DAY 6 – SAN DIEGO, CALIFORNIA, WEDNESDAY, JUNE 12, 2002, 9:00 A.M. (morning 1)
WITNESS:
Paul Redden (San Diego Police)
–O0O–
(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE
JURY:
THE COURT: ALL RIGHT. IN THE WESTERFIELD MATTER THE RECORD WILL REFLECT THE APPEARANCE OF ALL COUNSEL AND MR. WESTERFIELD.
YES, COUNSEL.
MR. FELDMAN: GOOD MORNING, YOUR HONOR.
THE COURT: GOOD MORNING.
MR. FELDMAN: TWO MATTERS HAVE ARISEN. I’VE SPOKEN WITH MR. CLARKE THIS MORNING ABOUT ONE OF THEM.
YESTERDAY IN MR. DUSEK’S CROSS-EXAMINATION AND AGAIN IN OPENING STATEMENT THERE WAS A REFERENCE TO A POTENTIAL PIECE OF FIBER THAT WAS LOCATED AT THE RECOVERY SCENE. AS OF THIS MOMENT THE DEFENSE HAS NOT BEEN PROVIDED WITH A REPORT IDENTIFYING THAT. AND IT’S NOT POSSIBLE FOR US THEN TO CONFIRM OR REBUT THAT PROPOSITION. IT IS THE CASE THAT WE WERE PROVIDED WITH A REPORT WHICH INSINUATED THAT THERE WAS A MATCH BUT MUCH LATER MR. CLARKE HAS ADVISED ME DIDN’T REPRESENT A MATCH, AND SO I’M RAISING THIS AS A POTENTIAL DISCOVERY ISSUE BECAUSE WE’RE NOW WELL INTO THE PROSECUTION’S CASE. MR. DUSEK HAS ADVISED THE COURT THAT HE BELIEVES THAT THE CASE WILL CONCLUDE POTENTIALLY
— HIS CASE WILL CONCLUDE POTENTIALLY BY THE END OF THIS MONTH.
I’M CONCERNED ABOUT OUR INABILITY TO GAIN ACCESS TO THE EVIDENCE, TO OBTAIN TEST RESULTS. WE FILED PLEADINGS, THE COURT KNOWS WHAT OUR POSITION IS WITH REGARD TO 1054, BUT I JUST WANTED THE COURT TO BE ON NOTICE SO AT LEAST YOU HAD STATUS AS WE WERE PROCEEDING AND DOING OUR BEST ANYWAY TO ADDRESS THAT ISSUE.
THE COURT: ALL RIGHT.
MR. DUSEK.
MR. CLARKE: ACTUALLY, YOUR HONOR, —
THE COURT: OH, MR. CLARKE.
MR. CLARKE: I’M NOT SURE WHAT TO SAY OTHER THAN OBVIOUSLY WE HAVE KEPT THE DEFENSE APPRIZED I THINK ALMOST BY THE HOUR AS TO THE STATUS OF TESTING. WE EXPECT OTHER D.N.A. RESULTS IN THE NEXT FEW DAYS ON OTHER ITEMS. AS SOON AS WE GET WORD, WE WILL INFORM THEM.
AS TO THAT SPECIFIC FIBER, PLACED IN CONTEXT, THE DEFENSE DID RECEIVE DISCOVERY ABOUT THE FACT THAT FIBER HAD BEEN DISCOVERED I THINK A FEW WEEKS AGO. OBVIOUSLY THE COMPARISON PROCESS IS WHAT IS ONGOING.
THE COURT: OKAY.
AND THIS IS NOT UNEXPECTED, BASED ON WHAT OUR DISCUSSIONS HAVE BEEN ALL THE WAY THROUGH. SO BOTH OF YOU APPEAR TO BE COOPERATING. SO I’M ASSUMING THAT WILL CONTINUE TO OCCUR.
MR. FELDMAN: BUT FOR — GIVEN THAT THIS IS A CAPITAL CASE, YOUR HONOR, I NEED TO RAISE OBJECTIONS UNDER THE FIFTH AMENDMENT, THE DUE-PROCESS CLAUSE, THE FOURTEENTH AMENDMENT, AND THE EIGHTH AMENDMENT.
THE COURT: ALL RIGHT. THOSE ARE ALL DULY NOTED AT THIS POINT IN TIME, AND AT THIS POINT IN TIME ALSO I DO NOT SEE A DISCOVERY VIOLATION. I THINK WE ALL KNOW WHAT WAS GOING ON AND HOW IT WAS GOING TO OCCUR, AND THAT IS AN ONGOING INVESTIGATION. SO AT LEAST IT WILL BE — THOSE OBJECTIONS WILL BE NOTED AND DENIED FOR THE RECORD.
MR. FELDMAN: THANK YOU, YOUR HONOR.
MY BELIEF IS TODAY THE PROSECUTION INTENDS TO CALL WITNESSES WHO ARE NEIGHBORS OF THE VAN DAMS. I KNOW THE COURT GAVE THE VAN DAMS PERMISSION TO BE IN THE COURT. WE ARE CONCERNED ABOUT WHAT EFFECT THEIR PRESENCE IN THE COURT WOULD HAVE ON THE WITNESSES, AND WE WOULD RENEW OUR EXCLUSION MOTION AS TO THEM AS TO WITNESSES WITH WHICH THEY HAVE KNOWLEDGE AND FAMILIARITY AND ACQUAINTANCE.
MY UNDERSTANDING IS THE COURT’S ORDER SPECIFICALLY PERMITTED THEM ISSUES THAT DIDN’T IMPLICATE THEM OR WITNESSES THAT KNEW THEM. SO WE HAVE THAT CONCERN, YOUR HONOR.
THE COURT: MR. DUSEK.
MR. DUSEK: YOUR HONOR, THE NEIGHBORHOOD WITNESSES THAT WILL BE TESTIFYING WILL RELATE WHEN THEY SAW OR DIDN’T SEE THE DEFENDANT’S MOTOR HOME IN THE NEIGHBORHOOD THAT FRIDAY, SATURDAY, SUNDAY, AND MONDAY. THAT’S WHAT THEY WILL BE TALKING ABOUT. SOMETHING THE VAN DAMS KNOW NOTHING ABOUT.
THE COURT: I WAS INTERESTED TO SEE YESTERDAY THAT JUDGE MUDD REVERSES HIS POSITION ON ALL THIS. MY POSITION HAS BEEN THE SAME THROUGHOUT, AND THAT IS THAT THE VAN DAMS COULD NOT BE IN THE COURTROOM WHILE THEY OR ANY PERCIPIENT WITNESSES OF THE ACTIVITIES OF THAT PARTICULAR WEEKEND WERE DISCUSSED AND THAT THEY COULD BE IN THE COURTROOM FOR WITNESSES THAT DIDN’T RELATE TO THAT. THAT HAS BEEN THE ORDER ALL ALONG. AND THAT WILL REMAIN THE ORDER.
THESE DO NOT APPEAR TO BE PERCIPIENT WITNESSES TO THE EVENTS ON THE NIGHT IN QUESTION OR THE WEEK IMMEDIATELY PRIOR THERETO, SO I’M GOING TO ALLOW THEM TO REMAIN IN THE COURTROOM. AND I WILL NOTE THAT THEY’RE BOTH SITTING THERE LIKE EVERY OTHER MEMBER OF THE PUBLIC. AND SO THAT SHOULD ASSUAGE SOME FEARS THAT SOMEHOW THEY’RE SHOWING A PARTICULAR EMOTION TO THE JURY.
IN ADDITION TO THAT, IT SHOULD BE NOTED THAT THE JURYBOX IS SITUATED IN SUCH A WAY THAT THEY CAN BARELY SEE THEM THROUGH THE TELEVISION AND STILL CAMERAS. SO I’M SATISFIED EVERYTHING IS COPACETIC. IF THAT CHANGES, MR. FELDMAN, I’LL BE THE FIRST TO NOTE IT SINCE I’M LOOKING OUT IN THE AUDIENCE THE ENTIRE TIME.
MR. FELDMAN: THANK YOU, YOUR HONOR.
THE COURT: OKAY.
ANYTHING ELSE?
MR. DUSEK: FROM OUR STANDPOINT THERE IS.
THE COURT: ALL RIGHT.
MR. DUSEK: AND I SUPPOSE PART OF IT DEPENDS ON IS THE CAMERA RUNNING NOW AND IS THE PUBLIC SEEING WHAT’S GOING ON NOW.
THE COURT: THEY ARE. AND WE NEED TO ADDRESS THAT.
MR. DUSEK: THEN I WILL BE VAGUE ON WHAT I’M ABOUT TO ADDRESS.
ONE OF THE WITNESSES WE WILL BE CALLING TODAY IS A MINOR. ELEVEN YEARS OLD.
THE COURT: ALL RIGHT.
MR. DUSEK: SHE, ACTUALLY HER MOTHER DOES NOT WANT HER NAME NOR HER FACE ON T.V. I TOLD HER I WOULD BRING THAT TO THE COURT. I’VE INFORMED DEFENSE COUNSEL OF THAT SITUATION. THEY SEEM AGREEABLE. AND I’M LOOKING FOR SOME ASSISTANCE FROM THE COURT AS TO HOW WE CAN QUESTION HER, HAVE HER SWORN IN, AND HAVE HER TESTIFY WITHOUT USING HER NAME OR HER FACE IF AT ALL POSSIBLE.
THE COURT: ALL RIGHT.
MR. FELDMAN, DO YOU CARE TO RESPOND?
MR. FELDMAN: NO. THIS WILL BE AN ONGOING PROBLEM, YOUR HONOR. IT MAY POTENTIALLY BE AN ONGOING PROBLEM. I THINK BOTH SIDES ARE IN AGREEMENT.
THE COURT: ALL RIGHT.
IT IS MY UNDERSTANDING FROM WHAT LITTLE I KNOW ABOUT THE TELEVISION SITUATION THAT THE TILING CANNOT BE DONE THROUGH THE CAMERA, THAT IT’S GOT TO BE DONE POST FILMING. SO MY INSTRUCTIONS TO THE CAMERA ARE GOING TO BE THAT THE — THERE IS TO BE NO HEAD SHOTS OR FULL-BODY SHOTS OF THE JUVENILE VICTIMS FROM THE NECK DOWN.
MR. FELDMAN: WITNESSES, YOUR HONOR.
THE COURT: WITNESSES. WITNESSES. EXCUSE ME.
SO THERE WILL BE NO HEAD SHOTS.
IN TERMS OF THE UTILIZATION, WE WILL USE THE STANDARD JUVENILE DESIGNATION. YOU’LL INTRODUCE THE WITNESS AS JUDY X OR WHATEVER THE NAME IS AND WILL BE SWORN IN IN THAT TERMINOLOGY. WE’LL AT SOME POINT FIND OPPORTUNITY TO GET THE RECORD STRAIGHT AS TO WHO IT IS. SO YOU CAN JUST ACTUALLY INTRODUCE HER BY HER FIRST NAME OR HIS OR HER FIRST NAME.
MR. DUSEK: REAL?
THE COURT: WELL, ARE THEY CONCERNED ABOUT FIRST NAMES AS WELL?
MR. DUSEK: I THINK THEY’RE CONCERNED ABOUT EVERYTHING.
THE COURT: WELL, I HATE TO DO IT, BUT IF EVERYONE IS THAT CONCERNED, WE CAN USE JANE DOE OR JOHN DOE ONE, JANE DOE TWO. IT’S UP TO YOU HOW CONCERNED YOU FEEL THE FAMILIES ARE.
MR. DUSEK: MR. CLARKE WILL GO CHECK TO SEE IF THAT IS A CONCERN.
THE COURT: OKAY.
MR. DUSEK: THE SECOND ISSUE I’VE BEEN INFORMED ONE OF OUR WITNESSES THIS MORNING REQUIRES A SIGN-LANGUAGE INTERPRETER, AND THERE WILL BE TWO OF THEM HERE. AND THEY HAVE INFORMED ME THAT IT TAKES SOME TIME TO SET UP, THREE, FOUR, FIVE MINUTES, ONCE THAT WITNESS IS CALLED TO THE STAND. THAT WILL BE LATER IN THE MORNING.
AND I THINK THAT TAKES CARE OF IT.
THERE WAS A CONCERN THAT ONE OF OUR WITNESSES IS EMPLOYED BY LAW ENFORCEMENT. I ADDRESSED THAT CONCERN WITH COUNSEL. THAT WITNESS AND FAMILY IS CONCERNED ABOUT SAFETY ISSUES BECAUSE OF EVERYONE THAT’S GOING TO BE WATCHING THIS.
AND I AM NOT SURE I HAVE THE BASIS TO ASK THAT IT NOT BE ADDRESSED AS LAW ENFORCEMENT. BUT I’M HOPING COUNSEL WILL NOT ASK ANY MORE DETAILS THAN ARE NECESSARY.
THE COURT: ALL RIGHT.
WELL, I MEAN WE’LL SEE HOW THAT EVOLVES AND WHETHER IT’S RELEVANT TO ANYTHING. AND IF IT IS, PERHAPS THE WAY WE OUGHT TO TREAT IT, MR. FELDMAN, IS IF, OR MR. BOYCE, WHOEVER IS GOING TO BE DOING THE CROSS-EXAMINATION, IF YOU FEEL YOU NEED TO GET INTO THE OCCUPATION OF THE WITNESS FOR SOME REASON, JUST ASK TO APPROACH THE BENCH, AND I’LL GIVE BOTH OF YOU THE OPPORTUNITY TO LET ME KNOW WHAT, IF ANY, REASON WE HAVE TO GET INTO IT, WHAT ISSUES IT MIGHT RAISE.
MR. BOYCE: WELL, THERE ARE TWO WITNESSES THAT ARE HUSBAND AND WIFE.
MR. DUSEK: PERHAPS WE COULD DO THIS AT SIDEBAR RATHER THAN LET AMERICA HEAR IT.
THE COURT: OKAY.
ALL RIGHT. WE WILL DEAL WITH IT AT SIDEBAR.
MR. FELDMAN: YOUR HONOR, ON THE ISSUE OF THE TILING AND THE JUVENILES, MY ONLY REQUEST WOULD BE THAT SINCE THE PARTIES DON’T DISPUTE IT, I WOULD JUST LIKE YOUR HONOR TO SAY SOMETHING TO THE JURY THAT IT’S CALIFORNIA LAW, THIS IS WHY WE DO IT, AND NOT TO DRAW ANY ADVERSE INFERENCES AGAINST THE DEFENSE WITHOUT THAT.
THE COURT: SURE. I DON’T HAVE ANY PROBLEM DOING THAT AT ALL.
MR. FELDMAN: THANK YOU.
THE COURT: YES.
MR. DUSEK: AND, FINALLY, HAVING LISTENED TO THE TAPE, I BELIEVE THE COURT SHOULD MAKE SOME INDICATION TO THE JURY THAT THE TAPE HAS BEEN REDACTED. THERE’S OBVIOUS CHANGES IN THERE, GAPS. AND IT CERTAINLY ENDS WITHOUT A NORMAL FLOW TO THE END. SO I THINK THE JURY SHOULD BE ADVISED THAT NOBODY’S MESSING WITH THE EVIDENCE.
THE COURT: ALL RIGHT.
MR. FELDMAN. OR MR. BOYCE.
MR. BOYCE: YOUR HONOR, I DON’T SEE THE PURPOSE OF THAT. IT’S GOING TO RAISE QUESTIONS IN THE JURY’S MIND. I THINK WE SHOULD JUST PLAY THE TAPE. IF QUESTIONS DO ARISE, WE CAN ADDRESS IT AT THAT TIME. BUT I THINK TO SAY SOMETHING ABOUT IT IN ADVANCE MAYBE RAISES QUESTIONS WHERE THERE WOULDN’T OTHERWISE BE ONE.
THE COURT: ALL RIGHT. SO WE’VE AGREED TO DISAGREE ONCE AGAIN ON ONE MORE THING.
ALL RIGHT. WELL, AT THIS POINT IN TIME I HAVEN’T, UNFORTUNATELY, HEARD THE TAPE. I HAVE HEARD THE ORIGINAL TAPE. AND I CAN IMAGINE THAT THAT’S THE REASON I RAISED IT AT THE TIME THAT THERE MIGHT BE SOME DISJOINTED TYPE OF TONE TO IT. SO WHAT I’LL DO AT THIS POINT, MR. DUSEK, IS NOT SAY ANYTHING. IF IT BECOMES BLATANTLY OBVIOUS IN A BROADCAST OF IT THAT I NEED TO SAY SOMETHING, I WILL INVITE YOU TO SIDEBAR AND LET YOU KNOW WHAT I’M CONTEMPLATING DOING.
MR. CLARKE, WHAT IS THE RESULT?
MR. CLARKE: MAY I HAVE JUST A MOMENT, YOUR HONOR?
THE COURT: YES.
[DISCUSSION OFF THE RECORD BETWEEN MR. CLARKE
AND MR. DUSEK.]
MR. CLARKE: YES. THE WITNESS AND HER MOTHER ARE FINE USING HER REAL FIRST NAME AND THE FIRST INITIAL OF HER LAST NAME. THE ONLY REQUEST THE MOTHER HAS IS THAT SHE WOULD BE ALLOWED TO BE INSIDE THE COURTROOM JUST DURING HER DAUGHTER’S TESTIMONY SO THAT THEY’RE NOT SEPARATED.
THE COURT: ALL RIGHT. THAT’S UNDERSTANDABLE. AND WE’LL MAKE SURE THAT THERE IS A SEAT ARRANGED FOR THE MOTHER SOMEWHERE IN THE COURTROOM.
MR. FELDMAN: JUST ONE OF THE CAMERAMEN ADVISED THAT THE COURT’S ORDER DIDN’T SPECIFICALLY ADDRESS THE STILL CAMERAS, AND SO I WOULD JUST REQUEST THE COURT TO ADDRESS YOUR ORDER TO THE STILL. . . WHO WOULD HAVE THOUGHT, JUDGE. I’M SORRY. THANK YOU VERY MUCH.
THE COURT: IT APPLIES TO THE STILL CAMERA. SO THAT IN THE “UNION-TRIBUNE” TOMORROW THERE’LL BE NO PICTURE OF THAT WITNESS IN A LITTLE BOX.
NOW, I HAVE AN AX TO GRIND WITH THE LIVE TELEVISION COVERAGE, AND THAT IS THIS: WHEN I SAY THE COURT IS IN RECESS, TURN THE CAMERA OFF. WHAT GOES ON IN HERE AFTER WE’RE IN RECESS IS NOT FOR DISPLAY. WE’RE STARTING TO GET E-MAILS, AS I INDICATED YESTERDAY, AND THEY SEEM TO DEAL A LOT WITH POST-RECESS MATTERS. WHEN WE’RE IN OPEN SESSION, I DON’T MIND YOU FILMING WHAT’S GOING ON. BUT WHEN I SAY WE’RE IN RECESS, THAT’S THE CUT LINE.
OKAY. ANYTHING ELSE?
MR. FELDMAN: MR. CLARKE IS POINTING OUT TO ME ALSO THERE’S AN ISSUE WITH REGARD TO THE MICROPHONES.
THE COURT: WHAT’S THE ISSUE WITH THE MICROPHONES?
MR. CLARKE: JUST ABOUT BREAKS.
THE COURT: SHUTTING THEM OFF. I’M SURE OUR TECHNICIAN CAN SHUT THOSE OFF AT THE SAME TIME. CUT MEANS CUT. OKAY.
ALL RIGHT. LET’S GET THE JURY.
(END OF PROCEEDINGS OUT OF THE PRESENCE OF THE JURY.)
THE COURT: GOOD MORNING, LADIES AND GENTLEMEN. WELCOME BACK.
I APOLOGIZE FOR THE DELAY. WE HAD A LITTLE HOUSECLEANING TO DO BEFORE YOU FOLKS CAME IN.
BEFORE WE START TODAY, I’VE GOT SOME GOOD NEWS AND SOME BAD NEWS. THE GOOD NEWS IS I HAVEN’T HEARD FROM ANY MORE COUNTY EMPLOYEES SINCE YESTERDAY.
THE BAD NEWS IS I’M STARTING TO BE CONTACTED BY ALL THE SOAPBOX LOVERS WHO HAVE GREAT CONCERN ABOUT HAVING TO SET THEIR V.C.R.’S AT 3:00 O’CLOCK IN THE MORNING TO FIND OUT WHAT “THE YOUNG AND THE RESTLESS” ARE DOING TODAY. SO IT SEEMS LIKE WE’VE OFFENDED A WHOLE NEW GROUP OF PEOPLE.
ALL RIGHT. IS MR. REDDEN AVAILABLE?
MR. DUSEK: HE BETTER BE.
THE COURT: OKAY.
PAUL REDDEN, RESUMED
THE COURT: OKAY. THE RECORD SHOULD REFLECT MR. REDDEN IS NOW WITH US.
DIRECT EXAMINATION, CONTINUED
BY MR. DUSEK:
Q: MR. REDDEN, I THINK WHEN WE FINISHED YESTERDAY, WE WERE ABOUT TO PLAY THE TAPE. PRIOR TO SPEAKING WITH THE DEFENDANT, DID YOU OBTAIN A CONSENT OR A WAIVER OF WHAT YOU WERE GOING TO DO?
A: YES, SIR, I DID.
Q: DID YOU EXPLAIN THE PROCESS OF THE INTERVIEW?
A: YES, SIR. THAT IT WAS VOLUNTARY AND THAT WE HAVE A WAIVER THAT HE WOULD SIGN SHOWING THAT HE’S VOLUNTARILY SUBMITTING TO THE INTERVIEW.
Q: AND DID HE DO THAT?
A: YES, SIR, HE DID.
Q: AND DURING THE INTERVIEW WHAT TOPICS DID YOU COVER?
A: WE TALKED ABOUT WHAT HE HAD DONE THE NIGHT PRIOR TO THE VAN DAM GIRL MISSING. AND WHAT HE HAD DONE THAT WEEKEND.
Q: WAS THERE A TIME THAT YOU DISCUSSED THE EVENTS AT SUPERSTITION MOUNTAIN?
A: YES.
Q: DID HE SAY SOMETHING UNUSUAL AT THAT POINT?
A: YES, SIR, HE DID.
Q: WHAT DID HE SAY AT THAT POINT?
A: DURING THE INTERVIEW HE HAD BEEN USING THE SINGULAR I. HE CHANGED HIS TENSE AND SAID WE TWICE WHEN HE WAS AT THE SUPERSTITION MOUNTAIN AREA.
MR. DUSEK: YOUR HONOR, I HAVE HAD MARKED AS COURT’S EXHIBIT 59 AN AUDIOTAPE. AND I’VE HAD MARKED AS COURT’S EXHIBIT 59-A A TRANSCRIPT THAT IS FORTY-TWO PAGES LONG.
(AUDIOTAPE OF INTERVIEW OF THE DEFENDANT BY PAUL
REDDEN MARKED TRIAL EXHIBIT NUMBER 59 FOR IDENTIFICATION.
(TRANSCRIPT OF TRIAL EXHIBIT NUMBER 59 FOR
IDENTIFICATION MARKED TRIAL EXHIBIT NUMBER 59-A FOR
IDENTIFICATION.)
MR. DUSEK: AND I HAVE COPIES FOR THE JURY AND STAFF.
THE COURT: ALL RIGHT.
LADIES AND GENTLEMEN, WE’RE GOING TO DO WHAT WE HAVE DONE ON OUR PRIOR TAPES. THIS IS AN AUDIOTAPE. HAVING LISTENED TO IT, THERE IS A QUALITY PROBLEM ON OCCASION. SO THESE ARE BEING DISTRIBUTED SO THAT YOU CAN FOLLOW WITH THE FLOW OF THE INTERVIEW.
AS I INSTRUCTED YOU YESTERDAY, THEY WILL BE PICKED UP FROM YOU AT THE CONCLUSION OF LISTENING TO THE TAPE.
THE COURT: OKAY.
MR. DUSEK: I BELIEVE THIS TAPE IS ABOUT FORTY-ONE, FORTY-TWO MINUTES LONG, YOUR HONOR. AND I WOULD ASK THAT WE BE ABLE TO PLAY IT, AND WE WOULD STIPULATE THE REPORTER DOES NOT HAVE TO TRANSCRIBE IT.
THE COURT: SO STIPULATED?
MR. FELDMAN: YES.
THE COURT: ALL RIGHT. THANK YOU.
MR. FELDMAN: YOUR HONOR, THERE HAS BEEN AN EXHIBIT MARKED.
THE COURT: YES. IT’S B — OR A. EXCUSE ME. 59-A.
MR. FELDMAN: I’M SORRY, YOUR HONOR. 59 IS THE AUDIOTAPE; 59-A IS THE TRANSCRIPT?
THE COURT: YES.
MR. FELDMAN: THANK YOU.
(TRIAL EXHIBIT NUMBER 59 FOR IDENTIFICATION WAS
PLAYED AT THIS POINT.)
THE COURT: OKAY. LADIES AND GENTLEMEN, LET’S SEE. PASS THEM TO YOUR RIGHT.
ALL RIGHT. MR. DUSEK.
BY MR. DUSEK:
Q: MR. REDDEN, DID YOU JUST GET AN OPPORTUNITY TO READ OR LISTEN TO THE TAPE THAT WAS PLAYED?
A: YES, SIR, I DID.
Q: WAS THAT A TRUE AND ACCURATE RENDITION OF THAT PORTION OF THE INTERVIEW?
A: YES, SIR, IT WAS.
Q: AND THE TRANSCRIPT THAT WE WENT ALONG, WAS THAT ACCURATE AS HUMANLY POSSIBLE?
A: YES, SIR, IT WAS.
MR. DUSEK: THANK YOU, SIR.
THE COURT: ALL RIGHT.
CROSS-EXAMINATION.
CROSS-EXAMINATION
BY MR. FELDMAN:
Q: HOW MANY HOURS DID YOU SPEND SPEAKING WITH MR. WESTERFIELD?
MR. DUSEK: OBJECTION. 352, YOUR HONOR.
THE COURT: SUSTAINED.
BY MR. FELDMAN:
Q: HOW MANY DIFFERENT TIMES DID MR. WESTERFIELD ASK YOU FOR COUNSEL?
MR. DUSEK: OBJECTION, YOUR HONOR. 352.
THE COURT: SUSTAINED.
YOU NEED NOT ANSWER.
MR. FELDMAN: 352, YOUR HONOR?
THE COURT: A VARIETY OF REASONS, ONE OF WHICH I’M GOING TO DISCUSS WITH YOU AT SIDEBAR.
(SIDEBAR DISCUSSION, OUT OF THE HEARING OF THE JURY,
AS FOLLOWS:
(PROCEEDINGS NOT PART OF THE PUBLIC RECORD.)
(END OF SIDEBAR DISCUSSION.)
BY MR. FELDMAN:
Q: DID YOU HAVE A HEATER GOING IN THAT ROOM, SIR?
A: I’M SORRY?
Q: DID YOU HAVE A HEATER GOING IN THE ROOM THAT YOU WERE SPEAKING TO MR. WESTERFIELD?
A: YES, SIR. I HAD A SPACE HEATER.
Q: AND DID MR. WESTERFIELD INDICATE THAT HE WAS ALWAYS HOT?
A: YES, SIR, HE DID.
Q: AND HE ACTUALLY COMPLAINED ABOUT HOW HOT IT WAS, ISN’T THAT RIGHT?
A: YES, SIR, HE DID. AND I TOLD HIM EARLIER THAT I WAS CHILLED AND THAT’S THE REASON I HAD THE SPACE HEATER WAS FOR MY PURPOSES.
Q: YOU ALSO TOLD US EARLIER YOU ARE FROM — YOU WERE A POLICE OFFICER IN WYOMING, SIR?
A: YES, SIR, THAT’S CORRECT.
Q: WHICH CITY OR TOWN?
A: BUFFALO.
Q: WHERE’S THAT?
A: IT’S IN THE NORTH-CENTRAL PART OF THE STATE.
Q: AS PART OF THE PROCESS OF YOUR — YOU’RE CALLED AN INTERROGATION SPECIALIST, IS THAT CORRECT, SIR?
A: INTERVIEW AND INTERROGATION SPECIALIST, YES, SIR.
Q: AND WHAT’S AN INTERROGATION?
A: IT WOULD BE QUESTIONING AN INDIVIDUAL ABOUT SPECIFICS ON A PARTICULAR INCIDENT.
Q: AND WHAT’S THE DIFFERENCE BETWEEN THAT AND AN INTERVIEW?
A: PROBABLY AN INTERROGATION AT SOME POINT BECOMES ACCUSATORY.
Q: DID YOU CONSTRUE YOUR COMMUNICATION WITH MR. WESTERFIELD AS ACCUSATORY?
A: NOT AT THIS POINT THAT WE’VE JUST LISTENED TO, NO, SIR. IT WAS STILL AN INTERVIEW.
Q: PRIOR TO YOUR — DO YOU RECALL WHAT TIME YOU STARTED TO SPEAK TO MR. WESTERFIELD?
A: APPROXIMATELY 1520 HOURS OR 3:20 IN THE AFTERNOON.
Q: SO YOU WERE AWARE THAT HE HAD BEEN WITH LAW ENFORCEMENT ESSENTIALLY ALMOST CONTINUOUSLY WITHOUT A BREAK SINCE ABOUT TEN TO 9:00 THAT MORNING?
MR. DUSEK: OBJECTION. SPECULATION. HEARSAY.
THE COURT: SUSTAINED.
BY MR. FELDMAN:
Q: BEFORE YOU WERE ENGAGED IN THE PROCESS OF COMMUNICATING WITH MR. WESTERFIELD, HAD YOU BEEN BRIEFED BY OTHER OFFICERS?
A: DETECTIVE JOHNNY KEENE HAD TOLD ME THAT HE HAD SPOKEN WITH HIM EARLIER.
MR. DUSEK: OBJECTION. HEARSAY.
THE COURT: OVERRULED.
THE ANSWER WILL STAND.
NEXT QUESTION.
BY MR. FELDMAN:
Q: SO YOU HAD AT LEAST THE INFORMATION THAT MR. WESTERFIELD HAD BEEN PREVIOUSLY WITH LAW ENFORCEMENT THAT DAY.
A: YES, SIR. THAT’S CORRECT.
Q: AND YOU NEEDED THAT INFORMATION ANYWAY FOR YOU TO PERFORM YOUR JOB, IS THAT RIGHT?
A: THAT’S CORRECT, SIR, YES.
Q: SO IT WAS IMPORTANT FOR YOU TO FAMILIARIZE YOURSELF WITH WHAT HAD HAPPENED PREVIOUSLY.
A: WHAT HAD BEEN STATED, YES, SIR.
Q: AS PART OF YOUR TECHNIQUE, YOU TRY AND MAKE THE SUBJECT COMFORTABLE, IS THAT RIGHT?
A: YES, SIR.
Q: AND AMONG THE WAYS IN WHICH YOU MAKE THE SUBJECT COMFORTABLE IS TO ENGAGE IN KIND OF CONVERSATIONAL TONE SUBJECTS, IS THAT RIGHT?
A: I TRY TO ESTABLISH A RAPPORT WITH THE INDIVIDUAL.
Q: AND IN THIS CASE YOU TRIED TO ESTABLISH A RAPPORT WITH MR. WESTERFIELD, ISN’T THAT RIGHT?
A: YES, SIR, THAT’S CORRECT.
Q: YOU ASKED HIM, FOR INSTANCE, WHAT HIS JOB WAS.
A: YES.
Q: HE TOLD YOU HE WAS —
MR. DUSEK: OBJECTION. HEARSAY. BEYOND THE SCOPE.
MR. FELDMAN: 356.
THE COURT: WELL, . . . I BETTER SEE YOU AT SIDEBAR, MR. FELDMAN.
(SIDEBAR DISCUSSION, OUT OF THE HEARING OF THE JURY,
AS FOLLOWS:
(PROCEEDINGS NOT PART OF THE PUBLIC RECORD.)
(END OF SIDEBAR DISCUSSION.)
BY MR. FELDMAN:
Q: SIR, YOU SAID ON TAPE THAT YOU HAD TROUBLE REMEMBERING YESTERDAY. WAS THAT PART OF THE PROCESS OF ESTABLISHING RAPPORT?
A: YES, IT WAS.
Q: WAS IT TRUE?
A: NO, SIR.
Q: I’M SORRY. JUST AS PART OF YOUR TRAINING AS AN INTERROGATION SPECIALIST, ARE YOU PERMITTED TO OR AS PART OF YOUR TRAINING TO PERMIT YOU TO LIE TO PEOPLE THAT YOU’RE TALKING TO?
A: I TRY TO ESTABLISH A RAPPORT WITH THE INDIVIDUAL, KEEP IT A VERY RELAXED ATMOSPHERE AS OPPOSED TO A NON-ADVERSARIAL TYPE OF INTERVIEW.
Q: KIND OF LIKE A SALESMAN?
A: YOU COULD USE THAT SCENARIO IF YOU LIKE, SIR.
Q: EXCEPT IN YOUR SPECIFIC INSTANCE YOU’VE INDICATED YOU WOULD GO SO FAR AS TO NOT TELL THE TRUTH TO ESTABLISH THAT RAPPORT.
A: I DON’T KNOW THAT THAT WOULD NOT BE TELLING THE TRUTH.
Q: WELL, SOMETIMES I HAVE TROUBLE REMEMBERING YESTERDAY. YOU JUST TOLD ME THAT WASN’T A TRUE STATEMENT, RIGHT?
A: YES, SIR.
Q: AND YOU DID MAKE THAT STATEMENT TO MR. WESTERFIELD.
A: YES, SIR, I DID.
Q: AND YOU MADE THAT IN THE CONTEXT OF TRYING TO ESTABLISH A RAPPORT.
A: THAT’S CORRECT, YES, SIR.
Q: ALL RIGHT.
ON THE TAPE WE HEAR THE NAME JACKIE. WHO WAS THAT?
A: I’M ASSUMING THAT THAT WAS HIS WIFE, HIS EX-WIFE.
Q: WE HEARD THE NAME NEAL. WHO WAS THAT?
A: NEAL IS HIS SON I BELIEVE, SIR.
Q: AND WE HEARD THE NAME LISA. WHO WAS THAT?
A: I ASSUME THAT WAS HIS DAUGHTER. MR. WESTERFIELD’S DAUGHTER.
(DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN
AND MR. BOYCE.)
BY MR. FELDMAN:
Q: DID YOU PROVIDE MR. WESTERFIELD ANY FOOD?
A: I DID NOT, NO, SIR.
Q: COULD YOU TELL WHETHER OR NOT — YOU HAD NOT MET MR. WESTERFIELD PRIOR TO THAT DATE, IS THAT RIGHT, SIR?
A: NO, SIR. THIS WAS THE FIRST TIME.
Q: I’M SORRY. I DIDN’T WANT TO INTERRUPT.
A: THIS WAS THE FIRST TIME.
Q: DID YOU — THEN YOU’RE NOT ABLE TO FORM AN OPINION AS TO HOW FATIGUED HE MIGHT HAVE BEEN, IS THAT RIGHT?
A: EXCEPT I ASKED HIM HOW MUCH SLEEP HE HAD HAD.
Q: WHAT DID HE TELL YOU?
A: FIVE HOURS.
Q: AND DID YOU ASK HIM WHEN HE HAD LAST EATEN?
A: YES, SIR, I DID.
Q: WHAT DID HE TELL YOU?
A: THAT HE HADN’T EATEN.
Q: DID YOU ASK HIM WHO OR — ON THE TAPE WE HEAR A MENTION TO DAVE AND DEBBIE. DID YOU ASK HIM — I’M SORRY. DO YOU KNOW WHO DAVE AND DEBBIE ARE?
A: THEY ARE THE FRIENDS THAT HE WAS TRYING TO FIND IN THE DESERT.
MR. FELDMAN: NO FURTHER QUESTIONS AT THIS TIME.
THE COURT: ALL RIGHT.
MR. DUSEK, ANYTHING FURTHER?
MR. DUSEK: NO, THANK YOU.
THE COURT: ALL RIGHT.
IS MR. REDDEN TO BE SUBJECT TO RECALL?
MR. FELDMAN: PLEASE.
THE COURT: YES?
MR. FELDMAN: PLEASE.
THE COURT: ALL RIGHT.
MR. REDDEN, YOUR TIME WITH US IS DONE. PLEASE REMEMBER THE ADMONITION NOT TO DISCUSS THE CASE WITH ANYONE UNLESS IT’S PURSUANT TO THE ONGOING INVESTIGATION. ALL RIGHT?
THE WITNESS: YES, SIR.
THE COURT: THANK YOU VERY MUCH.
(THE WITNESS WAS EXCUSED.)
THE COURT: ALL RIGHT. MR. DUSEK, IT’S CLOSE ENOUGH WE MIGHT AS WELL JUST TAKE THE MORNING BREAK RIGHT AT THIS POINT.
THE COURT: LADIES AND GENTLEMEN, PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR WITH ANY OTHER PERSONS NOR FORM OR EXPRESS ANY OPINIONS ON THE CASE UNTIL IT IS SUBMITTED TO YOU FOR DECISION.
LET’S BE OUTSIDE THE DOOR AT 10:35, PLEASE. 10:35.
(THE JURY RECESSED AT 10:20 O’CLOCK, A.M.)
(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE
JURY:
THE COURT: OKAY. THE RECORD SHOULD REFLECT THE JURORS AND ALTERNATES HAVE LEFT THE COURTROOM.
APPARENTLY THIS MORNING ON THE WAY IN JUROR 14 LEFT OFF A NOTE INDICATING SHE WAS IN THE POST OFFICE AND APPARENTLY THERE WAS A TELEVISION ON AND THAT SHE WASN’T PAYING ATTENTION TO IT EXCEPT SHE HEARD, QUOTE, SOMETHING, SOMETHING, JUROR HAS BEEN IDENTIFIED, END QUOTE. AND THAT’S WHEN SHE REALIZED THERE WAS A T.V. IN THE LOBBY. AND THIS IS AT THE POST OFFICE. AND IT WAS SET TO THE NEWS. AND SHE TURNED AROUND AND LEFT THE POST OFFICE.
NOW, I DON’T REALLY THINK THAT’S A PROBLEM FOR JUROR 14, BUT WHAT CAUSES ME SOME CONCERN IS THAT THE INFERENCE IS THAT SOME JUROR HAS BEEN IDENTIFIED. AND I’M ASSUMING THAT MEANS BY MEDIA.
NOW, I DON’T KNOW THE CONTEXT OF ANY OF THIS. BUT, AT ANY RATE, I THINK THE WAY I’LL HANDLE IT IS HAVE JUROR 14 COME IN FIRST JUST TO FIND OUT WHETHER THERE’S ANY CONCERN.
MR. DUSEK: SEEMS LIKE IT COULD BE A POTENTIAL — IT COULD BE IDENTIFIED AS HAVING PROBLEMS WITH HER JOB OR BEEN IDENTIFIED FOR SOME OTHER REASON RATHER THAN FACE AND NAME.
THE COURT: RIGHT. WELL, THAT’S HOPEFULLY EXACTLY WHAT WE’VE GOT. BUT, AT ANY RATE, I JUST BRING IT TO YOUR ATTENTION BECAUSE SHE HANDED IT AS SHE CAME IN THIS MORNING.
ALL RIGHT. WE WILL BE IN RECESS UNTIL 10:35.
(END OF PROCEEDINGS OUT OF THE PRESENCE OF THE JURY.)
(RECESS, 10:23 O’CLOCK, A.M., TO 10:35 O’CLOCK, A.M.)
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