAN:
5 Q.: AND IF THAT WERE DONE WOULD YOU, USING YOUR
6 FORENSIC TOOLS, BE ABLE TO IDENTIFY WHETHER OR NOT IT HAD BEEN
7 DONE?
8 A.: NO, PROBABLY NOT.
9 Q.: DID YOU MAKE ANY EFFORT TO DETERMINE WHETHER OR NOT
10 THE INTERNET HISTORY — BY THE WAY, THE DOCUMENT THAT YOU HAVE
11 IN FRONT OF YOU THAT REFLECTS THE INTERNET HISTORY, THAT WAS
12 PRINTED OUT WHEN, SIR?
13 A.: 6/28 OF 2002.
14 Q.: ABOUT THE TIME MARCUS LAWSON WAS ON THE WITNESS
15 STAND; IS THAT CORRECT?
16 A.: THAT IS CORRECT.
17 Q.: DID SOMEBODY ASK YOU TO PRINT OUT THE HISTORY?
18 A.: NO, SIR.
19 Q.: DID YOU CALL MARCUS LAWSON UP AND TELL HIM THAT YOU
20 MIGHT HAVE HAD A DISAGREEMENT WITH HIS CONCLUSIONS?
21 MR. CLARKE: OBJECTION, RELEVANCE.
22 THE COURT: SUSTAINED.
23
24 BY MR. FELDMAN:
25 Q.: IS THERE A HISTORY FILE FOR THE HOTMAIL?
26 A.: YES.
27 Q.: DID YOU DO ANYTHING TO RECOVER THE HISTORY FILE FOR
28 THE HOTMAIL?
8551
1 A.: WE HAVE THE HOTMAIL — I’M SORRY — I HAVE THE
2 HISTORY IN FRONT OF ME.
3 Q.: IS THAT ALL OF THE HOTMAIL HISTORY SO THAT EVERY
4 TIME ANYBODY WENT IN AS DNWEST AT HOTMAIL DOT COM, THE THREE
5 PAGES THAT ARE MARKED 158, THAT’S THE 140 SOME ODD OR 150 SOME
6 ODD ENTRIES OR 122 ENTRIES WE JUST DISCUSSED?
7 A.: ON THIS DATE, YES, SIR.
8 Q.: I’M SORRY. ON THIS DATE YOU SAID?
9 A.: ON 2/4 OF 2002.
10 Q.: WHEN WE BROKE AT RECESS YOU WERE — LET ME TRY THAT
11 QUESTION AGAIN. IF — I’LL JUST COME UP THERE. EXCUSE ME.
12 I’D LIKE TO DIRECT YOUR ATTENTION, SIR, TO 143.
13 A.: YES, SIR.
14 Q.: 143 I THINK YOU TOLD US WAS AN E-MAIL SENT TO
15 DNWEST AT HOTMAIL, IS THAT RIGHT?
16 A.: YES, SIR.
17 Q.: WE DISCUSSED CLICKING SOMETHING, IS THAT RIGHT?
18 A.: YES, SIR.
19 Q.: IS THERE SOMETHING THAT WOULD ALLOW IT TO BE
20 CLICKED?
21 A.: THERE ARE — TO GO TO ANOTHER WEBSITE?
22 Q.: YES.
23 A.: YES, SIR.
24 Q.: I THOUGHT YOU STARTED TO SAY THAT IF A PERSON
25 CLICKS SOMETHING THEY WOULD BE TAKEN TO A PARTICULAR WEBSITE, IS
26 THAT RIGHT?
27 A.: THAT IS CORRECT.
28 Q.: WOULD THAT WEBSITE THAT THEY CLICKED TO SHOW UP ON
8552
1 THE INTERNET HISTORY?
2 A.: YES.
3 Q.: AND WHAT DO YOU BASE THAT OPINION ON?
4 A.: ON THE FACT THAT I HAVE DONE EXACTLY THAT.
5 Q.: OKAY.
6 SO THE DATE — I’M SORRY, THE TIME IS 1740 — I’M
7 SORRY, ON 143, WE’RE LOOKING AT A TIME OF APPROXIMATELY 1851
8 HOURS, IS THAT RIGHT?
9 A.: THAT WOULD BE, YES, SIR.
10 Q.: SO THEORETICALLY WE COULD GO TO YOUR LOG AND LOOK
11 AROUND YOUR EXPLORER HISTORY, AND SHOW ME PLEASE WHERE IT SAYS
12 1851 HOURS ON 1 — THIS IS EXHIBIT 158?
13 A.: I’M SORRY. I’M SORRY, WOULD YOU REPEAT THE
14 QUESTION, SIR?
15 Q.: SURE.
16 I’D LIKE TO DIRECT YOUR ATTENTION TO THAT E-MAIL
17 WHICH IS DESCRIBED AS EXHIBIT 143, THE ONE THAT SAYS "YOU’RE IN
18 DEFINITELY." IT’S DATED 2/4 AT 1851 HOURS, THAT YOU SAID YOU’VE
19 DONE BEFORE. I WANT TO KNOW WHERE ON THE INTERNET HISTORY CHART
20 THAT YOU PRINTED OUT, THAT’S EXHIBIT 158, WE SEE ANY ENTRY
21 THAT’S 1851 HOURS.
22 A.: THE DAY THAT YOU’RE LOOKING AT IS INDICATED THE
23 DATE THAT THE E-MAIL WAS SENT, NOT THE DATE THAT IT WAS RECEIVED
24 ON THE COMPUTER OR CLICKED. SO THIS DATE WOULD NOT CORRESPOND
25 WITH THE INTERNET HISTORY.
26 Q.: YOU’RE GUESSING THAT, AREN’T YOU?
27 A.: NO, SIR, I’M NOT.
28 Q.: WELL, YOU MEAN WHEN SOMEBODY SENDS AN E-MAIL IT’S
8553
1 NOT INSTANTANEOUS?
2 MR. CLARKE: EXCUSE ME. OBJECTION, VAGUE.
3 THE COURT: DO YOU UNDERSTAND THE QUESTION?
4 THE WITNESS: YES.
5 THE COURT: YOU MAY ANSWER.
6 THE WITNESS: THE —
7
8 BY MR. FELDMAN:
9 Q.: DID YOU HEAR — THE QUESTION WAS IF SOMEBODY SENDS
10 AN E-MAIL, ISN’T IT INSTANTANEOUS?
11 A.: IT’S INSTANTANEOUS TO THE SERVER, NOT TO THE
12 COMPUTER.
13 Q.: ALL RIGHT.
14 IF I HAVE AN E-MAIL ADDRESS AND I WANT TO SEND YOU
15 AN E-MAIL RIGHT NOW, AND I CLICK MY COMPUTER AND THE E-MAIL GOES
16 OUT AND GOES TO MY SERVER, IS THAT RIGHT?
17 A.: YES.
18 Q.: THE SERVER HAS AN EMBEDDED TIME?
19 A.: NO.
20 Q.: OKAY.
21 BUT IT’S BEING SENT TO JIM WATKINS AT SUPERIOR
22 COURT DEPARTMENT 40. ULTIMATELY IT’S GOING TO GET TO JIM
23 WATKINS AT SUPERIOR COURT DEPARTMENT 40.
24 ARE YOU TELLING ME THAT THAT’S GOING TO TAKE A
25 WHOLE DAY TO GET THAT DONE?
26 A.: IF I DIDN’T ACTUALLY BRING THAT E-MAIL UP AND LOOK
27 AT IT FOR A WEEK IT WOULD NOT SHOW UP ON THE INTERNET HISTORY
28 UNTIL THE DAY I ACTUALLY PULLED IT UP.
8554
1 Q.: SO ARE YOU TELLING ME YOU DIDN’T DO ANYTHING TO
2 DETERMINE WHETHER OR NOT AT 1749 HOURS OR 1849 HOURS AN E-MAIL
3 WAS CLICKED ON FEBRUARY THE 4TH?
4 MR. CLARKE: OBJECTION, I THINK COUNSEL’S ARGUING WITH
5 THE WITNESS.
6 THE COURT: SUSTAINED.
7
8 BY MR. FELDMAN:
9 Q.: DID YOU DO ANYTHING FOR THE PURPOSE OF ASCERTAINING
10 WHAT, IF ANY, ACTION WAS TAKEN ON THE COMPUTER WHERE WE SEE THE
11 E-MAIL THAT’S IDENTIFIED AS 143?
12 A.: YES, I DID.
13 Q.: WHAT DID YOU DO?
14 A.: I LOOKED AT THE — I LOOKED AT THE E-MAIL MESSAGE
15 THAT WAS ASSOCIATED WITH THE TWO IMAGES ON 142A AND "B" WHICH
16 WERE IN THE COMPUTER AND FOUND THE E-MAIL MESSAGE ASSOCIATED
17 WITH THAT, AND THAT WOULD BE WITH THE COMPUTER BECAUSE OF THE
18 HOUR DIFFERENCE AT APPROXIMATELY ON PAGE THREE AT 1747, BECAUSE
19 AGAIN, THE HOUR — I’M SORRY — LET ME REPHRASE THAT.
20 YES. AT 1747 ON PAGE THREE, IF YOU LOOK AT THE
21 SITE YOU’LL SEE THE E-MAIL HIT.
22 Q.: I’M SORRY, AT 17:47:32?
23 A.: 1747?
24 Q.: YES.
25 A.: THERE ARE SEVERAL ENTRIES. YOU HAVE —
26 Q.: DAVID WESTERFIELD AT HTTP: LWFD2 HOTMAIL DOT MSN
27 DOT COM ET CETERA, IS THAT RIGHT?
28 A.: ACTUALLY YOU GO TO WHICH ONE?
8555
1 Q.: WELL, THERE’S TEN SEPARATE URL INDICATORS ON 158
2 THAT REFLECT 2/4/02 AT 1747 HOURS.
3 AM I LOOKING AT THE WRONG THING?
4 A.: NO, SIR. YOU’RE LOOKING AT THE CORRECT.
5 WHAT HAPPENS IS WHEN YOU PULL UP THE FIRST ONE
6 YOU’RE ACTUALLY LOOKING AT THE IN — YOU’RE ACTUALLY PULLING UP
7 THE SIGN-ON SHEET. THE NEXT URL WOULD BE GOING, AND ONCE YOU’VE
8 SIGNED IN, GET IN YOUR IN BIN, THE NEXT ONE WOULD BE CHECKING
9 THE MESSAGE.
10 YOU CAN SEE THE PINK FOR FREE ON THE TOP — IS THE
11 PINK FOR FREE WITH PERCENTAGE MARKS? THAT INDICATES THE
12 EMBEDDED GRAPHIC FILES FROM THE — THAT IS SIMILAR TO 142A AND
13 "B" THAT WERE INSERTED IN THE E-MAIL.
14 Q.: CAN YOU PLEASE SHOW ME? I JUST HAD TO COME UP SO I
15 COULD SEE.
16 A.: RIGHT HERE.
17 Q.: OKAY.
18 YOU’RE SAYING RIGHT HERE WOULD BE?
19 A.: PAGE THREE?
20 Q.: YES.
21 A.: AND IT WOULD BE THE FIRST URL.
22 Q.: OKAY.
23 THE ONE THAT SAYS 17:48:46 ; IS THAT RIGHT?
24 A.: YES, SIR.
25 Q.: AS OPPOSED TO 18:51:09?
26 A.: THAT IS CORRECT.
27 Q.: WHICH IS THE TIME OF 143, IS THAT RIGHT?
28 A.: CORRECT.
8556
1 Q.: SO — I’M SORRY — ARE YOU TELLING ME THAT THE
2 EXPLORER HISTORY IS SHOWING ACTIVITY THAT HAPPENED AN HOUR
3 BEFORE THE E-MAIL WAS SENT IN 143 OR RECEIVED?
4 A.: NO. I’M TALKING ABOUT — I DON’T KNOW — I’M
5 SORRY. I’M NOT SURE WHAT E-MAIL THIS IS.
6 Q.: WHEN YOU SAY THIS, YOU HAVE TO USE THE EXHIBIT
7 NUMBER.
8 A.: I APOLOGIZE. ON EXHIBIT 143 I DON’T KNOW WHICH
9 E-MAIL MESSAGE THIS IS. WHAT I TALKED ABOUT WAS THE E-MAIL
10 MESSAGE THAT WAS ASSOCIATED WITH 143, WHICH IS VERY SIMILAR TO
11 143. THIS IS GET MESSAGE FOR THE ONE ASSOCIATED WITH THIS. I’M
12 TALKING — I’M SORRY —
13 Q.: IT’S JUST WHEN YOU USED THE WORD THIS —
14 A.: I UNDERSTAND.
15 Q.: WE’RE JUST TRYING TO —
16 A.: LET ME BACK UP AND JUST TELL YOU NO, SIR.
17 Q.: ALL RIGHT.
18 Q.: DIRECTING YOUR ATTENTION TO 142B, 142B, I’D LIKE
19 YOU TO — I WANT TO TALK ABOUT 142B AND 143.
20 A.: OKAY.
21 Q.: 143 IS THE E-MAIL, RIGHT?
22 A.: YES, SIR. ONE OF THEM, YES, SIR.
23 Q.: ONE OF THE E-MAILS, BUT IT’S THE E-MAIL THAT WE’VE
24 BEEN DISCUSSING, JUST YOU AND I, JUST TODAY THAT’S DATED 2/4/02
25 AT 1851 HOURS, RIGHT?
26 A.: THAT’S WHAT IT SAYS, YES, SIR.
27 Q.: IT SAYS WHERE IT WAS RECEIVED FROM; IS THAT
28 CORRECT?
8557
1 A.: YES, SIR.
2 Q.: THEN IT SAYS THERE’S A DATE MONDAY, FEBRUARY 4, AT
3 11:54, IS THAT RIGHT?
4 A.: YES, SIR.
5 Q.: THAT REALLY MEANS THAT THIS E-MAIL MESSAGE WAS SENT
6 AT ABOUT 11:54 IN THE AFTERNOON — OR IN THE MORNING OF THE SAME
7 DATE THAT IT WAS RECEIVED. ISN’T THAT A FAIR STATEMENT OR IS IT
8 IN REVERSE?
9 A.: IT COULD BE ANY NUMBER OF THINGS, FROM THE TIME IT
10 WAS RECEIVED AT THE SERVER, THE TIME IT WAS SENT FROM THE
11 ORIGINAL SERVER.
12 Q.: BUT REGARDLESS, IT SAYS FEATURED SITE, THAT IS 143,
13 SAYS FEATURED SITE LESBIAN BORDELLO, RIGHT?
14 A.: YES.
15 MR. CLARKE: OBJECTION, ASKED AND ANSWERED.
16 THE COURT: SUSTAINED.
17
18 BY MR FELDMAN:
19 Q.: THEN WE GO TO 142B AND WE’RE RIGHT AT THE FEATURED
20 SITE, AREN’T WE?
21 MR. CLARKE: SAME OBJECTION.
22 THE COURT: OVERRULED.
23 YOU CAN ANSWER THAT.
24 THE WITNESS: THAT’S NOT THE FEATURED SITE. THAT’S A
25 PICTURE THAT BELONGS INSIDE THE E-MAIL.
26
27 BY MR. FELDMAN:
28 Q.: THAT SAYS LESBIAN BORDELLO?
8558
1 A.: YES, SIR.
2 Q.: AND WHERE — I’M SORRY — WHERE IN 158 DO WE SEE
3 THE WORDS "LESBIAN BORDELLO"?
4 A.: I DON’T OFFHAND.
5 Q.: SO MAYBE MR. LAWSON GOT IT RIGHT, HUH?
6 MR. CLARKE: OBJECTION, ARGUMENTATIVE.
7 THE COURT: SUSTAINED.
8
9 BY MR. FELDMAN:
10 Q.: WITH REGARD TO YOUR ACTIVITIES AND YOUR FORENSIC
11 WORK WITH REGARD TO THIS CASE, WHEN IS THE TIME OF THE LAST
12 ACCESS BY DAVID N. WESTERFIELD — WELL, STRIKE THAT.
13 WHEN IS THE TIME OF ANY LAST ACCESS TO ANY OF THE
14 COMPUTERS THAT YOU WERE ABLE TO ASCERTAIN?
15 MR. CLARKE: OBJECTION, BEYOND THE SCOPE.
16 THE COURT: OVERRULED.
17 YOU CAN ANSWER.
18 THE WITNESS: IT WOULD HAVE BEEN — THE LAST ACCESS DATE,
19 IF I MAY REFER TO MY NOTES — IT WOULD HAVE BEEN ON THE MORNING
20 OF FEBRUARY 5TH OF 2002.
21
22 BY MR. FELDMAN:
23 Q.: WHAT TIME?
24 A.: I BELIEVE IT WAS APPROXIMATELY 4:00 OR 5:00 IN THE
25 MORNING.
26 Q.: OF COURSE YOU KNEW THAT DAVID, MY CLIENT,
27 WESTERFIELD WASN’T EVEN HOME AT THAT TIME, DIDN’T YOU?
28 A.: YES, SIR.
8559
1 MR. CLARKE: OBJECTION, ASSUMES FACTS NOT IN EVIDENCE.
2 THE COURT: SUSTAINED.
3 JURY’S TO DISREGARD THE LAST ANSWER.
4
5 BY MR. FELDMAN:
6 Q.: WERE YOU AWARE THAT MR. WESTERFIELD — DID YOU HAVE
7 KNOWLEDGE THAT MR. WESTERFIELD’S HOUSE WAS BEING SEARCHED AT OR
8 ABOUT 5:00 A.M. ON 2/5/02?
9 A.: YES, SIR. I’M SORRY.
10 MR. CLARKE: OBJECTION, ASSUMES FACTS NOT IN EVIDENCE.
11 THE COURT: OVERRULED. THE ANSWER IS YES. IT WILL
12 STAND. NEXT QUESTION.
13
14 BY MR. FELDMAN:
15 Q.: IN FACT, WEREN’T YOU IN THE HOUSE DOING SOME OF
16 THAT SEARCHING?
17 A.: YES, SIR.
18 Q.: SO YOUR ANSWER THAT YOU KNEW THAT DAVID A.
19 WESTERFIELD WASN’T THERE IS BASED ON YOUR PERSONAL KNOWLEDGE,
20 ISN’T THAT RIGHT?
21 A.: YES, SIR.
22 Q.: BECAUSE HE WAS EXCLUDED FROM THE RESIDENCE WHILE
23 YOU AND OTHERS WERE INSIDE THE RESIDENCE SEARCHING, IS THAT
24 RIGHT?
25 A.: HE WASN’T PRESENT, YES, SIR.
26 Q.: WELL, HE WAS EXCLUDED, WASN’T HE?
27 MR. CLARKE: OBJECTION, I THINK COUNSEL’S ARGUING WITH
28 THE WITNESS.
8560
1 THE COURT: SUSTAINED.
2 MR. FELDMAN: IF I COULD JUST HAVE A MOMENT, YOUR HONOR.
3 (PAUSE)
4 MR. FELDMAN: NOTHING FURTHER AT THIS TIME.
5 THE COURT: ALL RIGHT.
6 ANYTHING FURTHER, MR. CLARKE?
7 MR. CLARKE: YES. THANK YOU, YOUR HONOR.
8
9 REDIRECT EXAMINATION +
10 BY MR. CLARKE:
11 Q.: MR. WATKINS, THE PASSWORD 5203, ARE YOU AWARE OF
12 WHETHER OR NOT THAT IS CONSISTENT OR INCONSISTENT WITH THE LAST
13 FOUR DIGITS OF MR. DAVID A. WESTERFIELD’S LAST FOUR DIGITS OF
14 HIS SECURITY NUMBER?
15 A.: YES, SIR. I BELIEVE IT IS.
16 Q.: DID YOU CONDUCT ANY TYPE OF SEARCH ON THE OFFICE
17 COMPUTERS TO SEE IF YOU COULD FIND THAT PASSWORD?
18 A.: YES.
19 Q.: WITH WHAT RESULTS?
20 A.: I FOUND OVER 50 — I’D SAY OVER 40 EXAMPLES OF THAT
21 PASSWORD OR A VARIATION OF THAT BEING USED AS DIFFERENT
22 PASSWORDS.
23 Q.: BY VARIATION, WHAT DO YOU MEAN?
24 A.: BY VARIATION I BELIEVE THERE WAS A D — A DW 5203,
25 AND THAT SORT OF THEME, 5203 WAS THE COMMON DENOMINATOR IN
26 SEVERAL PASSWORDS?
27 Q.: DID YOU FIND ANY OF THOSE PASSWORDS WITH 5203 IN
28 THE CARD FILE THAT WE’VE DISCUSSED PREVIOUSLY?
8561
1 A.: YES, SIR, I DID.
2 Q.: DESCRIBE THAT, PLEASE?
3 A.: THERE WERE SOME DIFFERENT WEBSITES AND I CAN’T
4 RECALL OFF THE TOP OF MY HEAD THAT THERE WERE SOME WEBSITES AND
5 HIS PASSWORD OR ACCESS CODE WAS 5203.
6 Q.: THAT WAS IN THE CARD FILE WITH THE DEFENDANT’S
7 BUSINESS CONTACTS, CORRECT?
8 A.: YES, SIR.
9 Q.: DO YOU HAVE THOSE TWO — I’M SORRY — THREE
10 EXHIBITS? I THINK IT’S 142A, 142B AND 142-3?
11 MR. FELDMAN: COUNSEL SAID 142-3?
12 THE COURT: I THINK YOU MISSPOKE, MR. CLARKE.
13 MR. CLARKE: I’M SORRY,
14 Q.: 142A, 142B AND 143?
15 A.: YES, SIR.
16 Q.: I THINK MR. FELDMAN USED THE TERM WELL DONE SCREEN
17 CAPTURE, IS THAT RIGHT?
18 A.: YES, SIR.
19 Q.: WERE THEY WELL DONE IN TERMS OF BEING A REFLECTION
20 OF A VISIT TO AN INTERNET SITE?
21 A.: NO, SIR, THEY WERE NOT.
22 Q.: WOULD A DESCRIPTION OF THOSE AS REFLECTING A VISIT
23 TO AN INTERNET SITE WOULD BE INCORRECT?
24 A.: YES.
25 Q.: IS THAT TRUE OF 142A?
26 A.: YES.
27 Q.: DOES THAT SCREEN CAPTURE OF 142A ACTUALLY SHOW A
28 VISIT — I’M SORRY — THE RECEIPT OF AN E-MAIL?
8562
1 A.: IT IS ASSOCIATED WITH THE RECEIPT OF AN E-MAIL.
2 Q.: NOT AN INTERNET SITE VISIT?
3 A.: CORRECT.
4 Q.: WHAT ABOUT 142B?
5 A.: IT WOULD BE THE SAME.
6 Q.: WHAT ABOUT 143?
7 A.: 143 WOULD BE THE SAME.
8 Q.: ON EXHIBIT 158, THE THREE PAGE LIST OF INTERNET
9 SITES ABOUT WHICH THERE’S BEEN SUBSTANTIAL TESTIMONY THIS
10 AFTERNOON, WHAT ARE THESE SITES? CAN YOU DESCRIBE THEM FOR US?
11 A.: YES, SIR.
12 STARTING FROM THE BEGINNING, THERE ARE SITES TO
13 UNION BANK OF CALIFORNIA, THERE ARE SITES TO A GAMING POSTING
14 SITE, PIGGS HAUSE IS A BULLETIN BOARD, ROHAN DOT SDSU IS A SAN
15 DIEGO STATE E-MAIL. THERE ARE SITES TO SEVERAL HOTMAIL VISITS.
16 THE MAJORITY ARE TO THE UNION TRIBUNE NEWSPAPER, AND THEN IT
17 GOES ONTO THE SAME BASIC SITES SEVERAL DIFFERENT TIMES.
18 Q.: I ASSUME UNION BANK IS NOT A PORNOGRAPHIC SITE, IS
19 IT?
20 A.: NO, SIR.
21 Q.: UNION TRIBUNE?
22 A.: NO, SIR.
23 Q.: HOW MANY PORNOGRAPHIC WEBSITES WERE VISITED THAT
24 DAY?
25 A.: I FOUND NONE.
26 MR. DUSEK: THANK YOU.
27 NO FURTHER QUESTIONS.
28 THE COURT: ALL RIGHT.
8563
1 ANYTHING FURTHER, MR. FELDMAN?
2
3 RECROSS-EXAMINATION +
4 BY MR. FELDMAN:
5 Q.: YOU WERE ALSO AWARE, OF COURSE, THAT 5203 WERE ALSO
6 THE LAST FOUR DIGITS OF MR. WESTERFIELD’S CELL PHONE, IS THAT
7 RIGHT?
8 A.: YES, SIR.
9 Q.: WHEN YOU WERE DOING YOUR FORENSIC INVESTIGATION,
10 DID YOU LOOK TO DETERMINE WHETHER OR NOT DAVID NEAL
11 WESTERFIELD — WELL, STRIKE THAT. WHEN IS THE FIRST TIME YOU
12 LEARNED DAVID NEAL WESTERFIELD MIGHT HAVE HAD ANYTHING TO DO
13 WITH ANY OF THE ITEMS OF EVIDENCE IN THE CASE.
14 MR. CLARKE: OBJECTION, VAGUE.
15 THE COURT: SUSTAINED. REPHRASE IT.
16
17 BY MR. FELDMAN:
18 Q.: OKAY.
19 WHEN IS THE FIRST TIME YOU LEARNED THAT DAVID NEAL
20 WESTERFIELD MIGHT BE IMPLICATED IN THE USE OF DAVID A.
21 WESTERFIELD’S COMPUTER AT A TIME WHEN DAVID A. WESTERFIELD WAS
22 COMPLETELY UNAVAILABLE TO TOUCH THE COMPUTER?
23 MR. CLARKE: OBJECTION, ARGUMENTATIVE.
24 THE COURT: SUSTAINED.
25
26 BY MR. FELDMAN:
27 Q.: WHEN IS THE FIRST TIME YOU LEARNED ABOUT DAVID NEAL
28 WESTERFIELD’S INVOLVEMENT IN USING THE COMPUTERS?
8564
1 A.: PROBABLY DURING THE PRELIMINARY HEARING WAS MY
2 FIRST — WHEN IT FIRST CAME UP TO ME.
3 Q.: WHO BROUGHT IT UP?
4 A.: I THINK IT WAS DURING THE HEARING, I’M NOT SURE.
5 Q.: WHEN IS THE NEXT TIME YOU HEARD ABOUT IT?
6 MR. CLARKE: OBJECTION, RELEVANCE.
7 THE COURT: SUSTAINED.
8
9 BY MR. FELDMAN:
10 Q.: DID YOU DO A SEARCH UTILIZING YOUR FORENSIC TOOLS
11 TO DETERMINE EVERY TIME DAVID NEAL WESTERFIELD USED THAT
12 COMPUTER FOR HOTMAIL, PORN ACCESS, ANY ACCESS?
13 A.: I WOULD BE ABLE TO DETERMINE — NO, I DID NOT,
14 SORRY.
15 Q.: DID YOU DO A SEARCH TO DETERMINE HOW MANY TIMES
16 DAVID N. AT HOTMAIL WAS USED ON ANY OF THE COMPUTERS?
17 A.: NO, I DID NOT.
18 Q.: DID YOU DO A SEARCH TO DETERMINE HOW MANY DIFFERENT
19 TIMES LESBIAN BORDELLO WAS ACCESSED?
20 MR. CLARKE: OBJECTION, ASSUMES FACTS NOT IN EVIDENCE.
21 THE COURT: SUSTAINED.
22
23 BY MR. FELDMAN:
24 Q.: DID YOU DO A SEARCH TO SEE HOW MANY TIMES LESBIAN
25 BORDELLO WAS SENDING E-MAILS TO DAVID N. WESTERFIELD?
26 MR. CLARKE: SAME OBJECTION.
27 THE COURT: IT’S TIME FOR THE BREAK. SO WE’RE OBVIOUSLY
28 NOT GOING TO CONCLUDE THIS WITNESS TODAY.
8565
1 LADIES AND GENTLEMEN, PLEASE REMEMBER THE
2 ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR
3 TESTIMONY AMONG YOURSELVES OR WITH OTHERS, NOR FORM OR EXPRESS
4 ANY OPINIONS ON THE CASE UNTIL IT IS SUBMITTED TO YOU FOR
5 DECISION.
6 WE SHOULD BE ABLE TO GET STARTED HOPEFULLY RIGHT AT
7 9 O’CLOCK TOMORROW MORNING. HAVE A PLEASANT EVENING. WE’LL SEE
8 YOU ALL AT 9:00 A.M. TOMORROW MORNING.
9
10 (AT 3:45 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
11
12 THE COURT: OKAY. LOOKS LIKE WE’LL SEE YOU TOMORROW
13 MORNING AT 9:00 A.M.
14 THE WITNESS: YES, YOUR HONOR.
15 THE COURT: THE RECORD SHOULD REFLECT THE JURORS AND
16 ALTERNATES HAVE LEFT THE COURTROOM.
17 FIRST OF ALL, WE HAVE RECEIVED A NOTE FROM JUROR 6
18 BASICALLY ADVISING THE COURT OUT OF AN ABUNDANCE OF CAUTION THAT
19 JUROR 6 WILL NOT BE AVAILABLE ON FRIDAY AUGUST 30TH AS A RESULT
20 OF PREPAID FLIGHT PLANS. SO I DON’T KNOW IF THAT WILL BE
21 RELEVANT OR NOT BUT, AT ANY RATE, SHOULD WE GO THAT FAR THAT
22 DATE THAT JUROR CANNOT BE HERE.
23 SECOND OF ALL, I WANT TO REMIND YOU THAT TOMORROW
24 THE DEPUTY CITY ATTORNEY WILL BE PRESENT TO DISCUSS WHAT, IF
25 ANYTHING, HE HAS AS IT RELATES TO THE PRIOR PITCHESS MOTION, I
26 AM ASSUMING.
27 AT ANY RATE I’M GOING TO HAVE MR. WESTERFIELD AND
28 ALL COUNSEL HERE JUST OUT OF AN ABUNDANCE OF CAUTION.
8566
1 MR. FELDMAN: WHAT TIME, PLEASE?
2 THE COURT: THAT’S AT 8:30 TOMORROW MORNING.
3 IN ADDITION TO THAT IS A FOLLOW-UP TO THE COURT’S
4 RANTING, WHICH APPEARS TO HAVE BEEN ONLY GOOD FOR ONE THING, AND
5 THAT WAS TO LOWER MY BLOOD PRESSURE BY GIVING ME AN OPPORTUNITY
6 TO VENT STEAM, BECAUSE THE MEDIA PAID NO ATTENTION TO MY
7 VENTING. THAT’S ALL I’M GOING TO SAY.
8 WE’LL READ ABOUT IT OR SEE IT IN THE PAPER OR ON
9 TELEVISION TONIGHT, I ASSUME.
10 YES, MR. CLARKE.
11 MR. CLARKE: SCHEDULING, YOUR HONOR.
12 THE COURT: ALL RIGHT.
13 MR. CLARKE: I DO HAVE FURTHER INFORMATION.
14 THE COURT: ALL RIGHT.
15 MR. CLARKE: ONE OF THE ITEMS I’M GOING TO — WE WOULD
16 LIKE TO REQUEST, IF POSSIBLE, I DON’T KNOW IF IT IS OR NOT,
17 WOULD BE UTILIZING FRIDAY FOR DR. GOFF. DR. GOFF IS AVAILABLE,
18 HE’S HERE, AVAILABLE TO TESTIFY.
19 AS THE COURT KNOWS, HE HAS VERY IMPORTANT BUSINESS
20 AT THE UNIVERSITY OF HAWAII ON MONDAY. I BELIEVE HE CAN RETURN
21 AFTER THAT, BUT I DON’T KNOW IF THE COURT IS FAMILIAR WITH
22 FLIGHTS. HE WOULD HAVE TO LEAVE MONDAY NIGHT, WOULD ARRIVE HERE
23 SOMETIME TUESDAY MORNING, AND I THINK IT MIGHT BE ASKING AN
24 AWFUL LOT OF HIM TO TRY TO TESTIFY TUESDAY MORNING. SO —
25 THE COURT: HERE’S THE PROBLEM. THE COURT IN RELIANCE ON
26 HAVING FRIDAYS OFF HAS CALENDARED FIVE SEPARATE MATTERS,
27 INCLUDING A MOTION FOR A NEW TRIAL IN ANOTHER MATTER.
28 NOW, THAT’S NOT TO SAY THAT IT ISN’T POSSIBLE TO
8567
1 START LATE BUT, IN ADDITION TO THAT, AS I RECALL, ONE OF THE
2 JURORS BROUGHT TO THE COURT’S ATTENTION, WAS IT LAST WEEK WHEN
3 WE ATTEMPTED TO USE FRIDAYS, THAT SHE HAD MADE SOME
4 APPOINTMENTS. NOW, I CAN FIND OUT. I WILL BE GLAD TO TRY AND
5 FIND OUT FIRST THING TOMORROW WHETHER THAT JUROR OR ANYONE ELSE
6 HAS A PROBLEM STARTING LATE ON FRIDAY MORNING.
7 I’VE JUST BEEN ADVISED THAT, JOY OF JOYS, I HAVE A
8 SMALL CLAIMS APPEAL TO HEAR ON FRIDAY AS WELL. THAT I MIGHT BE
9 ABLE TO PALM OFF ON SOME UNSUSPECTED COLLEAGUE. HOPEFULLY, IT
10 IS A COLLEAGUE THAT UNDERSTANDS MY PLIGHT. AT ANY RATE, WE CAN
11 LOOK INTO THAT.
12 MR. CLARKE: THANK YOU.
13 THE COURT: OTHERWISE, IT COULD BE THAT YOU’RE JUST NOT
14 ABLE TO PUT HIM ON UNTIL TUESDAY.
15 MR. CLARKE: I UNDERSTAND.
16 THE COURT: THAT’S THE REALITY OF WHERE WE’RE AT. I
17 THINK I’VE LET THE JURY KNOW OUR CIRCUMSTANCES.
18 MR. CLARKE: THANK YOU.
19 THE COURT: SO I WILL INQUIRE FIRST THING TOMORROW
20 MORNING.
21 MR. FELDMAN: AND YOUR HONOR, WE’RE STILL TRYING TO GET
22 OUR PART OF THAT EQUATION TAKEN CARE OF.
23 THE COURT: OKAY.
24 MR. FELDMAN: THANK YOU.
25 THE COURT: OKAY.
26 WE’LL BE IN RECESS UNTIL 8:30 TOMORROW MORNING.
27 THE MEDIA IS WELCOME TO ATTEND THE 8:30 SESSION.
28
8568
1 (AT 3:50 P.M. AN ADJOURNMENT WAS TAKEN
UNTIL 9:00 A.M. THURSDAY, JULY 25, 2002.)
2
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