8:40 AM



(Jurors begin deliberations at 8:40 AM)

(Recess at 10:23 am).

(Jurors resume deliberations at 10:46 am)

(At 12 P.M. a recess was taken until 1:30 P.M. of the same day.)

21:36 PM



(Jurors begin deliberations at 1:36 pm)

(At 2 pm the following proceedings were held in open court outside the presence of the jury.)

THE COURT: Good afternoon.
MR. KELLY: Good afternoon, Your Honor.
THE COURT: Okay. Defendant has filed a renewed motion for mistrial. I'll hear from the moving party.
MR. BAKER: Your Honor, since, -- Since we were advised about the problem with juror number 7 on
Friday, we've had an opportunity to go back to our office to get the questionnaire that this juror filled out to look at the original questionnaire here and this is not a case of inadvertent excusable neglect and I think the Court's well aware of it. Under question No. 33 when she is asked if any of her close friends or relatives were employed by the attorney general, the department of corrections or the District Attorney, she checks no. Then if we go over to 46, her question 46, the question, have you or anyone, close friends or relatives had any legal training including law courses paralegal program, on the job training. She checks
 6 yes, a relative is. And then she crosses out -- and we can't read it on ours but we can read it on the original, she crossed out District Attorney's office. And I assume 'cause I can't read the rest of it, that she's saying her daughter is a secretary in the District Attorney's office and it is all crossed out. There is not a line through it so that you can read what is there. This is a direct, deliberate attempt to mislead. And I think it's an outrage and we have
noticed on the defense side that when the civil -- criminal -- Or pardon me, the criminal juror Moran may have crossed a line that there was a search warrant issued and law enforcement went into her house. I want to know, as part of the defense team, if there's a search warrant going to issue and we're going into the D.A.'s office and we're going to find out who knew what and when they knew it. Because this is deliberate, it is not inadvertent. The evidence is clear it is not inadvertent. And now I think we're entitled to that and under the in re Hitchings case, I believe that we are entitled to a mistrial in this case. There has been jury misconduct. We don't know what was said for two and a half days with this juror in that jury room. We haven't a clue and you didn't voir dire the jurors nor did you allow us to voir dire the jury to find out what she said in that jury room. But this isn't inadvertent. This is clearly deliberate. This is clearly inexcusable and she made a deliberate attempt to hide this information from us. Now I believe we're entitled to a mistrial in this case. Because this is inexcusable number one. Number two, I don't know what was said in there. She's obviously well connected to the D.A.'s office. Chris Darden is on national television this morning. I watched it. He says there was a dinner when she was transferred from one division to another division. He was there.

THE COURT: Excuse me. You're making statements to the Court, the inferences from your statements are unclear as to who --

MR. BAKER: -- I apologize.

THE COURT: Who you're referring to.

MR. BAKER: The daughter was transferred from one division in the D.A.'s office. We learned from -- during the weekend, that she worked for both Darden and Hodgman. This is very high level, connected in the D.A.'s office. And we believe, based upon what he said, that she's transferred, that this dinner may have occurred during the time that trial was ongoing, that the juror was, he said, may have been present, We want to know these things. We want an evidentiary hearing. We believe that Hodgman, Darden ought to be called to testify and we want to find out what in the heck is going on in this case. 'Cause I think there's a double standard of justice going on and I don't like it at all. And I think we're entitled to all of that. We're entitled, first of all, to a mistrial. Then we're entitled to find out what has been going on relative to this jury and the D.A.'s office.

MR. PETROCELLI: Your Honor, none of what Mr. Baker said makes any sense at all. In the first place, if the D.A.'s office was trying to hide anything, they wouldn't have brought this matter to Your Honor's attention. As I understand, it was a letter from the D.A.'s office that indicated that there -- This juror had a daughter that worked there. So obviously if they were trying --

THE COURT: For the record, it's not your understanding, it's your knowledge because both counsel for both sides have seen that letter.

MR. PETROCELLI: Exactly. And Mr. Baker knows full well that it was the D.A. who brought this to Your Honor's attention. It doesn't make a difference what the D.A. knew, what they didn't know. All that's completely irrelevant, Your Honor. This juror was excused because Your Honor determined that the questionnaire had not been filled out accurately and you instructed the jury to begin their deliberations anew. And they have done so. You've instructed them twice.
And that's exactly what they're doing and they've been in there for a couple of days since
then. So that's further testament to the fact that they are following the Court's instructions and are deliberating anew. There's a jury instruction right on point. The law is absolutely clear, that's what you do if you discover a situation where you have to excuse a juror in the midst of deliberations. So Your Honor handled the situation properly. I might also add, though, for the record, I completely disagree with Mr. Baker's attempt to cast some sinister aspersions on this particular juror. I believe as I indicated in chambers that she's an honest and conscientious juror that simply overlooked that particular question. The District Attorney is embedded in the middle of a whole bunch of law enforcement agencies. It doesn't even say Los Angeles District Attorney. It just says district attorney. She indicated also where on the questionnaire that her daughter was a legal secretary and her response to the question where she struck out district attorney that Mr. Baker was alluding to, I think she struck it because it was not responsive to the question. The question asked for on the job training or knowledge of legal seminars or things like that and she started to put down something about the District Attorney's office and then she crossed it out and wrote down that she knows someone who took the court reporting class. So I think she was beginning to answer something that wasn't responsive. And lastly, Your Honor, the irony of this is if you look at this juror's publicity questionnaire, she's a pro defense juror. Had problems with DNA, I have had doubts about the condition in storing of the gloves, believes that racial discrimination against African persons somewhat serious. We fought to keep this juror not because we thought she was a pro plaintiff juror because we just want the deliberations to proceed and we want this jury to be able to each a verdict. Now, I just think this is an attempt by the defense as they've been attempting the moment the deliberations began to try to get a mistrial. They'll do anything, Your Honor, to get a mistrial. They'll do anything.
MR. BAKER: Well, I've made my record, Your Honor, and I think that we are entitled to a mistrial and you can call a horse a cow, you can call a stallion a cow all you want, you just can't get milk from it. He just keeps trying to do it. If this was a responsive answer to question number 46, there wouldn't have been an attempt to obliterate the District Attorney's office here as there was here. If you're going to put somebody on the jury, you're sure as heck going to put somebody on the jury that might be favorable to the defense so you'll vote for the plaintiff. It is an absolutely ridiculous argument from Petrocelli and I don't think it makes any difference. We want at a minimum, all of these jurors voir dired to find out what she said in that jury room for two and a half days.

THE COURT: I think he meant "Mr. Petrocelli."
MR. BAKER: No, I didn't.
MR. PETROCELLI: I think he did also.
THE COURT: The Court has read the moving papers, listened to the argument and looked at the points and authorities. Based upon the points and authorities and based upon the defendant's emotion, the Court does excuse Juror No. 33 after the defendant had first made a motion for a mistrial which the Court denied. Defendant is again renewing its motion for mistrial. The Court has again listened to the argument and court is satisfied that under these circumstances the Court's instruction to the jury is being heeded to begin deliberations anew. Whatever investigation counsel wants to perform certainly if and when we get a verdict, and this case is concluded, then an investigation may commence. At this point, the Court is satisfied that the jury may continue to deliberate. The motion for mistrial is denied.

MR. BAKER: You're not going to allow any voir dire of the jury to see what this juror told those jurors in the two and a half days; is that correct, sir?

THE COURT: You can do that after the verdict Mr. Baker.

MR. BAKER: Well it's not --

MR. PETROCELLI: Your Honor I'd like to be heard in chambers.

THE BAILIFF: This court is in recess right now.

(Proceedings concluded at 2:10 p.m.)
(Jurors continue deliberating)

(The notes of the proceedings at this point were ordered sealed by the Court, not to be opened, transcribed, or destroyed except upon order of a Judge of the Superior Court.)

(Recess at 3 pm)

(Jurors resume deliberations at 3:16 pm)

(At 4:16 pm twelve sworn jurors resume their respective seats.)

(The following proceedings were held in open court, outside the presence of counsel and the alternate jurors.)

THE COURT: Okay. Ladies and gentlemen, I'm more official today. I have my robe on. I can't reiterate and repeat these things too strongly that it's really, really important not to allow yourself to be exposed to any news media, any radio, TV, newspapers, or anything like that. Because they are reporting all kinds of junk and we don't want it to influence you in any way and even more than that, we don't want anybody to say that your decision was influenced by any of this. So that's why it's very important that you not permit any of this to come to you either directly or indirectly. When I say indirectly, meaning friends or family members saying hey, did you hear this or see this. Okay. So everybody understand the instructions I've given to you about not allowing that to happen?

JUROR: (Nod affirmatively) Yes. Um-hum.

THE COURT: Okay. Appreciate your hard work. See you again tomorrow morning at 8:30. Thank you very much.

JUROR: Thank you.

(At 4:18 P.M. an adjournment was taken until Tuesday, February 4, 1997 at 8:30 a.m.)