NOVEMBER 29TH 2010,

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

 

FOR THE COUNTY OF LOS ANGELES

 

DEPARTMENT 107 HON. MICHAEL E. PASTOR, JUDGE

 

 

THE PEOPLE OF THE STATE OF )

CALIFORNIA, )

)

PLAINTIFF, )

)

VS. ) NO. SA073164-01

)

CONRAD ROBERT MURRAY, )

)

DEFENDANT. )

)

___________________________________)

 

 

 

 

 

 

 

REPORTER’S TRANSCRIPT OF PROCEEDINGS

 

NOVEMBER 29, 2010

 

 

 

 

 

APPEARANCES:

 

FOR THE PEOPLE: STEVE COOLEY, DISTRICT ATTORNEY

BY: DAVID WALGREN, DEPUTY

210 WEST TEMPLE STREET

LOS ANGELES, CA 90012

 

FOR THE DEFENDANT: (VIA SPEAKER PHONE)

THE LAW FIRM OF JOSEPH H. LOW IV

BY: JOSEPH H. LOW IV, ESQ.

ONE WORLD TRADE CENTER, SUITE 2320

LONG BEACH, CA 90831

 

 

REPORTED BY: MAVIS THEODOROU, CSR #2812

OFFICIAL REPORTER

 

 

 

 

 

 

 

 

 

1

 

 

1 CASE NO.: SA073164-01

 

2 CASE NAME: PEOPLE VS. CONRAD MURRAY

 

3 LOS ANGELES, CALIFORNIA MONDAY, NOVEMBER 29, 2010

 

4 DEPARTMENT 107 HON. MICHAEL E. PASTOR, JUDGE

 

5 REPORTER: MAVIS THEODOROU, CSR #2812

 

6 TIME: 1:50 P.M.

 

7 APPEARANCES:

 

8 JOSEPH H. LOW IV, ESQ., REPRESENTING

 

9 DEFENDANT (VIA SPEAKER PHONE); PEOPLE

 

10 REPRESENTED BY DAVID WALGREN AND DEBORAH

 

11 BRAZIL, DEPUTIES DISTRICT ATTORNEY, FOR

 

12 THE PEOPLE OF THE STATE OF CALIFORNIA.

 

13

 

14 (AN IN CAMERA HEARING, PAGES 2-7,

 

15 HAS BEEN PREPARED UNDER SEPARATE COVER,

 

16 BY ORDER OF THE COURT; SAID TRANSCRIPT

 

17 HAS BEEN LODGED WITH THE CLERK IN A

 

18 SEALED ENVELOPE MARKED CONFIDENTIAL – MAY

 

19 NOT BE EXAMINED WITHOUT A COURT ORDER.)

 

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8

 

 

1 CASE NO.: SA073164-01

 

2 CASE NAME: PEOPLE VS. CONRAD MURRAY

 

3 LOS ANGELES, CALIFORNIA MONDAY, NOVEMBER 30, 2010

 

4 DEPARTMENT 107 HON. MICHAEL E. PASTOR, JUDGE

 

5 REPORTER: MAVIS THEODOROU, CSR #2812

 

6 TIME: 12:15 P.M.

 

7 APPEARANCES:

 

8 FOR THE DEFENDANT, J. MICHAEL FLANAGAN,

 

9 ESQ. (VIA SPEAKER PHONE); PEOPLE REPRESENTED

 

10 BY DAVID WALGREN AND DEBORAH BRAZIL, DEPUTIES

 

11 DISTRICT ATTORNEY, FOR THE PEOPLE OF THE

 

12 STATE OF CALIFORNIA.

 

13

 

14 THE COURT: WE ARE HERE TO DISCUSS A MATTER WHICH

 

15 COUNSEL WANTED TO BRING TO MY ATTENTION. THAT IS THIS

 

16 ISSUE OF THE APPROPRIATE ORDER TO BE SIGNED. THE DEFENSE

 

17 SUBMITTED AN ORDER. THE PEOPLE HAVE. AND YOU KNOW WHAT?

 

18 I AM MISSING SOMETHING, SO MAYBE THE PEOPLE COULD HELP ME

 

19 OUT BECAUSE MS. BENSON ISN’T HERE.

 

20 DO YOU HAVE SOME OF YOUR PAPERWORK BECAUSE I

 

21 HAVE GOT —

 

22 MR. FLANAGAN: I HAVE A COPY OF THE PROPOSED ORDERS

 

23 I’VE SUBMITTED. I ALSO HAVE A COPY OF THE PROSECUTION’S

 

24 ORDER.

 

25 THE COURT: MS. BENSON, THE COURT CLERK,

 

26 REGRETTABLY HAD CERTAIN OF THEM LOCATED IN DIFFERENT

 

27 AREAS. SO MR. WALGREN IS TAKING A LOOK AT THE MATERIALS

 

28 RIGHT NOW. IF YOU COULD JUST GIVE ME A MOMENT, MR.

 

 

 

 

9

 

 

1 FLANAGAN.

 

2 MR. FLANAGAN: OKAY.

 

3 MR. WALGREN: THE DEFENSE SUBMITTED TWO DIFFERENT

 

4 VERSIONS, AND THE PEOPLE THEN FOLLOWED UP WITH OUR

 

5 VERSION.

 

6 THE COURT: I DON’T KNOW WHO WANTS TO SPEAK FIRST.

 

7 I REVIEWED THE VARIOUS VERSIONS, AND I WANT TO KNOW

 

8 COUNSEL’S POSITION AFTER REVIEWING ALL OF THE VERSIONS.

 

9 I DON’T KNOW IF YOU HAVE ALL OF THEM BEFORE YOU AT THIS

 

10 TIME, MR. FLANAGAN.

 

11 MR. FLANAGAN: I DO.

 

12 MR. WALGREN: IF I COULD BE HEARD, YOUR HONOR.

 

13 MR. FLANAGAN: I THINK THE ONE THE COURT SHOULD

 

14 FIND IS THE ONE THAT INVOLVES A STIPULATION BY BOTH SIDES

 

15 TO THE ANALYSIS BEING DONE PURSUANT TO THE DECLARATION OF

 

16 THE CORONER’S DEPARTMENT.

 

17 THE COURT: LET ME ASK FOR MR. WALGREN TO EXPRESS

 

18 HIS VIEWPOINT, THIN WE CAN GO BACK TO YOU, MR. FLANAGAN.

 

19 SEE IF YOU CAN HEAR MR. WALGREN.

 

20 MR. FLANAGAN: I HEARD HIM.

 

21 MR. WALGREN: THANK YOU.

 

22 AS THE COURT RECALLS, THE DEFENSE THROUGH MR.

 

23 FLANAGAN HAD PREVIOUSLY ORALLY REQUESTED SOME ADDITIONAL

 

24 ANALYSIS. THE PEOPLE GAVE LEAVE — EXCUSE ME — THE

 

25 COURT GAVE LEAVE TO THE PEOPLE TO SPEAK TO THE

 

26 TOXICOLOGIST SO WE COULD GET CLARITY ON THE ISSUES THAT

 

27 WERE BEING REPRESENTED BY MR. FLANAGAN AND SO WE COULD

 

28 GET CLARITY ON THE PROCEDURES THAT WOULD BE FOLLOWED IF

 

 

 

 

10

 

 

1 SUCH TESTING TOOK PLACE.

 

2 WE MET WITH THE TOXICOLOGIST. AS WE

 

3 SUSPECTED, THERE IS SOME VERY COMPLEX ISSUES INVOLVED.

 

4 IT IS AN EXPERIMENTAL TEST ACCORDING TO THE TOXICOLOGIST.

 

5 IN THE INTERESTS OF CLARITY AND SO THERE WOULD BE NO

 

6 CONFUSION DOWN THE ROAD, WE ASKED THE TOXICOLOGIST TO PUT

 

7 EVERYTHING IN A DECLARATION. THEY DID SO, AND THEY

 

8 SUBMITTED A FOUR-PAGE DECLARATION.

 

9 IN RESPONSE TO THAT DECLARATION, THE PEOPLE

 

10 DRAFTED A LETTER AND SENT THAT OFF TO THE DEFENSE ON

 

11 NOVEMBER 10 OF 2010. THE LETTER ATTACHES THE DECLARATION

 

12 AND EXPLAINED FROM THE PEOPLE’S POSITION THAT TWO OPTIONS

 

13 EXISTED.

 

14 THAT IT WAS PERFECTLY FINE WITH THE PEOPLE

 

15 FOR THE DEFENSE TO TAKE HALF OF THE EVIDENCE SAMPLE,

 

16 CHOOSE A LAB THAT THEY WISHED TO USE, AND DO THE TESTING,

 

17 EXPERIMENTAL TESTING THEY WISHED TO HAVE DONE. THE

 

18 PEOPLE, THROUGH THE CORONER, WOULD RETAIN THE OTHER HALF

 

19 FOR REBUTTAL TESTING SHOULD IT BE NECESSARY.

 

20 THE SECOND OPTION WAS THAT IF THE DEFENSE

 

21 STILL WISHED TO HAVE THE CORONER’S OFFICE DO THE TESTING,

 

22 THAT THE PEOPLE WOULD AGREE TO THAT BEING DONE PROVIDED

 

23 THAT ANY COURT ORDER SUBMITTED BY THE DEFENSE ACKNOWLEDGE

 

24 THAT THEY HAVE READ THE DECLARATION, THAT THEY HAVE

 

25 ACKNOWLEDGED IT’S EXPERIMENTAL TESTING, AND THAT THE

 

26 EVIDENCE MAY BE DESTROYED.

 

27 I WAS THEN CONTACTED BY MR. FLANAGAN

 

28 INFORMING ME THAT THE DEFENSE CHOSE OPTION NO. 2.

 

 

 

 

11

 

 

1 THE DEFENSE THEN SUBMITTED TWO DIFFERENT

 

2 DRAFTS OF THE ORDER, NEITHER OF WHICH THE PEOPLE FEEL ARE

 

3 ACCURATE. ONE DRAFT INDICATES THE TESTING IS BEING DONE

 

4 OVER THE PEOPLE’S OBJECTION WHEN, QUITE CLEARLY, THE

 

5 PEOPLE HAVE NEVER OBJECTED TO THE TESTING. WE HAVE ONLY

 

6 PROVIDED CERTAIN GUIDELINES THAT WE FEEL ARE APPROPRIATE.

 

7 THE OTHER DEFENSE DRAFT, BY STIPULATION, IS

 

8 NOT ACCURATE. THE PEOPLE ARE NOT REQUESTING THIS

 

9 TESTING. THE PEOPLE DON’T FEEL IT IS NECESSARY OR

 

10 RELEVANT, SO IT IS NOT BY STIPULATION. IT IS THE DEFENSE

 

11 REQUEST TO DO THIS TESTING.

 

12 THE PEOPLE THEN SUBMITTED A DRAFT OF DEFENSE

 

13 ORDER WHICH WE FEEL ABIDES BY OPTION 2 IN THE LETTER MR.

 

14 FLANAGAN INDICATED THEY WERE AGREEING TO, WHICH

 

15 ESSENTIALLY USED THE SAME LANGUAGE AS PROVIDED BY MR.

 

16 FLANAGAN WITH THE ADDITIONAL LANGUAGE THAT IT

 

17 ACKNOWLEDGES THE DECLARATION WITH SPECIFIC CITATIONS TO

 

18 THE RELEVANT POINTS; NAMELY, THAT IT IS EXPERIMENTAL.

 

19 THE INTERPRETATION MAY BE DIFFICULT, AND THAT IT MAY

 

20 CONSUME OR ALTER ALL THE EVIDENCE.

 

21 THAT WAS SUBMITTED TO THE DEFENSE, AND THE

 

22 COURT NOW HAS BEFORE IT THE THREE DIFFERENT VERSIONS AND

 

23 THAT IS WHERE WE STAND TODAY.

 

24 THE COURT: THE KEY CONSIDERATION, MR. FLANAGAN, IS

 

25 THAT THE DEFENSE DOES WANT TO CONDUCT THE TESTING. THE

 

26 PEOPLE HAVE NOT OBJECTED. THEY JUST WANTED AN

 

27 ACKNOWLEDGEMENT AS TO THE COSTS AND BENEFITS OF THE

 

28 TESTING AND DON’T HAVE ANY OBJECTION TO THAT. SO IT IS

 

 

 

 

12

 

 

1 REALLY NOT OVER THEIR OBJECTION, AND IT IS NOT BY

 

2 STIPULATION BUT IT IS BASED UPON A DEFENSE PROPOSAL.

 

3 MR. FLANAGAN: I DON’T THINK THAT THE DEFENSE HAS

 

4 TO ACKNOWLEDGE THE TRUTH OF ANY FACT IN THIS CASE IN

 

5 ORDER TO GET DISCOVERY. IT IS OUR POSITION THIS SHOULD

 

6 HAVE BEEN DONE 16 MONTHS AGO WHEN THE EVIDENCE WAS FRESH

 

7 AND NOTHING HAS TO BE SO EXPERIMENTAL.

 

8 BUT FOR THE PROSECUTION TO WANT US TO

 

9 ACKNOWLEDGE CERTAIN DIFFICULTIES IN THE PROCEDURE, JUST

 

10 UNILATERALLY WE HAVE TO ACKNOWLEDGE CERTAIN THINGS IN THE

 

11 PROCEDURE, WE ARE NOT GOING TO DO THAT. ALL WE HAVE

 

12 ASKED IS FOR A COURT ORDER FOR THE CORONER, AND WE ARE

 

13 ASKING THE COURT TO SIGN THIS ORDER.

 

14 WE WANT THE CORONER’S OFFICE TO USE BEST

 

15 EFFORTS. NOW, HOW MUCH MORE OF AN ACKNOWLEDGEMENT? WE

 

16 KNOW IT IS NOT A CERTAINTY THAT IT IS GOING TO BE

 

17 PERFECT, BUT TO USE BEST EFFORTS TO EXAMINE THE MATERIALS

 

18 IN THE MEDICAL EVIDENCE.

 

19 I DON’T WANT TO TAKE HALF OF THE EVIDENCE NOW

 

20 BECAUSE THE CORONER IS SAYING, “WE MIGHT NOT HAVE ENOUGH

 

21 TO TEST BUT ONE TIME.” I DON’T WANT TO COMPROMISE THIS

 

22 TESTING. WE WANT TO ACCOMPLISH IT.

 

23 WE HAVE ACKNOWLEDGED IT BY REQUESTING THIS

 

24 ORDER THAT THE CORONER DO IT PURSUANT TO PARAGRAPH 14,

 

25 THE PROCEDURE THAT THEY OUTLINED. AS A MATTER OF FACT, I

 

26 WENT THROUGH THAT PROCEDURE WITH JAIME LINTEMOOT WHEN I

 

27 MET WITH HER. I’VE MET WITH HER TWICE. AND I SAID TO

 

28 TAKE INTO CONSIDERATION A POSSIBLE DEGRADATION OF

 

 

 

 

13

 

 

1 PROPOFOL, WE OUGHT TO FIND OUT HOW IT DEGRADES IN A

 

2 SOLUTION WITH LIDOCAINE. AND THAT IS WHY I PROPOSED

 

3 50-50 BECAUSE THAT IS BASICALLY WHAT THE DOCTOR TOLD THE

 

4 POLICE THAT HE GAVE MICHAEL JACKSON ON THE DAY THAT HE

 

5 DIED, BASICALLY A 50-50 SOLUTION OF LIDOCAINE AND

 

6 PROPOFOL. TWO-AND-A-HALF CC’S OF PROPOFOL WITH SIMILAR

 

7 AMOUNT OF LIDOCAINE.

 

8 THEY DIDN’T ANALYZE IT FOR THE FIRST TIME FOR

 

9 ABOUT TEN DAYS TO TWO WEEKS. THE SAME DAY, THEY ANALYZED

 

10 ALL THE BODY FLUIDS. NOW, THEY QUANTIFIED PROPOFOL IN

 

11 THE VITREOUS HUMOR, URINE AND BLOOD. THEY COULD HAVE

 

12 QUANTIFIED IT ALL IN MEDICAL EVIDENCE 1 AND 2 AT THE

 

13 TIME. THEY DID NOT BECAUSE, ACCORDING TO WHAT THEIR

 

14 DECLARATION SAYS, THOSE FLUIDS IN THE SYRINGES WERE NOT

 

15 C.O.D., THE CAUSE OF DEATH. THEY ONLY ANALYZED

 

16 QUANTITATIVELY FOR CAUSE OF DEATH SIGNS IN THE TISSUE

 

17 FLUIDS OF JACKSON.

 

18 THEY COULD HAVE ANALYZED BACK AT THAT TIME OR

 

19 QUANTIFIED THE LIDOCAINE AND PROPOFOL IN THE SOLUTIONS,

 

20 BUT THEY DIDN’T. WE HAVE BEEN TRYING TO GET IT DONE FOR

 

21 A LONG TIME. WE DIDN’T EVEN GET TO TOXICOLOGY REPORTS IN

 

22 THIS CASE. I BELIEVE IT WAS FEBRUARY, OR MARCH, OR

 

23 APRIL.

 

24 THEN UNBEKNOWNST TO ME, THEY HADN’T

 

25 QUANTIFIED IT. I MET WITH JAIME LINTEMOOT, ASKED HER IF

 

26 YOU COULD GET QUANTITIES OR QUANTIFICATION DATA FROM THE

 

27 GRAPHS. SHE SAID SHE DIDN’T THINK SO.

 

28 I THEN WENT OUT, GOT ANOTHER CRIMINALIST AND

 

 

 

 

14

 

 

1 SUBMITTED ALL THE STUFF TO HIM TO SEE IF HE COULD

 

2 QUANTIFY IT, AND HE COULDN’T CONTACT LINTEMOOT DURING

 

3 SEPTEMBER BECAUSE SHE WAS IN CHINA. BUT HE CONTACTED HER

 

4 IN OCTOBER. AND AFTER TALKING WITH HER AND AFTER HIM

 

5 ANALYZING ALL OF THIS STUFF, THEY SAID, “YOU REALLY CAN’T

 

6 QUANTIFY FROM THIS DATA. THERE HAS TO BE TESTING DONE.”

 

7 HE SAID HIS LAB, FORENSIC TOXICOLOGY, THEY CAN’T DO THE

 

8 APPROPRIATE TESTING BECAUSE THE SOLUTION IN ONE OF THE

 

9 SYRINGES HAS DRIED UP. IT IS IN A CRYSTALLINE FORM. I

 

10 THINK THERE IS SOME FLUID IN ONE SYRINGE, AND I THINK

 

11 THERE IS FLUID IN THE I.V.

 

12 BUT HE THOUGHT THAT THERE WAS A LAB IN, I

 

13 THINK IT IS, COLORADO. HE TOLD ME ABOUT A DR. ROBERT

 

14 LANZ FROM THE ROCKY MOUNTAIN LABORATORIES IN COLORADO

 

15 MIGHT BE ABLE TO COME UP WITH A PROCEDURE.

 

16 THEN I GET THE FOUR-PAGE DECLARATION FROM

 

17 LINTEMOOT, AND SHE SAYS SHE THINKS SHE CAN DO IT. WELL,

 

18 I COULDN’T GET THAT KIND OF A COMMITMENT FROM ROCKY

 

19 MOUNTAIN LABORATORIES. THEY THOUGHT THEY COULD COME UP

 

20 WITH A PROCEDURE, AND I’M SURE THAT THEY ARE NO BETTER

 

21 THAN THE L.A. COUNTY CORONER’S LABORATORY.

 

22 SO IN VIEW OF THE LIMITATIONS THAT WE HAVE

 

23 RIGHT NOW, CHERNOFF AND I BOTH DECIDED LET’S HAVE THE

 

24 CORONER’S LABORATORY DO IT. THEY PROBABLY HAVE THE BEST

 

25 CHANCE OF DOING THE ANALYSIS OF ANYBODY BECAUSE AT LEAST

 

26 THEY WOULD HAVE ACCESS TO THE ENTIRE AMOUNT OF SOLUTION

 

27 LEFT OR THE ENTIRE AMOUNT OF CRYSTALS LEFT. WE WOULDN’T

 

28 HAVE CHAIN OF EVIDENCE CUSTODY OR PROBLEMS. WE WOULDN’T

 

 

 

 

15

 

 

1 HAVE TO FIGURE OUT HOW TO TRANSPORT. HOW DO YOU DIVIDE

 

2 AN EMPTY SYRINGE THAT HAS GOT A CRYSTALLINE RESIDUE IN

 

3 IT.

 

4 SO RATHER THAN GO THROUGH AND HAVE OUR OWN

 

5 LABORATORY DO IT, WE DECIDED LET’S JUST GET IT DONE BY

 

6 THE CORONER’S LABORATORY, WHICH IS SUPPOSEDLY A NEUTRAL

 

7 LABORATORY. THEY ARE GOING TO DO THEIR BEST EFFORTS. I

 

8 HAVE NO ONE ELSE THAT WILL DO A BETTER JOB.

 

9 BUT I DON’T WANT TO SIGN I ACKNOWLEDGE THAT

 

10 THIS IS ALL EXPERIMENTAL AND IT WILL DO ALL THIS STUFF.

 

11 WHY DO I NEED TO ACKNOWLEDGE ALL THIS STUFF? THE

 

12 DISTRICT ATTORNEY’S OFFICE ISN’T ACKNOWLEDGING ANYTHING.

 

13 IF THE ORDER IS SIGNED PURSUANT TO

 

14 STIPULATION, BOTH SIDES ARE AGREEING THAT THE CORONER CAN

 

15 USE THEIR BEST EFFORTS BY THEIR PROCEDURES THAT THEY HAVE

 

16 DRAFTED AND PUT FORTH IN THE DECLARATION. I DON’T SEE

 

17 WHAT ELSE IS NECESSARY. THAT’S OUR POSITION.

 

18 THE COURT: THE TWO ASPECTS OF ANY PROPOSED ORDER

 

19 THAT ARE IN PLAY RIGHT NOW HAS TO DO WITH LANGUAGE:

 

20 “THIS ORDER IS MADE

 

21 PURSUANT TO STIPULATION BY BOTH

 

22 SIDES IN THE ABOVE-ENTITLED

 

23 CASE.”

 

24 MR. FLANAGAN: YES.

 

25 THE COURT: I DON’T THINK IT HAS TO BE BY WAY OF

 

26 STIPULATION AS LONG AS IT IS NOT OPPOSED.

 

27 THE OTHER ASPECT HAS TO DO WITH THE LANGUAGE

 

28 PROPOSED BY THE PEOPLE:

 

 

 

 

16

 

 

1 “THE DEFENSE, BY SIGNING

 

2 BELOW, ACKNOWLEDGE HAVING READ

 

3 AND UNDERSTOOD THE DECLARATION,

 

4 AND SPECIFICALLY THE DEFENSE

 

5 ACKNOWLEDGE THE QUANTITATIVE

 

6 ANALYSIS OF THE LIMITED VOLUMES

 

7 OF MEDICAL EVIDENCE FLUIDS WOULD

 

8 BE EXPERIMENTAL. THAT

 

9 INTERPRETATION OF THE DATA MAY

 

10 BE DIFFICULT BASED ON FACTORS

 

11 SUCH AS DEGRADATION AND DILUTION

 

12 AND THAT THE DEFENSE REQUESTED

 

13 TESTING MAY CONSUME ALL OF THE

 

14 EVIDENCE OR ALTER THE ORIGINAL

 

15 EVIDENCE.”

 

16 I THINK YOU ARE AWARE OF THOSE

 

17 CONSIDERATIONS, CORRECT?

 

18 MR. FLANAGAN: I AM, BUT I DON’T WANT TO GO ON

 

19 RECORD STATING THAT.

 

20 THE COURT: BUT WE ARE ON THE RECORD.

 

21 MR. FLANAGAN: WELL, I’M ON THE RECORD FOR PURPOSES

 

22 OF TRYING TO GET THIS ORDER SIGNED, BUT WHY DOES THE

 

23 DEFENSE HAVE TO ACKNOWLEDGE ANYTHING?

 

24 THE COURT: I’M NOT SURE YOU HAVE TO, MR. FLANAGAN,

 

25 AS LONG AS YOU ARE AWARE OF IT AND YOU ARE ACKNOWLEDGING

 

26 IT FOR OUR PURPOSES. I DON’T KNOW WHETHER IT HAS TO BE

 

27 IN AN ORDER SIGNED BY THE COURT AS LONG AS THESE ARE

 

28 FACTORS THAT YOU AND MR. CHERNOFF HAVE CONSIDERED.

 

 

 

 

17

 

 

1 I CERTAINLY UNDERSTAND THE PEOPLE’S POSITION

 

2 THEY MAY NOT WANT TO STIPULATE TO IT. THAT DOESN’T MEAN

 

3 I DON’T SIGN THE ORDER. IT ALSO DOESN’T MEAN I’M SIGNING

 

4 THE ORDER OVER THEIR OBJECTION.

 

5 MR. FLANAGAN?

 

6 MR. FLANAGAN: I WOULD THINK THEY EITHER AGREE OR

 

7 THEY DON’T. IF THEY DON’T, IT IS OVER THEIR OBJECTION OR

 

8 MAYBE THEY WANT TO REMAIN MOOT.

 

9 THE COURT: WELL, I THINK THE POSITION OF MS.

 

10 BRAZIL AND MR. WALGREN HAS BEEN THAT THEY HAVE NO

 

11 OBJECTION TO RELEASING THIS AS LONG AS EVERYONE IS ON THE

 

12 SAME PAGE AND NO ONE CAN COME BACK AND SAY, “WHOOPS, WE

 

13 MADE A BAD TACTICAL CALL. WE WERE MISLED.”

 

14 I MEAN, I DON’T BELIEVE YOU WOULD EVER DO

 

15 SOMETHING LIKE THAT. I JUST DON’T THINK THAT LANGUAGE

 

16 HAS TO BE IN THE ORDER, MR. WALGREN AND MS. BRAZIL, AS

 

17 LONG AS THE DEFENSE IS AWARE OF IT.

 

18 SO, MR. WALGREN, IS IT THE PEOPLE’S POSITION

 

19 THAT THIS ORDER IS BY STIPULATION, OR IT IS JUST NOT

 

20 OPPOSED BY THE PEOPLE? THERE IS A DIFFERENCE.

 

21 MR. WALGREN: WELL, NUMBER ONE, IT IS NOT BY

 

22 STIPULATION, AND AGAIN I PUT THIS IN A LETTER. THERE

 

23 COULDN’T BE ANY CONFUSION ON THE DEFENSE’S PART. I

 

24 INDICATED OUR POSITION IN THE TWO OPTIONS AVAILABLE.

 

25 THE PEOPLE, HEARING THE DEFENSE POSITION, THE

 

26 PEOPLE FEEL THE BEST OPTION IS FOR THE DEFENSE TO TAKE

 

27 HALF AND CHOOSE THEIR LAB AND HAVE THE TESTING DONE.

 

28 WE DON’T STIPULATE TO IT. WE ARE NOT

 

 

 

 

18

 

 

1 OBJECTING TO IT. APPARENTLY, THEY DON’T WANT TO

 

2 ACKNOWLEDGE WHAT THEY KNOW TO BE THE TRUTH AND,

 

3 THEREFORE, WE THINK THEY SHOULD GO TO THEIR OWN PRIVATE

 

4 LAB, HAVE IT TESTED. NORMAL CASE LAW PROVIDES FOR HALF

 

5 OF IT TO GO TO THE DEFENSE. WE WILL DO THE SPLIT, AND

 

6 THEN WE WILL SAVE OUR HALF TO DO REBUTTAL TESTING.

 

7 BUT IF THEY ARE NOT GOING TO ACKNOWLEDGE —

 

8 THEY ARE CHOOSING THE CORONER TO DO THE TESTING, YET

 

9 WON’T ACKNOWLEDGE THAT THE CORONER IS TELLING THEM THERE

 

10 ARE PROBLEMS WITH THIS TESTING. IF THEY ARE NOT WILLING

 

11 TO ACKNOWLEDGE THAT, THEY SHOULD GO TO THE LAB IN

 

12 COLORADO AND HAVE IT DONE BY THE PRIVATELY HIRED LAB.

 

13 BUT FOR THEM NOT TO ACKNOWLEDGE THE DANGERS

 

14 AND THE RISKS THAT THE LAB, THE CORONER’S OFFICE, IS

 

15 TELLING THEM, FOR THEM NOT TO ACKNOWLEDGE THAT JUST SO

 

16 LATER ON IF THEY DON’T LIKE THE RESULT THEY CAN THEN

 

17 ATTACK THE CORONER’S OFFICE, IS INAPPROPRIATE, NOT FAIR,

 

18 AND IT IS NOT TRANSPARENT, AND THEY SHOULD JUST GO TO

 

19 THEIR OWN LAB. THEY HAVE EVERY RIGHT TO DO THAT.

 

20 MAYBE THEY DON’T WANT TO PAY FOR IT. I DON’T

 

21 KNOW WHAT THE CONCERN IS, BUT THEY HAVE EVERY RIGHT TO

 

22 TAKE HALF THE EVIDENCE AND GO TO THEIR OWN LAB. THEN WE

 

23 CAN END THIS DISCUSSION. THEY CAN HAVE HALF THE

 

24 EVIDENCE. FLY OUT THEIR CRIMINALIST OR LAB TECH FROM

 

25 COLORADO. THEY CAN MEET WITH THE CORONER’S OFFICE,

 

26 ARRANGE FOR TRANSPORT OF THE EVIDENCE, HALF OF THE

 

27 EVIDENCE, AND WE CAN GO FROM THERE.

 

28 THE COURT: MR. FLANAGAN?

 

 

 

 

19

 

 

1 MR. FLANAGAN: THE CORONER’S OFFICE SAYS THAT THEY

 

2 THINK THEY CAN DO IT. THERE ARE PROBLEMS WITH THE AMOUNT

 

3 AND THE FORM OF THE SAMPLE AVAILABLE. THE CORONER’S

 

4 OFFICE SAYS THEY CAN DO IT. WE ACCEPT THEM AT THEIR

 

5 DECLARATION. LET THEM MAKE THEIR BEST EFFORTS.

 

6 OF COURSE, WE UNDERSTAND THAT AND THE REASON

 

7 WHY THIS HAS BEEN SO SENSITIVE IS WHOEVER DOES THE

 

8 ANALYSIS IS GOING TO BE DESTROYING THE SAMPLE DURING THE

 

9 ANALYSIS.

 

10 MR. WALGREN: MAYBE. MAYBE NOT.

 

11 MR. FLANAGAN: NEITHER SIDE HAS TO ACKNOWLEDGE IT

 

12 TO THE OTHER SIDE. WE ARE ASKING THAT IT BE DONE

 

13 ACCORDING TO THE CORONER’S DECLARATION.

 

14 MR. WALGREN: YOU ARE DISPUTING THE DECLARATION.

 

15 MR. FLANAGAN: I DON’T WANT TO SET THE TERMS AND

 

16 CONDITIONS UNDER WHICH WE CAN HAVE A NEUTRAL ANALYSIS

 

17 DONE BY THE CORONER’S LAB. THE CORONER IS A NEUTRAL LAB.

 

18 I THINK THE COURT WOULD FEEL GOOD ABOUT APPOINTING THE

 

19 CORONER’S OFFICE TO DO THEIR BEST RESULT.

 

20 THE CORONER IS NOT WORKING FOR US, NOT

 

21 WORKING FOR THE D.A. I DIDN’T REALIZE UNTIL I TALKED

 

22 WITH THE CORONER, BUT THEY CONSIDER THEMSELVES TO BE A

 

23 NEUTRAL GROUP. I THINK BOTH SIDES ARE GOING TO BE STUCK

 

24 WITH THE RESULTS THAT THE CORONER COMES UP WITH, AND WE

 

25 ARE WILLING TO DO THAT.

 

26 THE COURT: AND FOR THAT REASON, MR. FLANAGAN, I AM

 

27 NOT DISPUTING YOUR REPRESENTATIONS RIGHT NOW, BUT I MUST

 

28 TELL YOU THAT IN A NUMBER OF CASES I HAVE HANDLED, THERE

 

 

 

 

20

 

 

1 HAVE BEEN ATTACKS ON VARIOUS FORENSIC REPRESENTATIVES OF

 

2 THE CORONER’S OFFICE AND THERE HAVE BEEN ATTACKS BASED

 

3 UPON THE FACT THAT, WELL, THESE ARE EMPLOYEES OF THE

 

4 COUNTY OF LOS ANGELES. THEY GET PAID BY THE SAME FUND

 

5 THAT THE DISTRICT ATTORNEY’S OFFICE GETS PAID, AND THE

 

6 ALLEGATION CAN BE RAISED AND SOME PEOPLE MAY EVEN THINK

 

7 SO. FACT FINDERS MAY EVEN THINK SO, THAT THEY ARE NOT

 

8 “NEUTRAL,” AS YOU MAY SAY.

 

9 YOU HAVE THE RIGHT TO HAVE AN INDEPENDENT

 

10 LABORATORY ANALYZE THE FORENSIC SAMPLES. FOR WHATEVER

 

11 TACTICAL OR STRATEGIC DECISION, YOU MAY CHOOSE NOT TO. I

 

12 THINK THAT DECISION SHOULD BE PART OF ANY ORDER SO THAT

 

13 NO ONE, NOT THE PEOPLE, OR NOT YOU, OR NOT SOMEONE AFTER

 

14 THE FACT CAN SAY THAT THERE WAS A MISUNDERSTANDING.

 

15 I DON’T THINK IT HAS TO BE BY STIPULATION,

 

16 BUT AT THE SAME TIME I AM PREPARED TO SIGN THE ORDER AS

 

17 LONG AS THE ORDER ACKNOWLEDGES THAT YOU HAVE CHOICES AND

 

18 OPTIONS AVAILABLE TO YOU AND THERE ARE LIMITATIONS AND

 

19 DANGERS AND DISADVANTAGES TO HAVING THE CORONER’S OFFICE

 

20 PERFORM THE ANALYSIS, INCLUDING THE LOSS OF ANY POSSIBLE

 

21 SAMPLE FOR RETESTING.

 

22 I DON’T SEE WHY IT CAN’T BE PART OF AN ORDER.

 

23 I DON’T SEE WHERE IT HARMS YOU, AND I DON’T THINK IT

 

24 MISSTATES ANYTHING THAT YOU HAVE SAID OR THAT THE CORONER

 

25 HAS SAID.

 

26 MR. FLANAGAN: WHY IS IT THAT THE ONLY PERSON TO DO

 

27 THIS ACKNOWLEDGING IS THE DEFENSE? THIS EVIDENCE, THE

 

28 ONLY REASON WHY IT IS TRICKY NOW IS BECAUSE EITHER THE

 

 

 

 

21

 

 

1 CORONER’S OFFICE, THE LAPD, OR THE DISTRICT ATTORNEY’S

 

2 OFFICE, ONCE THEY HAVE SEEN THE EVIDENCE, DIDN’T DO THIS

 

3 16 MONTHS AGO. THAT IS WHEN IT SHOULD HAVE BEEN DONE.

 

4 IF THERE ARE PROBLEMS WITH IT, IT IS NOT OUR

 

5 FAULT, AND I DON’T WANT TO ACKNOWLEDGE ANYTHING THAT

 

6 COULD BE USED BY THE PROSECUTION TO PLACE THE BLAME FOR

 

7 LACK OF ANALYSIS IN THIS CASE ON THE DEFENDANT.

 

8 MR. WALGREN: THERE IS NOTHING IN THE ORDER THAT

 

9 PLACES THE BLAME ANYWHERE NEAR THE DEFENDANT.

 

10 MR. FLANAGAN: THEN LET’S JUST DO THE — OR HAVE

 

11 THE ORDER SIGNED TO HAVE THE CORONER DO WHAT IT HAS

 

12 OUTLINED AND IT THINKS IT CAN DO. IT IS A WHOLE LOT

 

13 EASIER THAN TRYING TO DIVIDE UP A SOLUTION. WE DON’T

 

14 KNOW IF IT IS ENOUGH FOR ONE TESTING, MUCH LESS TWO

 

15 TESTINGS.

 

16 MR. WALGREN: WE ARE NOT LOOKING FOR THE EASIEST

 

17 WAY. WE ARE LOOKING FOR THE RIGHT WAY.

 

18 MR. FLANAGAN: IF YOU FEEL THAT THE CORONER’S

 

19 OFFICE DOES THE ANALYSIS, NEITHER SIDE HAS TO GO OUT AND

 

20 HAVE IT REANALYZED BY SOMEONE ELSE.

 

21 THE COURT: LET ME ASK YOU THIS. MR. FLANAGAN, DO

 

22 YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE

 

23 FOUR-PAGE DECLARATION SIGNED BY SUPERVISING CORONER’S

 

24 CRIMINALIST MR. ANDERSON AND SENIOR CORONER’S CRIMINALIST

 

25 MS. LINTEMOOT, THE DECLARATION OF NOVEMBER 4, 2010, WHICH

 

26 HAD BEEN IDENTIFIED AS EXHIBIT B. YOU READ AND

 

27 UNDERSTAND IT?

 

28 MR. FLANAGAN: I HAVE READ THAT DECLARATION.

 

 

 

 

22

 

 

1 THE COURT: AND UNDERSTOOD IT?

 

2 MR. FLANAGAN: AND UNDERSTOOD IT.

 

3 I TALKED IT OVER WITH MR. CHERNOFF. WE HAVE

 

4 DECIDED THAT IS PROBABLY OUR BEST CHANCE OF GETTING

 

5 ANALYSIS DONE IS GOING WITH THE CORONER.

 

6 THE COURT: AND YOU UNDERSTOOD IT?

 

7 MR. FLANAGAN: YES.

 

8 THE COURT: AND YOU RECOGNIZE THAT FOR WHATEVER

 

9 REASON THE QUANTITATIVE ANALYSIS OF WHATEVER IS REMAINING

 

10 MIGHT VERY WELL BE EXPERIMENTAL ACCORDING TO THAT

 

11 DECLARATION?

 

12 MR. FLANAGAN: I DON’T KNOW. THAT IS WHAT THE

 

13 DECLARATION SAYS. I DON’T KNOW IF THAT IS TRUE OR NOT.

 

14 THE COURT: BUT —

 

15 MR. FLANAGAN: I DON’T HAVE ANYONE ELSE THAT KNOWS

 

16 HOW TO DO THE PROCEDURE.

 

17 THE COURT: OKAY. BUT YOU HAVE READ THE

 

18 DECLARATION. YOU HAVE UNDERSTOOD IT. YOU HAVE TALKED TO

 

19 MS. LINTEMOOT ON A COUPLE OF OCCASIONS.

 

20 MR. FLANAGAN: YES.

 

21 THE COURT: HAS SHE EXPRESSED TO YOU THAT THIS TYPE

 

22 ANALYSIS WOULD OR COULD BE EXPERIMENTAL?

 

23 MR. FLANAGAN: NOT SO MUCH. SHE THINKS SHE CAN DO

 

24 IT. SHE SAID SHE THINKS SHE CAN DEVELOP A PROCEDURE.

 

25 SHE HAS TO DILUTE IT.

 

26 THE COURT: BUT SHE THINKS SHE CAN DEVELOP A

 

27 PROCEDURE. HAS SHE IN THE PAST EVER UNDERTAKEN THIS KIND

 

28 OF PROCEDURE?

 

 

 

 

23

 

 

1 MR. FLANAGAN: I DON’T KNOW.

 

2 THE COURT: ARE THE PEOPLE AWARE OF THAT?

 

3 MR. WALGREN: THE PEOPLE ARE AWARE THAT OUR

 

4 UNDERSTANDING IS SHE HAS NOT, AND SHE SIGNED A

 

5 DECLARATION SAYING IT IS EXPERIMENTAL.

 

6 THE COURT: THAT IS WHAT IS SPECIFICALLY INDICATED

 

7 IN THE DECLARATION, AND ALSO IT IS MY UNDERSTANDING THAT

 

8 THE DECLARATION INDICATES THAT THE INTERPRETATION OF THE

 

9 DATA MIGHT VERY WELL BE DIFFICULT AND IT WOULD BE

 

10 DIFFICULT POTENTIALLY BASED ON THE POTENTIAL DEGRADATION

 

11 AND DILUTION. THAT IS ALSO IN THE DECLARATION, ISN’T IT?

 

12 MR. FLANAGAN: AND THAT IS THE PURPOSE FOR THE

 

13 EXPERIMENT, TO SEE WHAT THE DEGRADATION WOULD BE.

 

14 THE COURT: IF AT ALL, AND IN FACT THAT THE TESTING

 

15 THAT IS REQUIRED OF ANY REMAINING FLUID OR OTHER FORENSIC

 

16 EVIDENCE MIGHT VERY WELL CONSUME ALL OF THE EVIDENCE OR

 

17 ALTER IT.

 

18 MR. FLANAGAN: THAT IS OUR MAIN MOTIVATION IN

 

19 HAVING THE CRIMINALIST, THE CORONER’S OFFICE, DO IT

 

20 BECAUSE IF THEIR ONE ANALYSIS — THE SERIES OF ANALYSES

 

21 THEY WANT TO DO. THEY WANT TO DO A COUPLE ANALYSES.

 

22 THEY HAVE TO TEST LIDOCAINE SEPARATELY FROM THE PROPOFOL

 

23 ACCORDING TO THE DECLARATION. I WOULD HATE TO DIVIDE IT,

 

24 THE SOLUTION, IN HALF AND THEN NEITHER SIDE HAVE ENOUGH

 

25 TO DO A VALID ANALYSIS.

 

26 THE COURT: BUT YOU RECOGNIZE THAT IS AN OPTION AND

 

27 THE COURT WOULD BE PREPARED TO SO ORDER.

 

28 MR. FLANAGAN: ORDER THE CORONER TO RELEASE IT TO

 

 

 

 

24

 

 

1 OUR LAB?

 

2 THE COURT: HALF OF IT TO ANY POTENTIAL DEFENSE

 

3 LAB, WHICH IS THE POINT.

 

4 MR. FLANAGAN: THAT WOULD NOT BE AN ORDER FOR

 

5 DESTRUCTION OF EVIDENCE. I DON’T KNOW IF HALF OF IT WILL

 

6 WORK. MAYBE THE CORONER’S OFFICE CAN DO HALF. MAYBE

 

7 THEY CAN ANALYZE HALF OF IT AND SAVE HALF OF IT, SO WE

 

8 COULD HAVE OUR LAB DO IT SECOND.

 

9 THE COURT: AGAIN, I THINK WE ARE NOW BACK TO EVEN

 

10 BEFORE WHERE WE STARTED.

 

11 MR. FLANAGAN: THEY HAVE GOT THE EVIDENCE. IF

 

12 ANALYSIS CAN BE DONE ON HALF THE EVIDENCE, THAT WOULD BE

 

13 GREAT. THEN WE COULD CHECK IT OUT. BUT I’M AFRAID THAT

 

14 IT MIGHT NOT BE ENOUGH TO EVEN DO IT ONCE, MUCH LESS ON

 

15 HALF OF IT.

 

16 THE COURT: WELL, YOU ARE ASKING THAT THE CORONER’S

 

17 OFFICE UNDERTAKE THIS TESTING ON WHATEVER REMAINING

 

18 FORENSIC SAMPLES MAY HAPPEN TO EXIST, RECOGNIZING THAT

 

19 WHATEVER TESTING MAY BE UNDERTAKEN MAY VERY WELL DEGRADE,

 

20 OR DILUTE, OR COMPROMISE, OR DESTROY ALL OF IT.

 

21 MR. FLANAGAN: I RECOGNIZE THEY HAVE MADE THAT

 

22 REPRESENTATION IN THE DECLARATION.

 

23 THE COURT: AND ARE YOU DISPUTING IT?

 

24 MR. FLANAGAN: THE DECLARATION, I THINK THAT SHOULD

 

25 TAKE CARE OF IT. I HAVE READ THEIR DECLARATION.

 

26 WHETHER I AGREE TO IT, I READ IT AND I UNDERSTAND IT AND

 

27 I HAVE MADE A CONSCIOUS DECISION. I’D LIKE TO SEE THEM

 

28 USE THEIR BEST EFFORTS. I THINK THIS TESTING SHOULD HAVE

 

 

 

 

25

 

 

1 BEEN DONE 16 MONTHS AGO WHEN IT WOULD HAVE BEEN MUCH

 

2 EASIER, BUT WE CAN’T RECREATE THAT. NOW LET’S TRY AND

 

3 STOP THE WASTING THAT IS GOING ON RIGHT NOW. ONE SYRINGE

 

4 IS DRY. I WOULD IMAGINE THE OTHER ONE IS ABOUT TO GO

 

5 DRY.

 

6 THE COURT: AS I LOOK AT THE PROPOSED VERSIONS, ALL

 

7 OF THEM ARE CONSISTENT AS IT RELATES TO UP THROUGH THE

 

8 END OF PARAGRAPH 3 WHERE THE LANGUAGE READS:

 

9 “SAID DECLARATION IS

 

10 ATTACHED THERETO AS EXHIBIT B.”

 

11 IS THAT THE PEOPLE’S UNDERSTANDING THAT

 

12 EVERYTHING IS CONSISTENT THERE OR NOT?

 

13 MR. WALGREN: I BELIEVE EVERYTHING IS CONSISTENT

 

14 EVEN FURTHER DOWN TO LINE 18, I BELIEVE, YOUR HONOR.

 

15 THE COURT: THE PORTIONS SAYING:

 

16 “IT IS FURTHER ORDERED THAT

 

17 THE LOS ANGELES POLICE

 

18 DEPARTMENT RELEASE A PORTION OF

 

19 THE FLUID PREVIOUSLY OBTAINED AS

 

20 A RESULT OF THE INVESTIGATION IN

 

21 THIS MATTER.”

 

22 MR. FLANAGAN: I THINK THAT IS VERY LAST PARAGRAPH

 

23 IN THE PROPOSED ORDER.

 

24 MR. WALGREN: ON THE LAST PAGE.

 

25 THE COURT: ON THE LAST PAGE. YOU KNOW, I THINK

 

26 EVERYTHING IS CONSISTENT WITH THE EXCEPTION OF:

 

27 “THIS ORDER IS MADE

 

28 PURSUANT TO STIPULATION BY BOTH

 

 

 

 

26

 

 

1 SIDES IN THE ABOVE-ENTITLED

 

2 CASE.”

 

3 I DON’T THINK THAT HAS TO BE PART OF ANY

 

4 ORDER. THE PEOPLE ARE NOT OBJECTING TO IT, SO I DON’T

 

5 THINK IT HAS TO BE PART OF ANY ORDER AND I’M PREPARED TO

 

6 DELETE IT.

 

7 LIKEWISE, I THINK IN VIEW OF THE

 

8 REPRESENTATIONS MADE BY MR. FLANAGAN TODAY, I DON’T THINK

 

9 IT IS NECESSARY FOR THERE TO BE A PARAGRAPH STARTING AT

 

10 PAGE 2 OF THE PEOPLE’S VERSION WHICH STARTS, “THE DEFENSE

 

11 BY SIGNING BELOW,” AND GOING THROUGH PAGE 3, LINE 2,

 

12 DEALING WITH CONSUMING.

 

13 I THINK MR. FLANAGAN HAS ACKNOWLEDGED THAT.

 

14 I DON’T THINK IT HAS TO BE PART OF IT.

 

15 WHAT DO YOU THINK, MR. WALGREN?

 

16 MR. WALGREN: THE QUESTION THAT RAISES THEN, I MEAN

 

17 THEY’RE ESSENTIALLY SETTING UP THE CORONER, ATTACKING THE

 

18 CORONER. IF MR. FLANAGAN IS OPERATING IN GOOD FAITH AND

 

19 WOULD JUST ACKNOWLEDGE EVERYTHING THAT IS WRITTEN THERE,

 

20 THERE WOULD BE NO REASON FOR HIM NOT TO SIGN IT.

 

21 MR. FLANAGAN: IF THE CORONER —

 

22 THE COURT: WAIT, MR. FLANAGAN. MR. FLANAGAN, JUST

 

23 WAIT.

 

24 ONE OF THE PROBLEMS WITH A PHONE

 

25 CONVERSATIONS IS WE ARE TALKING OVER EACH OTHER. SO BEAR

 

26 WITH ME FOR A MOMENT. JUST PAUSE, MR. FLANAGAN. MR.

 

27 WALGREN WANTED TO SAY SOMETHING. IT IS A PROBLEM FOR MS.

 

28 THEODOROU.

 

 

 

 

27

 

 

1 GO AHEAD, MR. WALGREN.

 

2 MR. WALGREN: IT IS THE PEOPLE’S POSITION THAT THE

 

3 DEFENSE CAN’T HAVE THEIR CAKE AND EAT IT, TOO. THEY

 

4 CAN’T INSIST ON THE CORONER DO TESTING FOR THEM AND THEN

 

5 NOT ACKNOWLEDGE THE VERY FACTS THAT THE CORONER IS

 

6 TELLING THEM AND THE VERY RISKS AND LIMITATIONS. THE

 

7 PEOPLE FEEL IT SHOULD BE PART OF ANY ORDER.

 

8 SHOULD THIS CASE GO TO TRIAL DOWN THE ROAD

 

9 AND MR. FLANAGAN IS NOT ON THE CASE ANYMORE AND THERE IS

 

10 NEW ATTORNEYS, WE JUST WANT ABSOLUTE CLARITY THAT BEFORE

 

11 THIS EVIDENCE IS DESTROYED, BEFORE THERE ARE ANY ISSUES

 

12 RAISED, THAT WE HAVE A SIGNED ACKNOWLEDGEMENT THAT THEY

 

13 ACKNOWLEDGE THE RISK. THIS IS ESSENTIALLY THE LAB THEY

 

14 ARE CHOOSING. THEY ARE CHOOSING THE CORONER TO DO THIS

 

15 TESTING. THE CORONER IS TELLING THEM THERE ARE RISKS AND

 

16 LIMITATIONS. WE ARE SIMPLY REQUIRING THAT THEY SIGN AND

 

17 ACKNOWLEDGE THOSE RISKS AND LIMITATIONS.

 

18 IT IS PEOPLE’S POSITION THAT IF THEY ARE NOT

 

19 WILLING TO DO THAT FOR A LAB THEY ARE CHOOSING, THEN THEY

 

20 SHOULD GO FIND THEIR PRIVATELY HIRED LAB. TAKE HALF OF

 

21 THE TESTING AND DO THE TESTING AS THEY SEE FIT.

 

22 I KNOW MR. FLANAGAN WILL RESPOND THAT HE

 

23 DOESN’T KNOW IF THEY CAN DO IT. THEN WE ARE PUTTING THE

 

24 CART BEFORE THE HORSE. IF THEY ARE NOT GOING TO AGREE TO

 

25 THIS, THEN THE FIRST THING THAT NEEDS TO BE RESEARCHED

 

26 AND DELVED INTO IS THE POSSIBILITY OF THEM HIRING A

 

27 PRIVATE LAB TO DO THIS.

 

28 THE PEOPLE FEEL STRONGLY THAT THEY NEED TO

 

 

 

 

28

 

 

1 SIGN AND ACKNOWLEDGE THE RISK INHERENT IN THIS TESTING.

 

2 WE ARE NOT REQUESTING THIS TESTING.

 

3 THE COURT: MR. FLANAGAN?

 

4 MR. FLANAGAN: THIS TEST SHOULD HAVE BEEN DONE 16

 

5 MONTHS AGO BY THE CORONER’S OFFICE AT THE REQUEST OF THE

 

6 PROSECUTION. THE PROSECUTION COULD WALK IN THE CORONER’S

 

7 OFFICE AND ASK THEM TO DO A TEST.

 

8 I AM NOT GOING TO ACKNOWLEDGE ANYTHING.

 

9 I DO ACKNOWLEDGE ON THE RECORD THAT I HAVE

 

10 READ THE DECLARATION OF THE CORONER, AND I UNDERSTAND

 

11 WHAT THEIR POSITION IS. I’M NOT GOING TO ACKNOWLEDGE THE

 

12 TRUTH OR VERACITY OF IT.

 

13 BUT I HAVE ALSO MADE A DECISION THAT THEY

 

14 PROBABLY HAVE THE BEST CHANCE OF DOING THE ANALYSIS NOW

 

15 THAT SHOULD HAVE BEEN DONE A LONG TIME AGO. I DON’T WANT

 

16 TO ACKNOWLEDGE ANYTHING THAT TAKES THE PROSECUTION OFF OF

 

17 THE HOOK FOR NOT HAVING DONE THIS A LONG TIME AGO.

 

18 THE COURT: WELL, THEN I BELIEVE THE APPROPRIATE

 

19 LANGUAGE IN THE PROPOSED VERSION BY THE PEOPLE CERTAINLY

 

20 CAN START OFF:

 

21 “THE DEFENSE, BY SIGNING

 

22 BELOW, ACKNOWLEDGES HAVING READ

 

23 AND UNDERSTOOD THE ATTACHED

 

24 FOUR-PAGE DECLARATION SIGNED BY

 

25 SUPERVISING CORONER’S

 

26 CRIMINALIST DANIEL T. ANDERSON

 

27 AND SENIOR CORONER’S CRIMINALIST

 

28 JAIME LINTEMOOT ON NOVEMBER 4,

 

 

 

 

29

 

 

1 2010 (EXHIBIT B). MORE

 

2 SPECIFICALLY, THE DEFENSE

 

3 ACKNOWLEDGES,” AND I THINK THE

 

4 LANGUAGE HERE SHOULD BE, “THAT

 

5 THE DECLARATION INDICATES THAT

 

6 THE QUANTITATIVE ANALYSIS OF THE

 

7 LIMITED VOLUMES OF MEDICAL

 

8 EVIDENCE FLUIDS WOULD BE

 

9 EXPERIMENTAL,” DOT, DOT, DOT.

 

10 “THAT THE DECLARATION

 

11 INDICATES THAT INTERPRETATION OF

 

12 THE DATA MAY BE DIFFICULT BASED

 

13 ON FACTORS SUCH AS DEGRADATION

 

14 AND DILUTION,” DOT, DOT, DOT.

 

15 “AND THAT THE DECLARATION

 

16 INDICATES THAT THE DEFENSE

 

17 TESTING MAY CONSUME ALL OF THE

 

18 EVIDENCE OR ALTER ORIGINAL

 

19 EVIDENCE,” DOT, DOT, DOT.

 

20 THAT DOES NOT, OF COURSE, LEAVE OFF THE HOOK

 

21 THE ISSUE OF WHETHER, IN FACT, THE TESTING SHOULD HAVE

 

22 BEEN UNDERTAKEN BY THE D.A.’S OFFICE AND/OR THE CORONER’S

 

23 OFFICE AT AN EARLIER POINT IN TIME. IT DOESN’T PRECLUDE

 

24 THAT AVENUE FROM BEING EXPLORED, BUT WHAT IT DOES

 

25 ACKNOWLEDGE IS THE PRESENT STATE OF THE AFFAIRS. THAT

 

26 THE DECLARATION INDICATES THAT WHAT IS CONTAINED IN IT IS

 

27 AN ALL-CONSUMING FACT.

 

28 MR. FLANAGAN: WHY DO I HAVE TO ACKNOWLEDGE THE

 

 

 

 

30

 

 

1 PRESENT STATE OF AFFAIRS?

 

2 THE COURT: BECAUSE IT IS YOUR ORDER. IT IS YOUR

 

3 REQUEST THAT THE CORONER’S OFFICE UNDERTAKE THIS TESTING

 

4 AND THAT THERE ARE, ACCORDING TO THE ASPECTS OF THE

 

5 DECLARATION, DANGERS AND DISADVANTAGES OF IT.

 

6 MR. FLANAGAN: I’M NOT GOING TO ACKNOWLEDGE THAT.

 

7 I WILL MAKE A FORMAL MOTION FOR A REQUEST THAT THE

 

8 CORONER BE ORDERED TO ANALYZE THE SOLUTION.

 

9 THE COURT: OKAY. THE BOTTOM LINE IS THIS. I’M

 

10 PREPARED TO SIGN THE PROPOSED ORDER, EXCLUDING ANY

 

11 MENTION THAT IT IS PURSUANT TO STIPULATION, AND INCLUDING

 

12 THE LANGUAGE PROPOSED BY THE PEOPLE AT PAGE 2, STARTING

 

13 AT LINE 19 AND ENDING AT PAGE 3, LINE 2, WITH ANY

 

14 INDICATION THAT THE DEFENSE ACKNOWLEDGES NOT THAT THESE

 

15 THINGS ARE TRUE BUT THAT THE DECLARATION INDICATES THOSE

 

16 WARNINGS.

 

17 SO THAT THE DEFENSE CAN MAKE ITS CHOICE ABOUT

 

18 WHETHER IT WANTS TO RELY UPON THE CURRENT STATE, WHETHER

 

19 IT WANTS TO GO TO ANOTHER LABORATORY OR NOT, BUT IT

 

20 DOESN’T PRECLUDE THE DEFENSE FROM TAKING THE POSITION

 

21 THAT YOU VOICED THAT THIS TYPE OF TESTING SHOULD HAVE

 

22 BEEN UNDERTAKEN AT AN EARLIER POINT IN TIME.

 

23 MY PROPOSED REVISIONS DON’T PRECLUDE THE

 

24 DEFENSE FROM DOING IT, BUT THEY DO MAKE IT VERY CLEAR

 

25 THAT WHETHER YOU REMAIN AS COUNSEL ON THE CASE, WHETHER

 

26 SOMEONE ELSE TAKES OVER, OR WHETHER THIS REACHES ANOTHER

 

27 COURT, THE COURT IS CLEARLY MADE AWARE OF THE FACT THAT

 

28 THIS IS A TACTICAL AND STRATEGIC DECISION.

 

 

 

 

31

 

 

1 SO IF THE DEFENSE IS UNCOMFORTABLE OR

 

2 UNWILLING TO ABIDE BY MY PROPOSED ORDER, I SIMPLY WON’T

 

3 SIGN IT HIM.

 

4 MR. FLANAGAN: OKAY. I DON’T WANT YOU SIGNING IT.

 

5 THE COURT: OKAY. I’M JUST GOING TO INDICATE THAT

 

6 AS PROPOSED BY THE DEFENSE, THE COURT DECLINES TO SIGN

 

7 THE ORDER, AND LIKEWISE THE COURT DECLINES TO SIGN THE

 

8 PEOPLE’S PROPOSED ORDER. SO WE ARE BACK IN A STATUS QUO

 

9 ANTE POSITION.

 

10 MR. FLANAGAN: I WOULD MAKE FORMAL MOTION FOR THE

 

11 DISCOVERY.

 

12 THE COURT: I THINK THAT IS WHAT THIS IS, QUITE

 

13 FRANKLY.

 

14 MR. FLANAGAN: I’LL SET FORTH A DECLARATION OF

 

15 WHAT MY PERCEPTION OF WHAT THAT IS, WHAT HAS TRANSPIRED

 

16 TODAY —

 

17 THE COURT: OKAY.

 

18 MR. FLANAGAN: — WHICH WILL SET FORTH THE URGENCY

 

19 AND THE FACT THAT WE HAVE BEEN TRYING TO GET THIS

 

20 ANALYZED FOR MONTHS NOW, AND WE HAVE BEEN FRUSTRATED BY

 

21 THE PROSECUTION.

 

22 I WOULD HAVE THOUGHT THEY WOULD HAVE ASKED TO

 

23 BE DONE A LONG TIME AGO, AND NOW THEY ARE NOT WILLING TO

 

24 GO ALONG WITH IT UNLESS WE ACKNOWLEDGE THAT THERE IS

 

25 PROBLEMS. THESE PROBLEMS WERE CAUSED BY THEM, AND I

 

26 DON’T KNOW WHAT THE PROBLEMS ARE AND I’M CERTAINLY NOT

 

27 GOING TO ACKNOWLEDGE THE PROBLEMS.

 

28 WE EITHER ARE GOING TO JUST HAVE AN ORDER FOR

 

 

 

 

32

 

 

1 ANALYSIS AND GET IT DONE, OR WE WILL JUST MAKE A FORMAL

 

2 MOTION AND LET YOU JUST OVERRULE THAT OR GRANT IT, BUT I

 

3 THINK MAYBE THIS IS SOMETHING WE SHOULD HEAR IN OPEN

 

4 COURT.

 

5 THE COURT: THAT IS FINE WITH ME. I CERTAINLY AM

 

6 PREPARED TO HEAR AND CONSIDER EVERYTHING THAT IS

 

7 PRESENTED TO ME.

 

8 YOU HAVE MADE VARIOUS REPRESENTATIONS THAT,

 

9 FOR WHATEVER REASON, THE PEOPLE COULD OR SHOULD HAVE DONE

 

10 THIS AND THAT, IN FACT, IF ANY SUCH TESTING WERE DONE AT

 

11 AN EARLIER POINT IN TIME, IT MIGHT BE DIFFERENT THAN IT

 

12 IS RIGHT NOW. I DON’T KNOW. I THINK I SAID THAT THE

 

13 LAST TIME WE WERE SPEAKING. I DON’T KNOW IF, IN FACT,

 

14 THAT IS THE CORRECT STATE OF THE SCIENCE.

 

15 SO FEEL FREE TO FILE ANY MOTION. WE CAN HEAR

 

16 IT IN OPEN COURT. I’M READY TO HEAR IT AT ANY

 

17 APPROPRIATE TIME. YOU HAVE INDICATED THIS WILL NOT

 

18 IMPACT THE PRELIMINARY HEARING. OBVIOUSLY, I WANT TO DO

 

19 IT AS EXPEDITIOUSLY AS POSSIBLE. YOU KNOW WHERE TO FIND

 

20 ME. SUBMIT THE PROPOSED ORDER, AND WE WILL CALENDAR AN

 

21 APPROPRIATE TIME AS EARLY AS POSSIBLE.

 

22 MR. FLANAGAN: OKAY.

 

23 THE COURT: SO THESE PROCEEDINGS ARE PART OF THE

 

24 PUBLIC RECORD. THEY ARE NOT ORDERED SEALED AND WILL BE

 

25 MADE AVAILABLE, AND THE PROPOSED ORDERS ARE ALSO PART OF

 

26 THE PUBLIC FILE IN THIS CASE. THEY WON’T BE SEALED.

 

27 MR. FLANAGAN: OKAY.

 

28 THE COURT: SO IT IS PRETTY MUCH IN EACH SIDE’S

 

 

 

 

33

 

 

1 COURT RIGHT NOW AS TO THE NEXT STEP.

 

2 MR. FLANAGAN: OKAY.

 

3 THE COURT: ALL RIGHT.

 

4 MR. FLANAGAN: THAT IS FINE.

 

5 THE COURT: IS THERE ANYTHING ELSE WE SHOULD BE

 

6 DISCUSSING IN THIS REGARD, MR. FLANAGAN?

 

7 MR. FLANAGAN: NOT THAT I’M AWARE OF.

 

8 THE COURT: MR. WALGREN?

 

9 MR. WALGREN: I DON’T BELIEVE SO, YOUR HONOR.

 

10 THE COURT: MS. BRAZIL?

 

11 MS. BRAZIL: NO, YOUR HONOR.

 

12 THE COURT: THANK YOU, ALL. GOODBYE.

 

13

 

14 (END OF IN CAMERA PROCEEDINGS.)

 

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