1.Jury Deliberations, Exhibit Preparation, Rule 12.2 Withdrawal, and Expert-Witness Planning
55 linesP R O C E E D I N G S
COURT CLERK: All rise for the Court and the jury.
(The Court and jury enter the courtroom at 9:09 a.m.)
COURT CLERK: Be seated.
THE COURT: Good morning, jurors.
JUROR: Good morning.
THE COURT: The record will reflect that all 12 deliberating jurors have returned, as well as the six alternates.
Jurors, I ask you again, have you all abided by my instructions to avoid any investigation of the case, any exposure to media and any discussion of the cases with anyone?
JUROR: Yes.
THE COURT: Thank you.
So we'll ask the deliberating jurors now to withdraw and commence their deliberations. As I have said to you, for your guidance and information you will have a copy of the indictment for reference. It is not evidence but it will set out the charges as they are made. You will have a copy of -- written copy of my jury instructions, both as to the substantive offenses and the elements of the offenses, and as to the questions of evidence and burden of proof and so on.
And you will have, importantly, a verdict slip which consists of basically one page for each of the counts with the questions and the directions. Just follow the directions as they appear on the verdict slip. In some cases there are options depending on how the question is answered, whether you go on -- further on the page or whether you go to the next page. But I think that will be quite clear to you in your deliberations.
All right. So with that, we'll ask the jury to commence deliberations.
COURT CLERK: All rise for the jury.
(The jury exits the courtroom at 9:11 a.m.)
COURT CLERK: Be seated.
THE COURT: I just want to know the status of the exhibits. They may be released?
MS. CONRAD: Your Honor, we're trying to work through it. There's some disagreement, first of all, between the government and the defense about certain exhibits that may or may not have come in through our examination of Elena Graff. I contacted the court reporter who took that portion of the testimony and I had asked her to provide a transcript of the direct -- or at least a list of the exhibits that came in. She said she could not get that done until eleven this morning.
There are also some supplemental exhibits. I've got some things in my notes that reflect that certain things came in and the government said they didn't come in. I don't know how to resolve it short of the court reporter.
Now, we could send what we've got now, although there are a number --
THE COURT: Well, I think we have to do that. So with respect to the first category, Graff, send it -- we'll send it without them and it can be supplemented.
MS. CONRAD: Okay. There are also -- there were also were some issues, and I haven't checked to see whether they've been addressed. The government, for example, had a typo in a filing that referred to "propagation of nasheeds" as "propaganda of nasheeds," and we asked them to change it and they declined to do so. Mr. Lyness indicated that he might be able to do that himself. I don't know if that's been done. I don't know the exhibit number.
COURT CLERK: Not yet because I don't know what the exhibit number is.
THE COURT: Well, I think it is what it is. If there are typos, there are typos.
MS. CONRAD: Well, the government asked us to change some file names and we did it and we're asking them --
THE COURT: The clock matters. The jury has to begin its work. So if there are some as to which it's doubtful whether they're in or not, I would say hold them back for now and we can add them as soon as that may be. Two hours is a little bit long, but if that's what it is, that's what it is.
MS. CONRAD: In other words, at least one or two I sent over yesterday afternoon to Mr. Lyness that the government did agree to. One was 206A. I didn't see it on this list, so. But again, that's a Graff exhibit, so we can put that in with the rest. But I haven't been able to --
THE COURT: Okay. Well, they've got to get something to work with.
MR. CHAKRAVARTY: Your Honor, while we're talking about it, the government discovered yesterday that there are three photos of one of the victims that the court reporter does confirm were actually admitted which we didn't have on the original JERS list. So we will supplement those. Those also are not things that should hold up the jury in deliberating, but we would supplement the JERS with Exhibits 1499 through 1501.
THE COURT: Well, I have to say, it is irregular for them not to have all the exhibits, and I'm uncomfortable with it. But the batch of exhibits is such that I think if it's a small number, we can perhaps use the supplemental opportunity. But it has to happen fast.
MS. CONRAD: And as for physical exhibits, I have not yet had an opportunity to inspect those. I understand that's going to happen as soon as the court adjourns.
THE COURT: Okay.
P R O C E E D I N G S
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MR. WEINREB: Your Honor, I would like to be heard at sidebar about one matter.
(Discussion at sidebar and out of the hearing of the jury:)
MR. WEINREB: So, your Honor, we were informed by Tracy Dayton, the firewall counsel, that she had requested and received the Court's permission to let us know that the defense intended to withdraw their 12.2 notice. We haven't seen any withdrawal and we still have absolutely no idea which of the experts who were originally proposed by the defense to talk about things like PET scan imagery, testing of the defendant and other matters, are still planning on testifying or not.
And we're now at the point where we're going to begin filing motions in limine and preparing cross-examination and other things, and it would be very helpful for us to know the answer to those questions.
MS. CLARKE: Well, the 12.2 notice has been filed.
THE COURT: Well, I think what happened, if I'm correct, is it was filed in the MBD and not in this case. It has to be filed in this case as well, I guess.
MS. CLARKE: Okay. We just followed the instructions.
THE COURT: Right. Right. Right. So I think it has to be filed -- I mean, it was originally filed in this case and the withdrawal should be filed in this case. A simple withdrawal, I guess.
I want to have a conference at some convenient time when we have some other -- when other matters have been resolved to talk about witness planning and things like that for another phase.
MR. MELLIN: Your Honor, given the withdrawal, does the Court have any objection to us talking to Ms. Clarke and Mr. Bruck about the defense case and trying to resolve these issues? Because we do need some guidance as to what's coming so we have at least some idea which of our experts we should cut loose, which experts we should still --
THE COURT: The restriction on prosecutors dealing with the defense was related only to the 12.2 process.
MR. MELLIN: Okay.
THE COURT: Okay.
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THE COURT: I think everybody has received copies of what we propose to send in. Some redactions have been made. Would you look at those? You may not have had a full chance to do it. But basically, the indictment was redacted in the way discussed at side, particularly in the "use and carry" and -- with respect to Count 6, 7 and 9.
And then there's a final form of the verdict slip as well, and I think my instructions.
MR. WEINREB: Your Honor, the government's reviewed the indictment and has no objection to it.
THE COURT: So I have a package here which we will deliver to them as soon as we get the clearance, all right?
Okay. We'll be in recess.
COURT CLERK: All rise for the Court.
(The Court exits the courtroom and the proceedings adjourned at 9:18 a.m.)
COURT CLERK: All rise for the Court and the jury.
(The Court and jury enter the courtroom at 4:40 p.m.)
COURT CLERK: Be seated.
THE COURT: All right, jurors. It's been a long day. It's time to call it a day. And we're going to ask you to recess for the evening and resume tomorrow.
You have just sent us two notes with questions, which I'll share with the lawyers after we've discharged you. We'll answer those questions for you in the morning as we begin the deliberations.
What I'm going to ask you to do, whoever the foreperson of the jury is, is to take the verdict slip, whether it's been filled out partially or not at all or -- and put it in this envelope, this sealed envelope, and seal it. Then the clerk will take custody of it, put it in a safe, and he'll return it to you tomorrow in a sealed condition and you will unseal it and resume, all right?
Let me again remind you it is extremely important that you avoid any discussion of the case or even any consideration of the case. Don't even be thinking about it tonight. But particularly not communicating with anybody about it, not doing any investigation of any kind and so on. You know how sensitive the time is when you're a deliberating jury, and it is extremely important that you observe that, as you have assured me you have been observing all along anyway. But I just repeat that because it is a particularly critical time in the case.
With that, have a pleasant evening. We'll see you tomorrow morning and we'll continue with the work.
COURT CLERK: All rise for the jury.
THE COURT: I'll stay with the lawyers for just a minute.
(The jury exits the courtroom at 4:42 p.m.)
THE COURT: Okay. Counsel, as you heard, there are two notes. The times that recorded are 4:25 and 4:30, so they literally were just being filled out as we decided to call them out. When we recess, the clerk will share them with you. You can look at them and think about them overnight.
I would like to meet in a lobby conference at quarter of nine tomorrow to talk about the responses, all right?
Thank you. We'll be in recess.
COURT CLERK: All rise for the Court. The Court will be in recesses.
(The Court exits the courtroom and the proceedings adjourned at 4:43 p.m.)