P V CM February 15th 2011

 

PARTIES PRESENT: DEFENDANT CONRAD ROBERT MURRAY, NOT PRESENT, REPRESENTED BY EDWARD CHERNOFF, AND J. MICHAEL FLANAGAN,

 

PEOPLE REPRESENTED BY DAVID WALGREN AND DEBORAH BRAZIL, DEPUTIES DISTRICT ATTORNEY,

 

 (ALSO PRESENT IS EUGENE PATRICK HARRIS, AND NAREG GOURJIAN)

 

 

THE COURT:   WE HAVE SOME MATTERS TO ADDRESS.   YESTERDAY AFTERNOON, THE COURT WAS PROVIDED WITH A FORM INDICATING THAT MR. GOURJIAN WOULD BE SUBSTITUTING IN TO JOIN MESSRS. FLANAGAN AND CHERNOFF.   IS THAT CORRECT?

 

MR. GOURJIAN:   THAT IS CORRECT YOUR HONOR.

 

THE COURT:   AND VERY SHORTLY AFTER WE RECEIVED THE FORM, MS. BENSON GOT A PHONE CALL FROM THE OFFICES OF GERAGOS & GERAGOS.

 

THE CLERK:   YES, YOUR HONOR.

 

THE COURT:   I SEE MR. HARRIS IS HERE.   DO YOU WANT TO BE HEARD ON SOME ISSUE, MR. HARRIS?

 

MR. HARRIS:   I DO NEED TO —

THE COURT:   WOULD YOU INTRODUCE YOURSELF.

 

MR. HARRIS:   PAT HARRIS.   GOOD AFTERNOON, YOUR HONOR.   I AM REPRESENTING THE OFFICES OF GERAGOS & GERAGOS.

 

THE COURT:   GOOD AFTERNOON, MR. HARRIS.

 

MR. HARRIS:   WHAT WE HAD CALLED MS. BENSON ON, AND WHAT WE JUST WANT TO PUT ON THE RECORD WITH THE COURT, WE DO UNDERSTAND MR. GOURJIAN HAS BEEN RETAINED. AS THE COURT KNOWS, MR. GOURJIAN WAS FOR A NUMBER OF YEARS AN ATTORNEY WITH OUR FIRM.

 

THE COURT:   I DID NOT KNOW THAT, ACTUALLY.

 

MR. HARRIS:   I WILL REPRESENT TO THE COURT HE WAS AN ATTORNEY WITH OUR FIRM FOR A NUMBER OF YEARS.   OUR POSITION IS THAT WE BELIEVE THERE MAY BE A CONFLICT.   I WANT TO MAKE IT CLEAR TO THE COURT WE DON’T KNOW THAT THERE IS. WE FEEL LIKE IT WAS OUR DUTY TO DISCLOSE IT, HOWEVER.   AND WE FEEL LIKE HOWEVER THE COURT WISHES TO ADDRESS IT, WE WILL BE HAPPY TO COOPERATE. THIS FIRM HAS A GREAT AMOUNT OF RESPECT FOR MR. GOURJIAN.   WE KNOW HE IS AN EXCELLENT ATTORNEY WITH THE HIGHEST ETHICS.   WE FELT IT WAS OUR DUTY TO DISCLOSE OUR RELATIONSHIP GIVEN OUR PAST REPRESENTATION OF MR. JACKSON.   SO THEREFORE, WHATEVER THE COURT WISHES TO DO, WHETHER THE COURT WISHES TO GO FURTHER WITH IT OR HAVE HEARINGS OR WHATEVER IS NECESSARY, WE DID FEEL LIKE IT WAS OUR DUTY TO DISCLOSE.   THAT IS THE ISSUE.

 

THE COURT:   AS ALWAYS, COUNSEL ARE WAY AHEAD OF ME. YOU ARE INDICATING THAT THE FIRM OF GERAGOS & GERAGOS REPRESENTED THE DECEDENT, MICHAEL JACKSON.

 

MR. HARRIS:   WE DID FOR A TIME PERIOD OF ABOUT TWO YEARS, YES.   I BELIEVE THE TIME PERIOD, GIVE OR TAKE A LITTLE BIT, WAS ABOUT 2003 TO 2005, SOMEWHERE IN THAT NEIGHBORHOOD.

 

THE COURT:   MR. GOURJIAN, I DON’T KNOW YOUR POSITION ON THIS.   I HAVEN’T YET ACCEPTED YOUR REQUEST TO SUB IN.   I DON’T KNOW IF THIS IS SOMETHING WE SHOULD BE ADDRESSING NOW, HOW IT PLAYS OUT, WHETHER THE REPRESENTATIVE OF THE ESTATE OF MR. JACKSON — I THINK THAT IS MR. HOWARD WEITZMAN WHO REPRESENTS THE ESTATE. I DON’T KNOW IF THERE IS SOME ISSUE HERE OF LOYALTY TO MICHAEL JACKSON AND AT THE SAME TIME LOYALTY TO CONRAD MURRAY.

 

MR. CHERNOFF:   ARE YOU SPEAKING OF CONFLICT, JUDGE?

THE COURT:   YES.

 

MR. CHERNOFF:   WELL, WE HAVE RESOLVED — CERTAINLY, WE ARE NOT GOING TO PUT MR. GOURJIAN IN A POSITION TO STEP IN TO REPRESENT CONRAD MURRAY IF WE THOUGHT THIS WAS A CONFLICT OF INTEREST ISSUE.   WE DID THAT RESEARCH PRIOR TO ESTABLISHING THIS RELATIONSHIP.   WE DON’T SEE A CONFLICT OF INTEREST, ASSUMING ONE WOULD SURVIVE.   WE CAN BRIEF THAT POINT FOR YOU, IF YOU LIKE. BUT IF THAT IS THE ONLY ISSUE, IF THAT IS THE ONLY ISSUE WE ARE REFERRING TO, I DON’T SEE THERE WILL BE A PROBLEM WITH THAT.

 

THE COURT:   I DON’T KNOW.   I DON’T KNOW IF YOU FEEL COMFORTABLE IN MAKING SOME STATEMENT AT THIS POINT, MR. GOURJIAN.   I DON’T KNOW MR. GOURJIAN’S RELATIONSHIP WITH THE LAW FIRM OF GERAGOS & GERAGOS WHERE MR. HARRIS IS AN ESTEEMED LAWYER. I DON’T KNOW ANYTHING ABOUT MR. GOURJIAN’S, IF ANY, REPRESENTATION OF MICHAEL JACKSON, HIS RELATIONSHIP, AND ANYTHING HAVING TO DO WITH CONRAD MURRAY.

 

MR. GOURJIAN:   YOUR HONOR, IF IT PLEASES THE COURT, I DON’T MIND GIVING A STATEMENT.   I’M NOT SURE WHAT THE PROPER PROCEDURE IS.   I DON’T THINK THERE IS A MOTION PENDING BEFORE THE COURT THAT DISQUALIFIES ME IN ANY MANNER. JUST SO THE COURT IS AWARE, I WAS EMPLOYED AT MARK GERAGOS’S OFFICE, DURING WHICH TIME HE DID REPRESENT MICHAEL JACKSON, BUT I WAS NO WAY INVOLVED IN THAT CASE. MY INVOLVEMENT WAS MINIMAL, IF ANY, ON THAT CASE.   I WAS A BRAND-NEW LAWYER, FIRST OR SECOND YEAR.   I WAS NOT LEAD ATTORNEY.   I WAS NOT SECOND, THIRD, OR FOURTH CHAIR ON   THAT CASE. THAT CASE HAPPENED TO BE AT THE SAME TIME THE SCOTT PETERSON CASE WAS PENDING.   I ACTUALLY PRACTICALLY MOVED MYSELF TO MODESTO, THEN TO SAN MATEO. I DID VERY LITTLE ON THE MICHAEL JACKSON CASE.   I DON’T THINK I REVIEWED ANY DISCOVERY.   I NEVER MET WITH THE PROSECUTOR ON THAT CASE.   SO THERE IS NO CONFLICT IN MY OPINION. IF THE COURT WOULD LIKE, WE CAN SUBMIT A BRIEF TO YOUR HONOR, BUT I DON’T THINK THAT IS RELEVANT   HERE.   I DO KNOW I HAVE CHECKED WITH TWO OUTSIDE INDEPENDENT ATTORNEYS, AND THEY HAVE ADVISED ME MR. GERAGOS’S OFFICE HAS ZERO LIABILITY IN THIS CASE, AND THAT THERE IS NO CONFLICT AS IT PERTAINS TO ME AND MY REPRESENTATION OF CONRAD MURRAY. I DON’T EVEN THINK CONRAD MURRAY WAS PRESENT AT THE TIME OF THE CHILD MOLESTATION CHARGES AGAINST MICHAEL JACKSON BACK IN 2000 TO 2004, SO THERE WAS NO INFORMATION THAT I COULD HAVE BEEN PRIVY TO THAT COULD IN ANY WAY BE CONFIDENTIAL OR IN ANY WAY DAMAGING TO MICHAEL JACKSON IN THIS PARTICULAR CASE.

 

THE COURT:   MY CONCERN IS NOT WITH THE LIABILITY OF THE LAW OFFICE. MY CONCERN IS WITH THE PROFESSIONAL RULES OF CONDUCT, AND I HAVE BEFORE ME RULE 3.310(E) OF THE CALIFORNIA RULES OF PROFESSIONAL CONDUCT, WHICH STATES: “A MEMBER SHALL NOT, WITHOUT THE INFORMED WRITTEN CONSENT OF THE CLIENT OR FORMER CLIENT, ACCEPT EMPLOYMENT ADVERSE TO THE CLIENT OR FORMER CLIENT WHERE, BY REASON OF THE   REPRESENTATION OF THE CLIENT OR FORMER CLIENT, THE MEMBER HAS OBTAINED CONFIDENTIAL INFORMATION MATERIAL TO THE EMPLOYMENT.” I’M SURE YOU ARE FAMILIAR WITH THIS RULE, MR. GOURJIAN.

 

MR. GOURJIAN:   I AM, YOUR HONOR.

 

THE COURT:   DO YOU FEEL IN ANY WAY, SHAPE, OR FORM THERE IS ANY APPLICABILITY OF THIS RULE TO YOUR RETENTION IN THIS CASE?

 

MR. GOURJIAN:   ABSOLUTELY NOT.

 

MR. HARRIS:   FOR THE RECORD, YOUR HONOR, WE ARE OBVIOUSLY NOT MAKING ANY KIND OF MOTION FOR DISQUALIFICATION.   WE CHECKED WITH OUR ETHICS ATTORNEY WHO JUST TOLD US THAT OUR PROPER PATH WAS TO COME AND NOTIFY THE COURT, TO GIVE NOTICE TO THE COURT, AND THAT IS WHAT WE ARE DOING TODAY.   BUT WE CERTAINLY ARE NOT ASKING FOR DISQUALIFICATION.

 

THE COURT:   I KNOW THE PEOPLE DON’T HAVE STANDING. I’M JUST WONDERING IF YOU HAVE SOME THOUGHTS ON THE ISSUE.   I DON’T KNOW WHETHER YOU WERE AWARE OF THIS ISSUE BEFORE YOU CAME IN TODAY, MR. WALGREN AND MS. BRAZIL.

 

MR. WALGREN:   NO, YOUR HONOR.   THANK YOU. WE ARE JUST LEARNING THIS FROM THE COURT.   WE KNEW COUNSEL — WE GOT NOTICE THAT HE WAS THOUGHT TO ASSOCIATE INTO THE CASE.   WE DID NOT KNOW ABOUT THIS PRIOR REPRESENTATION OR THAT HE HAD ANY INVOLVEMENT WITH THAT. IT DOES RAISE SUBSTANTIAL CONCERNS FOR THE PEOPLE, AND I THINK IT DOES NEED TO BE FULLY AIRED OUT AND BRIEFED.   AND, YOU KNOW, WE MAY NEED TO HEAR FROM LEAD COUNSEL ON THAT CASE, MR. GERAGOS, TO GET MORE DETAILS ABOUT THE REPRESENTATION BY THE FIRM IF HE WAS THE ONE DIRECTLY INVOLVED. BUT AS WITH OTHER POTENTIAL CONFLICT ISSUES IN THIS CASE THAT WE HAD RAISED PREVIOUSLY, YOUR HONOR, IT CERTAINLY RAISES CONCERNS OF THE PEOPLE AND WE CERTAINLY FEEL THAT IT NEEDS MORE, TO BE MORE FULLY DELVED INTO AND DEVELOPED, THAN IS TAKING PLACE HERE TODAY. WITH THAT, I WOULD JUST SAY THE PEOPLE ARE CONCERNED BY NOT KNOWING MORE DETAILS.

 

THE COURT:   I DON’T HAVE THE INFORMATION, AND I APPRECIATE THE INPUT.   CERTAINLY, WE UNDERSTAND THAT. “AN ATTORNEY IS PROHIBITED FROM ENGAGING IN A FORMER CLIENT CONFLICT OF INTEREST EVEN WHEN THE FORMER CLIENT IS DECEASED,

 AS LONG AS THE FORMER CLIENT’S INTERESTS SURVIVE HIS OR HER DEATH AND ARE ADVERSE TO THE CURRENT CLIENT DURING THE SUBSEQUENT REPRESENTATION.” CIRCUMSTANCES OF THIS CASE ARE SUCH THAT THE ISSUE HAS BEEN RAISED.   I THINK THIS COURT SHOULD NOTIFY COUNSEL FOR THE ESTATE OF MICHAEL JACKSON.   I BELIEVE THAT IS HOWARD WEITZMAN, ALTHOUGH I MAY BE WRONG.   I THINK THE COURT NEEDS TO HEAR FURTHER ABOUT THIS SO IT’S COMFORTABLE IN EVALUATING THE REPRESENTATIONS MADE BY THE ATTORNEYS IN THIS CASE. I WANT TO BE FAIR TO MR. GOURJIAN.   I WANT TO BE FAIR TO MR. CHERNOFF, AND MR. FLANAGAN, AND DR. MURRAY ON THE ONE HAND.   I WANT TO BE FAIR TO THE PEOPLE OF THE STATE OF CALIFORNIA AND ALSO TO THE LAW OFFICES OF GERAGOS & GERAGOS. SO IN VIEW OF THE FACT THIS HAS BEEN RAISED,I WANT TO ADDRESS IT AND I NEED TO ADDRESS IT IN MORE DETAIL.   ONE WAY TO ADDRESS IT IS CERTAINLY TO HAVE COUNSEL FORM MICHAEL JACKSON’S ESTATE EXPRESS ANY 1   CONCERNS OR LACK OF CONCERNS REGARDING WHAT HAS GONE ON. I DON’T KNOW, MR. HARRIS, IF MR. GERAGOS OR SOME OTHER MEMBERS OF YOUR FIRM SHOULD APPEAR IN THE FUTURE SO IF WE HAVE TO HEAR ANY FURTHER REPRESENTATIONS, WE CAN HEAR IT FROM ANOTHER SOURCE. DID YOU WORK WITH MR. GOURJIAN ON ANYTHING HAVING TO DO WITH MR. JACKSON?

 

MR. HARRIS:   I DIDN’T ACTUALLY WORK ON MICHAEL VERY MUCH MYSELF.   I MYSELF WAS NOT VERY INVOLVED WITH IT.   I DID A FEW THINGS HERE AND THERE, BUT MR. GOURJIAN IS CORRECT THAT HE WAS ASSIGNED TO SCOTT PETERSON.   THAT WAS THE CASE THAT I DID WORK WITH MR. GOURJIAN QUITE A BIT ON.

 

THE COURT:   SOME OTHER THOUGHTS, MR. GOURJIAN, MR. CHERNOFF, AND MR. FLANAGAN?

 

MR. CHERNOFF:   OTHER THAN YOU SPEAKING TO MR. WEITZMAN OR SOMEBODY FROM THE ESTATE, IS THERE SOMETHING YOU WOULD LIKE US TO DO TO HELP ALLAY YOUR FEARS IN THIS CASE?

 

THE COURT:   WELL, THIS IS GOING TO BE A FACT SPECIFIC DETERMINATION.   CERTAINLY, YOU CAN PROVIDE THE COURT, AND I WOULD ENCOURAGE YOU TO PROVIDE THE COURT,   WITH ANY ANALYSIS ON THE ISSUES THAT MAY HAVE BEEN RAISED.   CERTAINLY, FROM WHAT I JUST HEARD FROM THE DEFENSE, THE DEFENSE HAD SOME AWARENESS OF THE POTENTIAL HERE.

 

MR. CHERNOFF:   ABSOLUTELY.   WE ADDRESSED IT EARLY ON.   IT IS OUR UNDERSTANDING THAT THE CASES WOULD HAVE TO   BE SUBSTANTIALLY RELATED.   I DON’T BELIEVE THEY ARE IN ANY RESPECT.   WE ARE TALKING ABOUT SOMETHING FAR, FAR, A LONG TIME AGO.   MR. JACKSON IS NOT A PARTY IN THIS CASE. HE IS AN ALLEGED VICTIM. WE WOULD BE HAPPY TO GIVE YOU CASE LAW.   IF YOU WOULD LIKE US TO DO THAT, WE WILL BE HAPPY TO DO THAT.   BUT I THINK ULTIMATELY, WHEN IT IS ALL SHUFFLED OUT, YOU ARE GOING TO SEE THERE IS NO CONFLICT.

 

THE COURT:   WELL, YOU ARE CORRECT, MR. CHERNOFF, THE ISSUE IS WHETHER THE PRIOR REPRESENTATION IS WHAT IS CHARACTERIZED AS “SUBSTANTIALLY RELATED” TO THE CURRENT REPRESENTATION. IN MAKING THAT DECISION, THE COURT NEEDS TO DECIDE WHETHER THE DEFENSE IN THIS CASE WOULD REQUIRE THE ATTORNEY — NAMELY, MR. GOURJIAN — TO ATTEMPT TO DISCREDIT THE FORMER CLIENT DIRECTLY OR INCORRECTLY.   SO IT IMPLICATES NOT JUST ETHERIAL CONCEPTS OF ADVERSE  INTERESTS, BUT THE DUTY OF LOYALTY AND THE QUESTION OF THE DEDICATION OF THE LAWYER IN THIS CASE TO DO EVERYTHING POSSIBLE TO SERVE HIS OR HER CLIENT IN THIS CASE AND, IN DOING SO, ATTEMPT TO DISCREDIT SOMETHING   ABOUT THE FORMER CLIENT. PEOPLE VERSUS COHEN, 12 CAL APP. 3D, 298, AND A CASE WHICH RECEIVED A LOT OF ATTENTION — I’M SURE IT IS FAMILIAR TO A LOT OF PEOPLE — PEOPLE VERSUS BONIN, AT 47 CAL 3D, 808 AT 834. SO I DO NEED SOME FURTHER INFORMATION.   AND I THINK WHEN NEXT WE APPEAR, WE SHOULD ASK MR. GERAGOS TO MAKE AN APPEARANCE AND MR. WEITZMAN AS WELL SO I CAN KNOW WHAT STEPS I SHOULD TAKE.

 

MR. CHERNOFF:   IN ORDER FOR US TO GET THE MEMO RIGHT, IS IT YOUR BELIEF, JUDGE, THAT PERHAPS SOMETHING THAT MICHAEL JACKSON DID IN 2003 WOULD BE RELEVANT TO WHAT MIGHT HAVE HAPPENED IN 2009?

 

THE COURT:   NO.

 

MR. CHERNOFF:   SO YOU HAVEN’T MADE THAT DECISION?

 

THE COURT:   I DON’T KNOW.   I DON’T KNOW WHAT WAS GOING ON WITH THE REPRESENTATION OF MICHAEL JACKSON BY THE GERAGOS LAW FIRM, WHAT THINGS CAME UP, WHAT ANALYSES WERE MADE, WHAT INFORMATION WAS COMMUNICATED, THAT MIGHT POP UP IN THIS CASE.

 

MR. CHERNOFF:   OKAY.   WE WILL PUT TOGETHER THE MEMO AND SOME DECLARATIONS AND GET THAT TO YOU.

 

THE COURT:   MR. WALGREN AND MS. BRAZIL, SO I THINK WHAT WE HAVE TO DO IS JUST PAUSE, GET SOME MORE INFORMATION, THEN SEE WHERE WE GO.

 

MR. WALGREN:   PEOPLE AGREE, YOUR HONOR.

 

THE COURT:   MR. HARRIS, I’M SURE YOU HAVE OTHER PLACES TO GO AND THINGS TO DO.   WOULD YOU LIKE TO BE EXCUSED?

 

MR. HARRIS:   I WOULD LOVE TO BE EXCUSED, YOUR HONOR.

THE COURT:   WE APPRECIATE YOUR BEING HERE.

MR. HARRIS:   THANK YOU, YOUR HONOR.

 

THE COURT:   WE WILL CONTACT YOUR LAW FIRM REGARDING THE NEXT APPEARANCE.   I KNOW YOU ARE VERY BUSY.   IF IT DOESN’T WORK OUT, WE WILL HAVE TO WORK AROUND IT AS WELL.

 

MR. HARRIS:   WE WILL TRY TO WORK AROUND THE SCHEDULE.

 

THE COURT:   ALSO, WE HAVE TO CONTACT THE LAW OFFICES OF MR. HOWARD WEITZMAN AND SEE WHAT, IF ANY, POSITION THE ESTATE HAS. THANK YOU.   YOU ARE EXCUSED, WITH MY APPRECIATION.

 

MR. HARRIS:   THANK YOU.

 

THE COURT:   WE HAVE OTHER THINGS TO DISCUSS THAT WERE CALENDARED. FIRST OF ALL, THE COURT DID RECEIVE DOCUMENTATION FROM THE PEOPLE.   WE WERE GOING TO GET AN UPDATE ON DISCOVERY AND JURY PROPOSED QUESTIONS, AND I WAS JUST HANDED, BEFORE I TOOK THE BENCH A COUPLE MOMENTS AGO, A SUBMISSION BY THE DEFENSE.   DEFENDANT’S PROPOSED JURY VOIR DIRE QUESTIONS.   IS THAT CORRECT?

 

MR. CHERNOFF:   YES, JUDGE.   DID THE PEOPLE FILE THESE PROPOSED QUESTIONS?

 

THE COURT:   I DON’T THINK I HAVE ANYTHING YET.   DO I HAVE THEM?

 

MR. WALGREN:   DID WE FILE PROPOSED QUESTIONS?   NO, YOUR HONOR.

 

THE COURT:   ALL RIGHT.   I’M GOING TO SEAL PROPOSED QUESTIONS AT THIS JUNCTURE.   I’M DOING SO BECAUSE THE MATERIALS ARE SENSITIVE ENOUGH.   THEY ARE STILL IN EVIDENTIARY STAGE WHERE WE WILL DISCUSS THEM. AND I’M BALANCING THE INTERESTS OF PUBLIC DISCLOSURE ON THE ONE HAND WITH THE INTERESTS OF MAINTAINING SOME SEMBLANCE OF CONTROL OVER PAPERWORK ON THE OTHER AND, SPECIFICALLY, NOT HAVING PROPOSED INSTRUCTIONS POSTED FOR THE WORLD TO SEE BEFORE INDIVIDUAL JURORS ARE QUESTIONED SO THAT PEOPLE ARE MAKING THEIR DECISIONS BASED UPON WHAT THEY ARE DOING IMMEDIATELY AFTER THEY HAVE BEEN HANDED THE QUESTIONNAIRE AS OPPOSED TO THINKING ABOUT IT, TAKING PRACTICE TESTS. I NEVER LIKED OPEN BOOK TESTS WHEN I WAS IN SCHOOL.   FIRST OF ALL, THEY WERE MUCH HARDER THAN CLOSED BOOK TESTS. BUT SECONDARILY, THERE IS A LOT OF INFORMATION OUT THERE THAT I THINK CAN COMPROMISE THE PROCESS AND AFFECT ADVERSELY THE INTEGRITY OF THE JURY SELECTION PROCESS IF THERE ARE CHEAT SHEETS OUT THERE IN THE UNIVERSE. SO AT LEAST AT THIS JUNCTURE, SUBJECT TO FURTHER CONSIDERATION BY THE COURT, ANY SUBMISSIONS REGARDING PROPOSED JURY QUESTIONS ARE GOING TO BE SEALED UNDER CALIFORNIA RULES OF COURT RULE 1.150.   I BALANCED AND EVALUATED ALL OF THE FACTORS, AND AT THIS JUNCTURE I FIND THAT THE PREMATURE DISCLOSURE OF SUGGESTED TOPICS OF VOIR DIRE DEFINITELY WOULD AFFECT THE INTEGRITY OF THE JURY SELECTION PROCESS AND THE RIGHT TO A FAIR TRIAL WITH BOTH PARTIES IN THIS CASE. WITH REGARD TO DISCOVERY, MR. WALGREN AND MS. BRAZIL, DO YOU WANT TO BE HEARD?

 

 MR. WALGREN:   YES, YOUR HONOR.

THE COURT:   THANK YOU.

 

MR. WALGREN:   IT WAS THE PEOPLE’S UNDERSTANDING THAT TODAY WAS SET FOR THE PEOPLE TO RECEIVE DEFENSE DISCOVERY.   WE HAVE NOT RECEIVED DISCOVERY. WE WERE PROVIDED A WITNESS LIST TODAY, BUT WE HAVE NOT RECEIVED ANY DISCOVERY, ANY STATEMENTS, ANYTHING OF THAT NATURE. I’D ALSO POINT OUT THAT THE PEOPLE PROVIDED A WITNESS LIST TO THE DEFENSE.   EVERY SINGLE WITNESS ON THAT LIST THE DEFENSE IS IN RECEIPT OF DISCOVERY FOR EACH AND EVERY SINGLE WITNESS ON THAT LIST. THE DEFENSE LIST WE HAVE BEEN PROVIDED TODAY LISTS 91 INDIVIDUALS.   SOME OF THESE ARE OBVIOUSLY DUPLICATIVE FROM THE PEOPLE’S LIST, BUT THERE IS A LARGE NUMBER OF WITNESSES FOR WHICH THEY DO NOT APPEAR ON OUR LIST.   WE HAVE NO DISCOVERY AT ALL, AND WE ARE INSISTING ON OUR DISCOVERY.

 

THE COURT:   MR. CHERNOFF AND MR. FLANAGAN, YOUR THOUGHTS?

 

MR. CHERNOFF:   WELL, WE DON’T HAVE ANY REPORTS CURRENTLY.   WE DON’T HAVE ANY WRITTEN WITNESS STATEMENTS CURRENTLY, BUT WE ARE NOT HIDING THE BALL ON THAT. AS SOON AS WE OBTAIN THEM — WE HAVE A MEETING SCHEDULED IN TWO DAYS AFTER COURT TODAY WHERE WE ARE GOING TO MAKE REQUESTS FOR THOSE REPORTS, AND THEN WE SHOULD GET THEM RELATIVELY SOON.   I DON’T SEE WHY, BY THE 28TH, WE WON’T BE ABLE TO GET TO THE PROSECUTION WHAT WE HAVE.   WE SHOULD BE READY TO GO BY THE 28TH OF THIS MONTH.

 

THE COURT:   NO WRITTEN STATEMENTS OF DEFENSE WITNESSES?   NO REPORTS OF ANY SORT ON ANY TOPICS INVOLVED IN THIS CASE?

 

MR. CHERNOFF:   JUST WORK PRODUCT.

 

THE COURT:   I DON’T KNOW WHAT THAT MEANS, WHAT WORK PRODUCT MEANS.

 

MR. CHERNOFF:   THE MENTAL IMPRESSIONS AND THOUGHTS AND MEMOS FROM COUNSEL.   I HAVE PLENTY OF THOSE, BUT THAT IS WORK PRODUCT IS MY UNDERSTANDING, ESPECIALLY AS RELATES TO THE DEFENSE.

 

THE COURT:   IF YOU HAVE GOT DEFENSE WITNESSES IN THIS CASE, THERE IS AN OBLIGATION TO PROVIDE UNDER THE PROVISIONS OF 1054 OF THE PENAL CODE, AND COUNSEL KNOW ABOUT THEM, STATEMENTS AND EVIDENCE THAT THE DEFENSE INTENDS TO INTRODUCE AT TRIAL. I DON’T KNOW WHAT IT MEANS TO SAY, WELL, THIS IS ALL WORK PRODUCT.   AT WHAT POINT DOES WORK PRODUCT BECOME DISCOVERABLE?

 

MR. CHERNOFF:   MY UNDERSTANDING IS IF WE HAVE PUT DOWN NOTES OR CONVERTED INTO WRITTEN FORM THE RECORDS OF THE STATEMENTS THAT WERE MADE BY OUR WITNESSES, THAT IS DISCOVERABLE. IF WHAT WE HAVE ARE DOCUMENTS THAT RELATE TO OUR PARTICULAR MENTAL IMPRESSIONS OF OUR DEFENSE, THAT IS NOT DISCOVERABLE.   I BELIEVE THAT WOULD BE REFERRED TO AS WORK PRODUCT IN THIS STATE.   WE SIMPLY DO NOT HAVE WITNESS STATEMENTS PER SE. IF YOU ARE ORDERING US TO TAKE WITNESS STATEMENTS, THAT IS ONE THING, BUT WE DON’T HAVE THOSE AVAILABLE.   NOW, THAT IS NOT TO SAY WE MAY NOT HAVE THOSE IN THE FUTURE AND, I BELIEVE, IN THE RELATIVELY SOON, NEAR TERM, BUT WE DON’T HAVE THOSE CURRENTLY. NOW, WE HAVE HAD QUITE A BIT OF CONVERSATIONS WITH INDIVIDUALS THAT WERE NOT PUT DOWN INTO WRITING, BUT WE SIMPLY DON’T HAVE NOTES OF THOSE CONVERSATIONS.

 

THE COURT:   SO THE DEFENSE IS GOING TO PRESENT WITNESSES AND NOT HAVE ANY WRITTEN STATEMENTS THAT WERE ALLEGEDLY MADE BY —

 

MR. CHERNOFF:   WE WILL NOT HAVE ANY WRITTEN STATEMENTS FROM WITNESSES UNLESS YOU ORDER US TO TAKE WRITTEN STATEMENTS.   WE ALSO HAVE NOT RECORDED OUR WITNESSES.   THE NOTES, WE WILL PRESENT.

 

THE COURT:   THE PROVISIONS OF PENAL CODE SECTION 1054.3(A)(1) PROVIDE AS FOLLOWS: “THE DEFENDANT AND HIS OR HER ATTORNEY SHALL DISCLOSE TO THE PROSECUTING ATTORNEY: (1) THE NAMES AND ADDRESSES OF PERSONS OTHER THAN THE DEFENDANT HE OR SHE INTENDS TO CALL AS WITNESSES AT TRIAL TOGETHER WITH ANY RELEVANT WRITTEN OR RECORDED STATEMENTS OF THOSE PERSONS OR REPORTS OF THE STATEMENTS OF THOSE PERSONS, INCLUDING ANY REPORTS OR STATEMENTS OF EXPERTS MADE IN CONNECTION WITH THE CASE, AND INCLUDING THE RESULTS OF PHYSICAL OR MENTAL EXAMINATIONS, SCIENTIFIC TESTS, EXPERIMENTS OR COMPARISONS WHICH THE DEFENDANT INTENDS TO OFFER IN EVIDENCE AT THE TRIAL;  (2) ANY REAL EVIDENCE WHICH THE DEFENDANT INTENDS TO OFFER IN EVIDENCE AT TRIAL.” IS THE DEFENSE POSTURE AT THIS JUNCTURE THERE IS NOTHING THAT IS CALLED FOR UNDER THE PROVISIONS OF THE PENAL CODE?

 

MR. CHERNOFF:   WE ARE THOROUGHLY FAMILIAR WITH OUR RESPONSIBILITIES UNDER THAT PARTICULAR PENAL CODE PROVISION. WE DON’T HAVE IT.   WE DON’T HAVE DEMONSTRATIVE EVIDENCE TO PROVIDE TO THE PROSECUTION.   WE DON’T HAVE REAL EVIDENCE TO PROVIDE TO THE PROSECUTION. WE DON’T HAVE STATEMENTS MADE BY WITNESSES.   WE DON’T HAVE EXPERT REPORTS TO PROVIDE TO THE PROSECUTION CURRENTLY. WE UNDERSTAND THAT IS OUR RESPONSIBILITY. ONCE WE GET THOSE, WE WILL IMMEDIATELY TURN IT OVER.   WE HAVE MEETINGS, LIKE I TOLD YOU.   WE HAD A MEETING TODAY, TOMORROW WITH EXPERTS.   WE HAVE MEETINGS ON THURSDAY SCHEDULED WITH EXPERTS.   THOSE ARE GOING TO BE MEETINGS WHERE WE ARE GOING TO BE SITTING THERE TALKING TO THE EXPERTS, TAKING NOTES.   WE WILL TURN OVER ALL OF THAT INFORMATION.   WE UNDERSTAND THAT IS OUR RESPONSIBILITY, BUT WE DON’T HAVE IT CURRENTLY.   WE JUST DON’T.

 

THE COURT:   AND THIS CASE IS STILL GOING TO TRIAL BY THE 24TH OF MARCH?

 

MR. CHERNOFF:   THAT IS MY UNDERSTANDING, YES.

THE COURT:   MR. WALGREN, MS. BRAZIL?

 

MR. WALGREN:   YOUR HONOR, THIS IS EXACTLY WHAT 1054.1 IS DESIGNED TO AVOID.   I UNDERSTAND IF THERE ARE WITNESSES THEY HAVEN’T EVEN SPOKEN TO YET.   THAT, OF COURSE, THEY COULDN’T PROVIDE DISCOVERY IF THEY HAVE NEVER SPOKEN TO THE WITNESS. BUT AGAIN, WE HAVE BEEN PROVIDED A LIST OF 91 NAMES, AND I WOULD LIKE TO KNOW IF ANY OF THESE WITNESSES HAVE BEEN SPOKEN TO, AND WE WANT OUR DISCOVERY.   WE WANT WRITTEN STATEMENTS OF THESE WITNESSES. THIS IS, YOU KNOW, THIS IS GAMESMANSHIP.   I THINK TODAY WE PROVIDED UP TO PAGE 7400 IN DISCOVERY, YOUR HONOR.   WE HAVE BEEN PROVIDING DISCOVERY IMMEDIATELY AS WE GET IT.   DEFENSE COUNSEL HAS ALL DISCOVERY FOR ALL PEOPLE’S WITNESSES TO DATE.   WE HAVE NOTHING. BUT DEFENSE COUNSEL IS COMING INTO COURT SAYING THEY ARE READY FOR TRIAL AND WANT IT TO START ON MARCH 24TH.   THIS IS PUTTING THE PEOPLE AT A DISADVANTAGE.   THIS IS UNFAIR TO THE PEOPLE.   THIS DENIES THE PEOPLE A RIGHT TO A FAIR TRIAL, OPEN AND FAIR DISCOVERY.   IT IS A TWO-WAY STREET, YOUR HONOR. AND I DON’T THINK IT IS IN GOOD FAITH FOR THE DEFENDANT TO COME IN HERE AND SAY THEY ARE READY FOR TRIAL, PROVIDE US A LIST OF 90-PLUS PEOPLE, THEN SAY THEY HAVE NO DISCOVERY TO GIVE TO US. WE WANT OUR DISCOVERY.   IF THE DEFENSE NEEDS MORE TIME TO PROVIDE DISCOVERY, SO BE IT.   BUT WE WANT OUR DISCOVERY.   WE WANT A FAIR PROCESS, FAIR DISCOVERY, AND A TRANSPARENT PROCESS SO THAT WE, THE PEOPLE, CAN HAVE OUR RIGHT TO A FAIR TRIAL.

 

THE COURT:   MR. CHERNOFF, DO YOU WANT TO BE HEARD ANY FURTHER?

MR. CHERNOFF:   WE UNDERSTAND OUR RESPONSIBILITY, JUDGE, BUT —

THE COURT:   YOUR RESPONSIBILITY EXTENDS BEYOND —

MR. CHERNOFF:   LET ME JUST SAY THIS.

 

THE COURT:   LET ME FINISH THIS, AND I WON’T INTERRUPT YOU. YOUR RESPONSIBILITY EXTENDS BEYOND SAYING, “WELL, WE HAVE TALKED TO EXPERTS,” OR, “WE HAVE TALKED TO WITNESSES.   WE ARE GOING TO BE MEETING WITH THEM IN THE FUTURE.   RIGHT NOW, WE DON’T HAVE ANY WRITTEN REPORTS. AS SOON AS WE HAVE WRITTEN REPORTS, WE WILL PROVIDE THEM.” WERE NOTES TAKEN OF ANY EARLIER DISCUSSIONS WITH THE PROPOSED WITNESSES?

 

MR. CHERNOFF:   WE — MEMOS WERE PREPARED TO THE LAWYERS ABOUT THE DEFENSE.   BUT MR. FLANAGAN SPOKE, FOR INSTANCE, WITH ONE OF THE EXPERTS.   I DON’T KNOW WHETHER THERE WERE NOTES TAKEN OF THE CONVERSATION.   I’M SURE THERE WERE NOTES TAKEN OF QUESTIONS THAT HE WANTED TO ASK. WE FULLY UNDERSTAND OUR RESPONSIBILITY.   MY GUESS IS WE ARE GOING TO HAVE ALL OF THOSE NOTES THAT THEY ARE ASKING FOR BY THE END — END OF THIS WEEK OR EARLY NEXT WEEK, IN ANY CASE. BUT WE ARE NOT — IF THE SUGGESTION IS BEING MADE THAT WE HAVE TAKEN NOTES, WE SIMPLY ARE HIDING THE BALL, I’LL TELL YOU, NO, WE HAVEN’T DONE THAT. NOW, MR. WALGREN TALKS ABOUT SURPRISE, AND CERTAINLY THE LAST THING IN THE WORLD I WOULD WANT IS FOR THE PROSECUTION TO BE SURPRISED.   WHAT HE FAILS TO TELL US IS ONE OF OUR EXPERTS, A VERY IMPORTANT EXPERT TO US, HE HAS ALREADY SPOKEN TO.   HE IS NOT REALLY SURPRISED BY THAT EXPERT.   IN FACT, HE HAS SPOKEN TO HIM ON THE PHONE. IT IS A LITTLE DISINGENUOUS TO SUGGEST HE IS IN THE DARK ON THIS. BUT WE UNDERSTAND OUR RESPONSIBILITY AND THAT WILL BE PROVIDED WHEN WE HAVE IT TOGETHER.   AND WHEN WE HAVE TAKEN NOTES OF THAT CONVERSATION, WE WILL GIVE IT OVER TO THE PROSECUTION.  YOU KNOW, WE ALSO HAVE 91 WITNESSES THAT WERE GIVEN TO US.

 

THE COURT:   I THINK IT IS 107.

MR. CHERNOFF:   A HUNDRED, WHATEVER.

THE COURT:   IS IT?

MR. WALGREN:   YES.

 

MR. CHERNOFF:   MR. WALGREN SAYS EVERY ONE OF THOSE WITNESSES DOWN THERE WHICH, BY THE WAY, ARE JUST NAMES, WE HAVE HAD DISCOVERY ON.   WELL, I’VE GONE THROUGH ALL THE DISCOVERY.   I’VE HIGHLIGHTED WITNESSES I’VE NEVER HEARD OF.   SO WE HAVE THE SAME ISSUE.   I’M NOT BRINGING THAT UP.   I’M ASSUMING THAT THE PROSECUTION WILL COME CLEAN ON THAT.   WHY WOULDN’T THEY? WE ARE NOT TRYING TO HIDE THE BALL.   WE WANT TO GO TO TRIAL ON THE 24TH, BUT WE JUST DON’T HAVE IT AVAILABLE RIGHT NOW.

 

THE COURT:   THE LAW REQUIRES THAT INFORMATION BE PROVIDED NO FEWER THAN 30 DAYS BEFORE TRIAL.   SEE, I DON’T KNOW IF ANYBODY IS CLAIMING THE OTHER PARTY IS BEING DISINGENUOUS OR NOT.   THE PEOPLE’S LIST INDICATES   107 NAMES, BUT ALSO MAKES REFERENCE TO THE FACT THESE PEOPLE MAY BE WITNESSES OR MAY BE REFERENCED IN THE CASE. SO THE NAMES MAY BE MENTIONED RATHER THAN THE PEOPLE ACTUALLY BEING CALLED AS WITNESSES. SO THE DEFENSE IS SAYING THAT YOU ARE STILL CONDUCTING ONGOING DISCOVERY?

 

MR. CHERNOFF:   WE ARE.

 

THE COURT:   YOU MENTIONED SOMETHING ABOUT THE NEXT APPEARANCE.   THE BOTTOM LINE IS THIS.   THERE IS A REQUIREMENT TO PROVIDE DISCOVERY AT THE EARLIEST POSSIBLE TIME.   NOW, WE ARE IN A CERTAIN TIME FRAME WHERE I’VE INDICATED THAT DISCOVERY SHOULD BE PROVIDED AS OF THIS DATE AND CONTINUING, SO WE WILL NOT WEIGHT UNTIL ACTUALLY 30 DAYS BEFORE TRIAL.   THAT IS THE MINIMUM.   BUT THIS IS A COMPLICATED CASE AND COUNSEL SHOULD BE PREPARED. SO THE DISCOVERY SHOULD BE PROVIDED AS SOON AS THE PARTICULAR PARTY HAS THAT DISCOVERY.   IT SHOULD BE TURNED OVER REGARDLESS OF WHEN IT IS HAPPENING. SO, MR. WALGREN, I THINK YOU INDICATED THAT YOU ARE NOT HERE, IS IT, THE ENTIRETY OF NEXT WEEK?

 

MR. WALGREN:   CORRECT, YOUR HONOR.

 

THE COURT:   YOU DO WANT TO BE HERE FOR ANY FURTHER DISCUSSIONS ON DISCOVERY COMPLIANCE.   I MEAN, MS. BRAZIL IS HERE.   I DON’T KNOW IF YOU CAN MAKE SOME ARRANGEMENTS. I’D LIKE TO DO SOMETHING NEXT WEEK ON THIS CASE, BUT I WANT TO BE RESPECTFUL TO COUNSEL’S SCHEDULES BECAUSE THEY HAVE BEEN RESPECTFUL TO MINE.

 

MR. CHERNOFF:   I CAN SET IT FOR THE 28TH.

 

MR. WALGREN:   IF THE COURT WISHES TO SET IT FOR NEXT WEEK, MS. BRAZIL WILL BE HERE.

 

THE COURT:   MR. CHERNOFF, YOU THINK YOU WILL HAVE A STRONGER SENSE OF THE NATURE OF DISCOVERY BY WHAT DATE?

 

MR. CHERNOFF:   WELL, I THINK WE WILL HAVE A STRONGER SENSE BY THIS FRIDAY, FRANKLY, BUT I DON’T SEE WHY NEXT WEEK WE CAN’T HAVE NOTES OF THE CONVERSATIONS THAT WE HAD WITH THESE EXPERTS THAT WE ARE CONSIDERING TAKING ON.   AND AS SOON AS WE GET IT, WE WILL GET IT OVER TO THE PROSECUTION.

 

THE COURT:   OKAY.   YOU SAID SOME OF THE MATERIAL WOULD BE AVAILABLE BY THIS FRIDAY, THE 18TH OF FEBRUARY.

 

MR. CHERNOFF:   WHEN I SENT REQUESTS TO MR. WALGREN FOR HIS NOTES OF WITNESSES WE NEVER RECEIVED, HE SENT SOME OF THEM.   HE GAVE SOME OF THEM TODAY.   I TRUST HIM TO DO THAT, AND HE SHOULD TRUST US TO DO THAT AS WELL.

 

THE COURT:   WELL, TRUST IS IMPORTANT.   THERE ARE ALSO LEGAL REQUIREMENTS. DO YOU WANT TO SET THIS FOR NEXT WEDNESDAY?

 

MR. CHERNOFF:   CAN WE DO IT THURSDAY, JUDGE?   IS THAT POSSIBLE?

 

THE COURT:   I’M TOTALLY JAMMED.   I HAVE AT LEAST A HALF-DAY HEARING THURSDAY MORNING.   THURSDAY AFTERNOON, I’VE GOT A HEARING, BUT I THINK WE CAN WORK AROUND IT IF YOU WANT TO COME BACK AT ONE O’CLOCK.

 

MR. CHERNOFF:   OKAY, JUDGE.

 

THE COURT:   WE WILL DO IT NEXT THURSDAY, THE 24TH. MS. BRAZIL, IS THAT OKAY WITH YOUR SCHEDULE?

 

MS. BRAZIL:   YES, YOUR HONOR.

 

THE COURT:   MR. WALGREN, YOU CAN BE IN CONTACT WITH MS. BRAZIL, AND SHE WILL BE IN CONTACT WITH YOU.

 

MR. WALGREN:   YES, YOUR HONOR.

MR. CHERNOFF:   JUDGE, ONE OTHER MATTER, IF YOU ARE READY FOR IT.

THE COURT:   OH, YES.

 

MR. CHERNOFF:   ALL RIGHT.   PART OF WHAT WE ARE TRYING TO GET WITH REGARD TO REAL EVIDENCE IS FINGERPRINTS FROM S.I.D.   I’VE BEEN WORKING WITH MR. WALGREN ON THIS, BUT NEITHER ONE OF US HAS BEEN ABLE TO OBTAIN THAT OR HAS OBTAINED IT. I TALKED TO S.I.D. LAST WEEK.   THEY EXPRESSED TO ME WHAT THEY NEEDED TO RELEASE EXEMPLARIES AND COMPARISON REPORTS TO US.   I PUT TOGETHER AN ORDER REFLECTING THAT. IF YOU WERE TO SIGN THIS ORDER, I COULD FAX IT OVER TODAY.   THEY WOULD GET ME THOSE REPORTS BY TOMORROW. MR. WALGREN EXPRESSED AN INTEREST IN GETTING A COPY OF WHAT HAS BEEN SENT OVER AS WELL SO HE COULD BATES STAMP THEM AND USE THEM PERHAPS HIMSELF.   I HAVE THIS ORDER PREPARED, IF YOU WOULD CARE TO TAKE A LOOK AT IT AND CONSIDER SIGNING IT, SO WE CAN GET THIS EVIDENCE.

 

THE COURT:   I’M HAPPY TO.   DO THE PEOPLE HAVE IT?

 

MR. WALGREN:   YES, BUT I WANTED TO PUT SOMETHING ON THE RECORD, YOUR HONOR.

 

THE COURT:   DO I HAVE A COPY OF IT?

 

MR. CHERNOFF:   I HAVEN’T FILED IT YET.   I WANTED TO GIVE TO IT MR. WALGREN.   MAY I APPROACH?

 

THE COURT:   DO YOU WANT TO ADDRESS THIS BEFORE I EVEN SEE IT?

 

MR. WALGREN:   EITHER WAY, YOUR HONOR.

 

MR. CHERNOFF:   I’LL GIVE YOU A COPY SO YOU CAN SEE IT.

 

THE COURT:   THANK YOU.   LET ME JUST HAVE A MOMENT. I’VE READ IT.   IT IS SIGNED BY MR. FLANAGAN. MR. WALGREN?

 

MR. WALGREN:   THANK YOU, YOUR HONOR. NUMBER ONE, TO BE CLEAR, WE HAVE PROVIDED FINGERPRINT DISCOVERY THAT IS AVAILABLE TO DATE.   THERE IS SOME ONGOING ANALYSIS THAT IS NOT YET COMPLETE WHICH WE EXPECT VERY SOON.   SO THE DEFENSE DOES HAVE DISCOVERY AS RELATES TO FINGERPRINTS THAT IS COMPLETED TO DATE. MANY MONTHS AGO, MR. CHERNOFF INDICATED THEY HAD AN INTEREST IN OBTAINING AN ACTUAL PHOTOGRAPH OR PHOTOGRAPHIC QUALITY OF THE LIFTS, AND I MADE INQUIRIES AS TO HOW THEY COULD RECEIVE THAT QUALITY OF A LIFT.   WE WERE INFORMED THAT THEY HAD TO GET A COURT ORDER AND THEN GO TO THE LAB TO GET THE PHOTOGRAPHIC QUALITY OF A LIFT. THIS ORDER, HOWEVER, IS ASKING FOR GENERAL DISCOVERY IN ADDITION TO ANY — IT DOESN’T ACTUALLY EVEN MENTION PHOTOGRAPHIC QUALITY OF A LIFT BUT GOES BEYOND THAT. THE PEOPLE’S CONCERN IS THAT IS OUR OBLIGATION TO PROVIDE THAT DISCOVERY.   WE PREFER IT GO THROUGH US TO BE WATERMARKED, BATES STAMPED, AND GIVEN TO DEFENSE AS IT IS PREPARED AND CREATED. WHEN WE SPOKE TO THE LAB, THEY ARE VERY SPECIFIC THAT THIS COURT ORDER RELATE TO THE PHOTOGRAPH OF THE LIFT BECAUSE THAT WAS UNIQUE.   IF THEY HAD JUST   GIVEN US A COPY OF THAT AND IT WAS PHOTOCOPIED FOR THE DEFENSE, IT PROBABLY WOULD NOT BE OF SUFFICIENT QUALITY. THEY ARE VERY SPECIFIC.   THEY NEEDED A COURT ORDER FOR THAT. BUT THE REST IS JUST GENERAL DISCOVERY THAT HAS BEEN PROVIDED AND WILL CONTINUE TO BE PROVIDED AS IT IS PREPARED.   SO I THINK THE ORDER AS WRITTEN IS PROBABLY OVERBROAD, AND AGAIN OUR PREFERENCE WOULD BE THAT ALL THE DISCOVERY BE ITEMIZED AND BATES STAMPED SO THERE IS NO

 CONFUSION AS TO WHAT HAS BEEN GIVEN TO THE DEFENSE. EVERY SINGLE DOCUMENT GIVEN TO DEFENSE HAS BEEN BATES STAMPED.   WE HAVE DISCOVERY RECEIPTS WHERE THE DEFENSE SIGNS FOR THE DISCOVERY.   WE HAVE WATERMARKINGS. WE HAVE GONE TO GREAT LENGTHS TO MAINTAIN AN INVENTORY AS WELL AS CONFIDENTIALITY OF SOME OF THESE DOCUMENTS, AND WE SEE NO REASON WHY TO NOW STOP THAT PROCESS WHEN WE ARE 7400 PAGES INTO DISCOVERY. AND WE WOULD ASK IT ALL COME THROUGH US, BUT FOR AGAIN WHAT THE LAB TOLD ME WAS THE PHOTOGRAPHIC QUALITY.   THE DEFENSE WOULD NEED TO GO THERE DIRECTLY TO GET THAT QUALITY, SO THEY ARE NOT RECEIVING A PHOTOCOPY VERSION OF IT.

 

MR. CHERNOFF:   I TALKED TO S.I.D. ABOUT THAT.   YOU HAVE READ THE ORDER.   THIS IS EVIDENCE THAT IS FACTUAL. THIS IS JUST EVIDENCE THAT BELONGS TO THE DEFENSE AS WELL AS THE PROSECUTION. THE REAL PROBLEM WITH BATES STAMPING, AND WATERMARKING, AND EVERYTHING ELSE IS WE HAVE BEEN GETTING DISCOVERY, YOU ARE RIGHT, FOR MONTHS.   THEY HAVE ALWAYS BEEN COVERED UP WITH BATES STAMPS AND WATERMARKS, INCLUDING THE PHOTOS ARE LOW QUALITY. TWO WEEKS AGO, I ASKED THE PROSECUTION IF THEY WOULD GIVE US DIGITAL IMAGES, QUALITY PHOTOGRAPHS WE   COULD ACTUALLY SHOW TO OUR EXPERTS TO ACTUALLY REVIEW   INSTEAD OF THESE FADED IMAGES, COPIES THEY MAKE, THEN DIGITIZE THEM AND SEND THEM TO US AND COVER THEM WITH WATERMARKS.   WE CAN’T SEE WHAT IS GOING ON. WE HAD A PATHOLOGIST WE WORKED WITH.   WE SENT HIM PHOTOS.   THEY LOOKED AT IT, COULDN’T FIGURE WHAT IS GOING ON.   WE HAVE A FINGERPRINT EXPERT WHO TELLS US THEY NEED WHAT IS REQUESTED IN THIS ORDER.   THERE ARE UNIDENTIFIABLE FINGERPRINTS THAT THE PROSECUTION HAS OR HAS NOT COMPARED.   WE DON’T KNOW. THE LAST TIME AT PRELIMINARY HEARING WE DISCOVERED FOR THE FIRST TIME THAT THEY ACTUALLY TOOK PRINTS FROM ALBERTO ALVAREZ AND DID A COMPARISON, APPARENTLY.   WE DON’T KNOW WHAT HAPPENED WITH THAT.   WE HAVE A RIGHT TO LOOK INTO THIS.   IT IS NOT AS IF YOU GIVE US A COPY OF THIS STUFF AND THAT ANYTHING IS GOING TO CHANGE IN THE PROSECUTION CASE.   IT WILL JUST ALLOW US TO DO OUR OWN INVESTIGATION WHICH OUGHT TO BE OUR RIGHT.   SO I DON’T UNDERSTAND THEIR CONCERN. WHAT I SAY, WHAT I SAID TO THE PROSECUTION EARLIER, IS YOU GET A COPY, TOO.   YOU CAN BATES STAMP IT. YOU CAN DO WHAT YOU WANT WITH IT, BUT LET US FIGURE IT OUT. THERE IS A FINGERPRINT ON A SYRINGE, JUDGE, THAT NOBODY HAS IDENTIFIED.   NOBODY HAS IDENTIFIED.   HE IS RIGHT.   FOR MONTHS, WE HAVE BEEN ASKING FOR THIS.   TWO WEEKS AGO, I ASKED AGAIN IN AN INFORMAL DISCOVERY LETTER. NOW, WE WANT TO BASICALLY GO TRY SELF-HELP, AND I DON’T SEE ANY PROBLEM WITH THAT.   IT DOESN’T SEEM LIKE IT AFFECTS ANYTHING IN THIS CASE WHATSOEVER.

 

THE COURT:   WHAT KIND OF VOLUME ARE WE DISCUSSING HERE?

MR. WALGREN:   I’M SORRY?

THE COURT:   WHAT IS THE VOLUME OF MATERIALS?

 

MR. WALGREN:   IT IS PROBABLY FAIRLY MINIMAL.   I THINK THE PHOTOGRAPH THAT DEFENSE COUNSEL INDICATED THEY WANTED OR PHOTOGRAPHS IS PROBABLY JUST A HANDFUL, BUT THAT IS WHERE THEY NEED TO GO DIRECTLY TO THE LAB. I THINK EITHER COUNSEL ISN’T LISTENING TO ME OR DIDN’T RESPOND TO MY CONCERNS.   WE HAVE NO OBJECTION TO THEM GETTING NON-WATERMARKED COPIES OF THOSE.   THAT IS WHY THEY NEED TO GO DIRECTLY TO THE LAB TO GET THOSE. THE REST IS JUST DOCUMENTATION AND GENERAL DISCOVERY.

 

THE COURT:   HOW DOES THE PROPOSED ORDER THEN CAUSE YOU CONCERN?   DOESN’T IT BASICALLY SAY THEY GO TO THE LAB.   THEY HAVE GOT THE ORDER, AND THEY GET THEIR MATERIALS.

 

MR. WALGREN:   COPIES.

THE COURT:   COPIES?

MR. WALGREN:   YES.

 

THE COURT:   WELL, YOU KNOW, THEY ARE GOING TO GET IT AND YOU CAN GET YOUR OWN COPY, TOO, IF YOU WANT ONE. I’LL PUT IN HERE THAT THE LOS ANGELES POLICE DEPARTMENT SCIENTIFIC INVESTIGATION DIVISION MAKE TRUE, CORRECT, AND IDENTIFIABLE COPIES AND RELEASE TO DEFENDANT CONRAD MURRAY OR HIS ATTORNEYS AND TO THE PEOPLE AND THEIR ATTORNEYS. YOU ALREADY GOT THEM.   SO IF YOU WANT, I’LL PUT THE PEOPLE IN THERE, BUT I THINK THE DEFENSE SHOULD HAVE IT.

 

MR. WALGREN:   THAT IS FINE, YOUR HONOR.   THE DEFENSE HAS EVERYTHING THE PEOPLE HAVE RIGHT NOW.

 

THE COURT:   BUT WHAT THEY WANT, I THINK THEY ARE SAYING, I THINK IT IS THIS ISSUE OF CORRECT AND IDENTIFIABLE COPIES THAT CAUSES CONCERN TO MR. CHERNOFF. IS THAT WHAT I’M HEARING, BECAUSE THE OTHER COPIES HAVE WATERMARKS AND BATES STAMPS.

 

MR. CHERNOFF:   ACTUALLY, THE PEOPLE, WHETHER THEY HAVE THE LIFTS, THE PRINTS THAT WERE LIFTED OR NOT, IS REALLY IRRELEVANT.   WE WANT THE PRINTS THAT LIFTED SO WE CAN DO OUR OWN ANALYSIS.   THAT IS ALL.   AND, OF COURSE, IT WON’T BE WATERMARKED.

 

MR. WALGREN:   WHICH THE PEOPLE HAVE NO OBJECTION TO.   WE ARE TALKING ABOUT PHOTOGRAPHS OF THE LIFTS.   THE REST ARE JUST GENERAL DISCOVERY REPORTS, YOUR HONOR.

 

THE COURT:   DO YOU WANT ME TO INSERT AND RELEASE TO DEFENDANT CONRAD MURRAY AND TO THE PEOPLE OR NOT?

 

MR. WALGREN:   PLEASE, YOUR HONOR.

 

THE COURT:   I’LL SIGN IT.   SO I DON’T KNOW HOW LONG THIS IS GOING TO TAKE.

 

MR. CHERNOFF:   THEY SAY THEY CAN GET IT DONE RIGHT AWAY.   THE MINUTE WE FAX IT IN, WE CAN GET IT.

 

THE COURT:   WE HAVE A CELL PHONE OR SOME OTHER ELECTRONIC DEVICE IS INTERFERING WITH THE COURT SECURITY. IF SOMEONE CAN TURN THAT OFF. SO I’LL SIGN THIS.   NOW, WE WILL SET THE MATTER AT ONE O’CLOCK NEXT THURSDAY.   IT IS A REAL PROBLEM FOR MY CALENDAR.   I’LL HAVE TO DEAL WITH A BUNCH OF OTHER CASES.   I WASN’T PLANNING ON THIS. WE HAVE TO NOTIFY MR. WEITZMAN AND MR. GERAGOS’S OFFICE AS WELL.   I DON’T KNOW WHAT THEIR SCHEDULES ARE A WEEK IN ADVANCE. I DON’T KNOW HOW OPTIMISTIC IT IS TO SUGGEST WE ARE GOING TO BE ABLE TO ADDRESS THE ISSUE RAISED BY MR. GOURJIAN’S PRESENCE.   BUT RIGHT NOW, MR. GOURJIAN, I’M NOT GOING TO SIGN THE ORDER PENDING OUR DOING THIS AS QUICKLY AS POSSIBLE. WHEN DO THE PEOPLE THINK THEY WILL HAVE SOME PROPOSED JURY INSTRUCTIONS?

 

MR. WALGREN:   CAN I JUST BACK UP, PLEASE.

 

THE COURT:   NOT JURY INSTRUCTIONS.   JURY QUESTIONNAIRE.   I ALREADY HAVE THE JURY INSTRUCTIONS. JURY QUESTIONNAIRE.

 

MR. WALGREN:   CAN I BACK UP A MOMENT ON THE POINT THE COURT RAISED?

 

THE COURT:   YES.

 

MR. WALGREN:   THE COURT WILL BE DEALING WITH THE POTENTIAL CONFLICT ISSUE AS WELL ON THE NEXT COURT DATE?

 

THE COURT:   YES.

 

MR. WALGREN:   AND THE DEFENSE DISCOVERY.   I JUST WANT TO KNOW.

 

THE COURT:   I THINK ALL PARTIES SHOULD HAVE SOME IDEA WHAT WE ARE DOING.   WE ARE DISCUSSING AN ISSUE OF “CONFLICT” OR ABSENCE OF CONFLICT. WE ARE DEALING WITH DISCOVERY FROM BOTH PARTIES IN THIS CASE BECAUSE WE ARE THEN WITHIN THAT TIME FRAME, AND I EXPECT THAT BEFORE THEN THERE IS GOING TO BE PRODUCTION OF DISCOVERY.   WE WILL DEAL WITH ANY ISSUES OF DISCOVERY ON THAT DAY. WE WILL DEAL WITH PROPOSED VOIR DIRE QUESTIONS AS WELL AS WHAT JURY INSTRUCTIONS I SHOULD BE PLANNING ON PROVIDING. AND WHAT ELSE?   SOME OTHER THOUGHTS?

 

MR. WALGREN:   THIS IS ALL FOR THE NEXT COURT DATE?

 

THE COURT:   AS OPTIMISTIC AS WE CAN BE, AT ONE O’CLOCK, NEXT THURSDAY.

 

MR. WALGREN:   I’M WONDERING.   I MIGHT PREFER TO BE PRESENT, YOUR HONOR, BECAUSE ON THAT DATE THEN WE WILL BE SELECTING ADDITIONAL INTERIM DATES.   I THINK ME BEING OUT OF THE STATE, IT MIGHT BE DIFFICULT TO COORDINATE ALL THIS.

 

THE COURT:   ALL RIGHT.   I WANT TO DO IT AS QUICKLY AS POSSIBLE.   I ALSO RECOGNIZE YOUR DESIRE TO BE PRESENT, BUT I’D LIKE TO DO SOMETHING ON THE 24TH.   AND THEN IF WE HAVE TO COME BACK ON THE 28TH OR THE 1ST, WE DO THAT. WHAT CAUSES YOU THE MOST CONCERN ABOUT YOUR ABSENCE?

 

MR. WALGREN:   JUST PICKING ADDITIONAL DATES, GETTING DISCOVERY.   I MEAN, IT ALL CAN BE HANDLED BY MS. BRAZIL IF THE COURT PREFERS TO HANDLE IT NEXT WEEK.   WE CAN LEAVE THAT.

 

THE COURT:   I DO.   WE WILL GIVE MS. BRAZIL THE OPPORTUNITY TO CONTACT YOU BEFORE WE RECESS NEXT THURSDAY.   SHE CAN BE ON THE PHONE WITH YOU, AND YOU CAN MAKE ARRANGEMENTS. IS THAT OKAY WITH THE DEFENSE?

 

MR. CHERNOFF:   YES, JUDGE.

 

THE COURT:   AND DR. MURRAY, THROUGH HIS COUNSEL, PURSUANT TO PENAL CODE SECTION 977, HAS WAIVED HIS PRESENCE AT THIS PROCEEDING AND ALSO NEXT THURSDAY AS WELL, MR. CHERNOFF?

 

MR. CHERNOFF:   YES, JUDGE.

 

THE COURT:   ANYTHING ELSE TODAY, MR. WALGREN?

 

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

 

THE COURT:   MR. CHERNOFF?

MR. CHERNOFF:   NO, JUDGE.

 

THE COURT:   ALL RIGHT.   SEE EVERYBODY AT ONE O’CLOCK NEXT THURSDAY, THE 24TH OF FEBRUARY 2011.   WE ARE IN RECESS.

 

MR. WALGREN:   THANK YOU, YOUR HONOR.

 

THE COURT:   I’LL SIGN THE ORDER.

 

 

 (PROCEEDINGS WERE CONTINUED TO 1:00 P.M., FEBRUARY 24, 2011.)