Separate and Sequested Juries

Separate and Sequestered Juries

Pre-Trial Evidentiary Hearings

February 17 & 26, 2004

JUDGE: Let me ask the two other issues, not being around here. What about this two juries and sequestering the jury? Do you want me rule on that?

GERAGOS: I think the better way to approach that, and I would be willing to proceed in a manner, I think we need to get jurors in here. We need to see juror questionnaires, and we need to talk to some jurors first before we decide what we're going to do specifically.

JUDGE: I wouldn't do it that way. I don't do it that way, because I think the jurors should know whether or not they are going to be sequestered or not. I think the jurors should know whether or not they are going to be one jury or two juries. That's sort of locking the barn door after the horse is out.

GERAGOS: I would agree with you. And sequestration, I have a hesitation, in the one or two juries on this basis. It's a rare case, and as I think we cited in the paperwork, there is a statute which provides for it. It's been used as recently as 1997 in the Carpenter case. It's, I think you would be hard pressed to find a case where there has been a change of venue, you go to the receiving jurisdiction, you are greeted by roving billboards. You are greeted by billboards on the freeways. You are greeted by the first full week of evidence in pretrial motions by a movie that's run on a cable network that's going out to to the community to be broadcast.

JUDGE: That should be included in the questionnaire, I believe.

GERAGOS: I agree. That's why I have got do add that as well. The problem is, I don't think you can find a situation where you have had this kind of publicity at this, the publicity with billboards, with a movie, in the same jurisdiction when jury summons are going out, and before we foreclose the possibility that we're going to lop off whatever the current understanding is of the number of people who are against the death penalty, before we lop off that, I think it's 30 percent, it's 35 percent. I know we're in the Bay Area. Maybe even it's higher, before we lop off that whole contingent, and then we lop off the 46 percent, or whatever it is, that the prejudgment rate that's been determined. Pretty soon we're down to a pretty minute pool of jurors. And then you start talking about the financial hardship, and we may be conducting jury selection in a phone booth here. So my,

JUDGE: That's a possibility, with all the publicity in this case, we'll need to overcome that.

GERAGOS: That's why I'm asking your Honor, and I'm imploring your Honor, before you make a decision on the two juries, that I think the sequestration, I think you are right, that I think some people, they ought to be told up front whether or not that's an issue, because that may,

JUDGE: Would really influence their willingness to serve in a trial jury in this case. That's very pertinent. We to ought to tell somebody that, how about a young mother with two small children, you get locked in a jury, going to be locked up for six months in a hotel room, you are not going to be able to watch television, not going to be able to listen to the radio, you are not going to see any newspapers. I think you get a lot of people saying, well, include me out. I don't want any part of that.

GERAGOS: I understand that. I'd probably be joining sides. But the problem is, you do have this other issue, which is, we are going to have a substantial amount of people who have got a prejudgment that they cannot set aside. We're then going to cut off a significant number of people, if we rule that there are not two juries in order to increase the pool of jurors who are willing to sit in this case. That I think would be cutting off our nose to spite our face in advance. There is no reason to. I mean the prosecution has indicated that they want to have a number of alternates. Six or eight alternates. Whether we do it as two juries, or whether we have a situation where we have alternates who may be death qualified versus others who are not, or some kind of a mix. But what I'm imploring this court to do is recognize the unique situation. I know this court has done in excess of 20 death penalty trials, but this is a unique situation before we cut off four out of ten people, or five out of ten people, in a case where we already have four out of ten who maybe can't set aside their judgment to begin with, I think that we ought to keep that issue open, and at least,

JUDGE: Well, I'm going to throw this out there on the table. As you know, Mr. Geragos, one of the issues, that if we get to a panel in this case, I know I can't, the evidence is going to show in the case. If we get to a penalty phase, one of the factors the jury can consider is nature and circumstances of the crime. The second jury will have not heard of the nature and circumstances of the crime. his would require the District Attorney to put on the guilt phase practically all over again.

GERAGOS: Unless, unless we had 24 jurors, or if we had 20 jurors, or 18 jurors.

JUDGE: Take a look over there.

GERAGOS: I have counted. I have counted. We have got,

JUDGE: We can't do this. But I just wanted to know flat out, that's a consideration.

GERAGOS: I would tell you, judge, that, frankly, this case is not a question of mitigation. This case is not a question of heat of passion or anything else. That is a question of my client is innocent. And the guilt phase is the whole ball of wax here. We don't care about the penalty phase. He didn't do it, so rather than he,

JUDGE: That's mitigation. Mitigates against your client.

GERAGOS: I'm eliminating, you are giving us, every one of those surveys that we quoted said all you do when you death qualify, you get pro-prosecution jurors. You get, you are eliminating 40 percent of the jury pool, number one, and you are tilting toward the prosecution in a case that has been tilted against my client from day one, based upon the media and the demonization of this man. The idea that we're now going to do it again by the death qualifying of the jury, I think is an enormous disadvantage do him. And all we're driving to get here, judge, I'm not even asking for a level playing field. But just don't tie both hands behind our backs when we are trying this case. We are just trying to get into the ballpark to play. I don't care if we're outnumbered, just let us go get into the ballpark.

JUDGE: Well, when I go through this in jury selection, I'm going to see that a level playing field is here. To the best of my ability that will happen. At least I'm going to try to see that it does happen when we go through this jury selection process.

GERAGOS: Then I would ask the Court is to preserve,

JUDGE: The Court can never guarantee it, but you can rest darn sure that after we go through this jury selection process, I'm going to try my very best to see that you end up with a level playing field in this case.

GERAGOS: I appreciate it.

JUDGE: I know the gravity of this offense. I'm not slighting it. I just want to let you know that.

GERAGOS: Look, judge, I'm not for a second impugning,

JUDGE: I know that.

GERAGOS: You know.

JUDGE: I know that.

GERAGOS: 170.6, problem with it, what I'm telling you is I have lived with this case for quite a while now. I can tell you that the depth of prejudgment against my client is like nothing I have ever seen in 20 years.

JUDGE: I don't disagree with you.

GERAGOS: And I'm telling you that, based upon everything we know, all that is likely to occur is you get stealth jurors, and the stealth juror is what we're afraid of, and that's the somebody who's got an agenda. I don’t know what we’re ever going to be able to solve that problem. But I don’t think, I think

JUDGE: then we'll come out and rule on this hypnotized witness.

February 26, 2004

JUDGE: And before we recall Mr. Boyer, I would like really to get this off my plate, if we can today, this motion to sequester the jury and for two, and for separate juries. You want me to postpone that until we're done with this witness? Or do you want to argue it now, or what?

GERAGOS: We can do it now. Did the court find the reply?

JUDGE: Yes, I did.

GERAGOS: Okay.

JUDGE: I did find that and I read that. Are you ready to argue that, Mr. Distaso?

Rick Distaso: Mr. Harris will.

D. HARRIS: I am. I'm ready.

JUDGE: Okay. Let's, let's start with you, Mr. Geragos.

GERAGOS: Which issue do you want to address first?

JUDGE: Well, let's start out with the two juries first.

GERAGOS: Well, it's up to the court, obviously, I think, to make that call. The, there is statutory authority for it. We've cited it in the motion. I believe that, and I know that at least most courts tend to, I guess, take the position that, since the U.S. Supreme Court has spoken on the issue, that it's final. I think what we've tried to show in the motion is that in spite of the fact that the U.S. Supreme Court last spoke on this issue a number of years ago, the U.S. Supreme Court has dramatically changed its opinion and its direction in terms of capital cases in that period of time. The Atkins case being the most notable example. There was, I think, within the span of whatever it was, twelve years, the court , the U.S. Supreme Court has changed its ruling in Atkins as to the execution of the mentally retarded. The, and the reason I think that is instructive is in a post‑Illinois Commission world, if you will, when you have a number of people who have been exonerated that are on the, basically have been sentenced to death, and those people have all gone through a system that, to my mind, at least, and to a, to most of the commentators and to most of the people who do the research in this area, tends to, the system is stacked, if you will, it tilts towards the prosecution, that the one significant way that we can do something here to solve that problem is to have two juries. The argument against it, I suppose, in anticipating what Mr. Harris may argue, is that it would force the People to have to relitigate certain issues. If there was a penalty phase. I know when I had mentioned this before, and we talked about this on the record before, your Honor had said, and I, and I stated, and I believe it just as much today as when I stated it before, the penalty phase is of no moment to us. And I know your Honor said you've heard that before, and , and I suppose a lot of lawyers get up and say with a great deal of bravado that the penalty phase is of no moment. The fact of the matter is that this case is not about mitigation; this case is not about trying to save his life based upon something he did. This case is very simply about the fact that my client didn't do this, my client is innocent of these horrible crimes. And we've got what I consider to be one of the most unique situations that I can think of, since the Shepard trial, in terms of the publicity and how the publicity has affected this case. The Shepard trial was not a death penalty case. The Shepard trial was a first degree murder case, yet, in the Shepard trial, that jury was subjected to what pales in comparison to this case. And the U.S. Supreme Court very forcefully argued and stated that there was, that the trial judge should have and could have done more to have protected the defendant's rights in that case. Well, this court has that ability now. And it isn't a matter of overruling the U.S. Supreme Court, because in California we have this unique statute, and we have this unique statute which allows for this. I cited the Carpenter case, and that was, I think, in 1997.

JUDGE: Right.

GERAGOS: And the Carpenter case, other than saying in that case two juries were used, cites, now, Carpenter, the court may be familiar with that case, received some degree of publicity, but I think the court could probably take judicial notice that the publicity was no where near as pervasive, was no where near as prejudicial and inflammatory as has been in this case. I believe, and I know the court wants to get this off its plate, but I think that we'll have, what will happen, your Honor, is that when you see, when we get some of these questionnaires back on Thursday or Friday and we're taking a look at them, and when you see the prejudgment rate in this case, and the percentage of that, and when it starts to reach 40 percent, which is what I estimate it will be, and then when we see in my, and I think you know better than I do what the rate will be amongst the potential jurors who are against the death penalty, and I'm guessing that, I, I would suggest that you're going to see also a 30 or a 40 percent rate of people who say they couldn't impose the death penalty. And then what we're going to have is out of every hundred jurors, besides having 40 percent who have a prejudgment rate they can't set aside, we're going to then lop off another 40 percent, as a practical matter. And I'm not even talking about protecting my client's rights, I'm just saying as a practical matter. We lop off 40 percent who say they're opposed to the death penalty, won't impose it; 40 percent who say they've got a prejudgment; probably got an overlap of another 30 or 40 percent who say there's no way financially. I can sit here for five months, and we're going to be in a position where we're, we'll be selecting jurors for the rest of eternity. It will be kind of a Sisyphus rolling the rock up the hill in terms of jury selection. So that's as a practical matter. Why are we going to lop off 40 percent, if that's what it is, and that's my guess based on recent polling that I've seen in this county and surrounding counties, 40 percent of potential jurors because we don't want to have to make the, I mean the only argument against it that I can see is that it's going to save us some time. But I think that's empiric argument. How is it going to save us time?

JUDGE: Let me ask you a question. What makes you think that, if we have two juries, the second jury wouldn't also be 40 percent prejudiced against your client?

GERAGOS: I would expect that they probably would. In fact, if we ever got to the point where there was a penalty phase, it would probably be even worse. I mean, as a practical matter I'm not going to run away from that; but, as a practical matter, if you had two juries, the, I don't think we're ever going to get to that point. I know I keep saying that and I know you say you've heard that.

JUDGE: But I have to consider that, Mr. Geragos. I have to consider the worst case scenario for you, and I have to consider that when we voir dire the jury that we will get to a penalty phase, otherwise the jury voir dire is meaningless.

GERAGOS: Yeah, but if you get to a penalty phase you're not going to have the obstacles that you have in the guilt phase. The guilt phase, when you're telling people five months, you and I both know what's going to happen when we do hardship qualifications. There's no., people are going to flee out of here and come up with every excuse in the world, and the ones who do want to stay are probably going to have an agenda. So that's what we're going to be dealing with. If you're talking about a penalty phase, it's going to last two weeks. We've got a lot more likelihood of selecting a jury in a reasonably fast fashion. In fact, I'd submit to the court that, if you were to have two juries, that this case would go faster, because I will, I'd submit to you that we're not going to be in jury selection for the rest of eternity because we're lopping off a whole category of people for what I consider to be no good reason. And that's the practical consequence. The reason I put in the other what I consider to be the sociological consequence is because I do think the time has come to address whether or not this is a fair proposition in face of all of the problems that are inherent in the death penalty. Now, I know this court's representation in terms of what this court does in voir dire in capital cases. This court has tried in excess of 20 capital cases. I know that you take great pains to go through and talk to jurors and to look them in the eye and to try to get an, impress upon them what, what it takes and what it means. I understand that. But from a purely practical point, Judge, I think that what's going to happen here is, if you deny the motion for two juries, we're going to get into a situation where out of every 100 people that come in here, 40 to 45 are going to be eliminated immediately for no good reason. And that no good reason is because they're opposed to the death penalty, while they are perfectly suited as a juror to sit during the guilt phase. And then we're going to have 40 percent who say that they are so prejudiced against my client that they cannot make, they can't set that stuff aside, and then we're going to have the rest of the people who are going to be feigning excuses like I don't speak English or I'm going to go broke, or something else, because they don't want to sit on this case because of the time length. And we're going to spend week after week after week, and by the time it's said and done we've probably called in the entire County of San Mateo, and it's all because we have decided to arbitrarily eliminate 40 percent, 50 percent, whatever it is, of the population. And it may take us an extra three to four weeks just because we've decided to make that decision. And I would submit to you that if there was a penalty phase, and your thinking, to adopt your, your line of questions, if there was a penalty phase and the People were to put it on, it would not take three to four weeks, so what's, there's nothing lost. And the gain? The gain is immeasurable. You get a fairer trial. And even though the U.S. Supreme Court has said that it's a fair trial, the way the law stands presently, is that you can get a fair trial with a death qualified jury, California has seen fit to put in a statute that says Well, you know, it's okay to have a fair trial, but we're okay here in California with giving you a fairer trial. And this is the case, when you combine it with the analysis in Shepard that says, Judge, do something more. You've got to do something more here, just apart from the practicalities. You don't have this kind of a case come through your kind of a courtroom that often. And I think, I think you could safely say that it's, it's a once in a decade type situation.

JUDGE: Well, it is. It is. There's no question that this case has received a lot of publicity. There's no question about that.

GERAGOS: And the, the, there's no question that the negative publicity has been overwhelming and pervasive. Obviously that's why we're sitting here in San Mateo and not in Modesto. And the problem is when you take the analysis, and, and mind you, we're also operating under a protective order, although, you know, apparently Mr. Goold and the prosecution doesn't abide by it, judging by today's paper; but the fact of the matter is that the protective order was based on an analysis that was rooted in Shepard versus Maxwell. And the protective order and the change of venue were both based upon the publicity and the pervasive publicity. And if you take that analysis, then how do you justify that with the fact that we've imposed a protective order, because of overwhelming pervasive publicity, we've moved this case for a change of venue, and for convenience's sake, for the witnesses and for the prosecution, for convenience's sake we kept it within driving distance of Modesto, well, for convenience's sake I would argue why don't we have two juries. You know, we haven't moved this case to where it rightfully belongs, which is in the most populace county in California, which is according to the case law what you do. We've reached accommodations based upon costs and analysis of costs. And I'm asking at a certain point in a death penalty case, where it's not, where we're not talking and I'm, this is not a question of mitigation, well, I, I just don't see where any kind of cost factor or any kind of time factor, as a practical matter, matters one whit. And from a, just a base level of fairness, why can't and, I don't think anybody for a minute is going to tell you that a death qualified jury is more fair to the defendant. I don't think your Honor will tell you that, and I know based on my experience and based on all the sociological research, it's not a fair,

JUDGE: The Supreme Court is not impressed with that argument, Mr. Geragos.

GERAGOS: They weren't impressed 15 years ago, they weren't impressed 15 years ago with the fact,

JUDGE: That's in Illinois, a case in Illinois. We're talking about California.

GERAGOS: But, remember, the Supreme Court was not impressed with the argument about executing the mentally retarded, and they've changed on a dime on that. In Atkins. So the fact of the matter is that here in California somebody in the legislature, at least two‑thirds of the legislature was impressed enough with the argument to propose and pass and enact a statute. So, what was the reason for that? The legislative history, Judge, by the legislature, and you know the famous words, "The legislature has spoken," legislative history is clear that it was enacted because the legislature here in California felt that a death qualified jury was prone to conviction and deemed pro‑prosecution. I'm just trying to level the playing field here. I'm not even asking for a level playing field. I just want to get on the teeter‑totter. And all I'm asking for is give us a fair trial. Give this, this gentleman who is sitting next to me the ability to fight with only one hand tied behind our back. That's all we're asking for because we believe that, once the evidence gets into the courtroom and once it gets in front of a fair jury, he's going to be acquitted because he's innocent. And I just don't see where it makes any sense to talk about, you know, when you, when you come back to the U.S. Supreme Court not being impressed, remember, we've got the statute.

JUDGE: I'm talking about the California Supreme Court.

GERAGOS: Well, I'm telling you that the, at least the legislature is impressed enough that the legislature has got the statute there. You can do this. I mean, there's nothing that prohibits you.

JUDGE: I know I can do it.

GERAGOS: And if you can do it, this is the case where you should do it. It certainly is a more compelling case than Carpenter was, and it certainly, given all the publicity, makes more sense. And it certainly, Judge, given the practicalities of it, makes more sense.

JUDGE: All right. You want to be heard, Mr. Harris?

D. HARRIS: Yes, your Honor. It's, counsel's impassioned plea is nice, but, unfortunately, it, it's illogical and it doesn't follow the law. To just briefly touch on some of the points, the, the argument that the media has some particular interest or influence in whether we should have two juries is illogical because common sense would tell you that both sets of juries, if we were to do that, would be affected by the same amount of publicity. And, in fact, in the logical sense the second jury would be even more affected by coming in after there would be a guilty verdict. So we would have to go through that process as well. The other argument that he talks about is that, if there were separate juries, that we would only have to put on two weeks for a penalty phase. That's not true. As the court knows, we would have to re‑try this entire case in front of the penalty jury so that they would have all the evidence before them that establishes the defendant's guilt so that they could reach a fair and just punishment at the end of the case. So those are the illogical flaws with his, with his plea to the court. Now, going through, this one of the things I want to point out to the court is that counsel makes a lot of statements, but there's nothing in the record that backs them up; prejudgment, whether the, separate juries are fairer. In their particular motion they say we can attach stuff from the federal district court of appeals; we're not, but if the court wants us to we can. So there is really nothing there in the record that shows any of this sociological research or psychological research or writings of the death penalty opponents to say that a death qualified jury is any different than any other jury. There's nothing in the record to that. If we look at the arguments that they're citing here, they're citing to a federal district court case, the Grigsby case. That particular case was rejected and reversed by the U.S. Supreme Court. The U.S. Supreme Court went through , the majority opinion went through the Grigsby case and looked at the same research the defense is asking you to follow now, and said the, that it was fatally flawed. So they're asking you to not only reject the U.S. Supreme Court, but to do it based on research that the Supreme Court has said was flawed. So if we take all of that off the table, we then come back to California, where there's no evidence that there's any distinction between the two juries. The statute, if you look at the Mendoza case, the Rowland case, the Kraft case, all the cases that we cite from California, that, they say that there is a legislative preference, a strong legislative preference for a unitary jury. That has been upheld by the U.S. Supreme Court. It's been upheld by the California Supreme Court. And there is no reason in this particular case to pick a separate jury. So based on the arguments that, as we point out, the law is clear, there should be one jury. That's the law. Thank you.

Ruling

JUDGE: All right. The, first of all, just to answer some of the issues that were raised. Most of this about executing innocent people, most of this issue comes up in the State of Illinois where the governor, I think he pardoned everybody on death row, or reduced it to life without the possibility of parole. But I think the, one of the issues back in Illinois was the quality of the attorneys representing the accused in those cases. And in a lot of the cases that were mentioned, they mentioned the quality of the representation fell short. I'm impressed with the quality of the attorneys representing the defendant in this case and a lot of the other cases I've had. I think the defendants in the capital cases get outstanding representation in California. And I would really be surprised, I can't say it would never happen, but I would really be surprised if somebody fell through the cracks and an innocent man was executed. There's appeals that go on for years and years and years, and there's a lot of safeguards to see that that doesn't happen in this state. With respect to the, this issue as to whether or not a death qualified juror would be less able to give the defendant a fair, a fair penalty trial, there is no really empirical evidence that supports that position. The California Supreme Court has serious doubts about the value of psychological testimony in predicting the behavior of actual jurors. As the prosecution pointed out, it seems to me, and as I raised it, seems to me whether we had one jury or two juries, we still have the same problem. The prejudgment rate in the second jury would be just as much as it would be in the first jury, although it would be compounded by the fact that the defendant would have already been found guilty or else they wouldn't be in a penalty phase and all that entails. It doesn't necessarily mean, at least in the court's opinion, that you cannot get a fair trial unless you have two juries. I don't particularly, not persuaded by that argument. I think you can have a fair trial with just one jury. And the California Supreme Court has already stated that it's, it's, that the state has a well‑established interest in maintaining a unitary jury for both phases of the trial. The cases are People vs. Fields, 1983 case, 35 Cal.3d 329. People vs. Gallego, 1990 case, 52 Cal.3d 115. People vs. Fauber, 1992 case, 2 Cal.4th 792. People vs. Pride, 1992 case, 3 Cal.4th at page 195. So the issue here is whether or not he can get a fair trial. Mr. Geragos, you said that the penalty phase is of no concern of yours because you're confident that the defendant will be acquitted in the guilt phase. And that could happen. I'm the last one to try to predict what a jury's going to do, but I still have to be concerned when we select the jury that we have a fair and impartial jury not only as to the guilt phase but also as to the penalty phase. And both, we're going to have a questionnaire that's going to give the attorneys for both sides an opportunity to cull out those juries that they feel could not be fair and impartial toward their client, for whatever reason. And the court also has a responsibility to see that the jurors that are seated to try this case are as fair and impartial as the court can conceivably make them, or agree that they are, to that extent, fair and impartial. This prejudgment rate of 40 or 50 percent is speculation. Maybe it will turn out that way when we get these panelists in here. I'm not so sure that that may be the case, but it could be. But the last case I tried we brought in 2500 jurors. There's 701,000 citizens in the state (sic) of San Mateo. I'm not saying we're going to bring in 701,1000 people, but I do believe there's enough of a well of potential jurors in this case that we can seat a fair and impartial jury with one jury. So the request for two juries is denied. We will try this case with one jury. We'll try this with a death qualified jury to try the guilt phase and a death qualified jury to try the penalty phase. The next issue, Mr. Geragos, is sequestering the jury.

Sequester Jury Arguments

GERAGOS: Right. And now if the court is going to have one jury, and going to have it for both phases, then the court, I think logically, extending your argument, or your reasoning, then you need to sequester the jury, because you're going to try, going to go through a painstaking process. We're going to try to select a jury of people who come to this with a limited amount of information or preconceived notions or prejudgment. We're going to then ask, I think you said 18 people, to sit here, with enormous media interest, to the point where we get roving billboards and get billboards on the, on the freeways, and we've got nightly coverage and it's in the print media and it's on TV every night. And we're going to say to these people, Okay, when you leave here at 4:00 o'clock each day, now, you go home and when you're driving home, if you see a billboard, close your eyes on the freeway, just don't crash. If you see a roving billboard that's outside that's voting, you turn the other direction, just make sure that when you turn the other direction there aren't four camera reporters who are following you.

JUDGE: Let me ask you a question. How are we going to get the jurors from the courthouse to wherever they're going to be sequestered without driving on the city streets, and how are we going to block off those photographs and those, and the billboards? How are we going to do that? Black out a van?

GERAGOS: Well, there's the same way that you get into this courthouse and that I get into this courthouse and that the People that are sitting in this front row get into this courthouse, Judge. They come, they go underground they go down that little rat's maze through the building, and they come right up into this courtroom. No different than you do, I do, or they do.

JUDGE: But they still have to get, we don't have a motel in this building.

GERAGOS: Well, they can do the same thing I do. I've got two places where I go, either in the courthouse, down in the bowels of this building, or the hotel.

JUDGE: Okay.

GERAGOS: So, I mean, it's one or the other. And the fact of the matter is, I've told you, I'll make the prediction now, what's going to happen in this case is what happens, and what has been happening in the last couple of years with the growth of cable TV and the Internet, is, I guarantee you, that even though you try to keep these jurors anonymous by using the number system, I will bet you they'll put it over the Internet in under 72 hours. Within 72 hours the jurors's names will be on the Internet. And just like the trial that I told you about within the last 18 months, not only will their names be on the Internet, even though that judge endeavored to keep it anonymous as well by using numbers, they'll have a complete listing, some very clever person on the Internet will have a complete listing of those particular jurors's occupations, their marital status, their judgments, their tax status, everything else will be available and will be there. And you will have, I guarantee you, some radio station with some disk jockey with some bullhorn standing outside when they leave hassling them or expressing their belief in my client's guilt. It's a matter of course. We're going to have daily sessions in here with people who are being either hassled one way or another because their names have gotten out as being on this case. And they have to go back into the community at 4:00 o'clock and they don't come back until 9:00 o'clock the next morning. And the idea that in this case, with the kind of attention that this case has garnered, that these people are going to be able to separate out over the course of five months, six months, or whatever it is, whatever it is that they've heard in the courtroom, versus whatever it is somebody's whispering to them, or whatever it is that they're reading or whatever it is they're seeing on TV or whatever is in the ether, I just think is ludicrous. And it's not going to happen. It's a wonderful kind of position to take; it's an idealistic position to take to say, Okay, I'm going to instruct you not to read the papers. I'm going to instruct you not to watch TV that has to do with this case. The fact of the matter is these people are going to be assaulted by the fringe elements, if you will, of the media, and their information is going to be out there. And there will be people who will make attempts to contact them, and there is going to be crazies who are going to do that, and there's going to be other fringe members of media who will do that. There will be people who will be paying them for their stories or trying to attempt to pay them for their stories during the course of this trial. All of those things have happened to witnesses in this case already. As I indicated to the court before, during the preliminary hearing, just when I would mention the name, in cross‑examination of an officer who was testifying 115, I would mention a witness's name, within 45 minutes that witness was, had four different people at a place of employment trying to get that person on TV, trying, offering to pay for their story. I mean, just horror stories. You're going to have the exact same thing with the jurors, because there are elements out there that have no, that this court can't do anything about. You have no authority,

JUDGE: Oh, I can't. I can't control everybody in the world.

GERAGOS: You can't.

JUDGE: I know.

GERAGOS: You can barely control what's in this courtroom. So what's the, the, the only reality here to it is are we going to make them prisoners? Nobody wants to be sequestered, but the fact of the matter is if somebody is willing to serve on this jury and can serve on this jury for that period of time, then shouldn't we try to ensure that they remain as untampered with as possible? And that's why I think it's the only thing that makes sense, or some modification of it.

JUDGE: Well, what do you have to say, Mr. Harris?

D. HARRIS: Your Honor, I think there's a significant difference what counsel's saying about the court's ability to control with what's coming out in testimony and what's going on with the jury. This court's already made a motion dealing with sealing the jurors's information, so there isn't going to be a mention of any of the jurors's names while they're in court.

JUDGE: Well, we're trying to take every precaution we can, Mr, Harris but that's not foolproof. It wouldn't surprise me if their names get out, but we're trying everything we can possibly to do to try to keep their names private.

D. HARRIS: Exactly. The Court is taking those steps. It's excluded cameras from the courtroom, so, again, the visibility of the jurors, the names of the jurors, the court has taken all of the steps that it can to protect that anonymity of that particular panel that's selected so that they can't be tampered with by any outside influence. Now, counsel in the previous argument was making that, as a practical approach, there was a need for two jurors, or two juries. In this particular argument it's even more practical that you need to have a non‑sequestered jury. If we start with, to use the logic that he was using about how we're going to lose people, just take for example a single parent. A single parent can get day care for a child throughout the day, business hours, but if you sequester that particular juror, they're not going to make it past hardship. They're not going to have somebody who can take over and raise their children for five or six months while we imprison them to sit as a juror. So in that case we're going to lose a lot of people. The hardship is going to go up extremely great for individuals that can't come and sit on this jury. And I don't think that that's appropriate. As we pointed out in our points and authorities, there's no constitutional due process or even fairness right to have a sequestered jury. The legislature has given the court the ability, and the courts have allowed that, for juries to be sent home. This argument has been made by defendants before about This is a serious case, it's a death penalty case so therefore the court has to do that. The Bunyard case is a case that says no, that's not a requirement to, even in a death penalty case. What the courts do say is that this court do as this court is already doing: Take the appropriate steps to try and protect the jury as much as possible. That's being done. The next step is once the jury is selected, or even during the process while we are selecting them, for them to be admonished to not read, watch, or be involved with anything that occurs outside of this courtroom. And if anyone does attempt to influence them or contact them, that they contact the court and that it can be dealt with appropriately. Those are the appropriate tools and procedures to follow, and we would ask the Court to deny this motion as well.

GERAGOS: Judge, could I respond briefly?

JUDGE: Yes.

GERAGOS: There's also a child‑like belief that that's going to work in this case. And I think child‑like because it's, there's this naive, idealistic view that when you say, you know, you're going to tell them I don't want to you watch this, I don't want you to see this, please do that and I'm ordering you to do that, and everybody's going to nod their heads affirmatively; I mean that's one half of the problem. The other half of the problem is they can't control what people are going to try to do to them. You can't control what people are going to try to do to them. Mr. Harris says Well, the extension of my argument on two juries is that we're going to eliminate a portion of the populace. Well, you know, I just lost that argument, so apparently that was not a compelling grounds upon which to have two juries, so it's certainly not a compelling ground to argue against sequestration. Something, the court needs to do something that is unusual in this case. This case has a primer, and that primer is Shepard versus Maxwell. And the U.S. Supreme Court has, for now on exactly 50 years, has that case instructing trial judges to basically take control in situations that are unusual. This is an unusual case. It requires some unusual preventive measures, and that's what we're asking the court to do; to do something to ensure my client's right to a fair trial. And at the same time, one would think that they would be joining in this request because it's certainly not going to help them if we select, go through six or eight weeks of picking a jury and then jurors start getting picked off because people are approaching them, doing this or doing that and acting inappropriately. This case has been haunted by, by people acting inappropriately in respect to the court process. And so if that is the case, this court needs to do something. And this idea that we're just going to send them home packing each day at 4:00 o'clock to come back at 9:30, I think is naive.

Ruling

JUDGE: Okay. You're, your concerns are, are valid concerns, Mr. Geragos, but I think if I told this jury that we're going to sequester them for five months, if you want to compound the publicity that this case has received further by saying: And, by the way, if you get selected as a juror here, you're not going to be able to see your loved ones for five months because we're going to lock you up in some motel; you're not going to be able to see television, we're going to take out the radios, you're not going to be able to see a newspaper, that doesn't account for things like cell phones and telephone calls. And it, really, sequestering the jury really doesn't guarantee that they still might be the object of inquiry by the press, if the press found out where they were located. I can see people parking outside or waiting outside and, to make their feelings felt or in an attempt to talk to some of these folks. It's a difficult situation. The, as the district attorney pointed out, the court has already taken precautionary measures, and the court intends to take further precautionary measures. The cases talk about admonitions, firm admonitions. The jurors are deemed to follow the court's admonishment. And I know, and it would be naive for me to say that if people are selected as jurors here that friends, neighbors, when they find out that this particular jury, juror is serving on this, on this case, to do, inquire about the status of the case, and so forth. The only place we could guarantee that this wouldn't happen is if we parked the jury on Mars. Under the circumstances, we can't do that. So I'm going to, I, I do believe that if we say we're going to sequester this jury, we're going to compound the difficulty in getting a fair and impartial jury in this case because people are going to be bailing out right and left because they don't want to be locked up for five months. And I think it could have a negative effect. If, sometimes jurors get resentful that they've been locked up, and it could, it could, I'm not saying it would, but it could happen that that resentment might be contrary to the best interests of your client, because they could blame your client for being locked up for five months: He's the guy that put them there and they had the misfortune of being selected on this jury, and now, to make matters worse, they have to wrestle with all the issues here, and, to compound the problem, they're going to be locked up for five months. I think that could have a negative effect on the, on the jurors. Not initially, but as time goes on, I think that that very well could happen. They could be resentful towards the processes of the court and could, and could conceivably take it out against the defendant because they're locked up. So, the law says a firm admonition by the court generally is acceptable. And the court, reviewing courts have said that, that the jurors are deemed to follow the court's admonishment. And we're going to pick 18 jurors in this case. Six alternates. And, hopefully, we're not going to have a situation where somebody who is serving on this jury gets, you know, approached or does something untoward that requires a removal of that juror. And that's why we're going to pick these alternates, so that if worse comes to worse we can substitute a juror that's been tainted in some way, shape or form by an alternate juror. And I hope we have, six is enough, because six isn't too many when we're talking about five months. And if we go to a penalty phase, it may be an additional week or two. For the reasons I've stated, I think that it will make it more difficult to select a jury, and it may end up, it may end up with resentment against the system and conceivably resentments against the defendant for putting the juror in that particular predicament. And I'm going to deny the request to sequester the jury. The jury will be permitted to go home every night, with an admonishment, and , and we'll see what happens, okay? So that will be the court's order.