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Robert Durst Hearing - Defense Motion for Mistrial — Transcript

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0:00uh people versus robert durst uh
0:02counselor appearing before him
0:04uh pursuant to a written waiver 977b mr
0:06durst is not present
0:09but mr lewis it's present good to see
0:12you again mr lewis likewise your honor
0:15and on the telephone good morning your
0:18honor david chesnov appearing
0:20on behalf of mr durst also on the line
0:23is mr
0:23dick de garan mr donald ray
0:27lois haney our jury consultants on the
0:30phone
0:30mr demarco from my office is on the
0:33phone
0:34and a lawyer consulting with us from san
0:37diego by the name of mr chuck sevilla
0:39is on the line as well your honor uh
0:42very well and we have mr lewin present
0:46who else is present from the people
0:48we've got mr balian mr henderson mr
0:52miata mr milius
0:54we have detective camacho and detective
0:56shanley
0:58detective benson thank you all right uh
1:02first i wanted to
1:03uh alert council that we received
1:07we received two communications i'm sorry
1:10we haven't we also have mr
1:12were you speaking mr chesnov did you
1:14have something to say
1:16no i i didn't say anything your owner
1:18all right i heard a sound coming from
1:20the speakerphone i thought you might
1:21it might be you oh no but i've asked my
1:24other colleagues to mute their phones
1:26your honor so i hope okay thank you
1:29thank you
1:30uh first i want to alert the council
1:32that we received
1:33tree communications from jurors
1:36this is from juror number five
1:40who has to be excused due to a health
1:43concern that i won't but i won't share
1:46now
1:47and juror number 10 who it generally had
1:50did not ask for excuse but or to be
1:52excused but
1:53it did describe some health concerns on
1:56account of pandemic
1:58i'll get back to that issue a little bit
2:00later
2:02on the renewed motion for a mistrial
2:05which i received
2:08july 2nd i would say that
2:11defense counsel does make a good
2:14point but that point does it wouldn't
2:17really change
2:17the outcome of the motion
2:21my tentative ruling would be to again
2:23deny the
2:24motion for a mistrial but i'll hear from
2:26defense counsel if you wish to be heard
2:29i do your honor and i appreciate the
2:32opportunity to make a complete record
2:34here as the court just noted we have
2:36filed a renewed motion for mistrial as
2:39well as a motion to adjourn
2:42during the hearing on june 23 your honor
2:44this honorable court stated in part
2:47at page 39 of the transcript if we come
2:50to the point where we believe it's not
2:52safe
2:53we won't continue with the trial we're
2:56not going to expose people to this
2:58illness
2:59this situation now your honor is far
3:01worse than it was on march 12th
3:04we strongly believe in light of the
3:06serious pandemic which continues to
3:08worsen
3:09the court must grant a mistrial at a
3:12minimum
3:12an adjournment must take place but we
3:15are not waiving
3:16any rights by suggesting this
3:18alternative choice
3:19as we respectfully submit a mistrial as
3:22the more appropriate
3:23remedy a mistrust should be granted
3:26because the coronavirus surge is
3:28worsening
3:29as is a severe health threat to all and
3:32would not only jeopardize
3:33the health of the court and staff and
3:36jurors
3:37and spectators but the health of council
3:40and mr durst would be deprived of his
3:42sixth amendment right to council of his
3:44choice
3:45as a result of three of his councils
3:47doctors directives
3:49not to return to los angeles at this
3:52time to try the case
3:54it's our belief your honor that the
3:56current trial as a matter of law has
3:58been irreparably damaged
4:00and we should not go forward with this
4:02jury we also face a grave risk of
4:05irreparable damage to all of our hells
4:08including the and i i i left out the
4:11district attorney
4:12short while ago and i didn't mean to
4:15because we're as concerned for them as
4:16we are for ourselves
4:18while defendant durst maintains his
4:20objections and renews his request for a
4:22mistrial in this case
4:24in the event that this court denied such
4:26relief defendant had no choice but to
4:28respectfully request an extension of the
4:30adjournment of the trial
4:32due to the ongoing unprecedented issues
4:34prevent presented by kobe
4:37as of yesterday according to the cdc
4:40there have been over 3 million reported
4:42cases of covet 19 in the u.s
4:44and approximately 136 137
4:48000 deaths so far the cases are rising
4:51in the state of california where
4:53specifically los
4:54angeles is a danger zone as of last
4:57night
4:58the california department of public
5:00health has reported over 356
5:03000 cases and 7 345 deaths in the state
5:09the data reported by the la county
5:11department of public health
5:13reflects that los angeles now has a
5:15shocking 147 thousand reported cases
5:19and approximately 4 000 deaths in l.a
5:21county alone
5:23it was reported yesterday that the l.a
5:25county department of public health
5:27confirmed 59 new debts and 4592 new
5:31cases of covet
5:33this is the largest increase in new
5:35cases in l.a since the pandemic began
5:38super surpassing the count from just two
5:40days before of 4244.
5:44it was reported yesterday that over the
5:46last 48 hours there have been 7
5:48350 new cases covered related
5:52hospitalizations
5:53are also at a record high uh the fast
5:57the record the number now is 2173 people
6:01on thursday
6:02that supposed surpassed the old record
6:04of
6:05103 people hospitalized which was set on
6:08tuesday
6:09younger people are being hospitalized at
6:11a higher rate than any other point in
6:13the pandemic
6:14comprising 20 percent of those under
6:17undergoing
6:18uh and needing care the long-term health
6:21effects on young people
6:23may not be completely known for some
6:25time
6:26according to an article yesterday those
6:29numbers come on the same day the state
6:31of california reported that it's
6:32seven-day running average of daily new
6:35cases
6:36totaled more than 8 000 for the first
6:38time that average has risen 295 percent
6:41in the past month we are seeing a higher
6:44rate in higher numbers than we've seen
6:46before
6:46said los angeles public health officer
6:49dr amontu davis earlier on thursday
6:52dr davis indicated health officials are
6:55worried about hospital and high use icu
6:58capacity
6:59he said all the hospitals in the region
7:01are quote looking at implementing surge
7:03capacity end quote
7:05ask when those beds may run out dr zavis
7:08said at this point we don't have an
7:10accurate number of trajectory as to
7:12whether the county will be out of icu
7:14beds
7:15he said the numbers are skyrocketed the
7:17number of icu vets is more limited and
7:20health officials are closely monitoring
7:22the situation
7:24just this morning your honor news
7:26reports
7:28indicate that there is an unpublished
7:29document prepared for the white house
7:32coronavirus task force and obtained by
7:34the center for public integrity a
7:36non-profit news organization
7:38which recommends that 18 states in the
7:41coronavirus red zone including
7:43california
7:44roll back reopening measures amid the
7:46surging cases
7:47which also includes limiting social
7:50gatherings
7:50to 10 people or fewer the city of
7:54englewood has very high numbers
7:56with reported cases of 1488
8:00and 70 deaths on the 13th of july
8:04governor newsom ordered restaurants
8:06wineries movie theaters family
8:08entertainment centers zoos museums and
8:10card rooms
8:11gyms to lawns churches and malls to
8:13reclose indoor operations
8:16in 30 counties including l.a mayor
8:19garcetti recently warned the city is on
8:21the verge of shutting down again
8:24on july 15 due to increased coping 19
8:27infections in the county los angeles
8:29county superior court presiding judge
8:31kevin brazile
8:32amended his july 10th order and
8:34announced again the delay of criminal
8:36trials
8:37under the order among other items the
8:39deadline for holding a criminal trial
8:42under the california speedy trial penal
8:44code 1382
8:46was extended by up to 30 days applicable
8:49only to cases in which the original or
8:52previously extended statutory deadline
8:55would expire from july 15 to september
8:5714th
8:58inclusive thus a defendant who would
9:00invoke a speedy trial
9:02would have a trial continued possibly up
9:04to september 14
9:06to get mr thirst who is not invoked that
9:08right and is at high risk along with
9:10three
9:11out of four of his counsel could be
9:13forced to trial in the middle of a
9:15pandemic before them this doesn't make
9:18sense
9:18defies the current scientific evidence
9:21and is also a due process and equal
9:23protection violation
9:25all of the evidence and public messaging
9:27supports that we cannot have a jury
9:29trial in this case
9:30at this time with this jury moreover
9:33under the order
9:34civil trials have been postponed until
9:36at least 2021.
9:38in april on april 29 in her emergency
9:42order chief justice cantis
9:44sequoia also stated in part courts are
9:47clearly
9:47places of high risk during this pandemic
9:50because they require
9:51gatherings of judicial officers court
9:54staff litigants
9:55attorneys witnesses defendants law
9:57enforcement and juries
9:59well in excess of the numbers allowed
10:02for gathering
10:02under current executive and health
10:04orders other courts and other
10:06jurisdictions
10:07are not conducting trials through at
10:09least the fall
10:11the supreme court of texas suspended all
10:13trials
10:14the u.s federal courts in connecticut
10:17new york
10:19louisiana and i understand massachusetts
10:22is about to
10:23as well as the eastern district of
10:25virginia the supreme judicial court for
10:28all state
10:28court trials in massachusetts trials in
10:31nevada
10:32are presently suspended in both federal
10:34and state courts
10:37as coleman 19 infections continue to
10:39rise
10:40health organizations are still releasing
10:42ever-evolving
10:43information which illustrates how truly
10:46dangerous and intentionally devastating
10:48covet 19
10:49is this was an important one for us your
10:52honor
10:53we attached a recent letter from the
10:55world health organization
10:56signed by 239 scientists which discusses
11:00the airborne transmission and how
11:02droplets can
11:03aerosolize and spread through distances
11:05larger than six feet
11:07there is also emerging research that
11:09cover 19
11:10can be spread through air conditioning
11:12systems also on june 25
11:152020 the cf dc updated and expanded the
11:18list of people at risk
11:20of severe covet illnesses and as the
11:22court was aware
11:24three of the council have submitted
11:26documentation from their doctors about
11:29their conditions
11:30and of course the court is aware of mr
11:32durst's own fragile health
11:36these changes in in the last few months
11:40of what the science believes the real
11:42chances of danger are
11:44increase the number of people who fall
11:45into higher risk groups
11:47an estimated 60 percent of american
11:49adults have at least one chronic medical
11:51condition
11:53more credit more medical conditions a
11:56person has and we don't know
11:58what the medical conditions of the
12:00jurors are we don't know what the
12:02medical conditions of their loved ones
12:03are or the people that they come in
12:05contact with
12:06but the more the conditions the higher
12:08the risk it is clear that the pandemic
12:10in l.a has spiraled out of control
12:13we shouldn't continue with this lengthy
12:15trial under these dangerous
12:16circumstances which would endanger
12:20everyone's health more importantly your
12:22honor mr burt's right to a fair
12:24trial has and will continue to be
12:26irreparably damaged
12:28at the june 23 hearing in this matter
12:31defendant requested a mistrial
12:33contending that mr dirk's constitutional
12:35rights had been irreparably damaged
12:37by will by at best a resumption date of
12:40july 27th be a 137-day delay
12:44caused by the pandemic as we have set
12:47forth in all of our briefing
12:49california courts have never sanctioned
12:51the denial
12:52of a mistrial motion based on a
12:54mid-trial day longer than 37 days
12:58most respectfully your honor after
13:00hearing argument this court denied
13:02defendant's motion
13:03relying heavily upon its reasoning that
13:06the defense had not requested an
13:07adjournment
13:08of potentially indefinite duration and
13:11therefore holding that the supreme court
13:13of california's decision and people be
13:15grey
13:16was controlling respectful your honor
13:19the defense renews its motion for
13:21mistrial to make clear
13:23it never requested a month-long or a
13:25definite break in the trial
13:27and for that reason and several others
13:30gray is distinguishable
13:32logan and dismore cases of the palace of
13:35california supreme court
13:37are common sense holdings about
13:39mid-trial continuances
13:41being per se prejudicial and nothing in
13:44the great decision
13:45most respectfully or honor truly
13:47contradicts those rulings
13:49showing actual prejudice is impossible
13:52unless the court is planning on a bloody
13:54area of the jury panel
13:56on what they've been doing and thinking
13:58for the last four months
14:00which might take longer than a normal
14:02vlog year
14:03like in this case which only took eight
14:05days
14:07on march 16 2020 at a relatively early
14:10stage of this rapidly evolving situation
14:13defendant quote agreed to waive any
14:16issues
14:16arising from a three-week adjournment
14:20that's from the transcript of march 16
14:22to page two
14:23the defense request simply did not
14:26contemplate a continuance of 137 days or
14:29more
14:30in order to constitute a waiver of any
14:33possible objection
14:34to a mid-trial delay of limitless
14:36duration
14:38as the situation developed and it became
14:40clear that the delay necessary to
14:42protect
14:43the health and safety of all trial
14:45participants
14:46would extend at least several months and
14:49irreparably damaged mr durst's chance of
14:51receiving a fair trial
14:53we filed our motion for mistrial also
14:56your honor
14:56it should be made abundantly clear that
14:59on march 12th when we ended court
15:01the jurors were instructed to return on
15:03march 16th
15:05it appears that over the weekend the
15:07court emailed and indicated that it was
15:09inclined to adjourn until april 6
15:12giving jurors and everyone else two
15:14weeks off before our scheduled week off
15:16for spring break
15:17at that time mr degaran mr ray and mr
15:21lewis were not feeling well they left
15:24they did not appear on monday i drove
15:27home to las vegas to take my wife home
15:29and drove back the same weekend
15:31to appear in court on monday march 16
15:342020
15:35i did not know the jury would not be
15:37there it is not clear how the jurors
15:39were notified not to return on march 16
15:42but appears they were already excused by
15:45the court
15:46and at some point we would ask the court
15:48for some clarification on that
15:51we filed the first motion to adjourn an
15:53open court on that day
15:54we understood this to be a short
15:56adjournment which was at the initial
15:58onset of the pandemic and it was
16:00everyone's hope
16:01that our government and scientific
16:03community would have prevented
16:05the ensuing calamity moreover the
16:08three-week adjournment was soon looted
16:10by the chief justice disorder
16:12suspending all jury trials it cannot be
16:15said the defense quote agreed and votes
16:17when adjournment for all this time
16:19when the defense motion for three weeks
16:21was soon superseded
16:23by the highest court in the state such
16:25that there would be no
16:26trial proceedings after mid-march for
16:29all cases
16:30our facts clearly distinguished people
16:32being gray
16:33respectfully your honor ray did not
16:36affirm a denial of a mistrial motion
16:39which was stated at page 36 of the
16:42june 23 transcript in fact no mistrial
16:46was ever asked for in gray
16:49great court distinguished usb hay one of
16:51several
16:52authorities replied upon in our opening
16:54promotion
16:55on the grounds that the defendant in
16:57that case preserved the issue
16:59by moving for a mistrial because of the
17:01delay whereas the defendant in gray not
17:04only failed to object
17:06but actively sought to delay by filing a
17:08rift petition that led to the stay of
17:10the trial
17:11and that was to contest the degree of
17:13murder instructions that the jury
17:15was presented with that led to his
17:18conviction
17:19the great court repeatedly relied on
17:21this fact in affirming the judgment
17:24council's failure to object in any way
17:26this is the great court and it be his
17:28responsibility for instigating the delay
17:31preclude raising the issue on appeal
17:34moreover your honor while this court
17:37correctly observed that proceedings in
17:39capital cases
17:40are technically unitary they also
17:43indisputably involved two discrete parts
17:47culminating in two separate verdicts
17:49thus the
17:50interruption at issue in our case
17:53incurring in the midst of the
17:54prosecution case
17:56carries far more potential for prejudice
17:58than the delaying grade
18:00after quote the jury had already
18:03returned a guilt verdict
18:04but they had not heard any penalty phase
18:07evidence and that said
18:082 27 of the great case
18:12in fact the great case described the
18:13delay as occurring at a natural break in
18:16the trial
18:17in addition gray was trying to question
18:21the validity of his conviction because
18:23of questions about whether or not the
18:25instructions were proper as to
18:27which degree of murder he was to be
18:29convicted of
18:31the defense in this case faced with an
18:33emerging and rapidly intensifying
18:35pandemic
18:36only requested a three-week adjournment
18:39to ensure the safety of all trial
18:40participants
18:42in the ensuing three plus months the
18:44kovan 19
18:46outbreak has raged on resulting in delay
18:49far beyond defendants or anyone's
18:52control
18:52your honor again after the initial
18:55adjournment
18:56la county suspended all trials with a
18:58state's
18:59wide suspension ordered by the chief
19:01justice of the
19:02supreme court just days after our
19:05hearing
19:05initial hearing this is a far cry from
19:08gray most respectful your honor
19:10where the full amount of the delay was
19:12quote an inevitable consequence of the
19:15defendant's
19:16mid-trial pursuit of appellate relief
19:20it is presumably for this these reasons
19:22that the people did not
19:24and i'm talking about the people in our
19:25case did not so much as mentioned gray
19:28in opposing the original motion from his
19:30trial
19:31in fact to the contrary they expressly
19:33agreed with our characterization
19:36of the mid-trial delayed issue here as
19:38quote
19:39unprecedented end quote that appeared at
19:42the people's opposition
19:43to our original motion at page two quote
19:46it is certainly true that this lengthy
19:48break in the trial is unprecedented
19:51in the annals of jurisprudence that's
19:53from the district attorney's brief
19:55furthermore the prosecution didn't even
19:58didn't even argue
19:59when we were at last in court that gray
20:01a case that we originally
20:03cited applied and the case wasn't even
20:06discussed during our last argument
20:08most respectfully your honor until the
20:10court read
20:11its decision in light of the foregoing
20:14the defense respectfully submits that
20:16the government governing supreme court
20:18of california precedents are those cited
20:21in our
20:22opening motion they hold holding that an
20:25approximately two-month hiatus
20:27less than half of the one at issue here
20:30would create an impermissible risk of
20:32cure
20:32exposure to outside f influences
20:36not trying to be facetious your honor
20:38this is not a gray case
20:40this is a black and white case people be
20:43logan
20:44to continue a case for two months and
20:47allow the jurors selected to hear the
20:49evidence and render the verdict
20:51to quote rome at large during that long
20:54period of time
20:55cannot be confidence in law in dinsmore
20:59it said these 12 jurors returning into
21:02the jury box
21:03after roaming at large throughout the
21:05county and state for a continuous period
21:08and that was 63 days associating with
21:10their neighbors and friends
21:12and the world at large and without the
21:14care and protection of the court for
21:16this long period
21:17are not the jurors the law contemplates
21:19for the trial of a defendant charged
21:21with a serious offense
21:23there is absolutely no indication that
21:25either of these decisions
21:27was superseded by gray sub celentio your
21:30honor
21:31and here contrary to the people's
21:33repeated suggestion
21:35and probably different from cases from
21:38the 1800s where there wasn't the
21:40internet
21:41hbo dateline and other
21:45shows there is a wealth of inflammatory
21:48and patently inadmissible information
21:51regarding mr durst
21:52and the events that issue in this case
21:54available online
21:56and i will not recite the sealed
21:58material that we filed with the court to
22:00give examples
22:01but we are we're we are aware that the
22:03court and
22:05and and the people are aware of all the
22:07material that's out there concerning mr
22:09durst
22:10some up to the current date
22:15with regard to jurors ability to
22:16accurately call the evidence presented
22:19to the adjournment prior to the
22:20adjournment your honor
22:22the defense respectfully submits that
22:23the incident case is far from quote
22:26typical
22:27as end quote as the court
22:30reflected at page 36 of the transcript
22:33from the last hearing
22:35whereas a typical juror selected to
22:37serve on a month-long trial
22:39would be engaged in the subject matter
22:41of the case on a daily basis
22:44these jurors have been forced to spend
22:46the last several months
22:47focused on life and death matters
22:49regarding the physical health
22:51and economic survival of themselves and
22:54their families
22:55we provided a declaration for mr durst
22:58in our recent supplement
22:59he agrees to the mistrial and
23:01understands it would lead to a delay of
23:03his trial
23:04again he is elderly and high risk as the
23:06court is aware
23:08but your honor he's also in federal
23:10custody through marx
23:12of 2021 in relation to his conviction
23:15in the united states district court
23:17eastern district of louisiana
23:19case number two colon 15-cr-00091
23:26your honor we have submitted new letters
23:28under seal which address the health risk
23:30to mr tagueran mr ray and myself
23:32and of course mr durst also has his own
23:35serious health
23:36situations we have attached his exhibit
23:38one as to our new motion to adjourn
23:41a true incorrect copy of an updated
23:43letter from dr russell a klein
23:45who attended court
23:48for the last hearing which further
23:50discusses
23:51the health risks with proceeding with
23:53this trial
23:55why would we continue this trial in the
23:57face of increasing threat your honor
24:00we believe that this is the only jury
24:03trial that we're aware of in la county
24:05that has been in recess for over four
24:07months with the potential to continue
24:11the loss of work on jury selection which
24:14involved
24:14only eight actual days of what year of
24:17the prospective
24:18jurors your honor pales in comparison to
24:20the continuing threat
24:22not only to everyone's health but to the
24:24fairness of the trial that mr dirks
24:27deserves to provide additional context
24:30regarding the jury selection process in
24:32this case
24:34by our research your honor the
24:36prospective jurors completed a
24:38questionnaire between january 2nd
24:40and january 22 2020. there were 414
24:44completed questionnaires
24:46our jury consult in this case lois haney
24:49and her staff
24:50began downloading completed
24:52questionnaires starting on january 7th
24:54ms haney was involved in a capital case
24:56and jury selection in los angeles until
24:59january 27th and the court accommodated
25:01her schedule
25:02postponed the vlog year until february
25:042020.
25:06on sunday sunday february 9th
25:09ms haney mr lewis and myself met with mr
25:12lewin and his team at their office in
25:14the airport courthouse
25:16to discuss jurors we could stipulate to
25:18excuse
25:19i believe that we stipulated to the
25:21excusal of approximately 232 jurors
25:25we weren't in the courtroom and the
25:26jurors were not present
25:28one year of prospective jurors in court
25:31began on february 19th
25:33vladimir proceeded on the 19th 20th 24th
25:3625th 26th and 27th during which time we
25:40exercised peremptory challenges
25:42and selected the 12 jurors to hear the
25:44case what year continued on the 2nd and
25:473rd of march
25:48and the alternates were seated on march
25:503 2020.
25:51in terms of time loss if we were to try
25:54and use the present jury
25:56please consider the need for a new
25:58intensive warfare of those same jurors
26:01who even if they do agree to return to
26:04our case in order to see
26:05who's willing to serve and what they've
26:07been doing and what they've been
26:09thinking concerning this case
26:11mr durst and their own personal problems
26:14without the jury
26:15questionnaires we proposed last time
26:17when we saw the mistrial
26:18we don't even know if these jurors will
26:20return what their attitudes are
26:22or how they feel which is completely
26:25unfair to them
26:26your honor and most importantly unfair
26:29to a defendant
26:30on trial for his life consider the
26:33increased time it will take to try the
26:35case again
26:36with all the proportions needed to be in
26:38place
26:39for example one or two people in an
26:41elevator spacing maintained everywhere
26:44what happens your honor with the likely
26:46prospect of another stay home or general
26:48shutdown
26:49which the mayor and the governor have
26:51been discussing how can jurors be
26:53expected to concentrate the evidence
26:55at a renewed trial with a constant
26:57overwhelming life-threatening
26:59and economic concerns to themselves and
27:01their families
27:03your honor again mr burst thirst is not
27:06going to be free on bail
27:08he's presently incarcerated on another
27:11case to which he pled guilty
27:13he still faces this lengthy trial but
27:15your honor
27:16proves it must be done in a demonstrably
27:19safe and constitutional environment
27:22and presently that environment does not
27:24exist
27:25in los angeles regardless of everyone's
27:28good intentions
27:29including the courts not granting a
27:32mistrial under these circumstances will
27:34violate
27:35his rights and endanger the health of us
27:37all the desire to avoid another jury
27:40selection
27:41cannot possibly outweigh all the
27:43constitutional
27:44and health concerns that currently exist
27:47mr burst wants the same fairness every
27:49other defendant would receive face
27:51with an interruption of his case that
27:54would be a new jury under the california
27:56law
27:57it would also be a jury trial free from
27:59all the impediments to confrontation
28:02that the pandemic have created he should
28:04not be the guinea pig for the new way
28:07that a trial has conducted your honor
28:09when it would be safer to miss triad
28:11and schedule the trial for a point in
28:13time where a person can have
28:15an american jury trial but people will
28:18put on their case for five months
28:20which by the way could have been done in
28:22a month and the jurors will be rushing
28:24home to get back to their loved ones
28:26mr durst has a right to present his
28:28defense but the jury will not be able to
28:31evaluate
28:32witnesses properly because of mass
28:34distancing
28:35videotape witnesses etc we can't even
28:39sit next to mr durst and converse with
28:41him
28:41and the idea is to create some kind of a
28:43mechanical communication
28:46with a client which none of the lawyers
28:49in this case have ever experienced
28:51in their many years of practice your
28:53honor
28:54your honor under these unique and
28:56concerning circumstances
28:58would implore you to reconsider your
29:00preliminary
29:01suggestion that you were going to deny
29:03the mistrial
29:04please understand your honor that we are
29:07not asking for this mistrial
29:09for any other purpose than to guarantee
29:12mr
29:13durst a fair trial and to make sure that
29:15all the participants
29:16can remain healthy and safe to try many
29:20cases in the future your honor
29:22thank you it i have some housekeeping
29:25matters but
29:26i i i think i would like to wait your
29:28honor until
29:30the court analyzes what it's going to do
29:32with the mistrial and then i can address
29:34those
29:36thank you mr chestnut
29:40mr moon do you have anything i do
29:43hey america sure i'm going to divide
29:46this up because there are two separate
29:48motions of defense's file and uh i only
29:51asked for argument on
29:52one although i received an argument on
29:54two right so i'm gonna i'm gonna
29:57we're having difficulty hearing you yes
29:59let me know
30:01[Music]
30:06sorry
30:17so mr chesnov uh addressed uh
30:22though though mr chestnut addressed the
30:24mistrial motion a lot of the
30:27uh strength of during amendments was
30:31would go to adjournment rather than
30:33invent a mistrial in the court's view
30:40so let's talk about the misdraw motion
30:42first of all
30:43these are the identical arguments that
30:46council made previously
30:47identical nothing has changed now what
30:50the defense seems to confuse and i don't
30:53think
30:54it's unintentional is they seem to
30:56believe
30:58that somehow if
31:02an adjournment as an example is agreed
31:05to
31:06that there's a new jury and that's an
31:09interesting point because
31:10number one it's not supported by the law
31:12and number two
31:14it goes to what the defense has been
31:16doing since day one in this
31:18case which is they have wanted a
31:20mistrial
31:21for reasons that have nothing to do with
31:22covet since the first day of jury
31:24selection
31:25they've repeatedly asked for it that's
31:26their right mr durst himself your honor
31:29as the court is aware has made comments
31:32saying that he quote wants a do-over
31:34unquote and in the end that's simply not
31:38what the court's role is what the
31:40judicial system is meant to
31:42uh support in the end
31:46what we really have here is we have
31:49a request for a mistrial and they simply
31:52don't meet the requirement and let's go
31:54through
31:55and again i'm not going to take as long
31:56as mr chesnut but a few things that need
31:58to be addressed
31:59so first of all mr chessop makes a lot
32:03of
32:03just wrongly inaccurate statements
32:07number one and it's almost laughable
32:10no this case could not have been tried
32:12within a month
32:14it's absurd it is not the people's fault
32:17or responsibility that mr durst chose to
32:19kill three people
32:21which necessitates a lot of evidence
32:23which the court has already found
32:24relevant
32:25and admissible the amount of time that
32:27this case is going to take has been
32:29reduced
32:30by the stipulations that the people in
32:32fact
32:33were able to get the defense to agree to
32:35that's number one
32:36number two the idea that this is the
32:38only case in the county
32:39that has been delayed that's incorrect
32:42judge fiddler is currently
32:44in the middle of the long trial there's
32:46a third trial that i'm also aware of
32:48i don't know who the judge is that is a
32:49gang case and they're waiting the same
32:52way that we are
32:53so let's talk about the actual mistrial
32:55issues
32:56so they say quote we are in the midst of
32:58the prosecution's case
33:00no we've had two days of testimony
33:02that's it we've had 10 witnesses
33:04and here's what's really interesting
33:06those 10 witnesses
33:08discuss the following mr dirk's history
33:11of domestic violence
33:12which he has admitted in which they
33:14discussed in voidier
33:16number two kathy durst's upbringing
33:18which is not in dispute in any way shape
33:20or form
33:21number three the circumstances
33:24surrounding
33:25the fact that susan's dogs were loose
33:27and how the police responded to the
33:29location
33:30so first of all to even make the
33:33argument that somehow
33:36all this evidence has been presented in
33:37this trial and that it's so prejudicial
33:39mr durst
33:40it's disingenuous it's a tiny bit of
33:43evidence it's evidence it's not in
33:44dispute
33:45and there are 25 different remedies
33:48in terms of short of mistrials such as
33:51having the evidence read back having the
33:54uh audio of the testimony which was all
33:57recorded played back to the jury
33:58having opening statements we showed to
34:01the jury having the court if the court
34:03wanted having us redo opening statements
34:05and recall witnesses so that's the first
34:07issue
34:08now let's talk about gray and i do not
34:11like to say this but it is true
34:14my team me my responsibility i'm the
34:17lead lawyer
34:18we missed gray we looked at it gray is
34:21absolutely on point thankfully the court
34:24was on top of things and the court
34:26actually made the arguments and the
34:29arguments were is are completely solid
34:31completely supported
34:32those are arguments we should have made
34:34now in the end
34:35whether or not we cited the case uh
34:38really is more of a comment on
34:40where we fell short than it is on its
34:42applicability
34:43that case is absolutely on point and
34:46when mr
34:47chesnov says that in fact there is more
34:50prejudice in this case
34:52than there was in grey it's absurd and
34:54here is why
34:57as the court knows guilt phase evidence
35:00is absolutely relevant in penalty phase
35:03so you had a jury who heard an entire
35:06trial worth of material
35:08now they have their decision they have
35:10one decision left
35:12and that is is the person going to get
35:13death or are they going to get life
35:15without the possibility of parole
35:17you had an 11 month adjournment in
35:20between that time
35:21where if any court anywhere could say
35:24you know that is prejudicial to the
35:27defendant
35:28that would be the case the jury's left
35:30with 11 months of a
35:32heinous death penalty case for them to
35:35consider
35:36which by the way although they're not
35:38deliberating would be hard to imagine
35:40that the images the testimony the
35:43thoughts are not going through their
35:44mind
35:45much of which was disputed at trial
35:47although the jury in fact ended up
35:50coming back and supporting the
35:51allegations the prosecution
35:53made convicting finding the special
35:55circumstance so the idea that gray
35:57is somehow substantially less
36:00prejudicious in this case
36:01it's an absurd argument and i know the
36:03court's aware of that as well
36:05number two and again
36:09they keep talking about the amount of
36:11time
36:12that took place
36:16the fact that it's unprecedented
36:19the cobit 19 pandemic is unprecedented
36:22the problem with almost every case the
36:24defense cited and the court again
36:26pointed this out and we pointed this out
36:27in our prior motion
36:29is that the reason for the original
36:32break in the trial
36:34they range from a judge having a
36:36judicial conference
36:38to simply a witness got uh was unable to
36:41come to court
36:42and they just delayed things so the
36:44problem there
36:45was not so much that a mistrial should
36:48have been
36:48uh declared it's that in fact the
36:51original break in the trial
36:53violated the defendant's constitutional
36:55rights now
36:58gray discussed hoy and hoy is helpful
37:01because as the hoi court explained hey i
37:04believe
37:05oh yeah i'm sorry hey excuse me your
37:06honor my uh my uh
37:09my vision here is uh is not the greatest
37:11thank you
37:13the great case explained that in
37:16contrast the delay
37:17in that case meaning gray came between
37:20the guilt and penalty phases uh after
37:22the jury all returned a verdict but had
37:23not yet heard any penalty
37:25penalty phase evidence and they went
37:27back and they talked about
37:28what happened in hay where
37:32in that case uh the court basically
37:35explained the jury
37:37could not be expected to adjourn that
37:39late in the case for a month and a half
37:42without forgetting any of the relevant
37:43evidence so the problem is
37:45is that where the adjournment came in
37:47hay was completely different than where
37:49it came in gray
37:50and it's 10 miles from what happened in
37:52this case
37:53um they then say that that
37:57gray is uh is and let's get the wording
38:00right here
38:02they say that gray
38:06is not controlling and then it's
38:08distinguishable
38:09well it's absolutely controlling it's
38:11from the california supreme court and
38:12they have not done even
38:14a rudimentary job of explaining how it
38:17is distinguishable
38:18it is not distinguishable in any
38:20meaningful manner and in fact
38:22the gray case which i think the court
38:24would concede
38:25is a substantially closer
38:29and potentially more prejudicial
38:31situation for the defendant than
38:33anything
38:33that mr durst faces here now
38:37in excuse me
38:41as the court pointed out in gray the
38:44defendant
38:45also requested the hiatus the
38:48adjournment
38:49and the defense in fact did so in this
38:51case
38:52now we get to and this is where it
38:53overlaps with the adjournment issue
38:56now the defense says and again i found
38:58this very interesting
39:00they say that they requested only a
39:03three week
39:04delay oh that's not true
39:08that is what you call your honor there's
39:10just no other way to get around it
39:12it's a lie it's untrue it's unsupported
39:15here's what they requested
39:18and this is from their original motion
39:20quote
39:22mr durst will move for an adjournment of
39:24the trial
39:25due to health concerns for the jurors
39:27defendant
39:28attorneys court staff and the general
39:31public
39:31and for the protection of defendant's
39:32constitutional rights
39:35it continues the defense request that
39:37this trial be adjourned
39:38until health and government officials
39:41can
39:42properly assure the safety of all
39:45attendees of this trial
39:48now here's what's interesting and sloppy
39:52on the defense's part is that
39:55statement in no way limits it to any
39:58specific length of time
40:00it talks about actually until and in
40:03fact
40:04in essence this pandemic has been
40:07resolved and it's safe
40:09so i my my memory of this
40:12actually i looked at the transcript of
40:14the hearing on the motion to adjourn
40:17mr durst was present and though
40:21the motion for adjournment had called
40:24for delay
40:26until safety could be assured in the
40:29context of
40:30mr durst agreeing it was almost
40:32suggested
40:33perhaps a three-week delay and then mr
40:36durst went along
40:38with the three-week delay and that's
40:39where this three-week idea came up
40:41the issue though is not waiver it's just
40:45not relevant it's not material that
40:48whether or not mr
40:49uh durst or
40:52agreed to this delay and what really
40:55matters is whether there is
40:56good cause right and so what the motion
40:59was
41:00was for an unlimited delay this uh
41:03in-court
41:04holoque doesn't limit that and in fact
41:07your honor the court granted
41:09the court's wording by my memory was i
41:11will grant defendants motion
41:13correct and that's what the court did so
41:15here's what's interesting
41:17the defense says we had no idea at the
41:20time
41:21that the court was going to adjourn for
41:23more than three weeks
41:24that's untrue council was coming in at
41:27the time explaining they had no idea
41:29when it would be saved
41:30the court was present on numerous phone
41:32calls on emails
41:34where they reiterated the same point but
41:36here's where
41:37the rubber meets the road when you look
41:39at their new motion
41:41they use the identical language for the
41:44adjournment that they used before
41:46identical so the idea that well we
41:49thought it was only going to be three
41:50weeks
41:51they're certainly not requesting three
41:53weeks now it's disingenuous it's not
41:56true
41:56now let's go back to the
41:59german issue in a little more to take
42:02because i think this is going to be
42:14important
42:16their current motion for adjournment
42:18your honor
42:20what they have mixed up
42:23is that just because there is an
42:26adjournment
42:27does not mean in any way shape or form
42:30that you get a new jury
42:31and let's be honest what's going on here
42:33is they want
42:34a do-over so here is what the people
42:38are going to propose number one your
42:40honor
42:42and i'm gonna refer back to uh
42:45the supervising judge oda's
42:48memo which was circulated uh was given
42:51to our office
42:52it went around back on june 29th
42:55and that document
42:58discusses and let me get the language
43:01exactly
43:05one moment your honor
43:25the document discusses and lays out
43:28that council and courts are encouraged
43:32to have as many jury trials
43:35converted to court trials as possible so
43:38we make the offer today
43:40right now knowing how much both sides
43:42respect this court
43:44how much admiration both sides have for
43:47this court
43:48we are more than willing today your
43:50honor to right now agree
43:51that we continue this case as a court
43:55trial
43:56whenever the court deems that it be safe
43:59that then
43:59eliminates any issue of jurors and if in
44:03fact
44:04council is again is interested in
44:07doing this trial and has the same
44:10respect for the court that they have
44:12previously
44:12related i'm sure they'll take us up on
44:15that offer right now
44:17we'll let them talk okay so so i'll
44:20leave that uh
44:21percolating with them as i could
44:23continue my argument so
44:24now let's look at the motion for german
44:26a little more detail
44:28let's assume that right now
44:32the defense gets their wish and we get
44:34quote a do-over with a new jury
44:37how on earth are we ever
44:40going to be able to pick a jury uh i'm i
44:44have seen
44:44some of the and have heard from
44:46different people what the proposals are
44:48for jury selection
44:50um mr chesnov in his last argument said
44:52well maybe it'll take an extra month for
44:54jury selection
44:56it will take us a year to select a jury
44:59we're going to have to voidier
45:00in tiny amounts and that doesn't even
45:03bring up the idea
45:05of how difficult it's going to be not
45:08just the process but getting jurors
45:09who have the ability to serve uh
45:13it's going to be nearly impossible to
45:15put on a trial like this
45:17until the pandemic is completely gone
45:20if we are picking a new jury from
45:23scratch
45:24now thankfully and again
45:27council's motion for adjournment if
45:29granted
45:30in no way puts us in the position where
45:33we get a new jury
45:34so here is the second thing i would
45:35propose second thing would propose your
45:38honor is
45:39that and again i'm not a mind reader the
45:41court knows better than i do and i do
45:43agree
45:44with one thing that mr chesnov has said
45:46and that is clearly the pandemic
45:48is not getting better we had hoped that
45:51summer it would be hot
45:52and it would go away it's getting worse
45:55um
45:56i think that the idea of inconveniencing
45:59this jury
46:00by saying okay come back september
46:04whatever
46:04come back november whatever come back
46:07january whatever
46:09um it's almost really what it is is it's
46:12a
46:12permanent delay by installments and all
46:16it does is inconvenience them this is
46:17what i would propose
46:19let's have the jurors come back in april
46:232021 our same jury
46:26they will be told at this point in time
46:29you know what
46:30you don't need to worry about this case
46:31at all until april
46:33you make your plans you do what you want
46:35to do and when april comes
46:38if we are in a position where it's safe
46:41we will pick it back up if not then
46:43we'll wait until june
46:45but the bottom line is and if you look
46:47at it
46:48those jurors are going to be in a much
46:51better position
46:52they've already been voidiered they've
46:54already filled out questionnaires
46:56and if we start from scratch not only
46:59will it be impossible to get a jury or
47:01honor but we're going to inconvenience
47:03800 people for a year
47:07600 people whatever it's going to be
47:09because they have to stick around
47:10throughout the process
47:11and by the way we're probably going to
47:13have to inconvenience a couple thousand
47:15because if you look at it the amount of
47:17jurors that are likely to be able to
47:19serve
47:20after this pandemic with health issues
47:22and health issues of their families
47:24and school issues with their children uh
47:26it's gonna be nearly impossible
47:28so our proposal would be that we put
47:30this case over
47:32until april uh i think that probably
47:34from what i read at least
47:36that should be after the flu season tell
47:38the jurors to come back
47:40on that date the court will periodically
47:42advise them
47:43uh but we keep the same jury and we pick
47:45up right where we left off
47:47now if when we restart
47:51the defense wants to either re-show
47:53opening statements which were videotaped
47:56they want us to redo the opening
47:58statements we can certainly talk about
47:59it my position would be your honor
48:01that the fairest and most equitable way
48:04to do things is
48:05if the jury the court decides you know
48:07what we need to redo the opening
48:08statements
48:10we play them on the machine just as we
48:12are playing half the testimony of this
48:14case
48:15and we go from that point now if the
48:19defense is sincere
48:21in their issue that this is about covet
48:2219
48:24then they should jump at this proposal
48:26that i'm making right now
48:28this allows them to be safe it allows
48:30their client to be safe
48:31etc um if the response is well
48:36we can't do that we're going to be
48:38prejudiced etc
48:39then the court has to kind of look
48:41behind and say you know what
48:43is this really only about cobit and i
48:46want to add something else
48:48um i want to make sure your honor that
48:51each of the defense attorneys in this
48:52case
48:54is going to end up signing a declaration
48:58under penalty perjury that they will not
49:01be appearing
49:02in a courtroom in any case during the
49:06interruption of the trial
49:08according to mr chesnov mr ray
49:12and himself mr guerin are in high risk
49:15positions i should also add because i
49:17don't know if it was really explained
49:19uh as effectively it should have been
49:21during the last hearing
49:22mr degarin the defendant has already
49:25waged his presence for the trial
49:27based on health issues the court
49:29remembers they got a continuance
49:31which we opposed because mr degaran had
49:33a heart ailment
49:35and at that time we spent a long time
49:38in chambers discussing and the court
49:41agreed
49:41if we have one lawyer per side we're
49:44going on this thing
49:45and that mr durst specifically waived mr
49:48degaran's presence
49:50if he were unable to be on the team
49:52during the penance of the trial
49:54now the idea mr chesnov suggested it
49:57last time that in essence well
49:59that was mr durst waving his presence
50:01for a heart problem not for covid
50:04is absurd he waved his presence if he
50:06were
50:07unable to perform his duties as a lawyer
50:09due to health concerns
50:10so mr the guerin uh is not a factor
50:14mr ray the court has already said that
50:16when
50:17the case starts mr mr ray need not be in
50:20the courtroom
50:21that's number two uh mr lewis from what
50:24i understand
50:24is not a part of the um
50:27the notes from doctors we don't have
50:30them but it's my understanding that mr
50:32lewis has not
50:33filed anything that he is ready to uh to
50:36be on this trial now obviously i think
50:37he agrees with the request for the
50:39adjournment
50:40uh from what i understand and then we're
50:42left with mr chesnaught so your honor
50:44in summary we are prepared right now
50:48to agree to an adjournment until april
50:512021 using the same jury
50:55no do-over no change in stipulations
50:58no change in opening statement no change
51:01in defenses
51:03we pick up where we left off with this
51:05jury
51:06and we make accommodations as they are
51:08needed when we get to that point
51:10with that i would submit thank you your
51:13honor
51:14uh david chest off yeah um i'm gonna
51:17make a few responses and then i'm gonna
51:19ask the court
51:20to maybe take a brief recess so that i
51:23can caucus
51:24with my co-counsel regarding
51:27these new ideas that we were just told
51:29about this morning
51:31we didn't have any advance notice so
51:34yeah if the board is inclined to give us
51:36maybe a
51:37a half hour break so that we can talk
51:40that would be helpful but
51:41i'd like to make make a few brief
51:43comments if i could yes first
51:45make your comments thank you first of
51:47all your honor
51:48um i i'm i am surprised
51:53that the court continues to countenance
51:56these kind of uh derogatory
52:00claims about our intentions here i
52:03i really would like the court perhaps to
52:05make a finding that they believe that
52:07what we filed not only has been an
52:09effort to
52:10provide you with the law but to try to
52:13distinguish
52:14in a proper way the way lawyers do
52:17the case law that nothing's being done
52:20here
52:21for the sake of getting a quote do-over
52:24but rather is being done based on
52:26california supreme court precedent that
52:29said
52:29a mistrial is appropriate in it with a
52:32delay like this it's the first thing we
52:34found when we began to research this
52:36the great case in our opinion is
52:38distinguishable the court may differ
52:40with us
52:41but to adopt a differing opinion from us
52:44based on this dismissive attitude that
52:46mr lewin gives
52:48or this ridiculing attitude that somehow
52:51we are being disingenuous
52:53or we aren't making sense this is the
52:56collective work of a lot of
52:58very very concerned and disciplined
53:01minds
53:02i'm not including myself in that i'm
53:04talking about the people that helped
53:06prepare all of this work and i kind of i
53:09feel like an obligation to them
53:10considering
53:11the amount of effort that's gone into
53:13this on almost a daily basis your honor
53:16to stay on top of this to make sure that
53:17mr durst's rights are protected
53:20that said and we aren't trying to do the
53:22case through the case over your honor
53:24or or do the case so we can not dateline
53:28your honor
53:29we're trying to get a case that um
53:32at a time that's appropriate with a jury
53:35that is uh unaffected by
53:38um a delay and most importantly your
53:42honor
53:43gray asked for the delay in this case
53:46god asked for the delay we didn't cause
53:49this
53:50and i know the court made the comment
53:54about the three-week delay your honor at
53:55the
53:56time we were going week to week to week
53:59i asked for three weeks at that hearing
54:02i i
54:02it's in the transcript we were all
54:06kind of in limbo and not really knowing
54:08what was going on so
54:10it's very clear that anything that's
54:12happened even after that hearing
54:14was superseded by the court's own not
54:16you your honor but the higher court's
54:18own decisions about what would happen
54:21with trials
54:23conor we discussed things in void dear
54:26with the jury like the domestic violence
54:28only
54:30and galveston
54:33only because the court had pre-trial
54:35ruled that that was coming in
54:37so for mr lewin to suggest that we
54:40brought it to the jury's attention of
54:42course we did we had to
54:44we got faced with uh uh having to deal
54:47with
54:48an acquittal acquittal and galveston
54:50evidence all of this stuff about
54:53domestic violence
54:54which was exaggerated in the
54:57presentation of the witnesses
54:59with and unnecessary there's no that's
55:01mr lewin said
55:03mr cursed admitted to domestic violence
55:05but we were
55:06stuck with the president presidential
55:08life testimony about
55:10domestic violence and the court
55:11remembers we
55:13we filed necessary motions and limiting
55:15about both issues
55:17your honor we don't believe that gray
55:20applies
55:22we believe that the older california
55:25supreme court cases which have never
55:27been reversed
55:28apply we would like your honor
55:31for the court grant the mistrial
55:34so that when the time is appropriate we
55:37can have
55:37a new jury that is free from the impact
55:41of the pandemic it is free from
55:44any outside influences which the
55:46california supreme court
55:48recognized per se exist in a case
55:52especially where there is so much
55:53information about mr durst out there
55:56and please your honor you know we've
55:59been doing this together for a long long
56:01time
56:01and yet every time i work hard to
56:05prepare
56:06and make a coaching argument as best i
56:08can
56:09i get told that i'm doing this for
56:11ulterior motives
56:13your honor believe me david chesov
56:16wants to try this case
56:19i'm not trying to do anything here that
56:21actually helps me
56:23everything that's happening here is
1:02:49it's not a case where the defense asked
1:02:51for a mistrial and
1:02:52in gray the
1:02:56supreme court noted that no mistrial was
1:03:00requested and and so
1:03:04that's really
1:03:29close to not only the reason for the
1:03:33delay but also
1:03:34in in gray's
1:03:37dispatching all the various claims of
1:03:40potential prejudice
1:18:11you
1:19:21you
1:20:17you
1:21:27you
1:22:37you
1:23:33you
1:37:52right back on the record people versus
1:37:53robert first
1:37:55we have defense counsel on the phone
1:37:57yeah yes thank you your honor everybody
1:37:59that was on
1:38:00earlier this is david chesnov is on
1:38:03again
1:38:04mr lewis here and all of the council for
1:38:07the people are present
1:38:08thank you your honor first thank you for
1:38:10giving us a break there your honor
1:38:12the first thing we realized that when we
1:38:14got on the break was
1:38:16that in order to give the court uh an
1:38:19answer on the proposals
1:38:21we have to visit with mr durst so we
1:38:23would like to ask the court
1:38:26to reset a status conference in two
1:38:29weeks which will give
1:38:30us time to have
1:38:33somebody visit with mr durst
1:38:36and discuss the proposals which defense
1:38:40counsel
1:38:43are are considering and and we will make
1:38:45appropriate
1:38:46uh recommendations and we'll have an
1:38:48opportunity to have mr durst
1:38:50give a a reason to answer to the
1:38:53question
1:38:53so we would like the proposals to
1:38:57to remain open until we have a status
1:39:00conference if that's okay with the court
1:39:01and the people
1:39:03i will need to contact jurors
1:39:05immediately to let them know that there
1:39:07is going to be a delay and also to give
1:39:09them the characteristic admonition
1:39:13perhaps i can do that in an open-ended
1:39:15way
1:39:16i do intend to grant an adjournment and
1:39:20i
1:39:21i think the people's proposal is
1:39:25is excellent so
1:39:28mr lewin how would that be shall we keep
1:39:31it open-ended
1:39:32uh and then uh and then consider whether
1:39:35a jury returns at all
1:39:36whether it will be a a bench trial yes
1:39:38or uh
1:39:39or or if the jurors are to return should
1:39:42it be
1:39:42i would say april five first opportunity
1:39:45i have a request from um
1:39:47mr balian oh can we do april 11. we
1:39:50climbing another mountain mr balian
1:39:52no it's just well if if there will be
1:39:55any
1:39:56potential college tours it would be that
1:39:57week up to april 11.
1:40:00very important was that april 11th your
1:40:03honor
1:40:04that's what mr balian has suggested well
1:40:07considering my
1:40:09uh affection for mr bailly and we if
1:40:11this we will tell mr
1:40:13durst that's the date if the court
1:40:15agrees
1:40:18that's a sunday oh
1:40:22[Laughter]
1:40:26good to hear you chuckle mr degaran i
1:40:28recognize that laugh
1:40:30all right but actually i was home uh
1:40:33abused from that one thing that will
1:40:35that was me don right
1:40:36your honor all right
1:40:39you sound more and more like mr degaran
1:40:41every day
1:40:42all right bye april thank you april
1:40:4612 is a proposed date
1:41:08very well um if the people people
1:41:11agree that it's reasonable for me to
1:41:13delay a couple of weeks
1:41:14then when
1:41:18we'll set a new we'll set a new date in
1:41:20department 81
1:41:22for so april 12th i presume we would we
1:41:26would set it here in inglewood because
1:41:28even
1:41:29even if the conditions ease i expect
1:41:31we'll still
1:41:32need to maintain social distancing we
1:41:35will need the space that only
1:41:37this courtroom provides us at which
1:41:39department 81 does not
1:41:42so but it's for the status conference
1:41:44that can be in department 81.
1:41:46and your honor will that be at 9 or 10
1:41:48well we haven't given the date yet but
1:41:50whatever date that is
1:41:51we'll see we'll that'll be 9 a.m okay
1:41:56i'm sorry did we pick the date i didn't
1:41:58hear the uh no
1:42:00uh the status conference would be we
1:42:02picked a time
1:42:03now let's pick a day you say two weeks
1:42:06what day works for everyone
1:42:10[Music]
1:42:12i can't do the the before if i have a
1:42:15potential preliminary hearing
1:42:16other than that your honor um so for me
1:42:19it would be better if it was um
1:42:21uh i could do right before i could do
1:42:25the 31st if that works for the court
1:42:28thirty parties is fine with me
1:42:29take the garrett is that uh is that good
1:42:32uh for you
1:42:33um mr lewis one second
1:42:37that's a friday chip
1:42:40i don't have just two cases
1:42:45yeah i think so
1:42:4831st will work all right
1:42:519am july 31st department 81
1:42:55status hey will you appear
1:42:57telephonically your honor yes you may
1:43:02i'm sorry did you say nay or you meant
1:43:06you said you may okay okay
1:43:09and with respect i know that um just as
1:43:11we're all considering something that we
1:43:13were discussing
1:43:14one of the problems and i'm saying this
1:43:17for the defense's benefit as well
1:43:19is that coming into flu season
1:43:22the position we're going to be in is
1:43:24that if somebody gets the flu
1:43:26we're probably going to have to treat
1:43:27any flu as if it's covered
1:43:29yeah because we're not going to know the
1:43:31difference and because
1:43:32it's almost impossible in a normal flu
1:43:36season that we're not going to have
1:43:37flu going around it just seems to me
1:43:40that we really need to get us ourselves
1:43:43past this flu season i i think that's
1:43:46that's uh that's
1:43:47wise okay i agree wholeheartedly
1:43:50and so the telephonic meeting july 31st
1:43:54the other um 81
1:43:57now as far as mr durst you'll uh
1:44:01you'll want him to appear on that date
1:44:03we'll
1:44:04probably well it depends on what his
1:44:07decision is i guess your honor
1:44:09um so we can advise the court if it's
1:44:11going to be a waiver
1:44:13or whether or not he'll be there in
1:44:14person if that's okay with the court
1:44:17your honor just a moment
1:44:24it's going to be 31st
1:44:30i see we'll vacate if we receive a 977b
1:44:34and if i accept that 977b waiver your
1:44:37honor it's my
1:44:38intent i'll travel back out to see mr
1:44:41durst and communicate these
1:44:43options and provide our advice i will
1:44:45let the court
1:44:46and the people know as soon as that has
1:44:48happened
1:44:49you know and i'll visit with him about
1:44:51the weather
1:44:54very good now uh otherwise
1:44:57the the other your
1:45:00to honorary questions it's 9 00 a.m or
1:45:0310 am 9 00 a.m
1:45:04now council uh did you wish
1:45:08to demonstrate this uh system uh for the
1:45:11for the court
1:45:12and maybe mr your honor is there another
1:45:15date beyond
1:45:16the 31st consistent with what mr lewin
1:45:19was saying about the flu
1:45:22so it's not the april date or not
1:45:25we i have not set any any other date if
1:45:28we have an april 12 date for the jurors
1:45:30i thought a uh a march date for status
1:45:34but it's premature for us uh to to do
1:45:38that right now but i expect we we'd meet
1:45:40ahead of the
1:45:40jurors by a couple of weeks
1:45:45or a month two to four weeks
1:45:48so the next day will be july 31st and
1:45:51we'll just put the jurors on
1:45:53on hold i don't want to give them
1:45:56a false hope if
1:46:00for some reason we didn't although
1:46:04i i expect you to all agree
1:46:08your honor with respect to the uh the
1:46:10other issue
1:46:12that's mr bailey and mr emilius is in mr
1:46:14miata's uh
1:46:15uh show they've been working very
1:46:17diligently and i think they're ready to
1:46:20give the court a um
1:46:21we can do that uh we just asked her
1:46:23maybe a five minute or
1:46:26recess so we can set up the conference
1:46:28with the remote person
1:46:29if that supports inclination all right
1:46:31and this doesn't even need to be on the
1:46:33record
1:46:33uh it is it is simply a demonstration of
1:46:36this technology
1:46:38i should say that as to
1:46:41remote testimony if if conditions
1:46:45improve we
1:46:46won't need it but if uh conditions
1:46:49remain as they
1:46:52are i've uh
1:47:00as far as the
1:47:04let's see as far as remote testimony
1:47:07i've essentially
1:47:08given my my blessing but i think i need
1:47:11to do more than that
1:47:12and i i think now i ought to incorporate
1:47:14by reference the chief justices general
1:47:16orders describing the
1:47:18circumstances of kova 19 and the
1:47:21pandemic
1:47:22and i think i will incorporate by
1:47:25reference
1:47:25what both sides have demonstrated quite
1:47:28elaborately in their briefs about the
1:47:30dangers to
1:47:32participants of
1:47:35of uh being present uh if
1:47:41a part particularly if a person is um
1:47:47is vulnerable on account of
1:47:50pre-existing conditions or age
1:47:53so that part is important
1:47:57the the second part is whether or not
1:47:59the technology itself
1:48:01appears suitable to the to the court the
1:48:04third part would be a specific
1:48:06showing as to each witness that these
1:48:08conditions would apply
1:48:10to that witness again
1:48:13i hope to avoid all of this but uh but
1:48:16in the
1:48:16event that we need to take any remote
1:48:19testimony
1:48:20i do want to see that this technology is
1:48:22satisfactory
1:48:24okay and i know and all defense
1:48:27objections are
1:48:27understood and preserved but i want to
1:48:30see thank you
1:48:30but i want to see the technology for
1:48:32myself john just so i understand it's my
1:48:34understanding
1:48:35that uh the defense is going to be
1:48:37talking to mr durst about both proposals
1:48:40one the adjournment and to the court
1:48:43trial
1:48:44am i correct yes mr lewis shake his head
1:48:46in the affirmative
1:48:47okay that's correct thank you according
1:48:50to chesnov
1:48:51and i assume you're honored a court
1:48:53trial we would proceed
1:48:55uh you know in the near future so
1:48:58this uh this all is subject to uh to our
1:49:02to discussion right we have more
1:49:04flexibility with the court trial as to
1:49:06witnesses as to scheduling as to
1:49:09appearance
1:49:10in person or remotely all these things
1:49:13can be agreed
1:49:14many of these protections are
1:49:16protections
1:49:18many of these are constraints of a jury
1:49:22trial are designed to
1:49:24for that that purpose and there's just
1:49:27much more flexibility so that is all
1:49:29subject to discussion
1:49:32agreement or disagreement you know but i
1:49:34i i hope that we can reach
1:49:36agreement easily on the format so with
1:49:39with that
1:49:39should we take a recess and then i'll uh
1:49:42preserve this technology it doesn't need
1:49:44to be on the record
1:49:45robin
1:49:49all right uh do you uh is there anything
1:49:52else from
1:49:53council on the phone no thank you very
1:49:56much your honor
1:49:57to stay safe thank you as well
1:50:01um your honor the one issue was and i
1:50:04guess we'll deal with it
1:50:05uh when we adjourn i'm sorry when we
1:50:08come back in two weeks
1:50:09if the court grants an adjournment we
1:50:11are going to be asking that
1:50:14council um put on the record
1:50:17in an affidavit that they will pursuant
1:50:19to what they've said in their
1:50:21decorations they will not be appearing
1:50:23in court that would not apply to mr
1:50:25lewis who was not
1:50:26uh was not filed uh it's my
1:50:28understanding is not saying that he
1:50:30uh cannot be there but we would be
1:50:32requesting that we want to make sure
1:50:33that the defense is aware
1:50:34okay we can talk about that when we come
1:50:36back thank you it's uh
1:50:38it's uh obviously i i i take it them at
1:50:40their their
1:50:41word but uh but we'll we'll discuss it
1:50:44more
1:50:46trust or verify your honor would be the
1:50:48people's position
1:50:50very good okay i'm going to disconnect
1:50:53now
1:50:54all right goodbye okay all right i'll
1:50:56reset so that you may set up the
1:50:58[Music]
1:51:04technology
1:51:32no no is
1:52:41you

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