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Motion to open hearing on Defense Motion for Mistrial and Dismissal with Prejudice; Admissibility of TV Interviews
Guilt Phase July 14, 2004
JUDGE: All right. This is the case of People versus Scott Peterson. Let the record show the defendant is present with counsel, and the jury is not present. The Court excused the jury until 1:30 this afternoon. The matter is on this morning for an in camera hearing. The Court will give the reasons shortly. But I advised the jury that we wouldn't be doing it in public. They don't have to know all the reasons, but the press needs to know all the reasons, and so do the lawyers for the different groups. Just for the record, we have Miss Wilcox representing -- from Davis, Wright, Tremaine representing NBC, CBS, Courtroom Television Network, Cable News Network, and Fox News Network, among others. And then we have Mr. Olson here who is representing San Francisco Chronicle, Contra Costa Times, LA Times, San Jose Mercury News, McClatchy Newspapers doing business as the Modesto Bee. And the defendant is also present with counsel. And the record should reflect that I received this morning a letter from Miss Wilcox from Davis, Wright and Tremaine indicating their request to be present to argue these issues. And also Mr. Olson had filed a motion in opposition to the closed hearings and motion to unseal the pleadings, and citing two cases in support of his position. Okay. So let's start out. Who wants -- shall we have Miss Wilcox first? Or who wants to go first? Do you want to go first, Mr. Olson? OLSON: I'll go first. Thank you, your Honor. JUDGE: Let me get something to write on. Got about ten legal pads. Writing on all of them. Go ahead. OLSON: Thank you, your Honor. The NBC Subsidiary case, which involved a celebrity, Clint Eastwood, and which involved a lot of publicity, as this case does, sets forth the governing principles here. The Court says -- 20 Cal.4th at 1219 -- that motions for and argument of counsel regarding nonsuit and mistrial, and evidentiary hearings are, quote, historically important open and public parts of trials. Why? Because access plays an important and specific structural role in the conduct of those proceedings. Access demonstrates that justice is meted out fairly, thus promoting public confidence. It promotes a means by which citizens can scrutinize and check the use and possible abuse of judicial power. Again, I'm quoting from NBC. And it enhances the truth-finding function of the proceedings. In the Brian W. case, 20 Cal.3d at 625, the Supreme Court said that the United States Supreme Court has, quote, repeatedly recognized the salutary functions served by the press in encouraging the fairness of trials and subjecting the administration of justice to the beneficial effects of public scrutiny. So you need access, and you need contemporaneous access. Access to transcripts later is not adequate. That's what the California Supreme Court holds in NBC Subsidiary, 20 Cal.4th at 1211. Now, regarding the, quote, risk that jurors will be exposed to the very information that was held from them, the court in NBC Subsidiaries says it brushes that aside. It says that frequent and specific cautionary admonitions and jury instructions, and not closure, constitutes the accepted, presumptively adequate, and plainly less-restrictive means of dealing with the threat of jury contamination. And I haven't been here every day. I am sure that the Court admonishes the jury at the end of every day not to read the papers, not to pay attention to the TV. And I'm sure that the jury is doing its job. And the California Supreme Court in NBC says you have to presume that the jury is doing its job in following the Court's instructions to decide the case based only upon what they hear in this courtroom. So the court in NBC concludes, 20 Cal.4th at 1221, quote, nothing supports the proposition that access would hinder proceedings in which a court entertains a motion for mistrial. Now, we haven't been told exactly what the Court's going to consider this morning. We have heard accounts that it's going to be a motion for mistrial or motion to dismiss. It may involve evidentiary issues. It may involve 352. But those are the kinds of things which, held outside of the presence of a jury, that the public and the press still has access to. And, again, that's because, in the words of the Supreme Court in NBC, you have to presume that jurors follow instructions to avoid all publicity and, quote, cautionary admonitions and instructions must be considered a presumptively reasonable alternative. And that's true even when, in the NBC case, the case that received, quote, intense and pervasive publicity, and even when you had a celebrity like Clint Eastwood. Now, in order to justify the closure of anything, or the sealing of any documents, you have to show substantial probability of prejudice. No prejudice can be shown from having this hearing open to the press and the public. Again, the jury is constantly admonished. You have to presume it follows instructions. And you are going to have coverage anyway. I have been down here before. I have heard Mr. Geragos talk about roving billboards, or some such thing like that. But you are going to have that anyway. You are going to have that whether this hearing is open to the press and public or not. What you will have if you have this hearing in the open is what you will have if the trial is conducted openly, is press coverage that will be based on what happens in the courtroom and not on speculation about what might be happening behind closed doors. You won't have speculation about somebody misbehaving. You won't have speculation about what's being hidden from the public, and that is the worst. And what's the best is something happening in the open where people can see for themselves and observe justice being done. You want to have the public to have confidence that justice is being done. And access promotes that public confidence. You are not going to be able to shut off publicity, but you will be able to guarantee that people at least can find out what's happening in this courtroom and can see for themselves, and can have some confidence that the right result is ultimately reached, whether that result is the Court granting a mistrial motion, or whether the Court allows the case to go forward and allows the jury to decide it. So, again, summarizing the test in NBC, you cannot close a hearing unless there is an overriding interest supporting closure or sealing, there is a substantial probability that interests will be prejudiced absent closure and/or sealing; and that can't be shown here because what's happened in the past has already happened. But what you have to look at is what value or lack of value will occur having this proceeding in the open as opposed to being closed. Finally, you have to show that any proposed closure and/or sealing -- and that's another thing that this motion, of course, involves is the sealing of the arguments that the parties have made about this, is narrowly tailored. And closing an entire hearing, sealing an entire brief, is absolutely not narrowly tailored. Finally, any closure or sealing has to be -- you have to show that there is no less restrictive means of achieving the overriding interest. Those rules apply to closure of hearings. They also apply to sealing of documents. And what you get when you put those tests together is basically the holding of the NBC Subsidiary court, that closure just should not happen. That, you know, there is no case in which a preliminary hearing has been closed. And there is no case which has upheld the closure of substantive proceedings. So I would submit, your Honor, that there is no justification to closing any portion of this hearing. The parties have not shown that substantial prejudice would result from closing any portion of this proceeding. It should be done in the open. Public confidence can only be promoted if this is an open hearing and if the press is able to report on what happens in court, and not on speculation. And in the words of the United States Supreme Court in the Press Enterprise case, quote, public access is essential to the proper functioning of the criminal justice system, and the absence of the jury from these proceedings makes access even more important as a safeguard and as a check against possibly overzealous behavior by the attorneys and the exercise of judicial power. Thank you, your Honor. JUDGE: All right. Thank you, Mr. Olson. Miss Wilcox. WILCOX: Thank you, your Honor. I'll just make a few followup points. I think Mr. Olson touched on these, but I just want to emphasize that the NBC Subsidiary case did involve, in addition to trial motions, a number of evidentiary hearings, hearings under 402, where the court evaluated evidence and decided that certain evidence was not admissible. The Supreme Court was not fazed by that. The Supreme Court said those are arguments. Those hearings are presumptively open. They should have been open to the public regardless of the fact that that evidence did not make it to the jury; because, as Mr. Olson pointed out, this court is obligated to assume that the jury will follow your instructions. The court describes it -- the Supreme Court describes it as a fundamental premise that juries follow these instructions. That's 20 Cal.4th at 1223 to 1224. It is not enough that the motion and/or the hearing may mention evidence the jury may not hear. The court has to face that evidence, find all of these factors, that an overriding interest supports closure, supports keeping that information from the public, that there is a substantial probability that it will be prejudiced absent closure. That means not only will the press report it, and the jury disregard your instructions and see what is in the press or learn of it, that it will actually influence them in their decision. There has to be a substantial probability of that. As Mr. Olson mentioned, it has to be -- your ruling has to be narrowly tailored to serve that. That means that as much as can be open must be. If the Court is able to release to the public a portion of the papers, the Court is obligated under the NBC Subsidiary to do that. And if a portion of the hearing can be open, the Court is obligated to open that portion of the hearing. And, finally, the Court has to find that there are no less restrictive means to achieve that interest. We have submitted -- I would submit that Mr. Olson has a slight -- a very difficult test to meet, and it's one that we, of course, don't have any information about, what is in the papers. But the Court has to scrutinize it carefully and decide whether or not all of those four factors have been met. Thank you, your Honor. JUDGE: Thank you. And, Miss Wilcox, I invite you to stay when, later on in the morning we're going to deal with these tapes. That definitely will be in public. And there may be some issue there. And I think that you may want to be here to support your point of view. WILCOX: I will stay. Thank you, your Honor. JUDGE: I invite you to remain. WILCOX: Thank you. JUDGE: Mr. Distaso, what's your position? DISTASO: Mr. Harris is going to handle that. JUDGE: Mr. Harris, you are going to handle this? Okay. D. HARRIS: I was. Good morning, your Honor. JUDGE: Do you want to get to the microphone so I can hear you better? D. HARRIS: I'll be brief. We have been here. We have argued this before, over and over and over again. The only thing that's occurring at this point in time, it's just a different process, different proceeding in the same string of events that we're going through. The media has brought up nothing new. They keep citing the same cases, advising the Court what the Court's responsibility is. The Court has exercised that responsibility from day one, assuming the stewardship of this particular case. One thing I would point out to the Court, as the Court has ruled in certain ways, following the law, as pointed out in the Rules of Court and the cases cited by the media. The media was never taken anything -- it's never been appealed in terms of having anything done with this. So -- JUDGE: Well, they did appeal the keeping the cameras out of the courtroom. That was appealed. D. HARRIS: That particular issue, I believe there was a writ that went up that was summarily denied. So that's where we're at at this point in time. What the Court is doing is pretty much the same thing the Court has been doing since the beginning, exercising what the Court believes is in the best interests of this particular case. And that's the ultimate fairness and justice of this proceeding. Both attorneys for the media argue strenuously that, well, you have to meet this substantial burden, and there has to be no less restrictive means. Well, the problem with that is, this is a case unlike any other case, as this court as found a number of times. The media coverage in this case is not like any of those cases that it cites. Clearly the Court can distinguish any cases they cite, because there is no media coverage like this particular case. Taking the jury, and saying, well, if you give them an admonition, it's presumed, as the courts have said, appellate courts have said, that they are going to follow it. The problem with it is, if the media continues to do what they do, point out to the Court this particular thing, the argument is that access promotes the truth, is what the First Amendment argument is that the media is making. And that hasn't really been what has happened in this particular case. The proceedings here have been open to the public. Transcripts have been provided. Yet we see, day in and day out, where the media tries to put their spin, their twist, their flavor, with their kind of talking heads, their opinion-makers. That's what actually is going on. So this is what's going out, and this is with access. So they now ask you to say we want you to take the stuff Court finds the jury is not allowed to hear, we still want you to give that to us. We're going to put a twist on it anyways. And they are basically admitting that if you don't we're going to gossip about it. Well, the problem with that is, the reality is, they are gossiping about everything anyways. It makes no difference in terms of access. This court has the obligation to this trial, not to ratings. If the media wants ratings, that's something -- that's their responsibility, their problem. What we have to do is make sure that the jury does not receive information that they are not supposed to receive from any -- from any source. I mean it's somewhat pointed out on page 38 of the motions, where it's indicated at line 15, all indications are that he, referring to the defendant, is receiving a fair trial despite press coverage of this case. So I think that kind of sums it up best. This court has to set aside what the media is doing and look to this particular process. The Court is doing what it should. And the people encourage the Court to keep doing what it's been doing. Things that are not for the jury's -- for their information, something that they should not be receiving, the Court needs to continue doing what it's been doing. And we don't think that the media has any right, any more so than the jury does, to get that particular information, because they have not proven themselves to be responsible with that information. JUDGE: All right. First of all, before I invite comments from Mr. Geragos, the Court does have to rely on the fact that the jury will follow the Court's admonition, otherwise it would be a disaster. That's why the Court is admonishing the jury at lunch time, and in the evening, and reminding the jurors with an admonition at each recess. I have to rely on the fact that the jury is, indeed, in fact going to abide by the Court's admonition. Mr. Geragos, what's your position? GERAGOS: Judge, I don't want to violate the order that is presently in place. JUDGE: Which one? Which order? GERAGOS: In the order regarding the present motion. But there is a -- there is actually a legal difficulty in me responding to this, because part of the opposition that's been filed by the people cites 977 of the Rules of Court. I had planned on asking the Court to take judicial notice of the item which they have cited under 977 under 452(d), because I am not citing that for authority. I was citing that as 452. JUDGE: There is case law on that I'm going to refer to. GERAGOS: I would formally ask the Court to take judicial notice under 452(d) of the Evidence Code, of records of any court of this state. And I would cite the Court also to People versus Hill, which is a 1998 case, 17 Cal.4th 800. That stated the Supreme Court stated that an unpublished opinion of the Court of Appeal was in the category of records of any court of this state. So what I'm asking for -- and I don't want to speak to it, typically I'm asking the Court to take judicial notice of the case that I have cited in the motion. Given -- depending what the Court does there, I believe when I received the Davis, Wright and Tremaine letter, when I got back to my hotel last night, I asked Miss Wilcox -- I think we have unduly given her credit, because I think the letter was actually signed by Mr. Wickers. I think Mr. Wickers makes a valid point. I believe that his citation, as I read the letter, or his letter brief, specifically on this issue, would appear to cover what's at issue in this hearing. And that's where I have pause. I generally have, as the Court knows, have been very supportive in all of the closing orders and everything else. But I have to admit, I think in this case, based upon the request that I have made now, that that be taken -- the request for judicial notice be made. And given the fact that it appears that the Supreme Court has issued a pronouncement that's on all fours -- if not on all fives -- with what we're talking about here, I do not believe that we're on solid ground in terms of a closure. They may even -- I may concede that the Rule 243.1 and .2 may not have been complied with in the fashion that it probably should have. JUDGE: I'm prepared to comply with those rules this morning, because it doesn't -- as long as I make this -- give the reason before I conduct a hearing. I didn't make that finding before the jury, because the jury doesn't have to know about that. GERAGOS: Right. I understand. JUDGE: I'm prepared to do that now. I just want to point out one thing. The Court's done some research on that. And there is a case called Modern Development Company versus Navigator Insurance Company, 111 Cal.App.4th at 932. In that case they said that you can consider an unpublished decision for its value and persuasiveness of reasoning only. And in some of the other cases, like Casella versus the City of Morgan Hill, 230 Cal.App.3d 43, the court pointed out there that the court didn't rely -- in making its ruling didn't rely on an unpublished opinion in making its ruling. So there is sort of a caveat, that the Court can only consider for that narrow basis for its value and persuasiveness of reasoning and not as precedent. GERAGOS: Could the Court take a look -- could I invite the Court -- I apologize for not giving the Court the citation earlier. But could I invite the Court to take a look hat People versus Hill? Which is the -- I believe the latest pronouncement by the California Supreme Court. JUDGE: All right. GERAGOS: Which is 17 Cal.4th 800. JUDGE: People versus Hill? GERAGOS: 1998 case. JUDGE: Give me the cite. GERAGOS: 17 Cal.4th 800. JUDGE: Is there a page? GERAGOS: It's a relatively short opinion. JUDGE: Then I'll have to go look at that before I make my ruling. Do you want to respond to this at all? GERAGOS: I can find the specific citation. I mean in terms of -- I'm sorry, I hadn't finished yet. JUDGE: I am directing the questions to you. I thought you were done. Go ahead, finish. GERAGOS: The problem that we have is, I think that there is probably a way that we can tailor this argument that would straddle both of the issues. JUDGE: Well, I have that in mind. And it would be -- see, here is the dilemma the Court has, Mr. Geragos. The Court at a prior hearing, when the District Attorney made certain offers of proof, the Court ruled under 352 that reference to certain cases would not be permitted, because the prejudicial value, in my opinion, outweighed probative value. And so the way that you presented your motion, and you attached that case, I'm in a position where I would be flying in the face of my own ruling if I permitted you to argue that as part of this motion. If you don't make any mention of it -- and the fact that I have read it, and I know what it says. But if you -- if you want it, not make any reference to it, then I don't have any problem with this being in public. But, otherwise, I'm going against my own rulings. GERAGOS: I understand. That's why -- JUDGE: That's dilemma I'm in. GERAGOS: I understand that. To some degree, that's exactly why I understand the Court's in a conundrum, because we have had the previous 402. One of the reasons I have asked for the case -- for the Court to take judicial notice under 452 is precisely to address that concern. If the Court takes judicial notice in the context of what I -- the remedy that I'm seeking, or one of the alternative remedies that I'm seeking that gets the Court through or over that hurdle. JUDGE: Okay. Well, look. I can take judicial notice of that case to the extent that it's permitted. In Modern Development versus Navigation Insurance Company, I can consider it for its value and persuasiveness ever reasoning. I can take judicial notice of that case for that purpose. GERAGOS: I don't believe -- if the Court limits it to just that area, I don't believe that that solves the problem. JUDGE: Why not? GERAGOS: In terms of -- because I believe that what I'm citing, one of the reasons I have cited that is to show the Court that there is an intentional, willful violation, as opposed to a negligent violation, or a slip of the tongue, so to speak. And that's the reason -- I mean the -- I don't want to ask the Court to take judicial notice for the reasonableness or the persuasiveness of the opinion. I'm not going to mislead the Court. I want the Court to take judicial notice because I think that the precise same argument that was made by the prosecutor in that case rings the same bell here. JUDGE: See, Mr. Geragos, here is the problem. I can't read that judge's mind for the ruling he made. I can't read that judge's mind. GERAGOS: You can -- that old expression, "Fool me once, shame on you. Fool me twice, shame on me." JUDGE: I know. GERAGOS: At a certain point when you keep saying it's a slip of the tongue, it's a slip of the tongue, the Court can say that there is a history. Courts of Appeal do it with great regularity. They do it with prosecutors, they do it with defense lawyers. Certainly nothing that would stop this court from taking judicial notice of a Court of Appeals unpublished opinion to deal with a law enforcement officer. JUDGE: I think we are arguing apples and oranges. The case says I can consider it for value and persuasiveness of reasoning. I don't see what the difference is. I don't see what the difference is. And if you can represent to me that your oral argument on these issues, that you are not going to make reference to that case, since I have already -- I can take judicial notice of it, that I would be willing to have this hearing in public. But if we're going to start referring to that case then, because it's contrary to the Court's previous ruling, I'm on the horns of a dilemma. I can't overrule myself. And so then this poses a problem to the Court. GERAGOS: Right. I understand that. And I'm in the same position. I can't say, no, I'm not going to make reference to this case. Precisely what I'm asking for is the Court to either revisit its previous ruling, or to examine that case in the context of what happened here. JUDGE: I have read it. I read it. GERAGOS: So, no. JUDGE: If you can't do it, then we'll have to -- GERAGOS: I can't do it. JUDGE: Then you can't do it. Do you want to respond to that? D. HARRIS: Well, first, I'm going to point out to the Court the letter from Davis, Wright and Tremaine. We actually don't have a copy of this, so I don't know what's in there. Looking at it now. JUDGE: This was delivered by messenger late last night. D. HARRIS: So Mr. Geragos is indicating there is some things in here that's now causing him pause to whether we can do this in chambers. And I think that it goes back to what we're talking about. We can't really talk about the merits of the motions in public to justify the merits of why we're going to close it. So that's a problem with that. In terms of the Hill case -- actually, from what I recall, not a short opinion. It's a California Supreme Court case involving a homicide. And I want to say it's fairly lengthy. What was occurring in that the Attorney General's office was talking about citation to the unpublished opinion that was in that particular case. And so that was kind of addressed in that particular case. So that's the best I can recall of it at this point in time. And without going into the Davis Wright Tremaine letter we're back to where we were again. My understanding is, we have two distinct issues before the Court today on what we're going to do in terms of closing or not closing, or the public have access or not. The media viewing the tapes, I think that that's one issue. This other motion that Mr. Geragos is referring to is something that, as the Court already indicated, there is a substantial reason, based on the prior 402s that, alone, is sufficient reason to close it. And, also, if the Court goes back in time to earlier responses to motions to things that occurred when papers were filed, and the Court had to issue an order at that point in time for things to be filed with the Court before they were filed publicly. JUDGE: Because there was an oversight in names of witnesses that were listed, and they had to be redacted. D. HARRIS: So in terms of following 243, 243.2, I think the Court has actually been complying with that, because there has been this process in place. The Court did that at the defense's suggestion, based on that previous motion that was filed, that that information be brought to the Court first for the Court to kind of exercise of that stewardship. So in terms of technical compliance with 243.1 of the Rules of Court, maybe not technically accurate, but in terms of substance of what's happening, that is being done the Court is receiving the motions. The Court is reviewing the motions to see if they should be public or not based on everything that this court is aware of. So I don't think there is any problem with that. And, also, as the Court's indicated, as long as the media is given an opportunity before the Court's ruling, I think that is taken care. You are taking care of the requirements as well. There is nothing that's improper that's going on here, from the letter, or any implications. We still argue that that first particular motion dealing with what Mr. Geragos is bringing up, that needs to be done in chambers or out of the presence of the media. JUDGE: Well, in camera. Well, you know, without beating this to death, if the Richardson case had not been attached to the motion and made part of the reasoning for this motion, then this would have been conducted in public. But as I pointed out, Mr. Geragos, by doing that, I'm going against my own ruling. And that put the Court in a dilemma. The Court is -- I have to say that, you know, the Court is not -- is doing this reluctantly. I can't get counsel to agree to do it in a different fashion, so I'll just have to take the bull by its horns and make my ruling. The Court has no intention to shut off publicity in this case. What's interesting, however, is that I have looked in this mornings Chronicle, and the media is already mindful of the subject matter of this hearing, because it has already been posted -- printed in newspaper this morning, a motion for mistrial and dismissal with prejudice, et cetera. So it's no secret as to what the subject of this motion is. It's the nuts and bolts of the motion that the Court is grasping with. The Court also intends, at the end of these proceedings, to publicly announce its ruling, so the media is also mindful. This is a little off the subject. But the second part of this hearing that has to do with the admissibility of the Diane Sawyer tape, that will be done in public, because that doesn't have to compromise any prior court's rulings. And so for the record now I have reviewed Mr. Olson's motion, and reviewed his citations as set forth. I have read and considered the letter by Davis, Wright, and Tremaine. And here is the courts findings. The Court, under 243, is going to make the following findings. The Court intends to close these proceedings, primarily because the Court has already ruled on a prior 402 hearing that under 352 of the Evidence Code, some of the evidence that Mr. Geragos intends to argue, the Court has already made a finding that the prejudicial value outweighs the probative value. So the Court would be compromising its own ruling if I ruled to the contrary. Secondly, there is potential prejudice of public opinion in this case by prematurely reaching conclusions before they can be fairly weighed through the judicial process by argument by counsel in the closing argument of this case, and by the appropriate jury instructions at the time when it is appropriate. Also, it would tend to bring embarrassment or intimidation, that it would could frustrate the purpose of this trial, could make the witness reluctant to testify, or to answer the questions properly and without any fear of retribution. So, for those reasons, the Court finds that a less restrictive means of sealing would not sufficiently protect the overriding interest expressed in this case from harm. The Court finds there is an overriding interest as set forth, for the reasons I stated, which overcomes the right of the public to access this information to be heard at the in-camera hearings hearing. So those are my reasons for conducting this in camera. Like I said, if I could get counsel to agree that no reference would be made to that case that's been attached to the motion, then I would do this in public. But I can't go contrary to my own -- doesn't make sense to me to be contrary to my own rules. So that will be the Court's ruling. Mr. Olson, did you want to be heard further? OLSON: Yes, I would like to be heard on that. JUDGE: Yes. OLSON: It seems to me that there is obviously a less restrictive means to serve the interests that the Court has advanced. And I'm not agreeing with the Court, because I think that everything should be open. I'm not -- I have not heard anything today that, in any, way, shape or form, justifies closing these proceedings. And the defense is not even opposing closing the proceedings. JUDGE: Well, if I was the defense I wouldn't either. There is a certain strategy involved there, Mr. Olson. You would have to be an imbecile not to figure it out. So, go ahead. I'm not calling you an imbecile, because the press will put down that I called you an imbecile. I'm not doing that. Go ahead. OLSON: I sort of caught that, your Honor. I'm not an imbecile. JUDGE: Okay. OLSON: But you have here a less restrictive means of addressing the perceived problem, and that is -- JUDGE: I'm open to suggestions. OLSON: Have this entire hearing open. When Mr. Geragos gets ready to mention the forbidden topic, which appears to be some unpublished case from what we can tell, he can say, your Honor, I'm about to mention this unpublished case. I'd like to go -- I'd like to close that. And then we can have the rest of the hearing in public, and you are not throwing out the baby with the bathwater. We have got, it sounds like, one percent of this hearing is going to involve something that the Court is reluctant to have happen in the open, and that's because of a prior ruling that we -- JUDGE: That I already made. OLSON: So there is a less restrictive means. We can have this entire hearing in the open, and then Mr. Geragos can say, I want to mention this thing that involves your prior 402 ruling, and I'm going to be citing an unpublished case and, your Honor, I would like to go into chambers to do that. And you can go into chambers. I'm not conceding that any of this should be closed. But I'm saying that if -- assuming, arguendo, that there is one portion of this proceeding that's forbidden fruit to the public, we can address that by having that one percent happen. That's what the entire less restrictive means analysis is all about. And then people can find out what's going to happen this morning instead of all this inside baseball about, you know, citing the unpublished case, and whether you can take judicial notice of it, and whether you can consider it. We have at that obvious less restrictive means. And just briefly to address what the District Attorney said about the prior proceedings that we have had on access issues. There is a difference. The prior proceedings, when we were here, was before you had picked the jury. And while not agreeing with what the Court did on those occasions, I can understand that what the Court, I think, wanted to protect against. He wanted to address, let me get a jury here that I can control. Let me get a jury here where I can tell them every day and woodshed them, don't pay attention to publicity. Once I do that I'm okay. The Court's now reached that point which the Court had not reached in the prior hearings on access. And the Court now has 12 people that are under its control. And the Court takes great care, as the Court has mentioned, to woodshed them, and to give them stern admonitions. And the Court correctly perceived, you know, I got to assume that they are following my orders. So there is a big difference here between where we are now -- JUDGE: I agree with you to the extent that I don't think that the -- I have to accept the fact that what happens here, if it is a fact reported, that I have to accept the fact that the jury is not going to be privy or read it. I have to accept that fact that's past of the admonition. Now, there has been a suggestion put on the table, Mr. Geragos, that you advise the Court when you intend to argue the finding in Richardson. You are prepared to advise the Court at that time so I can clear the courtroom, then so I can be consistent with my own ruling, you can argue the other stuff in public. GERAGOS: I'm looking at the filings. And I suppose if you give me just a minute, and I assume the filings would still be, because it's got the attachments, and their attachments, and everything else, that your finding would be that to keep those sealed -- to keep the previous things sealed? JUDGE: What I would intend to do with the filed documents, I would have to -- I would redact reference to the case and redact the case. The rest of it could be published as far as I'm concerned. And I would have to be careful with the DA's respond for the same reasons. GERAGOS: DA's respond has got like four -- do you have it in front of you? JUDGE: Yes, I do. I have it right here. GERAGOS: There is numerous things that reference -- Attachment B, that obviously I think ought to be sealed. Attachment C is just a transcript, so I don't think that's a problem. JUDGE: Let me see. GERAGOS: In fact -- JUDGE: Well, I don't have any problem with sealing that. I should also refer, you know, this -- I should also make mention of the fact that the statements that were attributable to this particular witness or this Miguel Aspeitia, A-s-p-e-i-t-i-a, the jury's heard those already. And the only issue is the issue about this reference to this duct tape. The jury has heard all this already. The jury at that time -- it's included in the District Attorney's moving papers here -- the verbatim admonition that the Court gave the jury. GERAGOS: That was not given at the time. That was a -- that admonition was given at a different time, as you can take a look at the beginning. JUDGE: I said yesterday, or the last two or three days. Well, Mr. Geragos, if that's a big issue, I can read it to them again. GERAGOS: All I'm saying is there is, Attachment B is putting out more garbage. So, you know. JUDGE: It's a statement. GERAGOS: Put a gun at my head and say, "Stop, or I'll shoot." What's point? JUDGE: I don't have any problem with that Attachment B, because it's not being offered for the truth. It is just, again, for the reasonableness of the officer's conduct. He also testified that he didn't find this information credible. GERAGOS: And when you say you have no problem, I don't understand what you mean. JUDGE: Redacting B, seeing that as part -- GERAGOS: Redacting B. JUDGE: I understand. GERAGOS: Well, then there is obviously -- then my motion and their motion, in large part, we're going to have to go out there and redact. If what you are asking me is to argue only in public everything absent the unpublished case, which -- I don't know if you misspoke or not. You said the name. JUDGE: Yes. GERAGOS: So if you are asking me, absent the unpublished case, I don't have a problem with that. But I will ask that if that's how I'm going to proceed, that I be allowed to redact both, or have the opportunity to redact the pleadings so that we don't end up, as Mr. Olson says, the ultimate game of inside baseball here. So I would need time at some point within the next day or two, over the weekend, to propose a redacted version of both pleadings. But absent -- or I should say, barring that, or after that, I'm perfectly fine with making the argument. Then I'll raise my hand and stay, okay, judge, now I want to talk in chambers. JUDGE: All right. Can you guys live with that? DISTASO: Well, the problem is, I don't see that that is possible. I mean the basis, basically, of the motion is this unpublished opinion and what he's going to say. I mean he's going to argue for, what, two minutes and then we're going to go in chambers? Not going to happen. JUDGE: Well, there is -- that could be. But there is -- in your response, there is the issue about 977. You are alleging there was no prosecutorial misconduct occurred. That's -- you don't have to make any reference to that case in that argument, seems to me. Whether or not I need proper instructions at the time of the witness's testimony, that's something that we can be arguing. You did not vouch for the testimony of the officer. That's, again, something that can be argued in public. Whether or not I have the authority to revisit all motions previously heard in this matter, that may -- that may make some reference to this other case, and then maybe that's the time that we would have too clear the courtroom. Like I said, when you say in chambers, I don't want to go back into my chambers, because it's very close in there when we have nine people in there for a few minutes. DISTASO: The thing is, I guess my position is -- I understand the Court saying we could parse it out like that. I just have argued many motions with Mr. Geragos, and -- JUDGE: You don't trust him is what you are telling me. DISTASO: Well, no, I don't want to cast aspersions, or anything else. But the fact is, he gets very animated. And, I mean, let's be realistic about everything. He's going to -- you know, he can't, I don't think, operate the way he argues with his limited fashion. JUDGE: What I would have to do then, I would have to stop him at that time, then clear the courtroom if we get to that point. DISTASO: I mean, you know, I'm going to defer to the Court's ruling. I'm just trying to be realistic. JUDGE: I understand that. And that's always a problem, because arguments get heated. And I'm aware of that. And I would be willing to try that in order to ensure that there is some -- that we're not trying to hide anything, or we're not trying to hide anything anyway. As I pointed out, the big issue is going contrary to the Court's own rulings. So if you are willing -- if you are willing to do that, I have to rely on your good offices, Mr. Geragos, that you will, in fact, not mention that case until when you do, and when you do want to argue it, that you will give me the appropriate notification, that we can clear the courtroom at that time. Do what -- you say what you got to say, then I can bring the press back in, or the public, and I can make my ruling. GERAGOS: That's fine. JUDGE: Can you live with that? Do you want to try it, see what happens? DISTASO: I'm game, judge. JUDGE: The next problem is, we can't do this today, and so I hate to orbit issues. I like to get them resolved so we can get moving. I would have to send the jury away again next week again. DISTASO: Well, judge, what we could do is just -- since now, you know, we have limited this area, we're not going to have this Diane Sawyer interview thing today. JUDGE: We can't do it? DISTASO: We can do that one today. JUDGE: Right. DISTASO: We can just do this maybe, I don't know, Monday morning, or something. Just tell the jury, come back at 10:00 o'clock on that day. It's not going to take all that long. JUDGE: I like -- GERAGOS: Going to take longer than -- JUDGE: Like to see what Mr. Geragos is going to offer to the Court by redacting some of this stuff, some of this material. DISTASO: I don't know if counsel doesn't agree, going to take longer than an hour, let's just be up front about it. GERAGOS: I believe it will, because I'm going to extensively argue several of these remedies. JUDGE: Okay. We'll just have to take the time, won't we? GERAGOS: Yes. JUDGE: All right. For the time being then, for the interested parties, I will draft -- I have already given my reasons on the record. I haven't officially then closed the proceedings. I reserve now the decision as whether or not to close the proceedings. But I have given the reasons why I could close these proceedings. The Court feels it's necessary, and so we'll leave it at that. And I will notify counsel. I'll have my clerk notify counsel as to the date it's scheduled again. Probably be late next week. We'll let you know accordingly so he can be present and put in your point of view. WILCOX: Thank you. DISTASO: Your Honor, before we let Miss Wilcox go, I mentioned just briefly to her this morning, she was actually representing ABC News. They have told me -- JUDGE: Yes. DISTASO: I just want to make sure we're clear on the tape issue. JUDGE: Miss Wilcox, you mentioned that there could be an issue this morning. And I'd like you to put that on the record now, please. WILCOX: Actually, Mr. Geragos and Miss Sager from my office, as to other portions of this, have agreed as to other portions of the tape, if there is going to be a hearing, they will give us three days notice. We'll file the motion to quash if he's going to get the outtakes. The tape for this morning, as I understand it, is just the broadcast portions. Which ABC has previously produced. Only one has actually been shown to the public. GERAGOS: And so that's why I didn't want her to leave, obviously, yet. I want to put on the record my position in the filing, is that the Court has to look at the entire -- under 356. I'm making that request that it look at it. Look at the entire tape including outtakes. I previously entered into an agreement, as Miss Wilcox says, with Kelly Sager from the firm that if we gave them three-days notice, that they would then come in and we could argue that. So my feeling is that the Court should probably look at what the broadcast version was. JUDGE: I don't want to waste the morning. I'll look at it. GERAGOS: Look at the broadcast version. When they come back, I would ask that Miss Sager be notified to come back, either with Miss Wilcox, or whatever, so that we can argue the outtakes. Because I believe, under 356, I'm entitled to that. But it should be -- should be presented to the jury. If the Court is going to allow anything in, it has to be in context. We need to make that argument after the -- they gracefully agreed to do that on whatever notice so that we can speed this along, not have to do it piecemeal. JUDGE: Let me ask Mr. Distaso. What we have this morning is the tape been provided to you by ABC pursuant to subpoena which is the redacted version, which has been redacted by ABC, correct? DISTASO: Right. Just so we're exactly clear. What it is, it's the aired portions of the broadcast which the Court knows that information, they are not entitled to claim any privilege, or anything. It's been aired. So we subpoenaed that. They brought it to us. What we're talking about, as far as redacting or editing the aired portion of the broadcast includes Miss Sawyer kind of giving a little introduction, what not, then portion of the interview, then a little editorializing, then another portion of the interview. What my investigator is going to testify to, we're going to show the entire aired portion so the Court can see exactly what was aired. Then we're going to show the edited portion that my investigator did, which was just take out Miss Sawyer's prologue comments, or these interim -- sometimes where she would just kind of talk, or do whatever. And all he did was include the interview portions that were aired. So that's what the Court is going to see. JUDGE: You have left out the editorializing by Miss Sawyer, and so forth? DISTASO: Yes. JUDGE: I would have to see everything. DISTASO: I think what we should do this morning, I play the whole thing, and then play the edited version. It's like maybe 20 minutes for each one. JUDGE: All right. Then, Miss Wilcox, I'll invite you to stay here if you are interested. Mr. Olson, you are certainly invited to stay. GERAGOS: Could I ask just, judge. I have Miss Wilcox's objection on the record. I am giving that three-day notice, however. Would she accept it three-day notice? WILCOX: He's asking -- I realize that we agreed to three days. Miss Sager is in a Ninth Circuit conference all of next week. If we could stay it until the following week, that would work perfectly. If it needs to be next week, we'll make it work. GERAGOS: I was going to suggest whatever day that we do the other hearing, that we do it all at the same time. Kill two birds with one stone. JUDGE: Do you want to accept formal notice this morning that you had been notified? We'll accommodate -- WILCOX: Yes. JUDGE: We'll accommodate. Is it your intention, Miss Wilcox, to file some memorandum with respect to the issue of whether or not you have to give up those portions of the tape that ABC has redacted? WILCOX: Correct. We'll be filing a motion to squash the subpoena if Mr. Geragos seeks the outtakes of the broadcast portion. JUDGE: Supporting points and authorities. WILCOX: Correct. JUDGE: You want to file something in response? GERAGOS: That's correct. JUDGE: Going to have a briefing schedule here. GERAGOS: Part of what we'd do, expedite it for the Court, is that I had given them notice of what I wanted. I have also kind of indicated informally to Miss Sager what the arguments are and what the points and authorities are. I would be asking, look, I assume they got the -- I don't want to use any -- filing a separate motion. They have a set of documents that I receive with great frequency that they file, so I know what it is. I can turn it around within a day if they -- or two days if they are filing it. JUDGE: Okay. So can you have something in my hands by, say, by next Wednesday? Or is that too soon? WILCOX: Absolutely. JUDGE: Give me your opening brief by next Wednesday then. Following Monday, Mr. Geragos? GERAGOS: Absolutely. JUDGE: Give you enough time? GERAGOS: No problem. JUDGE: I'd like to dispose of these two issues ASAP. DISTASO: What I would like to do, these all involve media and everything, is like to, again, just like we did, another -- just one big fell swoop. GERAGOS: I agree. JUDGE: That's what we'll do. We'll pick a day, after we have -- after the Court's been briefed, we'll pick a day and then we'll excuse the jury for the morning, and we'll deal with these issues and get them behind us. DISTASO: One final thing, judge, since we're going to do this maybe all at once. I do intend to play the Gloria Gomez interviews as well. The same exact procedure. The tapes were subpoenaed. JUDGE: Can I ask, who is Gloria Gomez? DISTASO: She is a reporter, I think, from NBC, local affiliate. GERAGOS: If that's the case, I'm probably going to have to subpoena them as well to get the outtakes. And I guess I'll do that today. I don't know if they have -- DISTASO: Since we're -- I bet you -- Miss Gomez is usually here. Is she here? Anyway -- GERAGOS: She's shrinking down in the -- JUDGE: There is Miss Gomez. DISTASO: She can just notify her counsel. That's what we have always done in the past. And I have the same -- GERAGOS: I'm sure counsel is sitting right here. JUDGE: Do you represent -- WILCOX: I represent NBC. I'm not authorized to accept any subpoenas. GERAGOS: That's the initial position until they get a retainer. JUDGE: Mr. Olson -- that's okay. I'll get back to you. OLSON: Your Honor, there may be a third bird we can kill with the same stone. And that is, I have received contact from the District Attorney's office relating to photographs in the Modesto Bee. So -- and it would be our intention to move to quash or limit that subpoena. And I'm wondering if it makes sense to have the briefing on that issue on the same time? JUDGE: Can you do it the same date? I like to get all these loose threads resolved so we can get back to -- back on track in trying this case. OLSON: I would be happy to live with the same briefing schedule with respect to this Diane Sawyer. JUDGE: If you can have something in here by Wednesday, Mr. Distaso, can you have something by -- DISTASO: We can work out something, judge. Just so you understand what these pictures -- JUDGE: I don't know what they are. DISTASO: They actually sold them to -- sold to the public. So we bought -- actually bought copies of them. I want a custodian to authenticate when they were published, and what not. JUDGE: I guess that's what he's objecting to. It seems like an issue that shouldn't take all that long. GERAGOS: Could I also inquire, doing some -- if counsel feel -- ask Miss Wilcox, if she is accepting service on the same briefing schedule, so we can -- JUDGE: For Miss Gomez? GERAGOS: So -- for Miss Gomez. So we can deal with it at the same time. WILCOX: I will. JUDGE: All right. Okay. We'll deal with these issues, try to. I suspect, now, at the rate -- let's see now. Next week there is going to be briefing schedules. And Monday, then I got to have some time to review them. So ne 8 maybe we can do this maybe like a week from Thursday, or something. D. HARRIS: Week from tomorrow, Thursday? JUDGE: No. Two weeks from tomorrow. Two weeks from tomorrow. GERAGOS: Why don't you -- why don't we do it in the afternoon on two weeks from Thursday, that way the jury -- we can go straight through testimony. JUDGE: Mr. Geragos, I would be willing to follow, you know, in the afternoon. Everybody is so pooped out around here. If we have a session, I would just as soon just let the jury not even come in that day. GERAGOS: I mean that's even more -- better with that. JUDGE: For obvious reasons. If we get done early, one or two, you have your other commitments. GERAGOS: We'll down at the San Jose Airport. DISTASO: I hate to keep throwing these things out. JUDGE: That's okay. DISTASO: I think, other than -- the only two tapes I intend to -- I want to put on the record, I might play the Ted Rowlands tape, which is the same thing. I don't know who Ted Rowlands is employed by any more. JUDGE: Mr. Rowlands is here. DISTASO: He is now at a different network. I don't think he is here today. JUDGE: There he is. DISTASO: Who is your counsel now? GERAGOS: He's CNN now. Ted Rowlands: I'm representing myself. DISTASO: I'll just talk to him informally, tell him, he can notify his headquarters. If they want to jump in this too, they can do that. JUDGE: Okay. All right. So why don't we just tentatively agree now, that on -- tomorrow is the 19th? GERAGOS: July 29th. JUDGE: July 29th, we'll do -- we'll take the day. We'll start in the morning while everybody is fresh as a daisy, and we'll start in the morning of the 29th, and we'll just plow through this stuff and deal with it at 9:00 o'clock. 7-29-04 at nine. OLSON: Your Honor -- JUDGE: Yes. OLSON: As long as -- it sounds like we'll be hearing from you. Since we are here today, there is one point that I mentioned already to your Honor which the parties were copied with. And that pertains to occasions on which the jury is provided with a transcript of video or audiotapes, but the court reporter does not transcribe them. JUDGE: What I normally do -- I don't know if you are aware of this, maybe you are. Under California Rules of Court, if you play a recording, you have to provide a transcript transcription of the proceedings for the jury, then I mark a copy of the transcript. It becomes part of the evidence in this case. So it's accessible to the media. OLSON: My understanding is, it has not 13 been made available, and members of the media have had difficulty accessing that, unlike other transcripts that have gone on the internet. JUDGE: Let me see. I think I see several people that I -- I think part of the problem is the side that had proffered the bit of evidence has not moved it into evidence. Looking through -- we have ten pages of exhibits here. DISTASO: I think, judge, that is the transcript that we played of the defendant's interview, most likely. And we did play that to the jury. I don't think that has been formally moved into evidence. JUDGE: Which number is it? DISTASO: I don't have -- JUDGE: If you move it, we'll just mark it today, and then we'll have a copy of the transcript. Because it's been played to the jury, it's obviously in evidence. DISTASO: The number is -- I don't have any objection to that transcript being moved into evidence. It's clearly been played to the jury. JUDGE: Been marked? GERAGOS: What exhibit is it? JUDGE: Here it is. I think it's People's Number 23. GERAGOS: 23. JUDGE: That's not 23. GERAGOS: No. Well, yes, 23-A is the transcript. JUDGE: 23 is the tape. No, that's -- GERAGOS: That's the 2-13 one. JUDGE: That's Sharon Rocha. Keep moving here. We have got page after page of exhibits. I'll find it here. THE CLERK: 68. Brocchini? D. HARRIS: Yes. JUDGE: It's number 68. It's the interview with the defendant by Brocchini that took place at the Modesto Police Department. 68-A is a transcript of the interview that has been made. It's been in evidence. So if you want to move it in now, we'll move it in now. We'll file it. You can take a look at it. DISTASO: That's fine. I'll move it into evidence. JUDGE: Mr. Geragos? Do you have any objection, Mr. Geragos? GERAGOS: No, your Honor. JUDGE: All right. Then the transcript may be admitted in evidence, and take the same number. Go ahead. Exhibit 68-A Admitted in Evidence. OLSON: We would request that the same procedure be followed with subsequent exhibits, because -- JUDGE: If they move it in I'd be glad to do that. I'm not going to -- if they want to move it in -- there is all kinds of exhibits here. And my practice is to go over these exhibits at the end. If they show a tape, you can move it in at that time. So you are talking about transcripts. Are you talking about all the exhibits? OLSON: We're talking about both. But specifically the letter addressed the situation where the jury has a transcript, the reporters are sitting here and listening to something which is difficult to listen to, sometimes inaudible. GERAGOS: The court reporter is not taking it. JUDGE: They are not transcribing it, because the Rules of Court require that only be filed. So what I'll do then, I will just remind counsel, if they are going to play something for the going to play something for the jury that the transcript will have to be admitted in evidence the same day, so -- DISTASO: I don't have any problem with that transcript, only as long as that's all we're talking about. JUDGE: There is a little memo for you. OLSON: I have been handed a note that indicates that transcripts of this sort involve the Sharon Rocha phone call, Amber -- Scott-Amber Frey phone call -- JUDGE: That's too early. We haven't gotten to that. I'm not start making rulings in the future. You will have to wait until you get to it. If they want 23, if -- that was played to the jury, correct? DISTASO: It was, judge. JUDGE: If they want the transcript of 23, we'll admit that into evidence now. They can have that. We're not going to be getting to Amber Frey. Don't push me. There will be a little resistance. When we get there we'll deal with it. GERAGOS: You are moving in 23? JUDGE: Yes. OLSON: There was 68. JUDGE: That's in. D. HARRIS: 23-A. JUDGE: 23-A was the transcript -- tape transcript, and 68-A. D. HARRIS: 68-A. JUDGE: Those are in. Exhibit 23-A Admitted in Evidence. DISTASO: So the schedule -- just on this briefing, your Honor, is the media is going to file their papers, they are going to -- JUDGE: By Wednesday. Only the one you are really concerned about is the motion to quash the -- DISTASO: The Modesto Bee pictures, and was that going to be filed by Wednesday? JUDGE: By Wednesday also. DISTASO: Okay. JUDGE: You did -- you can buy those photographs. You can always subpoena the guy that took the pictures, ask him is that a true and accurate -- DISTASO: Just so the Court knows a little history, I did that. Mr. Olson contacted me and said he would send a custodian in his place to give this information. And apparently now they are -- they are disputing that. So just so Mr. Olson -- I don't know if he wants, I'm not laying it in his backyard. I can't -- if he is willing to accept that part of this proceeding now, and then deal with that in his papers, I'm fine with it. It saves my guy from going out and serving him. But Mr. Olson will represent to the Court, I'm sure, that what I told you is accurate. He called me about the subpoena. I gave Bart Ah You the photograph. JUDGE: What about that? Argue that now, or -- OLSON: I can. I would like to see the subpoenas, which I haven't seen. I did have a conversation about the photograph. I'm aware of the issue of the custodian. My motion, when I file it, will be a motion to quash or limit. My problem is that I don't want authentication of something to turn into testimony that is violative of the shield law, Evidence Code Section 1070. JUDGE: That's not going to happen. All we need is something -- going to show some photographs. All we have to have is somebody to verify that they truly and accurately portray the scene on the date, that he took it on the date in question. That's about it to authenticate the photograph. We're not going to get into who told him where to go, and all this kind of stuff. I'm aware of the shield law. DISTASO: That -- I wasn't intending to offer any of that information any way. JUDGE: Well, Mr. Olson, it might be something you can work out with the prosecutor, save him from using a tree to file this motion. DISTASO: I guess, just for the record then, can I have Mr. Olson's assurance? Do I need to go send a subpoena to Mr. Ah You? Or will you accept the fact that that's what is going to happen, you will deal with it? Actually I'd like it on the record. If I'm going to send someone out to serve him, I need to know this now. JUDGE: I'll tell you what. I'll take a recess. You can discuss it with Mr. Olson. In the meantime you can cue up the -- I'll take a recess, and you can get together with Mr. Olson. Then we'll watch these interviews. Okay? All right. (RECESS) JUDGE: This is the case of People vs. Scott Peterson. Mike? Got to -- can you throw the switch here so they can hear me over on the feed? This is the case of People vs. Scott Peterson. Let the record show the defendant is present with counsel. These proceedings are taking place out of the presence of the jury, in open court. And now we're going to play some tape of an interview with Diane Sawyer and you want to mark that next in order? DISTASO: I will, Judge. I'll mark -- the first one I'm going to play is the aired portions of the Good Morning America. JUDGE: All right. Mark that. DISTASO: Let's do 131 A. JUDGE: Okay. Let's see. We've got -- DISTASO: And these are -- for the record, these are the full aired portions. JUDGE: All right. These are the full aired portions. DISTASO: And then the Primetime Live special with the same interview, different parts of it, but we're going to mark that 131 B. JUDGE: And 131 B is your redacted version? DISTASO: No. GERAGOS: No. DISTASO: These are -- JUDGE: They're two separate? DISTASO: Good Morning America interview portion. JUDGE: Okay. A is Good Morning America. DISTASO: Primetime Live. GERAGOS: Judge? JUDGE: Yeah. GERAGOS: So I think -- I'm sure you already do, but just so the record is clear, there's one interview. It is sliced and diced by ABC into two segments on Good Morning America. JUDGE: I didn't know that. GERAGOS: Right. Two segments on Good Morning America in -- which they're playing, which is 131 A. JUDGE: Okay. Then that's two segments. GERAGOS: Two segments of the original interview. JUDGE: Right. Okay. GERAGOS: Then there's another segment that is shown on Primetime Live, which is also an ABC show. JUDGE: Primetime Live. That's B? GERAGOS: That's B. And then the third version I assume that they're going to mark is their redacted compilation of those interviews. JUDGE: All right. That will be 131 C. DISTASO: That's fine. JUDGE: Okay. DISTASO: I'll give you that one. It's in the computer already. GERAGOS: What we call the prosecutor's cut. JUDGE: The prosecutor's cut. Okay. GERAGOS: Yeah. (People's Exhibits 131 A, B and C marked for identification) DISTASO: And I think we have a stipulation, your Honor, that what we've been saying on the record regarding these tapes is what occurred, and Lieutenant Smith is here to testify, if need be, but I think the defense is willing to stipulate to that. JUDGE: Okay. Under the Evidence Code they're self-authenticating. They're 1553. They're self-authenticating. DISTASO: Okay. So I'm going to go ahead and play the first one here. JUDGE: Here's an interrogatory. Can we have a stipulation that the court reporter doesn't have to report the -- the tapes? DISTASO: Yes. And just for the record, I have a transcript of -- we can call 131 C, the prosecutor's cut, as Mr. Geragos said. JUDGE: Okay. DISTASO: I didn't do -- I have it, I'll mark it in a minute. I did not do a transcript of the entire – JUDGE: Right. DISTASO: -- one because I didn't intend to play them. JUDGE: Right. GERAGOS: Actually, I'd like to be -- I may regret making the statement, but I'd like to have the court reporter report it because the transcript that I pulled off line is totally inaccurate. JUDGE: Well, that's going to be a real problem. GERAGOS: Can you do that? REPORTER: I won't certify it. You'll have to certify it. GERAGOS: I'll certify it. REPORTER: Okay. JUDGE: Can I make a counter proposal? GERAGOS: Sure. JUDGE: Do you have someone -- you -- you have somebody in your office, can they make a copy of those. GERAGOS: Sure. I can have them transcribe it. JUDGE: Can you have them prepare a transcript for you? GERAGOS: I can do that. JUDGE: So she doesn't have to do it? GERAGOS: Yeah. JUDGE: Would you be willing to do that? Because it's real burdensome for them to report that. GERAGOS: For this court reporter? JUDGE: Well, any reporter. GERAGOS: Well, if she asked me, I'll do it. If she says. JUDGE: Is that all right, Linda, if he has somebody in his office view these tapes and prepare their own transcript? Because if there's a dispute in these transcripts, there's a case that says both versions can be submitted to the jury and they can decide it. GERAGOS: I don't think that there will be a dispute. I think we just both agree that the current transcript that they pull off line is inaccurate. JUDGE: Well, are you willing to let -- GERAGOS: I'll have somebody in my office do it. That's fine. JUDGE: The DA's version, they would have a transcript. GERAGOS: No, they've only got a version -- that's what I wanted you to understand. The only transcript we have -- have some reasonable confidence is accurate goes to the prosecutor's cut. JUDGE: That's right. GERAGOS: But we could not -- the one you're about to see is the original. JUDGE: I know that there's no transcript. That's what I was saying. The only one we have a transcript is the DA's version, which is 131 C. There's no transcripts of the two segments of Good Morning America or Primetime Live, right? GERAGOS: Right. JUDGE: Okay. And just so I don't leave this up in the air, you have copies of these? GERAGOS: Yes. JUDGE: And you're prepared then to have your person prepare a transcript of the contents of these tapes? GERAGOS: Yes. JUDGE: All right. Okay. So then we'll -- can we stipulate the court reporter needn't do the -- GERAGOS: Yes. JUDGE: All right. DISTASO: That's fine, Judge. JUDGE: All right. You're off the hook, Linda. DISTASO: I might as well mark the transcript of our version, 131 B. GERAGOS: D as in dog? D. HARRIS: C. JUDGE: Let's make it -- GERAGOS: D. JUDGE: -- make it D so we can keep it together, the transcript. GERAGOS: D as in dog. JUDGE: Right. Transcript of DA's version. Okay. DISTASO: Are we ready now? JUDGE: Proceed. So we can finish this this morning. (Video played) JUDGE: Now, this is the second portion of the Good Morning America, right? DISTASO: Right. (Video played) JUDGE: All right. The court should reflect -- the record should reflect the court has seen the two segments of Good Morning America with Diane Sawyer. Now, the next one -- that's 131 A. The next one is 131 B, Primetime Live on ABC? That's 20 minutes, Mr. -- DISTASO: Roughly. JUDGE: Okay. DISTASO: I think it's rewinding. (Pause in proceedings.) (Video played) JUDGE: How long is the next one? I was thinking maybe we could finish this tomorrow afternoon. DISTASO: We could, Judge, because these are all the clips and alls (sic) we did, we are going to see those same, basically, interview clips without the portions -- JUDGE: I understand, but you also want to show the other two. You want to show Ms. Gomez and the other interviews. DISTASO: The edited and unedited versions? JUDGE: I guess, yes. DISTASO: Yeah. We can -- that's going to take some time. JUDGE: Yeah. I thought we could do that -- I'll tell you what, the record should reflect that I saw the 131 B, the Primetime Live from ABC, and then can we -- have we got time to see the DA's version now? Or do you want to show it tomorrow afternoon at 1:30, and show the rest of these tapes Thursday afternoon at 1:30? Then I can send the jury home in the afternoon. DISTASO: Let's do that. I don't think we have time to finish it right now. JUDGE: Okay. Because the jury's going to be coming back. Is that all right with you, Mr. Geragos? We do it tomorrow afternoon? GERAGOS: That's fine. JUDGE: So why don't we do this then. Tomorrow afternoon you'll show me the DA's version of the Diane Sawyer tapes. You're going to show me the Ms. Gomez tapes, the original and redacted version, and then there's the Mr. Rowlands tape. GERAGOS: Does that mean you're going to use Rowlands? Or you haven't decided? DISTASO: Rowlands I haven't redacted yet. I can show the unredacted. JUDGE: I can look at it. DISTASO: Right. JUDGE: Show me the unredacted, and then if you decide to use it, show me the redacted. So we can look at these -- DISTASO: I can show you the redacted version of Gloria Gomez tomorrow. JUDGE: Okay. The original and redacted. So why don't we do that. We'll do it tomorrow afternoon, then, at 1:30. This afternoon, then, we're going to -- to go back to Hendee, right? Are you going to finish with Hendee today? D. HARRIS: Yes. JUDGE: You won't. GERAGOS: No. But remember, we got Coyle coming back tomorrow morning, so we should probably -- DISTASO: I can put him off to another day. GERAGOS: Yeah. I'm okay -- I'm okay with doing Coyle in the morning because I think I can finish Coyle in the morning, and just if he finishes with Hendee -- if he finishes with Hendee today, I'll do cross until 4:00 and bring Hendee back on Monday. JUDGE: Okay. DISTASO: Well, the only -- I just think for our case, Judge, I hate to interrupt Hendee in the middle of his cross. JUDGE: Okay. Here's what we're going to do, then. We'll try to finish with Hendee and we'll bring Coyle back on Monday. DISTASO: That's fine. JUDGE: Okay. GERAGOS: It's not going to happen. JUDGE: What's not going to happen? GERAGOS: It's not going to happen in terms of I'm not going to finish with Hendee in the morning. JUDGE: Then bring -- DISTASO: Well, then I'll bring Hendee back Monday, then, too. GERAGOS: Okay. DISTASO: Okay. JUDGE: Then when we finish with Hendee, well do Coyle, okay? Just tell Coyle to come in Monday. DISTASO: That's fine, Judge. JUDGE: Okay. So I guess Hendee is going to be the last witness we're going to have all week, then, right? GERAGOS: (Nods head) DISTASO: I think so. I don't think there's anybody else. JUDGE: All right. We'll come back at 1:30 and we'll pick up with Hendee and try and get Hendee done. And Miss Wilcox, if there's any details -- WILCOX: I would like to address one more issue on the motion to quash. JUDGE: Come on up here. I don't think they can hear you. Go up there, there's a microphone there. WILCOX: I wanted to raise one more issue on the motion to quash, and we didn't talk about a reply date and since we're going to be filing motions on behalf of more than one entity, if we're going to be addressing CBS and CNN as well -- JUDGE: Well, I think you need -- you want to reply to Mr. Geragos's reply? WILCOX: Yeah. Well, to his opposition. If we're going to do it on the 28th, if the motion's going to be heard on the 29th, can they get it to me by noon? JUDGE: Can you get to me on the 28th? That's fine. WILCOX: Thank you, your Honor. I apologize for not addressing this sooner. JUDGE: No, that's all right. Get it here on the 28th, and then we'll spend the 29th and we'll get all of this stuff resolved. WILCOX: Thank you. |