court reporter, part three

it seems like there's some mild interest in these reports, so i'll keep posting them as long as i'm writing them.

today's only witness was a shocker: joe graedon, host of "the people's pharmacy".

when i arrived at the courthouse this morning, the court room was locked and all the jurors were standing outside. i felt kind of awkward for a few minutes (oh, how i’d love to talk to these people!!) but i moved away from them and found a place on the floor to sit... and started typing this. ;-) i heard the jury talking about the short day that’s ahead of them. one said, “i don’t care if we’re here for just a few minutes -- i’m NOT going back to work.”

hee.

the jury finally decided to stop waiting and filed into the jury pool room (they had all been waiting to enter the courtroom and go straight to the deliberation room, where they usually meet). edwards arrived and greeted two witnesses. i assume these two are the only ones we’ll hear from today.

**
rp- robert petrick, the defendant. he's representing himself.
jh- judge hudson
g- mitchell garrell, the assistant DA
edwards- petrick's court-appointed attorney. he is not trying the case; he's just available to petrick for legal counsel
**

9:40 - outside jury’s presences
rp- my expert is here and available for questioning as to how his progress is going
g- ryan johnson is here to sit in on this testimony, just to observe. (is he the state’s computer expert? i can’t remember.) no one has any objections.
g- received a call from a defense attorney who was called by a priest who visited the defendant while he was incarcerated on fraud charges. the priest would be prepared to testify as to some statements made by the defendant. at a later time we might re-open our case to allow for her testimony.
g- i also want rp’s computer expert to take the stand in order to get an idea as to the volume and scope of things he’s looking for. it won’t be confrontational.

9:45
the computer expert is called, but NOT sworn in. he’s standing between the prosecution and defense table, looking at the judge, while jh asks questions about his progress.

his name is russell gilmore, works for risk management associates, computer forensics.
says he obtained files from SBI - 20 items: 17 hard drives, 2 something else’s and an ipod. 500 gigabytes of storage. it takes a while to go through all of that. it’s impossible to search through generic terms in the time allowed. yesterday that generic search was narrowed down to 5 hard drives and specific list of terms.
g- what’s the time frame you think you can find what you’re looking for?
gilmore- if anything is there i should be able to locate it within a week. but just because someone says something there, doesn’t mean it is. i can have whatever i locate, to you by the 28th.
edwards- in this search he may exceed the allotted hours and money
jh- that’s ok

9:50
rp asks to consult in the hallway with the computer expert. (presumably it’s the first time rp has talked to him.) jh allows. he’s exits and they’re both back in one minute.
g- asks jh for a copy of whatever report gilmore generates. also, we’d like to know which of the 5 computers gilmore is looking at. but we don’t feel like we need the search terms. we’re entitled to that information, and if we get it, there won’t be a further delay from our side on the 28th.
rp- the prosecution never provided US with a list of the computers THEY were searching. also, gilmore has a prioritized list of computers to search -- he might be able to search beyond the top five prioritized machines.
g- then give us the list of prioritization
jh- new rules of discovery allows total and full access on both sides. i order the defendant to provide the list of the initial five hard drives, the priority within the five, and the priority after the five, and the list of search terms.
rp- i object to being forced to give the state advance notice. they’ve had three years; we’ve had 72 hours.
jh- but these are YOUR computers. they need three years to find things. YOU should already know where to find things.
rp- if the experts were looking at that *machines*, that would be one thing. i have to assume that the disk images correlate to the correct machines.
jh- re-iterates the lecture from yesterday on “the difference between favorable and exculpatory evidence”. you haven’t made any showing AT ALL that there is exculpatory evidence on those hard drives. this is actually a fairly long lecture. poor gilmore is still standing between the tables; he hasn’t said anything for 10 minutes.
rp- i believe there is material on the drives that is both exculpatory and favorable. there are communications by my wife (or TRACED to my wife) that will counter the state’s case. i believe there are documents there written by my wife. but because i didn’t write them myself, i can’t be absoultely certain that i can find them.
jh- ok, you have a week. can mr. gilmore go now?

10:06
edwards says he has a conflict (a sentencing hearing in another court case) on the 28th at 9:30. will seek a continuance, and hopes his assistant can handle it.
jh- stay in touch and let me know what happens. i’ll have the jury here at 9:30 that morning, but if we get word that you’ll be late i’ll just let them go until you get here.

10:14 - jury enters
joe graedon -- host of people’s pharmacy, pharmacologist, and author
rp- do you do a lot of your work on computers?
graedon- yes
rp- how do you know me?
graedon- i needed computer help. there was an ad for macintosh support in the back of the independent. you responded.
rp- when was the last time i did work for you?
graedon- three dates in my palm pilot: dec 18 2002, dec 24, jan 11 2003. one of those dates was cancelled, but i can’t remember which.
rp- anything unusual about my demeanor?
g- objection
JURY EXITS. (they’d been in the courtroom for 5 minutes.)
jh- what direction are you going with this witness?
rp- i believe the witness will testify that i received a phone call that upset me and heard me make statements, which would go to my state of mind. this would contrast with statements the state has contended.
g- the witness can’t recall which date this happened, that calls the relevance into question.

voir dire:
rp- the event we’re speaking of was the last time i came to your house, correct?
graedon- yes. but i don’t recall which date
rp- it may have been january 11, 2003?
graedon- yes
rp- did i get a phone call?
graedon- yes. when you hung up you were quite distraught. you were crying.
you said you’d spoken with your wife and you were upset about her condition. you indicated that she was depressed psychologically and that her physical health wasn’t great
rp- did i ask you for medical advice?
graedon- i don’t recall
rp- i seemed genuinely distraught?
graedon- yes

cross:
g- you dn’t know WHO called the defendant, do you?
graedon- no. all i know is that his phone rang.
g- it’s possible there was NO ONE on the phone?
graedon- he was talking, and it seemed like there was someone on the phone.
g- you’re aware that it’s possible to make a cell phone ring?
graedon- i can’t remember the details of that event, but i do know that the phone rang and he answered it.
g- he was in your house on two occasions?
graedon- yes
g- aware of defendant’s prior felony convictions?
graedon- no
g- this conversation could have happened on 12/18, 12/24 or 1/11, right?
graedon- don’t think it was 12/18. probably 12/24 or 1/11. his wife DID call my house on one occasion when he was not there, to talk to him. that was the date he cancelled. he wasn’t there. she spoke with my wife.

re-direct:
rp- i came the house a total of 2 times, right?
graedon- yes.
rp- in your profession, you deal with answering medical questions, right?
g- objection. relevance.
jh- overruled
rp- you’re used to hearing and recognizing the voices of people in distress?
g- leading question. compound question.
jh- overruled
graedon- yes, occasionally
rp- can you tell when distress is geniune?
graedon- i’m not trained as a clinician. it’s not my professional responsibility to assess a degree of distress. i deal with pharmaceutical questions.
rp- was it your impression that my tearful state was genuine at the time?
graedon- yes

g- but you weren’t able to perceive the defendant’s prior felony convictions?
graedon- i could only perceive what i saw.
g- if you had been aware of his past, would that have affected your perception of his potentially-false reaction?
graedon- it might.
rp- objection
jh- why are you two objecting??? there’s no jury in here. i want to hear what he’s got to say.

jh asks for arguments about allowing the testimony in.
g- the fact graedon can’t testify that it was, in fact, petrick’s wife on the phone, that makes this testimony irrelevant and hearsay. what rp is really trying to do is testify through this witness.
g is looking up statues in a big red book. jh says “i don’t think that’s going to help you, but go ahead.”
jh- this is POTENTIALLY exculpatory evidence that the jury won’t get if rp doesn’t testify.
g- goes into levels of hearsay. he SAYS he got a phonecall. he SAYS it was from his wife. he SAYS he was upset.
jh- this testimony might be unduly prejudicial to the state.
rp- i never said i wasn’t testifying. that decision hasn’t been made.
jh- if you do testify, you can then call this witness.
rp- previous state’s witnesses have testified that my wife wasn’t depressed. this witness goes to impeach state’s testimony.
jh- i have no problem with PART of what this witness is saying.
g- you should also have a problem with the issue that no one knows whether his wife called AT ALL. the only person we could cross-examine about this is **RP.** i can’t cross-examine this witness because he doesn’t know.
rp is near disbelief, i think, that this isn’t going his way.
jh launches into a list of problems that come up when a defendant doesn’t testify. it sounds like if RP can guarantee he’ll testify, he’ll allow graedon’s testimony in. but because rp *says* it was his wife that called, and the only way that can be proven is by rp going on the stand, everything graedon is saying is hearsay.
rp- would the testimony be acceptable if the part about the phonecall from my wife was left out of the questioning?
jh- perhaps. i can see how that might work. i don’t know how you’d ask those questions.
rp- i have a great deal of problems with the fact that g used information about past convictions in one of his questions.
jh- let’s try this:

rp to graedon-
at some point during my visit, did i become distraught?
graedon- yes. you were tearful.
rp- did that lead to a conversation?
graedon- yes
rp- describe that conversation
graedon- you described your wife’s situation, after a phone call, as psychologically depressed, with physical ailments. you apologized for getting emotional.

g, to jh-
rp’s done a little bit better, but is still getting information in about the fact his wife called.
jh- no he didn’t. he said “after a call”
g- but the question about the geniuneness of his reaction opens the door to his truthfullness and his prior past convictions.
jh- that’s what you argue to the jury.

10:49 - JURY RE-ENTERS
rp- my last visit may have been jan 11?
g- objection. move to strike
jh- overruled
rp - i became distraught during my last visit?
graedon- yes. you had tears in your eyes. it was unusual. it was suppsoed to be a professional computer consultation.
rp- did i tell you why i was upset?
g- objection
jh- overruled
graedon- you had received a phone call
g- objection. outside the witnesses’ knowledge
jh- overruled
graedon- you said you recieved a phone call from your wife
g- objection. motion to strike.
jh- sustained. jury, disregard the information about who the phone call was from

cross:
g- the defendant’s phone rang, but you don’t know who was on the other end, correct?
graedon- no, i don’t
g- you have no idea what might have been said, either?
graedon- correct
g- how much experience have you had w/ the defendant? also, the phone call could have come on the 24th of dec?
graedon- it could have been 12/24 of 1/11.
g- how much time had you spent in total in the presence of the defendant?
graedon- several hours
g- had you ever seen him cry before? or be quite distraught?
graedon- no
g- would you agree that your basis for judging the geniuneness --or lack thereof-- of his tears or emotion was limited?
graedon- that is correct

re-direct:
rp- my behavior in other times was extremely professional?
graedon- yes
rp- when the phone call came, what was i doing?
graedon- working on the computer
rp- i didn’t have the phone in my hand?
graedon- no

re-cross:
g- you don’t know that a call came. you only know that the phone rang, correct?
graedon- correct

witness steps down.
rp has no further witnesses today

10:56
jury is discharged for the day. come back monday the 28th at 9:30. “we’re making extreme progress”; says the trial should wrap up that week.

court in recess until 11:15

personal note: i am impressed with garrell’s ability to insinuate that rp manufactured that whole situation with graedon. i’m led to believe that rp knew graedon’s standing in the community when he went to work on his computer, planned to receive a call “from his wife”, and planned on being distraught in front of graedon. what rp didn’t count on was that he’d have to put himself on the stand in order to “prove” that it was his wife that called.

of course, the jury didn’t hear the bulk of that argument, because of what was disallowed during voir dire. i hope, through g’s cross examination, that they sensed that rp’s “lack of geniuneness” may have resulted in a manufactured phone call.

11:17 - just two of us left in the gallery.
jh- let’s make some progress in a charge conference. if you know what you want to request, let me know. is this worth talking about?
g- requests “206.11: muder with no deadly weapon”, with modifications. first degree murder. with malice.
(this is all legalese, above my head)
g- we want the circumstational evidence instruction given.
g continues through a list of things that sound like “120.10” and “104.10”, and briefly describes these items, but i’m unable to keep up. sorry. :-)
g- jury should be instructed on various pieces of evidence of similar acts or crimes. example: testimony of hugh carroll, and evidence of prior assaults on the victim. is that similar acts or crimes? or does it fall under different evidence codes?

this is making very little sense to me. plus, i have to leave to get to work. it sounds like they’re trying to figure out exactly how to charge the jury with instructions for their deliberations.

Posted by xta at November 18, 2005 1:56 PM | TrackBack