Request for Exhibits, Boat viewing, Motion for Mistrial


Jury Deliberations:  Guilt Phase

November 4, 5 & 8, 2004


November 4, 2004

The Jury requested to see the following exhibits at 9:42 a.m.:
People's Number 7, 8, 10, 11, 13, 15A through C, 28, 37, 38, 53, 54, 63, 73, 68, 8A, 107, 111A through K, and 112.
Defendant's DD1 through 3, DIII, DJJJ, and DOOOO.

November 5, 2004

The Jury requested to see the following exhibits in the late afternoon:

People's 23, 23A, 79, 90, 207A, 212.

Defendant's T, U, Z and 5Q.

The foreperson requested to see the boat again, and that was scheduled for Monday morning.

November 8, 2004

JUDGE: Also, the jury has already viewed the boat. And the Court's decided to mark it, the boat and the trailer. So we're going to give the boat 299 and the trailer 300. And they will be admitted into evidence. The jury has already seen both of them in the jury view which was earlier in this trial. And now this boat becomes the property of the San Mateo County Sheriff's Department. Boat and Trailer marked as Exhibit 299 & 300 for identification and admitted into evidence. Okay. This morning, since the jury was requesting an additional view of the boat that they have already seen, the issue came up as to whether or not, number one, the defendant should be present, whether or not counsel should be present, along with the Court. And there apparently is not much law on that. The prosecution provided me the case, People versus Douglas Mouser, filed January 26th, 2004, which is an unpublished case. Cannot be cited as authority. But it does give you some direction. And this case -- this case indicates that this issue as to whether or not the defendant should be present -- defendant should be present while the jury is deliberating and reviewing an exhibit is really a case of first impression. In this particular case, the judge took the position, that since the jury was not taking additional evidence; they were simply reviewing what they had seen before -- you correct me if I'm wrong -- the judge decided that the defendant did not have to be present, nor counsel, because this was just part of the jury deliberations. However, this case says that the defendant should be present. They liken this to readback. So under the authority of this case, People versus Mouser, this is a 5th Appellate District, the Court made arrangements to have the defendant present. Counsel were present, and the Court was present. And the jury did, in fact, view the boat. We did not have a court reporter available at the time. So we intend to put in the record what transpired. I just indicated everybody who was present. And then, Mr. Geragos, there was a request of the Court that, whether or not the jurors -- some of the jurors wanted to be able to sit in the boat. And the Court said go ahead. And you wanted to comment about that.

GERAGOS: I did. I wanted, for the record, since there wasn't a court reporter, it's been my position, I have no opposition to them viewing boat, which they did. I do have strenuous and vigorous opposition to the Court allowing jurors to get into the boat start rocking around in the boat. That's exactly what they did. A number of the jurors got into the boat. Number of the jurors started to rock back and forth in the boat. The boat is in a trailer. It's not on the water. The Court excluded my demonstration on the water, which I would tell you was a lot closer to what the prosecution theory was than having a boat on a trailer in the parking lot allowing somebody to get in and start to go back and forth.

JUDGE: In my defense, that's debatable. But go ahead.

GERAGOS: Okay. The problem is, it would now -- we have now taken evidence. I want to reopen, and I want to show the demonstration. And there is -- it's a major problem, because we have a situation where jurors now have now gotten inside the boat. One juror literally -- actually more than one juror stood in the boat and started to rock back and forth in the boat. That's the taking of evidence, and that is a juror demonstration. And they are forbidden to do that under CalJIC. You read the instruction to them. They have now done precisely what you forbid them to do. And --

JUDGE: With the Court's connivance, incidentally.


JUDGE: With the Court's connivance.

GERAGOS: Well, I don't think that the Court intended to do it. But what actually happened -- and I don't think the Court would dispute, at least two jurors were inside the boat rocking around. When I say rocking, I mean rocking. They were standing on one foot, putting weight on the other, putting weight back and forth. That is precisely what is not allowed under CalJIC. It's multiplied or amplified by the fact that I have the demonstration on the water in a similar boat, which obviously shows you can't do what the prosecution says you can. You know, they have been led to believe that you have got the same kind of stability. I will state for the record that when I started to object to what was going on, that the Court did, at the end of the viewing, tell them that, remember, the stability is not same on a trailer as it is in the water. But at that point the cat's out of the bag, and it's a major problem. So it's my -- I don't want a mistrial. What I want is to reopen --

JUDGE: I understand.

GERAGOS: I want to show the demonstration.

JUDGE: Okay. I did advise the jury that they should bear in mind that this boat was not in the water as they stood in the boat. And I also advised them that the boat appeared -- also that the boat was secured to a trailer. The reason why the Court permitted the jury to get into the boat initially -- I didn't know they were going to jump up and down on the boat -- was the fact that the District Attorney had presented an experiment where they had -- a representative of the District Attorney's Office had actually laid down flat in the boat. And I thought it was important for the jury to take a look, see if there was enough room for somebody to sit -- lay down flat in the boat. That was not, in my opinion, taking additional evidence because it was already set forth on the record. The same case, People versus Mouser makes -- I'll allow the prosecution to address that issue.

FLADAGER: Yes, your Honor. It's the people's position what was done today was not an experiment or demonstration by the jury. And it should be noted that the defense is the one who requested that boat be marked as an exhibit and entered into evidence, which is not what the people had wished. However, that was done.

JUDGE: Well, the Court wanted that done too. In all due respect to Mr. Geragos, they shouldn't take the burden for that. I wanted that done. He shouldn't. It becomes the property of the Sheriff's Department.

FLADAGER: Once that is done, it becomes evidence. The jurors may examine it thoroughly. That's the intention of evidence that is submitted to the jury. Two jurors who got into the boat were not jumping up and down. One had a foot a little bit on one side, one foot on the other. The other stood up and walked towards the end and stood. There wasn't a lot of actual manipulation, standing in it, walking in it. And other jurors looking inside of it. So we don't believe, by any stretch, this is an experiment or demonstration or anything similar.

JUDGE: Go on, Mr. Geragos.

GERAGOS: I am going to say, the fact of the matter is, judge, you saw it and I saw it. Juror was in there. The juror was standing inside of that boat and dropping --

JUDGE: Shifting his weight.

GERAGOS: Shifting weight back and forth. The other juror did the exact same thing. That is an experiment. The fact that it's marked as an exhibit is meaningless. You can mark anything as an exhibit. But the statement of the law in California is, you can't do a juror experiment. That's what was done. So there is two alternatives. I'm asking either for the admission of our demonstration, to reopen and allow that in or, as an alternative, I'm asking for a mistrial.

JUDGE: All right. Now, let me finish with my ruling here. This case that was also provided to the Court here, this Mouser case, on page 55 of the opinion says California authority establishes that close observation, even physical manipulation of evidentiary exhibits during deliberations is not prohibited. Careful scrutiny of the evidence during deliberations is a defining characteristic of a conscientious jury. And they cite several cases. People versus Turner, 22 Cal.App.3d, 1971 case at 174; People versus Bogle, 1995, Cal.App.4th at page -- it's 41 Cal.App.4th at page 770. So the Court was of the opinion that whether a cautionary instruction, that they should bear in mind that they were doing this, that the boat was not in the water, and boat was on a dolly, was on a trailer. So they should bear that in mind in their consideration. There was one other thing I wanted to point out here that escaped me right now. Probably come to me later. Oh, the other thing I wanted say is that I think it's an -- I think that whatever they did in that boat can work both ways. We don't know what opinions or conclusions the jury made from the idea of sitting in the boat and standing in the boat. They carefully sized the boat, they looked at the underneath part of the boat. They could certainly come to conclusion that this boat would have been unstable in attempting to throw somebody over the side. So I think this works both ways. It works -- could work for the prosecution; but it could work for the defense benefit, depending on how the jury interpreted the evidence. So the request is denied.