APPEARANCES: DEFENDANT CONRAD ROBERT MURRAY, NOT PRESENT, REPRESENTED BY EDWARD CHERNOFF, AND J. MICHAEL FLANAGAN;
PEOPLE REPRESENTED BY DEBORAH BRAZIL, DEPUTY DISTRICT ATTORNEY,
THE COURT: WE DO HAVE SOME ADDITIONAL COUNSEL HERE TODAY. MR. GOURJIAN?
MR. GOURJIAN: NAREG GOURJIAN.
THE COURT: THANK YOU. ALSO PRESENT WE HAVE MR. WEITZMAN AND MR. GERAGOS. WOULD YOU INTRODUCE YOURSELVES, PLEASE.
MR. WEITZMAN: HOWARD WEITZMAN HERE BY ORDER OF THIS COURT.
THE COURT: WITH MY APPRECIATION.
MR. WEITZMAN: MY PLEASURE.
MR. GERAGOS: MARK GERAGOS BY ORDER OF THE COURT.
THE COURT: I APPRECIATE IT AS WELL. MR. MACIAS?
MR. MACIAS: GOOD AFTERNOON. SEAN MACIAS REPRESENTING MR. GOURJIAN.
THE COURT: MR. HARRIS?
MR. HARRIS: GOOD AFTERNOON, YOUR HONOR. PAT HARRIS HERE WITH MR. GERAGOS’S OFFICE.
THE COURT: I DIDN’T ORDER YOU TO APPEAR.
MR. HARRIS: I EXPECTED TO BE HERE.
MR. GERAGOS: HE WILL APPEAR FOR ME UNLESS I DECIDE TO GO PRO PER.
THE COURT: YESTERDAY, ABOUT 3:35 P.M., THE COURT RECEIVED A MEMO AND POINTS AND AUTHORITIES RE POTENTIAL CONFLICT OF INTEREST RE ASSOCIATION OF COUNSEL NAREG GOURJIAN. I SEE THAT THERE IS PROOF OF SERVICE OF PERSONAL DELIVERY TO MR. WEITZMAN. AGAIN, I JUST GOT IT YESTERDAY AFTERNOON. DID YOU GET IT?
MR. WEITZMAN: NO. IT COULD BE AT THE OFFICE. I WASN’T THERE YESTERDAY. SO IF IT WAS SENT NOT BY E-MAIL, THEN I WOULDN’T HAVE SEEN IT.
MR. GOURJIAN: YOUR HONOR, I ACTUALLY E-MAILED IT TO HIM. IT WASN’T BY PERSONAL DELIVERY. I APOLOGIZE. IT WAS E-MAILED TO HIM.
THE COURT: AND OTHER COUNSEL?
MR. MACIAS: YES, I AM THE DRAFTER. I HAVE A CONFORMED COPY I CAN HAND TO MR. WEITZMAN NOW.
THE COURT: OBVIOUSLY, THERE IS AN ISSUE HERE AND A FACTUAL ISSUE. I THINK MR. GERAGOS MAY WANT TO TAKE A LOOK AT THIS AS WELL. THERE IS NO DECLARATION. I WAS EXPECTING THERE WOULD BE A DECLARATION BY MR. GOURJIAN AS WELL AS A MEMORANDUM OF POINTS AND AUTHORITIES BECAUSE THE MEMORANDUM REFERENCES CERTAIN FACTS. BUT I THINK IN ORDER TO HAVE A FULL EXPLANATION AND EXPLICATION, THE COURT SHOULD ALSO HAVE A DECLARATION.
MR. MACIAS: I UNDERSTAND. I AGREE, YOUR HONOR. WE WERE A LITTLE BIT HASTY TRYING TO GET THIS THING TOGETHER YESTERDAY. AND WE WERE TRYING TO RESOLVE THIS, OBVIOUSLY, YOU KNOW, AND NOT TAKE ANY MORE OF THE COURT’S TIME.
THE COURT: IT IS AN IMPORTANT MATTER. AND, QUITE FRANKLY, DR. MURRAY IS APPEARING 997 THROUGH COUNSEL. IS THAT RIGHT, MR. CHERNOFF?
MR. CHERNOFF: YES, JUDGE.
THE COURT: SOMEONE HAS AN ACTIVE CELL PHONE OR SOME OTHER ELECTRONIC DEVICE. IT IS INTERFERING WITH OUR SECURITY AND AUDIO SYSTEM, IS IT NOT, DEPUTY JONES?
THE BAILIFF: YES, YOUR HONOR.
THE COURT: PLEASE LISTEN TO DEPUTY JONES. DO YOU WANT TO SAY SOMETHING?
THE BAILIFF: IF YOU HAVE A BLACKBERRY FROM AT&T OR T-MOBILE, AN I-PAD.
THE COURT: I’M SORRY. IT REACHES THE POINT WHERE WE NEED DEVICES TURNED OFF. OTHERWISE, WE HAVE CONSTANT INTERFERENCE. THIS IS AN IMPORTANT MATTER. DR. MURRAY HAS AN INTEREST AS WELL. SO I THINK DR. MURRAY, EITHER BECAUSE HE SHOULD BE PRESENT OR THROUGH A DECLARATION, SHOULD BE PROVIDING THE COURT WITH HIS INPUT, RECOGNITION OF WHAT IS GOING ON. SO TELL ME WHAT WE SHOULD BE DOING. I THINK MR. GERAGOS SHOULD HAVE A CHANCE TO SEE THIS. MR. WEITZMAN SHOULD.
MR. WEITZMAN: CAN I JUST SAY THIS. SO THE RECORD IS CLEAR, THE ESTATE IS NOT WILLING TO WAIVE ANY CONFLICT IF ONE EXISTS. I DON’T HAVE ANY FACTS AT THIS POINT TO INDICATE THAT THERE IS OR IS NOT A CONFLICT. SO FOR WHATEVER PURPOSES IT SERVES FOR YOU, THE RECORD IS CLEAR, THE ESTATE IS NOT WILLING TO WAIVE ANY CONFLICT. BUT I’M NOT AWARE IF IT IS OR IS NOT, AND MR. GERAGOS MAY BE ABLE TO SHED LIGHT ON THAT.
THE COURT: WHEN THE ISSUE WAS RAISED LAST WE WERE IN COURT WAS THE FIRST TIME I HEARD ABOUT IT. SO I IMMEDIATELY THOUGHT YOU, AS COUNSEL FOR THE ESTATE, SHOULD HAVE SOME INFORMATION ABOUT IT. MR. HARRIS WAS STANDING IN FOR MR. GERAGOS, AND MR. HARRIS REALLY DIDN’T HAVE ANY DIRECT INFORMATION AS WELL.
MR. MACIAS: MY UNDERSTANDING, YOUR HONOR, IS THAT MR. WEITZMAN HAS CONDUCTED SOME INVESTIGATION IN THE LAST WEEK AND HAS CONTACTED PRIOR COUNSEL OF THE GERAGOS LAW FIRM. IS THAT CORRECT, MR. WEITZMAN?
MR. WEITZMAN: YES. DO YOU WANT TO PUT THIS ON THE RECORD? I’M NOT SURE IF EVERYBODY WANTS TO DO THIS.
THE COURT: I DON’T WANT TO DO THAT EITHER. I DON’T THINK I’M IN A POSITION WHERE I CAN BE ADDRESSING THIS RIGHT NOW. I DON’T KNOW IF THERE IS SOMETHING YOU WANT TO STATE VERBALLY, MR. GERAGOS, BUT I NEED A DECLARATION FROM MR. GOURJIAN AND FROM MR. GERAGOS, IF MR. GERAGOS AND HIS LAW FIRM HAVE A POSITION. THEN I WANT MR. WEITZMAN, AND MR. CHERNOFF, MR. FLANAGAN, AND MR. GOURJIAN TO SEE IT AS WELL. THE PEOPLE REALLY DON’T HAVE A STANDING IN THIS, DO THEY?
MS. BRAZIL: NO, YOUR HONOR.
THE COURT: DID YOU WANT TO EXCUSE YOURSELF FOR A COUPLE MOMENTS? MS. BENSON TOLD ME APPARENTLY SOME DISCOVERY WAS DELIVERED TO THE D.A.’S OFFICE, BUT IT WAS DELIVERED TO MR. WALGREN WHO IS NOT AVAILABLE, SO IT MAY BE WAITING IN YOUR OFFICE.
MS. BRAZIL: THAT IS MY UNDERSTANDING FROM MR. FLANAGAN’S REPRESENTATION TO ME. MY NAME ISN’T ON THERE. I DIDN’T RECEIVE INFORMATION ABOUT ANY DISCOVERY. I’M NOT SURE EXACTLY WHERE IT IS.
MR. FLANAGAN: I PERSONALLY DELIVERED ON TUESDAY TO THE 17TH FLOOR RECEPTIONIST A STACK OF DISCOVERY AND TOLD HER THAT IT RELATED TO THE MURRAY CASE AND TO GIVE IT TO MR. WALGREN. I DON’T THINK I MENTIONED MS. BRAZIL.
THE COURT: WE KNEW THAT MR. WALGREN WASN’T GOING TO BE HERE FOR TODAY. I DON’T KNOW, BECAUSE WE ARE ALSO ON CALENDAR TO DISCUSS DISCOVERY BECAUSE THIS IS THE 30-DAY TIME FRAME. SO I DON’T KNOW WHETHER YOU WANTED TO HAVE IT BEFORE.
MS. BRAZIL: I WILL NEED IT, YOUR HONOR, WHEN THE COURT REACHES THE POINT THAT INVOLVES DISCOVERY. I WILL NEED THAT.
THE COURT: THE QUESTION IS YOUR COMFORT LEVEL WITH EXCUSING YOURSELF NOW WHILE I ADDRESS THIS OTHER ISSUE.
MS. BRAZIL: I WOULD PREFER TO STAY PRESENT, YOUR HONOR.
THE COURT: I THINK THAT IS FINE, TOO. ARE THERE ANY SUGGESTIONS?
MR. GERAGOS: FRANKLY, I’LL GIVE YOU A SUGGESTION. MR. WEITZMAN AND I, I THINK, ARE OF THE SAME MIND THAT THE ONLY WAY WE ARE GOING TO ADDRESS THIS OR THINK WE CAN ADDRESS THIS IS IF IT IS HE AND I WITH YOU IN CAMERA EX PARTE. I DON’T BELIEVE THERE IS ANY OTHER WAY. I’M CERTAINLY NOT GOING TO TALK ABOUT THIS IN OPEN COURT. I MEAN THE WHOLE FOUNDATION OF WHY MR. HARRIS BROUGHT THIS TO THE COURT’S ATTENTION, WHY THE FIRM BROUGHT THIS TO THE COURT’S ATTENTION, WAS OUR DUTY UNDER 6068(E). I’M NOT OPINING ON ANYTHING, EXCEPT I’VE GOT AN ABSOLUTE DUTY UNDER (E) TO ZEALOUSLY PROTECT MY CLIENT’S CONFIDENCES. THAT IS WHY I’M HERE. THAT IS THE ONLY REASON. I SHOULD STATE FOR THE RECORD I HAVE UTMOST RESPECT FOR MR. GOURJIAN. I CONSIDER HIM LIKE A SON. IN FACT, I EVEN GOT HIS WIFE FOR HIM. SO —
MR. WEITZMAN: YOU MEAN YOU INTRODUCED THEM.
THE COURT: YOU’VE GOT THE WORLD PRESS HERE, MR. GERAGOS. YOU HAVE TO BE REALLY VERY SPECIFIC.
MR. GERAGOS: HE HAS AN ARMENIAN WIFE, LIKE MR. WEITZMAN.
THE COURT: GENTLEMEN, THIS IS VERY SERIOUS.
MR. GERAGOS: I UNDERSTAND.
THE COURT: I THINK I NEED A DECLARATION FROM MR. GOURJIAN AS A STARTING POINT.
MR. MACIAS: NO PROBLEM, YOUR HONOR.
THE COURT: AND I APPRECIATE WHAT MR. WEITZMAN AND MR. GERAGOS ARE SAYING. THIS IS VERY SENSITIVE MATERIAL, SO IT SEEMS TO ME WE START OFF BY GETTING THIS DECLARATION FROM MR. GOURJIAN. AND THEN WE HAVE MR. WEITZMAN AND MR. GERAGOS REVIEW IT AND HAVE THEM REVIEW THE MEMORANDUM AS WELL, AND THEN WE HEAR FROM COUNSEL. AND I THINK THIS IS A SENSITIVE ENOUGH MATTER THAT IT SHOULD BE ADDRESSED IN CAMERA EX PARTE. AND I ALSO NEED A DECLARATION FROM DR. MURRAY ABOUT WHAT HE KNOWS OR DOESN’T KNOW.
MR. CHERNOFF: WE PROVIDED ONE, BUT THAT WAS PRESENTED WITH — I HAD NAREG FILE AN ANNOUNCEMENT OF APPEARANCE, AND ATTACHED TO THAT IS A DECLARATION BY DR. MURRAY. ESSENTIALLY WHAT IT STATES IS THAT HE WOULD LIKE MR. GOURJIAN TO BE HIS COUNSEL AS YOU RECALL, WE LOST A LAWYER AND WE REALLY NEEDED TO REPLACE ONE. AFTER CAREFUL ANALYSIS, DR. MURRAY CHOSE MR. GOURJIAN. IF THERE IS SOMETHING ELSE YOU NEED MORE THAN THAT, I CAN GET IT. IT IS NOT A PROBLEM.
THE COURT: YES, THERE IS, AND IT IS GOING TO HAVE TO ADDRESS THIS PARTICULAR ISSUE THAT HAS JUST BEEN RAISED. THERE APPARENTLY ARE APPROXIMATELY FIFTY-ONE THOUSAND LICENSED ATTORNEYS PRACTICING IN THE COUNTY OF LOS ANGELES, AND WE FIND OURSELVES IN A SITUATION WHERE I HAVE TO ADDRESS A POSSIBLE CONFLICT OF INTEREST ISSUE. SO WHAT SHOULD I BE DOING IN TERMS OF WHEN, MR. MACIAS, YOU AND THE DEFENSE TEAM AND MR. GOURJIAN WILL BE ABLE TO PROVIDE TO ME AND TO MESSRS. WEITZMAN AND GERAGOS A DECLARATION.
MR. MACIAS: WITHIN FIVE DAYS, YOUR HONOR. IS THAT SUFFICIENT?
THE COURT: WE ARE IN A COUNTDOWN NOW FOR TRIAL.
MR. MACIAS: I UNDERSTAND.
THE COURT: I WANT THE DEFENSE TO BE READY AND GEARED UP. ARE YOU OKAY WITH THAT, MR. CHERNOFF?
MR. CHERNOFF: ABSOLUTELY, BUT I AM A LITTLE CONFUSED ABOUT WHAT MORE YOU NEED FROM DR. MURRAY. I MEAN HE SIGNED CERTAINLY A WAIVER OF CONFLICT. WE HAVE THAT FOR OUR PERSONAL RECORDS. THAT HAS BEEN SIGNED. WE CAN PROVIDE THAT. IS THERE MORE INFORMATION THAT DR. MURRAY NEEDS TO PROVIDE IN HIS DECLARATION OTHER THAN HE HAS MADE A DECISION ABOUT AN ATTORNEY HE WOULD LIKE. HE HAS HIRED AN ATTORNEY, WOULD LIKE THIS ATTORNEY TO REPRESENT HIM IN COURT.
THE COURT: IF YOU HAVE SOME SORT OF CONFLICT OF INTEREST WAIVER IN YOUR FILE, IT WOULD SEEM TO ME IN VIEW OF WHAT HAS BEEN PRESENTED HERE THAT DR. MURRAY SHOULD BE FILING A DECLARATION INDICATING HE IS OR IS NOT AWARE OF SOME ISSUE ARISING OF MR. GOURJIAN’S PRIOR REPRESENTATION THROUGH THE GERAGOS LAW FIRM OF MICHAEL JACKSON. IS THAT IN ANYTHING THAT I HAVE GOTTEN?
MR. CHERNOFF: YOU MEAN — NO, THERE IS NO DECLARATION WHERE DR. MURRAY IS SAYING THAT HE BELIEVES THAT MR. GOURJIAN HAS A CONFLICT OF INTEREST.
THE COURT: NO, NO. I DON’T MEAN THAT HE HAS A CONFLICT.
MR. CHERNOFF: I REALLY DON’T THINK THAT UNTIL THIS KIND OF CAME TO A HEAD THAT DR. MURRAY EVEN KNEW THAT MR. GOURJIAN WAS IN THE LAW FIRM THAT AT SOME POINT REPRESENTED MICHAEL JACKSON.
THE COURT: WHICH IS WHY THIS IS AN IMPORTANT .
MR. CHERNOFF: BUT WHEN HE FOUND OUT AND WE INTERVIEWED MR. GOURJIAN, HE WAS EXPLAINED THAT INFORMATION. HE SIGNED A WAIVER OF HIS OWN ISSUES, CONFLICT ISSUES, AND WE CAN PROVIDE THAT AND WE CAN CERTAINLY ADDRESS THAT IN ANOTHER DECLARATION. THAT IS NOT A PROBLEM.
THE COURT: THEN DO IT. IT SHOULD BE AN UPDATED DECLARATION. THE BOTTOM LINE IS, AS I INDICATED THE LAST TIME, THE DUTY OF LOYALTY TO A CLIENT IS ONE OF THE PARAMOUNT INTERESTS OF COUNSEL. AND IN MUCH THE SAME WAY THAT THE ESTATE OF MICHAEL JACKSON MAY BE CONCERNED THAT A LAWYER WHO MAY HAVE BEEN INVOLVED, AND I DON’T KNOW, MAY HAVE BEEN INVOLVED IN REPRESENTING THAT ESTATE IS NOW REPRESENTING THE INTERESTS OF AN INDIVIDUAL WHO IS CHARGED WITH A HOMICIDE OF THAT PARTICULAR INDIVIDUAL, DR. MURRAY SHOULD KNOW THAT SOMEONE MIGHT FEEL UNCOMFORTABLE IN BEING REPRESENTED BY A LAWYER WHO REPRESENTED THE DECEDENT. THAT THE DUTY OF LOYALTY MAY BE COMPROMISED OR CONFLICTED. THAT IS THE WHOLE ISSUE. SO IF THE DEFENSE TEAM AND MR. GOURJIAN CAN FILE THE APPROPRIATE DOCUMENTATION WITH THE COURT BY — DO WE WORK ON WEEKENDS?
MR. MACIAS: I DO.
THE COURT: COUNT FIVE DAYS.
MR. MACIAS: TWICE ON SUNDAY, TOO. SO LET’S SAY WEDNESDAY, YOUR HONOR.
THE COURT: WEDNESDAY, THE 2ND OF MARCH.
MR. MACIAS: CORRECT. THEN WHAT IS THE PROCESS?
THE COURT: THE QUESTION IS I WANT TO BE ABLE TO ASK OTHER COUNSEL WHEN YOU HAVE A CHANCE TO REVIEW IT. WHEN DO YOU THINK YOU WOULD BE IN A POSITION TO COME TO COURT AND CHAT?
MR. GERAGOS: I’M OUT OF STATE ON THE 7TH AND 8TH. I’M BACK ON THE 9TH.
MR. WEITZMAN: I ACTUALLY WOULD VOLUNTEER BOTH OF US EARLIER. I’M A SPEED READER, PRETTY QUICK. IF YOU GET IT TO ME THE 2ND, WE COULD BE HERE THE 3RD OR 4TH.
MR. GERAGOS: WHICH IS GOOD FOR ME. I COULD DO EITHER.
THE COURT: THAT IS FINE. IT SEEMS TO ME AS THOUGH I SHOULD BE SPEAKING SEPARATELY TO MR. WEITZMAN AND MR. GERAGOS. SO, OKAY, ANY DOCUMENTATION DUE BY 12:00 NOON, PLEASE, ON THE 2ND OF MARCH 2011.
MR. MACIAS: OKAY.
THE COURT: THAT WOULD INCLUDE ANY DECLARATIONS FROM MR. GOURJIAN AND DR. MURRAY.
MR. MACIAS: OKAY.
THE COURT: AND WE WILL SET THIS MATTER FOR THE APPEARANCES OF COUNSEL, MESSRS. GERAGOS AND WEITZMAN, DID YOU SAY THE 3RD?
MR. GERAGOS: THE 3RD IS GOOD FOR ME.
MR. WEITZMAN: GOOD FOR ME AS WELL, YOUR HONOR.
THE COURT: CAN I ASK YOU TO COME AT 8:30 OR 9:00 IN THE MORNING, OR IF YOU WOULD LIKE TO COME AT 1:00 OR 1:30.
MR. WEITZMAN: I PREFER 1:00 OR 1:30.
MR. GERAGOS: ONE O’CLOCK.
MR. MACIAS: 1:30 IS FINE FOR MYSELF.
THE COURT: 1:30?
MR. MACIAS: YES.
MR. GERAGOS: IF WE ARE GOING TO BE HERE TO SEE YOU EX PARTE, WHY DON’T WE DO IT AT ONE O’CLOCK.
THE COURT: THAT IS FINE. FURTHER PROCEEDINGS EX PARTE IN CAMERA, AND THAT MEANS TO EVERYBODY ELSE CONFIDENTIAL IN CHAMBERS, NOT A MATTER OF PUBLIC ATTRIBUTION OR RECOGNITION. ONE O’CLOCK ON THE 3RD OF MARCH 2011.
MR. FLANAGAN: YOU DON’T NEED US?
THE COURT: I DON’T. IF SOMETHING ELSE COMES UP, WE WILL HAVE TO ADDRESS IT AFTER THAT. BUT THAT IS WHY IT IS IMPORTANT THAT ANY DECLARATIONS FILED BE FULL AND THOROUGH DECLARATIONS AND BE SERVED ON COUNSEL SO COUNSEL HAVE THOSE.
MR. MACIAS: CAN IT BE SERVED BY E-MAIL? IS THAT FINE?
MR. WEITZMAN: FINE WITH ME.
MR. GERAGOS: FINE.
THE COURT: MR. WEITZMAN AND MR. GERAGOS?
MR. GERAGOS: YES, YOUR HONOR. THAT IS FINE.
MR. WEITZMAN: YES.
THE COURT: FOR THE COURT, BRING IT OVER HERE PERSONALLY. WE DON’T DO E-MAILS. GENTLEMEN, CAN OTHER COUNSEL BE EXCUSED?
MR. GERAGOS: THANK YOU, YOUR HONOR.
MR. MACIAS: THANK YOU.
MR. WEITZMAN: THANK YOU.
THE COURT: I KNOW THAT YOU HEARD ABOUT THIS AT THE LAST MINUTE, SO I WANT TO THANK COUNSEL FOR ADJUSTING YOUR SCHEDULES TO GET HERE.
MR. WEITZMAN: NOT A PROBLEM.
THE COURT: THANK YOU VERY MUCH.
(GERAGOS, MACIAS, AND WEITZMAN THEN EXITED THE COURTROOM.)
THE COURT: ALL RIGHT. MS. BRAZIL, DO YOU WANT TO EXCUSE YOURSELF —
MS. BRAZIL: I DO.
THE COURT: — SO YOU CAN GET THE MATERIALS. WE ARE HERE FOR DISCOVERY ISSUE.
MS. BRAZIL: YES, WE ARE.
THE COURT: MR. CHERNOFF, AND MR. FLANAGAN, AND MR. GOURJIAN, IS IT OKAY IF WE TAKE A BREAK SO MS. BRAZIL CAN GET HER MATERIALS?
MR. CHERNOFF: ABSOLUTELY.
THE COURT: LET ME KNOW. SHORT RECESS.
(RECESS.)
THE COURT: ON DR. MURRAY’S CASE, MS. BRAZIL, MR. CHERNOFF, MR. FLANAGAN, AND MR. GOURJIAN ARE PRESENT. GOOD AFTERNOON. MS. BRAZIL?
MS. BRAZIL: THANK YOU, YOUR HONOR, FOR THE OPPORTUNITY TO RETRIEVE THE DISCOVERY THAT MR. FLANAGAN LEFT WITH A CLERICAL PERSONNEL AT OUR OFFICE. AS I EXPLAINED TO THE COURT PREVIOUSLY, THERE WAS SOME MISUNDERSTANDING AND I WAS NOT NOTIFIED, NOR WAS MR. WALGREN, THAT THIS DISCOVERY HAD BEEN DROPPED OFF AT OUR OFFICE. SO I APOLOGIZE FOR THE DELAY. YOUR HONOR, I HAVE NOT HAD AN OPPORTUNITY TO FULLY GO THROUGH THIS DISCOVERY. I TOOK A CURSORY GLANCE AT IT, AND THE WITNESS LIST THAT THE DEFENSE PROVIDED TO THE PEOPLE CONTAINS 91 WITNESSES. I HAVE REVIEWED THAT WITNESS LIST, AND I ASKED MR. CHERNOFF IF THE DISCOVERY THAT HAS BEEN PROVIDED ON BEHALF OF DR. MURRAY INDEED REFLECTS WHAT THE CODE REQUIRES IN TERMS OF THE WITNESS STATEMENTS, NOTES, ET CETERA, WITH RESPECT TO THESE 91 POTENTIAL WITNESSES. MR. CHERNOFF ADVISED ME THAT THERE ARE NO STATEMENTS CONTAINED IN THE DISCOVERY THAT I HAVE HERE. YOUR HONOR, IT IS THE PEOPLE’S POSITION THAT UNTIL AND UNLESS THE DEFENSE COMPLIES WITH THEIR DISCOVERY OBLIGATIONS PURSUANT TO PENAL CODE SECTION 1054.3, THE DEFENSE CANNOT POSSIBLY DECLARE THEMSELVES READY. THE PEOPLE HAVE RESPONDED WITH DISCOVERY PURSUANT TO OUR OBLIGATIONS. I HAVE THE ADDITIONAL DISCOVERY FROM THE LATENT PRINT INVESTIGATION LAB THAT THE COURT ORDERED. I CAME INTO POSSESSION OF IT TODAY. IT IS A CD CONTAINING THE LATENT PRINTS FILE, AS THE COURT ORDERED. I’M PREPARED TO PROVIDE THAT TO THE DEFENSE. I HAVEN’T LOOKED AT IT. AS THE COURT ORDERED, THE PEOPLE HAVE A COPY OF THE SAME CD. THERE IS ADDITIONAL PRINT EVIDENCE THAT IS STILL OUTSTANDING, AND THAT WILL BE THE PRINT COMPARISONS THAT WE ADVISED THE COURT AND COUNSEL ABOUT IN OUR LAST COURT DATE. I VERIFIED THAT THAT EXAMINATION HAS NOT BEEN COMPLETED. THE EXPECTED COMPLETION DATE FOR THAT REPORT IS A WEEK FROM TODAY. BUT SIGNIFICANTLY, YOUR HONOR, ABSENT COMPLIANCE WITH DISCOVERY, WE ARE IN A SITUATION WHERE AS A ZERO OF 30 DATE AS A PRACTICAL MATTER, THERE ARE MANY UNKNOWNS THAT CAN’T POSSIBLY BE ADDRESSED BY THE PEOPLE, OR THE COURT, OR EVEN DEFENSE COUNSEL WITH RESPECT TO OUTSTANDING SCIENTIFIC EVIDENCE REGARDING THE FINGERPRINTS. FOR EXAMPLE, YOUR HONOR, WE ANTICIPATE, BASED ON THE REVIEW OF THE 91 WITNESSES ON THE PROPOSED DEFENSE WITNESS LIST, THAT THERE WILL BE NUMEROUS 402 MOTIONS. FURTHERMORE —
THE COURT: THESE ARE EVIDENTIARY MOTIONS REGARDING ADMISSIBILITY AND WEIGHT.
MS. BRAZIL: THAT’S CORRECT, YOUR HONOR. AND I EXPECT THE DEFENSE WILL HAVE 402 MOTIONS AS WELL. AS A PRACTICAL MATTER, TO EXPECT THAT THE COURT CAN GIVE A MEANINGFUL ESTIMATE TO ANY PROSPECTIVE JURORS REGARDING THE TIME OF THE TRIAL, IT IS JUST NOT POSSIBLE WHEN, BY MY CALCULATIONS, BETWEEN THE PEOPLE AND THE DEFENSE THERE IS 193 POTENTIAL WITNESSES AT THIS POINT. WITHOUT THE ABILITY TO REVIEW EXPECTED TESTIMONY OR AN OFFER OF PROOF FROM THE 91 WITNESSES ON THE DEFENSE WITNESS LIST, IT IS IMPOSSIBLE FOR THE PEOPLE TO RESPOND TO EVIDENTIARY CONCERNS THAT ARE GOING TO BE RAISED BY THESE POTENTIAL WITNESSES. I WOULD LIKE TO GO THROUGH THIS DISCOVERY TODAY SO THAT THE COURT KNOWS EXACTLY WHERE WE STAND IN TERMS OF OUTSTANDING DISCOVERY ISSUES. IF MR. CHERNOFF’S INFORMATION TO ME IS ACCURATE THAT THIS STACK OF DISCOVERY DOES NOT CONTAIN ANY WITNESS STATEMENTS, CLEARLY WE HAVE A PROBLEM. LOOKING THROUGH THE STACK THAT I’VE BEEN PROVIDED, I HAVE A MULTI-PAGE, AN 86-PAGE C.V. FOR A PARTICULAR POTENTIAL EXPERT WITNESS THAT IS ON THE WITNESS LIST. AND THEN THE MAJORITY OF THE OTHER DOCUMENTS THAT ARE INCLUDED IN THIS POTENTIAL DISCOVERY PROVIDED BY THE DEFENSE ALL APPEAR TO ME, AT LEAST THE STACK THAT I’M HOLDING UP FOR THE COURT WHICH IS APPROXIMATELY FOUR INCHES, THESE ARE ALL DECLARATIONS BY OTHER LAW FIRMS OR COPIES OF SUPERIOR COURT DOCUMENTS, CIVIL MATTERS. THERE IS ALSO COPIES OF CREDITORS’ CLAIMS AND DEPOSITIONS — DISPOSITIONS, RATHER — OF CLAIMS. THERE IS THREE PHOTOGRAPHS. THERE IS A PAGE THAT HAS 12 NAMES AND ADDRESSES WITH WHAT APPEAR TO BE BRIEF STATEMENTS FROM PARTICULAR INDIVIDUALS THAT ARE ON THE WITNESS LIST.THERE IS SOME HANDWRITTEN NOTES, AND ANOTHER C.V., CURRICULUM VITAE, FOR A POTENTIAL PRESUMABLY EXPERT THAT IS CONTAINED ON THE DEFENSE WITNESS LIST. BUT, YOUR HONOR, CLEARLY THE OBLIGATIONS UNDER 1054.3, AS IT RELATES TO THE 91 WITNESS NAMES ON THE DEFENSE WITNESS LIST, IS NOT REPRESENTED OR CONTAINED IN THE DISCOVERY THAT I HAVE RECEIVED TODAY. IT IS THE PEOPLE’S POSITION THAT THE COURT HAS THE AUTHORITY UNDER 1054.5 TO UNDERTAKE VARIOUS REMEDIES TO ADDRESS THE SITUATION.
THE COURT: INCLUDING?
MS. BRAZIL: INCLUDING A GOOD CAUSE CONTINUANCE, EXCLUSION OF POTENTIAL WITNESS TESTIMONY ABSENT COMPLIANCE. I MEAN, THE COURT IS AWARE THAT RECIPROCAL DISCOVERY PROMULGATED THROUGH PROP. 115 BY THE VOTERS IS TO AVOID SURPRISE ON EITHER SIDE. IT APPLIES EQUALLY TO THE PEOPLE AND TO THE DEFENSE. THE PURPOSE BEING THE TRIAL CAN BE CONDUCTED IN AN ORDERLY FASHION WITH NO SURPRISES FOR EITHER SIDE. AND, OF COURSE, THERE ARE TIMES WHERE EITHER SIDE, EITHER PARTY, MAY COME INTO INFORMATION ONGOING AT THE TIME OF TRIAL, BUT WE ARE NOT IN THAT SITUATION WHEN I’M IN POSSESSION OF A WITNESS LIST THAT CONTAINS 91 NAMES AND I DON’T HAVE PROPOSED WITNESS STATEMENTS AS REQUIRED BY THE CODE FOR THESE WITNESSES. THE RESULT OF THAT, AS THE COURT KNOWS, THE CODE AUTHORIZES THE COURT TO INTERRUPT THE TRIAL, GRANT A GOOD CAUSE CONTINUANCE OR A DELAY SO THAT THE PEOPLE CAN CONDUCT THE PROPER RESEARCH TO BE PREPARED TO EXAMINE A WITNESS WITHOUT UNFAIR SURPRISE. AS THE COURT HAS MADE ABUNDANTLY CLEAR, AND THE PEOPLE AGREE, WE DO NOT WANT TO WASTE JURORS’ TIME. WE WANT TO HAVE AN EFFICIENT TRIAL. AND IT SEEMS TO ME AND MY COLLEAGUE THAT IT IS JUST NOT PRACTICAL TO GO FORWARD AS A ZERO OF 30 DATE TODAY WHEN THERE IS SO MANY UNKNOWNS AND OUTSTANDING ISSUES; PRINCIPALLY, DISCOVERY.
THE COURT: OKAY. THANK YOU. MR. CHERNOFF? MR. FLANAGAN?
MR. FLANAGAN: YOUR HONOR, WE HAVE PROVIDED THE PROSECUTION WITH THE C.V. OF THE THREE EXPERT WITNESSES THAT WE HAVE RETAINED: DR. PAUL WHITE, DR. RICHARD HARASZTI, AND DR. JONES. WE DON’T HAVE STATEMENTS OR REPORTS FROM THESE INDIVIDUALS, AND WE DO NOT PLAN TO REQUEST THAT THEY PROVIDE US WITH REPORTS. ABOUT HALF THE WITNESSES NAMED IN OUR WITNESS LIST ARE PROSECUTION WITNESSES THAT ARE REFERRED TO IN THE PROSECUTION REPORT, MANY OF WHOM WE HAVE NOT EVEN CONTACTED OR TALKED TO BASED UPON WHAT WE HAVE REVIEWED IN THE PROSECUTION’S DISCOVERY THAT THEY HAVE GIVEN US TO DATE. WE THINK THEY MIGHT PROVIDE RELEVANT TESTIMONY, AND THERE IS NO REPRESENTATION WE ARE GOING TO CALL THESE 91 WITNESSES. I WOULD DOUBT VERY MUCH THAT WE CALL 30. THE NAMES AND ADDRESSES THAT WE HAVE GIVEN HER WITH THE PARTIAL STATEMENTS ARE BASICALLY PATIENTS OF DR. MURRAY THAT ARE POTENTIAL CHARACTER WITNESSES AND CAN TESTIFY TO THEIR OPINION OF HIM.
THE COURT: BUT IS THAT DETAILED? ARE THE PARTICULAR WITNESSES IDENTIFIED AS PAST OR PRESENT PATIENTS OF DR. MURRAY AND WILL TESTIFY TO CERTAIN ISSUES INVOLVING CHARACTER? I MEAN, THAT IS WHAT IS REQUIRED.
MR. CHERNOFF: WE FILED A DISCOVERY MOTION, JUDGE, THAT STATED SPECIFICALLY. NOW, MS. BRAZIL GOT IT TODAY. WE FILED IT, THOUGH, TWO DAYS AGO. IT STATES SPECIFICALLY IN THE DISCOVERY MOTION THAT WE ARE GOING TO PRESENT CHARACTER WITNESSES REGARDING RELEVANT AND PERTINENT CHARACTER TRAITS IN THIS TRIAL, AND WE ARE GOING TO GIVE YOU THE NAMES OF THOSE WITNESSES. PART OF THE DISCOVERY THAT WE PROVIDED TO MS. BRAZIL ARE A LIST OF THOSE WITNESSES. IT STATES UP THERE PATIENTS AND A SUMMARY OF WHAT THEY WILL TESTIFY TO. NOW, WE DIDN’T MAKE STATEMENTS, OR RECORDINGS, OR ANYTHING OF THESE WITNESSES. BUT WE HAVE THEIR ADDRESSES, THEIR NAMES, THE SUMMARY OF THEIR CONTACT WITH DR. MURRAY, AND IT IS IN THE DISCOVERY.
THE COURT: I’M TAKEN ABACK BY THE ISSUE OF THREE EXPERTS WHOM MR. FLANAGAN HAS IDENTIFIED AND HAS SAID YOU DON’T HAVE ANY STATEMENTS OR REPORTS FROM EXPERT WITNESSES.
MR. CHERNOFF: IN THE DISCOVERY IS NOTES OF A CONVERSATION THAT WAS HAD WITH ONE OF THE DOCTORS, DR HARASZTI. IN OUR DISCOVERY ARE NOTES WE HAD WITH ANOTHER EXPERT, DR. JONES. IN THE DISCOVERY IS A SUMMARY BY MR. FLANAGAN OF THE TESTIMONY THAT WOULD BE PROVIDED BY DR. WHITE. DR. WHITE IS NOT A MYSTERY TO THE PROSECUTION. THEY CALLED HIM TWO DAYS AFTER WE HIRED HIM AND TALKED TO HIM, SO THAT IS NOT A SURPRISE TO THEM. BUT THAT IS WHAT WE HAVE AVAILABLE. THAT IS WHAT WE HAVE TO PROVIDE THE PROSECUTION. IF YOU ARE SAYING — IF YOU ARE ORDERING US TO DO CERTAIN THINGS, THEN I NEED TO KNOW THAT.
THE COURT: YES, I AM, BECAUSE THE OBLIGATION IS NOT TO SAY, “WELL, WE ARE NOT GOING TO PROVIDE ANY REPORTS OR RECORDED STATEMENTS. WE ARE NOT GOING TO MEMORIALIZE ANYTHING,” WHEN, IN FACT, YOU HAVE HAD CONVERSATIONS AND DISCUSSIONS AND INTERVIEWS WITH WITNESSES AND YOU HAVE CHOSEN NOT TO HAVE THEM INCORPORATED INTO A FORMAL REPORT, BUT YOU KNOW EXACTLY WHERE THEY ARE GOING. THE PEOPLE ARE ENTITLED TO KNOW WHERE YOU ARE GOING JUST LIKE YOU ARE ENTITLED TO KNOW
WHERE THEY ARE GOING. TO SAY, “WELL, WE ARE NOT GOING TO MEMORIALIZE THIS INFORMATION IN A FORMAL DOCUMENT BECAUSE THAT WOULD THEN REQUIRE US TO TURN OVER THE DOCUMENT,” IS, I THINK, PLAYING FAST AND LOOSE WITH THE CODE.
MR. CHERNOFF: THAT IS NOT WHAT WE ARE SAYING. YOU ARE PRESUMING — FIRST OF ALL, YOU HAVEN’T SEEN THE DISCOVERY SO YOU ARE PRESUMING WHAT SHE HAS DOESN’T TELL HER WHERE WE ARE GOING. YOU ARE WRONG ABOUT THAT.
THE COURT: I CAN’T BE WRONG IF I’M NOT SAYING IT.
MR. CHERNOFF: I JUST WANT TO MAKE SURE WE ARE CLEAR. IT WAS PROVIDED. WHAT WE HAVE WAS PROVIDED. I WENT THROUGH EVERY DOCUMENT IN MY OFFICE, EVERY ONE, EVERYTHING I HAVE TO MAKE SURE THAT I COMPLIED WITH THE SUGGESTION THAT YOU MADE LAST WEEK AND I GOT IT TO HER. MR. FLANAGAN DID THE SAME THING.
THE COURT: TO MS. BRAZIL. LET’S AVOID PRONOUNS.
MR. CHERNOFF: SO OTHER THAN YOU ORDERING US TO DO CERTAIN THINGS IN PREPARATION OF OUR CASE, WHAT MORE CAN WE DO THAN TO COMPLY WITH DISCOVERY.
THE COURT: MS. BRAZIL, I DON’T KNOW IF YOU NEED ADDITIONAL TIME TO REVIEW THE PARTICULAR DOCUMENTATION YOU HAVE BECAUSE THAT SEEMS VERY MUCH AT ODDS WITH WHAT YOU INDICATED.
MS. BRAZIL: THAT IS TRUE. MR. FLANAGAN REPRESENTED TO ME THAT THERE WERE NOT WITNESS STATEMENTS CONTAINED IN THE DISCOVERY THAT I WAS PROVIDED TODAY. MAYBE THE COURT SHOULD INQUIRE. DID I MISUNDERSTAND HIM?
THE COURT: MR. FLANAGAN?
MR. FLANAGAN: THAT IS NOT ABSOLUTELY TRUE.
THE COURT: IS IT PARTIALLY TRULY?
MR. FLANAGAN: THERE ARE NOT —
MR. CHERNOFF: YES.
MR. FLANAGAN: THERE ARE NOT WITNESS STATEMENTS FOR A LOT OF THE NAMES THAT ARE IN THE WITNESS LIST BECAUSE THESE ARE, QUITE FRANKLY, DISCUSSED IN THE POLICE REPORT. WE ARE RELYING UPON POLICE REPORT STATEMENTS. I HAVEN’T RECEIVED ANY STATEMENTS THAT MR. WALGREN TOOK OR THAT MS. BRAZIL TOOK. THEY HAVE AN
INVESTIGATOR, THEY HAVE THE POLICE DEPARTMENT THAT GOES OUT AND HANDS THEM THIS INFORMATION BY STATEMENT. FROM THE DEFENSE SIDE, THIS IS A LITTLE BIT DIFFERENT. WHEN WE DECIDE WE ARE GOING TO CALL A WITNESS, WE ARE LOOKING AT WHAT THE PROSECUTION WITNESSES ARE. MOST OF THOSE WITNESSES ARE WITNESSES FOR THE PROSECUTION OR HAVE SOMEHOW DONE SOME INVESTIGATION FOR THE PROSECUTION. WE HAVE GOT SOME CHARACTER WITNESSES ON FOR DR. MURRAY THAT WE HAVEN’T TAKEN ANY FORMAL STATEMENTS OR RECORDINGS AND DON’T PLAN TO.
THE COURT: SO YOU ARE GOING TO CALL THE WITNESSES WITHOUT REALLY KNOWING FROM THEIR OWN MOUTHS WHAT THEY INTEND TO SAY?
MR. FLANAGAN: WELL, I WOULD TALK TO THE WITNESS BEFORE I PUT HIM ON THE STAND, SEE WHAT THEY ARE GOING TO SAY.
THE COURT: LITERALLY RIGHT BEFORE THE WITNESS IS GOING TO TAKE THE STAND?
MR. FLANAGAN: MAYBE EVEN A WEEK OR SO, BUT I CAN REMEMBER WHAT THE WITNESS TELLS ME. I DON’T WRITE IT DOWN. I DON’T TAKE NOTES WHEN I’M TALKING TO WITNESSES. I REALLY INTERVIEW THE WITNESS, AND I REMEMBER WHAT THEY SAY. AND I DECIDE AFTER TALKING WITH A LOT OF WITNESSES WHICH ONES I WANT TO USE. AS FAR AS THE MEDICAL WITNESSES IN THIS CASE, DR. WHITE, I’VE PUT IN THE COVER LETTER HE TOLD ME THAT HE THOUGHT MICHAEL JACKSON WAS ADDICTED TO DEMEROL. SAID ADDICTION WAS A CAUSATIVE FACTOR IN HIS INSOMNIA. ON JUNE 25, MICHAEL JACKSON WAS EXPERIENCING WITHDRAWAL SYMPTOMS FROM NOT HAVING DEMEROL SINCE JUNE 22ND. AND HE ALSO SAID DR. MURRAY WAS NOT A CAUSE OF MICHAEL’S DEATH. THIS IS WHAT HE TOLD ME AS A RESULT OF THE DOCUMENTS THAT I GAVE HIM TO REVIEW AND I ITEMIZED. IT IS ALL ITEMIZED,
THE DOCUMENTS THAT DR. WHITE HAS REVIEWED. DAVE WALGREN HAS TALKED TO DR. WHITE ON AT LEAST TWO OCCASIONS. THIS IS NOT A MYSTERY WITNESS. THIS GUY IS THE FOREMOST PROPOFOL EXPERT IN THE WORLD, AND MR. WALGREN KNOWS THAT. WE DON’T HAVE A REPORT. WE ARE NOT ASKING DR. WHITE FOR A REPORT, BUT WE WILL INTERVIEW HIM BEFORE WE PUT HIM ON THE STAND TO SEE WHAT HE HAS TO SAY AND I WILL MAKE NOTES.
THE COURT: THAT ABSOLUTELY UNDERMINES THE INTENT OF PENAL CODE SECTION 1054.3 AND THE CLEAR LEGISLATIVE AND PUBLIC POLICY OF THIS STATE TO AVOID SURPRISES.
MR. FLANAGAN: 1054.3 DOES NOT SAY THAT I HAVE TO TAKE A STATEMENT OF A WITNESS BEFORE I PUT HIM ON THE STAND. I DON’T THINK I’VE, IN THE LAST TEN YEARS, PUT A WITNESS ON THE STAND THAT I HAD A STATEMENT FROM. I DON’T TAKE STATEMENTS. I INTERVIEW THEM. I REMEMBER WHAT THEY SAY. I’VE GIVEN MR. WALGREN AND MS. BRAZIL DR. WHITE’S PHONE NUMBER. HE IS PERFECTLY WILLING TO TALK TO THEM. HE HAS TALKED TO THEM. I’VE PROVIDED THE PHONE NUMBERS OF DR. JONES. I’VE PROVIDED PHONE NUMBERS FOR DR. HARASZTI. AND, FRANKLY, THEY WOULDN’T BE IN A POSITION TO PREPARE A FORMAL STATEMENT AT THE PRESENT TIME BECAUSE THEY ARE STILL INVESTIGATING THE FACTS OF THE CASE. I GAVE DR. WHITE A STACK OF PAGES, PROBABLY SEVEN OR EIGHT HUNDRED PAGES, AND HE HAS REVIEWED MOST OF IT AND HE HAS GIVEN ME PRELIMINARY INDICATIONS WHICH I HAVE PUT IN MY INDEX OF THE DISCOVERY THAT I’VE GIVEN TO THE PEOPLE. BUT I’M NOT GOING TO HAVE DR. WHITE PREPARE A FORMAL REPORT OF HIS FINDINGS OR CONCLUSIONS. I’M GOING TO HAVE HIM TELL ME. IF THE PROSECUTION WANTS TO INTERVIEW HIM, HE WILL TELL THEM ALSO.
THE COURT: WHEN IS THIS ALL GOING TO HAPPEN?
MR. FLANAGAN: HE WILL TALK TO THEM.
THE COURT: WHEN IS HE GOING TO TELL YOU?
MR. FLANAGAN: HE IS GOING TO BASICALLY TELL ME AND TELL THEM WHAT I HAVE PUT IN THE DISCOVERY, MY NOTICE OF COMPLIANCE WITH DISCOVERY. I JUST READ FOUR BASIC FACTORS. NOW, HE HAS A BUNCH OF STUFF TO BACK THAT UP.
THE COURT: SO DR. WHITE IS GONG TO TAKE THE STAND, AND YOU EXPECT HE WILL TESTIFY JUST FROM MEMORY AND NOT HAVE ANY WRITTEN INFORMATION UPON WHICH HE IS OFFERING HIS OPINIONS?
MR. FLANAGAN: IF HE HAS WRITTEN INFORMATION THAT HE IS GOING ON, WHEN HE PROVIDES IT TO US, WE WILL PROVIDE IT TO THEM. BUT I DON’T THINK HE NEEDS TO WRITE A REPORT. THERE IS NOTHING IN THE 1054.3 THAT SAYS WE HAVE TO TAKE STATEMENTS, EITHER WRITTEN, RECORDED OR OTHERWISE. THE DEFENSE OPERATES A LITTLE BIT DIFFERENT THAN THE PROSECUTION. THE PROSECUTION, IF THEY WANT SOME INFORMATION, THEY TELL A POLICE OFFICER TO GO OUT, INTERVIEW, WRITE A STATEMENT FROM THIS PERSON. WE DON’T HAVE THAT LUXURY. WE DON’T HAVE LAPD OR THE SHERIFFS WORKING FOR US. WE HAVE BEEN DOING IT OURSELVES. IF I WANT TO FIND OUT WHAT A WITNESS CAN TESTIFY TO, I CALL HIM UP ON THE PHONE AND ASK HIM. I JUST TALKED TO A DOCTOR IN CHICAGO TODAY TO WHAT HE THOUGHT ABOUT CERTAIN ISSUES. I DIDN’T MAKE ANY NOTE OF IT. I REMEMBER WHAT HE SAID, AND I’M GOING TO GIVE THEM THE NAME AND ADDRESS AND THEY CAN DO THAT ALSO. DOES THE COURT THINK WE HAVE AN OBLIGATION FOR EVERY WITNESS WE PUT ON TO GO GET A FORMAL STATEMENT, AND SHOULD IT BE RECORDED OR WRITTEN IN THEIR HANDWRITING OR MY HANDWRITING?
COURT: WE WILL FIND OUT MORE CLEARLY ABOUT THIS BECAUSE THE COURTS HAVE BEEN INTERPRETING THE COURSE AND SCOPE OF THE MUTUAL DISCOVERY OBLIGATIONS SO THAT WE DON’T HAVE LAST MINUTE SURPRISES. WE DON’T HAVE WITNESSES WHO TAKE THE WITNESS STAND, AND WE DON’T KNOW EXACTLY WHAT THEY ARE GOING TO SAY AND THE OPPOSING SIDE HASN’T HAD THAT OPPORTUNITY. YOUR THOUGHTS, MS. BRAZIL?
MS. BRAZIL: YOUR HONOR, THIS IS A CLEAR ATTEMPT TO THWART THE OBLIGATIONS OF THE DEFENSE PURSUANT TO DISCOVERY. FOR MR. FLANAGAN TO STATE THAT HE IS GOING TO MAYBE INTERVIEW AN EXPERT WITNESS WHO IS GOING TO BE TESTIFYING TO VERY TECHNICAL AND COMPLICATED ISSUES DURING THIS TRIAL SEEMS TO COMPLETELY THWART THE INTENT OF RECIPROCAL DISCOVERY. THAT IS PRECISELY WHY THE PROSPECTIVE TESTIMONY OF AN EXPERT WITNESS SUCH AS DR. WHITE IS NECESSARY. FOR EXAMPLE, MR. FLANAGAN READ OFF PERHAPS A VARIETY OF OPINIONS THAT DR. WHITE MAY DISCUSS DURING HIS TESTIMONY, BUT THERE IS ABSOLUTELY NO EVIDENCE THAT MR. JACKSON DIED IN ANY WAY CAUSALLY CONNECTED TO DEMEROL. THERE WAS NO DEMEROL FOUND IN HIS BODY. THE EXPERTS HAVE NOT OPINED THAT DEMEROL WAS ANY TYPE OF CAUSE OF DEATH. THOSE ARE ISSUES THAT WILL BE LITIGATED IN 402 MOTIONS. AND WITHOUT A PROPER REPORT OR A STATEMENT FROM A WITNESS, THE 402 MOTIONS CANNOT BE EFFECTIVELY LITIGATED. THE COURT IS WELL AWARE THAT CASES HAVE CONSTRUED THE 1054 OBLIGATIONS ON BOTH SIDES TO INCLUDE REPORTS OF ORAL STATEMENTS. SO IF WITNESSES OR POTENTIAL WITNESSES FOR THE DEFENSE HAVE PROVIDED ORAL STATEMENTS TO MR. FLANAGAN, THOSE ARE DISCOVERABLE UNDER 1054. THE COURT HAS THE AUTHORITY TO REQUIRE AN ATTORNEY TO REDUCE THOSE TO WRITING AND PROVIDE THEM TO OPPOSING COUNSEL.
MR. FLANAGAN: YOUR HONOR —
MS. BRAZIL: I’M SORRY. I’M NOT FINISHED. EXACTLY AS I STATED IN MY OPENING REMARKS TO YOU, YOUR HONOR, WE ARE IN A SITUATION THAT IS ENTIRELY AVOIDABLE. AT THIS POINT IN TIME, THE PEOPLE WOULD ASK THE COURT TO VACATE THE JURY TRIAL DATE SO THAT VERY IMPORTANT DISCOVERY ISSUES CAN BE RESOLVED ACCORDING TO THE PROVISIONS OF PENAL CODE SECTION 1054 AND THE OBLIGATIONS THAT ARE PLACED ON BOTH THE PEOPLE AND THE DEFENSE. FOR MR. FLANAGAN TO STATE THAT THE PEOPLE HAVE TREMENDOUS RESOURCES AND IF WE WANT AN INTERVIEW WE SIMPLY SEND OUT A POLICE OFFICER, THAT IS NOT WHAT WE ARE TALKING ABOUT WITH THE POTENTIAL CHARACTER WITNESSES OR THE EXPERT WITNESSES THAT WE ARE FOCUSING ON THAT ARE THE SUBJECT OF DEFENSE DISCOVERY. WE ARE IN A SITUATION, WE BEING THE PEOPLE, WHERE WE HAVE A PROSPECTIVE WITNESS LIST FROM THE DEFENSE OF 91 WITNESSES. AND CONTRARY TO MR. FLANAGAN’S REPRESENTATIONS THAT “HALF OF THOSE WITNESSES ARE PEOPLE’S WITNESSES,” THAT IS NOT ACCURATE, YOUR HONOR. I HAVE PERSONALLY GONE THROUGH EVERY NAME ON THAT LIST, AND MOST OF THEM ARE NOT PEOPLE’S WITNESSES. WE HAVE PROVIDED THE DEFENSE WITH OUR OBLIGATION UNDER 1054. THEY HAVE RECEIVED OVER SEVEN THOUSAND PAGES OF DISCOVERY. EVERY SINGLE WITNESS ON THE PEOPLE’S WITNESS LIST OF 106 WITNESSES, THEIR STATEMENTS ARE COVERED IN THE DISCOVERY THAT THE DEFENSE HAS HAD FOR MANY MONTHS, WITH THE EXCEPTION OF THE PRINT EVIDENCE THAT I MENTIONED EARLIER. MR. WALGREN PROVIDED THE DEFENSE JUST LAST WEEK WITH HIS HANDWRITTEN NOTES ON A PARTICULAR WITNESS. SO MR. FLANAGAN IS INCORRECT WHEN HE SAYS THAT WHEN THE PEOPLE TAKE NOTES OF WITNESS INTERVIEWS, THOSE INTERVIEW NOTES HAVE NOT BEEN PROVIDED. THAT IS INACCURATE. THE DEFENSE HAS IN ITS POSSESSION ALL OF THE DISCOVERY, BATES STAMPED AND SIGNED FOR, THAT THE PEOPLE HAVE IN THEIR POSSESSION. THE SAME CANNOT BE TRUE, IS NOT TRUE, OF THE DEFENSE AND THEIR OBLIGATION. IT HAS NOT BEEN FULFILLED, YOUR HONOR. THE DEFENSE CANNOT BE READY FOR TRIAL. FOR THEM TO STATE THAT THEY ARE READY FOR TRIAL DISINGENUOUSLY REPRESENTS THE STATE OF THE CASE.
THE COURT: MR. FLANAGAN?
MR. FLANAGAN: I GO TO TRIAL AGAINST THE PROSECUTION ON A REGULAR BASIS, AND YOU KNOW WHAT THE NATURE OF A LOT OF MY TRIALS ARE. I HAVE NEVER SEEN A PROSECUTION EXPERT WITNESS, LIKE IN A BLOOD ALCOHOL CASE, PROVIDE ME WITH A WRITTEN STATEMENT OF WHAT THEY ARE GOING TO TESTIFY TO. THIS IS A UNIQUE SITUATION. THE PEOPLE WANT US TO WRITE IN EXPERT WITNESSES AND TELL THEM WHAT THEY ARE GOING TESTIFY TO IN ADVANCE. THEY HAVE THE OPPORTUNITY TO TALK TO THEM IN ADVANCE. IT IS VERY DIFFICULT FOR ME TO TALK TO THE PROSECUTION WITNESSES IN ADVANCE. THEY USUALLY WON’T TALK TO ME. THEY WILL REFER ME TO THE D.A. WE HAVE SPECIFICALLY INSTRUCTED OUR WITNESSES WE ARE GOING TO GIVE THEIR NAMES, ADDRESSES, PHONE NUMBERS. THEY CAN TALK TO THEM. IF THEY PUT A BLOOD ALCOHOL EXPERT ON THE STAND, DO YOU THINK THAT I’M GOING TO HAVE A WRITTEN REPORT OF THAT EXPERT BEFORE HE TESTIFIES? DOESN’T HAPPEN. NEVER HAPPENS.
THE COURT: WELL, IT IS GOING TO HAPPEN IN THIS CASE BECAUSE WE ARE NOT TALKING ABOUT BLOOD ALCOHOL LEVELS IN A DRIVING UNDER THE INFLUENCE CASE. WE ARE TALKING ABOUT VERY SIGNIFICANT ISSUES REGARDING COMPLICATED FORENSIC EVIDENCE IN A HOMICIDE CASE. AND IN MUCH THE SAME WAY THAT THE DEFENSE IS ENTITLED TO THOROUGH REPORTS, THE PEOPLE ARE ENTITLED TO THOROUGH REPORTS AND THERE IS AN OBLIGATION BY THE DEFENSE TO MEMORIALIZE VERBAL CONVERSATIONS THAT YOU HAVE HAD. YOU MAY HAVE AN EXCELLENT MEMORY, MR. FLANAGAN, AND I COMMEND YOU FOR IT, BUT WE DON’T DO TRIALS BASED UPON MEMORY. WE DO TRIALS BASED UPON STATEMENTS OF WITNESSES, AND THAT IS AN OBLIGATION TO MEMORIALIZE THEM, WHETHER YOU TACTICALLY OR STRATEGICALLY DECIDE YOU WANT TO OR NOT. I’M NOT GOING TO GET IN A SITUATION WHERE, 30 DAYS BEFORE WE ARE BRINGING IN THREE HUNDRED PROSPECTIVE JURORS, THE PARTIES DON’T HAVE A FULL UNDERSTANDING OF THE ANTICIPATED TESTIMONY OF WITNESSES AND SPECIFIC EVIDENTIARY MATTERS HAVE NOT BEEN RESOLVED BY THIS COURT; NAMELY, THE EXTENT OF TESTIMONY, WHETHER WITNESSES ARE GOING TO BE ALLOWED TO TESTIFY TO CERTAIN SUBJECT AREAS OR NOT. THIS IS EXACTLY WHAT 1054 IS DESIGNED TO AVOID, AND IT IS THE COURSE WHERE IT IS A RECIPE FOR DISASTER. I WILL NOT DEAL WITH IT.
MR. FLANAGAN: IS IT YOUR POSITION YOU ARE IMPOSING UPON US THE OBLIGATION TO PROVIDE A WRITTEN REPORT OF EACH WITNESS BEFORE WE PUT THEM ON THE STAND?
THE COURT: I AM IMPOSING UPON THE PARTIES THE OBLIGATION TO MEMORIALIZE VERBAL STATEMENTS THAT HAVE BEEN MADE TO COUNSEL.
MR. FLANAGAN: THAT IS NOT SET FORTH IN THE CODE.
THE COURT: THAT IS WHAT THE CASES HAVE INDICATED SINCE THEN, AND YOU CAN ADDRESS IT IN TERMS OF ANY MODIFICATION OF THIS. BUT I’M NOT GOING TO GET IN A SITUATION WHERE YOU ARE CALLING AN EXTRAORDINARILY IMPORTANT FORENSIC EXPERT AND THERE IS NO REPORT. YOU MAY OR MAY NOT HAVE TALKED TO THE PERSON. YOU MAY BE PUTTING THE PERSON ON HOLD, OR YOU ARE JUST GOING TO SEE HOW THINGS GO, AND THEN THE PEOPLE SAY, “WELL, WAIT A MINUTE. THERE IS ALL THIS INFORMATION OUT THERE. WE WANT A CONTINUANCE.” JUST THE SAME WAY THAT YOU WOULD BE OBJECTING IF THE PEOPLE PUT ON SUCH A WITNESS AT THAT POINT.
MR. FLANAGAN: SPECIFICALLY, WITH DR. WHITE, YOU SEE, HE IS PROBABLY THE MOST IMPORTANT WITNESS IN THIS CASE THAT WE HAVE. WE HAVE PROVIDED THEM WITH AN EXTENSIVE C.V. I THINK IT IS THE 80-PAGE C.V. SHE IS TALKING ABOUT. I ALSO PROVIDED UNDER ITEM NO. 1 WHAT INFORMATION WE GAVE DR. WHITE. I’VE ITEMIZED ALL OF THE
INFORMATION. I’VE THEN STATED WHAT MY RECOLLECTION IS, MY CONCLUSIONS ARE, AS TO WHAT PRIMARY THINGS HE WILL BE TESTIFYING ABOUT. IN ADDITION TO DEMEROL, IT IS GOING TO BE VERY RELEVANT IN THIS CASE.
THE COURT: THAT MAY VERY WELL BE A SUBJECT OF A 402 HEARING. I’M JUST FINDING IT VERY DIFFICULT TO BELIEVE THAT A RENOWNED FORENSIC EXPERT IN ANY SUBJECT IS GOING TO TAKE THE STAND WITHOUT HAVING DOCUMENTATION IN FRONT OF HIM OR HER OF THE BASIS FOR ANY SUCH TESTIMONY.
MR. FLANAGAN: HE HAS GOT ALL THE DOCUMENTATION. I HAVE ITEMIZED IT, AND I’VE GIVEN IT TO HIM. BASICALLY GIVEN HIM TRANSCRIPTS OF RUFFALO, AND ROGERS, AND FLEAK, AND LINTEMOOT, WHO TESTIFIED IN THIS CASE. I’VE GIVEN HIM THE AUTOPSY REPORT TO REVIEW, TOXICOLOGY.
THE COURT: AND PRESUMABLY, IF HE HAS RELIED UPON THAT INFORMATION, HE HAS MADE NOTES EITHER TO HELP HIMSELF OR HERSELF, AND YOU ARE GOING TO BE RELYING UPON IT. I HAVE SEEN IT HAPPEN TIME AND TIME AGAIN. JUST AS THE WITNESS TESTIFIES, ALL OF A SUDDEN THE WITNESS BRINGS OUT ALL THESE NOTES THAT THE WITNESS HAS. I SIMPLY WOULD FIND IT VERY DIFFICULT TO BELIEVE THAT THIS MEDICAL EXPERT IS GOING TO TAKE THE STAND WITHOUT HAVING THAT INFORMATION.
MR. FLANAGAN: IF HE MAKES NOTES, WE WILL PROVIDE THEM TO THE PROSECUTION. 1054.3 INDICATES WE SHOULD GIVE THEM WHAT WE HAVE AT LEAST 30 DAYS BEFORE TRIAL. I HAVE DONE THAT. NOW, IF WE GET SOMETHING ELSE, THE CODE THEN SAYS AS SOON AS IT IS RECEIVED, THAT YOU SHOULD GIVE IT TO THEM AS SOON AS POSSIBLE AND WE WILL DO THAT. BUT WE HAVE GIVEN THE PROSECUTION EVERYTHING WE HAVE AT THE PRESENT TIME. THAT IS ALL WE CAN DO.
THE COURT: NO, IT ISN’T. WE WILL COME BACK THE BEGINNING OF NEXT WEEK AND GO THROUGH THIS IN DETAIL. I WANT THE PEOPLE TO BE ABLE TO REVIEW AND THE DEFENSE TO BE ABLE TO REVIEW WITNESSES. ARE THE WITNESSES PARTICULARIZED IN TERMS OF THE IDENTITY OF THE WITNESS AND THE SPECIFIC TYPE OF TESTIMONY THAT THE WITNESS IS GOING TO PROVIDE?
MR. CHERNOFF: ON THE WITNESS LIST?
THE COURT: YES.
MR. CHERNOFF: NO.
THE COURT: JUST NAMES?
MR. CHERNOFF: JUST NAMES. HOLD ON A SECOND, JUDGE. PLEASE LET ME FINISH.
THE COURT: YOU KEEP SAYING, “HOLD ON.” I’M HOLDING ON.
MR. CHERNOFF: OKAY. WE RECEIVED A WITNESS LIST FROM THEM THAT WAS JUST NAMES, AND WE RESPONDED WITH A WITNESS LIST WITH NAMES. A LOT OF THESE WITNESSES — YOU ORDERED US TO PROVIDE THAT WITNESS LIST. A LOT OF THESE WITNESSES WE RECEIVED COME FROM THE INFORMATION THAT WAS GIVEN TO US FROM THE PEOPLE. IT WASN’T FROM OUR OWN INVESTIGATION, AND ALSO HEARSAY INFORMATION THAT WE GET FROM OTHERS. WE ARE STILL IN THE PROCESS OF PREPARING THIS CASE FOR TRIAL. I UNDERSTAND THAT IT IS A SHORT PERIOD OF TIME TO PREPARE. WE WANTED TO GO TO TRIAL WITHIN THESE 60 DAYS, SO WE ARE CONTINUING TO PREPARE EVERY DAY ALL DAY LONG. WE ARE STILL CONTINUING TO PREPARE FOR TRIAL. I CAN’T PROMISE YOU THAT 30 DAYS BEFORE TRIAL WE ARE GOING TO HAVE EVERYTHING READY TO PRESENT TO THE PROSECUTION.
THE COURT: THEN YOU SHOULD UNDERSTAND, MR. CHERNOFF, THERE ARE SANCTIONS, INCLUDING MONETARY SANCTIONS, INCLUDING CONTINUANCES, FOR THE PEOPLE TO BE IN A POSITION TO PREPARE JUST LIKE THE DEFENSE SHOULD, AND ALSO INCLUDING AS THE ULTIMATE SANCTION PRECLUSION OF THE WITNESS WHICH IS EXTREMELY DISFAVORED. I’M NOT GOING TO GET MYSELF IN A SITUATION WHERE THE DEFENSE, ON THE ONE HAND, IS SAYING THAT IT HAS PROVIDED INFORMATION AND, ON THE OTHER HAND, SAYING, “WE ARE STILL IN THIS ONGOING INVESTIGATORY PROCESS BUT WE WANT A SPEEDY TRIAL.” YES, DR. MURRAY IS ENTITLED TO HAVE A SPEEDY TRIAL, BUT IT IS NOT TRIAL BY LACK OF INFORMATION. IF THE DEFENSE IS READY, IT IS READY. AND IF THE DEFENSE IS READY, THE PEOPLE SHOULD BE READY BY HAVING THAT FULL AND FAIR DISCOVERY, OR ELSE THE DEFENSE ISN’T READY FOR TRIAL. YOU CAN’T HAVE IT BOTH WAYS, AND THE PEOPLE CAN’T HAVE IT BOTH WAYS.
MR. FLANAGAN: WOULD YOU LIKE TO ADDRESS THE PEOPLE’S DISCOVERY? I MEAN OUR DISCOVERY THAT WE HAVE REQUESTED FROM THEM.
THE COURT: ABSOLUTELY. I JUST GOT SOME DISCOVERY, PROPOSED DISCOVERY ORDERS. THEY WERE JUST HANDED TO ME. SO I’M NOT GOING TO DO ANYTHING AT THIS HOUR ON THURSDAY. WHAT WE ARE GOING TO DO IS COME BACK THE BEGINNING OF NEXT WEEK AND GO OVER IT. AND I HAVE TO TELL YOU, I’VE ALLOWED DR. MURRAY TO APPEAR 977. I’M WELL AWARE OF THE FACT THERE MAY BE MONETARY ISSUES, BUT HE SHOULD BE HERE FOR THESE PROCEEDINGS IF WE ARE NOT GOING TO GET ANYWHERE BECAUSE I’M NOT GOING TO SPEND MY DAYS COUNTING THE NUMBER OF ANGELS ON THE HEAD OF A PIN WHEN THESE ARE SIGNIFICANT, CLEAR OBLIGATIONS OF THE PARTIES. I NEED TO KNOW WHAT THE PEOPLE HAVE DONE, WHAT THEY HAVEN’T DONE AS MR. FLANAGAN WANTS TO ADDRESS IT, AND I NEED TO KNOW WHAT THE DEFENSE HAS DONE AND NOT DONE AS MS. BRAZIL WANTS TO ADDRESS IT.
MR. FLANAGAN: WE HAVE FILED — WE FILED AN INFORMAL ITEMIZED REQUEST FOR DISCOVERY ON, I THINK IT WAS, JANUARY 27 WITH THE PEOPLE. THAT HAS BEEN IGNORED. SO AS A RESULT, AFTER THE 15 DAYS GO BY, WE FILED PURSUANT TO THE CODE OUR NOTICE OF MOTION AND MOTION FOR DISCOVERY WHICH MIRROR IMAGES OUR INFORMAL REQUEST FOR DISCOVERY. WE WANT JUST BASIC THINGS, LIKE PICTURES AND STUFF THEY ALREADY HAVE. WE ARE NOT ASKING THEM TO GO OUT AND PREPARE SOMETHING OR DO SOMETHING. WE JUST WANT WHAT WE KNOW THEY ALREADY HAVE. WHEN I’M TALKING ABOUT PICTURES, WE WOULD LIKE TO HAVE SOME PICTURES THAT WE CAN USE IN A TRIAL, NOT LITTLE FOUR BY — THREE-BY-FOUR PICTURES WITH MY NAME SCRIBBLED ALL OVER IT OBLITERATING HALF OF WHAT IS IN THE PICTURE. WHAT WE WANT IS EVIDENCE QUALITY PICTURES OF THINGS THEY HAVE. YOU KNOW, THE DISCOVERY, THE SEVEN THOUSAND PAGES OF DISCOVERY THAT THEY HAVE GIVEN US, IS ALL WATERMARKED AND THE PICTURES ARE UNRECOGNIZABLE. SOME OF THE WRITING, THE STATEMENTS ARE UNREADABLE BECAUSE OF THE WATERMARKING. AND I THINK WE CAN ADDRESS THAT TODAY BECAUSE I’M ASKING FOR AN ORDER FOR COMPLIANCE AND EVERYTHING THAT I HAVE ASKED FOR IS PROVIDED FOR IN THE CODE. WE WOULD LIKE TO INSPECT THE EVIDENCE THAT IS AT THE CORONER’S OFFICE, THAT IS AT LAPD. WE HAVE ONE EXPERT THAT SAYS HE CAN’T UNDERSTAND, CAN’T MAKE HEADS OR TAILS OUT OF THE PICTURES. HE WOULD LIKE TO SEE THE ACTUAL EVIDENCE. HE WOULD LIKE TO SEE ACTUAL PICTURES. BY EITHER THE PEOPLE NOT PROVIDING IT FOR US AND YOU NOT TELLING THEM THEY HAVE TO GIVE IT TO US, YOU ARE FORCING US INTO A LONGER AND LONGER PERIOD TO GET READY. NOW, DR. MURRAY HAS A RIGHT TO GO TO TRIAL WITHIN 60 DAYS. I DON’T THINK IT SAYS HE HAS TO BE READY FOR TRIAL 30 DAYS AHEAD OF TIME. WE WILL BE READY ON THE DAY FOR TRIAL, AND WE ARE WORKING ON IT AS FAST AS WE CAN. WE ARE TRYING TO DO AS MUCH AS WE CAN. WE NEED THE COURT’S HELP. WE NEED THEM ORDERED TO GIVE US WHAT I’VE SPECIFICALLY ITEMIZED IN THIS DISCOVERY MOTION. NOW, THE PEOPLE DON’T KNOW WHAT THEY HAVE HERE BECAUSE SOME SECRETARY IN THEIR OFFICE DOESN’T GIVE THE STUFF TO THEM. THEY DIDN’T EVEN GET THE DISCOVERY ORDER. IT GOT TO THE COURT HERE. APPARENTLY DIDN’T GET TO MS. BRAZIL. I DON’T KNOW WHY THEY ARE NOT READY ON THIS AND WHY IT HAS TO GO OVER TO NEXT WEEK TO DISCUSS IT. WE NEED THIS INFORMATION AS SOON AS POSSIBLE BECAUSE WE ARE IN A RUSH MODE TO GET THIS READY AND AFFORD DR. MURRAY HIS RIGHT TO A TIMELY TRIAL.
THE COURT: HE IS ENTITLED TO A SPEEDY TRIAL. HE IS ALSO ENTITLED TO EFFECTIVE REPRESENTATION OF COUNSEL.
MS. BRAZIL: YOUR HONOR, MAY I RESPOND TO DEFENSE COUNSEL?
THE COURT: YES.
MS. BRAZIL: I AM PREPARED TO ADDRESS EACH OF THE DISCOVERY REQUESTS —
THE COURT: FINE.
MS. BRAZIL: — THAT DEFENSE HAS.
THE COURT: DO I HAVE A COPY? THIS IS IN THE PROPOSED FORMAL DISCOVERY ORDER.
MR. FLANAGAN: YES.
THE COURT: OKAY.
MS. BRAZIL: I AM REFERRING TO THE DISCOVERY REQUEST DATED JANUARY 27, 2011, RECEIVED BY OUR OFFICE VIA E-MAIL ON JANUARY 28. WE RECEIVED A HARD COPY ON JANUARY 31ST. AND ACCORDING TO MR. FLANAGAN, THE DOCUMENT THAT I’M REFERRING TO IS DUPLICATED IN HIS FORMAL DISCOVERY MOTION THAT I RECEIVED TODAY.
THE COURT: I HAVE A DOCUMENT THAT APPARENTLY WAS FILED YESTERDAY. I DON’T KNOW WHAT TIME. IT IS DATED TODAY AND SAYS NOTICE OF MOTION AND MOTION FOR DISCOVERY. IS THAT A FAIR STATEMENT, MR. FLANAGAN, THAT THIS FORMAL DOCUMENT FILED WITH THE PEOPLE IS A DUPLICATE OF THE INFORMAL REQUEST MADE TO THE PEOPLE?
MR. FLANAGAN: YES.
MS. BRAZIL: I’M PREPARED TO RESPOND.
THE COURT: ARE YOU READY TO GO?
MS. BRAZIL: YES, I AM, YOUR HONOR.
THE COURT: NO. 1.
MS. BRAZIL: PROSECUTION TRIAL WITNESSES. WE PROVIDED THAT LIST ON FEBRUARY 11, 2011. THAT IS THE ONE THAT I’VE REFERRED TO THAT CONTAINS 106 WITNESSES EACH OF THOSE WITNESS NAMES, THE PURPORTED STATEMENT, AND ANY OTHER INFORMATION RELATED TO THEM IS CONTAINED IN THE OVER SEVEN THOUSAND PAGES OF DISCOVERY THAT HAVE BEEN PROVIDED TO THE DEFENSE.
THE COURT: WHAT ABOUT ADDRESSES?
MR. FLANAGAN: AND WOULD THE PEOPLE AGREE THAT IF THE ADDRESS AND NAME IS NOT CONTAINED IN THE SEVEN THOUSAND PAGES THAT WE HAVE BEEN PROVIDED, THAT THEY WILL NOT CALL THAT WITNESS?
MS. BRAZIL: YOUR HONOR, MAY I RESPOND TO THAT, PLEASE.
THE COURT: SURE.
MS. BRAZIL: I’M SURE MR. FLANAGAN IS AWARE THAT THIS WOULD BE A VERY SENSITIVE CASE WITH RESPECT TO ADDRESSES. THEY HAVE BEEN BLACKED OUT FOR THE PRIVACY OF THE WITNESSES. HOWEVER, WE CAN HAVE AN IN CAMERA HEARING FOR RELEASE OF ANY OF THOSE WITNESS ADDRESSES; OR, IN THE ALTERNATIVE, IF THE DEFENSE WOULD LET US KNOW WHICH WITNESS THEY WOULD LIKE TO MEET WITH, WE WILL CONTACT THE WITNESS, MAKE THEM AVAILABLE TO THE DEFENSE AS IS STANDARD PROTOCOL.
THE COURT: YOU UNDERSTAND, MS. BRAZIL, IT IS YOUR OBLIGATION UNDER PENAL CODE SECTION 1054.1(A) TO PROVIDE NAMES AND ADDRESSES OF PERSONS —
MS. BRAZIL: I DO.
THE COURT: — THE PROSECUTOR INTENDS TO CALL AS WITNESSES DURING TRIAL. CERTAINLY, WE ARE SENSITIVE TO PRIVACY ISSUES INVOLVING ANY WITNESSES IN THIS CASE. BUT BY THE SAME TOKEN, THE DEFENSE SHOULDN’T BE HAMSTRUNG BY ITS INABILITY TO CONTACT.
MS. BRAZIL: YES, YOUR HONOR. AND I AGREE WITH THAT, YOUR HONOR.
MR. FLANAGAN: THAT REQUEST NO. 1 SPECIFICALLY ITEMIZES THE WITNESSES THAT WE DON’T HAVE A CLUE WHO THEY ARE, WHERE THEY LIVE, OR WHAT THEY WOULD TESTIFY TO. WE JUST ASK FOR THE NAMES AND ADDRESSES OF THEM. WE HAVE GONE THROUGH THE PROSECUTION LIST. THEY GAVE US A LIST OF 107 NAMES OR 106 NAMES. I DON’T KNOW IF THEY PLAN TO CALL THEM ALL, BUT WE HAVE ITEMIZED THE ONES THAT WE CANNOT FIGURE OUT WHO THEY ARE AND WE HAVE SPECIFIED OUR REQUEST FOR THOSE NAMES AND ADDRESSES OR THOSE ADDRESSES.
MS. BRAZIL: I’M SORRY, YOUR HONOR. I’M A LITTLE CONFUSED. MR. FLANAGAN — WOULD THE COURT INQUIRE IS HE REFERRING TO ADDITIONAL REQUESTS THAT WERE MADE IN THE DISCOVERY MOTION THAT I DIDN’T RECEIVE UNTIL TODAY?
MR. FLANAGAN: WELL, YOU SHOULD HAVE.
THE COURT: WELL, WE ARE NOT SUPPOSED TO TALK TO EACH OTHER, BUT YOU HEARD WHAT SHE SAID.
MS. BRAZIL: I ASKED THE COURT TO INQUIRE.
THE COURT: I KNOW. THERE ARE A LIST OF NAMES IN NO. 1, AND THE DEFENSE SAYS YOU HAVE NO IDEA WHO THESE PEOPLE ARE?
MR. FLANAGAN: RIGHT.
MS. BRAZIL: YOUR HONOR, I CAN REPRESENT TO THE COURT THAT THESE INDIVIDUALS ARE DEFINITELY COVERED IN THE DISCOVERY THAT THE DEFENSE HAS BEEN PROVIDED. FOR EXAMPLE, MS. DE QUINTANA IS ONE OF THE ANALYSTS THAT IS CLEARLY LISTED ON THE FORENSIC EVIDENCE FROM THE CORONER’S OFFICE. CATHY LAW IS ONE OF THE CONSULTS EMPLOYED BY THE CORONER’S OFFICE.
THE COURT: YOU MEAN LISTED ON DISCOVERY?
MS. BRAZIL: YES.
MR. FLANAGAN: NAME AND ADDRESS. WE HAVE THAT?
MS. BRAZIL: YOUR HONOR, MS. LAW IS A DOCTOR. SHE WAS ONE OF THE CONSULTS FOR THE CORONER’S OFFICE.
THE COURT: I UNDERSTAND, BUT HOW DOES THE DEFENSE THEN HAVE THE OPPORTUNITY TO CONTACT?
MS. BRAZIL: HER REPORT IS IN THE FILE. HER REPORT IS IN THE CORONER’S REPORT, AND HER CONTACT INFORMATION ON THE LETTERHEAD.
THE COURT: AND MS. DE QUINTANA, SHE IS WITH —
MS. BRAZIL: SHE IS AN ANALYST, YES. I WOULD BE HAPPY TO HELP THEM IF THEY NEED —
THE COURT: YOU WILL MEET AND CONFER. I WILL NOT GO THROUGH EVERY SINGLE PERSON.
MS. BRAZIL: I WOULD BE HAPPY TO HELP THEM AND DIRECT MR. FLANAGAN OR MR. CHERNOFF TO WHERE THEIR NAMES ARE. SHOULD WE CONTINUE?
THE COURT: YES. IT IS NOT JUST HELPING. IT IS MEETING THE OBLIGATIONS. AND IF THE PEOPLE FEEL THEY HAVE MET THE OBLIGATIONS, THAT THERE IS AN INDICATION OF THE NATURE OF THIS PARTICULAR WITNESS AND HOW THIS WITNESS RELATES TO THE CASE AND A CONTACT FOR THAT PERSON, THAT IS THE REQUIREMENT.
MS. BRAZIL: YES.
THE COURT: IF THERE IS SOMETHING PARTICULARLY SENSITIVE IN TERMS OF HOME ADDRESS, THEN ARRANGEMENTS SHOULD BE MADE SO THE DEFENSE CAN CONTACT THAT INDIVIDUAL.
MS. BRAZIL: YES. WE ARE PREPARED TO DO THAT, YOUR HONOR.
THE COURT: THAT IS ORDERED WITH REGARD TO NO. 1. THANK YOU. NO. 2?
MS. BRAZIL: WE ARE NOT ABLE TO PROVIDE THE DEFENSE WITH POTENTIAL REBUTTAL WITNESSES UNTIL WE HAVE A FULL UNDERSTANDING OF WHO THE WITNESSES ARE THAT ARE CONTAINED ON THE DEFENSE WITNESS LIST. WE HAVE PROVIDED STATEMENTS OF THE DEFENDANT, NO. 3.
THE COURT: WITH REGARD TO NO. 2, THE INDICATION IS: “NOTICE IS HEREBY GIVEN THAT THE DEFENSE INTENDS TO CALL CHARACTER WITNESSES IN ITS CASE IN CHIEF.” I DON’T KNOW WHAT THAT MEANS BECAUSE, AGAIN, I DON’T KNOW IF WE HAVE GOT SPECIFIC WITNESSES DESIGNATED AS CHARACTER WITNESSES AND EXACTLY WHAT THOSE WITNESSES ARE GOING TO SAY.
MR. FLANAGAN: SHE HAS GIVEN THE NAME AND ADDRESS.
THE COURT: MS. BRAZIL?
MR. FLANAGAN: MS. BRAZIL HAS GIVEN IN THE DISCOVERY, PROVIDED THE NAME AND ADDRESS OF THE POTENTIAL WITNESSES.
THE COURT: WHAT ABOUT THE NATURE OF ANY PROPOSED TESTIMONY. I MEAN SAYING CHARACTER WITNESS, I DON’T KNOW WHAT THAT MEANS. I DON’T KNOW IF THIS RELATES TO OVER A CERTAIN TIME FRAME, IN A CERTAIN AREA. YOU MEAN CHARACTER WITNESSES. YOU NEED SOMETHING MORE DEFINITE THAN THAT?
MR. FLANAGAN: THEY ARE THE DOCTORS’ PATIENTS.
MR. CHERNOFF: OUT OF SEVEN THOUSAND DOCUMENTS — THE MAGICAL SEVEN THOUSAND IS CONSTANTLY MENTIONED EVERY TIME WE COME TO COURT — 4200 PAGES OF IT REFERS TO THE DOCTOR’S FINANCIAL CONDITION, OR HIS CHILD SUPPORT ISSUES, OR LAWSUITS, OR LOSING — FORECLOSURE ON HIS HOUSE. THAT IS A HUGE, HUGE AMOUNT. SO WE ASSUME THAT THEY GAVE US THAT BECAUSE THEY ARE GOING TO PRESENT THAT IN THEIR CASE IN CHIEF. DURING THE PRELIMINARY HEARING WHERE MR. WALGREN STOOD UP HERE AND CLAIMED THAT DOCTOR WAS INCOMPETENT, AND RECKLESS, AND IMPATIENT, AND UNKNOWING WITH REGARD TO USE OF PROPOFOL, ET CETERA, THOSE ARE CHARACTER ISSUES THAT WE WANT TO ADDRESS. THAT IS A PERTINENT CHARACTER TRAIT HE WILL PRESENT, AND WE WANT TO ADDRESS THAT WITH OUR WITNESSES. WE GAVE HER NOTICE. I’M SORRY. MS. BRAZIL. WE GAVE MR. WALGREN NOTICE IN OUR DISCOVERY MOTION THAT WE ARE GOING TO ADDRESS THAT BASED ON THE INFORMATION THAT WE RECEIVED FROM THEM AND BASED ON THE INFORMATION THAT WAS PROVIDED OR THE ANALYSIS THAT WAS DONE AT PRELIMINARY HEARING BY THE PROSECUTION. WE GAVE MR. WALGREN AND MS. BRAZIL A LIST OF ALL OF THE PATIENT POSSIBLE CHARACTER WITNESSES THAT WOULD APPLY IN THIS CASE THAT WE HAVE. AND I ASKED THE PERSON WHO WAS PUTTING IT TOGETHER FOR US TO BASICALLY JUST PUT THE NAME AND THE ADDRESS AND AT LEAST WRITE DOWN HOW THIS PERSON KNOWS THE DOCTOR, AND A SUMMARY OF WHAT THEY WOULD TALK ABOUT TO ALLOW THE PROSECUTION TO TAKE THAT LIST AND GET AHOLD OF THESE WITNESSES. THAT IS IN THE DISCOVERY AS WELL. WE DON’T HAVE ANYTHING MORE THAN THAT, BUT THAT IS WHY WE ARE ASKING FOR REBUTTAL. THEY KNOW THAT WE ARE GOING TO BE PRESENTING CHARACTER WITNESSES. WE WANT REBUTTAL. THEY UNDERSTAND THAT IS AN OBLIGATION. WE HAVE RECEIVED AT LEAST ONE WITNESS LAST COURT SETTING THAT WAS ALL REBUTTAL, EVERY BIT OF IT. SO IT IS NOT AS IF THEY DON’T UNDERSTAND THAT IS A REQUIREMENT UNDER THE DISCOVERY STATUTE. WE ARE JUST ASKING FOR ANY MORE REBUTTAL EVIDENCE THAT THEY ARE GOING TO COME ACROSS TO ATTACK DR. MURRAY’S CHARACTER OR THE DEFENSE CASE.
THE COURT: SO ON YOUR PROPOSED WITNESS LIST, THERE ARE WITNESSES WHO ARE DESIGNATED AS CHARACTER WITNESSES AND CHARACTER WITNESSES AS TO SPECIFIC CHARACTER TRAITS?
MR. CHERNOFF: YES, JUDGE.
THE COURT: MS. BRAZIL, DO YOU HAVE THAT?
MS. BRAZIL: I DISAGREE, YOUR HONOR. ON THE WITNESS LIST THAT I HAVE FROM THE DEFENSE, AS MR. CHERNOFF PREVIOUSLY STATED, THERE ARE SIMPLY NAMES. SO I HAVE NO INDICATION WHETHER OR NOT A WITNESS IS A CHARACTER WITNESS. PERHAPS MR. CHERNOFF WOULD GO THROUGH AND LET US KNOW WHICH ONES ARE CHARACTER WITNESSES.
MR. FLANAGAN: IN THE ITEMIZATION OF THE NAMES AND ADDRESSES THAT SHE WENT THROUGH, TOWARDS THE END OF THE DISCOVERY A LARGE NUMBER OF THOSE PEOPLE APPEAR, THEIR ADDRESSES, AND BASICALLY HOW THEY ARE PATIENTS. SHE SPECIFICALLY READ OFF THE TWO PAGES OF NAMES WITH ADDRESSES. COULD I APPROACH AND POINT IT OUT TO YOU?
THE COURT: GO AHEAD, PLEASE.
MR. FLANAGAN: (EXAMINING DOCUMENTS)
THE COURT: THIS IS WHAT I WANT TO AVOID IS HAVING TO GO THROUGH INDIVIDUAL PAGES.
MR. FLANAGAN: WELL, I PROBABLY SHOULD HAVE INDEXED IT, BUT THESE ARE FOUR PAGES OF PATIENT PHONE NUMBERS AND BASICALLY A SUMMARY OF THEIR EXPERIENCE WITH DR. MURRAY.
MS. BRAZIL: YOUR HONOR —
THE COURT: YES.
MS. BRAZIL: — I’D LIKE TO GIVE AN EXAMPLE OF ONE OF THESE. I WON’T NAME THE PERSON’S NAME. IT HAS THEIR ADDRESS, NO TELEPHONE NUMBER, AND STATES: “WAS HAVING HEART ATTACKS AND REFUSED BY ALL DOCTORS. C.T. SET FOR TOMORROW. GO HOME. MURRAY TREATED HIM, AND HE IS CURED.” THAT IS THE LONGEST DESCRIPTION OR STATEMENT ASSOCIATED WITH ANY OF THESE INDIVIDUALS ON THE FOUR PAGES THAT MR. FLANAGAN HAS PULLED OUT OF THE STACK OF DISCOVERY. SIGNIFICANTLY, YOUR HONOR, PENAL CODE SECTION 1054.3 REQUIRES THAT THE STATEMENT OF A WITNESS REGARDING THEIR PROPOSED TESTIMONY IS THE OBLIGATION OF EACH SIDE. AND IF THERE ARE CHARACTER WITNESSES TO BE CALLED BY THE DEFENSE, IT WOULD BE IMPOSSIBLE FOR THE PEOPLE TO PROVIDE A LIST OF REBUTTAL INFORMATION WITHOUT THAT STATEMENT BECAUSE HOW DO WE KNOW WHAT TO REBUT?
MR. FLANAGAN: 1054.3 DOES NOT REQUIRE A STATEMENT OF A WITNESS.
THE COURT: UNLESS AND UNTIL THERE IS MORE DEFINITIVE INDICIA OF THE EXACT NATURE OF AN ANTICIPATED WITNESS’S TESTIMONY, I’M NOT GOING TO IMPOSE AN OBLIGATION ON THE PEOPLE TO PROVIDE REBUTTAL TO SOMETHING THAT DOESN’T EXIST. SO THE SPECIFIC ANTICIPATED TESTIMONY MUST BE LISTED. IF IT RELATES TO CHARACTER WITNESSES, IT SHOULD RELATE TO WHAT THIS WITNESS IS GOING TO SAY IN TERMS OF THE GOOD CHARACTER OF DR. MURRAY FOR A PARTICULAR CHARACTER TRAIT THAT MAY BE AT ISSUE IN THIS CASE, THE PRACTICE OF MEDICINE, HONESTY, ET CETERA. SO THAT IS GOING TO HAVE TO WAIT. NEXT?
MS. BRAZIL: NO. 3, STATEMENTS OF THE DEFENDANT. PEOPLE HAVE PROVIDED THOSE BOTH IN THE WRITTEN SUMMARY AS WELL AS THE RECORDED INTERVIEW OF DR. MURRAY.
THE COURT: DOES THE DEFENSE HAVE ANY REASON TO BELIEVE THAT THERE IS SOMETHING ELSE OUT THERE?
MR. FLANAGAN: NO, NOT IF THEY MAKE THE REPRESENTATION IT HAS BEEN PROVIDED.
THE COURT: THANK YOU. NEXT?
MR. FLANAGAN: ALL WE HAVE BEEN PROVIDED IS THE SUM TOTAL OF WHAT THERE IS.
THE COURT: NEXT?
MS. BRAZIL: NO. 4, REEL EVIDENCE. WE PROVIDED THAT ON DISK NO. 476210. THAT WOULD BE THE REQUEST FOR ALL REEL EVIDENCE SEIZED OR OBTAINED AS PART OF THE INVESTIGATION OF THE OFFENSE CHARGED, AND IT GOES ON TO SPECIFICALLY REFER TO SURVEILLANCE AT MR. JACKSON’S CAROLWOOD RESIDENCE, AND WE HAVE PROVIDED THAT ON THE DISK THAT I MENTIONED.
THE COURT: MR. FLANAGAN HAS RAISED THE ISSUE OF THE SIZE AND QUALITY OF CERTAIN OF THE PHOTOGRAPHS. I UNDERSTAND THE INTERESTS OF THE PEOPLE TO MAKE SURE THAT THEY KEEP A HANDLE ON DISCOVERY BY BATES STAMPING DOCUMENTATION, BY WATERMARKING, ET CETERA. THE DEFENSE HAS RAISED THE ISSUE OF INTEGRITY OF THE ACTUAL PHOTOGRAPHS AND THEIR DESIRE TO HAVE CLEANER, LARGER COPIES, IF THEY EXIST.
MS. BRAZIL: YES, YOUR HONOR. AND AS THE COURT HAS STATED, IN THIS CASE THERE HAS BEEN A PARTICULAR INTEREST IN THE DISCOVERY RELATED TO THIS CASE AND SIGNIFICANTLY THERE HAVE NOT BEEN LEAKS OF PHOTOGRAPHS OF ANY KIND TO DATE. THE PEOPLE BELIEVE THAT IS BECAUSE OF THE WATERMARKING THAT IS ON ALL PHOTOGRAPHS. AND SHOULD THE COURT ORDER THE PEOPLE TO PROVIDE THE DEFENSE WITH NON-WATERMARKED PHOTOGRAPHS, WE ARE PREPARED TO DO SO. IT WILL TAKE APPROXIMATELY A WEEK.
MR. FLANAGAN: SUITABLE FOR USE IN EVIDENCE. SUITABLE SO WE COULD HAND IT TO THE JURY BECAUSE THERE IS A LOT OF THESE PHOTOGRAPHS WE THINK ARE REALLY PERTINENT THAT ARE REALLY INFORMATIVE: PHOTOGRAPHS OF SYRINGES, THE I.V. TUBING, ALL THIS STUFF. WE WOULD REALLY LIKE TO HAVE IT SO WE COULD USE IT ON OUR CASE AS AN EXHIBIT.
THE COURT: AND YOU SHOULD. SO I’M GOING TO ORDER THAT COUNSEL MEET AND CONFER AND MAKE ARRANGEMENTS TO HAVE THOSE TYPES OF PHOTOGRAPHS PROVIDED TO THE DEFENSE IF, IN FACT, THEY CAN BE PROVIDED, WITH THE CLEAR ORDER OF THE COURT THAT THAT INFORMATION IS NOT TO BE DISSEMINATED BEYOND THE DEFENSE TEAM.
MS. BRAZIL: YOUR HONOR, CAN WE TAKE THE ISSUE UP OF THE DELIVERY OF PHOTOGRAPHS AT OUR NEXT COURT HEARING SO THAT MR. WALGREN CAN BE PRESENT?
THE COURT: YES.
MS. BRAZIL: AND ALL OF US CAN BE ON THE SAME PAGE WITH SAFEGUARDS WE WILL EMPLOY.
THE COURT: THAT IS FINE. I WILL BE HAPPY TO INCORPORATE IN WRITING IN TERMS OF ANY ORDER ANY SAFEGUARDS.
MS. BRAZIL: THANK YOU, YOUR HONOR.
THE COURT: BUT I THINK THE DEFENSE SHOULD HAVE THE OPPORTUNITY TO EXAMINE PHOTOGRAPHS THAT AREN’T WATERMARKED, THAT DON’T HAVE CERTAIN BATES STAMPS, THAT MAY OBSCURE CERTAIN INFORMATION.
MS. BRAZIL: YES, YOUR HONOR.
MR. CHERNOFF: JUDGE —
THE COURT: MS. BRAZIL?
MS. BRAZIL: THANK YOU, YOUR HONOR. AND THE PEOPLE AGREE WE ARE PREPARED TO PROVIDE THE DEFENSE, PER THE COURT’S ORDER. WE WOULD LIKE TO HAVE APPROPRIATE SAFEGUARDS THAT THE COURT HAS SUGGESTED AND THAT I REQUEST BE IN PLACE PRIOR TO THE DELIVERY OF ANY PHOTOGRAPHS.
MR. CHERNOFF: ABSOLUTELY, THERE SHOULD BE SAFEGUARDS.
MR. FLANAGAN: WE WILL STIPULATE TO THAT.
MR. CHERNOFF: THESE ARE DIGITAL IMAGES IN DIGITAL FORM. THAT IS THE FORM THAT THE PROSECUTION HAS. THAT IS THE FORM THAT THE PROSECUTION USED FOR THEIR EXHIBITS. WE ARE REQUESTING THE IMAGES IN THE FORM THAT THE PROSECUTION HAS. WHATEVER SECURITY NEEDS TO BE IN PLACE, WE DON’T HAVE A PROBLEM WITH THAT AS LONG AS WE CAN SEE THEM. THE DIGITAL IMAGE ALLOWS A LOT MORE THAN JUST THEM PRINTING OUT A FOUR-BY-SIX. AND REALLY, THE ONES WE HAVE BEEN GETTING, WHAT WE HAVE BEEN GETTING IS WE HAVE BEEN GETTING THESE FOUR-BY-SIX. THEY START OUT BLACK AND WHITE, THEN GOT COLOR, BUT THEN THEY WERE SCANNED WHICH FURTHER REDUCED QUALITY, THEN WATERMARKED WHICH MADE IT IMPOSSIBLE TO SEE. WE WOULD LIKE IT IN THE QUALITY THEY HAVE GOT IT. IT IS NOT HARD TO DO TO BURN IT TO A CD. THAT IS WHAT OUR REQUEST IS.
THE COURT: I THINK IT IS A REASONABLE REQUEST.
MR. CHERNOFF: WITH REGARD TO THE SURVEILLANCE VIDEO, JUDGE, ON THE 25TH, THE POLICE DOWNLOADED THE ENTIRE SURVEILLANCE VIDEO AT THE CAROLWOOD ADDRESS. WHAT WE HAVE RECEIVED ARE SNIPPETS OF THINGS THAT OCCURRED AT ESSENTIALLY 12:30 TO 12:45. WE WOULD LIKE THE OPPORTUNITY TO HAVE A COPY OF THAT SURVEILLANCE VIDEO SO THAT WE CAN LOOK AT IT SO WE CAN DO OUR OWN ANALYSIS. THEY HAVE A COPY OF THE VIDEO FOR THE ENTIRE TIME FROM THE TIME THAT MR. JACKSON CAME HOME UNTIL HE WAS CARRIED AWAY IN AN AMBULANCE. WE WOULD LIKE A COPY OF THAT SURVEILLANCE VIDEO. YOU CAN SEE THE IMPORTANCE OF IT IF IT CONTRADICTS THE THINGS WITNESSES SAY, IF IT SHOWS PEOPLE GOING INTO THE HOUSE. WE HAVE BEEN ASKING FOR THAT FOR A YEAR. IN THIS DISCOVERY MOTION, WE ARE REQUESTING THAT. I KNOW THEY HAVE GOT IT BECAUSE ONE OF THEIR WITNESSES SAID THEY DOWNLOADED THE WHOLE THING.
THE COURT: LET’S HEAR FROM MS. BRAZIL.
MS. BRAZIL: YOUR HONOR, I BELIEVE THAT DEFENSE COUNSEL HAS BEEN PROVIDED THAT ON DISK NO. 476210, BUT I WOULD LIKE THE OPPORTUNITY TO CONFIRM THAT RATHER THAN DISAGREE WITH WHAT MR. FLANAGAN HAS SAID.
THE COURT: YOU BELIEVE THAT THE DEFENSE HAS THE FULL SURVEILLANCE TAPE DURING THAT TIME FRAME?
MS. BRAZIL: I’M NOT CERTAIN, YOUR HONOR, SO I DON’T WANT TO MAKE A REPRESENTATION TO THE COURT EITHER WAY. I WILL LET THE COURT KNOW THAT. I WILL CHECK INTO IT. AND IF WE HAVE IT, OR IF IT IS IN THE POSSESSION OF THE POLICE DEPARTMENT, WE WILL MAKE IT AVAILABLE TO THE DEFENSE.
THE COURT: YOU THINK IT IS REASONABLE DISCOVERY?
MS. BRAZIL: ABSOLUTELY.
THE COURT: IT IS ORDERED. IF THERE IS A PROBLEM, YOU LET ME KNOW.
MS. BRAZIL: THANK YOU, YOUR HONOR.
THE COURT: NEXT?
MR. FLANAGAN: ARE WE ON —
THE COURT: 4.
MS. BRAZIL: I THINK WE ARE AT NO. 5.
MR. FLANAGAN: 4D.
THE COURT: I THINK WE WENT TO 4A, B, C. WELL, C.
MR. FLANAGAN: C, YES.
THE COURT: THIS IS ALSO SENSITIVE MATERIAL, TALKING ABOUT AUTOPSY PHOTOGRAPHS WHICH ARE ALWAYS SENSITIVE.
MS. BRAZIL: YES, YOUR HONOR. I’D LIKE TO TAKE THE ISSUE OF PHOTOGRAPHS IN ITS ENTIRETY UP WITH THE COURT AND DEFENSE COUNSEL NEXT WEEK.
THE COURT: ALL RIGHT. THAT WILL BE 4, THE VARIOUS SUBDIVISIONS OF 4. SO WE WILL PAUSE ON THAT, BUT YOU KNOW FROM WHERE I’M COMING, MS. BRAZIL. I THINK THE DEFENSE SHOULD HAVE FULL AND FAIR ACCESS TO THE CLEANEST POSSIBLE IMAGES.
MS. BRAZIL: YES, YOUR HONOR. WE WANT TO – OUR CONCERN IS DISSEMINATION AND PROPER DISSEMINATION. NOT THAT I’M SUGGESTING THE DEFENSE WOULD BE RESPONSIBLE FOR THAT, BUT THAT IS OUR CONCERN. WE WOULD LIKE TO TAKE THAT ISSUE UP NEXT WEEK.
THE COURT: FINE. MOVING ON TO NO. 5. WHAT ABOUT 4D. THIS IS A CONTRACT.
MS. BRAZIL: I’M SORRY, YOUR HONOR. IS THE COURT —
THE COURT: I’M JUST LOOKING AT MY PAGE 2, 4D.
MS. BRAZIL: WE ARE LOOKING AT TWO DIFFERENT DOCUMENTS, YOUR HONOR. THE COPY OF THE CONTRACT. WE DON’T HAVE THAT. THAT IS AN ESTATE PROPERTY. MR. CHERNOFF HAS BEEN PROVIDED WITH ALL THE CONTRACTS THAT WE HAVE. AND TO THE EXTENT THERE ARE
CERTAIN PORTIONS OF IT BLOCKED OUT, I KNOW MR. WALGREN HAD A CONVERSATION WITH MR. CHERNOFF LAST WEEK, WHEREBY MR. WALGREN REITERATED AND GAVE MR. CHERNOFF AN ADDITIONAL PIECE OF PAPER THAT INDICATED THAT THE BLACKOUT PORTION WAS ALL WE HAD.
MR. CHERNOFF: SO ESSENTIALLY WHAT THE PROSECUTION IS SAYING IS THAT THEY DO NOT HAVE A COPY OF THE CONTRACT THAT IS NOT BLACKED OUT.
MS. BRAZIL: THAT IS CORRECT, MR. CHERNOFF.
MR. CHERNOFF: I ACCEPT THAT.
THE COURT: ALL RIGHT. THANK YOU. 5?
MS. BRAZIL: PROSECUTION TRIAL EXHIBITS, ANY REEL EVIDENCE.
THE COURT: NO. I GUESS WE ARE LOOKING AT DIFFERENT DOCUMENTS.
MR. FLANAGAN: MAYBE IT IS NOT A MIRROR IMAGE.
THE COURT: NO. 5 IS FELONY CONVICTIONS AND MISDEMEANOR ACTS INVOLVING MORAL TURPITUDE.
MS. BRAZIL: YES, YOUR HONOR. I AM IN THE PROCESS OF COMPILING THAT INFORMATION AND REVIEWING THE POTENTIAL FOR ANY OF THAT INFORMATION, WHETHER IT EXISTS, AND I’LL PROVIDE IT TO THE DEFENSE AS SOON AS I HAVE COMPLETED IT.
THE COURT: ORDERED. NO. 6, BRADY OBLIGATION, EXCULPATORY. ACKNOWLEDGED?
MS. BRAZIL: YES, YOUR HONOR.
THE COURT: ORDERED. I SEE WHAT IS HAPPENING HERE. PAGE 3 NOW GOES TO NO. 5 AGAIN. WE HAVE ALREADY DONE NO. 5 ON THE PREVIOUS PAGE, RIGHT?
MS. BRAZIL: YES.
THE COURT: A LITTLE PAGINATION PROBLEM HERE, RIGHT?
MR. FLANAGAN: YES.
THE COURT: THIS REALLY KIND OF MESSES UP THINGS. BUT ALL WRITINGS OF RELEVANT WITNESSES OR RECORDED STATEMENTS, INCLUDING REPORTS OR STATEMENTS. SOUND FAMILIAR? PEOPLE?
MS. BRAZIL: YES, YOUR HONOR. WE HAVE PROVIDED THE DEFENSE WITH EVERYTHING THAT WE HAVE.
THE COURT: THIS IS AN ONGOING OBLIGATION. IT IS ORDERED.
MS. BRAZIL: YES, YOUR HONOR.
THE COURT: RENUMBERED, IT IS 5A ON PAGE 3. IS THERE ANYTHING ELSE OUT THERE?
MS. BRAZIL: NO, YOUR HONOR.
THE COURT: IT IS ORDERED. THAT IS PHYSICAL AND MENTAL EXAMINATIONS, SCIENTIFIC TESTS, EXPERIMENTS, OTHER REPORTS.
MS. BRAZIL: WE FULLY COMPLIED WITH ANY OBLIGATION OR, EXCUSE ME, ANY RECORDINGS OF THE DEFENDANT AND WITNESSES WHO HAVE BEEN INTERVIEWED IN THIS CASE. AND THE DEFENSE HAS HAD COPIES OF THOSE CD’S FOR SEVERAL MONTHS.
THE COURT: NO. 6. WHAT ABOUT PERSONAL TAPE RECORDERS CARRIED BY LAW ENFORCEMENT PERSONNEL? THAT HAS ACTUALLY COME UP IN TRAFFIC TICKET CASES I’VE DONE OVER THE YEARS.
MS. BRAZIL: YES, YOUR HONOR. I AM NOT AWARE OF ANY PERSONAL TAPE RECORDINGS BY ANY POLICE PERSONNEL INVOLVED IN THIS MATTER.
THE COURT: OKAY. IT IS ORDERED. NOW WE ARE IN NO. 7.
MR. CHERNOFF: WE NEED TO ADJUST THIS.
THE COURT: THAT IS FINE. NO. 8, IT KIND OF TAKES THE WHOLE WORLD THERE. I’M SURE THERE IS PROBABLY SOME WORK PRODUCT ISSUES THAT ARE NOT COVERED HERE.
MR. FLANAGAN: WE ARE NOT ASKING FOR WORK PRODUCT, BUT IF THEY DO HAVE MEMORANDA. MR. WALGREN PROVIDED US WITH ONE PAGE. WE ARE JUST COVERING OURSELVES TO MAKE SURE WE HAVE IT ALL.
THE COURT: THE PEOPLE UNDERSTAND THEIR OBLIGATIONS TO PROVIDE THE SAME TYPE OF INFORMATION I’VE INDICATED FOR THE DEFENSE.
MS. BRAZIL: YES, YOUR HONOR. AND WE HAVE PROVIDED THE DEFENSE WITH ANY NOTES WRITTEN BY WHATEVER NAME.
THE COURT: INCLUDING COUNSEL?
MS. BRAZIL: THAT IS CORRECT, INCLUDING COUNSEL.
THE COURT: 8A, NOTES OF DR. CALMES.
MS. BRAZIL: THERE ARE NO NOTES.
THE COURT: IS THERE A REPORT OR NOT?
MR. CHERNOFF: AM I TO UNDERSTAND THAT THE PROSECUTION, DESPITE THE FACT THEY WERE TALKING TO AN EXPERT WITNESS, TOOK NO NOTES OF DR. CALMES?
MS. BRAZIL: I DO BELIEVE THERE ARE NO NOTES. I WILL CHECK WITH MR. WALGREN TO SEE IF HE TOOK ANY NOTES, BUT I WAS PRESENT AT THE MEETING AND DID NOT TAKE ANY NOTES.
THE COURT: JUST CASUAL LITTLE CONVERSATION?
MS. BRAZIL: YES, YOUR HONOR. IT IS NOT MY WITNESS, AND I DID NOT TAKE ANY NOTES.
THE COURT: I THINK WE SHOULD CIRCLE THAT.
MS. BRAZIL: I DID, YOUR HONOR.
THE COURT: SO MR. WALGREN IS IN A POSITION TO ADDRESS IT. THANK YOU. NO. 9, IMMUNITY, LENIENCY, ANYTHING OF THAT SORT.
MS. BRAZIL: NO, YOUR HONOR.
THE COURT: NO. 10?
MR. FLANAGAN: WE WOULD JUST LIKE TO INSPECT THE PHYSICAL EVIDENCE THAT HAS BEEN COLLECTED, AND I HAVE A SEPARATE ORDER THAT I’VE SUBMITTED TO THE COURT FOR THAT PURPOSE.
MS. BRAZIL: YOUR HONOR, THE DEFENSE CERTAINLY HAS A RIGHT TO INSPECT ANY OF THE EVIDENCE. I’M SURE MR. FLANAGAN AND MR. CHERNOFF ARE BOTH AWARE OF THE PROPER CHANNELS THEY NEED TO GO THROUGH TO VIEW EVIDENCE THAT IS BOOKED AT LAPD HEADQUARTERS.
MR. FLANAGAN: YOU CAN’T WALK INTO LAPD OR THE CORONER’S OFFICE AND LOOK AT THAT STUFF WITHOUT SOME SORT OF AN ORDER.
THE COURT: I DON’T HAVE THE ORDER FOR INSPECTION. THERE IS ONE THAT WAS SUBMITTED TO US?
MR. FLANAGAN: YES.
THE CLERK: FROM TODAY, MR. FLANAGAN.
THE COURT: I WANT THE PEOPLE TO TAKE A LOOK AT THE WORDING BECAUSE —
MS. BRAZIL: YES, YOUR HONOR.
THE COURT: — MR. FLANAGAN IS RIGHT. I MEAN, THE DEFENSE NEEDS AN ORDER AND THERE HAS TO BE A PROPER SUPERVISION.
MS. BRAZIL: YES. I UNDERSTAND, YOUR HONOR. HAD I BEEN PROVIDED ONE PRIOR TO OUR HEARING, I WOULD HAVE REVIEWED IT.
THE COURT: I UNDERSTAND.
MS. BRAZIL: (EXAMINING DOCUMENT) I HAVE REVIEWED IT, YOUR HONOR.
THE COURT: IS IT ACCEPTABLE?
MS. BRAZIL: YES, IT IS.
THE COURT: LET ME READ IT. “GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED THAT THE LOS ANGELES COUNTY DISTRICT ATTORNEY, AND THE LOS ANGELES POLICE DEPARTMENT, AND THE LOS ANGELES CORONER’S OFFICE PERMIT DEFENSE COUNSEL, EDWARD M. CHERNOFF AND J. MICHAEL FLANAGAN, AND THEIR DESIGNATED EXPERTS TO ACCESS, AND INSPECT, AND TAKE PHOTOGRAPHS OF ANY AND ALL ITEMS SEIZED FROM THE RESIDENCE LOCATED AT 100 NORTH CAROLWOOD DRIVE, LOS ANGELES, IN CONNECTION WITH THE ABOVE-REFERENCED MATTER.” I’LL PUT A PARENTHETICAL COMMENT, “(SUBJECT TO APPROPRIATE TIME AND SECURITY CONSIDERATIONS).”
MS. BRAZIL: YES, YOUR HONOR. THE DETECTIVES WILL HAVE TO BE PRESENT WITH THE DEFENSE AND ANY OF THEIR EXPERTS WHO ARE WITH THEM AT ALL TIMES DURING THE VIEWING.
THE COURT: THAT JUST PROTECTS THE INTEGRITY.
MR. FLANAGAN: THAT DOESN’T APPLY TO THE CORONER’S OFFICE, WOULD IT?
MS. BRAZIL: YOUR HONOR, I BELIEVE A REPRESENTATIVE OF THE CORONER’S OFFICE WOULD ALSO BE PRESENT WHEN THE EVIDENCE IS VIEWED WHEN IT IS IN THEIR POSSESSION.
THE COURT: I UNDERSTAND THAT. I DON’T THINK LAPD HAS TO BE PRESENT FOR THAT.
MS. BRAZIL: CORRECT.
MR. FLANAGAN: THE CORONER.
THE COURT: I’M JUST INDICATING SUBJECT TO APPROPRIATE TIME AND SECURITY CONSIDERATIONS. I’M SIGNING THIS TODAY, COUNSEL.
MR. FLANAGAN: THANK YOU.
THE COURT: YOU’RE WELCOME. GIVE ME A SECOND HERE. NOW, THAT IS THE ORDER I’M GOING TO SIGN TODAY. BUT COUNSEL, MS. BRAZIL, YOU WANT TO DISCUSS WITH MR. WALGREN THE OTHER ORDER, THE FORMAL ORDER FOR DISCOVERY.
MS. BRAZIL: THE ONE WE JUST WENT OVER, YOUR HONOR.
THE COURT: I MEAN, WELL, BECAUSE I’M NOT GOING TO SIGN IT RIGHT NOW BECAUSE SOME OF IT INCLUDES THE PHOTOGRAPH ISSUES. I THINK WE MAY HAVE —
MS. BRAZIL: I DON’T HAVE THE ORDER THE COURT IS REFERRING TO. MR. FLANAGAN JUST HANDED ME A ONE-PAGE DOCUMENT THAT IS ENTITLED PROPOSED ORDER FOR ACCESS AND INSPECTION OF PROPERTY. I DON’T HAVE ANY OTHER DOCUMENT TO PROVIDE MY INPUT TO, YOUR HONOR. I APOLOGIZE.
THE COURT: I DON’T THINK YOU SHOULD APOLOGIZE IF YOU DON’T HAVE IT. I’VE JUST BEEN HANDED THIS ORDER FOR DISCOVERY. I’LL NOT SIGN IT RIGHT NOW BECAUSE THERE ARE SOME ISSUES RELATED TO PHOTOGRAPHS WHICH WE HAVE TO DISCUSS.
MS. BRAZIL: YES, YOUR HONOR. THANK YOU, MR. FLANAGAN.
MR. CHERNOFF: DID YOU GET THIS?
MS. BRAZIL: NO, I DIDN’T GET A COPY OF THIS EITHER.
THE COURT: THE PEOPLE HAVE THIS ONGOING DISCOVERY OBLIGATION WHETHER OR NOT I SIGN IT OR NOT.
MS. BRAZIL: YES, YOUR HONOR.
THE COURT: WE WILL SET A DATE AT THE BEGINNING OF NEXT WEEK FOR THE DEFENSE AND THE PEOPLE TO MEET THEIR DISCOVERY OBLIGATIONS, AND I MEAN PARTICULARIZE THE NATURE OF WITNESSES AND PROVIDE THE APPROPRIATE INFORMATION THAT IS REQUIRED UNDER CASE AND STATUTORY LAW. MONDAY? TUESDAY? NOT ANY LATER. WE HAVE TO MOVE, FOLKS. WE HAVE TO KEEP MOVING ON BECAUSE I DON’T KNOW WHAT KIND OF IN LIMINE MOTIONS ARE HANGING AROUND WAITING TO BE ADDRESSED. DO YOU SEE ANY AT THIS JUNCTURE, DEFENSE COUNSEL? ARE THERE EVIDENTIARY MOTIONS THAT ARE ON THE HORIZON?
MR. CHERNOFF: WE WILL HAVE SOME MOTIONS, IT APPEARS, I THINK, ON RELEVANCE GROUNDS. SO WILL THE PEOPLE, I’M SURE. MONDAY, JUDGE. IS THAT OKAY WITH YOU?
THE COURT: THAT IS MR. WALGREN’S FIRST DAY BACK, MS. BRAZIL?
MS. BRAZIL: MONDAY IS FINE WITH THE PEOPLE, YOUR HONOR.
THE COURT: LET’S TAKE A LOOK. MONDAY, THE 28TH. LET’S MAKE IT — YOU HAVE A FEW OTHER MATTERS ON CALENDAR. 9:15 A.M. I’D LIKE TO START AS EARLY AS POSSIBLE, BUT I HAVE PREVIOUSLY SCHEDULED MATTERS. WOULD THAT BE OKAY WITH THE DEFENSE?
MR. CHERNOFF: YES.
THE COURT: WITH THE PEOPLE?
MS. BRAZIL: YES, YOUR HONOR.
THE COURT: FURTHER PROCEEDINGS IN THIS CASE THIS COMING MONDAY, 28 FEBRUARY 2011. AND ONCE AGAIN, YOU ANTICIPATE THERE WILL BE A 977 APPEARANCE BY COUNSEL WITHOUT DR. MURRAY?
MR. CHERNOFF: YES, JUDGE.
MR. FLANAGAN: YES.
THE COURT: I’M FINE WITH THAT FOR NOW.
MR. CHERNOFF: JUDGE, WE WILL HAVE — I’M SORRY TO YOU.
THE COURT: YOU DIDN’T.
MR. CHERNOFF: WE HAVE ONE OTHER ISSUE. WE HAVE AN OUT-OF-STATE SUBPOENA REQUEST. I BELIEVE IT IS TO BE PROVIDED TO YOU EX PARTE TO EXPLAIN. WE HAVE TO EXPLAIN TO YOU WHY WE NEED THIS WITNESS AND HOW IT MATTERS TO THE DEFENSE. THAT IS THE PROCESS THAT IS INVOLVED BECAUSE YOU HAVE TO — I’M TELLING YOU SOMETHING I KNOW YOU KNOW. YOU HAVE TO AUTHORIZE FOR US TO GET THE OTHER STATE TO AUTHORIZE THE SUBPOENA.
THE COURT: OKAY. WE CAN DO IT EX PARTE IN CAMERA. I’LL HAVE TO DECIDE IF IT IS THE KIND OF THING THAT SHOULD BE PROVIDED TO THE PEOPLE AT THAT JUNCTURE, BUT RIGHT NOW I DON’T KNOW IF IT IS.
MS. BRAZIL: YES, YOUR HONOR, AND IS THIS WITNESS ON THE PROPOSED WITNESS LIST OF THE DEFENSE?
MR. CHERNOFF: THIS WITNESS IS ON OUR PROPOSED WITNESS LIST, YES.
MS. BRAZIL: WOULD THAT BE THE ONE THAT WAS TURNED OVER TO THE PEOPLE?
MR. CHERNOFF: WE KNOW ABOUT THIS WITNESS BECAUSE THE PROSECUTION TALKED TO THIS WITNESS, INTERVIEWED THIS WITNESS, RECORDED THIS WITNESS.
THE COURT: ARE YOU ABLE TO TELL THE PEOPLE CONFIDENTIALLY?
MR. CHERNOFF: YES. I DON’T WANT TO DO IT WITH THE PRESS. THAT’S ALL.
THE COURT: THE PUBLIC HAS A RIGHT TO BE PRESENT DURING ALL OF THESE PROCEEDINGS. THERE ARE SOME ISSUES THAT ARE PARTICULARLY SENSITIVE, SO I’M GOING TO ALLOW COUNSEL TO JUST SHARE THAT INFORMATION BEFORE WE GO IN CAMERA EX PARTE. IF YOU WANT, WE CAN ALL JUST GO IN THE HALLWAY FOR A SECOND AS WE GO IN CAMERA, THEN THE PEOPLE CAN LEAVE.
MS. BRAZIL: YES, YOUR HONOR. MAY THE RECORD REFLECT THAT I’M PROVIDING MR. CHERNOFF WITH THE CD CONTAINING THE S.I.D. PRINT EVIDENCE THAT WAS SUBJECT OF THE COURT ORDER LAST WEEK.
THE COURT: DOES IT HAVE A SPECIFIC MARKING ON IT?
MS. BRAZIL: IT DOES, YOUR HONOR. IT SAYS 2-23-11, TODAY’S DATE, S.I.D. PRINTS DISCOVERY DEFENSE.
THE COURT: TODAY’S DATE IS THE 24TH.
MS. BRAZIL: I’M SORRY, YOUR HONOR.
THE COURT: IT SEEMS LIKE TOMORROW.
MR. CHERNOFF: APPARENTLY, THE HOMICIDE DETECTIVE PICKED UP OUR DISCOVERY, THEN CALLED US LATER TO TELL US.
THE COURT: MR. CHERNOFF HAS IT.
MR. CHERNOFF: I HAVE IT NOW.
MS. BRAZIL: THANK YOU, YOUR HONOR.
THE COURT: LET’S MEET BRIEFLY AND WE WILL CONDUCT FURTHER EX PARTE PROCEEDINGS, AND WE WILL BE BACK ON THIS CASE AT 9:15 A.M., MONDAY, 28TH OF FEBRUARY. HAVE A NICE ONE.
MS. BRAZIL: THANK YOU, YOUR HONOR.
(FURTHER EX PARTE PROCEEDINGS WERE HELD IN CHAMBERS.)
(PROCEEDINGS WERE CONTINUED TO 9:15 A.M., FEBRUARY 28, 2011.)
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