Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in camera:)

THE COURT: Let's have 462.

(Juror no. 462 enters chambers.)

THE COURT: 462, why don't you have a seat. Good morning.

JUROR NO. 462: Good morning.

THE COURT: How are you today?

JUROR NO. 462: I'm fine, thank you.

THE COURT: Is everything okay?

JUROR NO. 462: Uh-huh.

THE COURT: Okay. 462, the reason I asked you to come in this morning--and I want you to understand that any time something comes to my attention that might impact the case, I have to make an inquiry into it; and I bring you in here for informational purposes only at this point. The problem we have is, an anonymous person approached a police officer with regard to yourself indicating that it was his belief that you had been historically and recently a victim of domestic violence. And the sheriff's department reviewed some court records and brought to me a file which I believe to be a domestic relations file that involves juror 462 and "UU", and it includes a declaration which I believe to be yours alleging certain incidents of threats and other misconduct by "UU". Do you recollect anything similar to that in your past?

JUROR NO. 462: The only thing I can think of is that my husband and I did have some problems in the past, but there was never a physical--I've never been--when I think of domestic violence, I'm thinking of someone beating me. I might not be understanding the total--

THE COURT: Do you want to take a look at this and see if that's your declaration?

JUROR NO. 462: Sure.

(Brief pause.)

JUROR NO. 462: Yeah. This is mine.

THE COURT: Okay. 462, yesterday, the sheriff's department went out and interviewed two people at the **** Street apartment and they interviewed some of your neighbors, and they reported two of your neighbors reported that there has been an ongoing problem at your apartment house between yourself and your husband and they relate one particular incident October--approximately October the 9th, 1994, Columbus Day, a fight in your apartment and the fact that you appeared to be swollen about the face the next day.

JUROR NO. 462: No. My husband and I have--I guess anybody that's married have had disagreements. My husband has never ever struck--he's never hit me. My husband and I have been married for 18 years now and this was--I don't even know the year.


JUROR NO. 462: Okay. In the earlier years of our marriage, we had a lot of disagreements. But in the past I know five years, I can't even remember arguing with my husband. My husband never--has never put his hand on me.

THE COURT: Can you tell me--I mean, was there some other incident that might have gone on between your husband and your children or anything like that that would have led the neighbors to the conclusion that you were being beaten?

JUROR NO. 462: If I felt that way, I wouldn't even be sitting here. My husband is with my children. And as far as discipline goes, I'm the one that disciplines my kids. When my children were smaller, my husband spanked one of them and it was something that he couldn't deal with. My husband doesn't even spank my children because he personally has--he's against spanking kids where I would spank them. He wouldn't. And he's never touched me. My husband has never laid his hand on me, and I wouldn't be with my husband if he were to. I'm the type of person--as much as I love my husband, if he was to hit me, I would press charges against him.

THE COURT: Is there--can you think of any incident or any occurrence in your apartment in the first couple of weeks of October of last year that might have caused the neighbors to indicate that they recollect a rather loud fight with crashing around and breaking glass and shouting and that sort of thing?

JUROR NO. 462: Nothing comes to mind. I'm really surprised to even hear anything of this nature. I don't even have a relationship, and it's probably unfortunate, with my neighbors where I could even see the concern. I asked my husband last week, I said, "Well, have anybody asked you where I am," or whatever, and he said they haven't asked anything. So it's not like I have a close relationship with my neighbors. So I--to say that they would know anything that was going on in my house and just to think of--nothing comes to mind that--no. I'm very conscious that I have two kids in that house, and there's no way I would subject them to anything like that. This is a total shock to me. I haven't had a perfect marriage. I mean, me and my husband had to grow accustomed to living together, two adults living in a house, one strong-willed as he is, but we got to a point we learned to live together. But there was never violence. I would not put my children through that. I didn't grow up in that environment.

THE COURT: Okay. All right. No. 462--any questions, Mr. Cochran?

MR. COCHRAN: None, your Honor.

THE COURT: Miss Clark?


THE COURT: 462, I'm going to instruct you not to discuss what we've just talked about here with anybody else on the jury or your husband for that matter. But you understand that when I get anonymous reports, I have to--

JUROR NO. 462: Yeah, I understand.

THE COURT: --look into them. And I need that back, please. All right. Thank you very much.

JUROR NO. 462: Thank you.

(Juror no. 462 exits chambers.)

THE COURT: Well, this is certainly bad timing for 462. All right. Gentlemen, what's your--ladies and gentlemen, what's your pleasure here? Any comment?

MR. COCHRAN: Well, she indicated that there's never been any physical violence. I think she seemed credible to me. I think she seemed credible. I think you need more than that based upon--

THE COURT: Well here's the problem.

MR. COCHRAN: --hearing her talk about domestic violence.

THE COURT: But her declaration in the court file indicates that she was on two occasions forcibly made to have sex with her husband and was shoved around.

MS. CLARK: She feared that he would beat her next.

MR. COCHRAN: I missed what you said.

THE COURT: In her declaration in the domestic relations file, she does say that she was twice forced to have sex with him and that he had pushed and shoved her in front of the children. So that is different than--

MR. COCHRAN: I think what we ought to do is to--I can answer that quickly. She said he never beat her, struck her, she wouldn't stand for that. Maybe we should ask her about that specifically.

THE COURT: Oh, I did.

MR. COCHRAN: We didn't follow up and ask her, "What did you mean by this?"

MR. BAILEY: Why don't you call him in.

MR. COCHRAN: Or the neighbors. She said she didn't remember an incident. Sometimes there are incidents where neighbors for whatever reason say things. We're down to seven jurors. She's been pretty good. I'm particularly sensitive to her because I saw what she went through yesterday. In fact, she stayed here yesterday evening. I think that, as with 602 and some others, she deserves some further checking and we should ask her about that and maybe these neighbors.

THE COURT: I'm going to order everybody in this room not to discuss this with anybody. This is the first juror issue that we have that hasn't hit the press first before we had a hearing on this. So I'd appreciate keeping it that way, especially on this one. All right. We'll see if the neighbors are available or the husband is available.

MR. COCHRAN: Then I would like to get a shot at the end to come back and ask those other questions. I didn't ask them now. It seems pretty clear.

THE COURT: All right. Let me have the reports back.

MR. COCHRAN: I think we gave them back to you already.

MS. CLARK: May Mr. Darden address the Court on this? Can I have a moment, your Honor?


(Discussion held off the record between the Deputy District Attorneys.)

MS. CLARK: You are going to talk to the neighbors, right?

THE COURT: I might. I'll think about it.

MR. COCHRAN: What was the question?

THE COURT: She was asking if I wanted to talk to the neighbors. I said I might. I'll take your suggestion that we do that under submission.

MR. COCHRAN: I just think that based upon that, you have to ask her some more questions. This isn't like finding a list, you know, you get some people who are upstairs making some allegations. You've got her saying, "He never hit me. He never did this." So I think you need to talk to them before you make a final decision.

THE COURT: I want to pull up her voir dire as well. I want to take a look at that as well.

MS. CLARK: If there's complete denial of anything ever happening, we excused another juror--not 620. She at least admitted in her questionnaire that there had been prior occasions of problems. The first one we excused in fact I think.


MS. CLARK: And so she was much more forthright and didn't have--and didn't have all the papers filed. I mean this one does with all the reports of the neighbors. You know, she had a problem too--I'm not disputing the ruling. I'm just saying she was excused and she told the truth on her questionnaire.

MR. COCHRAN: If you're talking about the Hispanic lady, she didn't tell the truth.

MS. CLARK: She said she had been shoved twice.

MR. COCHRAN: This lady said--

MS. CLARK: This woman's been raped. What do you call that?

MR. BAILEY: It wasn't legally rape in `88.

THE COURT: Hold on.

MR. COCHRAN: We didn't ask her that question.

THE COURT: You guys don't get to talk at the same time. You're driving the court reporter nuts. Let me take a look at the questionnaire. I'll have one of our busy bees pull out the voir dire, and we'll see what's there and we'll deal with it accordingly. Hopefully, we'll wrap this up this week if we have to. Let's go back out and finish Kato mania.

(At 9:30 A.M., in camera proceedings were concluded.)


Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in camera:)

THE COURT: We're in chambers with counsel.

MS. CLARK: Are we going to handle 462 now?

THE COURT: You know, I just really don't feel like it to tell you the honest to God truth. The Defense had asked for--that we bring in some of these other people from the apartment to talk to us about that. My inclination though is not to necessarily do that because I think there's such a conflict between the 1980 court file and what she said in her questionnaire.

MR. COCHRAN: The reason I ask is, it's so peculiar. I mean, I don't think we have the right, either side, to investigate these jurors, number one. So I think when you have that kind of allegation or whatever--I mean somebody makes that allegation, I think we have a right to hear that. We are far into the trial and we have seven alternates. That's why I asked. I think it's the fair thing to do. We're not investigating anybody. We don't know really if this information is wrong, if this was some kind of way somebody is trying to get jurors off. I'm not saying that, but I think we have a right to know how this got here.

THE COURT: You know how it got here.

MR. COCHRAN: I know what the allegations are. I'm just trying to say, we are entitled to hear this upstairs neighbor or whatever it is with the others.

THE COURT: Mr. Cochran, the problem is, you have a domestic relations case file with a declaration by her under penalty of perjury alleging spousal abuse and in fact conduct that is now a felony crime. So it's--none of that was disclosed in her questionnaire. And if you recall, the way we left it was that I was going to take under submission the request to interview these neighbors, and I was also going to go over and pull her voir dire from the record to see what she said regarding spousal abuse, domestic violence and all that. And she said exactly nothing, disavowed any personal knowledge, experience. So--

MR. COCHRAN: And I don't--but the point I was making, Judge--

(Discussion held off the record between the Deputy District Attorney and Defense counsel.)

MR. COCHRAN: The point is, with her--I mean she did and I saw the paper--the paperwork. She did have an explanation. She said that this--apparently her position was, it wasn't as bad as it sounds. I know what the allegation said, but she said she was never struck by this man, never pushed, that she wouldn't tolerate that is what she said. You know, I've expressed myself. I just think when we're in this situation where we've spent like three million dollars and we're down to seven and we have--I mean, after all, it would inure more to our detriment. But I think given what we have gone--I look at 620. We had witnesses forever on him and on the other people. So this would be the first one where all of a sudden, we say, okay, you're gone.

THE COURT: It's a much easier factual situation. I have her voir dire and I have her questionnaire under penalty of perjury and I have a diametrically opposed declaration under penalty of perjury under a court case.

MR. COCHRAN: The difference is--look at 620. 620, you brought people up here for days. And 620, it became pretty clear. I mean, we all knew that 620 was having his last supper any number of days. It was just like--I'm just saying the same standards should apply, especially under this situation, so late in the trial that we get these allegations. I don't see what's wrong--if there's these allegations, what's going to be the problem of having the people making these allegations come in about hearing noises upstairs.

THE COURT: I'm saying those allegations have nothing to do with any decision that I have to make. It's interesting. It's background information that Deputy Downs and Deputy Brown felt that they, as good investigators, should follow up on. But the fact that I have a statement in our jury questionnaire and her statements during voir dire which completely disavow any experience with domestic abuse and I have a domestic relations court file which she files under penalty of perjury alleging verbal abuse by the husband, been allegedly shoving her in front of the children and alleging forced sexual intercourse on two separate occasions, that's pretty hard to ignore. And it's in her own handwriting.

MR. COCHRAN: She saw it and you heard her response.

THE COURT: And I heard her response.

MR. COCHRAN: So that's our position. I think that we're entitled to hear from at least one or two--

MR. BAILEY: Your Honor, can I make a suggestion?

THE COURT: Surely.

MR. BAILEY: I think in cases like this, it's necessary for the court to come up with something innovative. And my suggestion would be--as you may come to a point where you are going to throw away millions of dollars--to relax a little bit on jurors. If this woman exaggerated in the complaint in court, she was essentially telling the truth to you, I don't think she should be disqualified. But even so, if you could from now on cull, what we call, and conditionally discharge these people so well into the trial, then if you face the prospect of getting down to 11 or 10, at least you've got some balance. If you send her home now, you can never get her back. She's so clear-cut. It would be one thing if you were talking about a situation where you had a multitude of witnesses saying, he said, she said situation. But you don't have that here. This is very stark.

THE COURT: The one thing that's interesting to me is that, were one to look at this case in the abstract and what we have here, it would seem to me that the Defense would want her off in the worst way, that the Prosecution would want to keep her. And I see the diametrically opposed position.

MS. CLARK: It has to do with the reason for lack of candor and, you know--but if we are talking about parity of treatment, we excused 320 although she was forthright in her questionnaire about having suffered domestic violence and indicated--indicated--at least that there was something to be flagged there and something to be concerned about. The Defense accepted her. Yes, it's true the event occurred during her stay in the courtroom. But there was really no credible evidence that she was attempting to hide anything, unlike this situation where we have a real obvious effort to hide and deny prior experience that is proven by documentary proof. This one is so blatant that it's not--it's not appropriate for the balancing, although I think that Mr. Bailey makes a good point. If we do have that situation where we have gray areas with the jurors, we might want to hold on to the very end and see who we must excuse and who not. But this is certainly not one of them.

MR. COCHRAN: I disagree with that from the standpoint--as we often do disagree--that with regard to 320, 320 was--this relationship, that was the worse--320 had a relationship that we all agree were bizarre. When that man came in here, "R", she hadn't told us the extent of that physical abuse. That was clear. I think that you know what our position has been because we indicated it to you.

THE COURT: Okay. I'll take under submission Mr. Bailey's gray area argument.

MR. COCHRAN: Part of what Mr. Bailey is saying to you, we're all going to--like you talked about all going to dinner after this case is over. We won't be able to go anywhere in public, some of us won't based upon--if we fool around on this case and you spend 3.5 million dollars of the county's money, and at the end, they won't stipulate to 11, whatever, you know, is going to happen. So we ought to keep that in mind.

MS. CLARK: We would probably.

MR. COCHRAN: Did you put that on the record?

MS. CLARK: Well, I have to talk to Chris about that.

THE COURT: All right.

MS. CLARK: But with respect to the future, yes. I don't think that the gray area exists with this juror, but it may--with future jurors, very well be. With respect to the Special Master issue, is there any reason why we can't be apprised of the nature, what we're talking about now?

THE COURT: Well, how about we wait until we get the report so I know what we are talking about. I'm not sure I know what we're talking about yet.

(At 9:30 A.M., proceedings were concluded.)


Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in camera:)

THE COURT: Let's finish our inquiry regarding 462. Let's go on the record regarding 462. Can I have Deputy Magnera here as well too?

(Brief pause.)

THE COURT: Any further comment regarding 462? I indicated to you that I would consider Mr. Bailey's argument to be a little more relaxed in our decision to excuse certain jurors from the jury given the fact that we are now down to seven alternates and that the Court--and that we foresee many, many months yet of trial presentation in this case and that it would be wise to hold on to as many jurors as we possibly can. I've contemplated that, and I'll hear if anybody has any further comment before I rule on the status of 462.

MR. COCHRAN: I would ask to be heard briefly and ask the Court to waive the one-lawyer rule to give somebody else a chance to talk if somebody else wants to talk. I'd just ask the Court--the Court will recall that I asked you to consider the source of how these things came to us and call some witnesses, which I presume you're not going to do. But I would like, at least before the Court makes a final decision regarding this issue, to inquire of the juror about this so-called affidavit which she admits was her affidavit and her understanding of what took place vis-à-vis these things. And the reason I say that is, sometimes when lawyers in domestic violence get involved--and I don't know if there was a lawyer involved or not--there's a certain amount of puffing and you hardly recognize yourself when people are saying things. So I just thought that probably you need--we would need maybe some further questioning out of fundamental fairness to her. And then I will piggyback on what Mr. Bailey says, which kind of piggybacks on something I said. One of the worse things that could happen in this case would be that we spend three million dollars of the county's money and it's June 15th and we're out of jurors. Now, we are used to getting criticized as the lawyers. But there would be a certain amount of criticism upon your Honor that would probably be unprecedented. I think we all want to guard against that. Sequestration is not punishment. I don't know how much fun the jurors are having. I imagine--now, I don't know if you read that questionnaire, but it seems to me we talked about April or May finishing this case, didn't we? And that doesn't seem like that's as feasible as we once thought. I don't know--somebody needs to tell these people that. And when they do hear that, I don't think they'll be too happy. I expect we may lose one or two more just out of attrition or whatever, also of the acts of God. We've had five deaths already, and hopefully we won't have anymore. But there's a likelihood we will have some other deaths. And depending on the closeness of the person, somebody may use that to get out of here. So I just think it's a good position, that we should be careful about excluding jurors who some haven't done anything wrong since they've been here, and I just ask the Court to take that into account and also consider talking with her further about your concerns on the declaration.

MS. CLARK: Can I be heard?

THE COURT: Mr. Bailey. Let me hear from one side. Then I'll hear from the other side.

MR. BAILEY: If you should find a basis on the questioning of this juror, who seems surprised at allegations that her husband used--but nonetheless filed a document which apparently you should find as a fact, as is factually the case because nothing is more volatile than domestic litigation whether lawyers are involved or not--but if that was an exaggeration in anger to get some relief from the Court to punish the husband and that the rest of the statements are truthful, that is, there was in fact notice of abuse, I think the question raised is to whether that alone merits disqualification. If the questionnaire said specifically, "Have you ever filed any," that's one thing. If it said, "Have you ever been abused," she may say she hasn't. If you look at it carefully, it's a weak allegation of abuse, verbal abuse, shoving, compared to what we normally see in these cases with physical striking, bruises, things of that sort. That's not a very heady issue for domestic abuse. If that is false and not what's happened, then I question whether this juror's honesty ought to be impugned to the extent we lose her.

THE COURT: People?

MS. CLARK: Yes, your Honor. I'm mindful of the need to not improvidently excuse jurors in view of the fact that the case is apparently going to take longer than we thought. But when you have a situation where you have a juror who made representations in such sharp contrast to reality, one has to ask is there much veracity in the other representations of fairness and impartiality in that juror. And this is one juror who is absolutely in very stark contrast between what has occurred in here and what she has said on voir dire. I questioned her. I remember this woman--what she put in her questionnaire was not only--disavowed any personal experience, but claimed to have some tangential contact with another person who had the experience. So I mean it was an absolute fabrication on top of an admission, which is something very--the Court has been given a very clear indication about this juror and her--and her credibility and veracity, which should not permit her to stay any longer. I think that if this were more of a gray area situation where you have one juror saying, "Well, this juror kind of said something about one of the lawyers," or, "Won't sit with us during every meal," you know, then you are talking about gray area situations that are not misrepresentations made to the Court and counsel under penalty of perjury. That's a different situation, and maybe we should hold off on those and see how those work out. That is not--I think we should hold off on the excusal of jurors when you have questions about the way they're interacting perhaps where it's not absolutely clear in those situations where you don't have absolute acts of perjury. You have an act of perjury before you, your Honor. That's not a gray area, and we cannot afford in good conscience to leave a juror like that sitting on this jury who's obviously never been of a fair and impartial frame of mind. So there's a distinction there and it's not--I think Mr. Bailey had a good point about not jumping to excuse them. I agree in those gray areas.

THE COURT: We haven't. We thought about this for several days. This is not a conclusion we are jumping to.

MS. CLARK: I don't think we jumped to any of them. Every single excusal has been pondered, repondered, argued, argued repeatedly, researched and investigated fully. This court has taken a great deal of pains to make sure that nothing has been done impulsively. I can't think of what the opposite of the spectrum of impulsive is, but that's what this court has done. It has made every effort, rethinking its position. Everything has been very carefully decided. We still have the six alternates, and I think that will be plenty to complete the case. And I cannot imagine that anyone is going to have any criticism on this court after having 12 alternates. I mean that's--that's beyond belief. That would be a second guessing. That would be--I think would not occur and would not be fair. But that's not our situation and we are not going to wind up with too few jurors. But we do have a juror here who has committed perjury. I would remind the Court also, this is not a situation of lawyer puffing. Mr. Cochran and I are both well aware of the fact that domestic lawyers will take a minor allegation and puff it up until it's a major story. But this was an allegation filed by this woman herself--she was in pro per--to alleviate a situation which was untenable for her. We can only speculate as to how severe the harassment was to actually cause her to seek the assistance of the Court in a situation where she wasn't willing to leave her husband. I mean, this is a very telling situation. It's one thing if you're trying to gain advantage in a divorce situation. She wasn't. She was seeking assistance from the Court to interfere so she could stay with her husband who was making her life miserable. This is a very different situation than the jockeying for position that you might find in a divorce case, for example, where the husband is simply seeking to save money on child support payments or something like that. But in this situation, she wrote these allegations herself. And I don't know how Mr. Bailey could possibly know if they were exaggerated. It actually sounds like it was a more mute version of what was going on given the fact she sought court intervention when she was not going to separate from him. Furthermore, I don't know how anyone could call these weak allegations of abuse. What this woman described to is rape. I don't call that weak. I call that appalling. And she indicated in that declaration that not only had she been raped on more than one occasion, but that she feared that the pushing and shoving would escalate into actual physical beating, which it appears it has; and the experts have told us it usually does, and it obviously has so occurred in her situation. So this is a--this is a very obvious case for excusal, a situation in which you have a juror who has perjured herself on a very key issue in this case and which is indicative of strong bias and a lack of credibility with the Court. And I think that the situation is a very sad one and I have great empathy for this, Judge. Nevertheless, I don't see how there could possibly be--how it could possibly be appropriate to allow her to remain at this juncture. Can I ask if Mr. Darden has anything he would like to add?

MR. DARDEN: Not at this point. I'll wait until Mr. Cochran finishes.

MR. COCHRAN: All I would say, your Honor, in response to what Miss Clark said, that this is not nearly the case of somebody who violates a court order, who does actions once they've been here like 602 has clearly perjured himself regarding the list, getting the list, whatever. This is a lady where everything we're talking about preceded her coming here. This would be a different motion if this were about whether or not she had any problems with domestic violence. We aren't making that motion. If you look at the pleadings that come to us in a strange fashion, she says, "My husband never hit me, never struck me." I think at a minimum, I'm saying that the Court needs to make some further inquiry about this, because to go from that to say she committed perjury, this became a rape--nobody asked any questions about this. I think Marcia Clark and I certainly would agree that we wouldn't just take what somebody puts down on paper as gospel. So I think she's entitled to at least that. I'm talking about not rushing to judgment. One of the parts of not rushing to judgment, you get all the facts and you just don't say, "This is what it says here, so you're gone." Superimposed upon that is the fact that we are losing jurors at a pretty good clip. We're halfway through the trial and maybe we've lost half of our alternates. I don't know--Marcia says you can't do things based on criticism. None of us do. I think there will be criticism if there's a hung jury in this case, and I think we'd all be surprised if that didn't happen. So that's not the final test. But it seems to be a wise person who would certainly take that into consideration at the earliest possible time, and I think that's what the genesis of Mr. Bailey's thought is. I just would ask you to query this person. I think she deserves that. Every time a juror is kicked off--and this is somewhat different--there's a certain stigma attached to it, and I think this is distinguishable from the lady who was kicked off, the letter carrier, because she was being beaten. We pointed it out to your Honor, and we pound out the relationship was severely volatile. Then we also talked to a witness. We talked to that person and we knew there would be greater problems. We haven't seen her husband. She said she wasn't beaten. So we haven't talked to him about it. We haven't talked to those neighbors who supposedly heard anything, a little different facts. I would ask the Court to consider that. There's no rush on this thing, and that's the point I would make.

THE COURT: All right. Well, I'll ponder this some more because the thing that concerns me, I don't want to lose all these jurors either, and I happen to have liked this person, this particular juror a lot. But I'm confronted with a pretty black and white situation here is my problem.

MR. DARDEN: May I interject this? And it is a situation I would like to remind the Court of. Juror number 320, the juror that we lost, as I recall, the date of the incidents reported by her neighbors, the abusive incidents, didn't they occur after this jury had been selected?

THE COURT: Yes. But I have to tell you that I'm not really considering those other neighbors' reports. It speaks to Deputy Downs' and Deputy Brown's very good investigation. I mean, I don't need to tell them to follow up on things. They go on their own initiative and ferret these things out. But I'm more concerned with--the basis of my decision in this case is the questionnaire, the voir dire and the declaration in the domestic relations file from 1988, the voir dire and the questionnaire that square with the declaration. That's the problem.

MR. DARDEN: When we had the issue with 320--

THE COURT: I have to tell you, I don't compare them. This is a unique situation.

MR. DARDEN: You know, I just want to say this. When it fit their purposes for 320, they were all hot and bothered to get 320 off the panel. Now we have this other juror, similar circumstances, a black juror whom they want to keep, and I point that out.

THE COURT: Mr. Darden, forgive me for interrupting you, but I don't see a racial component in any of these issues and--

MR. DARDEN: I don't either. I don't either. In any event, you know that--the Court has been pretty consistent in terms of which jurors were excused and under what circumstances, and I feel that if the Court remains consistent with the standards and policies the Court has basically set already, that this juror falls squarely within that.

THE COURT: What's the famous saying? Consistency is the sometimes indicator of a small mind, something to that effect.

MR. DARDEN: You said it. I didn't.

MR. BAILEY: Also the God of the common law.

THE COURT: All right. Any other comment? No. All right. I'll let you know tomorrow morning. All right. Then we should be prepared to go forward with Kaelin.

MS. CLARK: Kaelin is not here. And I'll let you know by 5 o'clock. Like I said, he's out of town.

MR. COCHRAN: We're trying to be cooperative. We were not told about this witness until now and there's a three-day rule. We do actually pull stuff and check it out. I think it's a violation.

MR. DARDEN: He's been on the witness list two months and, you know, you pulled the bags out yesterday. We didn't know about that.

THE COURT: All right. Hold on. Don't speak at the same time. All right. Take a look at your notes, Mr. Cochran, and, Mr. Darden, you'll give Defense counsel notice if we are going to see this person tomorrow?

MR. DARDEN: Absolutely, your Honor.

THE COURT: Okay. Then we will stand in recess until 1:30 with the DNA people. Send the jurors back.

(At 10:20 A.M., in camera proceedings were concluded.)

(Pages 21822 to 21844 redacted.)

THE COURT: With regards to--what was that number that we were dealing with? Was it 462 we were dealing with? All right. I've decided to excuse 462 based upon our conversations previously, and I am going to bring her in and--let me just do something here real quick.

MR. COCHRAN: Just with regard to 462, I don't know what you can do, but--we've already somewhat argued that. But the problem is, the press is already at her home. You know, there's nothing she's done from everything we heard at this point that warrants--anybody that volunteers for jury service, I am very cognizant of how they get a lot of criticism. Everybody that comes in this case gets tarred or whatever and it really is unfair. I don't know what she chooses to say, what programs she will be on or what her reaction will be, but I don't know what you can say from the standpoint of it's not fair to her from the standpoint of the press. I mean, that's why I wanted--the press thinks she failed to disclose that she was a victim of spousal abuse, which she denied.

THE COURT: I can do two things. I can delay doing this for a couple of days, and the press will get tired of sitting at her home, or I can--the sheriff's already have a game plan for this because they know they're already at her home waiting for her. They have a game plan that they are going to offer to her the opportunity to make as many phone calls as possible to maybe stay with a relative for the next couple of days or something to that effect. I don't know if that will help.

MS. CLARK: The press will be there until kingdom come.

MR. COCHRAN: I don't know if there's anything you can say from the standpoint--I just hate to see people's lives--trying to do their civic duty, to have their lives totally impacted or beyond this. There's also paranoia of the neighbors. You know, we told her about the neighbors. This is a bad situation in a way.

THE COURT: Yeah. No. It's not good. Well, do you have any suggestions?

MS. CLARK: I think the one you had about having her make phone calls, stay with a relative she should be apprised of.


MR. DARDEN: Or put her up at a hotel somewhere.

MS. CLARK: For a few days.

MR. COCHRAN: I think she shouldn't have to be brought out of a room full--plus hearing all these problems, what it's going to do, it's going to exacerbate--you know, I'm telling you how people are--exacerbate these problems back there. They are going to hook up that it has something to do with this person coming in here or whatever. It's going to exacerbate whatever problems we already have. I don't know. Maybe you ought to wait at least a day or so because I think we've heard enough about stepping on feet today.

THE COURT: No. I have had enough of this for one day.

MR. DARDEN: Me too.

MS. CLARK: The press is going to be there no matter when we do this.

MR. COCHRAN: May I make a suggestion? I know you've made your decision. I'm not arguing that. I don't know what the right answer is. I was going to say--

THE COURT: Well, do you think it would help if I delay it a day?

MR. COCHRAN: If you talk to her some more tomorrow, maybe--you know, I just--

MS. CLARK: Doesn't matter.

MR. DARDEN: At least, we should at least give her the option of being put up somewhere for a few days while she gets--

MS. CLARK: That's the only thing that's going to help.

MR. COCHRAN: That's not going to help, you know, with the press, Judge. This is hot. I mean if we put her up for a few days, as soon as she leaves, Ted Kopple is going to be out there.

MS. CLARK: If they go out there and can't find her though after they know she's been excused, they're more likely to give up.

MR. COCHRAN: Marcia, I don't think they're going to give up on something like this. The fact they know about this is outrageous. It's outrageous they know about this.

THE COURT: I think as a practical matter, since the trial has become dull and boring, I think they will want to run with this.

MR. COCHRAN: You guys don't come in the front of the building. That's all they're asking. "I don't know what you are talking about." That's the issue for today. If we do it today, you know, I'll submit it back to your judgment. You know, I don't know. There's not an easy answer.

MS. CLARK: I think we need to put her up somewhere.

MR. COCHRAN: She's put up now as it is. But I don't know if it goes down--why don't we do this, Judge. Let's come back in at 3:30, see how things go today. I just think--I don't know if it's best to do it this morning. But that's my thought.

THE COURT: Although the advantage is, they go back to the hotel, pick up their stuff and leave before the other jurors go back. So there's no more contact with the jury. The more you drag this out, the more it's going to be an anticipated thing. I mean at this point, now that they have this big story going, they're hot on it and they're waiting for it, and waiting for it to happen and anticipation about it can make it much more of a deal than just to take care of it. I think putting her somewhere for a few days is probably the answer because if they go stake out her house and don't find her there after being excused, they are going to have to go away. They just can't hang out indefinitely.

MR. COCHRAN: The problem is, she can't stay at the hotel. Let me tell you something. I don't think we should be too naive. I think she knows there's this investigation. I'm sure they know. If the media is already at her house, everybody probably knows that. I mean, you know, if the media knows, everybody knows that. So I mean, I don't think we have to kid ourselves about this. This is going to be a situation that gets exacerbated.

MR. DARDEN: I'm just concerned with the situation she's going back to, you know.

MR. COCHRAN: It's a bad situation.

MS. CLARK: Not just the neighbors.

MR. COCHRAN: She can't stay there.

MR. DARDEN: But she may need a couple days--

MR. COCHRAN: She doesn't seem to be worried about her husband. You can talk to her about that. It didn't seem to be a problem.

MR. DARDEN: People don't talk about that. I'm just saying--

MR. COCHRAN: She had conjugal visits.

THE COURT: All right. Well, the issue I see is whether or not there's any need--whether there's any point in delaying this. But I really don't think there is.

MR. DARDEN: Plus, you know, the press knows we're in here dealing with jury issues right now.

MS. CLARK: I think delaying it is going to make it a bigger event.

THE COURT: All right. Let's have 462.

(Juror no. 462 enters chambers.)

THE COURT: Good morning, 462.

JUROR NO. 462: Good morning.

THE COURT: Why don't you have a seat. No. 462, I want you to know that the concerns that I've had about the situation that involve you serving on the jury has caused me a lot of concern and I've spent a lot of time thinking about this since we last talked and I've been wrestling with this. The lawyers can tell you, we've talked about this on three different occasions since we last talked to you, and I've come to the decision that I'm going to discharge you now from the jury because of the conflict between the court file and your answers on the questionnaire. And I want you to know that this is not--has not been an easy decision for me. It's been one of the hardest decisions in this case to make and I've been wrestling with it for over a week now as you know, but I have come to the conclusion that I would feel more comfortable and perhaps you would feel the same way given the situation that we're in. I need to tell you that the decision and the issue somehow has been leaked to the news media. And the last two jurors that we have excused went home to find news media, numerous news media people camped on their front door waiting to interview them, and I've instructed the sheriffs to give you unlimited access to the phone after we leave this morning if you want to call any relatives or if there's anybody you can stay with for a couple of days if you want to try to avoid that sort of thing. But apparently--I think Mr. Cochran was telling me this morning that apparently the news media, as he was coming in the courthouse today, was asking him about whether or not one of the jurors was going to be excused and the reasons and they asked questions specifically with regards to your juror number. So I have concern that they've identified you from the questionnaire. I need to tell you that I'm going to order you not to reveal the identity of any of the other anonymous jurors, that you're not to disclose to anybody the location of the hotel where the jury is sequestered. And there is a new law in the State of California that applies to this case, that you can not agree or accept to--you can not accept or agree to accept any payment or benefit or consideration for supplying any information in relation to this case until 90 days after the discharge of this jury. All right. Let me give you a copy of the order right now.

JUROR NO. 462: Thank you.

THE COURT: And 462, you've made a tremendous sacrifice to be with us all this time and I apologize to you for that.

JUROR NO. 462: Can I ask you something for clarification?


JUROR NO. 462: What is your--are you saying that you feel that I'm a victim of domestic violence?

THE COURT: I feel that--I don't feel comfortable given the two documents that I have here.

JUROR NO. 462: Okay. I'm not understanding. I'm not trying to be difficult. My feeling is that--

THE COURT: You are certainly entitled to have an explanation for it. The explanation is this. The reason for my decision is your answers in the questionnaire are in conflict with your declaration in the court file.

JUROR NO. 462: How so? Okay. The problem that I'm having is, when I filed that paper--it hadn't crossed my mind since I filed it. When you gave it to me the other day was the first time I even thought about that paper, and I've been racking my brain trying to remember what I wrote in that paper. When I came down here or wherever I filed--because I don't even remember precisely where I filed it--I was assisted because I--what I wanted was my husband out of the house, and the clerk was telling me that I didn't have to appear before a judge, but he needed grounds to have my husband--a restraining order filed against my husband. And so I'm sure, knowing myself, that I put whatever needed to be on that paper to--so I'm asking you for specifics, what it is that's in conflict just out of curiosity.

THE COURT: The fact that you needed a restraining order against your husband and the statement he had shoved you in front of the children, that he on two occasions forced you to have sex with him, which is a crime in the state of California, that is in significant conflict from what was in the questionnaire.

JUROR NO. 462: I can't dispute it. Like I said, I don't remember what I wrote. So when I--as I leave here--and you're saying the media is involved. And what my concern is that my husband has not been violent towards me and it's possible that I could have written on that paper--at the time, I was very angry and I needed him out of the house and I put whatever I needed to put on that paper. My concern is that, are you telling me that the media is saying my husband is an abuser and that I'm a victim of domestic abuse?

THE COURT: I don't know what they're saying. I haven't read anything. But I'm--from the experience that we've had in releasing two other jurors, they went home to find the news media essentially camped out at their house. So I'm giving you a warning that that could happen here and--

JUROR NO. 462: Well, you also mentioned that my neighbors said something that occurred in October.

THE COURT: That's correct.

JUROR NO. 462: Which, you know, it's really a confusing situation for me because you said two of my neighbors. And I have three single neighbors. If you said to me a neighbor said this, I would say, oh, somebody lied. So is that anything--

THE COURT: No. That had nothing to do with it. The sheriff's department, who were doing the investigation, after reading the court file, went down to interview any neighbors and came back with that report. And I asked you for an explanation, and you told me that that did not occur. And that is not the basis of my decision to discharge you from the jury. So that really had nothing to do with it.

JUROR NO. 462: Okay.

THE COURT: 462, thank you very much.

JUROR NO. 462: Thank you.

(Juror no. 462 exits chambers.)

THE COURT: All right. Let's change court reporters and talk to Mr. Fung. And, Mrs. Robertson, you'll get our Lotto together?


(At 9:50 A.M., in camera proceedings were concluded.)


Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: The Defendant present with counsel, Robert L. Shapiro, Johnnie L. Cochran, Jr., Carl E. Douglas and Robert Kardashian, Esquires; Marcia Clark, Christopher Darden and Cheri Lewis, Deputy District Attorneys of Los Angeles County, representing the People of the State of California; also present, Milton C. Grimes and Bryant Calloway, Esquires, representing Jeanette Harris, and Ron Jesse; Glen A. Smith and Dennis F. Hernandez, Esquires, representing Ron Goldstein; Commander Patrick Holland for the Los Angeles County Sheriff's Department.

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in camera:)

THE COURT: All right. Mr. Goldstein, I'm going to make inquiry of Juror no. 462 first. So I'm going to ask you and your attorneys to step out of the courtroom. I'll call you back in a few minutes.

(Mr. Goldstein, Mr. Smith and Mr. Hernandez exit the courtroom.)

THE COURT: Mrs. Robertson, would you ask Mr. Grimes and Juror no. 462 to join us, please.

(Juror no. 462, Mr. Grimes, Mr. Calloway and Mr. Jesse enter the courtroom.)

THE COURT: All right. Juror no. 462, good afternoon.

JUROR NO. 462: Hi.

THE COURT: And, Mr. Grimes, you want to introduce yourself for the record, please, and your client?

MR. GRIMES: Yes, your Honor. Million grimes and Bryant Calloway representing Juror no. 462. Thank you.

THE COURT: Good afternoon, gentlemen. And we also have Miss Lewis, Miss Clark, Mr. Darden for the People, Mr. Shapiro, Mr. Cochran, Mr. Douglas for Mr. Simpson, who is present here in Court, and the public is not present. Also present is Robert Kardashian. Can we have our audience members identify themselves? First, the gentleman in the first row.

MR. GRIMES: Ron Jesse works with my office.

THE COURT: Good afternoon, sir.

MR. GRIMES: Thank you.

MR. HOLLAND: Patrick Holland, Commander with the L.A. County Sheriff's Department.

THE COURT: Good afternoon, Commander. Juror no. 462, would you take the witness stand, please. Good afternoon, Juror no. 462.

JUROR NO. 462: Hi.

THE COURT: Before I ask the clerk to administer the oath to tell the truth to you, I wanted to tell you why it is I've asked you to come in and tell you the general types of questions that I'm going to ask. Your attorneys are both here, and I've indicated to them that at any time you feel it's necessary to talk to your attorneys, feel free to ask me to stop, and you can consult with your lawyers. Also, counsel, at any time you wish to interpose an objection or make inquiry of the Court, you are entitled to do so.

MR. GRIMES: Thank you, your Honor.

THE COURT: Juror no. 462, the reason we're here is, after you were excused as a trial juror in this matter, you were interviewed on television extensively on three occasions; April the 5th with Pat Harvey, KCAL, April the 7th again with Pat Harvey on KCAL and again with Barbara Walters on the ABC network, 20/20 program if you recall.

JUROR NO. 462: Right.

THE COURT: And you have made some comments regarding the way the jury has been handled and some activities within the jury that obviously, as you know, have caused me some concern. And so I wanted to talk to you about that. I also want, before we begin talking to you, to tell you that I do not consider you to be a suspect for any criminal wrongdoing. You are not here for me to make any inquiry of that nature, but I am interested in the comments that you've made for obvious reasons. Do you understand the purpose of the Court's inquiry?

JUROR NO. 462: Yes, I do.

THE COURT: Mrs. Robertson.

Juror no. 462, called as a witness by the court, was sworn and testified as follows:

THE CLERK: Raise your right hand, please. You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God?


THE CLERK: Please state and spell your first and last names for the record.

THE WITNESS: Yes. Juror no. 462.

THE COURT: Why don't you pull the microphone just a little bit closer to you. All right. Good afternoon again, Juror no. 462.

THE WITNESS: Good afternoon.

THE COURT: Juror no. 462, in the April 5th, 1995 interview with Pat Harvey, you indicated that there are some racial problems with the jury and that you feel that some of the deputy sheriffs who are charged with handling the sequestered jury are promoting that racial animosity or problems. Do you recall making that statement?


THE COURT: Can you tell me what kind of activities or conduct by the sheriffs that you feel are promoting these racial animosity problems with the jury? Can you give me an example of that kind of conduct?

THE WITNESS: Just some of the preferences that they give white jurors as opposed to African American jurors.

THE COURT: Tell me about that. Can you give me an example of that?

THE WITNESS: Yeah. There was a problem with going to the gym. The white jurors didn't like going to the gym with us. I can't explain why. They brought in equipment because for whatever reason, and they exercised upstairs. You know, in my opinion, that wasn't the way to handle the problem. It kind of made it--brought it out further because they were given these special privileges. There was a month or so--

THE COURT: Let me ask you about that particular incident. In other words, the African American jurors were exercising in the downstairs gym?

THE WITNESS: In the hotel gym.

THE COURT: And the white jurors were allowed to exercise in their own gym upstairs?

THE WITNESS: Upstairs.

THE COURT: Were you excluded from that other gym?

THE WITNESS: No. It was never, "You can't come in here," but it was made clear we weren't welcome. And to make a situation easier, we just go, "Okay. We'll go on down to the gym at 10 o'clock," whereas the gym upstairs, you can go any time that we were there in the hotel. Deputy "A" in particular made it very difficult for us because we took a bad situation and made the best of it. We continued to go to the gym and we would exercise and go to the steam room, and now, "You can't go to the steam room. You can't go downstairs," after two and a half months. "I don't have enough manpower to take you downstairs." So we tried to deal with that. "Fine. We'll exercise upstairs." And myself in particular, one night I was in the gym, another juror, 1233, she came into the gym, and he told us we couldn't exercise together whereas the previous night, other jurors were exercising together.

THE COURT: You and 1233 were told by Deputy "A" you could not exercise together?

THE WITNESS: Together.

THE COURT: And was that the downstairs gym or upstairs gym?

THE WITNESS: The upstairs. This is actually when we were told we could no longer go to the downstairs gym.

THE COURT: Okay. You were about to tell me about another incident of preference.

THE WITNESS: Regarding the gym?

THE COURT: Yes. Regarding the gym or any other preferential treatment.

THE WITNESS: The telephones--when we would sign up to use the phone, we would put our names on the list and you kind of--you would stay in the--near the telephone room because you didn't want to be in there where other people were speaking or going to the movie room or whatever, and they would call out, "Juror number so and so, it's your turn." Well, 353, she could go into her room or wherever she wanted. They would track her down, "It's time for your phone call." But if we weren't available, you missed your call.

THE COURT: This wasn't done for anybody else?

THE WITNESS: Not that I recall. If it's happened, you know, with anyone else, I didn't--I wasn't aware of it.

THE COURT: Can you give me any other examples of preferential treatment between race and group of persons?

THE WITNESS: Well, what is her number? 453 came out to make a phone call and the phone room was locked. She asked, "Can I make a phone call?" The deputy--I mean he really--"I just went on my break and the room was open for 20 minutes, and now you come and you want to make a phone call." And she was very upset because he just really jumped on her throat. We calmed her down, "Don't worry about it." 1427 comes out, we're about to leave to come to court, she says, "I need to make a phone call," and there was no problem, "Fine." Deputy--I don't remember which deputy took her to the room, but he escorted her back to the room and she made a phone call.

THE COURT: With regards to 353, you indicated that the deputies would go track her down when it was time for her to make a phone call. Which deputies did that?

THE WITNESS: To be honest, I couldn't say what deputy actually. It seems like there were a number of deputies, but just to call a name, I can't say who tracked her down. But it was just the deputy--you just knew when it was time for her to make a call, if she wasn't available, he would find her. So I couldn't say the name, you know, specifically which deputy.

THE COURT: Any other instances where you feel there was preferential treatment?

THE WITNESS: Yes. When we first went to the hotel, there was one movie room. And as a group, we would vote to watch whatever. And at first, it wasn't that big of a deal. We watched whatever and it--juror 353, at the time 217 was still there, 1290, they always had a problem with what we watched and they were always outvoted. They would continuously run to the deputies complaining, "We don't want to watch whatever," and they would tell them, "Well, eventually your movie's going to come up because they're going to run out of movies." The next thing we find out, there's another movie room. We were told by Deputy "B" that the movie room where we watched movies, "You can't watch a movie until they've viewed it in the front room," this new room. If there were eight movies and we wanted to watch something and they were watching something else, we could not watch that movie until they did.

THE COURT: What deputy told you this?

THE WITNESS: Deputy "B". He put a schedule on the wall. I don't know who chose the movies or who put together the schedule, but until that room viewed the movies, the second room, the initial room could not view them, which resulted in, there were times when there was something we may have wanted to see and it would go back to blockbuster because they didn't get around to seeing it and the movie just sat on the shelf.

THE COURT: Okay. Well, what is there about the two different movie rooms? I mean they're not segregated rooms.

THE WITNESS: No. It was just, I guess they felt if there were two rooms, this vote thing, you know, wouldn't get out of hand. What we ended up having to do is go into the front and watch the movies with the people that had the problem in the first place, which put us back to square one. We were altogether in the same room, this time with a schedule.

THE COURT: All right. Why do you feel creating a schedule was preferential treatment, one group against the other?

THE WITNESS: Because the movies that were on the schedule from day one that were given priority were movies they wanted to see. There was rapport between Deputy "B" and these particular jurors and he said he came up with the schedule and he had nothing to do with it, but I find that hard to believe. They were all movies that they wanted to see.

THE COURT: All right. But if that group didn't want to watch your movie and your movie--I mean, how did this come about? It just doesn't make sense.

THE WITNESS: Because they were outvoted and they didn't like the idea of being outvoted.

THE COURT: Okay. Tell me about this Target and Ross incident.

THE WITNESS: One day when we were on the 11th floor, Deputy "C" told us that we were going shopping and you could either go to target or Ross, which was fine. Juror again 353 and 1290, 1386, "Well, we want to go to both stores." So they had their little side conference, and he says, "Well, okay. You guys can go to both stores." And we just happened to overhear him say this. So we addressed it. "Well, if they can go to both stores, why can't we go to both stores?" So he said, "Fine. You guys, you can go 30 minutes to target, 30 minutes to Ross or you can go to--an hour to one or the other, but an hour is your time." So we got to Ross--most of us went into Ross and we were there 30 minutes. We went to target. They stayed in Ross. We were with Deputy "D". And after being in target for 30 minutes, he rushed us out, "It's time to go. You got to go." So as he--and we're complaining, "Well, what's the rush," you know, "We're going to rush back to the hotel, sit down and wait." So we're going through our exchanges with him and they come strolling into the store after being at Ross for an hour. So we told him, "Well, they're coming to shop now. Why do we have to leave?" So Deputy "C" and Deputy "H" were on the radio, had Deputy "I" go with the ones that stayed at Ross, and they had conversations between themselves and it ended up okay. They shopped an hour at Ross and 30 minutes at target while we were rushed through the two stores.

THE COURT: You weren't allowed to go back and shop? Did you all go back on the same bus or same group of buses?

THE WITNESS: We ended up waiting at Burger King coming out of Ross.

THE COURT: Did you ask to go back and finish shopping?

THE WITNESS: Oh, yeah. We had a big discussion. And it was not so much--it was just the idea, you know, if--after you go through these things for however many days we were there, it gets pretty aggravating.

THE COURT: You indicated that you felt that the deputies should have a different attitude, that they should be more professional. Can you tell me what leads you to that conclusion, why you feel that way?

THE WITNESS: It's just, I do a lot of work with employers and my work is how to be more productive. And we found that people--if you give people a certain feeling of empowerment--a lot of times, the deputies made us feel--and I won't say us. I'll say me--feel as if I were a prisoner, you know, the tone of their voice. And not to put all the deputies--because there were some really nice deputies that went out--when Deputy "E" would say good morning to you. If he didn't say that, that would make a difference. We really appreciated that. Deputy "C", he was very professional. But some of the deputies would say things to us where you just felt like screaming, "Look, I'm not a prisoner." And my opinion, when you put yourself in a position and say, I'm doing this job and it affects a person, you should do that job one hundred percent, not--"I understand you deal with prisoners, but you need to understand I'm not a prisoner." And I had that encounter the very first day I was here in court, you know, where I had to say, "Look, I'm not a prisoner," and I didn't appreciate having to say that.

THE COURT: When you say there's a lack of professionalism--you said there's a problem with attitudes, but also--which that's what I take that last comment to be, an attitude toward you. But you also said a lack of professionalism. Can you tell me--I mean, I see that as two different things.

THE WITNESS: Well, there was no consistency. Depending on who was on duty, that was the rule. From one deputy to the next, the rules changed and we were required to bounce back and forth.

THE COURT: I see. Okay. Then you in your second interview with Pat Harvey, you indicated there was a problem of--you said there's no consistency in the faces of the sheriffs. You see a difference every day, but I take it that's what you mean, because they change shifts and you're dealing with different groups of deputies, that the rules would then change from shift to shift?

THE WITNESS: Drastically.

THE COURT: Okay. I see. You indicated that the jurors are not totally cut off from the outside world and you stated that it's possible for information about the trial to get into the jurors from outside sources. Can you tell me what brings you to that conclusion?

THE WITNESS: Well, when you're talking on the phone, the deputies can hear your end of the conversation, which I guess it's fine. But they--there were times when we would come in and the deputies would say, "Who are you calling?" You would say, "I'm calling so and so," they'd dial the numbers and admonish them not to talk about the case. And I can recall a couple of times when people are like, "Wow, what are you doing calling here," whereas even that presence might put a person in the mind, "Well, I can't talk about the case."

THE COURT: In other words, sometimes the formal procedures of deputies dialing the number verifying who was there, telling that person that they were not to discuss the case and then handing you the phone, that procedure was not followed each time?

THE WITNESS: Not each time.

THE COURT: All right. You also indicated in I believe it was the first interview with Pat Harvey that there were occasions when you were allowed to make unsupervised phone calls.

THE WITNESS: Well, that's what I mean. The deputies would usually--there's one deputy on the phone room and there are four phones. But there are times when the deputies would play cards, you know, and you've finished your call and you'll say, "Well, I would like to make another call," and oh, you know, it was like you were an inconvenience and they'd say, "Well, call," you know, do--you know, and that's not supervised.

THE COURT: Can you tell me what deputies were playing cards and said, "Well, just go ahead and call"?

THE WITNESS: Deputy "I" played cards, Deputy "B", Deputy "F". Basically any of the deputies--the ones that were there during the week that were regulars were really comparable. On the weekend, they rotated and they were new a lot of times and they did things precisely by the book. But I think the ones that were there regularly, they just got too comfortable.

THE COURT: Can you remember a time, a specific time when somebody just said, "Just go ahead and make your own phone call"?

THE WITNESS: Many times that I can remember.

THE COURT: Can you recall what deputy told you to just go ahead and make the phone call?

THE WITNESS: Deputy "B" did a lot of times. Basically, Deputy "B" would say, "Go ahead, make your phone call," but there were other times--not as many maybe as Deputy "B"--Deputy "F" would say, "Go ahead, make a phone call." Not routinely. It wasn't routine for him. I guess basically, Deputy "B" would. And the phone room was like a punishment assignment for the deputies. They didn't like that assignment. So it was a big joke to all the jurors, you know, going to the phone room.

THE COURT: You indicated that the jurors were not closely supervised during family visitations. Can you tell me about that?

THE WITNESS: I guess about three weeks ago, I had visitors, and we looked up, and the deputies were in the front of the--where you first initially walk in as opposed to the giant room. And there were no deputies at all on the floor. They were, all four deputies, sitting at a table playing cards. And I hadn't noticed. Somebody that was visiting me said, "Well, where are the deputies?" It's like oh, and then everybody started noticing where are the deputies, and they were playing cards.

THE COURT: Do you recall which four deputies were just playing cards?

THE WITNESS: I would--no. I would hate to say this deputy or that because I don't know definitely. I know it was four because we had the conversation.

THE COURT: Do you recall how many weeks ago this was?

THE WITNESS: This was--maybe three weeks ago. It was three weeks ago.

THE COURT: Do you recall who your visitor was? That way, I can go back to visitation records and determine what day this occurred and what deputies were assigned to the visitation room.

THE WITNESS: My husband and my two children and my sister were there.

THE COURT: Were they your normal visitors?


THE COURT: But you figure about three weeks ago?

THE WITNESS: About three weeks ago.

THE COURT: Do you recall any other occasions where it came to your attention that the deputies weren't present in the visiting room to monitor what was going on or was this one occasion?

THE WITNESS: Routinely, Deputy "G" sat in a particular spot. That's the only person that I really can remember like having a post. The other deputies, it varied.

THE COURT: Did you have the feeling that the deputies who were on the occasions they were actually present in the visiting room, that that had some effect from keeping any discussion from occurring?

THE WITNESS: Oh, I'm sure it did.

THE COURT: You indicated that there are pressures on the jury that need to be addressed and relieved, but you indicated you had no idea how we would go about doing it. First of all, can you tell me what kind of pressures you think the jurors are under right now that need to be addressed?

THE WITNESS: You know, one of the things we talked about was, who's next, you know. That was--the jury feels--well now, I won't say the entire jury, but a lot of people on the jury, we've had conversations like, who's next, and you felt that way because of things that happened. I can tell you a number of times that I've come into my room--and I'm a person that values my space and I know when it's been invaded and I know that my room has been searched, and I feel like, well, if somebody is searching my room, something's up. So you sit there and you wait for the shoe to drop, you know. So that's pressure in itself.

THE COURT: Any other pressure issues that you were addressing when you told the TV interviewer that the jurors were under pressure and that it needed to be relieved? Anything else that you can think of that might have been cause for you to say that?

THE WITNESS: Just the--it's just difficult living--you live and breathe and you're in the situation 24 hours a day. Just those pressures themselves I believe would cause a person to maybe see things in a certain way or not see it or hear things in a certain way or not hear it because of those pressures. And it's easier--you know, you go to work and you come home in the evening, you can unwind. You're not able to unwind while you're sequestered. You're sequestered 24 hours a day, and I think it will have an impact. I'm sure it will have an impact. If you just really want a jury to sit there and do it--I believe probably people want to do the best job they possibly can, but you feel they're being pushed into something that probably shouldn't happen.

THE COURT: How do you think I should deal with that?

THE WITNESS: Well, one thing, it should be made known that all those jurors and alternates are equally important and that any concerns you have or a concern--"If you're concerned about it, I'm concerned about it."

THE COURT: You indicated--and I ask this question of you given your employment and former juror. You indicated you feel more time should have been selected in selecting the deputies assigned to this particular assignment. What would you have done differently? What are the qualities that I should be looking for?

THE WITNESS: I would have--I don't know the makeup of the sheriff's department, if they have people trained in certain--I'm sure they should. But one of the problems is that myself and a couple other jurors found that there seemed to be a lack of management skills with some of the deputies, people skills, and I felt like--

THE COURT: Are we coming back to that attitude, how you deal with people?

THE WITNESS: Yeah. It's real important and they didn't seem to have it. You know, it's not that they needed a Ph.D. or several degrees in anything, but management skills and people skills are very important, and it doesn't seem to be that this was addressed. You know, you just don't throw people--go in there, say, "Watch over those people." And a lot of times when we would talk to the deputies and say something, we would say, "Guard," you know, "You're the guard," or whatever. And they took offense, but that's how they presented themselves, as guards.

THE COURT: Juror no. 462, let me ask you about two other areas at this point then. There's a reporter on the same channel, channel 9, by the name of David Goldstein, and he has reported that you had said to him in the presence of other persons that four or five of the jurors who are still on our panel either as jurors or alternates have openly discussed the case in your presence. Can you tell me if that's true?

THE WITNESS: That's not true at all. I spoke with Mr. Goldstein after my interview with Pat Harvey, but it wasn't a one-on-one conversation between himself and myself. I was in the general manager's office with Mr.--my husband, tawny little, producer by the name of Stephanie Medina. Pat Harvey was in and out. We were seated in the room. Mr. Goldstein stood at the door. He never even entered the room. And as he approached during the conversation, I was asked about how people--how did they click, and I was in the process of saying that like in any other situation, you have people who gather together as friends that have something in common. If it's at school, at church, at work or whatever, that's human nature. But to say that I said the jurors spoke out or had an opinion or said anything of that nature is an outright lie. I never said that and--

THE COURT: Might you have said anything at all that could have possibly remotely been misinterpreted?

THE WITNESS: There was not.

THE COURT: Because I think you can understand why that comment causes me such grave concern.

THE WITNESS: Yeah, and it should cause you grave concern. But I wouldn't--I can't even imagine saying that I spoke about the case to a person that I'm seeing for the first time in my life. Why would I walk up--who is a stranger to me, why would I walk up to them and say as a juror, I sat there and talked about the case? That makes no sense to me. And I have yet to hear that. Tawny little, Pat Harvey, the manager, the producer--I was never alone with Mr. Goldstein. Any time--the whole time I was there, there were several people in the room with us.

THE COURT: All right. So as you sit here today, you're telling me that at no time during your service with us, which has been for several months now, that anybody ever got together and discussed the facts or circumstances of the case?

THE WITNESS: The only time that I heard a conversation that remotely resembled that, I reported it to you, and I told you 2017 said what she said, and that's the only time I heard that.

THE COURT: All right. Appropriately, you brought that to my attention. One other thing I wanted to talk to you about. There was a kicking incident that you discussed that involved one of the jurors. And so our record is complete, you were seated in the courtroom as seat no. 7, which is the first seat coming out of the jury room, the second row. Can you tell me about this incident?

THE WITNESS: Yeah. When we would come back into the jury room, we would try to come in somewhat in the order that we sat so we wouldn't have to walk over one another. And a lot of times, juror 353 would--she would just lag behind. We would be forced to come in. On that particular day, she walked in--

THE COURT: When was this? Do you recall?

THE WITNESS: Well, the day that you got the note. And I don't remember the day. It was the day previous to that.

THE COURT: So by the date on the note, I should be able to tell. Okay.

THE WITNESS: And when she walked in, I mean, I went out of my way. I turned to the side so that my foot wouldn't be in her way. And what was amazing to me was, she literally picked her foot up and kicked me. You know, there was no doubt in my mind--you know, you want to say, well, maybe--or even if it was an accident, you're saying, well, people say "Excuse me." But she picked her foot up, she kicked me and she proceeded to, you know, go down to her seat and she took her foot and stomped 1489. Well, he's not as cool as I am and he kind of got upset. So we kind of well, okay, calm down. There is ways to handle things like this. I mean, when we went back into the jury room, he was still upset, very angry, but he didn't know she had kicked me. He--and I told him. When I said, "She kicked me too," he said well--what I told him, well, let's handle it in the proper way. He went out and he talked to Deputy "H", and she said, "Okay, give me a note." Then following morning, he gave her a note and she says, "I'll give it to Judge Ito."

THE COURT: Can you think of any reason why 353 would kick you in any way?

THE WITNESS: I can't imagine why she would kick me.

THE COURT: Had you had any other conflict or friction with her?

THE WITNESS: Oh, yeah. I mean, we weren't--there wasn't good--you know, the blood between us wasn't necessarily good, but we would--we never argued per se, but there was that body language and she knew that she didn't like me and I knew that I didn't like her. But we never--we never had any confrontation.

THE COURT: How about between 353 and 1489?

THE WITNESS: Well, 1489, he intimidated, I suspect just his presence, and not only the white jurors, even some of the African American jurors he would. Like if you're watching a movie, he would say, you know, "Could you guys hold it down," or whatever. If you were riding in the van, he didn't like a lot of noise, but I didn't--there wasn't the same blood between--I don't believe there was the same blood between he and her as it was between me and she. She--she--I don't know. I can't explain her. I can't explain her. I don't know where she's coming from.

THE COURT: 1489 is a rather large individual, 353 is a rather small individual.


THE COURT: That doesn't compute.

THE WITNESS: Mine neither. I was shocked.

THE COURT: Were you a witness to any other conflict between 1489 and 353?

THE WITNESS: Yeah. When he was watching a movie one day, she and 1427, they hit him in the head, you know, physically hit him in his head.

THE COURT: Do you know why they hit him in the head?

THE WITNESS: No. They were walking behind--he was sitting in the front row and they were walking behind him, and they hit him. And again, we're sitting there--and that's one of the things we did. We tried to keep one another calm. And myself and 1233 calmed him down and he addressed it. Now, this was the time there he addressed it. He told them one day in the jury room, you know, "You guys hit me. You literally hit me, and I don't like it." And 353 jumped up and ran and got a deputy. And then we were told, "Don't talk about anything in this room," where I felt he had every right--if somebody hit him, he had every right to say, "You hit me and I don't like it." But the deputies--

THE COURT: How long ago did this happen?

THE WITNESS: This was sometime in March.

THE COURT: Do you recall who else was present?

THE WITNESS: The whole jury was present.

THE COURT: Everybody was there?

THE WITNESS: Everybody was there.

THE COURT: All right. Anything else about this kicking incident or any other conflict that you think I should know about?

THE WITNESS: No. Not off the top of my head.

THE COURT: Okay. Mr. Cochran.

MR. COCHRAN: Yes, your Honor.

THE COURT: Do you want me to inquire into anything else?

MR. COCHRAN: Yes, a couple things.

MR. DARDEN: I thought we were going to do this at sidebar.

MR. COCHRAN: A couple things, your Honor.

THE COURT: That's true. Mr. Grimes, you want to join us? Even here we have sidebars. Okay.

(The following proceedings were held at the bench:)

THE COURT: Mr. Cochran, you want to follow up on some of this?

MR. COCHRAN: Just a couple things. She was giving us incidents that she could recall like the shopping incident, and the Court went to another subject, and I just wanted to inquire whether there were other incidents that she recalled. She gave a couple.

THE COURT: I thought I asked her the question if there was any other incident that you felt preferential.

MR. COCHRAN: And that's when you went on to something else. I want to know if there was any other incident that comes to mind. I would like you to ask her if she could give the names of the deputies that she found to be unprofessional or uncourteous or whatever because I think she gave you certain names, playing cards, something like that. But I think she needs to be asked face on the deputies that they had the most trouble with, who, you know, were just, you know, out and out rude.

Like she told us how Deputy "E" and Deputy "C" seemed to be professional. I think we need to find out who they are. I had read or maybe it was in the tape that a black deputy had gotten into an argument over the shopping thing, and I would like for you to find out who that was an argument between. Whatever the preferential treatment at Ross and target, I would like to find out who the deputy was from the standpoint that would give some credibility to the incident. And if there was a problem, if they had an argument among themselves, that certainly does go to professionalism, doesn't it, if they had a fight among themselves? Judge, the encounter--she says from the very first day, there was an incident, and we didn't ask her what that incident was. Remember she said, "The first day down here, I had a problem"? And I don't think we asked.

THE COURT: No. She indicated that she had a feeling she was being guarded rather than--

MR. COCHRAN: I wanted to get some specificity as to what the incident was. Lastly with--

THE COURT: No. I'm not--the sequestration first day blues. I'm sure everybody is going to have similar experiences. That doesn't interest me immensely.

MR. COCHRAN: Lastly, with regard to 353, you'll remember that we heard from what number--you remember, with regard to 602, an incident about--when we were talking about various things. 353--if you could just ask another question with regard to the problems between he and 353 and--353 and 1489, if they also had stemmed from this movie room thing. I mean, obliquely, that's an indication that there had been a problem early regarding that. If you recall--I thought perhaps we should follow up on that. That's all I had with that situation. And then make sure we have the names of everybody who was in the room when Dave Goldstein appeared in the doorway. I have Stephanie Medina--

THE COURT: We got everybody. It's in the record.

MR. COCHRAN: I just want--

THE COURT: Station producer, her husband, somebody else, a manager. So she gave us all the names.

MR. COCHRAN: We need to get everybody that was there.

THE COURT: You'll get a transcript tomorrow morning.

MR. COCHRAN: That's fine, Judge.

THE COURT: Miss Clark.

MS. CLARK: May I defer to Mr. Darden?

THE COURT: Mr. Darden.

MR. DARDEN: Can we both speak on the issue and save you some time?


MR. DARDEN: With regard to the apparent gym for white jurors and the other one for black jurors, she said it was made known or made clear that they weren't welcome in the other gym.

THE COURT: I asked her that.

MR. DARDEN: Did she say whether it was the deputies that made it known to her as opposed to some other jurors?


MR. DARDEN: And with regard to the--


MR. DARDEN: There was an issue where she and 1233 cannot exercise together. I just want to know if there was an explanation given to her by Deputy "A" as to why these two specific jurors could not work out together. Then too, I would like to ask whether she thinks that by transferring some of the deputies out and transferring deputies in that more closely resemble the gender, ethnic makeup of the jury, that might help the atmosphere there.

THE COURT: Okay. Mr. Grimes, do you have any?

MR. GRIMES: Yes, your Honor. The movie thing, I think it's easy to overlook that because at first, things sound a little bit trivial to us. But after spending so much time with her, I know how significant it is to these people that are housed together. So the point is this. In the movie situation, it was, "Everybody's in one room and we vote on what movies we are going to see." My understanding is that the white jurors became dissatisfied and was led by 353. So they instituted a new program wherein another movie room, they set up a schedule. And it so happened that the schedule was that of what the minority of jurors wanted to see, which happened to be the white jurors. And the rule was that no video could be seen until it had been seen in that room. So it wasn't like you had--

THE COURT: I'm aware of what the conflict is and I'm going to look into that.

MR. GRIMES: Okay. I didn't know if you fully understood they couldn't even see the movie until it had been seen by the whites.

THE COURT: Crystal clear to me.

MR. COCHRAN: They would go back to blockbuster at some time.

MR. GRIMES: They would sit and sometimes not be seen because they weren't seen in the first room and they felt that was an insult.

MR. DARDEN: If you're inclined to ask--and I don't know that you are. If you would ask Juror no. 462 which deputies she thinks ought to be transferred out of there, what specific deputies.

THE COURT: She's given us names. She named names.

MR. COCHRAN: The other thing is, you know, you've seen our motion. You know, my motion--from the beginning, I've said that--with all due respect, I don't think the sheriff's department should be here. So I'm going to follow up on that and would ask whether or not there's other entities who could probably do this.

THE COURT: Counsel, this is my decision. Her opinion will be interesting, but--

MR. COCHRAN: One other thing I'm concerned about is these searches in the room. I tell you, it's outrageous. We're sitting here waiting for the other shoe to drop. We know what's going on, and I think to go into their rooms--I believe going into people's rooms who are not there is an invasion of privacy.

THE COURT: I'll tell you--let me tell you what's going on. They have room service come through to clean and, you know, make the beds like any other first class hotel because this is a nice hotel they're staying in. And the sheriff's deputies do not allow the cleaning crew to go there unescorted. As they go through cleaning the room up, the sheriff's deputy is standing there making sure the cleaning crew doesn't take anything or doesn't plant anything there. That's what happened. That's a standard sequestration rule.

MR. COCHRAN: Judge, maybe you can ask about the extent to which she believes the sheriffs are going through her personal belongings.

THE COURT: All right.

MR. COCHRAN: Over and above the cleaning people.

THE COURT: All right.

MR. GRIMES: Just another addition, your Honor. She was concerned about the chains being taken off the doors. She didn't feel secure at night because there were certain--she felt that maybe someone could walk in the room if they had a key.

THE COURT: All right.

(The following proceedings were held in open court:)

THE COURT: All right. Juror no. 462, you've given me some examples of preferential treatment. Can you think of any other examples that I should be aware of that can help me assess the problem that we have?

THE WITNESS: I probably--there are tons of things that happened that--you know, things like when we were going down for meals or maybe even coming over to the courthouse, we would stand out in the corridor and wait until certain jurors were ready whereas we were ready at a certain time. They were never ready. And this was always tolerated, you know, things of that nature.

THE COURT: Always the same people were late?

THE WITNESS: Always the same people, you know, which--and we--

THE COURT: I don't know. That happens in life. There's just some people--

THE WITNESS: Yeah, it happens, but it was never a problem. You know--you know, these things happen, but it was never a problem. And we paid the price because we stood there in that corridor lined up ready to go so many times.

THE COURT: Any other instances? Any other specific examples that you feel one group or person was given preferential treatment?

THE WITNESS: Just off the top of my head, I don't--I can't--

THE COURT: I'll come back to that in a second. Can you tell me in your opinion who the problem deputies were specifically?

THE WITNESS: Specifically, Deputy "A", Deputy "B" and I think maybe Deputy "I", but I don't think hers was so much--Deputy "A" and Deputy "B" had--were the ones that I addressed when I was thinking of the racial tensions. But Deputy "I", she just kind of made it like everybody was an inconvenience. Color had no--

THE COURT: Equal opportunity bad attitude?

THE WITNESS: Yeah. Everybody.

THE COURT: Can you tell me with regards to that shopping incident--you indicated that the deputies came out and talked amongst themselves about, you know, one group wanted to go back to Ross. On the radio, Deputy "H", they talked about--who was involved in that discussion? Deputy "C" and Deputy "H"?

THE WITNESS: And Deputy "H". Deputy "C" and Deputy "H". His thing was, we had a plan and we had--this is how it was supposed to go and we shouldn't deviate from that plan. And Deputy "I" and Deputy "H" were with the other jurors. And, you know, even on another incident, when we were at target a different time, 1290 was scheduled to--Deputy "C" would break us up into groups of four or maybe five jurors, and you would go with a deputy throughout the store. And it just so happened that 1290, she was in a group that I was in and some other African American jurors, and that didn't sit right with her. Deputy "I" said, "Fine," you know, "You don't have to--fine. You don't have to go with them." But Deputy "C" insisted, "Well, she's--that's the group she was assigned to." And the only reason she ended up shopping with us was because Deputy "C" insisted. But she had a big problem. It's like, "I can't shop with them," you know, that was her attitude. "I can not shop with them." The day before I left, 1427, she sat on the van. She couldn't breathe the same air that I think 2457, the little elderly African American woman--she literally couldn't breathe the same air. "I need air," and insisted on opening the window because she was sitting next to this juror. You know, this is not just little trivial things that come off the top of my head. There were literally racial problems; I don't want to breathe the same air this woman is breathing.

THE COURT: Okay. You indicated that there was an indication that you weren't welcome in the second gym. Can you tell me how it was made known to you that you weren't welcome to use the second gym?

THE WITNESS: Verbally and--

THE COURT: By who?

THE WITNESS: 1290. One of the problems we had at the first gym, we would go down and there were more jurors than equipment. And so one day, myself and 1489, he says, well, maybe we should limit ourselves to 15 minutes on the equipment. "We can't use the equipment for 15 minutes. I have to have 30 minutes," and whatever. So when the equipment came upstairs, she made it plain, "I'm not using equipment for 15 minutes and I don't care who gets on it or who doesn't get on it." And then they would--we would come back from dinner or whatever and they would run to the room and occupy the equipment. There was a definite plan to block us off, you know. They couldn't say, "You can't come in." They didn't make the rules, but there was definite--they actually occupied the equipment. And when she would be on the treadmill, she would ask 353 if, "You want this?" She would get off the treadmill and they'd switch.

THE COURT: Okay. You indicated something about 1233 indicating that there was no way that you and she could work out together. Tell me about that.

THE WITNESS: This was an evening when nobody was in the gym and it was 10 o'clock when we--this was the first evening that we were told we couldn't go downstairs. So they usually--I don't know where--they must have been watching a movie or whatever. And we said fine. So I went into the gym myself and she went to change her clothes, and Deputy "A" told her, "Well, no, you can't go in there because 462 is in there." Well, she continued to walk in. They ended up in the room with me and three of us ended up having this big discussion that, you know, where did this rule come from. This is the first I've ever heard of this. There is a room full of equipment, one person is in here and I can't exercise? This was just a rule he would make, rules like this just as they popped into his head.

THE COURT: That was the deputy who did that?

THE WITNESS: Deputy "A".

THE COURT: You know, I went to a lot of trouble to get all of that equipment for that second gym.

THE WITNESS: And it was nice equipment.

THE COURT: I know. I know. Tell me about this feeling that you have that your room is being searched.


THE COURT: Can you tell me what it is--I mean I understand the heebie-jeebies.

THE WITNESS: No. It was more than a feeling.

THE COURT: Tell me about that.

THE WITNESS: I felt it at one point because 2457 mentioned it shortly after we got there, that she felt this occurred, and I felt like, oh, she's just paranoid. And over a period of time, I began feeling that way. So what I did was, I sat my--some of my things in my armoire where I would know--the maid would clean your room, but they didn't open drawers. And I placed things in a particular place, and when I came back, they were rearranged. They were rearranged. There is no doubt in my mind that my room was searched.

THE COURT: And I take it you gave nobody permission to do that?

THE WITNESS: I would never give anybody permission to search my room.

THE COURT: Okay. All right. Counsel, I don't think I have any further inquiry of Juror no. 462 at this time. Juror no. 462, I want to thank you very much for your patience and cooperation coming in and talking to us. I may--I hope not, but I may need to talk to you one more time just to clarify some of these things. And I appreciate your indulgence. And do I have your permission to contact your lawyer to make arrangements to talk to you?


THE COURT: All right. Mr. Grimes, any other comment?

MR. GRIMES: No, your Honor.

MR. CALLOWAY: No, your Honor.

THE COURT: Gentlemen, thank you very much. Miss Harris, thank you very much.

THE WITNESS: Thank you.

THE COURT: And, Mr. Grimes, if you'll leave your business card with Mrs. Robertson, I'll make sure that a transcript of today's proceedings will be mailed to your office tomorrow.

MR. GRIMES: Thank you, your Honor.

THE COURT: Thank you, counsel. Mr. Grimes?

MR. GRIMES: Yes, your Honor.

THE COURT: I had Deputy Downs and Deputy Brown bring your client in. However way you want to do it. Deputy Downs can escort Mr. Grimes, his partner, Mr. Calloway and Juror no. 462 out of the courthouse to avoid the circus atmosphere.

MR. GRIMES: Thank you.

THE COURT: Thank you.

MR. DOWNS: Yes, your Honor.

MR. GRIMES: Could we have a few moments with the clerk, your Honor, before we leave?


MR. GRIMES: All right. Thank you.

THE COURT: Juror no. 462, why don't you wait for your counsel in the jury room. I think you know where to find it.

(Juror no. 462, Mr. Grimes, Mr. Calloway and Mr. Jesse exited the courtroom.)

THE COURT: All right. Deputy "G", would you ask Mr. Goldstein and his client to step in, please. I mean his attorneys. Mr. Goldstein and his lawyers.

(Mr. Goldstein, Mr. Smith and Mr. Hernandez entered the courtroom.)

THE COURT: All right. Good afternoon, Mr. Goldstein. Would you step over here, please. And your counsel can approach if they like, take the other seats over here by Miss Lewis. All right. Good afternoon, Mr. Goldstein. And Mr. Goldstein--counsel for Mr. Goldstein, would you state your names for the record.

MR. SMITH: Good afternoon. Glen Smith, acting general counsel of KCAL television.

MR. HERNANDEZ: Dennis Hernandez, Baker and Hostetler.

THE COURT: Good afternoon, gentlemen. Mr. Goldstein, the reason that I've asked you to come in this afternoon--and I appreciate your cooperating with us--I need to ask you about a report that you made concerning Juror no. 462, one of our former jurors here and a comment that she made. Your counsel are here and they've indicated to me that you are willing to testify regarding published comments that you've made, reports that you've made on KCAL during normal news broadcasts. They've advised me however that you are cognizant of your right under the shield laws here in the State of California and that it may be necessary for you to invoke that shield. I've indicated to your attorneys that at any time during the Court's questioning, if you feel it necessary or desirable to talk to your counsel, you're welcome to ask for that opportunity. You should understand that this is an inquiry into the nature of the activity that was reported and is no reflection on your activity, professional or otherwise. Just merely that you are the conduit to some very interesting information that the Court finds necessary to make inquiry. Do you have any questions before I ask Mrs. Robertson to swear you in?

MR. GOLDSTEIN: No questions. I understand.

THE COURT: Mrs. Robertson.

David Goldstein, called as a witness by the Court, was sworn and testified as follows:

THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God?


THE CLERK: Please have a seat in the witness stand and state and spell your first and last names for the record.

THE WITNESS: David Goldstein, G-O-L-D-S-T-E-I-N.

THE COURT: All right. Good afternoon, Mr. Goldstein. Can you tell us what your present occupation is?

THE WITNESS: Reporter for channel 9 KCAL television.

THE COURT: My understanding is that you are the reporter specially assigned to the trial of the case that we're involved in here, the people of the State of California versus Orenthal Simpson.


THE COURT: You're regularly assigned here to the courthouse?


THE COURT: All right. The reason I've asked you to come in is, on April the 5th, 1995, Juror no. 462, now publicly identified as Juror no. 462, was interviewed by your colleague Pat Harvey of KCAL rather extensively. My recollection, the interview was approximately 35 minutes.


THE COURT: Subsequent to that interview, it was my understanding--and I did personally see the KCAL broadcast where you reported something to the effect that Juror no. 462 had indicated or had stated to you that four or five of the jurors still sitting either as alternates or regular jurors in the case have actively discussed the case. Can you tell me if Juror no. 462 made a comment similar to that?


THE COURT: Can you tell me as best your recollection allows her specific comment to you?

THE WITNESS: She told me that she was with a group of five or six other jurors, that they had discussed the case, and that at the time, they believed that he was not guilty or that they had similar feelings to her feelings.

THE COURT: Did she elaborate in any other way? Did she make any other statement to you in that regard?


THE COURT: Can you as closely as possible give me the specifics that she said--the specific words that she stated to you?

THE WITNESS: I think that was--that was pretty much it. This is not a direct quote, but in essence what she told me.

THE COURT: Can you tell me where you were when this statement was made to you?

THE WITNESS: In an office in the channel 9 newsroom.

THE COURT: Do you recall who else was present?


THE COURT: Who were they, those persons? Who were those persons?

THE WITNESS: At various times, people were coming in and out of the room. But our executive producer Bob Long, anchor David Jackson, producer Stephanie Medina, executive producer Keith Esparros and Juror no. 462 and her husband.

THE COURT: Did you actually sit down and interview Juror no. 462 or was--can you tell me how the conversation came about, the context, describe it for me?

THE WITNESS: We were just talking in a comfortable setting of talking about the trial or things of that nature.

THE COURT: Was this before or after Pat Harvey's interview?


THE COURT: Okay. No doubt in your mind this happened?

THE WITNESS: No doubt.

THE COURT: Mr. Cochran.

MR. COCHRAN: Shall we approach?

THE COURT: Yes. And, counsel, do you want to approach?

(The following proceedings were held at the bench:)

MR. COCHRAN: What I would like--mindful of these gentlemen--and I want--I would like--he's told us who was present. I would like you to try to establish this was a comfortable setting, whether David was sitting down or in the doorway. I want to find out where he was and then she and her husband or whatever were. But I would like to find out how comfortable this was. I mean, did they talk about other things, was this part of a lengthy conversation, was this just like he just posed this one question or, you know, I would like to find out the context of how this came up and specifically who was present when this statement was made. And when she said that--when he said that, was there further conversation, was there further follow-up? Was this a natural conversation? Well, can you tell me who these other people are, that sort of thing? I think that we just need a little follow-up in that area, Judge, to try to get a little foundation.

THE COURT: Well, I'm trying to be very precise here, Mr. Cochran, because I have the feeling from what I saw of Mr. Goldstein's report that's essentially what he said and KCAL is likely to take the position that that's all we're going to get.

MR. COCHRAN: Maybe, but--

THE COURT: We'll see. I'll ask the question, see what happens. Miss Clark, do you have any other comment?

MS. CLARK: Let me defer to Mr. Darden.

THE COURT: Mr. Darden.

MR. DARDEN: I would like to know if any of this paraphrasing is a partial or direct quote as to anything she said. Also, was tawny little or Pat Harvey present.

THE COURT: That's true. Any other comment, counsel?


(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. Mr. Goldstein, do you recall whether either Pat Harvey or tawny little was also present during any of this comment?

THE WITNESS: Best of my recollection, Pat wasn't because I think she was on the air with the 9 o'clock broadcast. Tawny might have been in the room for a period of time.

THE COURT: Because I know she's had some interest in the case as well.


THE COURT: Do you recall where you were physically in the room when this comment was made?

THE WITNESS: I was standing up in the doorway of the office.

THE COURT: Did you follow up that statement in any way by asking her to identify who those other people might have been?


THE COURT: Did you ask her any follow-up questions at all?

THE WITNESS: Not regarding that. I think the--what I broadcast and what I told you was a number of questions and answers.

THE COURT: Can you tell me what they were, those questions and answers as precisely as you can recall?

THE WITNESS: That's the best of my recollection, was what I reported.

THE COURT: And this was in response to questions that you posed to her and she answered?


THE COURT: Okay. Mr. Cochran.

MR. COCHRAN: Just one question, if I may ask from here. What time of the evening was this, the time?

THE COURT: Probably around 9 o'clock because Miss Harvey was doing the 9 o'clock broadcast.

THE WITNESS: My guess, between 9:00, 9:30.

THE COURT: Anything else, Mr. Cochran, Miss Clark?

MR. COCHRAN: I have one other question. I just want to be clear on what Mr. Goldstein is saying. Was the statement he gave a compilation of, series of questions and answers?

THE COURT: That's the impression I got.

MR. COCHRAN: Is that what we're hearing?


THE COURT: But he can't recall the precise question and answer. He said that's the best of his recollection. Mr. Darden.

MR. DARDEN: If the Court will inquire, were there any contemporaneous notes taken?

THE COURT: Any notes, anything recorded?


MR. DARDEN: Have there been any discussions between Mr.--between the gentleman and the other persons present about their conversation?

THE COURT: Do you understand the question?

THE WITNESS: No, I don't understand the question.

MR. DARDEN: In other words, there were four to six people also present in the room at the time the statement was allegedly made?

THE COURT: Anybody discuss that with Juror no. 462, that particular issue?

THE WITNESS: No, I don't believe so. No.


MR. DARDEN: And how long was he standing in the doorway?

THE COURT: How long were you there?

THE WITNESS: Anywhere from 15 minutes to a half hour.

THE COURT: Standing in the doorway?

THE WITNESS: And talking to her, yes.

THE COURT: All right.

MR. COCHRAN: This is after the interview with Pat Harvey?

THE WITNESS: After the interview.

MR. COCHRAN: With regard to the interview with Pat Harvey, had this subject come up at all during that interview?

THE COURT: Well, that's not for him to testify to. We have the videotape. I'm sure you've seen it.

MR. COCHRAN: I think I saw it.

THE COURT: All right. Anything else?

MR. DARDEN: Was Pat Harvey present during any part of that 15-, 30-minute time period that you were present?


THE COURT: All right. Any comment from KCAL counsel?

MR. SMITH: No, your Honor.

THE COURT: All right. Mr. Goldstein, thank you very much. Counsel, what I am going to do with our transcript is--I did take notes during the course of my conversation with Juror no. 462, but I would like to study those comments with specifically breaking down, as you know I do, each individual as I charted her comments. I would like to break these down because there are a lot of different things, names and incidents here that I want to look into. And I want you to know it's my intention to, once I catalog the nature of these events, make inquiry of specifics with regards to the other jurors who are sitting, if they can tell us if there are any similar incidents. Obviously the sheriff's department will get a copy of this transcript, and they can take it upon themselves if they feel it necessary to conduct any inquiry of their own staffing as far as they feel is appropriate. And obviously I will consult with counsel before I make any recommendations or directions to the sheriff's department regarding sequestration issues. But I need to study the transcript of our discussions here, and we'll take it up again later in the week.

MR. COCHRAN: Your Honor, we have a motion also that we filed. You are going to set that at some point, which may follow this track part we are talking about?

THE COURT: Yes. It's directly relevant to it, but I think we need to do some fact finding at this point before we address the motion. I prefer to do that.

MR. COCHRAN: Thank you.

THE COURT: It's my intention to speak to each and every juror who remains.

MR. COCHRAN: And in those instances, your Honor, I would just like to renew again while we're in chambers and ask your Honor to ponder this. Mr. Simpson does very much desire--I mean this is obviously his life--to be present. If there can be some accommodations made for those inquiries regarding the jurors. If he were not in custody--and perhaps--I don't know. Perhaps he can be made to do that. Maybe we can do this in open court as in chambers, but he does not want to waive his being present for that. I would like the Court to be aware of that.

THE COURT: Well, counsel, as I indicated to you, I accepted your request today. If you can find me any case law that indicates he's entitled to be present during the course of those proceedings regarding inquiry regarding jury conduct, I'll hear the authority.

MR. COCHRAN: Thank you.

THE COURT: But you know my inclination at this point, but I'll be delighted to entertain it. But I have the feeling since I would--just so you can plan your days, I don't anticipate getting this transcript until first thing tomorrow morning, and I will have to sit down and look at it, which means I'll have to spend some of my evening hours tomorrow. I really don't anticipate having a plan of inquiry regarding the remaining jurors until possibly Monday. But I thought I'd let you know that's what I anticipate timetable.

MR. DARDEN: I understand the Court wants to be fair to everyone involved. But having heard Juror no. 462's testimony regarding these two deputies, Deputy "A" and Deputy "B"--I understand the Court wants to take--be careful in deciding what to do next, but I notice a commander from the sheriff's department is here. And these allegations by Juror no. 462 are very, very serious and we would like a verdict in this case, and my thinking is perhaps that the sheriff's department ought to perhaps remove Deputy "B" and Deputy "A" for a couple of days while the Court ponders what to do next. I'm really concerned that some of the black jurors feel that they are being forced to live in an oppressive environment and that that somehow is going to affect their ability to receive all the evidence in this case.

THE COURT: Well, at this point, until I make inquiry of the other jurors, I'm not--I don't feel I'm in a position to direct the sheriff's department to do anything at this point. I want to complete my investigation. I want to be as thorough and cautious as possible. I agree with you, Mr. Darden, we should err on the side of caution. But at this point, I feel I at least need to talk to at least some of the other jurors, a substantial number of them to see if there's anything else similar before I take any action, make any direction to the sheriff's department. I am reluctant to do that without making complete inquiry.

MR. COCHRAN: Your Honor, the Court will recall that I indicated to the Court yesterday at sidebar that I felt that the Court needed to in some way express to 1489 that the Court was going to get to that issue because I think part of what Mr. Darden is saying--the Court will recall that in one of those interviews, Juror no. 462 had said that they felt that--first of all, being struck by a particular juror, they try to deal with it the right way, calm him down, but then they don't hear back anything's going on. Clearly--we know your Honor is busy with a lot of things. I mentioned to you that I feel real bad--I think both sides feel bad if one of the jurors--I mentioned yesterday we need to let them know there's going to be some inquiry done to notes that are written.

THE COURT: All right. Anything else, counsel? All right. Then it being 5:30, we will stand in recess.

MS. LEWIS: Wait, your Honor.

(Discussion held off the record between the Deputy District Attorneys.)

(At 5:30 P.M. An adjournment was taken until, Thursday, April 13, 1995, 9:00 A.M.)