56 – Day 15- June 27th 2002 – Motions trial David Westerfield

SAN DIEGO, CALIFORNIA, THURSDAY, JUNE 27, 2002, 9:04 A.M.


MOTIONS

–O0O–

THE COURT:   ALL RIGHT. IN THE WESTERFIELD MATTER THE RECORD WILL REFLECT THE APPEARANCE OF COUNSEL, MR. WESTERFIELD, THE JURORS AND ALTERNATES NOT BEING HERE.
COUNSEL, BEFORE WE GET STARTED, YOU SHOULD KNOW JUROR NUMBER 1 HAS CALLED IN AND HAS A FAMILY SITUATION ON TUESDAY AND WOULD LIKE US TO TAKE A ONE-HOUR LUNCH BREAK INSTEAD OF AN HOUR AND A HALF SO THAT WE CAN ADJOURN BY 4:00 O’CLOCK ON TUESDAY.
SO I’M JUST ALERTING YOU TO THAT POSSIBILITY SO YOU CAN PLAN ACCORDINGLY.
OKAY. WHAT I WOULD LIKE TO DO, COUNSEL, IS GO THROUGH THIS AS RAPIDLY AS WE CAN. I’M ASSUMING THAT A WHOLE LOT OF THESE ITEMS ARE NOT GOING TO BE OBJECTED TO. AND THEN OBVIOUSLY THOSE THAT THERE ARE NEEDS TO MAKE A RECORD ON WE CAN DO THAT.
DOES EVERYBODY HAVE THEIR OWN COPIES?
MR. FELDMAN:   NOT FROM THE COURT. THE DEFENSE HAS THE DEFENSE’ LIST, BUT I HAVEN’T GOT THE COURT’S LIST.
THE COURT:   DO YOU WANT A COPY OF THE COURT’S COPY?
MR. FELDMAN:   IF WE MAY, PLEASE.
THE COURT:   ALL RIGHT.
PEGGY, AS SOON AS YOU’RE DONE, LET ME KNOW, AND WE’LL GO.
(RECESS, 9:05 O’CLOCK, A.M., TO 9:11 O’CLOCK, A.M.)
THE COURT:   OKAY. ONCE AGAIN WE’RE GATHERED TOGETHER. JURORS AND ALTERNATES NOT BEING PRESENT; ALL PARTIES AND MR. WESTERFIELD ARE.
OKAY. I TEND TO GO THROUGH THESE PRETTY RAPIDLY, SO IF THERE IS ANY OBJECTION, LET ME KNOW.
ITEM 1 IS AN AERIAL PHOTO OF THE NEIGHBORHOOD. IF I DON’T HEAR AN OBJECTION, I WILL ASSUME THESE ARE TO BE ADMITTED.
2 IS AN AERIAL PHOTO OF THE RECOVERY SITE.
3 IS AN AERIAL PHOTO OF THE RECOVERY SITE.
4 IS A PHOTOBOARD OF THE RECOVERY SITE.
MR. FELDMAN:   YOUR HONOR, TO THE EXTENT THE COURT IS ADMITTING THESE EXHIBITS, THE COURT, RATHER THAN US RENEWING OUR OBJECTIONS, WILL YOU JUST PERMIT A STANDING — WE HAVE ALREADY MADE OUR RECORD I BELIEVE WITH REGARD TO THESE. I DON’T KNOW WHETHER I HAVE TO MAKE A SPECIFIC OBJECTION AS TO EACH PIECE OF EVIDENCE. CAN THE COURT JUST ACCEPT A CONTINUING OBJECTION TO THOSE MATTERS WE’VE PREVIOUSLY OBJECTED TO?
THE COURT:   ALL RIGHT.
4 CONTAINS PHOTOGRAPHS THE DEFENSE HAS OBJECTED TO. THE OBJECTION IS DULY NOTED AND OVERRULED.
5 WAS PROFFERED BY THE DEFENSE. IT’S A SERIES OF PHOTOS AT THE RECOVERY SITE.
DOES THE PROSECUTION HAVE ANY OBJECTION?
MR. CLARKE:   WE DO. WE THINK THERE’S A FAILURE OF FOUNDATION ON SEVERAL OF THE PHOTOS. THERE IS NOT ON OTHERS. THE COURT:   SO 5 IS ONE THAT YOU ARE OBJECTING TO?
MR. CLARKE:   PORTIONS.
THE COURT:   LET ME GET 5. LET’S SEE IF WE CAN FIND IT.
(PAUSE.)
THE COURT:   YOU KNOW WHAT. I HAVE A THOUGHT. HOW ABOUT THE COURT COMPELS THE TWO SIDES TO SIT DOWN WITH THE EXHIBIT LIST AND GO THROUGH THE LIST AND AGREE TO DISAGREE ON WHATEVER NUMBERS YOU’RE GOING TO DISAGREE ON, AND THEN I WILL COME BACK AND IN MY KINGLY FASHION WILL TALK ABOUT THOSE THAT ARE OBJECTED TO. AND WE CAN GET ALL THE ONES THAT AREN’T OBJECTED TO OUT OF THE WAY.
MR. FELDMAN:   YOUR HONOR, WHILE I HAVE NO PROBLEM WITH THAT, THERE IS, I DON’T KNOW, IT’S WHENEVER YOU WANT TO TAKE IT UP, BUT THERE ARE ISSUES THAT HAVE ARISEN FROM CALIFORNIA SUPREME COURT THAT I WOULD ASK LEAVE TO ADDRESS TO THE COURT THAT RELATE TO SOME OF THE I’LL SAY MISPUBLICITY THAT’S OUT THERE AS A RESULT OF SOME OF THE COMMENTS THE COURT’S MADE AND OTHER LEGAL ISSUES THAT I THINK IT APPROPRIATE NEED TO BE ADDRESSED. IT’S JUST A QUESTION OF WHATEVER TIME YOU THINK IS
APPROPRIATE.
THE COURT:   WELL, LET’S GET THE EXHIBITS OUT OF THE WAY FIRST, AND THEN WE’LL DEAL WITH THAT.
OKAY. LET ME KNOW WHEN YOU’RE READY, PEG.
(RECESS, 9:15 O’CLOCK, A.M., TO 10:02 O’CLOCK, A.M.)
THE COURT:   OKAY. WHERE HAVE WE AGREED TO DISAGREE? LET’S GO TO THOSE FIRST.
MR. CLARKE:   GO DOWN OUR LIST?
THE COURT:   SURE. YOU’RE FIRST UP. SO. . .
MR. CLARKE:   ITEM NUMBER EXHIBIT 5, YOUR HONOR, IS AN ALBUM-TYPE COLLECTION OF EIGHT PHOTOGRAPHS. I BELIEVE THERE HAS BEEN A FOUNDATION LAID FOR PHOTOGRAPH B AS IN BOY THROUGH MR. HEIMBURGER. AND THEN WE GOT INTO PHOTOGRAPHS D, G, AND H. ALL HE COULD SAY IS IT LOOKS FAMILIAR. BUT ON THE REMAINING PHOTOGRAPHS WE DON’T BELIEVE HE WAS ABLE TO SAY ANYTHING.
THE COURT:   ALL RIGHT. WELL, THIS HAS TECHNICALLY BEEN MARKED BY THE DEFENSE. IT’S TECHNICALLY PREMATURE. BUT DO YOU WANT TO COMMENT ON IT NOW, MR. FELDMAN, OR JUST WAIT UNTIL YOUR CASE IN CHIEF IS CONCLUDED?
MR. FELDMAN:   IF THERE’S ANY FOUNDATION ISSUES, YOUR HONOR, WE WILL ADDRESS THEM IN OUR CASE IN CHIEF.
THE COURT:   THIS IS PROFFERED BY THE DEFENSE, SO WE WILL TAKE NO ACTION ON EXHIBIT 5 UNTIL APPROPRIATE DEFENSE HAS BEEN CONCLUDED.
MR. FELDMAN:   THANK YOU.
THE COURT:   ALL RIGHT. ANY OTHER?
MR. CLARKE:   IF IT’S ON DEFENSE EXHIBITS, PERHAPS ALL OF OUR OBJECTIONS ARE PREMATURE, THEN.
THE COURT:   OKAY.
ALL RIGHT. WHAT ELSE IS THERE, JUST IN CASE THERE MAY BE SOME?
MR. DUSEK:   WE THINK ALL OURS OUGHT TO COME IN.
THE COURT:   ALL RIGHT.
ALL RIGHT, MR. FELDMAN, LET’S TALK, THEN, OF OBJECTIONS TO THE PEOPLE’S PROFFERED EXHIBITS.
MR. FELDMAN:   YOUR HONOR, WITH REGARD TO A SERIES OF TAPES, I CAN TELL YOU THAT AT LEAST WITH REGARD TO 58-A, 59-A, AND
36-A, 36-A — 36, YOUR HONOR, WAS THE NINE-ONE-ONE CALL FROM BRENDA VAN DAM.
THE COURT:   ALL RIGHT. YOU PREVIOUSLY NOTED AN OBJECTION. I’LL NOTE AN ONGOING OBJECTION.
MR. FELDMAN:   NO, NO, NO. I’M SAYING WITH REGARD TO THE TRANS — I THINK YOU’VE ALREADY RULED THAT’S ADMITTED. MY ADDRESS IS TO THE TRANSCRIPT OF THE TAPE. OKAY. I DON’T THINK YOU’VE RULED ON THAT. SO JUST THE DEFENSE’ POSITION IS THE TAPE IS THE BEST EVIDENCE TO THE EXTENT THAT CONCEPT EXISTS.
THE COURT:   LET ME DESCRIBE TO YOU HOW THAT WORKS. THE TAPE WILL GO INTO EVIDENCE. THE TRANSCRIPT IS LODGED WITH THE COURT UNDER THAT BASICALLY BECAUSE IT’S A RULE OF COURT FOR THE APPELLATE COURT.
MR. FELDMAN:   YES.
THE COURT:   THE TRANSCRIPT WILL NOT BE WITH THE JURY. IF THEY SO REQUEST, I’LL GIVE EVERYONE OPPORTUNITY TO BE HEARD. BUT THE EXHIBIT 36 WILL BE ADMITTED. 36-A IS JUST LODGED WITH THE COURT FOR RULE OF COURT REASONS.
MR. FELDMAN:   SO PRESUMABLY, YOUR HONOR, YOUR HONOR’S RULING WOULD ALSO ADDRESS 58 AND 59 BECAUSE THOSE ARE —
THE COURT:   ABSOLUTELY.
MR. FELDMAN:   A’S ARE THE TRANSCRIPTS THAT GO TO THOSE SUBSTANTIVE EXHIBITS.
THE COURT:   THAT IS ABSOLUTELY CORRECT.
MR. FELDMAN:   YOUR HONOR, WITH REGARD TO EXHIBIT 41, 41 IS — YOU CAN SEE IT, AND I CAN’T SEE IT SO WELL.
THE COURT:   SURE.
MR. FELDMAN:   THE COURT WILL RECALL THE TESTIMONY OF EACH OF THE CELL SITES IS PLUS OR MINUS FIFTEEN TO A HUNDRED MILES. AND THE APPLICATION OF THE PARTICULAR SITES IN MR. CLARKE’S HANDWRITING, WHILE NICELY DONE, I THINK IS MISLEADING THAT IT IMPLICATES AN ADVERSARIAL POSITION ON A COURT EXHIBIT BECAUSE WHERE THEY PUT THE SPOTS ISN’T NECESSARILY CONSISTENT (A) WITH WHAT THE EVIDENCE IS, NOR IS IT CONSISTENT WITH WHAT THE VERIZON WIRELESS MAN SAID ABOUT PLUS OR MINUS FIFTEEN TO A HUNDRED MILES. SO WE OBJECT TO THAT 41.
THE COURT:   ALL RIGHT.
COMMENTS FROM THE PEOPLE?
MR. CLARKE:   I THINK IT’S A LITTLE MISDESCRIPTION OF THE EVIDENCE. HE TALKED UP TO FIVE MILES, POSSIBLY MORE. IS IT CONCEIVABLE IT COULD BE A HUNDRED, YES; BUT I THINK THE EXHIBIT FAIRLY DEPICTS WHAT THE VERIZON WITNESS DESCRIBES IN COMBINATION WITH DETECTIVE TOMSOVIC’S KNOWLEDGE OF EACH OF THOSE LOCATIONS.
THE COURT:   OKAY. THE OBJECTION TO 41 WILL BE DULY NOTED. THERE IS SUFFICIENT BASIS TO ALLOW IT TO GO TO THE JURY. IT WILL BE ADMITTED.
ANY OTHERS?
MR. FELDMAN:   YES.
THE COURT:   OKAY.
MR. FELDMAN:   I WANT TO ADDRESS THE ADMISSIBILITY OF THE EVIDENCE THAT THE COURT PERMITTED THE JURY TO HEAR FOLLOWING THE CROSS-EXAMINATION THAT WAS, THE DEFENSE’ VIEW, CONSISTENT WITH THE COURT’S PRIOR RULINGS. AND I’M NOT TRYING TO RAISE ANY SCABS HERE, BUT —
THE COURT:   NOW WE’RE TALKING NOW ABOUT THE PORNOGRAPHIC IMAGES?
MR. FELDMAN:   I’M TALKING ABOUT 147, I BELIEVE 148, 146. WITH REGARD TO 146. YOUR HONOR, I WANT TO HAND YOU 146.
THE COURT:   I KNOW IT VERY WELL. I’VE SEEN EACH ONE OF THOSE EXHIBITS.
MR. FELDMAN:   THE PARTIES HAVE AGREED THAT IT WOULD BE APPROPRIATE FOR THE COURT TO — WHATEVER YOUR RULING, THE PARTY’S POSITION IS THESE PHOTOS SHOULD BE SEALED FOR PURPOSES OF ALLOWING APPELLATE REVIEW IF YOU ADMIT THEM FOR PURPOSES OF BEING SHOWN TO THE JURY, BUT NOT FOR PURPOSES OF DISSEMINATION PUBLICLY.
THE COURT:   YOU SHOULD KNOW THAT 146, 147, AND 148 WILL NOT BE DISTRIBUTED NOR ALLOWED FOR PUBLIC VIEWING. TENTATIVELY I INTEND TO STRIKE THE PHOTOGRAPHS THAT IDENTIFY FACIALLY THE INDIVIDUALS IN 146 AND ONLY ALLOW THE PHOTOGRAPHS THAT DEPICT THE YOUNG GIRL WITH HER HEAD COVERED.
MR. FELDMAN:   WITH REGARD TO THE PORNOGRAPHIC EXHIBIT THAT THE COURT PERMITTED THE PROSECUTION TO ASK QUESTIONS OF OF THE JURY, AND IN SPECIFIC THOSE PHOTOS WHICH DEPICT BEHAVIORS WITH ANIMALS, THERE WAS ABSOLUTELY NOTHING IN MY CROSS-EXAMINATION WHICH IMPLICATED OR SUGGESTED THAT THERE WAS ANY RELEVANCE TO ANY OF THAT.
THE COURT:   THAT IS CORRECT. AND IT WILL NOT BE ADMITTED.
MR. FELDMAN:   WITH REGARD TO ANY OF THOSE PHOTOGRAPHS, IT CONTINUES TO BE THE DEFENSE’ POSITION THAT THE CROSS-EXAMINATION WAS WELL WITHIN THE COURT’S RULING. ALREADY THE MEDIA’S GOT IT WRONG BECAUSE THE MEDIA IS NOW REPORTING AT LEAST AS OF LAST NIGHT THAT CONTRARY TO THE TESTIMONY IN THIS COURTROOM THAT THERE WERE 85 QUESTIONABLE IMAGES. NOW THE MEDIA IS REPORTING THERE’S EIGHT TO TEN THOUSAND QUESTIONABLE IMAGES, WHICH IS SIMPLY NOT THE CASE.
WITH REGARD TO THE NOTION OF ANY DOORS BEING OPENED, WE WOULD CITE TO THE COURT PEOPLE VERSUS GAMBOS, WHICH IS A CALIFORNIA APPELLATE COURT DECISION, 1970, 5 CAL. APP. 3D, 187. IN THAT CASE THE COURT SPECIFICALLY CONCLUDED THAT ANY NOTION OF AN OPEN-THE-DOOR OR OPEN-THE-GATES ARGUMENT IS NOTHING MORE THAN, QUOTE, POPULAR FALLACY.
IN FORTNER, F-O-R-T-N-E-R, V. BRUHN, B-R-U-H-N, 1963, 217 CAL. APP. 2D, 184, AGAIN WHERE THE — EVEN WHERE THE PROSECUTION FAILS TO OBJECT, WHICH OBVIOUSLY THEY DID IN THIS CASE, ONCE — THE EVIDENCE IS INADMISSIBLE, PERIOD. IT DOESN’T BECOME ADMISSIBLE BECAUSE QUESTIONS ARE ASKED. IT DOESN’T BECOME ADMISSIBLE BECAUSE A COURT THINKS THAT — BECAUSE THE COURT THINKS SOMETHING MAY OR MAY NOT HAVE BEEN WITHIN A PRIOR RULING. THE COURT’S PRIOR RULING, WE’VE ARGUED THIS BEFORE, BASICALLY STOOD FOR THE PROPOSITION THAT THE COURT WAS AWARE THE DEFENSE INTENDED POSSIBLY TO TENDER THE EXISTENCE OF THE NUMBER OF PHOTOGRAPHS AS I DID THROUGH MR. WATKINS.
HOWEVER, THERE WAS NEVER A TACTICAL DECISION MADE, THE RECORD NEEDS TO BE EXPLICITLY CLEAR ON THIS, YOUR HONOR, PLEASE, THERE WAS NEVER A TACTICAL DECISION MADE BY ME OR ANY MEMBER OF THE DEFENSE TEAM THAT CONTEMPLATED WHAT THE COURT ULTIMATELY DID. THAT WAS COMPLETELY UNFORESEEN. AS THE COURT KNOWS, IT WAS COMPLETELY UNANTICIPATED. AND THE RECORD NEEDS TO BE CLEAR IT WASN’T TACTICAL. BECAUSE I KNOW YOUR HONOR KNOWS THAT ON APPELLATE REVIEW IF SOME APPELLATE LAWYER CONSTRUES I MADE THAT AS A TACTICAL JUDGMENT, WHICH I DID NOT, THAT THAT WOULD DEFEAT ANY ISSUE THAT MAY ARISE AS A RESULT OF THE COURT’S RULING.
AND I THINK IT IMPORTANT THAT THE RECORD BE CLEAR THAT I DID NOT MAKE A TACTICAL DECISION. I DID NOT CONTEMPLATE THE COURT WAS DOING THAT. FOR THAT MATTER I DIDN’T THINK I HAD DONE ANYTHING PROBLEMATIC TO THE COURT. BUT I UNDERSTAND WHAT YOUR POSITION IS ON THAT.
THE NOTION OF THIS OPEN-DOOR POLICY AGAIN AS NOT BEING SUPPORTED BY THE LAW IS SEEN IN PEOPLE VERSUS MATLOCK, A 1970 CASE, 11 CAL. APP. 3D, 4553; PEOPLE VERSUS JOHNSON, 229 CAL. APP. 2D, 162; PEOPLE V. ARENDS, A-R-E-N-D-S, 155 CAL. APP. 2D, 496, AND A NUMBER OF OTHER CASES.
WITH REGARD TO THE ENTIRETY OF THE ADMISSIBILITY OF THE PHOTOGRAPHS THAT THE COURT HAS NOW PERMITTED, THIS IS, I THINK, A QUANDARY THAT AT LEAST THE DEFENSE FINDS ITSELF IN, AND I CAN’T THINK OF A LOGICAL WAY OUT OF IT. THE COURT I THINK HAS INDICATED THAT IT WASN’T GOING — I THINK THE COURT JUST SAID IT’S NOT GOING TO ALLOW ANY OF THE PHOTOS INVOLVING THE ANIMALS, BUT THERE’S BEEN TESTIMONY ABOUT THAT, AND I DON’T KNOW HOW ONE GOES ABOUT UNRINGING THE BELL, SO I SUPPOSE IT WOULD BE APPROPRIATE FOR THE DEFENSE TO PLEASE REQUEST THE COURT TO DIRECT THE JURY THAT WITH REGARD TO ANY TESTIMONY CONCERNING THAT SUBJECT MATTER, THEY ARE TO DISREGARD IT FOR ALL PURPOSES. AND WE MAY COME WITH A SPECIAL JURY INSTRUCTION WHICH REQUESTS SIMILAR RELIEF.
FURTHERMORE, BASED UPON THE COURT’S RULING, I HAVE TO RENEW MY MOTION FOR MISTRIAL BASED UPON ALL OF THE REASONS THAT WERE ARTICULATED PREVIOUSLY, AND THOSE INCORPORATED BY REFERENCE TODAY.
BECAUSE OF THE NATURE OF THE PUBLICITY ON THIS PARTICULAR ISSUE WHICH YOUR HONOR COMMENTED ON BY VIRTUE OF THE SUDDEN ATTENDANCE OF VAST NUMBERS OF MEDIA WHERE IT APPEARED DURING THE D.N.A. THEY WERE LESS INTERESTED, WE RENEW OUR REQUEST FOR SEQUESTRATION BECAUSE I KNOW THAT MUCH OF WHAT WE’RE SAYING TODAY IS GOING TO HIT THE PRESS AGAIN. AND I KNOW BASED ON WHAT WE SAW LAST NIGHT — I’M NOT TRYING TO SEGUE INTO A DIFFERENT ISSUE, YOUR HONOR, MAYBE I SHOULD DEFER ON THE SEQUESTRATION. PLEASE JUST GIVE ME DIRECTION.
THE COURT:   GET IT ALL OUT, AND THEN I WILL HEAR FROM THE PEOPLE.
MR. FELDMAN:   ALL RIGHT. THANK YOU.
LAST NIGHT, YOUR HONOR, ON CHANNEL 8 IT WAS REPORTED THAT THERE WAS AN INTERVIEW WITH DAVID WESTERFIELD’S MOTHER. AND I WATCHED ONLY A SLIGHT PORTION OF IT. I WAS TOLD LATER THAT A PSYCHIATRIST HAD BEEN ON TELEVISION SOMEHOW WHOSE NAME IS RAPPAPORT WHO MADE ALLEGATIONS OF SIMILARITIES BETWEEN MR. WESTERFIELD AND JEFFREY DAHMER AND TED BUNDY AND RAISED ISSUES INVOLVING PROFILE. AND WHY THIS IS OF CONCERN IS BECAUSE LATE LAST NIGHT WE RECEIVED AN E-MAIL, YOUR HONOR, FROM THE CALIFORNIA SUPREME COURT INDICATING THAT AT LEAST WITH REGARD TO THE DEFENSE’ REQUEST FOR STAY AND WITH REGARD TO THE DEFENSE’ REQUEST FOR NON-RELEASE OF INADMISSIBLE EVIDENCE, THAT THAT REQUEST WAS BEING DENIED. SO MY UNDERSTANDING, MY UNDERSTANDING PROCEDURALLY IS THAT THE SUPREME COURT HAS REJECTED THE DEFENSE’ POSITION THAT AT LEAST THAT WHICH IS CONTAINED IN THE AFFIDAVITS, YOUR HONOR, WHICH INCLUDES A SIGNIFICANT PORTION OF STATEMENTS THE COURT HAS RULED CONSTITUTIONALLY INADMISSIBLE BY VIRTUE OF THE ILLEGAL BEHAVIORS OF LAW ENFORCEMENT WHICH THE COURT FOUND TO BE THE CASE, THAT’S GOING TO BE PUBLIC. AND WE’RE CONCERNED THAT STATEMENTS WHICH THE COURT HAS CONCLUDED WERE OBTAINED AS A RESULT OF ILLEGAL ACTIVITIES ON THE POLICE, WHICH WERE INVOLUNTARILY TAKEN, WHICH WERE DELIBERATELY TAKEN IN VIOLATION OF MR. WESTERFIELD’S FIFTH AND SIXTH AMENDMENT RIGHTS, THAT THOSE ARE NOW GOING TO BE BROADCAST ON THE EVENING NEWS AND ADVERSELY INFLUENCE THE JURY. AND SO THE ONLY THING WE CAN THINK TO DO IS RENEW OUR REQUEST FOR SEQUESTRATION BECAUSE WHILE WE RESPECT THE COURT’S VIEW ON SELF-POLICING, AS YOUR HONOR NOTED YESTERDAY, THE MEDIA IS INESCAPABLE. THERE’S NOTHING ANY OF US CAN DO ABOUT THIS. VIRTUALLY EVERYTHING WE ARE DOING IS UNDER A MICROSCOPE, AND I THINK THAT IS IMPLICATING THE PRESS AND THE JURY.
I’VE ALREADY INDICATED THAT AT LEAST WITH REGARD TO ONE REPORTER THERE WAS THE FALSE REPORT OF EIGHT TO TEN THOUSAND PHOTOS OF CHILDREN, WHICH IS JUST PATENTLY FALSE. AND SO AT LEAST WITH REGARD TO SEQUESTRATION ISSUES, WE HAVE THOSE CONCERNS.
THE BINDERS IN 144 AND 145, YOUR HONOR, I THINK I’VE ADDRESSED THAT ON THE OPENING-THE-DOOR ISSUES. I DON’T KNOW HOW YOUR HONOR INTENDS TO DEAL WITH THAT. I THINK IT MAY BE APPROPRIATE FOR US TO AT LEAST KNOW WHAT THE COURT’S PLANNING TO DO IF WE ARE GOING TO AT LEAST APPROPRIATELY FRAME AN OBJECTION, BUT THE COURT KNOWS WE HAVE 352. WE HAVE A POSITION THAT SPECIFICALLY INDICATES THOSE ARE NOT RELEVANT.
WE KNOW BASED ON CASE LAW THERE’S NO SUCH THING AS OPENING THE DOOR. WE KNOW THE COURT BECAME CONCERNED, BUT ON REVIEW OF THE RECORD WE RESPECTFULLY DISAGREE WITH THE COURT’S CONCLUSIONS. AND REGARDLESS, IT’S NOT FAIR THAT DAVID, EVEN IF THE COURT FINDS THAT I DID SOMETHING THAT I SHOULDN’T HAVE DONE, IT’S NOT FAIR TO PUNISH MR. WESTERFIELD AS A RESULT OF THAT. BECAUSE IT WAS NOT DONE IN BAD FAITH, AND THE COURT KNOWS THAT. SO AS TO THE BINDERS, WE HAVE THAT CONCERN AS WELL.
THE COURT:   ALL RIGHT.
MR. FELDMAN:   THANK YOU.
THE COURT:   PEOPLE’S RESPONSE?
MR. CLARKE:   YES, YOUR HONOR.
I’M NOT SURE WHERE TO RESPOND. I BELIEVE WE HAVE ARGUED MOST OF THIS ALREADY. SO I’M GOING TO DIRECT MY COMMENTS TO, FRANKLY, JUST BRIEFLY WITH REGARD TO THIS QUESTION OF OPENING THE DOOR. I DON’T EVEN KNOW IF THAT’S NECESSARILY THE RIGHT TERM. I THINK THE COURT, COUNSEL, AND EVERYONE WAS AWARE THIS WAS OBVIOUSLY A TACTICAL DECISION TO TRY TO MINIMIZE THE IMPACT BY WAY OF NUMBER OF THESE VARIOUS PHOTOGRAPHS INVOLVING CHILD PORNOGRAPHY.
WE KNOW ALSO HAVING HEARD FURTHER TESTIMONY THE ONE HUNDRED THOUSAND IMAGES IS AN EXAGGERATION AS WELL. THAT INCLUDES THOUSANDS OF IMAGES THAT ARE JUST PART OF SOFTWARE THAT MAKES WORD PROCESSING, WINDOWS, AND ALL THESE OTHER APPLICATIONS WORK. BUT THE BOTTOM LINE IS THE JURY WAS BADLY MISLED AS TO THE PERCENTAGE OR RELATIVE NUMBER OF THESE PHOTOGRAPHS VERSUS THE IMAGES THAT WERE AVAILABLE INSIDE THE COMPUTERS. THEY WERE MISLED. THE COURT NOTED THEY WERE MISLED. I THINK EVERYONE IN THIS COURTROOM KNEW THEY WERE MISLED BECAUSE OF THE ACTUAL EXTENT OF THE PORNOGRAPHIC MATERIAL THAT WAS PRESENT ON THESE VARIOUS COMPUTERS AND LOOSE MEDIA.
AS TO EXHIBIT 146, I BELIEVE IT IS, — AND WE AGREE THE JURY SHOULD HAVE ACCESS TO IT. THE ONLY AREA WHERE WE DISAGREE I THINK WITH THE COURT’S TENTATIVE RULING IS AS TO THE PHOTOGRAPHS. THE PHOTOGRAPHS DO HAVE SIGNIFICANCE BECAUSE OF THE HAIRS THAT WERE SEIZED IN THIS CASE AND ALSO TESTIMONY FROM MS. THEISEN OF THE F. B. I. ABOUT MATCHES MADE, MITOCHONDRIAL D.N.A. MATCHES MADE TO BLOND HAIRS TO ONE OF THE INDIVIDUALS IN THOSE PHOTOGRAPHS. ONE OF THE INDIVIDUALS, AS THE COURT KNOWS, HAS DARK HAIR; THE YOUNGER INDIVIDUAL HAS BLOND HAIR. SO WE BELIEVE THE JURY DOES HAVE A NEED TO SEE THAT RELATIVE HAIR COLOR. AND THE ETHNIC BACKGROUND THAT WAS DESCRIBED AS WELL BY PRIOR TESTIMONY. I THINK ONE PHOTOGRAPH WITH THE TWO OF THEM IS ENOUGH, BUT I THINK THEY NEED TO SEE THAT BECAUSE OF POTENTIAL ARGUMENTS THAT THE DEFENSE MAY MAKE AT A LATER TIME.
IT’S OUR BELIEF THE BINDERS, I THINK 144 AND 145, AS WELL AS THE OTHER PHOTOGRAPHS IN 147 AND 148 SHOULD BE ADMITTED. AS THE COURT KNOWS, WE TOOK NO EFFORTS TO SHOW THEM TO THE JURY, DISPLAY THEM TO THE JURY DURING REDIRECT. BUT TO AGAIN AVOID THIS WHAT WE BELIEVE BAD MISLEADING OF THE JURY BY COUNSEL, THAT THEY HAVE A RIGHT TO SEE THAT INFORMATION IF THEY SEE FIT. THEY MAY VERY WELL AND I SUSPECT NOT WANT TO SEE IT. BUT, NONETHELESS, I THINK THAT SHOULD BE PART OF THE RECORD.
I CAN’T RECALL IF THERE WERE ANY OTHER — MR. FELDMAN BROUGHT UP A NUMBER OF ISSUES IN MANY DIRECTIONS.
THE COURT:   DO YOU CARE TO COMMENT ON THE REQUEST TO SEQUESTER THE JURY?
MR. CLARKE:   NO. OTHER THAN TO INCORPORATE PREVIOUS COMMENTS.
MR. FELDMAN REFERRED TO A MICROSCOPE. HAVING BEEN THROUGH A CASE THAT INVOLVED A MUCH HIGHER MICROSCOPE THAN THIS, WHILE IT SEEMS IMPOSSIBLE, THIS IS, FRANKLY, NOT AS GREAT A MEDIA ATTENTION THAT HAS BEEN PRESENT IN OTHER CASES.
MR. FELDMAN:   HE MEANS ANOTHER CASE, AND HE’S SPECIFICALLY REFERRING TO SIMPSON, YOUR HONOR.
THE COURT:   I UNDERSTAND THAT.
MR. FELDMAN:   YOUR HONOR, I FAILED TO MENTION WITH REGARD TO THE BINDER EXHIBITS COUNSEL HAVE LOOKED AT THE EXHIBITS, AND I THINK WE AGREE AT LEAST WITH REGARD TO — THERE IS A REDUNDANCY IN THE PHOTOGRAPHS, SO HOWEVER YOU RULE, WE’VE AGREED THAT THERE’S REDUNDANCY IN THE PHOTOS. AND I THINK YOU HAD EITHER DIRECTED OR SUGGESTED OR WHATEVER US TO GO THROUGH AND IDENTIFY THEM. WE HAVE SPOTTED CERTAIN OF THE PHOTOS THAT ARE DEFINITELY REDUNDANT BETWEEN EXHIBITS THAT YOU PRETRIAL ADMITTED. AND SO I THINK WE HAVE TO ADDRESS THAT.
MR. CLARKE:   IT’S 148. IT HAS SOME REDUNDANCY. WE CAN CORRECT THAT. THERE JUST HASN’T BEEN TIME.
THE COURT:   ALL RIGHT.
ALL RIGHT. WELL, LET ME GO DOWN THE LIST AS I SEE IT. FIRST OF ALL, I’M NOT IN CHARGE OF THE PRESS GETTING IT RIGHT. IT’S CLEAR THAT THERE WERE GROSS ERRORS IN COVERAGE AS TO THE NUMBER OF QUESTIONED CHILD PORNOGRAPHIC IMAGES. I’M ASSUMING THESE PEOPLE WERE IN THE COURTROOM. IF THEY WERE IN THE COURTROOM, THEIR EDITORS OUGHT TO TAKE THEM OUT AND GIVE THEM A NEW ASSIGNMENT COVERING WEDDINGS OR SOMETHING. BUT THE BOTTOM LINE IS THAT I CAN’T CONTROL WHAT THE MEDIA PUTS OUT. I MEAN IF THEY GET IT WRONG, THEY GET IT WRONG. THEY GOT IT WRONG AS IT RELATES TO THE NUMBER OF IMAGES.
NUMBER TWO, I DON’T FOR A MINUTE WANT TO CONVEY TO ANYONE, MR. FELDMAN, THAT YOU ACTED IN BAD FAITH. I DON’T BELIEVE YOU ACTED IN BAD FAITH AT ALL. AS I EXPRESSED YESTERDAY AND AT THE TIME THAT I MADE THE ORDER I DID, YOUR INTENT WAS CLEAR. IT WAS A STRATEGIC MOVE. THE RECORD DOES NOT DISCLOSE YOUR I DON’T WANT TO CALL IT ACTING, BUT YOUR PHYSICAL WAY OF NOT ONLY ASKING THE QUESTIONS BUT RESPONDING TO THE ANSWERS YOU GOT FROM THE EXPERT. IT WAS VERY CLEAR THAT YOU INTENDED TO CONVEY TO THIS JURY THAT THERE WERE ONLY THIRTEEN, FIFTEEN, WHATEVER IT IS, OUT OF A HUNDRED THOUSAND. THAT I THINK IS UNEQUIVOCAL. THAT IS WHAT GOT THE COURT’S IRE AND BLOOD PRESSURE UP, BECAUSE FOR A PERIOD OF IT WAS EITHER A DAY OR A DAY AND A HALF, WE HAD HEARINGS PARING DOWN THE AMOUNT THAT I WAS GOING TO ALLOW THE PROSECUTION TO USE. AND WE ALL KNEW THAT THAT’S EXACTLY WHAT HAD OCCURRED. SO I DON’T SEE BAD FAITH.
AND, IN ADDITION TO THAT, I THINK THE ARGUMENTS THAT YOU INTEND TO MAKE ARE NOW CLEAR AND UNEQUIVOCAL AND STILL CAN BE MADE. BUT THE JURY NOW KNOWS THAT THERE WERE AT LEAST IN THE RANGE OF EIGHTY TO NINETY OF THESE FIGURES. IT’S STILL A SMALL PERCENTAGE, BUT THEY ARE NOT GOING TO GO AWAY WITHOUT COMPLETE KNOWLEDGE OF THE ENTIRETY OF WHAT WE’RE DEALING WITH IN TERMS OF THE THREE COMPUTERS AT THE WESTERFIELD HOUSE.
AT THIS POINT IN TIME IT REMAINS TO BE SEEN WHAT, IF ANY, IMPACT THE SUPREME COURT RULING, WHEN AND IF IT GETS HERE, AND WHAT, IF ANY, MEDIA COVERAGE THERE IS. I WILL INDICATE THAT IT IS ABSOLUTELY CORRECT THAT IN PRETRIAL MOTIONS IN THIS MATTER, AS MR. FELDMAN HAS ADEQUATELY POINTED OUT, THE COURT MADE FINDINGS RELATIVE TO STATEMENTS, STATEMENTS THAT THE COURT IN ITS BELIEF STRUCK AND WILL NOT AND HAS NOT ALLOWED THE PROSECUTION TO USE. AND THEY HAVE ABIDED BY THAT ORDER.
THERE IS A REAL CONCERN OBVIOUSLY THAT, DEPENDING ON HOW THE SUPREME COURT’S ORDER COMES DOWN, THAT THOSE MATERIALS THAT THE COURT HAS STRUCK WILL SOMEHOW FIND THEIR WAY INTO THE MASS MEDIA. I WOULD ONLY OFFER THAT THAT WOULD BE TRULY, TRULY UNFORTUNATE. WHICH OBVIOUSLY CARRIES NO WEIGHT WITH THE MEDIA.
ALL RIGHT. SO I’M NOT GOING TO SEQUESTER THE JURY AT THIS POINT IN TIME. THEY HAVE BEEN INUNDATED PERIODICALLY WITH DIFFERENT ISSUES. I HAVE NO REASON TO BELIEVE AT THIS POINT IN TIME THAT THEY ARE NOT ABIDING BY THE COURT’S ORDER.
OKAY. THE RECAPITULATION WITH DR. RAPPAPORT I FOUND TO BE QUITE INTERESTING. I HAVE FOR THE LIFE OF ME NO IDEA WHY ALL OF A SUDDEN PSYCHIATRISTS OR PSYCHOLOGISTS SUDDENLY ARE TALKING HEADS ON A LAW CASE. THE MOTHER’S COMMENTS REALLY CAME SECONDHAND. THERE WAS NO ACTUAL INTERVIEW. AND HER CONDUCT AND HER FEELINGS ON THE MATTER OBVIOUSLY ARE OF NO IMPORT. AND, AGAIN, IT WAS ONLY ON TELEVISION. SO I HAVE NO REASON TO BELIEVE THAT THE JURY HAS VIOLATED THE COURT’S ORDERS.
ALL RIGHT. THAT BRINGS US TO THE EXHIBITS THAT DEAL SPECIFICALLY WITH THE AREA OF IMAGES, A.K.A. ALLEGED PORNOGRAPHY. THE BINDERS BEING 144 AND 145, I CAN TELL YOU THAT TENTATIVELY MY INTENT WAS TO KEEP ALL OF THESE MATERIALS UNDER SEAL AS IT RELATES TO THE PUBLIC AND PRESS AND NOT PLACE THEM IN THE JURYROOM WITHOUT SPECIFIC REQUEST. THESE ARE MATERIALS THAT OBVIOUSLY MANY PERSONS MIGHT FIND HIGHLY OBJECTIONABLE. AND I JUST SIMPLY DO NOT INTEND TO PLACE THEM IN THE JURYROOM. IF THE JURY ASKS FOR THEM, HOWEVER, IT APPEARS TO ME THAT IT IS APPROPRIATE THAT THE PANEL HAVE AVAILABLE TO THEM AN ANALYSIS OF EVERYTHING THAT IS ON THE COMPUTER THAT MAY BE RELEVANT. APPARENTLY COUNSEL ARE GOING TO WORK OUT THE NUMBER OF DUPLICATIONS THAT EXIST IN 144 AND 145. SO I’LL ALLOW THAT TO OCCUR.
AS TO 146, I’M GOING TO DEFER RULING ON THAT UNTIL I’VE HEARD THE DEFENSE IN THE CASE TO KNOW EXACTLY WHAT THE DEFENSE IS AND WHERE IT’S GOING AND WHETHER OR NOT MAKING PART OF A PUBLIC RECORD A WOMAN AND HER CHILD.
INCIDENTALLY, I THINK ALL PARTIES ARE AWARE THAT THE FATHER OF THE CHILD IS DEEPLY CONCERNED AND CONTINUALLY HAS CALLED THE COURT AND COUNSEL TO EXPRESS HIS DISPLEASURE, ALTHOUGH AT THIS POINT IN TIME HIS DAUGHTER’S FULL NAME AND FEATURES, MEANING HER PHOTOGRAPH, ARE NOT A MATTER OF THE PUBLIC RECORD, OTHER THAN AS IT EXISTS IN 146. AND I INTEND TO MAINTAIN THAT INTEGRITY. BUT I’LL DEFER RULING ON 146 UNTIL I SEE WHAT THE DEFENSE IS AND WHETHER IT INVOLVES THIS YOUNG GIRL AT ALL.
147 IS A SIMILAR SITUATION. IT WILL BE KEPT UNDER SEAL. IT WILL NOT BE IN THE JURYROOM. IT WILL BE MADE AVAILABLE IN THE EVENT THE JURY WANTS TO LOOK AT IT.
I AM LED TO BELIEVE THAT WITHIN THE CONFINES OF 148 ARE THE ANIMAL PHOTOGRAPHS. AT THIS POINT IN TIME MY INCLINATION IS GOING TO BE TO STRIKE THAT IN THE SENSE THAT IT WILL BE MAINTAINED AS A PART OF THE RECORD BUT WILL NOT, EVEN IF REQUESTED, GO INTO THE JURYROOM. IT WILL REMAIN AS PART OF THE RECORD SIMPLY BECAUSE IT HAS BEEN REFERRED TO. AND, AGAIN, I WANT TO EMPHASIZE THAT THE WAY THE COURT SAW THE CROSS-EXAMINATION OF THE COMPUTER EXPERT AND THE WAY IN WHICH THE COURT INTERPRETED THE MANNER IN WHICH IT WAS GOING TO BE ARGUED, THAT THE ENTIRETY OF THESE IMAGES NEEDS TO BE PART OF THIS RECORD. NOW, WHETHER THE JURY SEES THEM OR NOT WILL DEPEND ON THEIR REQUEST, NUMBER ONE. AND, NUMBER TWO, SINCE THERE IS NO ALLEGATION THAT DEALS IN ANY WAY WITH CONDUCT INVOLVING ANIMALS, EVEN SHOULD THEY SO REQUEST IT, THE COURT’S INCLINATION AT THIS POINT IN TIME IS NOT TO ALLOW IT.
NOW, HAVING SAID THAT, I GUESS THE BOTTOM LINE IS 144 AND 145 WILL BE ADMITTED, SEALED, AND AVAILABLE TO THE JURY AFTER COUNSEL HAVE EXCISED ANY DUPLICATIONS.
146, A PORTION, IF NOT THE ENTIRE EXHIBIT, WILL BE ADMITTED. BUT THE COURT WILL DEFER RULING ON ITS COMPLETE ADMISSION UNTIL THE CONCLUSION OF THE PEOPLE’S CASE.
147 WILL BE ADMITTED AND SEALED AND AVAILABLE IF THE JURY SO ELECTS.
148 WILL BE ADMITTED, SEALED, AND ANY PHOTOGRAPHS DEALING WITH INTERACTION WITH ANIMALS WILL BE DELETED.
ALL RIGHT. NOW, ARE THERE ANY OTHER DEFENSE’ OBJECTIONS TO ANY OTHER OF THE PROFFERED PEOPLE’S EXHIBITS?
MR. FELDMAN:   YOUR HONOR, IN DISCUSSIONS WITH MR. CLARKE, THE DEFENSE WOULD, JUST ON THE ISSUE OF REDUNDANCY NOW AND HOW TO WORK IT OUT.
THE COURT:   ALL RIGHT.
MR. FELDMAN:   MR. CLARKE, HE CAN SPEAK FOR HIMSELF, BUT HE AND I HAVE DISCUSSED THIS MATTER. THE DEFENSE WOULD NOT OPPOSE A RELEASE TO MR. CLARKE FOR IDENTIFICATION AND REDACTION OF ANY DUPLICATES. HE AND I ARE IN COMMUNICATION. THAT DOESN’T PRESENT A PROBLEM FROM OUR STANDPOINT.
THE COURT:   ALL RIGHT. ARE YOU WILLING TO TAKE ON THE TASK, MR. CLARKE?
MR. CLARKE:   OH, I WOULD BE GLAD TO. AND AS I UNDERSTAND IT FROM 148 THERE WOULD BE DELETION OF THE ANIMAL PHOTOS.
THE COURT:   RIGHT. SO THAT IF THERE’S A REQUEST TO SEE 148, THE ONLY THING THAT WOULD BE TAKEN TO THE JURYROOM WOULD BE THE PHOTOGRAPHS THAT DO NOT DEAL WITH THE BESTIALITY.
MR. CLARKE:   AND ANY DUPLICATES.
THE COURT:   AND ANY DUPLICATES.
MR. CLARKE:   FINE.
MR. FELDMAN:   THAT WOULD ALSO INCLUDE I THINK IT’S 147.
THE COURT:   OH, WERE THERE POTENTIAL DUPLICATES IN 147 AS WELL?
MR. FELDMAN:   YES, YOUR HONOR.
MR. CLARKE:   A FEW.
THE COURT:   IT’S OBVIOUSLY SUBJECT TO THE DELETION OF DUPLICATIONS.
OKAY. NO OTHER OBJECTIONS?
MR. FELDMAN:   WELL, NOT AT THIS TIME.
THE COURT:   ALL RIGHT. THEN I WILL NOTE THAT, FOR EXAMPLE, THE AUTOPSY PHOTOBOARD THE DEFENSE RAISED AN OBJECTION. THAT’S PREVIOUSLY BEEN DEALT WITH. BUT FOR PURPOSES OF THIS HEARING, THE PHOTOGRAPHS REGARDING THE AUTOPSY WILL ALL BE NOTED AS OVER THE OBJECTION OF THE DEFENSE PREVIOUSLY RAISED.
EVERYTHING ELSE I JUST WANT TO EMPHASIZE AGAIN THE TRANSCRIPTS THAT ARE PART OF 36, 58, AND 59, WHICH ARE THE A PORTION OF THE EXHIBIT, WILL BE LODGED WITH THE COURT BUT NOT AVAILABLE TO THE JURY.
I HATE TO USE THE WORD, BUT TAPES BEING THE BEST EVIDENCE OF WHAT WAS BEING SAID ON THE TAPES. I DON’T WANT THAT TO GET ME INTO ANY MORE TROUBLE.
OKAY. AND THE REST OF THE PEOPLE’S EXHIBITS WILL BE ADMITTED.
(PLAINTIFF’S EXHIBITS NUMBERS 1, 2, 3, 4, 5, 6, 7, 8,
9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 40, 41, 42,
43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57,
58, 59, 60, 61, 62, 63, 65, 67, 68, 70, 71, 72, 73, 74, 75,
76, 77, 78, 79, 80, 82, 83, 84, 85, 86, 90, 91, 92, 93, 94, 95, 96, 98, 99, 100, 101, 102, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 119, 122, 123, 124,
126, 127, 128, 129, 130, 131, 133, 134, 135, 136, 137, 138,
139, 140, 144, 145, 147, 148, 151 FOR IDENTIFICATION
RECEIVED IN EVIDENCE.)
THE COURT:   ALL RIGHT. IS EVERYBODY GOING TO BE READY TO GO RIGHT AT 9:00 O’CLOCK ON MONDAY MORNING?
MR. DUSEK:   WE SHOULD. THERE ARE A COUPLE MATTERS THAT ARE OF CONCERN TO ME.
THE COURT:   OKAY.
MR. DUSEK:   YESTERDAY AT THE CONCLUSION OF THE JURY VIEW OF THE MOTOR HOME, WE HAD SOME INDIVIDUALS FROM OUR OFFICE PREPARE A VIDEOTAPE OF THE MOTOR HOME AS IT EXISTED DURING THE VIEWING. AND I BROUGHT THAT TO COURT. I PROVIDED THE DEFENSE A COPY OF THAT VIDEOTAPE. I THINK JUST TO COMPLETE THE RECORD, THIS VIDEOTAPE OUGHT TO BE MARKED AND GO ALONG WITH THE CASE FOR ANY FUTURE USE.
THE COURT:   ALL RIGHT. THAT WILL BE 152, PEGGY. IS THAT CORRECT?
THE CLERK: YES.
THE COURT:   ALL RIGHT.
(VIDEOTAPE MARKED TRIAL EXHIBIT NUMBER 152 FOR
IDENTIFICATION.)
MR. DUSEK:   SECONDLY, BECAUSE WE ARE NOW ON THE VERGE OF ENTERING THE DEFENSE’ CASE, WE ARE CONCERNED THAT WE HAVE RECEIVED NO DISCOVERY ON ANY EXPERT WITNESSES THAT MAY BE TESTIFYING. THIS MORNING WE WERE PROVIDED A CURRICULUM VITA ON A MARCUS K. LAWSON OUT OF SPOKANE, WASHINGTON. APPARENTLY HE’S A JURIS DOCTORATE. AND IT LISTS HIS EXPERIENCE, WORK EXPERIENCE. BUT WE HAVE NO REPORT ON WHAT THIS INDIVIDUAL DID OR WILL TESTIFY TO. AND THAT’S OF GREAT CONCERN TO US THAT WE WILL HAVE ABSOLUTELY NO KNOWLEDGE, NO FOREWARNING, AND NO WAY TO ADEQUATELY AND FAIRLY CROSS-EXAMINE THIS INDIVIDUAL WITHOUT KNOWING WHAT HE’S GOING TO BE ASKED AND MORE SPECIFICALLY WHAT HE’S GOING TO SAY, AS WELL AS ANY OTHER FORENSIC EXPERTS THAT MAY BE CALLED IN THIS CASE.
AS THE COURT IS AWARE, WE HAVE HEARD FROM D.N.A. PEOPLE, FINGERPRINT PEOPLE. THERE ARE PROMISES IN OPENING STATEMENTS MADE ABOUT ENTOMOLOGISTS. ANY EXPERTS AT ALL, WE HAVE NOTHING ON.
I SUPPOSE AT THIS POINT I AM SIMPLY ADVISING THE COURT I DO NOT WANT TO ASK FOR A CONTINUANCE IN THE MIDDLE OF THIS CASE TO PROLONG IT. ESPECIALLY WITH THE 4TH OF JULY HOLIDAY COMING UP AND WITH THE COURT’S HOLIDAY ON THE 15TH OF JULY. I DO NOT WANT THIS THING EXTENDING BEYOND THE COURT’S VACATION IF AT ALL POSSIBLE. AND I THINK BY PROVIDING US WITH LITTLE OR NO DISCOVERY, IT’S VIRTUALLY A GUARANTEE.
THE COURT:   MR. FELDMAN.
MR. FELDMAN:   I’M SORRY, YOUR HONOR, BUT THE PROSECUTION HASN’T RESTED. THE PROSECUTION LISTED AN ENTOMOLOGIST ON ITS ANTICIPATED LIST OF WITNESSES. I THINK IT’S A FAIR INFERENCE THAT IF COUNSEL DOESN’T CALL ONE OF HIS WITNESSES WHO’S AN ENTOMOLOGIST WHO HAS RELEVANT EVIDENCE, WE ARE GOING TO CALL THAT WITNESS. BUT WE ARE NOT UNDER ANY OBLIGATION TO DISCLOSE THAT, I DIDN’T THINK, UNTIL HE RESTED, BECAUSE HE’S ON THEIR WITNESS LIST.
WITH REGARD TO MARCUS LAWSON, ONLY AT THE CONCLUSION OF MR. WATKINS’ TESTIMONY AND REALLY ONLY OUT OF AN ABUNDANCE OF CAUTION AT THIS POINT DID WE DISCLOSE MARCUS LAWSON. HE IS A COMPUTER EXPERT. AND HE IS AN INDIVIDUAL WHO — I DON’T HAVE A REPORT FROM HIM. I DON’T UNDERSTAND. IT’S NOT MY BELIEF — IF YOU TELL ME TO DO SO, OF COURSE I WILL FOLLOW THE COURT’S RULING. BUT I HAVEN’T HAD EXPERTS THAT I’VE TALKED TO TO ASSIST ME IN CROSS-EXAMINATION WHO I HAVEN’T DECIDED WHETHER OR NOT TO CALL YET GENERATE REPORTS FOR THE PURPOSE OF PROVIDING DISCOVERY.
WE HAVE PROVIDED OVER 750 PAGES OF DISCOVERY TO THE PROSECUTION. WE HAVE PROVIDED A WITNESS LIST OF POTENTIAL WITNESSES WE MAY CALL TO THE PROSECUTION. IT’S NOT AS THOUGH MR. DUSEK IS IN THE DARK. WE’VE IDENTIFIED POLICE OFFICERS WHO HE DIDN’T CALL OR DID CALL WHO WE INTEND TO CALL IN OUR CASE.
WE WILL BE PREPARED TO PROCEED AT THE DIRECTION OF THE COURT. I DON’T DISAGREE WITH WHAT MR. DUSEK SAYS WITH REGARD — I’VE BEEN THINKING ABOUT THIS. THERE IS JUST — I’M SORRY. IT’S YOUR WIFE. YOUR HONOR HAD SAID THAT YOUR WIFE WAS GOING TO KILL YOU IF YOU DIDN’T TAKE YOUR VACATION. AND I’M NOT — I’M JUST AWARE THAT THE 15TH IS THAT DATE. AND I THINK THERE’S A REASONABLE POSSIBILITY WE COULD CONCLUDE THE EVIDENCE PRIOR TO THAT DATE DEPENDING ON REBUTTAL. AND THAT’S AN ISSUE WHICH WE DO NEED TO RAISE WITH THE COURT.
HOPEFULLY OUR CASE WON’T TAKE TOO LONG. I ANTICIPATE — I HAVE GIVEN THE WITNESS LIST TO THE PROSECUTOR. I WILL PROVIDE AS WE MAKE DECISIONS, AND WE WILL BE MAKING DECISIONS OVER THE NEXT FORTY-EIGHT HOURS WHO WE’RE GOING TO CALL. AND THE COURT SHOULD ALSO BE AWARE THAT AS RECENTLY AS I THINK YESTERDAY OR THE DAY BEFORE, THE 25TH, WE HAD A WITNESS WALKING INTO COURT WITH A REPORT THAT HE PREPARED ON THE 25TH. WELL, I EXPECT THAT I’LL HAVE — I’LL BE IN A POSITION TO GIVE MORE THAN THAT KIND OF NOTICE TO THE PROSECUTION IF THE WITNESSES PREPARE A REPORT AND IF WE DECIDE TO CALL THEM. THAT’S JUST HOW IT IS.
THE COURT:   WELL, MR. FELDMAN, THE DIFFICULTY I HAVE HERE IS THAT IF — LET ME PUT IT IN TWO PERSPECTIVES. ONE IS IF ALL YOU INTEND TO CALL IN TERMS OF EXPERTS ARE EXPERTS THAT ARE ALREADY ON THE PROSECUTION’S LIST AND THEY’RE AWARE OF, THAT’S ONE THING. IF, HOWEVER, YOU INTEND TO CALL EXPERTS THAT ARE NOT ON THAT LIST AND HAVE NOT BEEN DISCLOSED, THEN IT’S A LITTLE LATE AT THIS POINT IN TIME TO SAY I HAVEN’T REALLY DECIDED WHETHER I’M GOING TO USE THEM OR NOT.
IT WOULD APPEAR TO ME THAT SINCE WE’RE ON THE THRESHOLD, DEPENDING ON HOW THE COURT RULES ON MONDAY, THE PEOPLE ARE EITHER GOING TO WRAP UP TUESDAY MORNING LATE IN THE MORNING, IF THE WITNESS IS ALLOWED TO TESTIFY, OR FIRST THING TUESDAY MORNING IF THE WITNESS IS NOT ALLOWED TO TESTIFY. WHICH MEANS THAT THE DEFENSE IS BEGINNING ITS CASE.
NOW, IT’S TRUE WE ONLY HAVE TWO DAYS NEXT WEEK. BUT AT THIS POINT IN TIME I HAVE TO BELIEVE THAT YOU KNOW WHERE YOU’RE HEADED AND WHAT YOU’RE GOING TO DO. SO THE QUESTION I HAVE FOR YOU IS APART FROM THIS ATTORNEY APPARENTLY EXPERT IN COMPUTERS, DO YOU HAVE ANY OTHER EXPERTS THAT ARE NOT DISCLOSED TO THE PEOPLE AT THIS POINT IN TIME?
MR. FELDMAN:   MY REQUEST TO THE COURT WOULD BE TO PERMIT THE DEFENSE TO ADDRESS THE COURT ON THE RECORD IN CAMERA BECAUSE I CAN ARTICULATE WHERE WE’RE AT WITH REGARD TO MAKING THAT DECISION SO THAT YOUR HONOR IS IN A POSITION TO KNOW I’M NOT — WE’RE NOT PLAYING GAMES ON THIS. THERE REALLY IS, BECAUSE OF THE SPEED AT WHICH THE CASE HAS MOVED, BECAUSE OF THE ISSUES OF RELEASE OF EVIDENCE WHICH JUST GOT TO US AS RECENTLY AS LAST WEEK IN ONE INSTANCE ANYWAY, WE’RE SCRAMBLING. I REALLY CANNOT TELL YOU RIGHT NOW WHO I INTEND TO CALL. I CAN TELL YOU WHO MANY OF THE POLICE OFFICERS ARE. THEY ARE DISCLOSED. WE’VE DISCLOSED TO COUNSEL AS WE HAVE SINCE THE PRELIMINARY HEARING MANY OF THE CIVILIANS. WE’RE IN THE PROCESS OF MAKING THE DECISIONS.
WITH THE SPECIFIC ISSUE OF AN EXPERT, I WANT AN IN CAMERA, IF YOU WILL PERMIT IT, AN IN CAMERA HEARING SO I CAN AT LEAST ADVISE THE COURT WHAT’S GOING ON WITH REGARD TO THE DECISIONMAKING PROCESS SO YOU SEE THAT WE’RE NOT PLAYING GAMES. EVERYTHING IS PREDICATED UPON OTHER THINGS.
THE COURT:   OKAY. WELL, MR. DUSEK.
MR. DUSEK:   I DON’T CARE ABOUT THE DECISIONMAKING PROCESS. WE ARE ON THE EVE OF TRIAL. HE’S GIVEN US A NAME THAT HAS NOT SURFACED BEFORE, THIS MARCUS LAWSON. HE HEARD WATKINS TESTIFY AT THE PRELIMINARY HEARING. HE KNEW WHAT HE WAS GOING TO SAY. HE’S HAD ALL THE REPORTS; HE KNEW WHAT HE WAS GOING TO SAY. AND WHAT HE SAID HERE IN COURT IS BASICALLY A REPEAT OF THE PRELIMINARY HEARING.
NOW WE GET A C.V. WITHOUT ANY REPORTS. HE’S HIDING BEHIND THE NO REPORT RULE THAT DOES NOT EXIST. THAT’S THE CONCERN. AND ALSO THAT THERE WILL BE OTHER EXPERTS THAT WE DON’T KNOW ABOUT.
MR. FELDMAN:   JUDGE, I DIDN’T KNOW UNTIL YESTERDAY THAT WATKINS WASN’T GOING TO GIVE ME THE INFORMATION ON THE SCREEN CAPTURES THAT I WAS ANTICIPATING. THAT’S THE TRUTH. THAT WAS NOT RAISED. THAT’S ONLY INFORMATION THAT I HAVE ACQUIRED IN PREPARATION FOR CROSS-EXAMINATION OF MR. WATKINS.
GIVEN THAT WATKINS COULDN’T LAY THE FOUNDATION, NOW WE HAVE TO LAY THE FOUNDATION OURSELVES. SO WE DISCLOSE THE EXPERT. OTHERWISE I WAS HOPING TO GET — I MEAN THE COURT KNOWS, AS A GENERAL PRACTICE, IF THE DEFENSE CAN GET THE INFORMATION FROM THE PROSECUTION EXPERTS, THAT’S PREFERABLE. AT LEAST THAT’S, FRANKLY, HOW I TRY CASES. IF I CAN GET THE INFORMATION FROM THEIR EXPERTS, WHY CALL — WHY — THERE IS NO REASON SINCE THE PROSECUTION HAS THE BURDEN OF PROOF FOR US TO HAVE TO SHOW ANYTHING.
THE COURT:   WELL, I AM ASSUMING THAT, AND CORRECT ME IF I’M WRONG, MR. FELDMAN, THAT IF THE PEOPLE ELECT TO CONTACT THIS INDIVIDUAL, HE’S GOING TO BE COOPERATIVE WITH THEM.
MR. FELDMAN:   WELL, I DON’T THINK HE KNOWS THAT WE’VE DONE THIS. I WILL CALL HIM UP. I DON’T KNOW ABOUT COOPERATIVE. BECAUSE I DON’T KNOW, I JUST DON’T KNOW.
MR. DUSEK:   I DO.
MR. FELDMAN:   I DON’T KNOW WHAT THAT MEANS.
THE COURT:   WELL, ANSWER THEIR QUESTIONS.
MR. FELDMAN:   I DON’T THINK THAT’S A PARTICULAR PROBLEM. BUT I NEED TO TALK TO HIM, AND I WOULD CERTAINLY PARTICIPATE IN ANY CONFERENCE CALL.
MR. DUSEK:   I DON’T NEED —
THE COURT:   WELL, I THINK YOU BETTER CALL HIM BECAUSE THAT’S GOING TO BE THE SHORT CIRCUIT. I MEAN IF WHAT WE’RE TALKING ABOUT ARE JUST THE SCREEN CAPTURES AND THAT’S THE ONLY THING HE IS GOING TO TESTIFY ABOUT, AND HIS ABILITY APPARENTLY UNLIKE WATKINS TO DETERMINE WHAT COMPUTER IT COMES FROM, THEN THEY SHOULD BE ABLE TO ASK HIM THOSE QUESTIONS AND GET AN ANSWER.
MR. FELDMAN:   AND THE DATES AS CLOSE AS WE CAN GET IT OF LAST ACCESS. I MEAN MR. WATKINS PRESENTED THE INFORMATION —
MR. CLARKE:   THAT’S WHY WE NEED DISCOVERY, YOUR HONOR, BECAUSE AS THE COURT CAN TELL THAT WITNESS WOULD NOT, WITH ALL DUE RESPECT TO COUNSEL, WOULD NOT GET ON THE WITNESS STAND AND TALK ABOUT ONE THING. THAT’S JUST NOT THE WAY IT WORKS. SO THAT’S WHY WE FEEL STRONGLY ABOUT TRYING TO HIDE BEHIND NO REPORT AND THEN SUBVERT 1054 AND THE DISCOVERY REQUIREMENTS THAT IT HAS.
THE COURT:   YOU SEE, THAT, OF COURSE, IS THE PROBLEM, MR. FELDMAN, IS THAT YOU ARE NOW ON THE OPPOSITE SIDE OF THE 1054 DILEMMA, BECAUSE WHEN YOU WERE ON THE DEFENSE SIDE AND THE PEOPLE WERE READY TO GO, YOU WERE CONTINUALLY RAISING 1054 AND SO FORTH. AND NOW, OF COURSE, THE SHOE IS ON THE OTHER FOOT.
FIRST OF ALL, I’M GOING TO ORDER THAT — WELL, I CAN’T ORDER BECAUSE I CAN’T ORDER THIS GUY TO COOPERATE. BUT ON THIS PARTICULAR INDIVIDUAL I’M GOING TO STRONGLY SUGGEST HE SHOULD FULLY COOPERATE ON WHY HE’S BEEN CONTACTED AND WHAT HE MIGHT TESTIFY ABOUT. I WILL LISTEN TO YOU AS TO ANY OTHER EXPERTS THAT MAY BE OUT THERE THAT ARE NOT ALREADY DISCLOSED.
THIS ENTOMOLOGIST, I’M ASSUMING YOU’RE AWARE OF WHO THIS PERSON IS.
MR. DUSEK:   WE ARE AWARE OF THE LOCAL PERSON. WE ARE ALSO AWARE THAT SOMEONE ELSE HAS BEEN CONSULTED.
THE COURT:   ALL RIGHT.
WELL, WE WILL HAVE TO DEAL WITH THAT APPARENTLY IN CAMERA.
MR. FELDMAN:   YOUR HONOR, BUT WHILE WE’RE STILL HERE, IF I MAY, THERE’S AN ISSUE OF REBUTTAL, TOO. THE PROSECUTION HAS GIVEN US MANY OTHER WITNESSES, AND WE WANT TO MAKE SURE THAT THERE’S NO SANDBAGGING. THEY KNOW WE’RE CALLING FAULKNER OR WE’RE LIKELY TO CALL FAULKNER WHO IS THE FORENSIC ENTOMOLOGIST WHO’S WRITTEN A REPORT THAT SPECIFICALLY SAYS DANIELLE VAN DAM COULD NOT HAVE BEEN IN THE LOCATION SHE WAS ANY SOONER THAN THE 16TH. THAT’S WHAT THE REPORT —
MR. CLARKE:   EXCUSE ME, YOUR HONOR. THAT’S ABSOLUTELY INCORRECT.
MR. DUSEK:   WHAT HE SAYS IS UNIMPORTANT AT THIS POINT UNLESS WE’RE TRYING TO INFLUENCE THE JURORS OUT THERE WATCHING THIS ON T.V.
THE COURT:   THEY BETTER NOT BE WATCHING IT ON T.V.
MR. FELDMAN:   I WOULD HOPE NOT.
BUT I’M GETTING PRESSED FOR OFFERS. I’M JUST TRYING TO ARTICULATE THIS POSITION. THEY KNOW WHAT FAULKNER HAS TO SAY, WHATEVER, HOWEVER THEY WANT TO SPIN IT, THEY KNOW WHAT THE REPORT SAYS. THAT DOES NOT IN OUR VIEW ENTITLE THEM TO SANDBAG THE JURY AND THE COURT TO SPRING A BUNCH OF DEHESA WITNESSES, AND THERE ARE NUMEROUS WITNESSES THAT HAVE BEEN COMING TO US IN THE DISCOVERY, NUMEROUS, MAYBE TEN, MAYBE MORE THAN THAT, I CAN’T SPECIFICALLY RECALL THE NUMBERS, IN VERY LATE REPORTS, WITHIN THE LAST COUPLE, THREE WEEKS. WE KEEP GETTING REPORTS BECAUSE THE INVESTIGATION, ACCORDING TO THE PROSECUTION, IS ONGOING. BUT WE DON’T WANT TO BE IN A POSITION WHERE WE ARE GOING TO GET AMBUSHED.
AND IT’S MY MOTION, THE DEFENSE MOVES THE COURT TO PRECLUDE SANDBAGGING BECAUSE WE ALL KNOW THAT’S NOT APPROPRIATE.
THE COURT KNOWS AND COUNSEL KNOWS BASED UPON WHAT MR. FAULKNER HAS WRITTEN THAT THERE’S A REASONABLE LIKELIHOOD THE DEFENSE IS GOING TO CALL HIM, SO THEY ARE ON NOTICE TO THAT. AND WE JUST DON’T WANT TO BE IN A POSITION WHERE THEY CAN UNFAIRLY TAKE ADVANTAGE OF ANY PROCEDURAL RULES.
THE COURT:   SANDBAGGING, AMBUSH ARE NOT LEGAL TERMS. THEY’RE NOT LEGAL THEORIES. BUT IT JUST SOUNDED TO ME, MR. FELDMAN, LIKE YOU’RE CALLING THE KETTLE BLACK, AND THE PROSECUTION IS FEARFUL OF SANDBAGGING, BEING BLINDSIDED.
NOW, WE HAVE RUSHED THIS CASE ALONG. EVERYONE HAS BEEN UNDER THE STRAIN OF THAT. BUT BEFORE WE TALK REBUTTAL, I’M CONCERNED ABOUT SANDBAGGING AND AMBUSHING BY THE DEFENSE. I’LL WORRY ABOUT THE PROSECUTION DOING SANDBAGGING AND AMBUSHING IN REBUTTAL WHEN AND IF WE GET TO THAT POINT IN TIME.
NOW, I’M GOING TO HEAR YOU IN CAMERA AS TO WHY THERE ARE NO REPORTS AND WHAT, IF ANY, EXPERTS YOU’VE GOT THAT FOR SOME REASON OR ANOTHER HAVE NOT DISCLOSED. I’LL LISTEN TO THAT. BUT I’M LETTING YOU KNOW THAT I EXPECT YOU TO BE READY TO START TUESDAY MORNING AND MOVE EXPEDITIOUSLY. I FULLY EXPECT THAT ANY EXPERTS THAT YOU’RE GOING TO CALL ARE GOING TO BE FULLY DISCLOSED.
MR. FELDMAN:   OF COURSE.
AND, YOUR HONOR, AMONG THE CONSIDERATIONS IS THAT WE WOULD SUBMIT TO THE COURT SO THAT THERE’S NO ISSUE OF 1054 VIOLATIONS, I MEAN I’VE CONSIDERED THIS, SINCE WE DIDN’T KNOW WHEN THEY WERE GOING TO FINISH. I CAN SUBMIT TO THE COURT PROBABLY BY TOMORROW NOON AN ANTICIPATED LIST IN ADDITION, IF IT GETS AUGMENTED AS WE EVALUATE IT TODAY, IN ADDITION TO THAT WHICH WE’VE ALREADY DISCLOSED. I’M HAPPY TO DO THAT SO THAT YOUR HONOR CAN SEE THAT WE’RE ACTING IN GOOD FAITH AND THAT UNDER PEOPLE VERSUS SAM THERE REALLY IS A RULE OF SANDBAGGING. WE’RE HAPPY TO DO THAT. WHATEVER.
I’M AWARE OF THE COURT’S CONCERN. WE HAVE BEEN AWARE WITH IT. WE STILL DON’T KNOW, FRANKLY, WHETHER OR NOT THERE IS ONLY ONE WITNESS LEFT. WE HAVEN’T BEEN SPECIFICALLY TOLD THAT. WE HAVE BEEN TOLD THEY’RE STILL RE-EVALUATING INTERNALLY. WHETHER THEY INTEND TO CALL ANY MORE WITNESSES, WE DON’T KNOW. WE’RE ANTICIPATING BASED ON YOUR ORDERS TO BE READY TO GO ON TUESDAY AT SOME POINT.
THE COURT:   ALL RIGHT.
WELL, ARE YOU GOING TO BE IN A POSTURE WHERE YOU CAN MEET AND CONFER AND ESTABLISH EXACTLY HOW MUCH YOU’RE GOING TO NEED OF TUESDAY?
MR. DUSEK:   AS WE HAVE EACH AND EVERY DAY OF THIS TRIAL. THEY HAVE HAD NOTICE AS TO WHO’S COMING THE NEXT DAY. WE WILL CONTINUE TO DO THAT.
MR. FELDMAN:   DAY BY DAY. AND WE WILL BE HAPPY TO COMPLY BY 4:00 O’CLOCK OR 4:30, WHENEVER COURT’S OVER, WE WILL SHOW THEM THE SAME COURTESY, YOUR HONOR.
THE COURT:   ALL RIGHT.
OKAY. WELL, LET’S DO THIS, THEN: I’LL TAKE ANY COMMENTS THAT YOU HAVE IN CAMERA. THE EASIEST WAY TO DO THIS IS GET EVERYBODY ELSE OUT OF HERE. SO THE PEOPLE, PUBLIC, PRESS WILL BE EXCLUDED FROM THE COURTROOM. WE WILL BE IN RECESS FOR ALL THOSE FOLKS UNTIL 9:00 O’CLOCK MONDAY MORNING.
MR. BOYCE: YOUR HONOR, THERE IS ONE MATTER THAT’S BEEN BROUGHT TO MY ATTENTION. THE PETITION FOR REVIEW WAS DENIED BY THE SUPREME COURT. THAT MEANS THAT THE COURT OF APPEALS’ ORDER TAKES EFFECT WHICH MEANS THAT THE COURT HAS TO REVIEW THE REDACTIONS TO MAKE SURE THAT THEY COMPORT WITH THE COURT OF APPEAL ORDER. AND WE WOULD REQUEST THIS COURT TO DO THAT, ALTHOUGH ORIGINALLY IT WAS WITH JUDGE BASHANT BEFORE. BUT THIS COURT IS MORE FAMILIAR WITH THE CASE; THIS COURT HAS HANDLED EVERY ASPECT OF THE CASE AT THIS POINT. AND WE FEEL THAT ANY REDACTIONS THAT ARE MADE SHOULD BE REVIEWED BY THIS COURT BEFORE THE DOCUMENTS ARE RELEASED TO THE PRESS AND ALSO THAT WE HAVE AN OPPORTUNITY TO REVIEW THE REDACTIONS TO MAKE SURE THEY CONFORM WITH THE FOURTH D. C. A. ORDER.
THE COURT:   AT THIS POINT IN TIME I WILL ORDER NOTHING BE RELEASED UNTIL I HAVE HAD A CHANCE TO LOOK AT IT. THAT WILL AT LEAST BUY US SOME TIME IN ORDER TO GET THE REDACTIONS DONE.
ALL RIGHT.
(RECESS, 10:50 O’CLOCK, A.M., TO 9:00 O’CLOCK, A.M.,
MONDAY, JULY 1, 2002.)
–O0O–
(PAGES 6585 THROUGH 6594 HAVE BEEN ORDERED SEALED BY THE COURT AND APPEAR IN SEPARATE SEALED VOLUME NUMBER 25-A.
UNSEALED PROCEEDINGS CONTINUE ON PAGE . NOTHING IS OMITTED.)
–O0O–

55 - Day 14- June 26th 2002 - Transcript trial David Westerfield