Exhibits to be Admitted, Finalize Jury Instructions
Guilt Phase
October 29, 2004
JUDGE: All right. This is the case of People versus Scott Peterson. Let the record show the defendant is present with counsel, and these proceedings are taking place out of the presence of the jury. To set the stage for this morning's session, at the request of the Court I had counsel yesterday meet and confer and review all the exhibits in this case. We have a whole room full of exhibits. And a lot of these exhibits had to reviewed, because they contained personal information as to parties that were involved in this case. Things like Social Security numbers, or possibility of bank account numbers, license plate, driving license numbers, and so forth. So I had counsel get together and review all these proposed exhibits. And the defendant was, in fact, present. And so what I'm going to do today is memorialize what is going to be admitted in evidence and what isn't. I received a list from counsel with the stuff that's in dispute. The Court will rule. On some of this counsel have agreed, and so we'll put on the record now what the results were of the meet-and-confer. I have all -- just for the record, so just to put this all in perspective, the People have 298 exhibits, and the defense is up to defendant's D to the 9th power DDDDDDDDD. So there is a lot of exhibits to be covered. And so yesterday counsel, with the clerk present, and in the exhibit room, spent most of the day reviewing all these proposed exhibits and taking them out. Many of these exhibits, although they have a number, they have subsections. Like there is People's 3, for example, all the way to A through O. And so there is a lot to cover. So I thought it would be prudent, so the record is clear, rather than having this just helter-skelter on the record, that they sit down together, meet and confer, and then we would go through this today in some methodical order so that it makes more sense for a reviewing court to go the over this. Now, I have been provided by my clerk, Marylin, some of the disputed exhibits. And I'm going to put those in the record right now which ones they are, and then we'll visit each one of them. The ones that are in dispute are 87, 106F, G, H, I, I, J and L; 113; 134 -- and these are all People's Exhibits, obviously. 187A; 286; 278. And then we have then we get to some of the Defendant's Exhibits G-1 -- G-1, G-2, L-1, L-2, L-3, Double Q, M, N, Double N, D5R-1, D5R-2, D5R-3, D6C-11. D6I-1 and 2, D6Z, number 2, D7A Number 1, D7B, D7M, D7V, like in Victor, 1 through 6. And then there are some agreements by the lawyers that -- there is an agreement that 86 will not be moved into evidence; is that correct? If I'm mistaken you guys can call it to my attention. I'm working off the clerk's notes. Is that correct? 86 is agreed is not going to be admitted?
D. HARRIS: Yes.
FLADAGER: Yes.
JUDGE: 86 will not be admitted into evidence. 259 is to be unsealed. And, for the record, identify number 259 from my own notes. 259 is Doctor Galloway's anatomical chart. Now, since this shows basically what Laci Peterson's remains looked like, I'd be willing to unseal that, but I would not put it on the internet. I would unseal it, make it available to the jury for their inspection. Does anybody have any problem with that?
GERAGOS: No.
D. HARRIS: No.
JUDGE: So that will be the order with respect to 259. We'll unseal it. We will not place it on the internet. However, if the jury wants to see it, they can see it, accordingly. That will be the ruling with respect to 259. Defendant's R, portions are to be redacted. Double M is going to -- double M, like Mary Mary, is not being moved into evidence as I understand it. Is that correct? That is the report from the San Joaquin --
GERAGOS: That's correct.
JUDGE: PD. So will not be admitted in evidence. That's by agreement with counsel. And then D5M is subject to the Court's ruling. We'll get to that. D6C-3 to 10 was not identified on the record, according to my record, the notes that I reviewed this morning that that is correct. Then we have an issue with respect to this red-handled pliers. We'll get to that. And, Mr. Geragos, my understanding is, on D6R, you are withdrawing that exhibit. Let me find out what it is. Again you can correct me if I'm wrong.
GERAGOS: Yes, that's correct.
JUDGE: Okay. And I have in my note no foundation. So it's been being withdrawn. D6R will not be admitted in evidence in any event. D6S-3 there is a request that that be redacted, and --
GERAGOS: Redacted in the sense that it has --
JUDGE: Let me just find that. That's the --
GERAGOS: It's the photo.
JUDGE: The umbilical cord.
GERAGOS: Yeah.
D. HARRIS: Basically like a Power Point slide. It has text on there. And we are agreeing that the photograph portion of it -- portion can be used, none of the caption.
GERAGOS: Caption or the text being removed. I showed Marylin exactly what to remove.
JUDGE: What we'll do then, just for the record then, G -- Defendant's 6S-3, photographs of the umbilical cord, again, can come in without the caption. And I assume you are requesting the same ruling that these photographs be under seal.
D. HARRIS: Yes.
GERAGOS: Yes.
JUDGE: Not to be put on the internet. They can be shown to the jury if they, in fact, request it. Then Defendant's 7Y-5 and 6, I have in my notes -- my notes, do not admit. Do not admit. I don't know what they are. I wrote down "Do Not Admit". I'm seeing here they are being withdrawn by Mr. Geragos. We're in agreement on something. Okay? So D7Y-5 and 6 will not be admitted in evidence. That's D7Y-5 and 6 will not be admitted in evidence. Then just moving along, before we go revisit the ones, these are the autopsy photographs that the Court is going to order be sealed for obvious reasons. They can be admitted in evidence to be shown to the jury, but not to be shown on internet. And I'll identify them by number right now: 51, 52, 102-I 103-B, 104, 105-A through G, 106-A through G, 248-A through Q, 250-A through N, Double X, D6S-1, D6S-2. And that's in conformity with the other autopsy photographs that we have already sealed to be shown only to the jury upon their request, for obvious reasons. Okay. Now, does that cover the ones that are in dispute, that I can go back and revisit each one, make a ruling on?
GERAGOS: Yes.
JUDGE: Okay. Now, I'm going to start with number 87. And then if there is some -- I'll give a tentative ruling. If there is an argument, I'll entertain it. Also, with respect to the admissibility of the rest of these items, they are all going to be tentative rulings until Monday, until we have decided which ones are going to be used and not used. And so for the tentative rulings with respect to the rest of all these exhibits, on the ones that I have already ruled on, and that have been admitted, have already been viewed, and they have already been put on the internet, so they are already out there. Number 87 is a police report by Holmes dated December 30th, 2002. The Court's general ruling on that is police reports containing opinions and conclusions and hearsay, that normally those are not admitted in evidence. That would be the Court's ruling in that regard with respect to number 87. So if counsel is in disagreement then you can let me know. Okay. And then we go onto 106-F, G, H, I, J, and L. This is the photographs of Miss Fulbright in the boat. I assume defense is objecting to those?
GERAGOS: Yes.
JUDGE: Okay. What is the basis for your objection?
GERAGOS: Well, for the same reason that the Court would not allow the defense exhibit in relationship to the boat. I don't believe that the prosecution exhibits -- and I have only -- only ones I have objected to as to the boat, we weren't present. We don't know what the circumstances were. And for the very same reasons that the Court sustained the objection to the defense demonstration, I believe these should be excluded had as well.
JUDGE: I think they are horses of a different color. In this case, Miss Fulbright testified. And I think on this, it goes to the weight rather than admissibility. I don't want to -- I don't want to explain again why I kept that other stuff out. If you want me to do it, I'll explain it again, Mr. Geragos. But it's on the record. It's been sealed.
GERAGOS: I understand. But the person who did the other demonstration is available to testify, and was always available to testify.
JUDGE: I know. But that -- I made my ruling on the record why I didn't admit that other stuff. I don't want to do it again. It's record. It's in chambers. It was on the record, and it was sealed. And obviously it's not in secret. It will be open to review by a reviewing court, the ruling. Accordingly, as far as these go I'm satisfied there has been a sufficient foundation, and it goes to the weight rather than admissibility. So 106-F, G, H, I, J, and L may be admitted in evidence, and take the same number. 113 is the list of parolees and 290 registrants. We can put that into the record and seal it if counsel are in agreement. I would admit it, but I would seal it so that the names are not made public. Do you have any problem with that?
D. HARRIS: We were withdrawing it. Counsel wanted it. And our issue -- one of the issues was the privacy issue. If the Court seals it --
JUDGE: I will seal it and let the jury see see it if they want to see it. We'll let number People's Number 113, the -- which is a list of parolees and 290 registrants in the City of Modesto, they may be admitted in evidence, but it would be sealed for obvious reasons, again, for the issue of privacy. 134, I assume, Mr. Geragos, you would like this in. I don't see it has any relevance at all. Dodge Hendee put a leaf crown on his head to look like Julius Caesar, skylarking around. I don't know what materiality or relevance of that is.
GERAGOS: They are the ones who introduced it. It also goes to whether or not they tried to spin that as if it was lighthearted, and during the search. And I think it goes to motive or bias, and whether or not it accurately reflected what was going on at the time. There is testimony in connection with that, that he put it on at the end of the search. You can look right at the photo see that wasn't the case. And they are the ones who introduced it. They showed it to the witness. They asked the witness about it.
JUDGE: Well, they may have introduced it, but doesn't mean I have to let it into evidence.
GERAGOS: I understand that. But they introduced it and asked him questions about it, and he gave explanations.
JUDGE: Well, I'm not persuaded that that has any probative value at all, so that will not be admitted in evidence. The jury has seen it. The jury has heard it.
GERAGOS: They haven't seen it.
JUDGE: Wasn't that shown up on the --
GERAGOS: No.
D. HARRIS: No.
JUDGE: Okay. You didn't show that up there?
GERAGOS: No.
D. HARRIS: No.
JUDGE: But he testified to it, because about -- he did testify that he was walking around, and he had this.
GERAGOS: The problem is, is that until you see it, and --
JUDGE: You are missing a cufflink, Mr. Geragos.
GERAGOS: It just broke. It is one of those cheap ones. The problem is, is that they have testified to it. You can -- I made a tactical decision not to show it, because I wanted to argue it.
JUDGE: Well, that doesn't convince me to the contrary. So we're not going to let that in either. That's not going to come in. Number 187. The only one that is in dispute is number A?
D. HARRIS: Yes.
JUDGE: Okay. Why are you, the prosecution, objecting to this? Why are you objecting to that?
GERAGOS: No, I'm objecting to --
JUDGE: You are objecting?
GERAGOS: This is the one where specifically the Court -- I objected to it at the time. You said, I don't understand what the relevance is. They said there is some relevance. We then later went to the Ebay. The Court excluded the Ebay record on this because it was a Glock. It was in January of 2001. Because they never linked it up, obviously, this should not come in. The Court excluded it because it was irrelevant. There is no testimony whatsoever about the Glock related to anything. Totally irrelevant. It's 352. And the Court ruled that it was 352 from Ebay. And over my objection, it was shown initially because they had made the representation they were going to link it up, which they never did.
D. HARRIS: Not -- we disagree with that characterization, of course. What occurred is this particular document was an e-mail that's recovered from the computer by Detective Wall. And he testified to it, that it was an e-mail communication between somebody who wanted to purchase something that the defendant was selling on Ebay.
JUDGE: That's right.
D. HARRIS: So there was -- I recall no objection during the time of Detective Wall's testimony.
GERAGOS: That's not true. I objected specifically. And the Court at that time said, I don't understand the relevancy either.
JUDGE: Right.
D. HARRIS: When we got to Ebay, we attempted to put in some additional documents from Ebay which was transaction documents where -- I don't remember the gentleman's name right now -- custodian that was here was talking about how he Ebay -- was going to testify to the policy, that they are not allowed to do certain things on Ebay. There was a notification sent to the defendant that he could not sell this on Ebay.
JUDGE: That was what my note --
D. HARRIS: That particular --
JUDGE: And my question is, what is the relevancy?
D. HARRIS: Relevance for this is the defense was raising the issue of the Croton watch, and we were attempting to show that the defendant had gone -- the that witness had said, and Detective Wall was talking about how you can kind of go outside of Ebay. The Croton watch was being listed twice for sale on Ebay. There is another e-mail besides this one that indicates that there were purchasers from Ebay that would communicate directly with the defendant to try and buy it. So we're trying to show that he had knowledge and the ability to go around and not complete the transaction on Ebay. So that's why it was originally offered with Detective Wall. It was -- it was a completed transaction outside of Ebay for something that was being sold on Ebay.
JUDGE: All right. I think the relevancy is rather minor, so I'm going to keep it out. It will be not admitted. All right. 286. And can I just parenthetically mention something? I would be really interested to see how many of these exhibits this jury wants to pore through in making a decision in this case.
GERAGOS: Do you want to do it over and under?
JUDGE: Well, a lot of this stuff is such minutia that I'm just wondering whether the jury is going to be interested in something like that. It's not -- that's not the consideration, but I'm just wondering out loud. 286 is a three-page DMV form indicating a bill of sale. And I believe that we're going to admit that. This is from Ruvalcaba. We were going to seal it. It contains a lot of personal information on the bill of sale, correct?
D. HARRIS: Correct.
GERAGOS: Correct.
JUDGE: So 286 can come in. It will be sealed to be shown to the jury. And we're sealing it because to put this on the internet would disclose a lot of personal information by Mr. Ruvalcaba. Address, and few other things.
GERAGOS: The other is 278?
JUDGE: Yes.
GERAGOS: We just -- we're willing to stipulate.
JUDGE: Okay. I have a note here that -- from the clerk that on that -- this is a search warrant video on February the 18th, 2003. And it can be played without sound. That you guys have agreed to that?
D. HARRIS: Yes.
GERAGOS: Right.
JUDGE: Right. Okay. Okay. We'll go to 278. I have in my notes I have already admitted in evidence, but I'll indicate on here it's in evidence again, tentative. It's already been admitted. So there is no tentative ruling on that one. But it's to be played -- to be played without the sound, because I believe on 278 was narrated by Detective Grogan, right?
D. HARRIS: That's correct.
JUDGE: Okay. All right that deals with that. Now, that takes day of all the People's exhibits that are in dispute.
FLADAGER: Your Honor if I might there are a few other ones that we talked about sealing. And I could give you those.
JUDGE: Have I got to those in my preliminary remarks?
FLADAGER: No. I double checked. They are ones that you did not initially list.
JUDGE: I'm going by the -- I'm going by the list that the clerk handed me, the ones that are in dispute. Are there some that I left out? Because I went through three pages of stuff. Which ones in particular?
FLADAGER: There are 160-A and B.
JUDGE: Okay. Wait a minute. Let's find it. I have two. Which numbers?
FLADAGER: 160-A and B.
JUDGE: 160-A and B. Let me see what that is according to my notes. 160. Okay. These, again, are autopsy photographs.
FLADAGER: Yes.
JUDGE: And this is not among the group that we ordered to be sealed?
FLADAGER: I had not seen them listed. I did not write them down previously.
JUDGE: Okay.
D. HARRIS: The lists we were provided by the clerk does have notations on there they have been sealed. So we went through. Didn't have a notation next to it.
JUDGE: Abundance of caution. For example, 160-A is a photograph of right thigh -- of what's remaining of the right thigh of Laci Peterson showing duct tape and barnacles, and few of these other things. Hair samples, pubic hair samples. Do you have any problem with that, Mr. Geragos? They can be admitted in evidence, be sealed only to be shown to the jury, but cannot to be put on the internet.
GERAGOS: No, your Honor. That was our agreement.
JUDGE: All right. That will be the order with respect to 160.
FLADAGER: I have a few others.
JUDGE: Okay.
FLADAGER: 182-A through Double E.
JUDGE: Okay. 182-A there is a whole bunch here. That's 182, goes from A to Z, believe it or not. Which one are we talking about? That whole thing is --
GERAGOS: A through Double E.
D. HARRIS: A binder with contents. We discussed that it has personal information in it.
JUDGE: All right. So you want all that admitted, but sealed?
GERAGOS: Right.
D. HARRIS: Yes.
JUDGE: Okay. Then 182-A through Double E may be admitted and sealed for the same reasons, because it has a lot of personal information on there.
FLADAGER: Additionally 204, 205 and all of 206 for the same reasons. 204, 205. 204 is the AT&T cell phone conversion chart.
JUDGE: AT&T cell site conversion charts. 205 is the physical cell site location chart, and 206 is the other one.
FLADAGER: Yes.
JUDGE: And this also contains personal information, right? Bill usage records showing phone numbers, and everything.
D. HARRIS: Yes.
GERAGOS: We also indicated that 20 --
FLADAGER: 4 and 5.
GERAGOS: 206, all of --
JUDGE: A through E.
GERAGOS: A through E.
JUDGE: Okay. All right. Let me make the ruling then. 204, 205A and 206A through E may be admitted and sealed because it contains personal information. Okay. All right. Does that cover the ones that were neglected in one of my opening comments here this morning?
FLADAGER: I think that --
GERAGOS: I think we also would include 221.
JUDGE: 221?
FLADAGER: Yes.
JUDGE: 221 is --
D. HARRIS: Ebay binder.
JUDGE: All right. Those are to be admitted also and to be sealed for the same reasons, it contains personal information. THE CLERK: 29 and --
JUDGE: 29. That's not on the list.
CLERK: That's to be sealed.
JUDGE: People's 29. Okay. These are the cell phone bills verifying times. That's to be sealed also for the same reason. Admitted and sealed. CLERK: And 35.
JUDGE: And 35 that's the cell phone records of Ms. Medina. Those may be admitted and sealed for the same reason.
FLADAGER: And 249A and B.
JUDGE: 249A and B.
JUDGE: And these are the phone records of Miss Frey. Sprint phone records of phone numbers of Amber Frey and Ron Frey.
D. HARRIS: Yes.
JUDGE: So they can go into evidence and take the same numbers. And they will be sealed again. If they want to give up their phone numbers that is their business. We're not going to put it on the internet. Okay.
FLADAGER: One other matter for clarification. People's Exhibit 131-C through E.
JUDGE: Wait a minute. 131-C through E. 131. Okay.
GERAGOS: Should be 131.
JUDGE: This has been -- already been played.
D. HARRIS: We're just making sure that the record is clear that there is the unedited versions.
JUDGE: We played the second redacted version.
D. HARRIS: Right. So that's the only one that goes to the jury.
JUDGE: Right.
D. HARRIS: The others don't.
JUDGE: That's correct.
FLADAGER: Redacted versions ended up being offered through Detective Grogan, and at a later time under different numbers. 131, same request.
JUDGE: According to my notes, initially marked 131-A through E. Then because they were remarked by the prosecution, are 270, 271 and 273.
JUDGE: 270, everybody has seen these. Except the jury hasn't, because -- I'm sure the interested parties have already seen these. But since I redacted to take out some statement that would be prejudicial toward the defendant, for example, taking a lie detector test. And so since I kept that out for obvious reasons, then we can only show them the redacted version. So that's why then A, B, C, and D are not going to be coming in.
GERAGOS: I assume that goes for the 137, and --
JUDGE: Only the redacted part only.
GERAGOS: Only the redacted.
JUDGE: Let's make it clear then. I want to look at 270 again. It was marked twice. Okay. 270 is the redacted version.
FLADAGER: Right.
JUDGE: Okay. So -- and that's already been admitted in evidence already. And that's already been played. So that's already been on the internet. It's already been played and disseminated. 271 was played. That's already been disseminated. That's the Gloria Gomez day. That was redacted again. And 272?
GERAGOS: 271 is the Diane Sawyer.
JUDGE: Then I'm going by my notes. 270 I have as the Diane Sawyer tape. 271 I have down the here as the Gloria Gomez tape remarked as 271, including redacted copy. 272 is the Gloria Gomez tape that -- the transcript and the disk. That's already been moved into evidence. And 273 is the interview with Ted Rowlands, has already been played. The disk and tape are already in evidence. So since it's been covered in 271, 272, and 273, those have been disseminated, have been played for everybody's edification, I will rule that 131-A through E, 136, 136-A, 137-A and B not admitted in evidence for the same reasons that I have given before, because they are the unedited versions, and the Court out of an abundance of caution had to redact them. So those will not be in evidence. The ones that are redacted are already in evidence and already have been shown to the interested parties.
FLADAGER: Just to clarify, judge, under 136 and 137, there is also a B on those also.
JUDGE: I can't hear you, Miss Fladager.
FLADAGER: Under 136 and 137, there is also a B -- there is A and B.
JUDGE: There is an A and B?
FLADAGER: Yes.
JUDGE: That's the original tape. None of those are coming in.
GERAGOS: Right.
JUDGE: Only 273-A and B are already in evidence and have already been elucidated Any of these other ones that were not included in my opening comments?
FLADAGER: No.
JUDGE: Okay. Let's ahead now with the defense exhibits. I have to switch. And for those interested parties in the audience, these all the ones that are going to be admitted in evidence. They will all be admitted, and they will be subject -- they will be here for your review on Monday, that you can take a look at them. Okay. Then let's start with G-1. Take this out of here. The G-1 and G-2 are e-mails with respect to park closure. Foundation was laid by Cloward. What's the objection to that? Who is objecting to --
D. HARRIS: We're objecting to it. One of those -- Cloward identified them. He was shown them kind of as a hearsay process that was going on, being asked if they were there. One he has some involvement with. The other one is somebody else's e-mail to someone else who gave --
JUDGE: Bob Ford, is that the second person?
D. HARRIS: Correct. So I don't recall right now which one it is.
JUDGE: Well, I have you -- according to my notes, I have Cloward with respect to G-1. And G-2 I have Bob Ford.
D. HARRIS: G-2 is Bob Ford to Duane Fredrick. I believe the list neither of those individuals testified. We don't have any foundation or anything for that particular e-mail. And the other one is an e-mail that's sent to Mr. Cloward -- to Sergeant Cloward. Again there was no story or testimony from Bob Ford. So we're objecting to it as hearsay and lack of foundation.
GERAGOS: Both of them the foundation was laid by Cloward.
JUDGE: Well, I have in my note that foundation was, in fact, laid by Cloward. The question is, what is -- what's the relevancy of the e-mails regarding the park closure? How does that clear up any issue in this case?
GERAGOS: Specifically whether or not she was concerned. The issue was they were suggesting that it had to do with traffic. That she was only interested in traffic. It wasn't. She was interested in the transients coming back and forth. And she had specifically communicated with them. And specifically Cloward testified about them and laid the foundation for them.
D. HARRIS: It's -- again, it's a hearsay statement. It's Mr. Ford saying I had a conversation with Laci Peterson, and he's sending it on to somebody else.
JUDGE: Does the e-mail say, I had a conversation with Laci Peterson? I have here -- I can't write everything that's on there. I just got e-mails regarding the park closure. From that I understand, my recollection is there is -- this has to do with the reason why the park was being closed, and the hours, and so forth. Is that right? Am I mistaken?
GERAGOS: Cloward specifically said -- in addition to that, he also said -- I asked him, is this a record that is -- it's a document -- it was a document I held on to as part of the investigation of search. And what he specifically said is, you were given information at this point that Laci Peterson had tried to get this area closed because of undesirable activities; isn't that correct? Answer is, correct.
JUDGE: All right. I'll admit it, take the same number. G-1 and 2 may be admitted, take the same number.
GERAGOS: They are objecting to all of these. The foundation was laid.
JUDGE: Well, I have press advisories. I have the foundation laid by Cloward that he identified. And I have here press advisory, June 11th, 2003. One press advisory was 1-9-03. The second one was 1-10-03. The third one was 1-11-03.
D. HARRIS: Well, the foundation was that Modesto Police Department put out a press advisory. Does this look like what it is? There was never any testimony that he had anything to do with the factual content. There was no information that he had any authorization to put those out.
JUDGE: Doesn't it go to the weight rather than admissibility?
GERAGOS: Yes, exactly. Goes to it. And specifically all of -- they were published to the jury. They were shown, and they were part of the chain --
JUDGE: They weren't published, because I don't have them. If they were published, I would have marked them. I don't publish something --
D. HARRIS: When I say published, I'm using in the sense that it was placed on the Elmo.
JUDGE: Okay.
D. HARRIS: So we objected. Again, there is no foundation. There is -- it's hearsay.
GERAGOS: Foundation was laid. They specifically were the press advisories that were going out. It's clear that my client was going to that area for some unknown reason, and the reason specifically -- or one of the reasons that the jury can infer is because they were putting out press advisories and telling the press that their search is going on.
D. HARRIS: The foundation that -- the component to that would require that the defendant actually either read that or knew about it. And there has been no testimony for any press releases, or the Modesto Bee, that he was aware of it.
GERAGOS: You were talking about -- he is at the Volunteer Center every single day.
JUDGE: That doesn't mean he was necessarily aware.
GERAGOS: The press advisory is going out. You don't think he's paying attention to what's going on?
JUDGE: I don't know whether he is or he isn't.
GERAGOS: That's for the jury to decide. Goes to weight, not admissibility.
JUDGE: That's my initial ruling. L-1, 2, and 3 will come in, take the same numbers. All right. QQ are Brocchini's notes.
GERAGOS: Did you skip N?
JUDGE: Well, I didn't get to N yet. I'm at QQ.
GERAGOS: Okay.
JUDGE: Why are we putting in those notes. He's already testified. I don't see any point in putting his notices back in.
GERAGOS: I agree.
JUDGE: I assume you are objecting to that, Mr. Harris.
D. HARRIS: Well, what --
JUDGE: QQ.
D. HARRIS: What is occurring? The defense wanted to offer I believe one sentence from the note. And we said no, that's the case --
JUDGE: I'm not going to let any of it. The whole -- you can't -- if you pull out one sentence, it doesn't make any sense. And they have heard from Brocchini ad nauseam. So they can put whatever weight they want to on Brocchini's testimony. We don't need his notes, because his opinions and conclusions and notes were shown. He was cross examined on those notes. So I don't see any point in letting those in. QQ will not had be admitted in evidence.
D. HARRIS: All right.
JUDGE: Then the next one I have is M, Mary, press advisory regarding the burglary. I don't have anybody laying a foundation on that one, so it would not be my inclination to let that in.
GERAGOS: Is that M as in Mary?
JUDGE: Yeah. What I do, Mr. Geragos, somebody lays -- I usually write the person that laid the foundation. There is nothing here. So my -- I know this happened a long time ago. But if I didn't write anybody's name there, that means that no foundation was laid.
GERAGOS: I didn't show this to Cloward?
JUDGE: I don't know if you did. I didn't write it down. I have got Cloward, then I have got Grogan right behind him. I didn't write Cloward down.
GERAGOS: I believe that I sent that -- that I showed it to Cloward, and he laid the foundation.
JUDGE: If you don't mind, with all due respect, I'm going to go by my notes and keep it out. No foundation. I have got to N, November, purchase ticket from the pawn shop, identified, foundation laid by Grogan. What's the problem with that?
GERAGOS: They don't like it.
JUDGE: That may be, but that doesn't mean it don't come in evidence.
GERAGOS: I understand.
D. HARRIS: Well, the problem with it is that, A, there is no relevance; and, B, the contents are -- the hearsay portion of it was never established even by Grogan. The pawn shop -- if the Court goes back through this one when it was first marked and shown, it was shown to one of the pawn shop individuals that came and testified. She said it was a state form. She had nothing to do with filling that particular form out. Didn't know anything about any of the contents that was there.
JUDGE: What does this pawn shop receipt purport to represent?
GERAGOS: The pawn shop purports to represent the Croton watch. The Miss Fladager asked him about it and what investigation he did. He then went through detailed explanation of looking at a video of Ebay for the Croton watch, saying that the battery was dead. This is the one that I specifically asked him about, and whether or not this was the one that he went and obtained. He said that they did obtain it. That this was the pawn shop receipt, that the Community Service Officer obtained that, and that he did an investigation and didn't believe that, because it didn't say diamonds around it, that it was not the same watch. He laid the foundation for it. Brooks testified that the -- identified the thing as a standard form or receipt. And Grogan said that -- it was the one that Ms. Fladager questioned him about on direct, and I laid a foundation with on cross.
JUDGE: Go ahead.
D. HARRIS: Judge, if I can just be heard. The contents of it, which is describing who it is --
JUDGE: Miss Renfro -- I think Miss Renfro -- all of that information, there has been no testimony -- there has been nothing, the pawn shop person came in and said this is a business record that didn't happen. So all that we have is, we have supposedly this business that turns it in to a CSO, who eventually turns it over to Detective Grogan. He's been -- witness has been examined on that. I'm going to let -- it goes to the weight rather than admissibility. I'm going to let that in also.
GERAGOS: Judge, on the previous one, which was M, as in Mary.
JUDGE: Un-hun.
GERAGOS: I don't have the memory of it, but my client and Mr. Harris do. And I was going to do a transcript search. If I find the two other spots where it was shown to them --
JUDGE: You want to, but, see, we are running out of time now. We are pushing this right up to the time we're going to start arguing this case, and so I'm not going to be really delaying any of these rulings now to research this stuff, because Monday we are going to argue on this case, okay. So then NN I have ruled on. That is Double N.
D. HARRIS: Judge, just for clarification, is the Court ruling that M is --
GERAGOS: M is not in.
JUDGE: M is not coming in because, according to my notes, there is no foundation.
JUDGE: Double NN, Brocchini laid the foundation. Flyer $1,000 reward for capture of the burglars.
GERAGOS: Right. And I believe that there is -- I forget the exact officer, but somebody else within the last two weeks also was identified.
JUDGE: What's the problem with admitting that?
D. HARRIS: Again, it's a hearsay statement. I believe that it's --
JUDGE: I don't think these are coming in for the truth, are they?
D. HARRIS: Well, if there is -- I'm assuming --
JUDGE: If they are just coming in for the fact, don't they -- all this goes to the reasonableness of their investigation?
GERAGOS: Yes.
JUDGE: And that it's not coming in to prove that the house was indeed burglarized, or anything like that. Just the police were there, an effort to, you know, find Laci Peterson, and went to the extent of offering a reward for this burglary, is all it's worth. Nobody is going to be referring to that to prove anything, are they?
D. HARRIS: Well, the people wouldn't.
JUDGE: I don't think Mr. Geragos is either. So that can come in. Brocchini has laid a foundation. A lot of this stuff goes to the weight rather than admissibility. Now, I have D5R-1. Okay. D5R-1, 2, and 3. Now, these are newspaper articles regarding the anchor which was -- which were published. These were identified by Jacobson. And I think they are self-authenticating, because they were published in the newspaper.
GERAGOS: That's correct.
D. HARRIS: If they were -- again, the distinction between the People's exhibits, we subpoenaed those records in, and they are self-authenticating that way. None of these were subpoenaed in to court. These were newspaper articles that were shown to somebody saying, isn't this something that the Modesto Bee was saying?
JUDGE: But if -- I don't think they have to be subpoenaed in court. If somebody identifies those as newspaper articles that were, indeed, published they are self-authenticating.
D. HARRIS: If the court looks at each of those articles, they are full of out-of-court statements, hearsay statements and opinions of multiple individuals. Almost every one of them has at least two statements.
JUDGE: You guys are going to make me have to do some research on this issue I understand the law. Even if they are self-authenticating, this is the issue was what was published, right?
GERAGOS: Right.
D. HARRIS: Well, the authentication would be one realm, the hearsay. There is still no foundation to show that hearsay is admissible.
GERAGOS: That's not the state of the law. Jacobson identified them. All three articles were published. All three articles were identified. If they come in, goes to weight, not admissibility.
D. HARRIS: We'd object, 352 then. It's opinions in there from individuals that did not testify. So we're now getting into this multiple layers of hearsay information.
JUDGE: I'll pass that temporarily. I'll take a look at again. I don't want to have to go back. I thought you were going to get this stuff all settled today. Now, you know, I'm going to rule on all this stuff today. I'm telling you, one way or another, going to rule on this stuff today so we can get the case on the road, okay? All right. I'll take a look at the code section and see if I can be illuminated. D6C-1 through 10. Mr. Geragos, you are the miscreant on this one. Because I don't have -- I don't have a D6C-11. And then I checked with the court reporter this morning; and apparently you marked that off the record, which is -- which was -- which is the reason why I always want you to mark stuff in the record in the presence of the jury. Apparently you marked that off the record, so I don't have it written down as one of my exhibits. But I do have, on defendant's 6C-2, I have wire cutters, red-handled, is D6C-2. Are D6C-11 one and the same? I'm asking you, Mr. Geragos, because I have down wire cutters, red-handled. I could be in error.
GERAGOS: Let me see.
JUDGE: I have a date next to it 2-24-03.
GERAGOS: No. D6C-2 is a closeup of the --
JUDGE: Then I'm in error on that one. But I know you did mark -- I know that you showed this to the witness.
GERAGOS: I know I did. That's why I'm somewhat perplexed by the red. I have a vivid memory of showing the red, which is I believe --
JUDGE: I remember seeing that.
GERAGOS: I remember seeing it, showing it to the witness. I don't know why -- I don't remember what it was or how it happened. But I did show the red, and I think it was Sara Yoshida.
JUDGE: It was Yoshida.
GERAGOS: And I showed her both of these. I showed her this one that was marked by Mr. Harris. But I showed her this.
JUDGE: When you say this, do you want to give me a number?
GERAGOS: D6C-2. And I showed -- and I'm -- I have a vivid memory of putting the red-handled on the Elmo as well. I don't know how I didn't mark it.
JUDGE: Let me tell you one other. This is what you -- I'll hear what you got say. I have, according to my note, I have D6C-1 and 2 were identified. 3, 4, 5, 6, 7, 8, 9, and 10 were not identified. And there was no foundation on 3 through 10. I remember, and according to the court reporter's notes, I had him check on it this morning, that 11 was probably -- Mr. Geragos, you may have marked it in --
GERAGOS: I'm thinking what I --
JUDGE: Before, at the beginning of the session, before the reporter was seated, or whatever.
GERAGOS: Well, now that you mention it, I had it down as D6C-2 for the red. I think what I did is, I showed the red-handled pliers after having marked this as D6C-2. Meaning the yellow, closeup of the yellow. And that I showed that, and referred to it as that, because I specifically asked -- my memory is, on the red pliers, did anybody tell you where these came from or where they were found, or were they found in the boat? Something to that effect. But I do remember putting it on the Elmo. I do remember it, I published --
JUDGE: I do too. I was wondering why I have --
GERAGOS: I'm thinking I mismarked it, that I was holding that, referring to it as D6C-2.
D. HARRIS: Just to put in my two cents, I think what happened, from looking at that particular photograph, it appeared to be a copy of what was in Miss Yoshida's file, because it does have her initials in the upper right corner, and the hole punch. So I think what happened was counsel was questioning her about the red-handled pliers. There was no -- I don't recall being shown on the Elmo. I remember that they did discuss it.
JUDGE: I remember it on the Elmo.
GERAGOS: I remember it on the Elmo.
D. HARRIS: I think what was occurring at that point in time, because it was a color photograph, we got the page from her report and it was copied, and then counsel put the copy in.
JUDGE: That may be. The issue is, should it be admitted in evidence? Do you have any problem with it, Mr. Harris?
D. HARRIS: No. She's testified and pursued it.
JUDGE: All right. So D6 -- with that lengthy explanation as to the confusion, D6C-11 may be admitted in evidence and take the same number. She did testify about it. Okay. All right. D6C-1 and 2. These are photographs, right?
D. HARRIS: If we can go back to that set of plier pictures. Just so we're clear. Counsel was withdrawing some --
JUDGE: Well, I'm not letting in the ones where no foundation was laid. The ones coming in are 1, 2, and 11. That's why I said 3, 4, 5, 6, 7, 8, 9, 10, there has been no foundation laid.
D. HARRIS: Just want to be clear.
JUDGE: These aren't coming in. Now, moving right along here. On D6I-1 and 2. According to my notes, these are website maps. But I have to admit, I didn't write down of what. I beg your pardon. These I may have. I may have to correct myself. I have here, so we're on the same, Yahoo map, Tracy and Stockton, Yahoo map of Stockton. And I can't read my writing as to number 3. Looks like Safety Track. But I'm not sure what that says?
GERAGOS: That's -- D6I-3 is the Safe Track, which is the DOJ map. 1 and 2 are the two Yahoo maps.
JUDGE: What's the problem with that? If it's a map, I can take judicial notice of a map. The fact, common knowledge, cities don't change their locations each to the other.
D. HARRIS: What we recall is with D6I-3, we don't have a problem. It's 1 and 2, we recall the officer not having any idea what those areas were. I believe it was the San Joaquin --
JUDGE: Skultety laid foundation on those.
GERAGOS: Skultety on both of those. I showed him both maps.
JUDGE: According to my notes, it's Skultety. I have to admit I don't have total recall, Mr. Harris. But I have Skultety down, according to my note. So I'm going to let 1, 2, and 3 in evidence, take the same number.
D. HARRIS: All right.
JUDGE: D7 A-1. Okay. This was identified by Grogan. And what -- according to my note here, Defendant's 7A-1, Power Disk document, receipt for building supplies. That were a concrete fence boards and, et cetera. And Grogan identified that.
GERAGOS: That's what I have got.
JUDGE: Pardon me?
GERAGOS: That's what I have, Grogan.
D. HARRIS: That particular document appeared to be like an Excel spreadsheet.
JUDGE: Got all the kinds -- I looked at all kind of other stuff on it.
D. HARRIS: He was asked, does it say fence on it? He said yes. That's the only foundation.
GERAGOS: I believe I specifically asked him, wasn't this one of the documents that you found?
JUDGE: I have -- you might be right, Mr. Harris. But I have down here that he laid a satisfactory foundation. I checked. So I was satisfied as to its admissibility.
GERAGOS: So was I.
JUDGE: All right. Defendant's 7A-1 and 2 are admitted in evidence, take the same numbers. 7B, article in the Modesto Bee verifying the defendant went to the marina. I have in my notes self-authenticating. Are you going to argue with me about that again? I'll have to go look it up and come back and make a profound ruling on it.
D. HARRIS: We're -- again, it's -- there is information in there. There is people making comments.
JUDGE: I'm going to look -- I'll look at that code section again, see what it says.
GERAGOS: Okay. I remind the Court, I believe is this the one, not only came out of their discovery, but we -- also didn't we redact a portion of it, and wasn't it shown to the jury?
JUDGE: There was -- the bottom lines were blanked out.
GERAGOS: That came straight out of the prosecution's discovery. That was also published to the jury.
D. HARRIS: We gave him psychic tips, doesn't mean that's admissible.
GERAGOS: I agree. But he went over --
JUDGE: Can I just think out loud or something? I understand. Your objection is well-taken. But some of this stuff in here, it's not hurtful to the prosecution. There was need for more information to confirm and corroborate Mr. Peterson's story. We wanted to eliminate him from this investigation. We want to. We have an independent witness who saw him that morning that -- you know, why are you objecting to it? If they are going to look at this, if they even ask for this, the hearsay in here is not what I would consider, if you are doing it just on technical grounds. But some of this stuff is good evidence for the prosecution, seems to me, even if it is hearsay.
D. HARRIS: Some may be. But some of the other articles.
JUDGE: I'll go take a look. Then I'll come out, make my ruling accordingly. D7M.
D. HARRIS: Based on the Court's previous rulings on the press releases, we'll just submit on that.
JUDGE: Okay. We will let that in. They will take the same number.
D7 Victor 1 through 6. News releases from the Modesto Police department. Who is objecting to those?
GERAGOS: Guess.
D. HARRIS: Normally that would be us.
GERAGOS: They are going to submit.
D. HARRIS: We'll submit on that. We'll let those go in.
JUDGE: Can come in evidence, take the same numbers. Okay. Now we go on to number eight. So that's -- I have ruled on -- with the exception of this issue of self-authentication, I have ruled on all the disputed exhibits been provided by counsel.
D. HARRIS: There are two additional.
JUDGE: I'm getting to some other ones.
D. HARRIS: I think it's D6Z-1 and --
JUDGE: Here are the ones that I'm going to get to. Let me see if these compare D6Z-1 and 2. D6Z-1 --
D. HARRIS: Z as in Zebra?
JUDGE: D6Z. Okay. That's --
D. HARRIS: Bag of cement and a receipt.
JUDGE: I have my notes here. This was -- oh, this is Mr. Geragos again. Mr. Geragos, you promised me that you were going to have Raffi come up here and testify that you bought that sack of concrete and identify the receipts. But no one ever testified to this. You just walked in with a sack of concrete. And I don't know where it came from. It could have come from your backyard for all I know. So there is no foundation. I have a note, Geragos testify to this, or somebody. Nobody did.
GERAGOS: Okay.
JUDGE: There is no foundation.
D. HARRIS: The bag and the receipt are out.
JUDGE: Right. Anything else before he move on to the ones that you agreed about? Does that cover all of the disputed exhibits with the exception of the self-authenticating ones that I'll have to look into to see if I can make a profound ruling?
D. HARRIS: We believe so.
JUDGE: All right. Now, let's go on to, counsel agrees to the to the following. Number 86.
GERAGOS: We did 86.
JUDGE: 86. My understanding that there is an agreement between counsel that's not to be admitted?
GERAGOS: Right.
D. HARRIS: Right.
JUDGE: That will not be admitted. We continue to 259, which is the prosecution exhibit.
GERAGOS: We did that already. That's the one where you unsealed the anatomical chart.
JUDGE: All right. We did that. Okay. That's already been done.
GERAGOS: I believe that you have covered all the prosecution's and all the defense exhibits, with the exception of that one discrete issue on self-authentication. So if you moved the -- or if you said the rest are admitted, I believe we have covered everything that's been sealed, and we have covered everything that's in dispute.
JUDGE: Okay. Okay. I appreciate that. But I have some other ones here. Redacted portions.
GERAGOS: We did that.
JUDGE: We have done -- we did that.
D. HARRIS: We agreed to do it.
GERAGOS: Do you want to take a look at R? That's the Central HIDTA report, Page 4. Central Valley HIDTA report.
D. HARRIS: For the record, what our agreement there is, one of those phone logs that I believe Investigator Jacobson testified to, there was one particular call that the defense wanted a phone number more specifically than anything else. So we have agreed that that particular phone number, like one and a half lines can go in, and everything else would be redacted off.
JUDGE: You just want the phone number, and do you want her to redact everything else?
D. HARRIS: Yes.
GERAGOS: And with the -- also the heading so they know what it is on the top.
JUDGE: Central Valley HIDTA. Did you want Marylin to -- is it agreeable that she can put paper over it?
GERAGOS: Yes. However she wants to do it.
JUDGE: She's going to cut it. So okay.
GERAGOS: Why we wanted to do it, only the going to take number Exhibit R and copy it again, and cut and paste. So only that portion --
JUDGE: She is going to -- we're letting in the January 13th, 2003, at 7:22:52 a.m., incoming call to voicemail, ask Scott to call him when he's available, right?
D. HARRIS: Yes.
JUDGE: That portion can come in then. Let me find R now. And R is redacted. MM, there is -- that one is not being offered. I believe we already -- I think -- haven't we already alluded to that one?
D. HARRIS: Yes.
GERAGOS: Yes. That was the San Joaquin Police report not being offered.
JUDGE: Okay. So that's -- I had my zero here. So that's all right. Done. Done. And then D5M. Defendant's 5M. I think there is another one that has to be -- have some is fine tuning, apparently. D5M, list of items recovered from a specific computer. And I don't have a foundation laid there.
GERAGOS: I don't think I moved --
D. HARRIS: We agreed that to go out.
JUDGE: That's not being moved in. So D5M will not be admitted in evidence. Okay. D6C, we already talked about that. These are the ones that -- this has to do with the yellow-handled pliers, the red-handled pliers, and 3 through 10. It was not identified. And I already made a ruling on that.
GERAGOS: Right.
JUDGE: D6R, labels from TradeCorp. You are not offering those?
GERAGOS: I'm not offering that.
JUDGE: They are not in evidence either. I have I have zero about that. You guys are going to have to help me on what you want on D6S-3. D6S-3, close up of Conner substance. And I ruled on that, that was the umbilical cord?
GERAGOS: Yes.
JUDGE: That's already been ruled on.
D. HARRIS: Yes.
JUDGE: Okay. And then D7Y-5 and 6. Those are already been ruled on also. So that's done. Okay. Now, then the I have already indicated for the record when I went over this preliminarily at 9:30, that I have indicated the autopsy photos that were going to be sealed, I indicated for the record that at the request of the judge, the attorneys went into the -- for the latecomers -- went into the -- went into the evidence room, and at my request went through and sorted through all these exhibits, because they contain personal information, or autopsy photos, and so forth. And that -- so that we could put this in some cohesive manner this morning, so I could rule on specific objections. Because if there is no objection to the rest of these exhibits, they will be coming in, and they will be available for review on Monday. So I already ruled then that the following autopsy photos are to be sealed, and I'll go through the record again. People's 51, 52, 102-I, 103-B, 104, 105-A through G, 106-A through G, 248-A through Q, 250-A through N, Double X, D6S-1 and D6S dash 5. Okay.
GERAGOS: Probably should add D6S dash 3.
JUDGE: D6S dash 3.
GERAGOS: That's the one we just talked about that, the umbilical cord.
JUDGE: I already ordered that to be sealed.
GERAGOS: Right.
JUDGE: Okay. To be shown to the jury, not to be put on the internet. Now with the exception of Mr. Harris's entering objection these are not self-authenticating, have we now ruled on all the exhibits that are in controversy?
GERAGOS: Yes.
JUDGE: The Court has ruled on all of them, right?
GERAGOS: Yes.
JUDGE: The Court will make the following order that the remaining exhibits --
D. HARRIS: If I can just have one second.
JUDGE: Woops.
D. HARRIS: There were actually CCCC, four C's, 1 through 7.
JUDGE: Wait a minute. CCCC. I have CCCC-1 through 7. I have question mark, question mark, question mark, question mark, all the way down.
GERAGOS: Because I didn't identify 1 through 7. I didn't --
JUDGE: Are you going to agree, those aren't going to come in?
GERAGOS: I identified --
JUDGE: I have no on number 7. I have no on number 1. And I have question marks with respect to the rest of them.
GERAGOS: 3, 4, 5 and 6. I have identified 1 and 7. I did not identify -- I think it's because of the way it just reads on the --
JUDGE: I have here -- and this may be in my own handwriting -- I have Hendee.
GERAGOS: Right. Because I show.
JUDGE: That Hendee laid the foundation for -- first of all, why don't you tell me what they are?
GERAGOS: I'll tell what you -- they are photos they were taken at 523 Covena, there was seven of them. 1 and 7 were not identified.
GERAGOS: Right.
JUDGE: The 1 and 7 weren't identified.
GERAGOS: 2 through 6 Hendee identified.
JUDGE: I have Hendee, and I have a little mark here. And then I have Grogan.
GERAGOS: I showed them to both, but Hendee was the one who originally laid the foundation.
JUDGE: Are you object doing to those?
D. HARRIS: 1 and 7.
JUDGE: There is no foundation on 1 and 7. That's not -- this is disputed. Okay. So number 1 and 7 will not come into evidence. Okay. Anything else before I make this all-encompassing ruling?
D. HARRIS: Trying to go through. It's a lot of those.
JUDGE: I thought I had all the notes when I got here this morning. What else?
D. HARRIS: I believe it was --
JUDGE: Give me the number, please.
D. HARRIS: There was one photograph that was scanned backwards, so we had a discussion about that. They are still offering it. We are not objecting.
JUDGE: All right. THE CLERK: What about the --
JUDGE: My clerk points out, and she indicated that to me yesterday, and in a case of this magnitude this happens. One item that was marked for identification has disappeared. And usually it ends up in the attorney's briefcase. THE CLERK: D6J dash 3. It's a photo of the driveway from Covena.
JUDGE: D6J dash 3. D6J dash 3. Let me see what that is.
JUDGE: What is 3?
GERAGOS: That's why I don't carry a briefcase.
JUDGE: What happens, the attorneys pick up their things and it goes with it. Everything goes with it. Photo of driveway.
GERAGOS: I think we have got right now a hundred twelve photos of the driveway in evidence.
JUDGE: These are the -- Skultety laid the foundation for this. Photos of the driveway, 523 Covena. Foundation has been laid. The only problem is, is that D6J-3 has disappeared.
GERAGOS: Missing in action.
JUDGE: So if you guys look through your mountains of papers, if you want to -- we can't admit something we don't have. But it's missing.
D. HARRIS: We have no defense exhibits. THE CLERK: I have asked.
JUDGE: Marylin says she's inquired, and you guys have not been helpful. So, okay, then we can't admit D6J-3 it's no longer in existence. If it's in existence, we don't have it.
D. HARRIS: I have now made it through my notes.
JUDGE: With the exception of the documents the Court is of the opinion are self-authenticating, then the Court will make the following ruling then. It's been helpful that we did this, so that you guys went through this and agreed on all this stuff that you can agree on, and the ones you disagreed, and the Court ruled on them. So that saved days of court time, and the jury time. So then the Court's ruling will be, then, the remaining exhibits that have not already been introduced in evidence, of both the prosecution and the defense, the tentative ruling will be that they will be admitted into evidence and take the same numbers. And they will be made available once, they are reviewed, before the attorneys make their opening statements, for those interested parties to review on Monday. And bear in mind that Monday morning we're going for awful busy here. So --
D. HARRIS: Judge, we would have a problem with -- logistically with that.
JUDGE: What's your problem with that?
D. HARRIS: What's going to occur is, Mr. Distaso is going to be arguing first thing Monday, 9:30. He said he wanted to start -- it's going to take him some time to pull the exhibits that he's going to need for his opening statements.
JUDGE: Can he get here at 8:00 o'clock?
D. HARRIS: The problem that we had just the other day is, when we came in to look at exhibits, to make sure our numbers were correct, the media was here photographing these things. We were prohibited from looking at --
JUDGE: Are you going to be pulling any exhibits? You will be too, Mr. Geragos. So when are we going to let the media in to look at this stuff? We can't put all this stuff on the internet. Marylin, do you have any suggestions?
GERAGOS: My suggestion would be Wednesday afternoon. Wednesday after --
JUDGE: We are going to be -- I'll be instructing the jury Wednesday afternoon.
GERAGOS: As soon as you have finished instructing, then they can look at it.
JUDGE: Is that okay? All right. Be Wednesday afternoon then. We will make all this available for your inspection and perusal. Okay. And then Mr. Distaso will get here early enough so he will be able to start at 9:30, right?
D. HARRIS: We'll be ready to start.
JUDGE: All right. Now, let's get started on these jury instructions, because there is some still in controversy. I will rule on this other stuff before we end the session today. I'll lay those aside for the time being. I have -- Mr. Geragos and the defense have submitted dog tracking evidence to the Court. And what I have done, since there is nos law on it, because the dog tracking instructions in CalJIC refer to tracking a defendant, and none of these CalJIC -- none of the dog tracking evidence in CalJIC, doesn't apply to tracking a victim or a missing person, these had to be redacted or modified. And I have looked at the prosecution's version. I looked at the Court's version. I looked at the defense version. And here is the one I propose. I haven't made a copy of it. Let me read it to you, see how you feel about it. Do you have yours right there?
GERAGOS: I don't have it in front of me.
JUDGE: I know you have yours. Okay. Here is the -- here is my proposed modified dog tracking evidence instruction. Evidence of dog tracking of the alleged victim has been -- alleged victim. Evidence of dog tracking of the victim has been received for your consideration. This evidence is not, by itself, sufficient to permit an inference that the defendant is guilty of the crime of murder. Before guilt may be inferred, there must be substantial evidence that supports the accuracy of the dog tracking evidence. The evidence can be direct or circumstantial, and must support the accuracy of the dog tracking evidence. In determining the weight to give to dog tracking evidence, you should consider, one, whether or not the handler was qualified by training and experience to use the dog; Two, whether or not the dog was adequately trained in tracking humans; Three, whether or not the dog has been found reliable in tracking humans; Four, whether the dog was placed on the track where circumstances have shown the victim to have been; Five, whether or not the trail had become stale or contaminated by the environment, weather, or any other factor; And, six, any other factor that could affect the accuracy of the dog tracking evidence.
GERAGOS: Don't we want to -- specifically, the way I had --
JUDGE: You said in the vehicle. But, see, that's pinpointing stuff. That's why I put, six so you could -- if you want to, any other factor that can affect accuracy of the dog tracking evidence. That gives you --
GERAGOS: I think that my position would be that specifically the -- you are talking about a vehicle trailing exercise. And so that's what should be in the instruction. I think specifically the -- when you are talking about two and three, that's why I amended it, because it's not a --
JUDGE: You added that. But that's why -- see, that there may be other considerations, you know, in doing this, as far as Trimble and her handler goes. So it's by -- I figured by adding three that that gives you -- that gives you the right to argue that this was talking about vehicle trailing exercises. That's a factor you can consider. You can talk about -- argument can be made about the test that the dog allegedly failed. That was the dog vehicle training exercise. That would affect the accuracy of the dog tracking evidence. That's why I thought that was sort of a catchall.
GERAGOS: Okay how. About the for five, whether or not the trail or scent article had been stale or contaminated?
JUDGE: No.
GERAGOS: Do you want to say scent article?
JUDGE: That goes to the weight again.
GERAGOS: Well, I understand that. That's the -- shouldn't that be in the instruction, something about the scent article?
JUDGE: Isn't that part of the trail?
GERAGOS: No. The trail technically is whatever is laid down by the person, or whatever this skin raft theory is, scent articles, whatever was collected. And there was more than enough --
JUDGE: Again, Mr. Geragos, three, were there any other factors that can affect -- I don't want to be -- I am careful not to pick out specific things, then it looks like I'm commenting on the evidence. That's why I'm leaving six, any other factor. You could argue to the jury the scent article was so stale, blah, blah, blah, was contaminated. They threw out this thing. And, you know, they didn't carefully handle it. So I'm going to go with this one. I think I'm comfortable with this one.
D. HARRIS: Your Honor, my only comment is on -- it's about the fourth line. I don't have a written copy.
JUDGE: Talks about the identification of the defendant.
D. HARRIS: No. Before guilt may be inferred there must be substantial evidence.
JUDGE: Isn't at that what the instruction says? Let me look -- let me look at 2.16. That could be an error. But I think that's what the instruction says. I could stand corrected. That's correct. It should say that before guilt may be inferred there must be other evidence. Should be other evidence, not substantial evidence. I'll change that.
GERAGOS: Didn't the substantial evidence come out of that last case? Isn't that where the Court got it from?
JUDGE: There are four cases in California that I read. And they all have to do with tracking a perpetrator of a crime, not -- the jury instruction says CalJIC, 2.16 says other evidence so. I'm going to go with that. And it's been my experience that if you stick pretty much to CalJIC you stay out of trouble, they say. Okay. So that's what we'll do. 2.16, Mr. Geragos, for the record, you are objecting to 2.16?
GERAGOS: Yes.
JUDGE: And what about the prosecution? Not much you can do about it, I guess, right?
D. HARRIS: As modified, we'll accept that.
GERAGOS: Did the Court mark -- did the Court mark it as --
JUDGE: I have yours here. I'm going to mark that as rejected, and make it a court exhibit.
GERAGOS: Thank you.
JUDGE: Okay. I have written on it in pencil, but it's yours. The problem is, Mr. Geragos, it doesn't say on the bottom, proposed by the defense. It's just -- but I'll make it, and we'll do that right now. We'll mark -- I'm going to write under dog tracking evidence, I'm going to the write Defense Proposed Instruction, and I will write rejected. And that can be filed, and next in order as a court exhibit. Here you go. There is couple other ones out here that we have to deal with. Mr. Geragos wants me to instruct the jury of failure to timely produce evidence, which has been a problem throughout this whole case. But I think during the -- during these 402 hearings when we have slugged through all this kind of stuff, that I took in consideration the fact that there is 50,000 pages of discovery. All the other intangibles that go into this. Last-minute tips from informants, and stuff that loused up the discovery, and so forth. And I did impose one sanction. I struck the testimony of one witness in order to get the prosecutor's attention. From then on I think we didn't have any problems. I didn't impute any ill will or any misconduct on the part of the prosecutor. Do you want to be heard on that?
GERAGOS: Yeah. The repeated 1054 violations. It doesn't require any ill will or malice, so to speak. All it does is require there was a violation. There clearly has been violations. The Court indicated that it struck one witness. But there has been at least no less than fifty other occasions where there has been discovery problems. And according to the state of the law, I'm entitled to that instruction.
JUDGE: You are. 1054 does not require bad faith on the part of the prosecutor. You want to be heard on this? This has been -- this discovery thing has been a nightmare.
D. HARRIS: We think, if the Court is going to give this particular instruction, that you give it fairly straight from CalJIC, and include the defendant as well. Because we had to go through the same process of the delays for their late discovery. So I think --
GERAGOS: We didn't --
D. HARRIS: Counsel is always interrupting me.
JUDGE: Wait. Wait. There was a -- wait, Mr. Geragos. Come on. Maybe I'm -- on balance, they violated this more than you did.
GERAGOS: On balance, it's a like a nuclear bomb versus a matchstick.
JUDGE: You know, I could do it out of CalJIC. I mean why should we do this?
GERAGOS: Because that's what the law requires.
JUDGE: Well, there is a lot of things the law requires. But the question is, should we give it to the jury and inject this in there? I'll look at 2.28. I have got it right here. As far as I'm concerned, it's sort of a wash.
GERAGOS: On discovery?
JUDGE: Yeah. This is the newest -- this is the newest one, you know. Have you seen the newest one? This is the 2004 edition. I'll read it. The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time, and avoid any surprise which may arise during the course of the trial. Then they talk about concealment of evidence. I don't think any evidence was concealed.
GERAGOS: You don't? You don't think?
JUDGE: No. I was going on to say that the delay in disclosure of evidence may deny a party sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying party's evidence. Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case the people and the defendant have failed to timely disclose the following evidence. I'm not going to list all this stuff. Just this thing would be --
GERAGOS: Except I'm not asking for --
JUDGE: I'm just reading to you now, all right?
GERAGOS: All right.
JUDGE: Although the people and/or the defendant's failure to timely disclose evidence was without lawful justification, the court has, under the law, permitted the production of the evidence during the trial. The weight and significance of any delayed disclosure are matters for your consideration. However, you should consider whether or not untimely disclosed evidence pertains to a fact of importance, something trivial, or is subject matters already established by other credible evidence.
GERAGOS: It should read the prosecution. It I'm sure you would want that with a --
GERAGOS: The way it should be is the way the evidence came out. There isn't anything -- in fact, the one time when there was something that we didn't produce, I voluntarily did not call that witness. And I have never not produced in this case.
JUDGE: I'm not going to say you did. We're talking about timeliness.
GERAGOS: I'm saying timeliness in this case, as the Court has indicated, has been the bane of this case for the discovery.
JUDGE: Sure has.
GERAGOS: And If you want me, I could list -- most of them are subject of 243.
JUDGE: Take some off the top, which ones are you accusing Mr. Geragos of being untimely about? I'm sure you have a few in mind.
D. HARRIS: As the Court can recall, when we were to start the defense case, the lateness of discovery caused a delay, and we had to come back the following week. We continued, even when the witnesses were testifying, same as with the prosecution side, that last minute things were being provided. So that's exactly what this section is about. So if it's given for the prosecution, it has to be given for the defense.
GERAGOS: You know, I wasn't there when the discussion happened, but Mr. Harris over here --
JUDGE: He denies any culpability. MR. PAT HARRIS: I deny culpability. I will state for the record, not only was the discovery not late, when we went back in the courtroom it was proven that the expert they are referring to was given to them almost three months previous. That is not --
JUDGE: Okay. You, know, and the other problem with this stuff is that, you know, like, for example, that plastic bag. And nobody knew about the testimony of those proposed -- the proposed testimony of those two park police officers, because nobody knew about it. It wasn't in their police report, the fact that the bag. And one -- Officer Phillips said that the bag smelled of -- smelled like the -- like the remains. Nobody knew about that until they were here ready to testify. There has been a lot of stuff that's been created by, you know, omission rather than commission. And that's why this is like opening up a sore, that I think both sides here have tried to comply with 1054 to the best of their ability. And I hate to throw this -- bang the jury over the head with this, when I don't think that this -- any of this stuff was done, you know, with any -- in any way to conceal the evidence or to delay its disclosure. I'll give you an example. The evidence that we had -- that we had, we conducted the 402 hearing that, just lately, when the District Attorney found out this information, he gave it to the prosecution immediately. He didn't have it until then.
GERAGOS: Do you want me to give a laundry list of how many times --
JUDGE: You don't have to. I know there was stuff there.
GERAGOS: And the -- I think the record is replete with the instances of discovery not being turned over. And I believe that there isn't one instance that they can point to where the defense did the -- had any kind of a discovery violation. And there is probably 50 different examples where the prosecution had a discovery violation. And, specifically, they -- you know, you can see the 40,000 pages. You can see what --
JUDGE: 48,000 pages.
GERAGOS: 43. Better not be 48, then I have got 5,000 missing.
JUDGE: You are 5,000 short.
GERAGOS: 5,000 short. So the fact of the matter is that they have got at least 50 different occasions that I could list. I'm not going to go through them all. Most of them --
JUDGE: I'm aware of them, a lot of them.
GERAGOS: And I can just point to you. And, once again, I point to the Court to Kyles versus Whitley and In Re Brown. They are imputed the knowledge of their agencies. You can't just say I didn't know, it was the cops. And that's what the mantra has been. I didn't know. It was the cops.
JUDGE: Well, most of the time, it's correct.
GERAGOS: Well, and, unfortunately, both Justice Souter and Justice Brown in their respective opinions said it doesn't wash. And so that's why I, on behalf of the defense, should get --
JUDGE: You are urging it on the Court. Okay. What's your defense? You heard what he cited, these two cases where the Supreme Court says, so what, too bad?
D. HARRIS: Those are post-conviction relief issues. They don't deal with this particular jury instruction. And as the Court has been aware, as we have gone through this trial, all of those particular -- the issues, and the Court has instructed the defense -- in fact, we have had to have at least two hearings that I can recall where the defense was ordered to turn things over to us. There was a cutoff date that got extended. So we have gone through this even with the defense, despite what they say. The record is fairly clear that we were not getting the discovery from the defense. So it's exactly the same.
GERAGOS: It's almost a joke, because they were asked for a deadline. That deadline was five months ago. When we met that day --
JUDGE: I remember. And I even asked you, I asked counsel back in this hearing if there was a -- if there was a cutoff date set in Modesto before the case was even sent here for trial, because part of the Court's responsibility during the trial of this case was to sort out all this discovery. And, in my opinion, it was stuff that should have been sorted out before it came here for trial that's led to a lot of the delay in this, where I think with these discovery issues this was almost a common, everyday experience.
GERAGOS: And I can't count the number of times that the Court had indicated I should send this case back to Modesto and --
JUDGE: I didn't say that you did. Didn't you, Mr. Geragos? I didn't say it, but I did say it. I didn't say it this time on the record. But I would have just said, look, take this case back, and when the discovery is completed, send it here so we can try the case. But I understand. It's just the nature of this particular case. It's just the nature of this particular case. This is not the run-of-the mill. I am going to exercise my judicial discretion. I'm not going to give 2.28. I already, in front of the jury I struck the testimony of a witness I think that's enough of a sanction for them for the prosecution rather than beat that to death. Okay. All right. Here is my dog tracking one I'm going to modify. Also, now, let's go on to -- the prosecution has offered -- there is one on Mitochondrial DNA that -- he submitted that. Mr. Harris submitted this comment from the case in Connecticut. My reservation about giving this instruction, verges on commenting on the evidence.
D. HARRIS: Judge, we -- actually I don't want to give that. I was indicating to counsel before, and I was going back to Judge Girolami's ruling from the Kelly-Frye hearing on the Mitochondrial, he wrote in that particular opinion, his ruling, that the Court is -- he says the Court is mindful of that particular -- the court is mindful of the instruction that was given in State versus Pappas where the jury was admonished of the significant difference between Mitochondrial DNA and Nuclear DNA. So because he had made that comment, that's the reason why we're providing it to the Court.
JUDGE: Well, you know, I think that this is a subject matter of argument to the jury. The jury has already heard the evidence. And I don't disagree with Judge Girolami as that is the basis for his ruling. But to -- let me ask you a question. Do you think the jury knows about nuclear DNA?
GERAGOS: Bet you at least two of them do.
JUDGE: Maybe one of them does. I don't believe about the other one -- but, to me, this is a subject matter of argument. What this jury instruction contains can be argued to the jury. For example, differs from the Nuclear DNA in that Mitochondrial DNA is not unique to any one individual. Any one in a maternal line has the same Mitochondrial DNA. That was testified to. I'm uncomfortable in giving -- I know was broached in the Connecticut case. As far as I'm concerned, this sort of borders on continuing on the evidence.
D. HARRIS: As long as the Court is aware of Judge Girolami's ruling, we are perfectly okay with that.
JUDGE: It's something you can argue.
GERAGOS: I beg to differ. I think the -- specifically when he made his ruling he did three things. He specifically said that they could not refer to the population database.
JUDGE: If you are not objecting to it on the record I'll give it. If you want to waive any objection to it, I will give it. Otherwise I'm not going to give it. If you object to it, I'm not going do give it for the reasons I stated. If you want to -- if you are not going to object to it, I'll give it for whatever it's worth. If are you are objecting I'm not going to give it for reason I have stated. I think it borders on commenting on the evidence, at least to the jury. It's justification or mis-ruling to start telling them how, I'm explaining them the difference between these things. They have heard the testimony. That's for them to decide now. The other one, the proposed prosecution CalJIC 2.16 that I have already modified. Okay. Now we're getting into more weighty issues here. There is a few other ones here that Mr. Harris gave me this morning, he wants me to augment this. And some of these I agree should be included. Number 2.83, resolution of conflicting expert testimony. I'm sure you don't have any problem with that, Mr. Geragos. That's standard CalJIC instruction. Concurrence of act and specific intent, 3.31. I didn't include that initially because the definition of first degree murder and second degree murder contain the intent required in both of those definitions. Out of an abundance of caution, I can do this one, and leave out -- and end with the specific intent required is included in the definition of the crimes as set forth elsewhere in these instructions, and leave it go at that. And it's set forth there. Proof need not be shown as to the exact time of the crime. There is 4.71, on or about is close enough. That's paraphrasing it. Duties of the jury to -- duty of jury as to the degree of murder 8.70. They have to decide -- and I would cover that when I explain the verdicts to them. But I looked through this, that it's a correct statement of the law. And then 8.71. If you have a doubt whether it's first or second degree, you should give the defendant the benefit of the doubt and return a verdict of second degree murder. So those all should be included. Now, this next issue is much more controversial I would say.
GERAGOS: Which one?
JUDGE: Your request, Mr. Geragos, that if I give second degree murder, that I should give -- that's unclear. Did you want me to give voluntary and involuntary? You just said request involuntary. But then as you read it, it says voluntary.
GERAGOS: If you give a second, which I do not believe that there is any evidence to do so -- if you give a second, I believe, as a matter of law, you have got to give an invol. And that's the slippery slope.
JUDGE: It is a slippery slope. And I think the law is clear on that. The problem with giving a second is that it's the theory of -- not only the theory of the prosecution, but the way they pled the case, that it's premeditated and deliberate. Obviously they have got this whole theory about Amber Frey, and they have got this whole theory about researching on the internet. They have got this the whole theory about buying a boat. And that's their theory, and their theory is what they have spent five months trying to prove. And there is no evidence that would indicate anything that would be -- that would constitute a second. And unless they are going to explain it now, they are asking the jury to speculate. This also tells me there is no evidence to show a vol or invol, is there?
GERAGOS: I'm telling you if you give a second, you have got to give a vol and invol. You have got to give a manslaughter. If you don't give a second, you don't have to. I'm not asking for -- as this court well knows, it's my position he's factually innocent. So I don't have a problem with the Court instructing on the first, because people haven't proven their case. They are never going to be able to prove that case. He didn't do it. Problem is that, if you give a second, the law is clear, you have got to give, as a base, the invol.
JUDGE: Okay. I can just tell you parenthetically, with all the issues that have been raised in this case, if there is a conviction in this case, this will be an appellate lawyers Petri dish. There is so many issues in this case, right? And I can and I have to make the calls. And I'm willing to do that. And I have read the prosecution's brief. And what is the prosecution's position?
D. HARRIS: Your Honor in this, we believe -- it's our position that second degree has to be given and I think the case -- that even the defense cites the Bradford case, which is 15 Cal.4th 1224, makes it very clear in the facts in that particular case, if I recall correctly, it's --
JUDGE: Bunyard case?
GERAGOS: The Brad --
D. HARRIS: Bradford case. Where the defendant lures two women out to the desert to an isolated location, and he kills them by strangulation. And in that particular case, they said it was a requirement that there had to be a, second even though the only evidence was that it was premeditated and deliberated. Because they are saying if he decides at the last minute that's something the jury can have a doubt as to the premeditation, willful deliberation. So an element would be lacking; therefore, the Court had to give second. And they also said -- one of the other cases is the Ochoa case. There is nothing to show something that reduces it from first or second to voluntary or involuntary in the facts in this case. So there is no basis for voluntary and/or involuntary. But Bradford, I think, is pretty much right on point, that you have to give a second.
GERAGOS: There is one big problem. Bradford, you had a factual scenario. You had evidence of how this crime was committed.
JUDGE: There is no evidence in this case how this crime was committed. There is no evidence in this case where it was committed.
GERAGOS: Right. There is no --
JUDGE: That's why I'm saying --
GERAGOS: There is no how it was committed. No evidence when it was committed. No evidence he committed it.
JUDGE: Well, that's argumentative, because the prosecution thinks they have evidence that he committed it. That's for the jury to decide.
GERAGOS: I understand that. But there is no case that I have been able to find -- I have spent hours on Lexis -- where you have a situation where they can't -- where they can't tell you when, they can can't tell you how, where somebody -- where they gave a second. I have never -- there is no case.
JUDGE: Well, this is going to be the first one. And I'm going to give you the reasons. I'm going to give you the reasons right now. The Court's considered this. The Court's considered it. I'm painfully aware of all these issues. Number one, second degree murder is a lesser-included offense of first degree murder. So the jury in this case could come to the conclusion -- and you have spent a lot of time disabusing the notion that this was a premeditated killing. The jury could certainly agree to that. The jury could say, well, we think that Mr. Peterson murdered Laci Peterson, but we're not persuaded beyond a reasonable doubt that there was premeditation and deliberation; therefore, you have a second. Secondly, if there is a hung jury in this case, under the Stone Instruction, I have to tell this jury that the second degree murder is a lesser included offense in order, to go down the ladder. If they are going to acquit him of first degree murder, second degree murder has to be considered. And I think in the cases that I have read, and cases that I have reviewed, it's -- you have to give second degree murder.
GERAGOS: The problem is, to use the Stone Instruction, in that case -- and that case to giving -- justify giving a second degree murder is the tail wagging the dog.
JUDGE: I'm not going to justify it. I'm saying that if there is a hung jury, I'd have to give the Stone Instruction. It's mandatory that I give the Stone Instruction.
GERAGOS: That doesn't mean it's mandatory that you have a lesser.
JUDGE: I think it is, because it's like -- it's the lesser included. You cannot commit the greater without committing the lesser. How can you not give the lesser?
GERAGOS: You can't give the lesser, because there is no evidence that would suggest the lesser. Their whole theory is that this was premeditated and deliberate.
JUDGE: I understand that.
GERAGOS: How do you --
JUDGE: Because I just told you, that you spent five months disabusing the jury of the notion that this is a premeditated, deliberate killing, number one. And they may say that's right; but I think he killed her. I don't know what the jury is going to do. Then it's a second degree murder.
GERAGOS: But you have got to be convinced beyond a reasonable doubt.
JUDGE: And the jury instruction says that, Mr. Geragos. And they may go up there and say this case hasn't been proven to me at all beyond a reasonable doubt, and we'll all go home. That could also happen. But this question is what am I supposed to put before this jury? I'm going to -- I have entertained your argument. Noted in the record. I'm going to give second degree murder. I'm not going to give vol or invol or manslaughter at my peril. All right?
GERAGOS: I would consider that to be at your peril, correct.
JUDGE: That's correct I have done it once before to my peril. You try as many cases as I have had, these things come up. So that's what I'm going to do. Okay. One other issue now, I think. And that is the flight instruction. And I have modified that. And I'm calling on the memory of Judge Fritz. Remember Fritz, Judge Fritz? Famous judge. This is one of his cases.
GERAGOS: Alameda County?
JUDGE: Pardon me?
GERAGOS: Wasn't it Alameda County?
JUDGE: No. He was in Southern California.
GERAGOS: I don't remember him.
JUDGE: Don't remember him. He's famous. Maybe he's still with us. Maybe he's deceased. Let me see if I can find it in here. I have got your objection to flight. I understand it.
GERAGOS: Yes.
JUDGE: Here is the way I propose to modify this instruction to cover the issues. And I'm going to call it the attempted flight of a person after the commission of the crime, or after he is accused of a crime is not sufficient, in itself, to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all the other proved facts in deciding whether a defendant is guilty or not guilty. Here is what I added: If there was such an attempted flight, the weight to which this circumstance is entitled to is a matter for you to decide. So I'm not telling the jury that there was flight. I'm saying if there was such a flight, and I'm going to cite you -- I need more papers up here. Some other things I want to say. Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of guilt. That's People versus Green, 27 Cal.3d at page 36 and 37, according to my notes. But then in People versus Turner -- this is the case I'm getting this from. It's 50 Cal.3d 668, a 1990 case. That's where the judge injected the words if there was such attempted flight. It is for the jury determination -- properly allowed the jury to determine whether the flight had been proved.
GERAGOS: Don't we have to put something into that instruction that they have got to -- the way that it's phrased, it does not have, I don't think, a sufficient indicia or instructions to the jury. They have to make a decision as to whether they believe it happened in the first place.
JUDGE: I say I that in there. That's why I put that in there. That's what they did in this case. And it up held scrutiny. You asked me to -- if there was such an attempted flight, the weight to which this circumstance is entitled is a matter for you to decide. I'm not saying in here there was flight. I'm saying it's for them to decide if there was attempted flight. They may decide, no, there wasn't any attempted flight.
GERAGOS: Could we put that in, say before, if there was, can you put, it's for you to determine whether --
JUDGE: That's what the sentence says. Let me read it again. It says --
GERAGOS: If there was.
JUDGE: If there was such an attempted flight, the weight to which this circumstance is entitled is a matter for you to decide.
GERAGOS: Right. But you are talking about the weight if they decide. I'm saying that they have got to decide, first of all, if there was flight. That's all I'm asking for.
JUDGE: Doesn't that say that if there was such an attempted flight?
GERAGOS: It is for you to decide. And if you decide there was, the weight of that --
JUDGE: Okay. That's not unreasonable. If there was such an attempted flight.
GERAGOS: Is for you to decide.
D. HARRIS: Isn't maybe. Probably. The Court's reading it, and it's different than what we have, doesn't -- it already said on line three, but is a fact which, if proved. So isn't that the --
GERAGOS: I want, if there was such an attempted flight is for you to decide. And if you decide there was.
JUDGE: Well, that's fine. Because that's what they are doing. If there was such an attempted flight, that is for the jury to decide. The weight to which this circumstance is entitled is a matter for you to decide.
GERAGOS: Right.
JUDGE: If there was such an attempted flight is for the jury to decide. That's not that's a correct statement of the law, I would say. And the weight to which this circumstance is entitled to is a matter for you to decide also.
GERAGOS: Correct. And that's a correct statement of the law, I believe. Do you have any problem with that?
D. HARRIS: No, just --
JUDGE: I'll have that changed. I'll have that modified accordingly. Okay. Now, I'm going to, you know, what I'm going to do, I would go on the record now and indicate the jury instructions I intend to give, so you can lodge your objections. Since I have to modify a few of these, what I'd like to do, that we're going to start at 9:30 with Mr. Distaso. Can you guys be here at 9:00 o'clock so I can go on the record, so we don't take any time from the jury, and say these are the instructions I intend to give? Number -- start back 1.00, and go through all the instructions I intend to give. I will entertain any objections that you have to any of the instructions I intend to give. I'll rule on them, those objections like I did now, and then I will -- once that's done, I will have them run off, and I will give you a copy of the jury instructions. I'll give you a copy of the jury instructions. I'll make -- I'll have the original. I'll make two copies to be submitted to the jury.
GERAGOS: That's fine.
JUDGE: I'll have my own little copy also. I will take this Monday. And I split these up. These instructions, as you know, are in three parts. Middle part is the substance of all the law, then the concluding instructions, and the introductory instructions, how to weigh the evidence, and so forth. And I point that out to the jury, because that helps them find something, you know, if they want to ask about that, it was probably in the front part of the instructions. If they want to find it, they can find it quicker.
GERAGOS: That's fine.
JUDGE: All right. You are sure you want to keep raising the objection on this stuff, Mr. --
GERAGOS: Just submit on that so we can get out of here, please. Just submit it.
JUDGE: I can look it up.
GERAGOS: Submit it. Come on. They are going to submit.
JUDGE: That's very decent of you, Mr. Harris. I'm going to add it in then, because they are self-authenticating.
GERAGOS: Thank you.
JUDGE: All right. Okay.
GERAGOS: 9:00 o'clock on Monday.
JUDGE: If you can be here at nine, you want to go on the record, I want to show you guys the completed jury instructions so you can review them. And then I'd like to start out with Mr. Distaso right at 9:30. There will be some introductory comments by the Court, we'll get started. Oh, one more thing -- one other thing. Go ahead.
GERAGOS: I'm just going to say on flight and dog tracking, will that be typed up today so that I can get a copy?
JUDGE: I will try to get it done ASAP.
GERAGOS: Is that okay, if I send somebody back?
JUDGE: One little -- there's always one more thing. Parties' opposition to proposed media coverage during the verdict. Okay? Now, if you guys will recall, one of our hearings here, the issue came up as to whether or not we were going to the permit cameras in the courtroom for the televising of the verdict. At that particular time, no objection was voiced to it, so I said, well, okay, if there is no objection, we'll go ahead with it. Mindful of the possibilities that -- and the problems that this entails, and that the matter was even discussed further security-wise with the Sheriff's Department, the party -- both parties have urged the Court to reconsider the Court's ruling, and I will do that. And I have reconsidered the Court's ruling. The problem here is that, as far as the Court's concerned, this has been a highly emotionally charged trial, both for the Peterson family, both for Rocha family. Whatever remaining privacy they have, or whatever remaining dignity they may have as a result of this horrible crime that was committed, I don't want to expose the families to further scrutiny, and turn this into some sort of a spectacle, depending on what the verdict is going to be in this case. And I'm mindful of the problems that could happen. This has been a very emotional case. And I don't think, for morbid curiosity of some people that are going to be watching TV to see how so-and-so reacted, and how so-and-so reacted, I couldn't care less. I'm more concerned about preserving whatever remaining dignity these families have. So I'm going to reconsider, and I'm going to rule that there will be no media coverage of the verdict for the reasons I have just stated. Okay? Oh, yes. I want to run this -- thank you, Mike, for reminding this. My bailiff Mike had a good suggestion for me this morning. And that was that I should sequester the lawyers. I am seriously considering that. So let me tell you what the problem is. I have heard through the grapevine, Mr. Geragos, and, Mr. Prosecutor, that once this matter is submitted to the jury, and these jurors are deliberating on these issues, that you plan -- both sides plan to absent themselves from the County of San Mateo. And that is going to cause real problems. And I can just see a situation where, say, the jury comes back. I know Mr. Harris is going to be here. MR. PAT HARRIS: I'll be here.
JUDGE: Is going to be here more than full time. I assume there is going to be somebody from your office is going to be here. But, see, I have a real problem with this. And I understand your logistical problem, Mr. Geragos. You are demanded all over the state, and elsewhere, and so forth. But I can see a scenario where, on December -- or, say, November the 5th --
GERAGOS: December?
JUDGE: That is a slip. December the 5th at 3:00 o'clock, I get notified, my God, we have got a verdict, and where is Mr. Geragos? He's in Los Angeles. You propose I keep the jury here at 8:00 o'clock at night until you get here. That is not going to go over very big with anybody. So I want to make reach some accommodation with counsel.
GERAGOS: What kind of call -- what kind of call were you thinking of?
JUDGE: Normally there is --
GERAGOS: Normally.
JUDGE: It would take approximately -- I would suspect, if everybody was here, it would be take couple of hours to gather everybody up, and then I have to notify the Sheriff's Department. There is an issue of security in the courtroom. There is also all this other stuff because of this case, again, that has to be dealt with.
GERAGOS: What about a three-hour call?
JUDGE: Well, you know, I can just see you driving down the freeway in Los Angeles at 6:00 o'clock at night trying to get to the airport, trying to find a place to park, getting on a plane, flying to San Francisco, find -- trying to find transportation, getting on Highway 101 to drive to Redwood City. If you think you can do that in three hours, you are Superman.
GERAGOS: What about three-hour call?
JUDGE: My preference -- and I understand -- is that you remain here. But I understand the problem. What is your situation? I understand there is some judge down there wants to throw you in jail.
GERAGOS: I've got two judges who want me to start either a prelim or a trial the minute that I finish --
JUDGE: You can't start a trial that -- you cannot start a trial.
GERAGOS: I understand. I understand. But my guess is on November 5th I'm going to be back in a preliminary hearing in Pasadena.
JUDGE: How long is that preliminary hearing going to take?
GERAGOS: They have been doing it on Fridays when I'm not here.
JUDGE: You know, I learned a long time ago it's called the law of primacy. What should come first should come first. And I'm not about to argue with a judge. But we have spent nine months here on this case.
GERAGOS: Judge is retiring, and they are afraid they are going to have to redo the preliminary hearing if I don't finish it in November.
JUDGE: Well, can you be -- if you finish that preliminary hearing, I'm going to just take the position that there is not going to be a verdict in two days in this case. Just -- we'll just assume that that's -- I could be wrong. But let's assume that doesn't happen because, maybe I might get -- there is a lot of evidence that the jury has to cover. Is there any way you can guarantee me that you can be here on the 8th available in case there is a verdict?
GERAGOS: On what date?
JUDGE: The 8th. Monday the 8th of November. And be here the remainder of that week.
GERAGOS: My guess is, if I go back down they want to start me back into the preliminary hearing on the 5th. And I believe it's going to take at least a couple of days to finish it.
JUDGE: Then we got -- I can't accept that.
GERAGOS: Okay. Do you want to start appointing me in 987 cases?
JUDGE: You understand the problem. Suppose we have a verdict, it's Friday at 4:00 o'clock, or something. Am I supposed to keep them here all weekend, and lock them up until Monday? Are you going to take the verdict? MR. PAT HARRIS: Absolutely.
JUDGE: You will accept the verdict without Mr. Geragos being here? MR. PAT HARRIS: I have done about 30 of them. I'm sure I can.
JUDGE: That's okay by me then. If you are willing to accept the verdict, that's okay. And that's okay by me, if Mr. Harris is willing to accept the verdict, if a verdict is rendered, that's okay. There is a representative of the defense here. And if you want to agree that Mr. Harris can accept the verdict.
GERAGOS: I do.
JUDGE: That is perfectly okay with me.
GERAGOS: Okay.
JUDGE: That takes care of the defense Mr. Harris will be here. 24-7, right?
GERAGOS: We are going to sequester him?
JUDGE: Well, I'm thinking about it. Who is going to be here for the prosecution then? Because the same applies to you. I don't want to track you guys down in Modesto.
D. HARRIS: We're hoping you will sequester us. It will probably be an upgrade from where we're at.
GERAGOS: I have seen that hotel. I can tell you that's true.
D. HARRIS: We do have to be mindful of the victim's family in this particular case. Majority of them are coming from Modesto, and that's about a two-hour drive. So if we can get a two-hour window.
JUDGE: Well, I can live with two hours, because I just told you -- because if I get notified there is a verdict, then this sets everything in motion. I have got to notify the Sheriff's Department, you know. All these things are going to have to take place. Two hours is not unreasonable. But I can't wait until Mr. Geragos flies here from Los Angeles, because that he that could take hours. And he's solved the problem with Mr. Harris. So you are going to have somebody here anyway. Supposing there is readback?
D. HARRIS: There will also be somebody here from our side. So that's not an issue. But our side, again, we're concerned about the victim's family, that they have to come back from Modesto.
JUDGE: Can they be here in two hours?
D. HARRIS: Two is actually cutting it with Bay Area traffic. That's really pushing it.
JUDGE: If it's at 4:00 o'clock in the afternoon, you might has well forget about it. And you should know, and should be aware if anybody I has tried cases, once a jury arrives at a verdict, you let them sit there and stew, people have reconsidered what they have done, and a lot of things, which is perfectly okay. But we can -- what can be done can be undone. And sometimes it doesn't work out right. I suggest the Rochas could make themselves available and be close. The Peterson family is here, and I assume they are going to be here. Is that right, Mr. Geragos?
GERAGOS: That's correct. They are here for the duration.
JUDGE: Need to be a little closer in the event there is a verdict. Because if -- like I said, if it's 3:00 o'clock, they are in Modesto, they can't get here in two hours.
D. HARRIS: If two is all we can get, we'll take two.
JUDGE: I know. But two is a sham. It's illusory. It's not going to be two hours. You know. Just not going to happen. What I'm going to ask you to do then is to explain to the Rocha family what the problems are. And if they can see it clear to make some arrangements to be closer to the Court House so, in the event, they do get a verdict, we can deal with it, you know, ASAP, and get it done, and polled, recorded, or whatever.
D. HARRIS: We'll advise them.
JUDGE: Okay. Because, otherwise, we have to put it over. Like if it's at Friday at four, then we're looking at Monday.
GERAGOS: What is the call?
JUDGE: The call is, you can go down to Los Angeles, and because you are guaranteeing me that Mr. Harris is going to be here. Then if there is a verdict, as I understand it, you stipulate on the record right now, Mr. Geragos, that Mr. Harris can take the verdict, right?
GERAGOS: Yes.
JUDGE: Okay. And then I will expect you back here as soon as that preliminary hearing is finished.
GERAGOS: Okay.
JUDGE: Obvious reasons, you know. For example, of course, you will be -- there may be questions, there may be some questions from the jury, and maybe Mr. Harris feels compelled to discuss those issues with you before he makes some comments on the record. And supposing you are in the middle of the preliminary hearing, will the judge allow to you pick up your cell phone?
GERAGOS: Yes. The court down there -- when I did the preliminary hearing in this case, I was in trial down there with a jury deliberating. They accommodated me, and --
JUDGE: That's always a problem with a busy lawyer. It happens all the time. But usually they may be in another county. You are down in Los Angeles, a long ways away, right? So I will rely on your good offices to try and get here as soon as that preliminary hearing is over. Mr. Harris is perfectly okay, he's willing to do what he has to do. And then who is going to be here from the prosecution?
FLADAGER: All of us.
JUDGE: All three of you will be here. Okay. Okay. Then I think I covered everything that we had on the table this morning. So what I'm going to do then, I'm going to take the next few minutes while -- if you want to stick around, if you want to get this dog tracking thing in final form.
D. HARRIS: Judge, just before we break, so that we don't end up having a delay on Monday. I'm looking at the CalJICs that the Court intends to give, kind of broke them up. The one that you have given us in the list that you intend to give, the new ones that I indicated that --
JUDGE: We should take that up.
GERAGOS: I object. That's sua sponte.
JUDGE: Let's do that now.
D. HARRIS: Okay.
JUDGE: Did you get a copy of these, Mr. Geragos?
GERAGOS: No. I'm being handed them. Sent me an e-mail last night with the --
D. HARRIS: Ones from CalJIC said were the sua sponte.
JUDGE: 2.71 admission. Defined an admission. 2.71. I'm familiar with these. 2.71, I'm familiar with these. My question is, where is the admission?
GERAGOS: There isn't.
D. HARRIS: 2.71 --
JUDGE: I got it right here if you want. It's -- I'm looking at 2.70, I think.
D. HARRIS: We were looking at this, and it's the --
JUDGE: Looking at 2.70, look at the use note, the comment on 2.70. Here is what it says. The court has a sua sponte duty to give the instruction whenever a pretrial statement of a defendant is received that tends to establish guilt when considered with the remaining evidence in the case, regardless of whether the out-of-court statement is technically an admission under the traditional rules of evidence. And cites about six cases.
GERAGOS: There is no admission. There is no adaptive admission. There is no pre-offense statement. So none of this is applicable. In fact, it's Griffin error, per se.
JUDGE: Well, that's the next issue. The next issue here is on this adoptive admission. You have an issue here with the Griffin error, because the evidence is clear that he was represented by counsel. He was represented by Mr. McAllister. The inference could be that he was represented by counsel. The inference was that he was told not to discuss the case. Then we're talking about the silence, false or evasive reply to an accusation. And that arguably is counting on the fact that he followed the advice of his lawyer and kept his mouth shut.
GERAGOS: I mean --
D. HARRIS: 2.71, I think the Court -- there is plenty of admission. He talks about going to the marina, going to The Bay. Those are pieces --
JUDGE: Are those admissions or just lies?
GERAGOS: When he says he goes to the marina, he says he --
JUDGE: But let me ask you. This admission has to do with his, to some degree inculpating himself with the offense. It might be circumstantial evidence of consciousness of guilt if he said something like that, but is it an admission?
D. HARRIS: I'm just reading from the comments where it says it's a pre-trial statement of a defendant that's received that tends to establish guilt by placing himself where the bodies are found. That's the -- and that's his verbal statement. I think 2.71 has to be given.
JUDGE: 2.71 talks about a statement not a location. Statement would be that -- I looked at this when -- I looked at this when I was preparing the jury instructions, and I felt that my understanding and my review of the record, I didn't think it was justified under the evidence.
D. HARRIS: Mr. Geragos is objecting to 2.71, 2.71.5, 2.71.7?
JUDGE: Yes. And 2.72.
GERAGOS: Yes. But there is no admission. There is no confession. There can't be, because he didn't do anything.
JUDGE: Well, but that's --
GERAGOS: I understand that's argument. However, we have sat here for five months. We have the uncontroverted testimony there was no admission or confession. To now give an instruction suggesting that there was is based on absolutely nothing. In fact they have to stretch it to say he went to -- the admission is that he went to The Bay. How much of an inference is that?
JUDGE: I'm not comfortable with it, Mr. Harris. Like I told you, I entertained it before. I understand what the use note says. But I'm not comfortable with 2.71. I'm not comfortable with 2.71.5, because I think that that burden verges on Griffin error. 2.71.7, I don't see any pre-offense statement that indicates any intent, plan, motive or design that he may have uttered.
D. HARRIS: That would be the statements he made to Shawn Sibley and Amber Frey about Laci being lost before she went missing.
JUDGE: That's the offer, but that's not persuasive.
D. HARRIS: As long as the defense is objecting, the Court's ruling, so that's fine.
JUDGE: You are objecting to the ruling?
GERAGOS: No, your Honor.
D. HARRIS: Objecting to being given.
GERAGOS: Objecting to them.
JUDGE: I indicated this morning that -- okay, so, for the record, the prosecution is urging 2.71, 2.71.5, 2.71.7 and 2.71. The Court is rejecting the offer for the reasons I stated. The Court will give 2.73 as modified. 2.71 is being offered by the prosecution. And 8.74 I'm not going to give. That's cumulative. There is plenty of jury instructions that says you have got to find him guilty beyond a reasonable doubt. I mean I'm not going to give 8.71. Okay? Okay, I think that covers it. So I will now make arrangements to have that. If you guys want to stick around, I'll give you that dog tracking stuff. Everything there is -- everything in this case that we have, GPS, that's never been resolved before. We have hypnotized witnesses. You know, we have wiretap stuff. We have got dog tracking victims instead of tracking defendants. So we have got to just be flexible on all this kind of stuff and try to accommodate the instructions. Like I said before, there is a lot of issues on this case. We'll see what happens. Will you ask Peggy if she could? Then we'll be in recess until Monday morning. I want to see you guys at nine, okay, so we can go on the record.
D. HARRIS: Could we make it -- actually make it 8:30?
JUDGE: I'll be here at 8:30.
GERAGOS: How about Distaso?
JUDGE: Okay. Recess until Monday at 8:30 for you guys. We need to clean the mess up. We're going to have Appellate Court in here at 2:00 o'clock. (RECESS)