Defendant’s Motion to Discharge Jury and Dismiss Penalty Phase and/or New Jury and Change of Venue

November 22, 2004

JUDGE: Okay, Mr. Geragos, this is your motion now, a motion to discharge the jury, dismiss the penalty phase and, in the alternative, a new penalty phase jury, and a request for change of venue. The court has read and considered your moving papers, and this morning the court's also received opposition to the motion by the prosecutor, and I read and considered those also. So go ahead, Mr. Geragos.

GERAGOS: Thank you. I have two other additional exhibits, if I can hand them to Marylin for reference. One was the footnote of juror number -- the first original juror number 5 in the New York Post article, and the other is what I took offline of the interview on -- on a television show on Fox in which he was interviewed, and I wanted to mark those as exhibits, if I could.

JUDGE: All right. We'll make -- we'll mark these as exhibits and make it part -- make it part of the defense motion. Have you seen both of these?

D. HARRIS: No.

JUDGE: Do you want to look at them?

D. HARRIS: If the clerk can make a copy of them while we're doing this.

JUDGE: All right. It's -- it's -- one is a transcript from the Greta Van Susteren Show?

GERAGOS: Yes.

JUDGE: And the other one is from the New York Post. Okay. All right. We'll file these, make them part of your motion, Mr. Geragos. Go ahead.

GERAGOS: Thank you, your Honor. The -- the essence of the argument is that by -- and I don't even know what the proper word is, but I suppose it's desequestering the jury and allowing them to go into an atmosphere, which I think this court can take judicial notice of it's probably never seen before in any other case -- I was not here. As the court knows I was giving --

JUDGE: But I was here, and I -- I can't disagree with you, in all honesty.

GERAGOS: Okay. The -- I have on its way here, I believe, a videotape as well, which I'd like to mark as an exhibit, which was a videotape of what was transpiring around the courthouse. As this court knows, the atmosphere surrounding the courthouse was a cheering section, if nothing more, or a -- a -- I think charitably characterized as a mob scene. And it was a mob scene that obviously was cheering the fact that the jury reached the verdict that they did. It was obviously -- even to the point where jeering my client's mother as she exited the courthouse through the front door. The idea that the jury would be not sequestered at that point, let out into the community, number one, see that kind of reaction, a cheering mob, is basically validating their verdict, when you combine that with -- and I will -- I'll adopt what Mr. Harris has done and call the juror number 5, the second juror number 5 the doctor, to distinguish from him from the original juror number 5, but when you combine that with the comments that he made in chambers about the popular verdict, the expected verdict, and book deals and things of that nature, when you combine all of those together, with the idea of putting these jurors back into the community. And then juror number 5, the doctor, was not the only one who talked about the hostility and the emotions running high in the jury room. That's one of the things -- when I just perused the People's opposition this morning, one of the things they failed to talk about was you had a previous juror in there who was also talking about the emotions. The court knows that there was the other juror, number 7, was -- had physically disintegrated or was crying at a certain point, and that had been reported to the court. So this was obviously a -- a emotionally charged and a heated situation in that jury room. The fact that there's a talk about physical safety being at issue, the fact that this crowd has assembled around the courthouse, the fact of the media coverage afterwards about this verdict; and to allow that jury, the present jury, to go back into that and have those kinds of influences work on that jury, I believe has a irreparable harm, or has done irreparable harm, to any kind of a fair process in a penalty phase. As this court knows, one of the arguments that one can make in a penalty phase is about lingering doubt. Part of the problem with making a lingering doubt argument at this point is the jurors have seen that any lingering doubt that they may have had essentially is extinguished by the cheering masses as they leave the courthouse. The I think easiest way to remedy this is the -- as I indicated in the motion, either a change of venue, or a new jury for the penalty phase. The People's opposition is -- once again conflates the argument, or kind of casts the argument of being one that, well, was already made and denied. And that's not what we're talking about. What we're talking about is here you've got a situation where this jury was released into the community, where for a period of time they end -- exited this courthouse, were cheered, as reported in one of the exhibits. The jury has now lived there in the community that obviously approves of -- mightily approves of this verdict, and to now have that same jury come back here and decide whether this man lives or dies, and to pretend that somehow that's going to be a -- a verdict that purports, with due process under the federal and state standards, I think is -- is humoring ourselves. I know the court has indicated previously, when I've made my objections to originally being here in San Mateo, that the court didn't think that there was anyplace you could send this.

JUDGE: I'm still of the same opinion.

GERAGOS: And I -- my feeling is that when you've got -- you at least have to make the effort, and the -- and the effort in this sense: We're here in San Mateo, San Mateo is actually closer to where the bodies were found than Stanislaus. You've got the same TV market. You don't have what at least in the Manson case was articulated by the Supreme Court as Look, there was nothing else you could do because you had LA, that was the biggest county -- bigger is better, basically is kind of the argument there. The defense in the Manson case had made the argument that you should have sent it to Humboldt County, because that was more remote, or this or that, and the Supreme Court said No, the -- experience has shown us if you send it to the bigger county, that that can dilute this kind of prejudice, if you will, or this pervasive mood of prejudgment rate. And I believe that's what you need to do in a case like this. You can't take a half step or a lateral step, which is what we've done here. You need to take the next step up, and the next step up is to send this to the largest county. In a capital case, I don't think that there's any harm in that. When you're talking about the situation that we have here and the pervasive prejudgment rate, when you're talking about the prejudice against the defendant in this case, or you're talking about just the general hostility, and the unique circumstances; I don't think this court has ever seen anything, not only just like the crowd, but just the -- the way that this case has unfolded in terms of the hostility and the media-fueled atmosphere against my client. And if that is the one thing that you can do to try to ensure a fair verdict in this case, then I would submit to the court, and vigorously submit to the court, that that's the one thing that needs to be done.

JUDGE: Is that it?

GERAGOS: (Nods head)

JUDGE: Okay. Just -- go ahead, what is the prosecution's point of view?

D. HARRIS: Your Honor, firstly, just to point something out, I think there's a lot of bootstrapping going on in the defense argument that they're talking about a change of venue, they're talking about picking a new jury. You have to start and go through this sequentially and you find out that those things are flawed, and we never even get to that point because, first, they have to establish, A, as their argument is trying to say, that We have a right to have a sequestered jury. As we point out, they don't. So the fact that you unsequestered the jury is no violation. The other thing about it is there's a lot of assumptions or bootstrapping, that we're using newspaper articles, selected newspaper articles to say that there was something going on, something that was amiss, when we've been listening for months about the inaccuracies of the news media. Now, there -- again, there has to be a separation between what's happening inside the courtroom and what's happening outside of the courtroom. That's what the Shepard case was all about. The court is supposed to take control of the courtroom. The stuff that's being reported by the news media is not what was happening inside the courtroom, so the jury wasn't exposed to anything there. So we're supposed to accept certain representations from certain articles that the jury made have been exposed to these things. We don't know. As we also pointed out in the Craig case, that particular issue, or anything -- if something were to happen, is easily curable by the court with the standard admonitions that the court's been giving, telling them not to be influenced by outside theatrics or emotions or whatever. Going to the next phrase, counsel is saying Well, this jury is prejudiced now because of this. There's absolutely no showing of that. We spent a vast amount of time picking this jury, ensuring that the defendant got a fair trial with these particular jurors. And as we pointed out in our motion, this particular jury was accepted by the defense. They passed, they did not use all their peremptory challenges. So we have on the record a fair and impartial jury that's decided this particular outcome. Just because they are released from being sequestered doesn't change that. The Craig case shows what the court could do if the court wants to give them any kind of admonition. It's part of the standard instructions for the penalty phase for them not to be influenced by outside opinions or positions. So that's kind of a moot point. The defense doesn't have the right to have this jury sequestered. There can't be a violations by not sequestering them. There's no showing of any legitimate facts that anything has happened that would change any of these jurors' opinions or positions. So if we don't even get past that first point, we don't need to address whether they get a separate jury. We've already addressed that previously; they're not entitled to a separate jury. So unless there's some need to do it, as the statute says, we don't even get to that point. And a change of venue, we've already resolved that with this particular jury being found to be fair and impartial. Counsel goes on and talks about certain people are saying Well, there's threats and we had all these other issues with jury, with the emotions running high. I think that clearly misstates what the testimony was that the court's heard in chambers. We had one juror came before the court and said she was having an emotional issue on her own because of something about herself. That was resolved. That had nothing to do with any hostility or emotions in the jury room. The second juror that was -- counsel was indicating was crying, that was because of a mistake that she made. That was brought up and that was dealt with as well. So, again, when you look down to the facts of what's in the record, there isn't any issue about the threats or the community vote or the conscience, or book deals, as counsel keeps saying. That misstates what the testimony of that particular juror is, because the court specifically asked him that, and that particular juror said I can't really speak to that. He didn't have any information about that. And the court --

JUDGE: I re-read -- I re-read his testimony this morning.

D. HARRIS: So when you -- when you -- again, when you look specifically at the facts, there's a lot of speculation. There's a lot of innuendo. There's no facts to support the defense's position. So in this particular case, there's no reason to change anything that's going on as it is, and we should continue with this particular jury.

GERAGOS: Could I respond to that?

JUDGE: Sure.

GERAGOS: I've reread probably five times, maybe six times, the testimony of the doctor. There's no other way to read that than -- and I know the court has said Well, he wanted to get off --

JUDGE: Yeah, he did.

GERAGOS: -- before. The court said that. But the fact of the matter is that there was no inquiry as to -- in fact, he said he didn't want to go there when the court inquired as to where the threats of the -- to his safety was. And he's the one who brought it up. It certainly was not the court, and it wasn't me, who suggested this community verdict, the popular verdict, the expected verdict. Those were his words. They were unsolicited by the court. In fact, the court had asked him, you know, is the issue here over procedure or is it over substance, because the court and I think us, meaning counsel, had thought initially that it was over procedure. And he was very clear that no, it wasn't over procedure, it was over substance, and that's when he launched into the section that I quoted in the motion, and he talked about the community, the expected, the popular verdict. Well, we can say that it's speculation, and, frankly, we came -- if we hadn't had what eventually happened, Mr. Harris would be right. He could say Whatever Mr. Geragos, whatever the doctor had said in chambers, is all speculation. But this court saw what happened. I can only liken it -- I wasn't living there, but I can only liken it to what was happening in the fifties in the south with young black men who were accused of raping white women, because that's what it looked like to me. I thought -- I thought it was something out of an old news reel where there's a mob outside of the courthouse, and I fully expected the people to start building the gallows somewhere in the parking lot across the street. And this idea that somehow the jurors are going to be let off into that carnival-like, festival-like atmosphere and somehow that's not going to infect them, when we've got a juror whose sitting in the chambers talking about the community verdict, the popular verdict, the expected verdict, and saying that he doesn't know that he can -- that any vote that he makes wouldn't have been influenced by that, and then we see exactly what he had, I guess, been pressured about, I -- it's -- it's a pretty compelling argument. And it's a -- it gets even more compelling when you factor in the idea -- and in -- in part my problem here, Mr. Harris cites Well, I'm using the newspaper articles. Well, I'm constrained. There's a rule of professional conduct, I believe it's 5 dash 320, which does not allow me to talk to -- either directly or indirectly -- to discharged jurors until after the verdict. I cannot go and get a declaration from -- whether it's Justin Falconer or the doctor. I can't get declarations. So to some degree I'm hamstrung here in terms of getting declarations in support of that, because I've got a rule of professional conduct that says I can't do that. So my only alternative is to put newspaper articles in, and for the court to -- you know, I'm asking the court --

JUDGE: I can almost take judicial notice that after that verdict everybody -- we were up to our armpits in news coverage of this trial.

GERAGOS: I think the court --

JUDGE: My wife knows somebody who just came back from Rome, Italy and they -- they had the verdict on the radio in Rome, Italy.

GERAGOS: And I think the court --

JUDGE: Not to mention Al Jazeera and a few other places.

GERAGOS: I believe the court can take judicial notice that the atmosphere outside of this courthouse is like nothing anybody's ever seen that's seated at this table or sitting in this courtroom.

JUDGE: I've never seen anything like it before.

GERAGOS: And I would ask that the court do something -- you know, the Craig case, which they cite, was I think, if memory serves me, eight picketers, okay? Eight picketers with signs. In a courthouse. In a case that had no publicity. I mean virtually none. This is -- is -- is exponentially, to the 100th power, from the Craig case. And the idea that we're just going to make this lateral move and now we're going to impose the ultimate sanction, the death penalty, in this atmosphere, I just think is not what -- what anybody envisioned for the criminal justice system.

JUDGE: You want to answer that, Mr. Harris? Then I'm going to make a ruling.

D. HARRIS: Yes. Just to point out one thing. That's, again, in the transcript of the doctor. I think something that shows that -- the fallacy of the defense argument about this, the fear or all of those different issues. The court specifically asked him a question right before he was discharged, and that was whether the jury had taken a vote. And the doctor's answer was No, sir. So the issue about what was going on about any of this conflict, or any of that stuff, it's not in the record. It didn't happen. We had a juror who wanted to get off the case. We had that with the notes he was sending beforehand, and that's what happened. You know, again, the court looked and listened and compared the testimony of the doctor versus the other juror, and so we've dealt with that particular issue. Now, getting to the fact that people outside might have been happy with the verdict, it doesn't change the fact that this is a fair jury. There's nothing in the law that says that we have to discharge this jury at this point in time. The defendant doesn't have a right to it, and I think it would be an abuse of discretion to discharge the jury at this point in time because there's no facts to support it.

JUDGE: Okay. I intend now to make a ruling. I'm just going to go down some of these arguments and explain how the court feels. First the issue of sequestering or non-sequestering the jury or excusing the jury after they arrived at a verdict. That's within the sound discretion of the trial court. I gave the -- I unsequestered the jury and gave them the admonition that the law requires. If I didn't unsequester this jury, they would still be sitting at this hotel now, wondering when we're going to start up this penalty phase. Now, my understanding is it's not going to start, if we get there, until next week. So they would be sitting there for two weeks not knowing what is happening. And this is within the sound discretion of the trial court, as long as I follow what the law requires, which I did. I don't consider this to be error. The next thing is this -- this whole case, from beginning to end, I cannot account for the media coverage. It's beyond my control. There's nothing that we can do about it. We're presented with a situation where there is no solution; okay? Where would this case be sent? I've already mentioned -- I've already mentioned -- talked about Mars. But that doesn't -- where could I send this case in the State of California that hasn't been inundated with the media coverage? You mentioned Los Angeles, Mr. Geragos. There -- they're down there; you have Michael Jackson is in the media every day, every night. This case would be no exception. You have -- they're struggling to impanel a jury in the Robert Blake case. That's got a lot of wall to wall coverage. I don't think it's risen to the amount -- the amount of coverage that this case has engendered, for whatever reason. But there's not -- there's not a county in the State of California, and I -- I bet you let alone in -- I get letters from Mississippi, I get letters from Florida; everybody knows about this case. The only thing we can do is try -- you know, if we could all hide in a closet somewhere for the next three or four months and try this case all -- where nobody gets out...There's -- this is a problem without a solution. There's no. -- change of venue is not going to change anything in this case, because there is no place to send this where it would be satisfactory to the defense, satisfactory to the court, or satisfactory to the prosecution. It just can't happen, because it's -- we're just overwhelmed with the media coverage in this trial. There's no place to send this case. This -- to -- even to assume that if it was sent to some other location, some other county, some other city, is sheer speculation we wouldn't run into the same problems that we have here. The only comfort that the court has is that we spent about two months selecting this jury here. I was -- I was, I thought, at least I felt I was very, very careful in weeding out those jurors that I felt could not be fair and impartial jurors in this case. Both as to the guilt phase and as to the penalty phase. As the district attorney pointed out, Mr. Geragos, you did not use all your challenges in the -- in the -- when we selected the jury, so that issue on appeal is sort of waived, because you didn't use -- you didn't use up all your challenges. I'm -- I have to only come to the conclusion that you were satisfied with the twelve jurors that we selected and the alternates. So that's the way it is. Probably we're better off with this jury than trying to start this thing all over again, because at least we've gone through all these folks, they've heard the evidence, they've come to certain conclusion, they've made certain -- resolved certain issues in this case, and have been through this jury selection process. And we've kept them sequestered during the deliberations. I've admonished them at every recess. I can only assume what the law says, that they follow the court's instructions in that regard. So we're going to have to go with this jury. Now, they were told at the very -- they were told at the beginning about the media coverage of this case. They were certainly aware of that fact. That was exhausted in voir dire. They were instructed -- again, they were given the jury instructions with respect to the guilt phase that they were not to be influenced by public opinion or public feeling. I can only assume that they followed the court's instructions. I don't have anything before me now that tells me that they did not do that. With respect to the doctor's testimony, I re-read that this morning, and when he was -- when further questions were asked him, he backed off of that position. As a matter of fact, he was very complimentary to the new foreperson, saying that there was -- that the deliberations were going on, there was healthy discussion about what was going on, the deliberations had been renewed. So I'm -- I'm willing to live with the -- with the statement that the -- that the doctor made in the record that's been sealed, for obvious reasons. I'm willing to live by that. And I think that excusing him, again, was -- there was just -- there was just cause. Now, I have no idea what this jury's going to do with respect to penalty. I don't know what they're going to do. There's two options available to this jury. Three options. There could be the death penalty, there could be life without parole, or there could be no verdict at all. Maybe they can't agree. I don't know what they're going to do. I can't just jump to that they're going to -- that they're going to come up with a certain verdict, because I don't know. I haven't heard what the -- I haven't heard what the evidence is in the penalty phase, other than I know what usually happens in a penalty phase is that we have family members come in here and bear their souls and break down on the witness stand because of their loss, and then we have the other side with the same problem of losing a son. The same issue comes up. It's a tragedy for both sides in this case, and so this is -- the jury's going to have to listen to this. And they're going to have to make a decision, what they feel is the appropriate penalty in this case, based upon the instructions that the court gives them. And it's -- it's not going to be an easy decision. So as far as the court's concerned, this is -- like I said, this is a problem without a solution with respect to a change of venue. It was sent here. It was the wisdom of Judge Girolami in Modesto that this would be the appropriate place to send this case. We had another motion for a change of venue. That was thoroughly exhausted. The same issues presented themselves back then, and it's probably even worse now that there's been a conviction. And I -- also, I can't account for the reaction of the public to this case. We all know, we all know that -- the amount of press coverage that this case has received. We all know that people have hard opinions about this. I get -- I get letters, that I'm going to file and make part of the record, saying What's -- why is the jury taking so long? And I get letters from other people saying that, you know, This is a miscarriage of justice, this man is innocent. These are people just following this in the media and putting in their -- their two bits in to the court. And those will all be filed and made part of the record. So people have strong feelings about this case one way or another. Now, I can't -- this is still a free country and I can't go out and stop people from expressing their views and doing what they went to do to get all this stuff off their chest. There's nothing I can do about that. All I can do is talk to this jury, and when they get reinstructed again, they're going to be told again that they're not to consider public opinion or public feeling in arriving at a verdict in this case. And that's all a court can do. You know, it's a situation where the court has to do the best it can under the circumstances, and that's all I intend to do. There was -- there was a -- I mentioned this to counsel before we came out this morning. There was a cartoon in the San Francisco Chronicle yesterday that I thought sort of encapsuled this whole issue, simply. It's a cartoon of this older couple sitting on the sofa, looking at television. And the commentator on TV says We interrupt the atomic -- the -- we interrupt the atomic attack upon the United States of America by North Korea to bring you the verdict in the Scott Peterson case. So that's where we are in this case. So that about covers it. So, for the record, then, Mr. Geragos, I'm going to deny your motion to discharge the duty; I'm going to deny your motion for a change of venue --

GERAGOS: Would the court --

JUDGE: -- and select a new jury. Yeah.

GERAGOS: Would the court entertain a recess to enable me to take -- I indicated to the court I do have a writ petition subject to getting the transcript, hopefully, sooner rather than later today.

JUDGE: You'll probably get it today.

GERAGOS: If I get it today, that's my plan in the minute order, obviously, my plan in the event that the court denied the motion, to take a writ to the court of appeal, and, if that's denied, to the Supreme Court.

JUDGE: That's where you would end up.

GERAGOS: I'm looking at the dates, and I know I kind of indicated Tuesday. My preference is Wednesday, because both Thursday and Friday, I believe, are court holidays. That would give -- if I get it filed this afternoon, that would give the courts -- it gives me and the courts one, two, three, four days in which to kind of run up -- run up, which I think is as fast as I could probably do it.

JUDGE: Friday is usually writ day over there, but they won't be in session on Friday. When they see the title of this case, I assume it will go right to the head of the class and it will be acted on forthwith.

GERAGOS: That's my assumption as well. And I -- like I said, I've got the writ ready to go, subject to having -- attaching the transcript. I believe that I can get it filed today.