JANUARY 31, 1997

(The notes of the proceedings at this point were ordered sealed by
the Court, not to be opened, transcribed, or destroyed except upon
order of a Judge of the Superior Court.)
(The following proceedings were held in open court outside the
presence of the jury.)
MR. PETROCELLI: In view of the Court's order, in view of what
happened last night, in view of what's going to happen when this
dismissed juror is going to be inundated with requests from the
media about what has happened during the course of two and a half
days of deliberation, I would request that the jury be sequestered
so that they can complete their deliberations in peace. I am
extremely concerned about the possibility that there's going to be
intensive efforts to contact this excused juror to go over each and
every facet of the deliberations; straw votes, you know. You just
have to watch TV the last couple of nights to see how difficult it's
been. I'm increasingly concerned about efforts on the part of some
of the members of the criminal jury to contact members of the civil
jury. We've come too far and have too much invested and I think that
caution dictates that we sequester the jury and allow them to
complete their deliberations. And I hereby request that the Court do
THE COURT: Well, this being a civil case, the Court, one, doesn't
know what authority it has to do that and No. 2, the Court is
unaware of any basis on which the Court can authorize the
expenditure of public funds for that purpose.
MR. PETROCELLI: The Court has the inherent power to control the
order-- any conduct of these proceedings, Your Honor. These jurors
are going to be subjected to extraordinary blasts of publicity about
their deliberations. I think it's unprecedented. And despite every
effort to stay away from any publicity -- in addition, Your Honor,
we've had efforts to contact these jurors and I'm very concerned
about this. I don't want there to be a mistrial in this case. Court
has the power to control the proceedings.
THE COURT: All right. The Court will order those chambers
proceedings then sealed at this time until this matter is completed.
Court is not going to sequester the jury.
MR. KELLY: Judge, what about, perhaps, if the jurors agree to it,
asking them to continue their deliberations through the weekend, at
least so that they would continue on where they are right now, at
least avoid some of this.
THE COURT: Well, being a New York lawyer, I guess you're not
familiar with California law.
MR. KELLY: Not on that matter, I'm not. But I think it might be a
good idea.
THE COURT: Are you bringing the jury in? Ready for the jury and the
THE BAILIFF: I'm bringing out the jury panel.
THE CLERK: The alternates and the jury panel.
THE BAILIFF: Ladies and gentlemen, I have the jury walking into the
box. I'd like it completely quiet in the courtroom. Alternates are
on their way up. We are waiting for the alternates.
(Jurors resume their respective seats.)
(The following proceedings were held in open court in the presence
of the jury.)
THE COURT: Okay the clerk will place the name of the alternates in
the box and draw therefrom one name -- or one number, I should say.
THE CLERK: Juror No. 369.
THE COURT: Juror No. 369, you are now seated in seat No. 7. You
don't have to take it now.
(Juror reassumes seat No. 7)
(Reading:). Ladies and gentlemen of the jury, a juror has been
excused for legal cause and replaced with an alternate juror. You're
not to speculate or consider for any purpose the reason for such
excuse. The law grants each party in this case the right to a
verdict reached only after full participation of all jurors who
ultimately return the verdict. This right may be assured in this
case only if the jurors begin the deliberations again from the
beginning. You are therefore instructed to disregard and put out of
your mind all past deliberations and begin deliberating anew. This
means that each remaining juror must set aside and disregard the
earlier deliberations as if they had not taken place. You shall now
retire for your deliberations in accordance with the instructions
previously given.
THE BAILIFF: Deputy Shaw, will you please escort them to the jury
deliberation room, remaining alternates, we will escort you down
back down to your jury room.
(Jurors begin deliberations anew at 10:01 am)
(Alternates exit courtroom)
(Recess at 10:35 am)
(Jurors resume deliberations at 10:52 am)
(Proceedings resume in chambers at 11:46 am)
(The following proceedings were held in chambers, outside the
presence of the jury.)
THE COURT: There's certain information that was in the letter that
the only people that were privy to were --
(Mr. Leonard enters chambers)
THE COURT: Oh, there he is. We just started.
THE COURT: There is certain information that was in the letter that
the only people that were privy to were the clerk Erin, myself, the
author, the reporter. I don't think the reporter even saw it.
(Nods in the negative).
THE COURT: Reporter did not see it--and counsel. And within a few
minutes I got a telephone call from the DA's office complaining that
there were reporters camped out in front of the home of the
daughter. And the only place where the name of the daughter and the
juror was mentioned was in that letter. I didn't say it on the
record, I didn't say it out there
(indicating to courtroom) and I also, at the very last when Mr.
Petrocelli asked that the jurors be sequestered, I said because of
the fact that I'm concerned about the security of the jury, I'm
ordering these proceedings sealed. Now, I could only control what is
in front of me. Okay. That is counsel and whatever occurs in my
courtroom. And I thought my order precluding counsel from
disseminating any information to -- particularly sealed information,
was clear. But I'm going to reiterate it again. Anytime the Court
seals any proceedings, counsel are ordered not to disclose to anyone
the content of that sealed order. And I am further ordering counsel
to direct their associates and employees of their law firms not to
disseminate any of that information. I don't know how it got out
there. I'm very concerned that the only way that could have gotten
out so fast was that it came from somebody connected with the
proceedings that we had in chambers.
(Mr. Brewer enters chambers.)
MR. PETROCELLI: I'd like to point out this is the third or fourth
time we've had a sealed chambers conference and immediately it was
known to members of the press. I got to my hotel, I turned on the
TV, this story was all over CNN including all the names. I don't
even remember the names in that letter. But it was immediate.
MR. P. BAKER: I can assure you the leakage isn't coming from the
defense. The implication on the news is that the defense had
something to do with it.
MR. PETROCELLI: The story was that the District Attorney's Office
was somehow behind messing around with this jury and there was --
THE COURT: Well, what I'm trying to get across to all counsel is
that if it's leaking through your office, I think you have a duty to
stop that.
MR. PETROCELLI: Absolutely.
THE COURT: And I'm very reluctant to take punitive action against
any lawyer or any lawyer's office. And I don't want to. But you know
what I'm saying, I don't pose this as a challenge to anybody to test
me. I don't want to be tested. I just want to get this case over
with and go on with my life.
MR. PETROCELLI: Has Your Honor considered whether there's anybody
here who was privy to this information?
THE COURT: The only person that had information are, other than the
people who originated it to me, that's Erin, myself and the lawyers
who saw the letter. That's it. Nobody else. I didn't even say it out
MR. PETROCELLI: It's not even on the record?
THE COURT: It's not on the record. So it has to come from in here
somewhere and you know it's just not the lawyers, the lawyers
themselves that -- what is being discussed in the law office and
it's going out and there's somebody in your law office that, for
whatever reason, is getting it out fast. I don't know why. There
have been occasions, other instances where they are rewarded for
that information, the disseminators, whoever they are, but I don't
know. But I'm just saying, you know, I'm going to go where it leads
me. If it leads me anywhere, I hope it doesn't lead me anywhere, but
please don't test me, okay? And you have the order and would you
convey it to your respective staff that the order is, do not
disseminate any information regarding the sealed proceedings,
especially at this stage of the proceedings. And I'm concerned
because the whole idea of sealing these proceedings was for
protection of, and the preservation of the privacy of the jurors.
MR. GELBLUM: Absolutely.
THE COURT: If we cannot preserve that, I think we're going to have
to think of some alternative way of handling these matters. Okay.
Thank you.
MR. GELBLUM: Thank you.
THE COURT REPORTER: Are these proceedings sealed?
THE COURT: Yes. Excuse me.
MR. KELLY: Guys, Phil, Mike.
THE COURT: You know, this portion, I am not going to seal. I'm going
to let this out so that the press knows that I'm concerned and that
I am standing ready to take whatever necessary action.
MR. P. BAKER: Okay.
MR. KELLY: Okay.
(Proceedings concluded at 11:52 am.)
(At 12 pm a recess was taken until 1:33 pm. of the same day.)
(Jurors resume deliberations at 1:33 pm)
(Recess at 3:03 pm)
(Jurors resume deliberations at 3:23 pm)
(The following proceedings were held in open court, in the presence
of the jury.)
(Jurors resume their respective seats.)
THE COURT: It's about 3:15
(sic) ladies and gentlemen. We're about to adjourn. Before we
adjourn, some things that I would like to instruct you about, to
discuss with you. First of all, as you know, one of your number was
excused today. And it has been my information that it is possible
that she may be giving an interview on television or some news
media. Jurors are under a duty not to discuss this case while this
case is still pending. And it would be in the Court's opinion
irresponsible of any media, particularly where the jurors are not
sequestered, you're not locked up in a hotel room where we have
somebody sit on you every minute and make every effort to control
what goes on in your minute by minute life. Where jurors are not
sequestered, it would appear to this Court that it would be
irresponsible of the media whether it be television, radio or press
to broadcast or publish any statement by a discharged juror about
the case. And in any respect while the case is still pending.
Particularly where there is the possibility that through
inadvertence, even if jurors are following the Court's instructions
about not allowing themselves to be exposed to news that by
accident--where the possibility exists that whatever statement or
interview that a discharged juror may give, might come upon an
unsuspecting sitting juror and possibly affect a sitting juror. I
think a responsible media would not risk the integrity of this trial
and this jury, particularly where so much time and effort has been
expended by many people on both sides of this case, by the jurors
and by the Court and court staff, that to come this far to allow any
damage or any deterioration of the integrity of this trial process.
So it's the Court's hope that the media would exercise restraint and
not do this thing but I'm also a realist and I am duty bound to make
every effort to ensure that the jury is not affected by what may
transpire. I'm satisfied that you jurors have followed the Court's
instructions in not watching television, broadcasts, radio
broadcasts, reading any press material, regarding this case. What I
want to do at this point, since I have decided not to sequester you,
not to put you in the lock down but to continue to abide in your
good faith and your willingness to follow the Court's instruction,
that I am going to order you not to -- and this maybe hard but since
you've come this far, I don't think it's unreasonable for me to ask
you to do this. I will order you not to watch television, not to
listen to the radio, not to read a -- read the newspapers, magazines
or tabloids while you are still on this case deliberating. I know
that is very hard. But you understand that what the Court is
attempting to do is to provide every mechanism by which we can avoid
your accidentally being exposed to anything. You know, we've all
seen how television works. You're watching something and bam they
come out with something about, you know, 8 o'clock we're going to
show this or we're going to show that about so and so. And they
throw these teasers out and it's going to hit you in the face. Even
though you have the best intentions of not being -- best intentions
of not watching these things. So you all understand why I am making
this order?
JUROR: Yes, sir. (Jurors nod.)
THE COURT: In addition, you're ordered to and I request that you
advise your family and friends not to mention anything about this
case to you. Tell them it's very important and the Court's ordered
you to tell them not to make any reference about this case to you
and any matter whatsoever such as oh, did you hear so and so said
such and such about this case, things like that, while you're still
on this case deliberating, until such time as you're discharged from
this jury. I've instructed you at the time that we excused the
previous juror and substituted an alternate juror that you were to
begin your deliberations anew. And that whatever deliberations you
had prior to that time is null and void and is erased from your
consideration. Have all of you followed that instruction?
JUROR: (Nod in the affirmative.)
THE COURT: Okay. Then you will disregard and not consider anything
that took place prior to that time that the new juror was
substituted in. Everybody agree and understand that?
JUROR: (Nod in the affirmative) Yes.
THE COURT: Okay. Do I have your solemn promise that you will obey my
instructions; not watch television, not to listen to the radio, not
read anything about this case while you are deliberating and still
on this case?
JUROR: Yes. Can we have our paper censored and left in the courtroom
that --
THE COURT: I will order that.
JUROR: Thank you.
THE COURT: Okay. I know this is very hard. I think this is what I
wish to do rather than to sequester you, to put you into a hotel
room and have somebody sit on you, I'm relying upon your integrity
and your promise to follow the Court's instructions in that regard.
It's unfortunate that we have come to this passe, but sometimes in a
long trial because of the length of the trial and because of the
inordinate amount of interest that apparently exists, things
sometimes unravel. I'm trusting in you to follow the Court's orders
so that it does not unravel, that we continue on this case and
reach, if we can, a completion of this case. Okay. One other
reminder about contacts. Don't let anybody contact you. Don't --
Have somebody screen your calls, if you think you got a call that
sounds like it's somebody trying to get to you within your capacity
as a juror, hang it up. Have somebody check your mail, make sure
that you're not getting mail that is being directed to you as a
juror on this case. If you have faxes, have somebody screen those
faxes. I hope you have a good weekend. I know without television
maybe you'll be able to read that novel that you have been wanting
to read or rent a video and watch a movie that you've been wanting
to watch. But I'm sorry that I have to ask you to do these things.
And I appreciate the fact that you're willing to do that. Have a
nice weekend.
JUROR: Thank you.
(At 4:29 P.M. an adjournment was taken until Monday February 3, 1997 at 8:30 A.M.)