03095 – September 3rd 2002 – penalty phase – David Westerfield trial – afternoon 2

SAN DIEGO, CALIFORNIA, TUESDAY, SEPTEMBER 3, 2002, (afternoon 2)
Penalty phase September 3rd 2002 – 5


Misc. No testimony


THE COURT: ALL RIGHT. IN THE WESTERFIELD MATTER THE RECORD WILL ONCE AGAIN REFLECT THE FACT THAT MR. WESTERFIELD, COUNSEL ARE PRESENT. PROCEEDINGS ARE OPEN TO THE MEDIA AND PUBLIC AS THEY DEEM APPROPRIATE.
IN MY PACKAGE, PROFFERED FROM THE PEOPLE ARE SOME CONCLUDING INSTRUCTIONS. 17.30, 17.31, 17.40, 17.41, 17.45, 17.47. AND THEN THE 8.88 THAT WE’VE ALREADY DISCUSSED THAT WILL HAVE TO BE CORRECTED TO SHOW THE ACTUAL INSTRUCTION, NOT THE MODIFIED VERSION.
NOW, AS RELATES OUR FINAL DISCUSSION, I JUST WANT TO MAKE SURE THAT WE’RE ALL ON THE SAME WAVE LENGTH. THE COURT INTENDS TO GRANT THE REQUEST OF THE DEFENSE ON 8.85 TO ADD A SIMPLE, ONE SENTENCE AS IT RELATES TO LINGERING DOUBT IN PARAGRAPH K. SO I NEED FROM THE DEFENSE A CORRECTED VERSION OF 8.85.
MR. DUSEK: I DIDN’T THINK WE DID ANYTHING ON LINGERING DOUBT. WE DID IT ON REMORSE.
MS. JONES: NO, WE DID LINGERING DOUBT.
THE COURT: NO.
MR. DUSEK: WERE WE HERE?
MR. FELDMAN: JUDGE, WE REMEMBER.
THE COURT: YES. I THOUGHT I MADE IT PRETTY CLEAR. IN FACT, I QUOTED THE — MAYBE I MISSPOKE.
MR. DUSEK: THAT WAS REGARDING REMORSE. THE LINGERING DOUBT WAS DENIED. THEY WERE SUPPOSED TO COME UP WITH SOME POSSIBILITY.
THE COURT: AH.
MR. DUSEK: AH.
THE COURT: I LEFT THE DOOR OPEN ON LINGERING DOUBT. YOU’RE CORRECT. LINGERING DOUBT. THAT’S THE REASON THERE’S A QUESTION MARK RIGHT THERE.
MR. DUSEK: NICE TRY.
MR. FELDMAN: I REMEMBER.
THE COURT: AND I INDICATED I WOULD CONSIDER —
MR. BOYCE: A NON-ARGUMENTATIVE —
THE COURT: — A NON-ARGUMENTATIVE STATEMENT AS A FACTOR K MATTER.
NOW, AS TO — TRYING TO FIND THE EXACT QUOTE I USED. I SEE I’VE BEEN SPENDING TOO MUCH TIME WITH THIS BRIEF. BUT I WILL FIND IT. AND THEN I’LL CLARIFY.
MISS JONES, AS TO REMORSE, IF YOU COULD KICK IN WHERE THAT WAS LOCATED, BECAUSE IT WAS THE LAST SENTENCE IN I THINK YOUR OPENING PARAGRAPH.
MS. JONES: YOUR HONOR, PAGE 16, ON LINES 4 AND 5.
THE COURT: ALL RIGHT. LET ME LOOK.
YES. THERE WE GO. AND WHAT I AGREED TO DO WAS HAVE YOU DO A ONE-SENTENCE JURY INSTRUCTION THAT COVERED THAT IN ANTICIPATION OF THE PEOPLE’S ARGUMENT RELATIVE TO HOW REMORSE FITS INTO THE CASE. SO WE DID DISCUSS REMORSE. OKAY? AND THAT’S HOW IT’S GOING TO FIT IN. SO I NEED THE DEFENSE TO PROFFER A VERSION OF 8.85 THAT INCLUDES A LINGERING DOUBT, BECAUSE I SAID I WOULD GIVE YOU FURTHER CONSIDERATION ON THAT. I NEED A ONE-SENTENCE INSTRUCTION THAT DEALS WITH THE ABSENCE OF REMORSE AS NOT A STATUTORY AGGRAVATING FACTOR.
AND THEN AS IT RELATES TO 8.87, THE COURT NEEDS TO KNOW WHEN WE HAVE OUR FINAL INSTRUCTIONS WHETHER I’M GOING TO BE GIVING 8.87 STANDING ALONE, JUST NAMING THE TWO CRIMES, NOT GIVING THE DEFINING TERMS, AND SIMPLY GIVING 8.87 WITH THE REASONABLE DOUBT.
MR. FELDMAN: WE MISUNDERSTOOD I THINK THAT DISCUSSION, THEN, BECAUSE WE UNDERSTOOD THAT AT LEAST WITH REGARD TO 8.87 THERE WOULD BE NO MENTION OF THE 288. SO MAYBE — AT LEAST AT THE DEFENSE SIDE OF THE TABLE, MAYBE WE JUST DIDN’T UNDERSTAND WHAT THE COURT WAS THINKING OR MAYBE — I MEAN IT’S —
THE COURT: 8.87 AND THE USE NOTE INDICATE THAT IF THE PEOPLE PROFFER CONDUCT THAT INDICATES VIOLENCE OR PROPENSITY FOR VIOLENCE, YOU HAVE MADE YOUR ARGUMENT THAT 288 DOESN’T COMPLY. I HAVE MADE A RULING THAT IT DOES. THOSE POINTS MUST BE LISTED OR THOSE ALLEGED CRIMES MUST BE LISTED. NOW, THAT’S THE BATTERY, AND THAT IS THE LEWD ACT ON A CHILD.
NOW, IT APPEARS TO THE COURT, AND I MAY BE WRONG, BUT IT APPEARS TO THE COURT THAT I AM UNDER AN OBLIGATION BECAUSE OF THE PEOPLE’S THEORY TO GIVE BOTH THOSE CRIMES. IT’S MY UNDERSTANDING THAT 8.87 WILL BE GIVEN NAMING THE TWO CRIMES, THE OPTION THAT THE DEFENSE HAS AS TO WHETHER OR NOT TO DELINEATE THE ELEMENTS OF THOSE CRIMES, WHICH ARE THE DEFINING INSTRUCTIONS 16.140, .141, AND 10.41.
SO —
MR. FELDMAN: YOUR HONOR, I UNDERSTAND WHAT YOU’RE SAYING. I WOULD URGE THE COURT TO RELOOK AT THE USE NOTE OF 8.87 WHICH DISCUSSES THAT YOU HAVE NO SUA SPONTE DUTY TO GIVE AN INSTRUCTION DEFINING THE ELEMENTS OF THE OTHER CRIMES. YOU SHOULD DO SO ONLY WHEN REQUESTED BY THE DEFENSE OR THE PEOPLE OR IF YOU DETERMINE ON YOUR OWN MOTION THAT IT’S APPROPRIATE OR VITAL TO PROPER CONSIDERATION OF THE EVIDENCE; I.E., THERE IS NO PROHIBITION TO DOING SO. CITING PEOPLE V. DAVENPORT.
OUR POSITION IS IT’S NOT VITAL. WE DON’T WANT IT. WE THINK IT’S ADEQUATELY COVERED BY THE CALJIC YOU’RE GOING TO GIVE WHICH DISCUSSES OTHER EVIDENCE OF ACTS OF VIOLENCE. I THINK THAT’S (C) OR (B).
THE COURT: THE USE NOTE THAT YOU HAVE JUST QUOTED TO ME TALKS ABOUT THE ELEMENT OF THE OFFENSE. IT DOESN’T TALK ABOUT WHAT THE NAMING OF THE OFFENSES WOULD BE IN THAT JURY INSTRUCTION. SO I’LL GIVE YOU THE EVENING TO THINK ABOUT HOW YOU WANT TO HANDLE IT, BUT BASICALLY THIS ENTIRE SUBJECT IS UNDER SUBMISSION UNTIL WE HAVE OUR FINAL DISCUSSION.
MR. FELDMAN: THANK YOU.
THE COURT: AND THEN BEFORE I GIVE 2.90, MR. CLARKE, I’M GOING TO NEED 2.60 AND 2.61.
MR. CLARKE: YES.
THE COURT: ALL RIGHT. THAT CONCLUDES THE INITIAL DISCUSSION OF JURY INSTRUCTIONS. I’LL SAVE THE FINAL DISCUSSION FOR THAT POINT IN TIME WHEN ALL THE EVIDENCE IS IN.
NOW LET’S TALK ABOUT THAT. DEFENSE INTENDS TO REST TOMORROW WITH THE SON AND DAUGHTER. IS THAT BASICALLY CORRECT?
MR. FELDMAN: BASICALLY. BUT WE’VE JUST BEEN ADVISED THAT THE PROSECUTION MAY SEEK TO INTRODUCE OR TENDER REBUTTAL EVIDENCE THAT RELATES TO THE ADMISSIBILITY OF EVIDENCE. THE DEFENSE WISHES TO ARGUE THAT ISSUE OUT OF THE PRESENCE OF THE MEDIA.
THE COURT: ALL RIGHT. LET’S COVER WHAT WE CAN, THEN, BEFORE WE DO THAT.
MS. JONES: YOUR HONOR, I HAVE A HOUSEKEEPING MATTER.
THE COURT: OKAY.
MS. JONES: I DON’T KNOW THE COURT WAS ANTICIPATING THIS. I TALKED WITH MR. CLARKE ABOUT THIS BEFORE. GOING WAY BACK TO THE ISSUE OF THE HUMAN MITOCHONDRIAL D.N.A., THEY SUBMITTED PLEADINGS FROM THEIR OFFICE AND A TRANSCRIPT FOR HEARING IN THE LAMONT JOHNSON CASE. AND I ASKED THE OPPORTUNITY TO SUBMIT ADDITIONAL MATERIALS. AND I TOLD MR. CLARKE I HAD A COPY OF THE DEFENSE’ PLEADINGS IN THAT CASE. HE SAID HE DIDN’T NEED AN ADDITIONAL COPY. I HAVE ONE FOR THE COURT.
THE COURT: ALL RIGHT.
MS. JONES: DURING THAT HEARING THEY ADMITTED SOMEWHERE IN THE REALM OF BETWEEN FIFTEEN AND EIGHTEEN ARTICLES, SCHOLARLY ARTICLES, WHICH I THINK ARE PROBABLY REALLY VOLUMINOUS REGARDING THE RELIABILITY OF HUMAN MITOCHONDRIAL D.N.A. AND I DIDN’T KNOW IF THE COURT WANTED THOSE FOR THE RECORD OR IF WE NEED TO INCLUDE COPIES OF ALL OF THOSE ARTICLES FOR THE RECORD SINCE THE COURT’S RELYING ON THE RECORD IN THAT CASE TO ISSUE ITS RULING IN OUR CASE. IF SO, I THINK WE NEED SOME SORT OF SPECIAL ORDER FROM THE COURT TO GET COPIES FROM THE EXHIBIT ROOM, BECAUSE THEY HAVE WEIRD RULES ABOUT HOW MANY COPIES I’M ALLOWED TO GET.
THE COURT: ALL RIGHT.
WHAT’S THE PREFERENCE, MR. CLARKE?
MR. CLARKE: IF I HAD A SET I COULD PUT MY HANDS ON, I WOULD LOOK FOR IT. BUT OTHER BUSINESS PRESSES SO TO SPEAK.
THE COURT: SO TO SPEAK.
I THINK IT’S APPROPRIATE THAT THE RECORD BE FULL AND COMPLETE ON THIS CASE WITHOUT, FOR EXAMPLE, A STIPULATION TO EXHIBITS X, Y, AND Z IN ANOTHER MATTER. SO IF YOU COULD PREPARE AN ORDER BASED ON THE ACTUAL EXHIBIT NUMBERS OR LETTERS, WHATEVER THEY MAY BE, I’LL SIGN IT SO THAT WE CAN GET THEM RELEASED TO YOU FOR COPYING AND FOR PURPOSES OF RETURNING TO THE EXHIBIT ROOM.
AT LAST REPORT THEY ALLOWED LAWYERS IN GENERAL, DIDN’T THEY? IT DIDN’T HAVE TO BE JUST THE PROSECUTION.
THE CLERK: I BELIEVE SO, YES.
THE COURT: OKAY.
SO YOU PREPARE THE ORDER, AND WE’LL LET YOU GO AT IT.
MS. JONES: THANK YOU, YOUR HONOR.
THE OTHER THING I JUST WANTED TO INFORM THE COURT IS I BELIEVE SOME TIME OVER THE WEEKEND, I WAS EXPECTING IT ON FRIDAY, I BELIEVE OVER THE WEEKEND PROFESSOR SHATZ’ DECLARATION SHOWED UP UNSIGNED. SO I’M GOING TO HAVE TO CALL HIM. I JUST GOT INTO MY OFFICE SHORTLY BEFORE WE CAME TO COURT. I CAN GIVE A COPY TO COUNSEL SO THEY CAN TRANSMIT IT TO MR. ARMSTRONG. I DON’T THINK IT’S GOING TO CHANGE THE ARGUMENTS MUCH, BUT I WANTED TO GIVE THE COURT AN UPDATE AND SAY HOPEFULLY WE’LL GET A SIGNED PAGE, EVEN A FAXED SIGNED PAGE, WITHIN A DAY OR SO.
THE COURT: THAT WILL BE FINE. OBVIOUSLY THE PEOPLE CAN REVIEW IT TO DETERMINE IF THEY NEED TO RESPOND TO IT FOR ANY REASON.
MS. JONES: THANK YOU.
THE COURT: ALL RIGHT.
MEMBERS OF THE MEDIA, ALL FOUR OF YOU, YES, FOUR OF YOU, AT THIS POINT IN TIME WE’RE GOING TO BE DISCUSSING EVIDENTIARY MATTERS THAT MAY OR MAY NOT SEE THE LIGHT OF DAY IN THIS MATTER, SO I AM GOING TO CLOSE THIS MATTER, THIS HEARING, TO MEMBERS OF THE MEDIA AND PUBLIC. I’LL NOTE AN OBJECTION BY THE MEDIA’S REPRESENTATIVE. AND WE’RE GOING TO AT THIS TIME ASK THAT YOU KINDLY LEAVE.
THANK YOU.
[MEDIA REPRESENTATIVES LEFT THE COURTROOM AT THIS POINT.]

03093 - September 3rd 2002 - penalty phase - David Westerfield trial - morning 3
03094 - September 3rd 2002 - penalty phase - David Westerfield trial - afternoon 1