Motions Heard, Discovery Issues, and Review of Jury Pre-Instructions

May 27, 2004

JUDGE:  All right.  Let the record show that the jury's been excused. 

I deliberately didn't swear the jury this morning.  I'm not going to swear the jury until Tuesday morning at 9:00 o'clock to provide for any eventualities that may arise.  This case being the way it is, it's something that the court has taken into consideration.  I have this letter that I used to excuse that one juror who held out until the very last minute, and I'm going to give it to the clerk and ask her to shred it so we can preserve (sic) his name. 

All right.  Let's get into deep water here and listen to these motions.  First of all, I have the motion for sanctions.  Notice of motion and motion for sanctions.  I have the opposition to the motion for sanctions and motion to exclude witness Diane Jackson and request for discovery. 

First of all, I have to say I am a little irritated that we're dealing this late in the game with People vs. Hall, and I'm sure the district attorney has a good reason but, you know, somewhere along the line, before we start with opening statements and taking testimony, we've got to resolve these issues.  And I'm getting a little aggravated about -- this is like, you know, one drip at a time that this stuff is coming in here, and it makes it very difficult in order to schedule the things we're going to do here. 

And I know, I'm sure the district attorney has a good reason why -- why we're getting this piecemeal. 

To account for one other issue in this motion, the district attorney inadvertently listed the names of some potential witnesses for the defense.  The matter had been placed on the Internet and I had it taken off the Internet, and I had the -- the names expunged, so hopefully that will solve the problem.  That's -- that's on the prosecution's moving papers.  

The first issue I'd like to deal with this morning before -- well, I can take up this issue with Diane Jackson, first of all.  And I'm ready to entertain any further arguments.  The court has, you know, spent a lot of time trying to resolve this issue.  I can say parenthetically that some of these issues are sort of knotty issues.  They're issues of first impression.  There's not too much law, if any, on it --

GERAGOS:  I was going --

JUDGE:  -- so -- huh? 

GERAGOS:  I was going to tell you exactly that.  I went not just in state, but I did one of those out of state searches because it occurred to me that somewhere in some jurisdiction there must have been a situation -- obviously if this were the dead pool situation, that seemed to be a no-brainer.  Something where the opponent wants to get the evidence in and they don't comply with the code section and it's the end of the day.  This becomes, as you -- I think you characterized it right, it's a knotty situation in the sense that -- and I think compounded by the fact that the investigator had taken a statement, the defense investigator had taken a statement the day before, because a lot of times judges will say Well, right; now all of a sudden that became an important witness; it wasn't -- you know, why didn't you do something way back when?  Here's a situation where in real time, before she was hypnotized, the -- Mr. McAllister's investigator, Mr. Ermoian, had taken her statement.  In addition to that, I found yesterday, and I hadn't supplied it but I assume they know -- or they've seen this, the --

DISTASO:  (Nods head)

GERAGOS:  -- and I'd like to mark this as a court's exhibit, if I can. 

JUDGE:  All right. 

GERAGOS:  I've shown it to the prosecutor and he knows of it.  If you take a look at that, the Modesto PD thought that this information was substantial enough -- and I'd like to mark that as Court's Exhibit A, that if you could see --

JUDGE:  Court's next in order. 

GERAGOS:  Next in order, thank you. As you can see, obviously Modesto PD took it seriously enough to post a thousand dollar reward and circulate that flyer and have a tip line in connection with it.  Now, I'm betwixt and between.  I think I have to, as a defense lawyer, when they propose bringing in Dempewolf, to object that they haven't complied with the code, but I think I cited at the time and told the court at the time the problem is or the coming attraction is there's somebody else who gave a statement, that statement was reported by the defense.  Through no fault of our own she gets hypnotized.  We certainly, can you imagine, and I wasn't the lawyer then but I can't imagine that Mr. McAllister would have called up the -- Mr. Distaso and said Don't hypnotize her.  Distaso would tell him to go pound sand.  So you're not going to get anywhere there. 

JUDGE:  Can I interrupt you just one second? My understanding when this information was being garnered by the prosecution and these witnesses were being hypnotized, the time -- the time sequence is Laci Peterson's body had not been found; nobody knew where she was. 

GERAGOS:  That's correct. 

JUDGE:  Is that fair to say? 

GERAGOS:  That's true fair to say. 

JUDGE:  All right.

GERAGOS:  This is exactly, I believe, a week to the day after the wiretap affidavits, which this court is obviously familiar with.  Now, the question is well, if the -- and I accept Mr. Distaso's representation, and he's made it in his paperwork and he's told me orally this morning, he didn't know that Pennington was not a licensed hypnotic technician or hypnotist, or whatever. 

JUDGE:  Hypnotist. 

GERAGOS:  I don't know whether under the code he's technically a hypnotist.  The -- the problem is that if it is information -- and part of my problem, besides just the fact that I had already given it to them in discovery, and turned over the report, there's also -- the reason I put in this other situation with the guy who sees who he believes to be Laci and two people putting her into a van, is obviously what -- we've only had that, you know, for a couple of days.

JUDGE:  Since Thursday. 

GERAGOS:  Right.  And this gentleman is out of the state as we speak.  Apparently based upon the information that we've garnered.  I haven't gotten to him yet.  I want to do a drawing or have somebody do a drawing and show it to him of what the van looks like.  Obviously I want to take that picture, go back and show it to Jackson and see if we're talking about the same van.  You know, I'm between a rock and a hard place.  This stuff comes to me at -- and I'm -- I think we discussed in chambers, I'm not accusing the DA of giving it late.  What I am accusing is Modesto PD of deep-sixing at least -- and I've listened to the tape of the interview with this witness, the retired or ex cop; in that tape he says not only did he call the police, and supposedly that's the entry, the three line entry that's contained in the 8900 tips?  He said he went down to the command center and somebody took a report.  And Detective Grogan asked him two or three times, Somebody wrote a report?  Yeah, somebody wrote a report, took notes, wrote a report.  So this guy apparently was known to them in real time.  Somebody took a report.  I think that Mr. Distaso will stipulate that that's nowhere in the 40,000 pages of discovery. 

The -- what is in the 40,000 pages of discovery is this -- the call in amongst the 8900 tips, and then you could relate it, if you knew anything about it, there's another entry in February where apparently the man, the witnesses' wife talks to a friend whose got a New York PD detective friend who calls the Modesto PD and says the same things, says you better look at this guy or talk to this guy.  Nobody talks to the guy. 

The other problem is now look where we're at.  There were two witnesses to this.  The woman has now died, through no fault of our own.  But we've now got one person who obviously I want to conditionally examine immediately, because they've indicated they're not calling it in the case in chief.  I've got to get to this person, I've got to get a sketch, I want to take that to Diane Jackson before this court rules Diane Jackson is not coming in because of whatever.  I think that the only remedy that this court can say at this point is Look, Mr. Geragos, I'm willing to let you have the pre-hypnotic statement that your investigator took.  I don't think that there's any appellate court that would say a defense, when they went and took the pre-hypnotic statement, and if I can link that up to -- by identification with another van that was sighted with Laci Peterson, that any court's going to say no, the prosecution can just go hypnotize a person and you eliminate them.  You know, I'm saying facetiously to Mr. Harris when we were discussing this, you know, it would be tantamount to me going down to Fresno, or wherever Amber Frey is, and pulling out a pocket watch and knocking on her door and saying Here, I've hypnotized you, and then saying Nah, nah, nah, nah, you can't call her as a witness now.  And -- and -- I mean, how could I do that?  How could that possibly be the law that somebody who is potentially either inculpatory, if they think it is, or exculpatory, if I think it is, being negated as a witness by virtue of the other side --

JUDGE:  I think I have an answer. 

Mr. Geragos:  Okay. 

JUDGE: Do you want to respond? 

DISTASO:  Well, I do, Judge.  I don't understand -- for the life of me I cannot understand how the prosecution is being accused of late discovery or anything else. 

JUDGE:  First of all, I'm not going to -- I'm not going -- in my ruling I'm not going to accuse you of any misconduct, so you can put your mind at rest about that issue. 

DISTASO:  Okay.

JUDGE:  If you want to explain the late discovery, feel free to do so. 

DISTASO:  Well, I mean, assuming the court's not going to take that into consideration in any of the court's ruling, I don't think it's necessary.  I do think it's important to say for the record, though, that this -- and when you say this tip, the witness's name, address, phone number and a description of what they said they saw was provided to them almost a year ago on February -- May 14th, 2000 and 3.  I brought it with me in case the court wants to see it.  But -- so as far as them not knowing -- supposedly not knowing about this person, there's a ton of discovery, that's true.  On the other hand, I'm assuming that they have read through it just like we have.  You know, I mean, both sides have to do the thing here.  Certainly the prosecution is entitled, and we would be completely remiss in our duties if we didn't follow-up at this stage and attempt to -- to deal with what we believe is going to be defense evidence.  I mean that's the way it goes. 

JUDGE:  It's Brady material.  You have to disclose it to the --

DISTASO:  And that's, of course, Judge, exactly what we did.  We wouldn't even be here if we hadn't turned over the report and the tape.  So every time that we followed up on this evidence that we believed -- well, that we thought the defense might use, if it was something that -- actually, whether we thought it was Brady or not we've turned it over.  We've turned over every single possible piece of evidence that we have, so --

GERAGOS:  Except, and I think I accurately characterized what the state of the -- of this is.  There is a notation that's three lines.  There is a now taped interview by Detective Grogan in which he says the witness says that he went to the command center and he gave a report and somebody took notes.  I think Mr. Distaso and I can agree that's nowhere in the 40,000 pages. 

DISTASO:  Oh, I think that's -- that's correct. 

GERAGOS:  Right.  It's nowhere there. 

DISTASO:  I mean --

GERAGOS:  He says he did that in December, and we don't have it.  The first time I get it, and I will agree again with Mr. Distaso, is you saw me in -- back in the chambers within three hours of getting it and you were peeling me off the ceiling.  The -- the fact of the matter is I've got to deal with this.  I mean it's significant. 

DISTASO:  Right.  But I'm not going to argue that, Judge. 

JUDGE:  All right. 

DISTASO:  Here's the thing --

JUDGE:  Before we get there, I should -- when this issue came up I said put it in the form of a motion so we would have a record of what happens.  So, go ahead. 

DISTASO:  The -- the other issue is this.  When we're talking -- so I guess that's one side, which, you know, I don't really see how that applies, unless we're talking about late discovery, which I think I've argued is not late discovery.  But -- so let's go to the other piece.  The main piece we're here for, Diane Jackson, this morning.  There's not a stitch of evidence that the Modesto police did anything improper, that anything was done for an improper motive.  I think I made that clear in my moving papers. 

JUDGE:  I told you I'm not going to accuse you of doing anything improper.  I think it was prudent at the time --

DISTASO:  Right.

JUDGE:  -- since you were trying to find out where Laci Peterson was, to interview these people.  If you had to hypnotize them, fine.  I think the motive was a noble one; all right? 

DISTASO:  All right. 

JUDGE:  Go ahead. 

DISTASO:  So, that being said, that -- the statute, of course, is clear.  Once the witness is hypnotized they can't come into evidence.  Now, I understand the defense's problem.  So let's look at what the statement is.  I think that's most important thing.  What evidence are we really fighting or talking about here?  We're talking about Diane Jackson at 11:40, and it's undisputed that, at the latest, Karen Servas found the dog by 10:30.  Because she initially said 10:30, at the prelim she said –

GERAGOS:  I just want to make it clear, I know that's the premise.  It isn't undisputed. 

DISTASO:  Okay.  Well, that's fine, but that's going to be the testimony, if nothing else.  Then at 11:40 Miss Jackson says she drives down the street, and not in front of Laci Peterson's house or anything to do with Laci Peterson, but across the street she sees a van parked, you know, which she says is a van; she initially says it's white, she later says No, I think it's darker, a tan or a brown.  And she sees three men standing by it not doing anything wrong.  Laci Peterson isn't there, the dog isn't there, the house isn't -- doesn't look like it's been broken into, they're not carting things out, they're just standing out two in the street and one near the van, in the front yard.  That evidence People vs. Hall says cannot come into evidence unless they can somehow link it to Laci Peterson.  That's the way it goes. 

JUDGE:  Let me ask you this.  What about the -- what about the statement of the reserve police officer or the former police officer who, as I understand it, gave a statement, was passed on to Mr. Geragos, that he saw -- you correct me if I'm wrong, someone who matched the description of Laci Peterson.  And I believe he said she was urinating alongside a van, which he identifies as a brown van, and then she was dragged into this van by her hair by two males. 

DISTASO:  On -- four days later.  On December 28th.  That's what the guy says.  He says he saw Laci Peterson at a completely different location, miles away from her house.  He actually says at Klause and Phoenix, which is a location in Modesto four or five miles four days later.  He doesn't say that these people -- didn't say it's the same van, doesn't say it's the same men.  He doesn't describe these men as dark skinned.  In fact, he describes a single white male.  That's what he said.  So we've got Diane Jackson saying three dark skinned males, not African American.  Got this man saying four days later, four or five miles away, that a single white male pulls -- or is standing there while she's urinating against the fence and then another male in a van pulls her in. 

JUDGE: What color was the van? 

DISTASO:  I think he said the van -- I have the tip exactly here. 

JUDGE:  Was it a dark colored van, something like that? 

DISTASO:  I think he said it's a tan or brown, or something like that. 

JUDGE:  What does Mrs. Jackson say? 

DISTASO:  She says -- initially she tells the officers it's a white van. 

JUDGE:  And then she says --

DISTASO:  Then she says it's tan or brown.  I mean, Judge --

GERAGOS:  Beige. 

JUDGE:  Let him finish. 

DISTASO:  If we're -- you know, if every brown van -- you know, Modesto is a city of 200,000 people.  I got to believe there's more than one brown van.  My question is how -- to meet the People vs. Hall standard, how can they link this van to -- to this van allegedly seen four days later?  It's impossible. 

GERAGOS:  Let's see if I got this right.  Both people initially say they think it's a white van but it's a little darker and they describe it as tan.  He says it's not in front of Laci Peterson's house, it's across the street?  I've been in that street.  So has Mr. Distaso.  You know how wide that street is?  It's from the rail there to the wall there. 

JUDGE:  Approximately what? 

GERAGOS:  Approximately 25 feet across, at best.  In fact, when they installed their surreptitious pole camera, they put the surreptitious pole camera directly where this Miss Jackson says this brown van was because that's the best view into the Peterson house.  The -- she describes three people that are not African American, scruffy looking, that are around this van, are not landscaping.  She describes them as looking like they're up to no good.  This gentleman, who is a reserve officer -- and by the way, he keeps saying four days later.  I'm not so sure that that's actually correct, and I will do the investigation.  I've listened to the tape.  He says he called it in.  They say what day.  He says Well, whatever day I called it in, and tells them that he talked to them twice on the phone.  We only have one entry on the phone.  I suspect what really happened is he called it in either the same day or a day later and, when the detective called to find out what it was about and entered the information, that that was on the 28th.  And then he was not -- they never went to talk to this person.  In February 14th NYPD calls, says Modesto PD, what are you doing, we've got a witness, the guy's an ex cop, he sees somebody that looks like Laci Peterson, he turned around because he was so upset, his wife told him not to get involved, he sees her peeing -- the exact statement is he sees her squatting next to the fence, the gentleman has got arms on both sides of her like this so that she can't go left or right, that when she's finished, and she's looking at him as if "I need help," that he then takes her to the van, that he takes her around to the driver's side door, which she thinks is utterly peculiar, and he sees another hand reach out and kind of drag her into the van.  Hello?  The last time I looked that's exculpatory all day long.  And I would like to at least investigate on top of this. 

DISTASO:  Right, but before we finish, I want the court to understand exactly what we're talking about here.  This man who says he saw this on the 28th says -- this is the van he describes.  Beige in color with a white stripe that looks like a lightning bolt or a check mark.  The stripe started by the driver's door and ran to the end of the van.  Miss Jackson says a white van, and she changes it then to say a beige or tan van. 

GERAGOS:  Well, but on the tape he says the same thing.  He says it looked white but it was really a little darker, it was kind of cream.  They both are describing the same thing.  In fact, interestingly, their other witness, Kristen Dempewolf, she describes the van that she sees parked across the street, the one they went and hypnotized, she also sees a van she doesn't recognize from the neighborhood, and she talks about it being oxidized.  Everybody's got this same memory of a van that's in that neighborhood that's out of place that they've never seen before that has this weird color that's not quite white that looks a little darker.

JUDGE:  Well, I'm going to issue the famous words:  I'm ready to rule.  Okay?  Now, I've given this -- I have to say I've given this a lot of thought.  I've been ruminating on this.  Like I said, there's just no law on this issue here.  I've already ruled that there was a violation of the -- of the code section 795 of the Evidence Code, so we're not letting in Ms. Dempewolf's testimony.  I'm not going to revisit that issue because the burden is different between the prosecution and the defense. 

The Constitution doesn't provide the prosecution with the same specific right to present witnesses as they do the defense.  Number one, I'm not accusing the prosecution of bad faith, I'm not accusing the prosecution of misconduct.  As I said before at the time that this hypnotization or hypnosis sessions took place, there was a noble purpose behind it, and that was to see if they could find some way of recovering the -- finding the body of Laci Peterson or whoever was responsible.  So I don't find any misconduct on the part of the prosecution.  With respect to the issue of late discovery, I suspect, because of the reams and reams of material in this case, that this is going to be an ongoing issue.  There's a dispute whether or not the defense was privy to this back a year ago or the defense was not.  I do know, however, that last Thursday Mr. Distaso presented this information about this retired police officer, and basically what he's testified to has been recited on the record by Mr. Geragos. 

So that brings us to the testimony of Miss Jackson.  As far as I'm concerned, it seems to me, out of an abundance of caution, that the argument can be made that the observation by Ms. Jackson has a propensity or tendency to corroborate the testimony of this retired police officer that he saw, whether it was four days later or three days later, two days later, whatever it is.  So we're talking here about Brady evidence.  We're talking about exculpatory evidence.  I am of the opinion if the court keeps this evidence out, for whatever reason, that it would be reversible error, because it is exculpatory evidence.  I think the issue is for the jury to decide whether it has any evidence. 

With respect to the Hall issue it seems to me that since this particular individual identifies this person, whether it was three or four days later, as being looking like Laci Peterson, and so forth, I think there's enough nexus between that incident and the testimony of Ms. Jackson about this mysterious van that was parked in front of the house.  I think that sort of one corroborates the other, and I think that is a sufficient nexus to permit this evidence in.  And whatever relevancy it has or whatever credibility or whatever weight that this evidence is going to have I believe is for the jury to decide.  I don't think that it would be prudent for this court to rule at this time that because of the violation of Section 795 this evidence should not be admitted, and I'm going to give you the reason why here.  And I indicated that if you look at 795(b), it says:  Nothing in this section shall be construed to limit the ability of a party to attack the credibility of a witness who has undergone hypnosis, or to limit other legal grounds to admit or exclude the testimony of that witness.  So I'm hanging my hat on "or to limit other legal grounds to admit or exclude the testimony of that witness."

As far as I'm concerned that's Brady evidence.  As far as I'm concerned that evidence has to be admitted in this case, notwithstanding the fact that Miss Jackson was in fact improperly hypnotized.  So I'm of the opinion, and it's going to be the court's ruling, that the defense interview of Miss Jackson can be presented as evidence.  Mr. Geragos can refer to it as -- in his opening statement and deal with it that way.  And those are the reasons.  I feel that this is Brady evidence, and I think that it is -- it's one corroborates the other, and I think it would be error for the court not to permit that evidence in at this time.  I'm not going to reissue -- I'm not going to revisit the issue of Miss Dempewolf, however.  It also -- another ground to admit Ms. Jackson's pre-hypnosis testimony would be the defendant's right to compulsory process right by presenting a witness in his defense and the right of the defendant to use exculpatory evidence under the due process clause. 

So for all those reasons it's going to be the court's ruling that that evidence -- the evidence of Miss Jackson's statement to the defense investigators will be admitted.  And because -- and -- if this -- if this was an isolated situation, then it would really be a problem, but the fact that we have this reserve police officer making these observations, then I think that opens the door where the court is compelled to permit that evidence to be presented to this jury.  They can give it whatever the evidence -- they want -- whatever weight they want to give it.  The argument that Mr. Distaso is making to the court can be made to this jury that this is a red herring, they should not pay any attention to it, but I think to protect the record that evidence should be in the record. 

DISTASO:  Your Honor, can I correct the record?  The court repeatedly stayed that it was a retired police officer. 

JUDGE:  Whatever he is. 

DISTASO:  Right.  Actually, just so the record's clear, he was a reserve police officer for three years in the 1970s. 

JUDGE:  All right. 

DISTASO:  And since that time he has not been a police officer. 

JUDGE:  All right.  Then he was a reserve police officer.  I stand corrected. 

GERAGOS:  Maybe he's a retired reserve police officer. 

DISTASO:  My other issue is that -- is that can the court -- and maybe I'm just unclear, but is this limited to at least only the testimony prior to Miss Jackson's hypnosis, just the defense statement?

JUDGE:  Right. 

GERAGOS:  Right. 

JUDGE:  And then -- and then you can use your same to your investigator to impeach her statement, whatever it is.  If it's inconsistent, you can certainly use whatever she told your investigator.  But I think that -- and I have to tell you again, there's no law on this, but I'm comfortable with this ruling because I think that due process really requires it.  So that's going to be the court's ruling with respect to that issue.

The other issue, now that I'm -- I told you that I'm a little aggravated about is this Hall stuff.  And, Mr. Geragos, I know that you can play this cozy and say I'm not compelled to disclose my defense and that -- and -- and I would have to maybe live with that.  However, there's this motion here that's coming in here now.  We're talking about Hall, and the defense is raising these issues, let's see on one of these pages here, cult of satanists.

GERAGOS:  Judge, that's -- I can assure you that that's not going to be raised. 

JUDGE:  Okay.  That's what I want to know. 

GERAGOS:  Just telling you -- I can assure you that's not going to be raised. 

JUDGE:  Okay.  So that -- okay.  The next issue -- and I'll accept your representation.  The next issue is this individual here painting pictures at the Albany Bulb. 

GERAGOS:  That's not -- not my deal, Judge. 

JUDGE:  So that's not going to be referred to at all. 

GERAGOS:  Albany Bulb may be, but not in pictures or anything else.  The location --

JUDGE:  Well --

GERAGOS:  -- the location --

JUDGE: -- again, there would have to be some showing that there is some sort of nexus between the Albany Bulb and this case. 

GERAGOS:  Right.  The location is smack dab between the -- where my client is fishing and where the bodies are.

JUDGE:  Okay. 

GERAGOS:  So they're going to show it -- in fact, it's actually shown in their three minute satellite deal that they are going to use in opening.  It's on --

JUDGE:  All right.  I can live with that.  Any mystery woman.  The first I've ever heard of it.  Who is this mystery woman? 

GERAGOS:  He's -- he's referring back to the initial stages when we were investigating this case. 

DISTASO:  Well, I did actually -- I also wrote including Amanda H. 

GERAGOS:  Well, Amanda H. the court knows about; I've talked about in chambers.

JUDGE:  And for the record –

GERAGOS:   That's -- for the record that's still ongoing.  That investigation is still ongoing. 

JUDGE:  Okay.  So we don't know. 

DISTASO:  But -- let's just take it by piece, Judge. 

JUDGE:  Yeah. 

DISTASO:  Then if that investigation's ongoing, he's saying he still might use it, we have no discovery from --

JUDGE:  I'm going to get to that. 

DISTASO:  Okay.

GERAGOS:  Right.  If I planned on using it -- as this court knows, I've been waiting for tests to be done and then doing my own, and if it turns out that I'm going to use that, I'll turn it over.  I'm not -- at this point I do not reasonably anticipate doing that. 

JUDGE:  Okay.  Then I would suggest that you not make any mention of her in your opening statement. 

GERAGOS:  I wasn't planning on it. 

JUDGE:  Okay.  In the event the court rules that that evidence is inadmissible for some reason.  And I also caution these jurors that the opening statements of counsel for either side is not to be considered as evidence.  That you may say We're going to show A, B and C and then only hear about A, whatever it is. 

So, Mr. Distaso, then we don't have to worry about the cult of satanists, the Albany Bulb, only to the extent that apparently it's in the general vicinity where Laci Peterson's body was recovered.  On Amanda H, that's still an ongoing issue and I think that's on the record.  I think we discussed that on the record. 

GERAGOS:  I have discussed that, as this court knows, for in excess of 30 minutes on the record. 

JUDGE:  Okay.

DISTASO:  We haven't been privity to any of that.  That's part of the problem. 

GERAGOS:  Because I don't reasonably anticipate doing anything with it until such time that I get --

JUDGE:  Okay.  I'll require and I will make the order now, that if and when, Mr. Distaso -- Mr. -- I'm getting you guys confused now -- Mr. Geragos, you decide that you're going to call this lady, that you give the prosecution sufficient time to file whatever response or any issues they want to raise.  Because like this thing I got -- and, again, I don't want to be jumping on anybody's case, but, you know,

we didn't get your motion, Mr. Geragos, until Monday.  I didn't get the response from the prosecution until yesterday.  Today's the day that we have to rule on this.  It doesn't give me much time either.  And I like a little time to ruminate and think about these rulings.  So I'm -- so that -- at least all this Hall material has been sorted out, okay? 

GERAGOS:  And I also told Mr --

JUDGE:  Amanda H. The brown van, I just dealt with that.

GERAGOS:  Okay.  I also told Mr. Distaso I got -- he wants -- I guess one of his investigators called Dr. Wecht and Dr. Lee and wants any notes or pictures.  I've got a ton of pictures that have been sent to me by way of e-mail which I can -- and he's told me that it's acceptable if I just forward them to his e-mail the same way that I got them. 

JUDGE:  Okay.  I was going to address that next issue here now.  This issue -- and, again, here we are, here we are, we're on the eve of trial and still dealing with discovery.  Now, these experts, Mr. Distaso -- first of all, are you -- are you saying that you received no discovery from these three experts that are set forth on page nine? 

DISTASO:  Yes, that's right. 

JUDGE:  Zero? 

DISTASO:  I believe that -- I believe we got their CVs, and I think we only got that after we called and requested it from them personally. 

JUDGE:  All right.  Now, I assume, Mr. Geragos, you're going to be calling these three folks. 

GERAGOS:  I'm probably going to be calling two out of the three.  But remember the third guy, doctor -- the -- the other doctor whose name I don't want to mention because I don't want people knocking down his door, but he was only contacted after their -- that other guy that they brought on board in February.  So he's still a work in progress.  I'm trying to bring him up to speed. 

JUDGE:  All right.  Then I'm going to make the same ruling now.  I think that if you decide you're going to call a couple of these witnesses, then I think you should turn over the gist of their testimony to the defense -- to the prosecution. 

DISTASO:  Prosecution. 

GERAGOS:  I'll turn it over. 

JUDGE:  Because the one thing that really bites my -- or pulls my chain is when you call a witness and the other side stands up and says I don't have discovery, Judge, and I got 18 people sitting here and it causes a delay in the trial.  And that really upsets me.  So I want all this stuff dealt with ASAP.  So I want you to turn over that -- any of those statements of these particular expert witnesses should be turned over to the prosecution.  And I'm going to give you a cut-off date.  What date would you like to get these things over to the prosecution? 

GERAGOS:  Three weeks. 

JUDGE:  Okay.  Does that give you enough time?  Because your case is going --

GERAGOS:  They've got four months before their --

DISTASO:  That's --

JUDGE:  I know that, but I don't like last-minute stuff. 

GERAGOS:  Well, remember also the problem is that I'm dealing with them in terms of, you know, turning over --

JUDGE:  I know. 

GERAGOS:  -- items, and I've got -- and a lot of these items are coming in recently; these guys are still dealing with. 

JUDGE:  They're working.  And here's the other issue, why I think you should -- why I want it sooner rather than later, because it's been my experience in this case now that if A is discovered, that engenders some other discovery about B, C and D. 

GERAGOS:  Right. 

JUDGE:  So that's why I want to get this stuff over ASAP.  And then if it engenders other issues, then we'll deal with those.  And I -- I suspect this is going to be an ongoing problem in this trial.  I -- because of the -- the magnitude of the discovery and all the people who have been kibitzing in this trial and lending their two cents' worth, the ones that are relevant, material, and the ones that are not, officious intermeddlers that just want to gum up the works, that this is going to be an ongoing problem.  So I want you to turn that information over to the prosecution so I don't have to sit here and ride herd on everybody.  So you said you can have that done -- today is May 27th.  Can you have that to the prosecution no later than June 21st? 

GERAGOS:  Perfect. 

JUDGE:  Okay.  And then you let me know, Mr. Distaso, because I want that stuff done.  And now what about these -- are there any videotapes, copies of all photographs, videotapes taken during the autopsy or while visiting the residence at 523 Covena, or at any other time during their investigation, including any personal photographs taken by these two experts?  Is that --

GERAGOS:  The only -- the only stuff I have to turn over is anything I'm going to use. 

JUDGE:  That's right. 

GERAGOS:  Anything I'm going to use I'm going to turn over. 

JUDGE:  That's right.

GERAGOS:  They've just got a laundry list of everything they know I've done. 

JUDGE:  When is that stuff going to be done? 

GERAGOS:  Within the three weeks.  I told them the pictures that Dr. Lee took I would just forward on e-mail.

JUDGE:  All right. 

GERAGOS:  He can have that right now.  I don't even know that I'm going to use all that, but he can certainly look at it.

JUDGE:  Okay.  Like I said, I want this stuff dealt with.  I don't want to wait until the last minute.  Now, let me ask you, Mr. Distaso, all this other stuff I'm not going to mention, but all this other stuff that's going on that we're aware of; the Department of Justice has some stuff? 

DISTASO:  Yes, I believe that's all pretty much done. 

JUDGE:  Okay. 

DISTASO:  And I believe those reports have been turned over. 

JUDGE:  Okay.  Are you satisfied? 

GERAGOS:  I got --

JUDGE:  Have you got everything -- what about this stuff from the mysterious box and the contents thereof?  Has that been sorted out? 

D. HARRIS:  Every --

GERAGOS:  I believe I got a disk yesterday from --

D. HARRIS:  Every request that Mr. Geragos wrote down on a yellow piece of paper was forwarded to the Department of Justice. 

JUDGE:  And complied with? 

D. HARRIS:  And complied with.  All analysis has been done that they can do, and all that information has been put into a report and provided to the defense.

JUDGE:  Okay.  That's all I wanted to hear. That's good news.  Okay. 

D. HARRIS:  And that also goes back to the previous in camera where we were not privy to but we were directed afterwards to do certain things. 

JUDGE:  Correct. 

D. HARRIS:  All of that was done through the Department of Justice.  All of that information has also been turned over to the defense. 

JUDGE:  All right.  Okay. I have to say I don't like surprises.  I hate surprises.  My wife knows that.  Don't surprise me.  So I don't want to have this come up in this trial.  Have we dealt with all these issues now this morning?  I've already ruled on the van, I ruled about the testimony of this reserve officer who was a policeman for three years, or whatever.  I don't want to -- to exaggerate his qualifications.  That's neither here nor there, because we know he's not entitled to any greater weight than anybody else if he's called to testify.  We know that. 

DISTASO:  Your Honor, as I sit here right now, the court has, but I -- I -- I know the court hates surprises, but the reality is --

JUDGE:  There will be. 

DISTASO: -- there's going to be issues that come up. 

JUDGE:  I expect that. 

DISTASO:  Okay.

JUDGE:  I expect counsel -- you know, Mr. Distaso, you guys have gotten along, as far as I can tell, well so far, and I know other issues are going to come up. 

I'm just hopeful that this -- that you -- this informal discovery will take place so I don't have to ride herd on anybody.  I just hope it will be done as it has been done in the past.  I don't want to be sitting here like a referee saying what about this, what about that, what about this.  It should all have been done.  So that's why when I read this thing about People vs. Hall this morning I thought what are we doing this now when opening statements are scheduled for -- for Tuesday, you know. 

DISTASO:  All right, Judge, I think that's it.

JUDGE:  Is that it?  Now, are you guys now going to be ready for Tuesday morning?  I'll tell you what's going to happen.  We'll bring the jury out, and Marylin I want you to write a note to yourself, big letters, swear the jury.  I'm going to write a not to myself, swear the jury.  The first thing that's going to happen is we're going to swear the jury.  Then I'm going to preinstruct the jury, and if you wait just a second.    

(Pause in proceedings)

JUDGE:  I'll tell you what jury instructions I will -- I will give.  I'll preinstruct to this extent.  And while he's dredging up the CALJICs, give me ballpark how long are you going to be, Mr. Distaso. 

DISTASO:  Couple hours.  Two hours, Judge.  Maybe a little longer.  I think, if the court's agreeable to this, after maybe an hour or so we can take a break? 

JUDGE:  Yeah.  Yeah.  I have no problem with that. 

DISTASO:  So it's probably going to be about -- yeah, somewhere two hours, two twenty, something like that. 

JUDGE:  So you're going to take up most of the morning.  Mr. Geragos, how about -- couple days?  Don't laugh.  This happens.  Okay.  You guys don't have your CALJIC, so I'll tell you the ones -- I got the numbers here, I'll tell you what they are.  The first one is the pretrial admonition point fifty.  And then one oh three, which is jurors forbidden to make any independent investigation.  Then two twenty, which is believability of a witness -- believability of witnesses.  Two twenty-one, which is discrepancies in a witness's testimony.  Two twenty-two, has to do with weighing conflicting testimony.  Two twenty-seven, sufficiency of the testimony of one witness is sufficient to prove any fact.  Then two ninety, the reasonable doubt instruction.  I'll probably also give the instruction on circumstantial evidence so they can hear it up front. 

GERAGOS:  Two point oh one? 

JUDGE:  Huh?

GERAGOS:  Two point oh one? 

JUDGE:  Both of them. 

GERAGOS:  Okay. 

JUDGE:  And I'll be giving this circumstantial evidence, too.  And then I have seventeen fifty-three and seventeen forty.  Seventeen fifty-three is --

GERAGOS:  Are you going to also -- I didn't even -- I wasn't paying attention today, admonish again about media, that they not --

JUDGE:  Well, I admonished -- I'll admonish them at every recess. 

GERAGOS:  Yeah, I think you should.

JUDGE:  And I'll admonish them at lunch and admonish them when they go home every night, ad nauseam.  There is seventeen fifty-three, which is the admonition to the alternate jurors.  And seventeen forty-three has to do with jury deliberations.  Well, I won't give them seventeen forty-three, but I will certainly give them seventeen fifty-three and the circumstantial evidence. 

GERAGOS:  So you're going to give oh one and oh two? 

JUDGE:  Well, let me look. Both of those.  One is not entitled to any greater weight than the other.  I'll tell you right now. Two-hundred and two oh one.  Exactly. 

GERAGOS:  Okay.  And you said fifty-three and forty-three of the seventeen series? 

JUDGE:  Not forty-three.  Seventeen fifty-three. 

GERAGOS:  Just fifty-three. 

JUDGE:  The admonition to the alternates. 

GERAGOS:  Okay. 

JUDGE:  So you think, Mr. Geragos, you can argue -- your opening statement will take most of the afternoon? 

GERAGOS:  I would guess that it might take a little while. 

JUDGE:  Okay.  I won't expect anybody to call their first witness on Tuesday, but that should be enough to -- to pique their interest in this trial, and then so we'll start prosecution witnesses 9:00 o'clock Monday (sic) morning, okay? 

DISTASO:  Just so the court knows, Mr. Geragos, our first witness is going to be Margarita Nava, and she requires an interpreter. 

JUDGE:  Okay. 

DISTASO:  And I believe we've made arrangements already for that. 

JUDGE:  Hispanic? 

DISTASO:  Yes. 

JUDGE:  Okay.  And I'm going to make this suggestion, too, for the convenience of both sides.  When you're presenting your case, I would hope that at the evening recess you would let Mr. Geragos know who the witnesses you intend to call the next day so he'll be prepared to cross-examine those folks.  And then, Mr. Geragos, when you're putting on your case, I would assume that you will also be kind enough to let the prosecution know those witnesses you intend to call so they can bring their stuff to cross-examine the witnesses so we don't have somebody say Gee, I was taken by surprise, I don't have my cross-examination stuff here, I left it home, you know, so we want to keep this --

GERAGOS:  Part of Mr. Distaso and my kindler, gentler relationship. 

JUDGE:  That would be -- that would be nice. Okay.  Then it's -- I think that's a wrap.  And I'm pleased that we got our jury selected this morning.  I think it went very well.  I want to congratulate the staff here for doing such a good job and then we'll finally get this show on the road Tuesday morning, 9:00 o'clock with opening statements, okay?  After I admonish the jurors. 

D. HARRIS:  Your Honor, just for housekeeping purposes, I'm sure the court's kind of noticed the large screen over on the wall over there. 

JUDGE:  Yes. 

D. HARRIS:  We've somewhat moved some stuff in, and we want to ask the court's consideration of this.  It's going to be rather difficult to take and pack up this stuff every time that we need to use this.  We would like to just set it up and leave it.

JUDGE:  You've got to talk to the boss, Marylin.  It's okay with me.  Anything on that side of the bench you got to talk to Marylin or the sheriff's department.  If you need my approval, it's fine with me.  But I don't know what their policies are about.  I had a clerk in another department a long time ago kind of go crazy if any exhibits were out for any period of time, anything.  She would lock up everything every night.  I'm sure we'll be doing that here, but I don't know how that's going to interfere with the -- anything in here.  If it can be arranged, that's fine.  Marylin seems to shake her head that that's not going to be a problem. 

D. HARRIS:  Well, we'll take it up with the rest of the staff then. 

JUDGE:  You've got Mary you can talk to, you've got Marylin you can talk to, you've got Mike and Jenné. 

D. HARRIS:  We do have to warn Mary because this projector right here is really, really bright. 

JUDGE:  Okay.  We'll see everybody then Tuesday morning at 0900 and we'll kick this case off. 

Okay. 

(Afternoon and weekend recess)