APPEARANCES: DEFENDANT CONRAD ROBERT MURRAY, NOT PRESENT, REPRESENTED BY EDWARD M. CHERNOFF, J. MICHAEL FLANAGAN, AND NAREG GOURJIAN,.;
PEOPLE REPRESENTED BY DAVID WALGREN AND DEBORAH BRAZIL, DEPUTIES DISTRICT ATTORNEY
THE COURT: THERE IS PENDING BEFORE THE COURT A NOTICE OF MOTION AND MOTION FOR SEQUESTERED JURY AND A DECLARATION ATTACHED THERETO, FILED ON THE 18TH OF AUGUST 2011. DO THE PEOPLE HAVE ANY RESPONSIVE TYPE PLEADING TO THAT?
MR. WALGREN: NO, WE DID NOT FILE ANYTHING, YOUR HONOR.
COURT: I’D BE HAPPY TO HEAR FROM THE DEFENSE, IF YOU WOULD LIKE TO PRESENT A VERBAL STATEMENT, MR. CHERNOFF, MR. FLANAGAN, MR. GOURJIAN.
MR. CHERNOFF: JUDGE, I THINK THE MOTION SPEAKS FOR ITSELF. I MIGHT ADD ONE THAT I THINK WE DID NOT SAY, AT LEAST IN OUR ARGUMENT, IS THAT IN LIGHT OF THE FACT THAT THIS — I DON’T WANT TO BE PRESUMPTUOUS HERE, BUT THIS MAY BE THE MOST PUBLICIZED CASE YOU WILL EVER HAVE IN YOUR COURTROOM. I CERTAINLY THINK FOR THE ATTORNEYS, THIS WOULD BE THE MOST PUBLICIZED CASE WE WILL EVER HAVE TO DEAL WITH. IF THIS ISN’T A PROPER CASE FOR SEQUESTRATION, THEN THERE REALLY IS NO PROPER CASE FOR SEQUESTRATION. AND WE STILL FIRMLY BELIEVE THAT DESPITE THE HASSLE IT WILL CAUSE ALL OF US, IT IS THE ONLY WAY THAT DR. MURRAY CAN HAVE A FAIR TRIAL PRESERVED. THAT IS ALL I HAVE.
THE COURT: THANK YOU. WHAT IS THE PEOPLE’S POSITION, PLEASE?
MR. WALGREN: THE COURT HAS INDICATED ON NUMEROUS OCCASIONS OVER AT LEAST THE LAST YEAR THAT THE COURT DID NOT DEEM IT NECESSARY TO SEQUESTER THE JURY FOR A NUMBER OF REASONS, AND ALL ALONG THE PEOPLE HAVE BEEN IN AGREEMENT WITH THE COURT. WE DO NOT FEEL IT IS NECESSARY. WE FEEL AT SOME POINT THERE HAS TO BE A LEVEL OF TRUST GRANTED TO JURORS AND THERE HAS TO BE DECISION AT SOME POINT WHETHER THEY ARE, IN FACT, CITIZENS COMING IN TO DO THEIR DUTY OR ARE THEY ESSENTIALLY INMATES COMPLETELY REMOVED FROM EVERYTHING. THE PEOPLE’S POSITION IS IT IS NOT NECESSARY.
THE COURT: IS IT SUBMITTED BY THE PEOPLE?
MR. WALGREN: SUBMITTED, YOUR HONOR.
THE COURT: BY THE DEFENSE?
MR. CHERNOFF: IT IS.
THE COURT: THANK YOU. I HAVE READ LOUD AND CLEAR THE POSITION OF THE DEFENSE IN THIS CASE AND THE ARGUMENTS, AND THEY ARE PASSIONATE AND THEY ARE PROFESSIONAL. AT ONE POINT IN THE DEFENSE PRESENTATION, THE DEFENSE WRITES: “AT THE END OF THE DAY, JURORS WOULD RESUME THEIR NORMAL LIFE EXPOSED TO AN UNLIMITED TROVE OF INFORMATION.” WHEN JURORS, WHO ARE CITIZENS OF THIS COUNTRY AND THE STATE OF CALIFORNIA, UNDERTAKE THEIR RESPONSIBILITY AS JURORS, THEY ARE PROVIDED WITH ADMONITIONS, ADMONISHMENTS. THEY ARE TOLD WHAT IS EXPECTED OF THEM AS CITIZENS AND THE EXTRAORDINARY RESPONSIBILITY THEY HAVE AS PROSPECTIVE JURORS. I GO MUCH FURTHER THAN THAT. I IMPLORE JURORS TO TAKE THE HIGH ROAD. I REPEATEDLY ADMONISH THEM TO FOLLOW THE COURT’S DIRECTIVES AND INSTRUCTIONS. I HAVE FOUND THAT WHILE THERE MAY, ON OCCASION, BE TRANSGRESSIONS, THAT JURORS UNDERSTAND AND ACCEPT THOSE EXTRAORDINARY RESPONSIBILITIES OF CITIZENSHIP WHICH DISTINGUISH THIS COUNTRY FROM MOST OTHER COUNTRIES AROUND THE PLANET. CERTAINLY, THERE HAVE BEEN INSTANCES OF JUROR MISCONDUCT. THERE CAN AND HAVE BEEN INSTANCES OF JUROR MISCONDUCT ON CASES WHICH RECEIVE NO PUBLICITY WHICH ARE, IF ANYTHING, UNREMARKABLE TO EVERYONE EXCEPT THE PARTICIPANTS IN THE CASE. THERE HAVE BEEN INSTANCES OF JUROR MISCONDUCT ON CASES WHICH HAVE RECEIVED PUBLICITY. THIS COURT HAS A TREMENDOUS AMOUNT OF RESPECT FOR JURORS, FOR THE SACRIFICES THEY MAKE, AND THAT RESPECT IS BASED UPON MY YEARS OF EXPERIENCE AND MY INTERACTION WITH JURORS AND MY RECOGNITION THAT JURORS WANT TO DO THE RIGHT THING AND DO THE RIGHT THING WHEN THEY ACCEPT THIS RESPONSIBILITY. JURORS HAVE LIVES. WE REMOVE THEM FROM THEIR DAILY LIVES IN THESE HORRIFIC ECONOMIC TIMES AND IMPOSE BURDENS ON THEM TO FULFILL THEIR CIVIC RESPONSIBILITY AS CITIZENS OF THIS COUNTRY AND THE STATE, TO TAKE FINANCIAL HITS, TO BE AWAY FROM THEIR JOBS AND THEIR FAMILIES AND THEIR FRIENDS. BUT THEY UNDERTAKE THAT RESPONSIBILITY BECAUSE THEY UNDERSTAND IT IS ONE OF THOSE SMALL PRICES TO PAY FOR THE REMARKABLE LIVES WE LIVE AS CITIZENS OF THE UNITED STATES. WHEN ONE ASKS A JUROR TO SERVE, ONE IMPOSES RESPONSIBILITIES. I WILL BE ADMONISHING THE JURORS IN THE STRONGEST TERMS ABOUT THOSE RESPONSIBILITIES AND WHAT THEY CAN AND CANNOT DO. I WILL BE ADMONISHING THEM ON A REGULAR BASIS REPEATEDLY IN VERBAL FORM. I ALSO WILL BE ADMONISHING THEM IN WRITTEN FORM. IF YOU RECALL WHEN WE BEGAN THE JURY SELECTION PROCESS SOMETIME AGO, I ACTUALLY PROVIDED EACH JUROR WITH AN INDIVIDUAL ORDER FORM FOR THAT JUROR’S INFORMATION. I INTEND TO DO THE SAME THING. I INTEND TO ELICIT FROM EACH JUROR A PROMISE, AND I INTEND TO ADMONISH EACH JUROR THAT DISOBEDIENCE WILL HAVE NOT ONLY ADVERSE CONSEQUENCES TO OUR VERY SENSE OF JUSTICE IN THIS COUNTRY AND TO THE ADMINISTRATION OF JUSTICE IN THIS COUNTRY, BUT ALSO WILL HAVE DIRECT PERSONAL CONSEQUENCES TO THEM, INCLUDING CONTEMPT OF COURT PROCEEDINGS WHICH CAN RESULT IN INCARCERATION, SUBSTANTIAL FINES, EMPLOYMENT CONSEQUENCES, AND CREDIT CONSEQUENCES. I DO THAT IN EVERY CASE, AND I WILL BE OBTAINING A PROMISE AND ASSURANCE FROM EACH JUROR THAT EACH JUROR WILL FOLLOW THE HIGH ROAD. IS IT EASY TO SERVE AS A JUROR? NO. ARE
THERE OPPORTUNITIES TO DIGRESS, TO ENGAGE IN MISCONDUCT? UNFORTUNATELY, YES. BUT I HAVE TREMENDOUS FAITH IN THE JURY SYSTEM AND IN THE INDIVIDUAL PROMISES OF JURORS. I INTEND TO HOLD THEM TO IT, JUST AS I HOPE THEY INTEND TO HOLD ME TO THE PROMISES AND ASSURANCES I GIVE THEM. BUT I WANT JURORS TO BE GOOD JURORS FOR THE DEFENDANT AND FOR THE PEOPLE. I WANT JURORS TO DECIDE THE CASE BASED ON THE EVIDENCE AND FOLLOW THE LAW. I BELIEVE THEY WILL. IF SOMETHING HAPPENS DURING THE JURY SELECTION PROCESS THAT CHANGES MY OPINION, I WON’T HESITATE TO INDICATE THAT. BUT I BELIEVE THAT THE TYPES OF ADMONITIONS AND INSTRUCTIONS AND DIRECTIVES WHICH I PROVIDE, AND THE RESPECT WHICH EACH JUROR IS GOING TO RECEIVE FROM THE MEMBERS OF THE LOS ANGELES SUPERIOR COURT, THE STAFF, AND THE SHERIFF’S DEPARTMENT, AND THE REPORTER’S OFFICE AND THE CLERK’S OFFICE, WILL PROVIDE THEM WITH A SENSE OF DIGNITY AND A SENSE OF RESPONSIBILITY WHICH THEY WILL ACKNOWLEDGE AND, IN RETURN, DEMONSTRATE TO THE PARTICIPANTS IN THIS CASE. THERE WILL BE INFORMATION AVAILABLE OUT THERE, UNQUESTIONABLY, AS THE DEFENSE HAS MENTIONED WHICH THE DEFENSE CALLS A “UNLIMITED TROVE OF INFORMATION.” I EXPECT THAT THE JURORS WILL FOLLOW THE HIGH ROAD, AND THAT MEANS THAT THEY WILL NOT BE IN RECEIPT OF, OR IN CONTACT WITH, INFORMATION REGARDING THIS CASE OUTSIDE OF THE EVIDENCE AND LAW PRESENTED IN THIS CASE AND IN THIS COURTROOM. SEQUESTRATION CERTAINLY IS AUTHORIZED UNDER PENAL CODE SECTION 1121. IT HAS BEEN UTILIZED IN THE STATE OF CALIFORNIA. IT IS UTILIZED IN OTHER STATES ON A REGULAR BASIS. I DO NOT FIND SEQUESTRATION TO BE THE ANSWER IN THIS CASE. IF ANYTHING, IT WOULD BE, I THINK, MORE OF A PROBLEM FOR INDIVIDUAL JURORS. CERTAINLY, ANECDOTALLY,
SEQUESTERED JURORS HAVE INDICATED THEY HAVE FELT LIKE INMATES, THAT THEY FELT THEY WERE BEING IMPRISONED. THEY ARE MONITORED 24/SEVEN. THEY HAVE MINIMAL FREEDOM OF MOVEMENT. THEY HAVE MINIMAL FREEDOM OF ASSOCIATION, THOSE RIGHTS THAT ALL OF US CHERISH DRAMATICALLY AS CITIZENS OF THIS COUNTRY. THEY CAN’T EVEN SPEAK TO LOVED ONES WITHOUT BEING MONITORED BY A MEMBER OF LAW ENFORCEMENT. THEY CAN’T ENGAGE IN ANY KIND OF INTIMATE INTERACTION. AND ANECDOTALLY, MANY SEQUESTERED JURORS HAVE INDICATED THAT, IF ANYTHING, THEY FOUND THAT THE SEQUESTRATION PROCESS WAS SO FRUSTRATING, SO INTIMIDATING, SO CRUEL AND SO UNUSUAL, THAT IT ACTUALLY INTERFERED WITH THEIR FAIR ASSESSMENT OF THE EVIDENCE AND THE LAW AND THAT CAN HAVE A DRAMATIC ADVERSE IMPACT ON THE LITIGANTS THEMSELVES BECAUSE OF WHATEVER ELSE IS GOING ON IN THE JURORS’ MINDS. SO AS FAR AS I’M CONCERNED, THOSE FACTORS ARE SUFFICIENTLY OF CONCERN TO ME AS TO DENY ANY MOTION FOR SEQUESTRATION OF JURORS. I SHOULD ADD THAT WHILE I RAISE THE ISSUE OF COST, THAT IS NOT OF OVERRIDING CONSIDERATION. AS I’VE INDICATED REPEATEDLY THROUGH THIS TRIAL PROCEEDING, JUSTICE TRUMPS EVERYTHING. WHEN ONE TALKS ABOUT COST, IT IS A FACTOR. THE ESTIMATE PROVIDED TO ME FOR THE COST OF SEQUESTRATION WOULD EXCEED A HALF A MILLION DOLLARS. THE STATE OF CALIFORNIA IS UNDERGOING SEVERE FINANCIAL PROBLEMS, AS IS THE LOS ANGELES SUPERIOR COURT. IF THIS WERE A CLOSE CALL, I WOULD UNHESITATINGLY ORDER SEQUESTRATION REGARDLESS OF COST. IT IS NOT A CLOSE CALL TO ME BECAUSE I FEEL THE FACTORS AGAINST SEQUESTRATION ARE SO SUBSTANTIAL THAT THEY SUBSTANTIALLY OVERRIDE THE DESIRE FOR SEQUESTRATION. WHEN ONE FACTORS IN THE EXTRAORDINARY FINANCIAL IMPACT, THAT AGAIN WEIGHS SO HEAVILY IN TERMS OF NOT SEQUESTERING THE JURY ON A 24/SEVEN BASIS. THIS COURT IS GOING TO HAVE VERY STRICT RULES AND REGULATIONS WHICH ARE GOING TO BE PROVIDED TO THE JURORS.
THE JURORS ARE GOING TO BE EATING THEIR MEALS AND SNACKS IN THE JURY ROOM DURING THE COURT DAY SO THE JURORS WILL NOT BE ROAMING FREE DURING THE COURT DAY. THAT CAUSES ME ENOUGH CONCERN AS IT IS. BUT, HOPEFULLY, THEY WILL BE ABLE TO PAY ATTENTION AND BE COMFORTABLE WITH THOSE TYPES OF ARRANGEMENTS. SO THERE ARE VARIOUS MEASURES THE COURT IS GOING TO PUT IN PLACE TO PROTECT JURORS, TO INSURE THAT THEY ARE NOT HASSLED OR HARASSED. AND I WANT TO MAKE IT CRYSTAL CLEAR TO ANYBODY OUT THERE WHO MAY HAVE AN AGENDA THAT THAT PERSON OR ORGANIZATION PROCEEDS AT ITS OWN RISK IF THAT PERSON
OR ORGANIZATION IN ANY WAY, SHAPE, OR FORM, WANTS TO INTERFERE WITH THE PROCESS OF JUSTICE IN THIS COURTROOM. I WON’T TOLERATE IT. THESE JURORS ARE GOING TO BE PROTECTED TO THE BEST OF MY ABILITY FOR THE EXTRAORDINARY SACRIFICE THEY ARE MAKING. BASED UPON ALL OF THOSE CONSIDERATIONS, THE DEFENSE MOTION FOR COMPLETE SEQUESTRATION OF THE JURORS PURSUANT TO PENAL CODE SECTION 1121 RESPECTFULLY IS DENIED. THERE WILL BE PROCEDURES IN EFFECT THAT WILL ASSURE THE INTEGRITY OF THIS TRIAL AND PROTECT THE JURORS’ PRIVACY AND THEIR FREEDOMS AS HUMAN BEINGS, AND
THEIR RIGHT TO LEAVE DECENT LIVES DURING THESE PROCEEDINGS WHILE THE TRIAL IS ONGOING. OKAY. THANK YOU.
MR. CHERNOFF: CAN I ADD A COROLLARY TO THAT REAL QUICK, JUDGE. ONE OF THE PROBLEMS THAT WE HAD MENTIONED IN OUR MEMO IS THE CASEY ANTHONY JURY PROBLEM WHERE THE PARTICULAR COMMENTATORS, AND TELEVISION SHOWS, OR PANELISTS LITERALLY DESCRIBE FOR THE VIEWER THEMSELVES WHAT THEY BELIEVE WAS BELIEVABLE ABOUT THE TESTIMONY, WHAT THEY BELIEVE WAS CORRECT ABOUT THE COURT RULINGS, WHAT THEY BELIEVE. THE REASON THAT THAT BECAME A PROBLEM IN THE ANTHONY TRIAL IS BECAUSE IT WAS TELEVISED FOR ALL THE WORLD TO SEE. SO WHAT HAPPENED WAS THAT IF A COMMENTATOR FROM FLORIDA OR COMMENTATOR FROM NEW YORK WERE TO SAY, “WELL, I WATCHED THAT,” OR A COMMENTATOR EVEN WITH HIS OR HER OWN SHOW SAYS, “WELL, I SAW THAT TESTIMONY,” THEN THEY HAD ACCESS TO IT AND IT WAS BELIEVABLE THAT THEY MIGHT HAVE SEEN THAT TESTIMONY. THERE WAS NO ACTUAL REQUIREMENT BECAUSE WE CAN’T CONTROL THE MEDIA, AS WE KNOW.
THERE IS NO ACTUAL REQUIREMENT THAT THEY ACTUALLY SEE THE TRIAL. THAT IS ONE OF THE PROBLEMS WITH THE MEDIA, HAVING THAT QUASI JUROR. EVERYONE IS A JUROR IN THE CASE, WHETHER EXPLAINING WHAT SHOULD BE BELIEVED, WHAT SHOULDN’T BE BELIEVED. THAT CAME ABOUT BECAUSE THE TRIAL WAS ACCESSIBLE TO EVERYBODY. NOW, I’M BRINGING THAT UP ONLY BECAUSE I KNOW, I CAN TELL FROM YOUR RULING, THAT YOU ARE TROUBLED AND CONCERNED ABOUT THE WHOLE ISSUE. IT IS SOMETHING YOU WELL THOUGHT OUT. YOU READ OUR MOTION. IT IS SOMETHING THAT MATTERS TO YOU, AND I APPRECIATE THAT. I’M SUGGESTING THAT YOU MAY CONSIDER YOUR IN-COURT CAMERAS, IN-COURT RULING, OR MAYBE AMEND IT IN SOME WAY TO PREVENT THAT PARTICULAR PROBLEM THAT HAS ARISEN. WE HAVE WATCHED IT ARISE IN THE ANTHONY CASE, AND WE EXPECT IT TO ARISE IN THIS CASE.
THE COURT: BY PROBLEM, DO YOU MEAN THE EXERCISE OF THE FIRST AMENDMENT?
MR. CHERNOFF: THE FIRST AMENDMENT, YOU KNOW, THERE IS A BALANCE TO THAT. YOU KNOW THAT.
THE COURT: YOU ARE TALKING ABOUT COMMENTARY.
MR. CHERNOFF: I’M TALKING ABOUT CAMERAS IN THE COURTROOM. YOU KNOW THE LAW ON THAT. THAT IS A BALANCING TEST. NOW, YOU HAVE NOW OBSERVED AND WE HAVE BROUGHT IT UP TO YOU IN OUR SEQUESTRATION MOTION, SOME OF THE DANGER THERE. AND I’M SUGGESTING TO YOU THAT BALANCE, SINCE YOUR INITIAL DECISION WITH REGARD TO CAMERAS IN THE COURTROOM AND CERTAINLY OUR DISCUSSION OF IT, THAT HAS CHANGED SOMEWHAT. I’M JUST SUGGESTING TO YOU THAT PERHAPS THAT SHOULD BE A CONSIDERATION ON YOUR PART THAT MAYBE THERE SHOULD BE SOME AMENDMENT TO THAT RULING AND PERHAPS TESTIMONY SHOULDN’T BE PRESENTED ON CAMERA.
THE COURT: I DECLINE AT THIS JUNCTURE TO AMEND MY EARLIER RULING. THE FIRST AMENDMENT IS ONE OF THOSE CHERISHED FUNDAMENTAL CONSTITUTIONAL RIGHTS IN THE UNITED STATES. THAT INCLUDES THE RIGHT TO COMMENT, WHETHER ONE AGREES OR DISAGREES WITH IT. JURORS ARE GOING TO BE TOLD NOT TO HAVE ANY CONTACT WITH ANY TYPE OF REPORTING AS TO THIS CASE. THE DEFENSE IS SKEPTICAL OF THE ABILITY OF AN INDIVIDUAL JUROR TO FOLLOW THAT ADMONITION. I AM NOT. I HAVE MORE FAITH AND MORE RESPECT THAN PERHAPS OTHERS DO, AND I AM NOT GOING TO TAILOR MY RULINGS IN ANY WAY TO AFFECT THE ABILITY OF INDIVIDUALS TO COMMENT ON THIS CASE. YES, IN ALL LIKELIHOOD, THERE WILL BE TALKING HEADS. FREQUENTLY,
TALKING HEADS ARE SPEAKING THROUGH OTHER BODY PARTS OTHER THAN THEIR HEADS. BUT THE FACT REMAINS, IT IS FOR EACH INDIVIDUAL TO MAKE UP HIS OR HER OWN MIND AS TO THE NATURE OF WHAT HAS TRANSPIRED. THE JURORS WILL DO THAT BASED ON THE EVIDENCE. THEY WILL NOT BASE IT ON WHAT THEY MAY SEE OR HEAR FROM OTHERS. SO THAT IS MY POINT. THE CONCERN HAS BEEN BE RAISED, AND I AM SATISFIED AT THIS POINT IN TIME THAT IS THE PROPER COURSE. WITH THAT IN MIND, WE HAVE OTHER ISSUES TO DISCUSS. ONE OF THEM HAS TO DO WITH THE JURY QUESTIONNAIRE WE WILL BE DOING IN CHAMBERS AS THE QUESTIONNAIRE IS FINALIZED. DRAFTS HAVE BEEN EVALUATED, SO WE STILL HAVE TO DISCUSS THAT. BUT THERE HAVE TO BE A HOST OF OTHER ISSUES WHICH THIS COURT SHOULD BE ADDRESSING A MATTER OF WEEKS BEFORE THE BEGINNING OF THE CASE. I STILL DON’T HAVE ANY FORMAL WRITTEN MOTIONS BY THE PARTIES. WE LEFT OFF WITH ONE, AND I MENTIONED IT IN CHAMBERS WHEN WE WERE IN CHAMBERS A WEEK OR SO AGO. NONE OF US COULD REMEMBER WHAT HAD BEEN RAISED. BUT I RECALL, MR. WALGREN, AT SOME POINT YOU INDICATED YOU WANTED THE COURT TO GET INVOLVED IN TERMS OF PRESCRIPTIONS THAT MAY HAVE BEEN WRITTEN AND YOU WANTED THE COURT TO REVIEW PRESCRIPTION LISTS.
MR. WALGREN: WE DEALT WITH THAT ON THE RECORD LAST TIME. THAT HAS BEEN RESOLVED TO BOTH THE PEOPLE’S AND THE DEFENSE SATISFACTION.
THE COURT: OKAY.
MR. WALGREN: FOLLOWING THAT LINE OF THOUGHT, YOUR HONOR, THE PEOPLE HAVE A MOTION IN LIMINE WITH US TODAY THAT WE WISH TO FILE WITH THE CLERK.
THE COURT: TO BE HEARD TODAY?
MR. WALGREN: NO. THE DEFENSE HASN’T RECEIVED A COPY YET, UNLESS THEY ARE PREPARED TO. IT IS A MOTION IN LIMINE REGARDING PROPOSED DEFENSE WITNESSES. I CAN UPDATE THE COURT ON THE QUESTIONNAIRE. I BELIEVE IT WAS AUGUST 16, WE GAVE THE DEFENSE A DRAFT VERSION. THEY HAVE MADE THEIR SUGGESTED EDITS TO THAT VERSION. WE RECEIVED IT LATE YESTERDAY, HAD AN OPPORTUNITY TO GO THROUGH THEIR SUGGESTED CHANGES. WE HOPE TO DO THAT TODAY.
THE COURT: IT JUST GETTING LONGER AND LONGER.
MR. WALGREN: I THINK AT THIS POINT, YOUR HONOR, BECAUSE BOTH SIDES WERE OPERATING ON THE SAME ELECTRONIC VERSION, IT IS MUCH EASIER NOW TO SEE THE EDITS AND AT LEAST COME TO THE MAJORITY OF QUESTIONS THAT WE AGREE ON, AT WHICH POINT WE WOULD SUBMIT A COPY TO THE COURT AS TO WHAT WE CANNOT AGREE ON. BUT I THINK THE BULK OF THE QUESTIONNAIRE, THERE IS COMPLETE AGREEMENT ON. LIKE I SAID, WE RECEIVED THIS LATE YESTERDAY. WE WILL REVIEW IT TODAY, AND WE CAN CERTAINLY CONFER WITH THE DEFENSE IN THE COMING FEW DAYS. BUT I THINK MAYBE THE NEXT STEP SHOULD STILL OCCUR BEFORE THE COURT GETS INVOLVED BUT, OF COURSE, IT IS UP TO THE COURT. WE JUST HAVEN’T HAD A CHANCE TO REVIEW THEIR CHANGES YET.
THE COURT: I HAVE NO PROBLEM WITH LETTING COUNSEL DISCUSS FURTHER THE PROPOSED QUESTIONNAIRE. I’M STILL WORKING ON MY VERSION WHICH IS NOT GOING TO CONTAIN EVERYTHING THAT YOU WANT PERHAPS AND MAY CONTAIN SOME OTHER MATTERS, BUT I HAVE GOT TO ADDRESS THIS BY BEGINNING OF NEXT WEEK. SO IF YOU WANT ANOTHER COUPLE DAYS AND WEEKEND, THAT IS FINE WITH ME. MOTION IN LIMINE REGARDING PROPOSED WITNESSES, YOU JUST FILED IT?
MR. WALGREN: I WOULD LIKE TO FILE IT NOW, IF I COULD, YOUR HONOR.
THE COURT: DO YOU HAVE A COPY OF IT, DEFENSE?
MR. WALGREN: NO. I WAS GOING TO GIVE THEM A CONFORMED COPY.
THE COURT: HOW MANY PROPOSED WITNESSES ARE THE SUBJECT OF THIS MOTION?
MR. WALGREN: 26, YOUR HONOR.
THE COURT: DOES DEFENSE WANT THE OPPORTUNITY TO REVIEW THE MOTION?
MR. CHERNOFF: THAT WOULD BE GREAT.
THE COURT: WHAT ELSE, MR. WALGREN?
MR. WALGREN: WE RECEIVED DISCOVERY FROM THE DEFENSE TODAY. WE ALSO HAVE SOME DISCOVERY FOR THE DEFENSE TODAY.
THE COURT: WHAT TYPE OF DISCOVERY?
MR. WALGREN: I HAVEN’T HAD A CHANCE TO REVIEW IT. IT APPEARS TO BE FROM A FORENSIC EXPERT, SPECIFIC TOXICOLOGY, AND APPEARS TO BE A HANDWRITTEN ACCOMPANYING REPORT.
THE COURT: THAT IS CORRECT, MR. CHERNOFF?
MR. CHERNOFF: YES, JUDGE.
THE COURT: WHAT DISCOVERY DID THE PEOPLE PROVIDE?
MR. WALGREN: WE HAVE ALSO AN EXPERT REPORT TO PROVIDE.
THE COURT: DO THE PEOPLE ANTICIPATE ADDITIONAL DISCOVERY AS WE APPROACH THE BEGINNING OF THE TRIAL?
MR. WALGREN: NOTHING THAT THE DEFENSE IS NOT AWARE OF. I DON’T ANTICIPATE ANY — AT THIS POINT, I DO NOT ANTICIPATE ANY ADDITIONAL WITNESSES THAT THE DEFENSE HAS NOT ALREADY BEEN MADE AWARE OF.
THE COURT: AND FROM THE DEFENSE STANDPOINT, COUNSEL, WHAT ABOUT DISCOVERY FROM THE DEFENSE? MR. FLANAGAN IS RAISING HIS FINGER.
MR. FLANAGAN: YOUR HONOR, I HAVE FILED A REQUEST FOR AN ORDER TO ALLOW ANALYSIS OF THE TWO URINE SAMPLES THAT WERE OBTAINED. ONE FROM THE RESIDENCE, AND ONE AT TIME OF AUTOPSY ON MICHAEL JACKSON. I HAVE TALKED WITH THE CORONER’S OFFICE. THEY NEED AN ORDER FROM THE COURT TO RELEASE A PORTION OF THE SAMPLE TO FORENSIC TOXICOLOGY ASSOCIATES. THE ONLY DISCOVERY I CAN IMAGINE RIGHT NOW WOULD BE TO PROVIDE THE PROSECUTION WITH RESULTS OF THOSE TESTS, IF THE COURT IS GOING TO ALLOW ME TO DO THE ANALYSIS.
THE COURT: I WOULD HAVE THOUGHT THIS ALL WOULD HAVE BEEN DONE AGES AGO RATHER THAN NOW. DO YOU HAVE AN ESTIMATE AS TO HOW LONG IT IS GOING TO TAKE THEM TO CONDUCT ANY SUCH ANALYSIS?
MR. FLANAGAN: MAYBE A WEEK. YOUR HONOR, WE ARE GETTING NEW MEDICAL EVIDENCE IN FREQUENTLY. FROM TIME TO TIME, THAT EVIDENCE REQUIRES US TO CHECK OUT THINGS. NOW, WE WANT TO DO ANALYSIS OF THE URINE SAMPLE. WE WERE NOT GOING TO ASK THE CORONER DO IT BECAUSE OF THE THINGS WE WENT THROUGH LAST TIME WHEN YOU WANTED US TO AGREE THAT MAYBE THE CORONER CAN’T DO IT OR IT WOULD BE DEFECTIVE. WE ARE ASKING OUR OWN LAB TO JUST DO ANALYSIS OF THE URINE SAMPLE.
THE COURT: I WAS KIND OF WAITING FOR THIS REQUEST FOR THE LAST SIX MONTHS.
MR. FLANAGAN: I DIDN’T REALIZE IT WOULD BE NECESSARY SIX MONTHS AGO, YOUR HONOR.
THE COURT: PEOPLE?
MR. WALGREN: I CAN’T IMAGINE HOW THE DEFENSE POSITION CHANGED IN THE LAST MONTH, BUT THE PEOPLE HAVE NO OBJECTION TO IT. I DON’T KNOW THE STATUS OF THE SAMPLE. I DON’T KNOW THE QUANTITY OF THE SAMPLE. THIS IS THE FIRST I HAVE HEARD OF THIS WAS WHEN THEY GAVE ME A COPY OF THE REQUEST THIS MORNING. SO I WOULD WANT TO INQUIRE OF THE CORONER’S OFFICE THIS MORNING. I JUST DON’T KNOW THE STATUS OF THIS EVIDENCE. THE COURT: I WILL SIGN THE ORDER, AND I’LL MODIFY IT THAT IF THERE IS A SUFFICIENT SAMPLE TO BE PROVIDED. CERTAINLY, THE DEFENSE IS ENTITLED TO IT. THIS OFFER HAS BEEN EXTENDED SINCE THE GET-GO. THIS HAS BEEN AN OPTION. WE HAVE DISCUSSED IT AT GREAT LENGTH WHEN THE DEFENSE INITIALLY PROPOSED TO HAVE THE CORONER’S OFFICE DO CERTAIN TYPE OF TESTING. I DON’T KNOW THE NATURE OF THE TESTING. IS IT TESTING WE ADDRESSED AT AN EARLIER POINT IN TIME?
MR. FLANAGAN: NO, NO. WHEN THE CORONER INSPECTED THE HOME, THEY SEIZED A 450-MILLILITER JAR OF URINE. THEY ALSO TOOK URINE SAMPLES AT TIME OF AUTOPSY. WE WOULD JUST LIKE — AND THEY DIDN’T ANALYZE FOR EVERYTHING THAT COULD HAVE BEEN ANALYZED IN THAT URINE SAMPLE.
WE WANT TO TAKE A LOOK AT THE URINE SAMPLE IN VIEW OF THE RECENT STUDIES THAT HAVE BEEN PRODUCED TO US. APPARENTLY, THE PROSECUTION EXPERT HAS DONE THE FIRST-EVER STUDIES ON ORAL INGESTION, AND WE WERE GIVEN THAT A WEEK AGO OR TWO WEEKS AGO.
THE COURT: ORAL INGESTION OF PROPOFOL?
MR. FLANAGAN: YES. WE WANT TO TAKE A LOOK AT THE URINE SAMPLES TO CONFIRM AND NEGATE SOME OF THE OTHER THEORIES OF THEIR CORNERSTONE WITNESS, DR. SHAFER.
THE COURT: HERE IT IS THURSDAY. I’LL SIGN THE ORDER THAT THE DEPARTMENT OF CORONER RELEASE TO THE APPROPRIATE INDIVIDUAL OR AGENCY A SUFFICIENT SAMPLE. YOU INDICATE THERE ARE TWO SEPARATE SAMPLES?
MR. FLANAGAN: WE BELIEVE THAT THERE ARE TWO SEPARATE SAMPLES AND THAT BOTH HAVE BEEN PRESERVED. THERE IS ONE THAT WAS SEIZED AT THE SCENE THAT WAS IN A URINE CONTAINER, AND THERE WAS ALSO URINE TAKEN AT TIME OF AUTOPSY FROM THE BLADDER.
THE COURT: IF THERE IS SUFFICIENT REMAINING SAMPLE, THE CORONER’S OFFICE SHOULD PROVIDE IT.
MR. FLANAGAN: I TALKED TO LINTEMOOT. SHE SAID SHE NEEDED AN ORDER TO TURN IT OVER.
THE COURT: YOU WILL HAVE IT IN A FEW MOMENTS. OTHER THAN THAT, MR. CHERNOFF, MR. FLANAGAN, MR. GOURJIAN, IS THERE ANY OTHER DISCOVERY OUT THERE THAT YOU ANTICIPATE?
MR. CHERNOFF: AT THIS VERY MOMENT, NO.
MR. FLANAGAN: WE HAVEN’T SEEN THE DISCOVERY.
MR. CHERNOFF: HERE IS WHAT — NO, AS OF THIS VERY MOMENT, WE DON’T ANTICIPATE ANYTHING, ANY SURPRISES COMING UP, BUT WE ARE ALSO NOT ON VACATION. WE ARE PREPARING THIS CASE. WE WILL CONTINUE TO DO SO ALL THE WAY TILL THE JURY SITS THERE IN THAT BOX. AND WHEN WE GET INFORMATION LIKE WE DID TODAY, WE WILL TURN IT OVER IMMEDIATELY. ON MONDAY, WE RECEIVED THIS INFORMATION. ON TUESDAY, IT WAS SCANNED, SENT TO ME. I E-MAILED MR. WALGREN. THEY ARE GOING TO KNOW WHAT IS GOING ON JUST LIKE THEY ARE DOING WITH US. THEY GAVE US DISCOVERY TODAY, A NEW EXPERT I HAVE NEVER HEARD OF, BUT I GUARANTEE YOU MR. WALGREN DID IT IN GOOD FAITH. HE DID IT TIMELY, AND HE CONTINUES TO PREPARE HIS CASE BECAUSE HE HAS RESPONSIBILITY TO THE PEOPLE AND HE IS A GOOD LAWYER. WE WILL DO THE SAME.
THE COURT: I EXPECT THAT FROM BOTH SIDES IN THIS CASE THAT WE HAVE GOOD LAWYERS WHO ARE PROFESSIONAL AND RESPONSIBLE AND ARE MAKING THEIR DECISIONS BASED ON THE LAW.
I DON’T WANT TO BE SURPRISED, AND I DON’T WANT TO HAVE JURORS SURPRISED, AND I DON’T WANT DELAYS IN THE MIDDLE OF A TRIAL WHEN THERE ARE ISSUES THAT ARISE THAT COULD HAVE BEEN ADDRESSED EARLIER. SO WE ARE GOING TO PROCEED EXPEDITIOUSLY. I CONTINUE TO ASK COUNSEL FOR A REALISTIC TIME ESTIMATE, AND I KNOW THAT I KEEP ON PUMMELING YOU WITH THIS PARTICULAR QUESTION. BUT WE ARE PREPARING THE INITIAL HARDSHIP QUESTIONNAIRE FOR THE JURORS, THE ONE-PAGE QUESTIONNAIRE. AND IF THE JURORS ARE GOING TO BE COMING BACK ON THE 23RD OF SEPTEMBER FOR POST-HARDSHIP, POST-QUESTIONNAIRE VOIR DIRE, WE HAVE AGREED THAT THAT WILL OCCUR ON FRIDAY, THE 23RD OF SEPTEMBER. I BELIEVE WE WILL HAVE A JURY THAT DAY. IF THERE IS SOMETHING THAT HAPPENS, WE HAVE ALLOWED OURSELVES AN OPTION TO GO TO THE 26TH. WHEN JURORS COME BACK ON THE 23RD OF SEPTEMBER, 2011, I TELL THEM THEIR SERVICES ARE GOING TO BE REQUIRED ON THIS CASE THROUGH WHAT DATE, APPROXIMATELY? WHAT DO YOU THINK, PEOPLE AND DEFENSE?
MR. WALGREN: I STILL SEE A TRIAL LASTING ABOUT ROUGHLY FIVE WEEKS.
MR. CHERNOFF: I SEE IT CONDENSING MORE AND MORE AS WE GET INTO IT. I HAVE TO AGREE, FOUR TO FIVE WEEKS.
THE COURT: I SEE IT CONDENSING MORE AND MORE. SO THE VERY END OF OCTOBER, THE BEGINNING OF NOVEMBER, TAKING INTO ACCOUNT A LITTLE BIT THAT MAY SPILL OVER. MAYBE THROUGH THE FIRST WEEK OF NOVEMBER, THROUGH THE 4TH OR THEREABOUTS? SO WE CAN COUNT THE NUMBER OF DAYS. IT MATTERS TO JURORS, AS WE ALL KNOW. VERY, VERY FEW JURORS ARE ACTUALLY GETTING PAID IN THE STATE OF CALIFORNIA AND THESE ARE BRUTAL ECONOMIC TIMES SO I WANT TO BE REALISTIC WITH THEM. I THINK THE JURORS ARE PREPARED TO MAKE SACRIFICES, BUT I WANT TO BE UP FRONT WITH THEM. IF WE START ON THAT DATE, DO THE MATH IN TERMS OF THE NUMBER OF COURT DAYS. WE WILL BE DARK THE 10TH OF OCTOBER, WHICH IS COLUMBUS DAY.
MR. CHERNOFF: YOUR QUESTION IS HOW MANY COURT DAYS, JUDGE?
THE COURT: YES.
MR. WALGREN: I BELIEVE THROUGH NOVEMBER 4TH IS PROBABLY REALISTIC. I BELIEVE THAT IS ABOUT 28 COURT DAYS.
THE COURT: HOW MANY?
MR. WALGREN: 28.
THE COURT: THAT IS A LITTLE OVER FIVE WEEKS. YOU ARE TAKING INTO ACCOUNT THE 23RD AS WELL, AND EVEN THE 26TH. YOU STARTING COUNTING THEN ON THE 26TH OR THE 27TH?
MR. WALGREN: OPENING STATEMENTS ON THE 27TH.
THE COURT: I’M REALLY COUNTING ON FROM THE DAY THEY COME TO COURT, FROM THE 23RD. THAT IS AN EXTRA DAY OR SO.
MR. CHERNOFF: 30 DAYS.
THE COURT: WHAT DO YOU THINK?
MR. CHERNOFF: 30 DAYS SOUNDS ABOUT RIGHT.
THE COURT: I THINK IT MAY BE LESS THAN THAT, QUITE FRANKLY.
MR. CHERNOFF: IT MIGHT BE.
THE COURT: I’LL HAVE TO THINK ABOUT IT AND DISCUSS IT FURTHER WITH COUNSEL BECAUSE I BELIEVE THAT THIS CASE CAN BE TRIED AND, GIVING THE JURORS PLENTY OF TIME FOR DELIBERATIONS, WITHIN 20 TO 25 DAYS. THAT DOES MAKE A DIFFERENCE IN TERMS OF THEIR SCHEDULE. WE WILL TALK ABOUT IT A LITTLE FURTHER. AGAIN, WE HAVE THE START DATE FOR IN-COURT VOIR DIRE OF THE 23RD, POSSIBLY GOING TO THE 26TH WHICH IS THE FOLLOWING MONDAY, WITH OPENING STATEMENTS AND THE PRESENTATION OF EVIDENCE ON THE 27TH. JUST A LITTLE NOTICE. ROSH HASHANAH IS ON THE 29TH, WHICH IS THURSDAY OF THAT WEEK. AND FOR SOME WHO HONOR ROSH HASHANAH, ALSO THE 30TH. SO I DON’T KNOW HOW THAT WILL PLAY FOR THOSE OF THE JEWISH FAITH WHO PLAN ON OBSERVING ROSH HASHANAH, AND THE COURT WILL ACCOMMODATE THEM IF THERE ARE THOSE WHO HAVE RELIGIOUS COMMITMENTS ON SUCH HOLY DAYS. YOM KIPPUR, THE DAY OF ATONEMENT, STARTS ON THE EVENING OF FRIDAY, THE 11TH. SO PRESUMABLY, YOM KIPPUR OBSERVATIONS WILL NOT AFFECT THE JURY EXCEPT FOR THOSE POSSIBLE JURORS WHO MAY WANT TO LEAVE A LITTLE EARLIER ON THAT DATE TO PREPARE FOR SUNDOWN ON THE 11TH. I JUST MENTION THAT TO YOU BECAUSE THERE ARE THREE EXTREMELY IMPORTANT RELIGIOUS DAYS DURING THAT TIME FRAME, IN ADDITION TO COLUMBUS DAY, AN IMPORTANT HOLIDAY CELEBRATION OF THIS COUNTRY. I WOULD LIKE TO ADDRESS THE MOTION IN LIMINE NEXT MONDAY AND TUESDAY. WE HAVE GOT TO GET A MOVE ON THE CASE.
MR. CHERNOFF: CAN IT BE TUESDAY INSTEAD OF MONDAY, JUDGE?
THE COURT: YES, IT CAN BE TUESDAY INSTEAD OF MONDAY. TUESDAY, THE 30TH, MR. WALGREN AND MS. BRAZIL?
MR. WALGREN: THAT IS FINE WITH THE PEOPLE, YOUR HONOR.
THE COURT: MR. CHERNOFF?
MR. CHERNOFF: YES.
THE COURT: AS TO THE PEOPLE’S MOTION IN LIMINE THIS WILL BE AT — I HAVE TWO MATTERS EARLIER — AT 9:15 A.M. COURT TIME, NOT PEOPLE’S TIME.
MR. FLANAGAN: YOUR HONOR, I HAVE A LAST DAY PRELIM ON TUESDAY, AUGUST 30. CAN WE DO IT IN THE AFTERNOON?
THE COURT: MY WORRY IS THAT IT IS GOING TO TAKE US LONGER THAN AN AFTERNOON TO ADDRESS ALL THESE MATTERS. I DON’T HAVE ANY IDEA OF THE TIME FRAME. LAST DAY PRELIM WHERE, MR. FLANAGAN?
MR. FLANAGAN: POMONA.
MR. CHERNOFF: IT IS JUST ONE MOTION IN LIMINE THATDETAILS THE SAME TOPIC FOR ALL 26 WITNESSES. THE ARGUMENT IS THE SAME FOR ALL 26.
THE COURT: I DIDN’T KNOW THAT BECAUSE I HAVEN’T READ THIS. IS IT THE SAME BASIC ISSUE?
MR. WALGREN: WELL, I DON’T KNOW — I DON’T KNOW HOW TO CHARACTERIZE IT IN THAT WAY, YOUR HONOR.
THE COURT: THEY SEEM TO BE DIFFERENT.
MR. WALGREN: THEY ARE CATEGORIZED IN DIFFERENT CATEGORIES BASED ON WHETHER WE HAVE RECEIVED DISCOVERY OR NOT, OR WHAT THEY RELATE TO.
THE COURT: COUNSEL, I WANT TO ACCOMMODATE YOU. I WILL NOT INTERFERE WITH MR. FLANAGAN’S PRELIM. I THINK WHAT WE HAVE TO DO IS START MONDAY AFTERNOON. MONDAY AFTERNOON AT 1:30. THEN IF WE HAVE TO GO OVER TO TUESDAY AFTERNOON AT 1:30. I DON’T WANT TO RUN THE RISK OF NOT BEING ABLE TO CONCLUDE THESE PROCEEDINGS BEFORE THE 30TH BECAUSE I AM TOTALLY JAMMED THEREAFTER. SO I CAN ONLY DO WHAT I CAN DO. MR. FLANAGAN HAS THE PRELIM. I WILL NOT INTERFERE WITH A LAST DAY PRELIM IN POMONA. YOU ANTICIPATE IT WILL GO?
MR. FLANAGAN: YES.
THE COURT: COUNSEL, THE BEST I CAN DO FOR YOU THEN IS THE AFTERNOON OF THE 29TH. SO FURTHER PROCEEDINGS, MOTION, 1:30 P.M., MONDAY, 29 AUGUST 2011, AT WHICH TIME COUNSEL ARE ORDERED TO APPEAR. IF WE HAVE TO, WE WILL GO OVER THEN UNTIL THE AFTERNOON OF THE 30TH. WOULD YOU ANTICIPATE THAT YOU WILL BE ABLE TO FINISH THE PRELIM IN THE MORNING ON THE 30TH?
MR. FLANAGAN: YES.
THE COURT: NOW, IF SOMETHING CHANGES, MR. FLANAGAN, WITH REGARD TO THE STATUS OF THE PRELIM, AS THINGS HAPPEN, YOU CAN LET US KNOW. THEN WE CAN WORK AROUND IT. THEN I CAN MOVE EVERYTHING UNTIL 9:15 A.M. ON THE 30TH. BUT RIGHT NOW, IN ORDER TO ACCOMMODATE COUNSEL, SHOULD I ALSO GIVE COUNSEL THE TIME UNTIL MONDAY TO DISCUSS THE QUESTIONNAIRE?
MR. WALGREN: I THINK THAT WOULD BE A GOOD WAY TO HANDLE IT.
THE COURT: ANYTHING ELSE TO BE DISCUSSED TODAY,
MR. WALGREN, MS. BRAZIL?
MR. WALGREN: NO. THANK YOU, YOUR HONOR.
THE COURT: MR. CHERNOFF?
MR. CHERNOFF: NO, JUDGE.
THE COURT: MR. FLANAGAN?
MR. FLANAGAN: NO.
THE COURT: MR. GOURJIAN?
MR. GOURJIANJIAN: ONLY, YOUR HONOR, THAT I PROBABLY WILL FILE A RESPONSE TO THE PEOPLE’S 402, BUT IT PROBABLY WILL BE MONDAY MORNING BECAUSE I’M PROBABLY GOING TO NEED THE WEEKEND JUST GOING THROUGH THIS.
THE COURT: FINE. BY 8:30 A.M., MONDAY MORNING.
MR. GOURJIAN: THAT IS FINE, YOUR HONOR.
THE COURT: IF YOU CAN GET IT TO US EARLIER, FINE. YOU HAVE ACCESS TO OUR FAX NUMBER. AND IF PART OF IT IS READY, I THINK YOU ALSO HAVE ACCESS TO OUR E-MAIL, DON’T YOU?
MR. GOURJIAN: I BELIEVE SO.
THE COURT: ALL RIGHT. SO FURTHER PROCEEDINGS THEN 1:30 P.M. ON MONDAY, THE 29TH. WOULD YOU ANTICIPATE DR.MURRAY WILL BE APPEARING?
MR. CHERNOFF: NO, JUDGE.
THE COURT: ALL RIGHT. THANK YOU.
MR. WALGREN: THANK YOU, YOUR HONOR.
THE COURT: AGAIN, PLEASE BE HERE ON TIME, EVERYBODY. THANK YOU. WE ARE IN RECESS.
( NEXT HEARING 1:30 P.M., AUGUST 29, 2011.)
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