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Robert Durst Hearing over Defense’s Demand for Mistrial Part 1 — Transcript

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0:00I call in the case of people versus
0:03Robert Durst mr. Durst is not present
0:10before it has allowed him to appear
0:12through his attorneys pursuant to 977 be
0:17at the pink of the executed a written
0:20waiver I'm allowing counsel to appear
0:24telephonically and may have their
0:27appearances please thank you and now mr.
0:38Lewin John Newland for the people Your
0:40Honor I know that mr. Bailey is on the
0:43call with the defense we've also got
0:47Jeanne audit Ethan Millie is Tim
0:49Henderson and then we have two
0:51investigating officers detective Lee the
0:53kamacho detective George shamlian okay
1:00I'll shout louder is that better dick
1:04okay all right we're here for several
1:11motions the emotions were scheduled for
1:16an earlier date but were continued until
1:18today's date due to the presiding judges
1:23Cove in nineteen emergency order the
1:27courthouse was closed until today's date
1:31actually until yesterday and today was
1:33the first day all counsel were available
1:37so of the first order of business is the
1:41defense motion for a mistrial which both
1:44sides a brief quite elaborate Lee do you
1:49have anything to add to your written
1:52argument mr. de Karen
1:56they carry mr. gentle please your honor
2:02thank you yes we do and some may sound
2:07repetitive your honor but we need to
2:10make a very completed record on this in
2:12light of the unprecedented nature of the
2:17issues but the court would allow me to
2:19proceed you may have seen as you chose
2:21huh
2:22thank you it pleases the court it's
2:26respectfully submitted that the primary
2:28reason the people opposed the request
2:30for mistrial is the tough it would take
2:33to take a new jury
2:34we're reminded by horrible court of the
2:37language from Stanley V Illinois t45 us
2:406:45 that water colleague of mine
2:45reminded me of after a brief was
2:47completed it's in the United States
2:49Supreme Court case and it says the
2:51Constitution recognizes higher values
2:54than speed and efficiency indeed one
2:57might fairly say of the Bill of Rights
2:59in general and the Due Process Clause in
3:01particular but they were designed to
3:04protect the fragile values of a
3:06vulnerable citizenry from the
3:08overbearing concern proficiency and
3:10efficacy and as stated by the
3:13or new Supreme Court in Williams V
3:15Superior Court quite simply the per
3:18student judicial economy and efficiency
3:20may never be used as the defendant his
3:23right to a fair trial which of course is
3:26the quality and I am with the standard
3:30for determining whether a mistrial is
3:33appropriate your honor the California
3:36Court has never approved a mid-trial
3:38delay exceeding 37 days not requiring
3:42this case to start over if we were to
3:45begin July 27 2020 that would be 135
3:50days for March 12 the people concede
3:54that there is no applicable judicial
3:56precedent for resuming a trial with this
3:59dangerous
3:59after a delay of this magnitude should
4:04we reconvene the state further concedes
4:06that after this urging first wave which
4:09I was known according to the records of
4:12today Los Angeles smash their previous
4:17hydrophobic infections by 20% so
4:20assuming we're in the first way than its
4:22urging a second wave would hit what we
4:26are resume causing another adjourn the
4:28German well the people go to great
4:31lengths to draw distinctions between the
4:33president acts and several cases we
4:36cited they fail to accept the fact that
4:38the case we cited are logically reason
4:42on the new risks inherent in
4:45[Applause]
5:06[Music]
5:20[Music]
5:27[Music]
5:33the nightstalker
5:38Robert Durst that's my stereo stop I'm
5:42gonna interrupt you mr. chestnut the
5:44jurists have now received three
5:46admonitions after the final admonition
5:49therein we appreciate your telling us
5:57but if still if still as the cases
6:01staying as I will talk about that in a
6:03few moments the courts recognize as much
6:06if you would like to believe that
6:08they're going to follow the admonition
6:10when they're home for this period of
6:12time the courts are Falstaff that you
6:14don't have to show actual prejudice with
6:16a cream
6:18the presumption that they have been
6:20exposed this date makes much of the fact
6:23that several more cases describe
6:25requests for continuous rather than
6:27motions for mistrial but that is a
6:29distinction without merit your honor but
6:31people fail to appreciate that those
6:33cases are predicated upon our highest
6:36courts unequivocal belief that a
6:38two-month hiatus less than half of our
6:41situation and does create an
6:44impermissible risk of exposure to
6:46outside influences and to the real
6:49concern regardless of good intentions of
6:51the juror or the court that memory fades
6:55as to the evidence her equally
6:57unconvincing and undeniable in spite of
7:00the state's fortuitous government that
7:02it is laughable if the people suggestion
7:05that the lack of justification in the
7:07Santa Maria case where an adjournment is
7:09comparable to the incident case we agree
7:12that code with 19 provides a far more
7:15compelling reason to mr. haire case and
7:18to start all over at Santa Maria how so
7:21under the separation the greater risk of
7:24outside influences that case tell that
7:28in 11 a contingent continuance which was
7:31granted far exceeded the limit of
7:33experience and reason and most
7:35importantly the due process right of the
7:38defendant precedented the way
7:42[Music]
7:43that prejudice for results and mr.
7:46Dennis will be denied due process the
7:49people can't distinguish the authorities
7:51we cited other than to say some devil
7:53and continuances as opposed to mr. Al's
7:55what is the movie they have wholly
7:58failed despite a single case saying in
8:02the land 135 days should not be a
8:05mistrial
8:05not one reported decision in the annals
8:09of recorded American jurisprudence the
8:12defendant is not asking for a do-over
8:14Your Honor just a very fresh start
8:17since the people argued that one hasn't
8:19heard enough to know it's just a snippet
8:21of the child the only time issue will be
8:25in selecting the jury and if there's a
8:27small price to pay your honor to ensure
8:30that mr. Durst receives a fair trial mr.
8:33Pendley of the NACDL has provided the
8:37court for the declaration relating to
8:39the reality of time constraints or the
8:42use of time in the lne county jails
8:43which I believe would be helpful to the
8:46court and he is certainly a person of
8:48merit and note we're also concerned your
8:51honor when they have all of all the
8:53jurors your staff the DNA's and the
8:57defense team the spectators who made it
9:00into the courtroom if there's enough
9:02room with respect to jurors the quest
9:04for that matter with respect to jurors
9:07we don't know which jurors have been
9:09exposed to kovin which one of their
9:11friends or relatives have been exposed
9:13which jurors have lost their jobs which
9:16jurors need not to work even more which
9:19jurors have childcare issues compounded
9:22by focus
9:24the questionnaire and our papers based
9:27on our country County questionnaire
9:30which led to a mistrial we have provided
9:32the court of this questionnaire when we
9:34walk through in circulation to the jury
9:36we are very concerned about the
9:38attitudes jurors might have against mr.
9:41Durst when they would perceive as
9:43compelling their presence in the face of
9:46colvett which is of course exacerbated
9:49by the events prejudice which already
9:51exists in our case because all the
9:53information the jurors have about
9:55Galveston for example and dismemberment
9:57and is it that the early witnesses
10:00talked about mr. Durst's domestic
10:03violence jurors are not only concerned
10:06with the hiding from coalbed your honor
10:08totally causes immense pain and I
10:12recently heard one person described it
10:15isn't they haven't else been sitting on
10:17their chest when I just talking about
10:20dying we're talking about people getting
10:22sick in addition your honor so they keep
10:25telling us they're wrong with the old
10:26people well the truth of the matter is
10:28if you told the young parents of a young
10:31person in that abyss then they're the
10:33exception that young person still died
10:36and I don't think anybody's really
10:38accepting the gravity and the
10:40consequences of being placed in an
10:42environment that is still unsafe as
10:46attested to by our doctor who is from
10:50UCLA and
10:52his entire career working with respect
10:54to the infectious disease in addition
10:59Coleman causes like spotting medical
11:01issues if you recover so the are hearing
11:05that it is may not kill you doesn't take
11:08away from the fact that we are dealing
11:10with a circumstance that causes
11:12everybody's connected with this case to
11:15be potentially corners their families
11:18our wives our children harms it's not it
11:22is that's where we're at your honor
11:23through no fault of anybody except I do
11:27play some blame on our government but
11:30that's for a later part of my argument
11:32assuming our jurors would naturally have
11:35common concerns and most respectfully
11:37our own this infectious disease expert
11:40dr. Bonnie believes that as women we can
11:43ship your honor as the courts efforts in
11:45Englewood reflect is not safe
11:48what social distances our viewers or
11:50other participants doing when they're
11:52not important are people wearing masks
11:54when they're not in court there's been
11:56no which was your governor announces
11:59that people do there is only independent
12:02medical certification but on a lengthy
12:04child contingent you safely as the NACDL
12:07strongly recommended in their report
12:10will we be able to fool you maintain
12:13social distance
12:14in court will there be social distancing
12:19of the hopefully in the cafeteria and
12:21the elevators our present jury has not
12:24even been tried qualified again your
12:26honor for four or five more months
12:29torturers and school-aged children one
12:31child care engines will they need to
12:33make in light of the Coppa three jurors
12:36are health care professionals are
12:37working at VA hospitals one has been
12:41their exposure experience since the
12:42outbreak started a jurors are over 65
12:46seven more over fifty we've provided the
12:49court with other courts that have
12:50declared miss Charles one was
12:52particularly telling income a lot of
12:55District Court Judge Mark Warner noted
12:57that perspective jurors broke down in
12:59Christ because of their fear of mobile
13:01in Fresno the DNA from self means for
13:04the mistrial now Your Honor I want to
13:08talk about another very important
13:10rationale for granting a mistrial and
13:13setting this case when it states the
13:16right to counsel the right to counsel
13:18guaranteed by the sixth amendment is
13:21directly impacted by proceedings when
13:24three mr. Durst lawyers have all been
13:26advised by their personal physicians not
13:29to resume the trial until mentally
13:31medically appropriate Your Honor please
13:34let me emphasize mr. de Guerra mr. Rey
13:37and I have all dedicated our entire
13:40careers to helping citizens accused of
13:43crime we take it as seriously as any
13:46lawyers
13:46no we have never abandon a client we
13:50want to try this case we want to finish
13:53this case mr. de generes relationship
13:56with mr. duros goes back decades
13:58after all mr. Guerin and mr. Lewis we're
14:02going to acquitted previously if that
14:04doesn't engender confidence in the water
14:06nothing that should nothing else can
14:09it's mr. to Darren who also told our
14:12jury that mr. Dermer testified and this
14:15mr. to guaran who took on the
14:17responsibility as our lead counsel to
14:19prepare mr. Merced's do so at that stuff
14:23in that function is an impossibility
14:25mr. thirst this is the guarantee that we
14:27used it usually is happening in human
14:30surge right now is not sharpening his
14:33doctors nobody can't design - it's the
14:36awkward at the Twin Towers have now been
14:39dramatically changed it's just almost
14:43it's impossible for real sixth amendment
14:46effective assistance of counsel b2b
14:49rendering this is a guarantee as a
14:51result can keep his promise to the jury
14:53his book mr. death on now Your Honor did
14:57suggest that mr. Thurston will remain in
15:00federal custody until March 20 21 and
15:03will not receive that on this special
15:05circumstances case will not be available
15:07for trial what it is safe is
15:10unreasonable those points
15:11we'll be there I have represented mr.
15:14thirst for five years
15:15including in New Orleans and I have a
15:17very close attorney-client relationship
15:19with him I have a trustworthy hands
15:22trust in me the same applies mr. Ramos
15:25soon as a lawyer since either Concordia
15:27arrived in California Jeff Lewis has a
15:30decades-long relationship with mr. Gerst
15:33but some of us had health issues which
15:35could be implicated by Kobe the court is
15:38indicated it would not jeopardize our
15:40respective hopes by requiring us to
15:43attend but with that kind gesture which
15:47we truly appreciate your honor to leave
15:49us three lawyers who want to finish the
15:52case would not be able to and mr. Durst
15:55who suffer the consequences
15:56mr. Lewis can I try this case by himself
15:59my associate mr. DeMarco was assisted me
16:03able in this case is a wonderful
16:05researcher and writer but his trial
16:07experiences started with it it's been
16:09for personal reasons as in front mr.
16:13Guerin she is not it has not
16:15participated in the child and does I
16:17intend to do some moving forward so who
16:20this is have been assigned in each of
16:22the four primary lawyers and mr.
16:24Bergeron has been assigned mr. Garris
16:26testimony I've been assigned dr. office
16:29in us beacons are Lopez the United
16:33States Supreme Court clearly stated that
16:36one element of the sixth amendment is
16:38the right to counsel
16:39Joyce mr. Carson's chosen lawyers that
16:42were with him for many many years he is
16:45therefore trust it's originally entitled
16:47to them this honorable Court has
16:50commented on our abilities then they all
16:52appreciated you believe in our skills
16:54and therefore reiterate the bottners
16:57should not lose its counsel of choice
16:59because of a plant disease the corner
17:02also has mr. Lewman as a prosecutor
17:06whose skill and parents deserve mr.
17:09deserve commissioners deserves lawyers
17:11he believes they're about to the
17:13challenge of such a worthy adversary
17:15that's mr. Lueck and his team your honor
17:20patience will lead to a secret
17:22resumption of this prosecution and of
17:26this defense where there is an erroneous
17:28deprivation of the right to counsel of
17:31choice
17:31the result is reversal with no
17:34additional showing of prejudice in other
17:36words why not grant a mistrial and a
17:39child that will be reversed in visted
17:42there's three wonders are present
17:44certainly your honor that's not judicial
17:47economy this is the penalty thoughtful
17:50and thorough declaration come to an
17:52advocate whose sole mission as a
17:54wonderous to see justice done for
17:56defendants worldwide his declaration
17:58includes the detailed report for reality
18:01studio the most highly respected
18:03organization guaranteed people accuse
18:05the crime of their constitutional
18:07protections it is clear from wounds to
18:10exemplary sources that a trial will have
18:12the mr. Gerst counsel of choice would be
18:15in front
18:16constitutional rights guaranteed by the
18:19sixth amendment and the NAC now and mrs.
18:22Beverly have taken an interest in this
18:24case because it is of national interest
18:27because is the thirst case assuming
18:30arguendo that the court did start again
18:32before is medically safe mr. Durst's who
18:35is hard of hearing will be six feet away
18:37and arbitrary distance personal and
18:40staking their counsel and will not be
18:43able to effectively communicate with his
18:45lawyers mr. Gerst centers from he
18:49suffered from esophageal cancer cervical
18:52spine stenosis hydrocephalus going to
18:56urinary tract infections and blockage
18:58chronic lower gastrointestinal
19:00dysfunction he presently now has a
19:03growth in his mouth and he suffers from
19:05chronic fatigue actually the reason that
19:09mr. Durst has had a cold it is going to
19:16do his isolation it would be ironic that
19:19moving it from the jail where they
19:21happened in complete isolation to a
19:23courthouse where he could contracted who
19:25would be ironic that he spent all this
19:27time avoiding disease only to only to be
19:33impacted by it because of a rush back
19:36back to trial
19:37max where in your honor will distort the
19:40normal trial process according to
19:42governor Houston who is directive
19:44witnesses will not have to wear masks
19:47when this is whose facial expressions
19:49will not be seen by the Trier of fact
19:51normal they be seen by visitors and as
19:54Justice Scalia wrote historically one of
19:59the most
19:59first reports of confrontation is the
20:02life of the person being accused to face
20:05his accuser the dangers and elevators
20:08restaurants and cafeterias are real and
20:12the out-of-state counsel are going to be
20:14happy to live in hotels which themselves
20:16are under severe restrictions I just
20:20read in The New York Times yesterday or
20:22on our chief judge I believe they've
20:24been of the New York Southern District
20:26just stated that jury Charles cannot
20:29start for once they are walking down the
20:31road and quote you can't put max on
20:34witnesses in a criminal trial because
20:36the defendant has a right to see them
20:38Your Honor in spite of the historical
20:41worries from experts that at copán 19
20:45and Emily could occur or something like
20:47focus our leaders are both the state the
20:50federal level or grossly unprepared for
20:52the ensuing sad reality of sickness and
20:54death we have witnessed there is no
20:57vaccine
20:58it is highly communicable and
21:00unfortunately is silently transmitted
21:03even from people not exhibiting symptoms
21:06there is a presence fight in phase one
21:09due in part to her Leary openings and to
21:13the protests in our streets regardless
21:15of the necessary message of the
21:17protesters both the decision to
21:21prematurely reopen and the protest we're
21:24one intention just as finding a large
21:27courtroom with safety steps is
21:29well-intentioned but no American
21:32functions can stop the disease with no
21:34cure the defendant is highly vulnerable
21:37jurors will fit the category of over
21:406500 level
21:44of those over 65 or under 65 of jurors
21:48who may sit in the exponent tax on them
21:51three lawyers from though one can
21:52question want to be zealous advocates
21:55wishing to represent mr. Gerst Your
21:59Honor we try the case with a jury not
22:02affected in any way with the more
22:04dismissive dirty shows that are not
22:07affected by this horrible disease and
22:09the just verdict for appeal extra months
22:13out of our lives to pick a new jury will
22:16ensure many many more life months of
22:19life for all of us do you honor the
22:22staff the law enforcement people
22:25involved mr. Lewin and his team mr.
22:29Durst and his team all the people
22:32affected by this trial we asking what's
22:35respectable believe your honor to grant
22:38a mistrial because that is deep-rooted
22:41and appropriate constitutional decision
22:44debate thank you for listening to me
22:47thank you mr. chestnut mr. lewin you may
22:51address the court your honor there are
22:53two ways that I can go about this mr.
22:56chestnut raised many issues that are a
23:00repeat of what he has in his motions he
23:02also introduced some new ones today
23:04my first question the court your honor
23:06if the court is willing and again this
23:08is for the record counsels purposes
23:12rather really than my help if the court
23:14of his point is inclined to not grant
23:18the motion to deny it that I'm going to
23:20be much more brief in my statements and
23:23only reason I'm going to respond at all
23:25because although I do not believe this
23:27is writable it is it is certainly in the
23:31court Onaga said you know I take the
23:32court agrees with me on that premise is
23:34that correct your honor
23:35yes mr. woman and but in the event
23:38because things are so different I want
23:41to make sure that I do respond briefly
23:43to some of the things he has said so I
23:44would ask the court your honor again I'm
23:46merely asking to save the courts of time
23:49if the court is inclined is not in
23:51motion
23:51to be much more brief because we've laid
23:54it all out in our motion no I thought
23:56your response was was comprehensive but
24:00if you choose to actually make it this
24:03time okay um then Your Honor I
24:06understand uh I'm gonna have to dead
24:09address these only take as long as mr.
24:11chose not but I need to make sure that I
24:14do my job and I represent the people as
24:17zealously as mr. chess table is
24:19representing mr. dirt so first of all a
24:21couple of issues number one the standard
24:24is not as mr. Chas knife has described
24:28two now you wrote me properly but they
24:30have the burden to prove that the
24:34defendant will suffer irreparable damage
24:37and as the court is aware and that comes
24:40from the case they cited Cal Supreme
24:43Court not online it says as such and
24:46showing typically require some illogical
24:49tangible showing a prejudice to the
24:52party seeking the mistrial
24:53that's number one number two and this is
24:56concerning not enough mr. Chad's not
24:58just slipped up but when you tell a
25:00court as he said that quote prejudice
25:06can be presumed but that is an absolute
25:10misstatement of the law and the idea
25:15that counsel would make that argument
25:16when there's no authority to support it
25:19and then throw it in an oral argument
25:20your honor it's either gross negligence
25:24or dismiss conduct I didn't take it as a
25:27legal argument I took it
25:28it's a description of the nature of
25:33things a tendency for people to to be
25:37curious about what's on the media but I
25:40think that we are really governed by two
25:43California Supreme Court's repeated
25:45ruling that that the jurors are presumed
25:49to follow the instructions that I have
25:51given them and that's why the courts
25:52gone to great lengths of recognizing
25:54this problem the court has has each
26:01month reminded the jurors are there not
26:04to follow media accounts nor of it does
26:07it discuss the case with a anyway the
26:09next issue he dealt and brought this up
26:12is counsel basically says to the court
26:14listen if you don't grant this you're
26:16going to be reversed the standard is an
26:19abuse of discretion and let's look at
26:22this for a moment every argument that
26:25counsel makes would apply to every other
26:30trial that is out there in the state and
26:33nation so if you look at the arguments
26:35that they're making if that were true
26:37then the Chief Justice and the presiding
26:40justice of the county would have said to
26:42the court judge Windham you are to
26:46reverse so you are to grant a mistrial
26:48in this case we are to start over we
26:51will not be continuing with any products
26:53that is not what the order was so by
26:56definition counsels arguments are simply
26:59unsupported legally because there has
27:02been no such dictated by the towel
27:05Supreme Court and they certainly were in
27:07a position they made very clear what
27:09they said was let's try to look at ways
27:12that we can continue on with these
27:15trials and what modifications can be
27:17made so that's that's the second point
27:19now we get to kind of the nuts and bolts
27:24of what counsel is really arguing and
27:27when you look at what their position is
27:30in the case your honor they basically
27:31are saying that in essence it's
27:34impossible for him to us
27:36and they cite to the fact that quote it
27:39is unrealistic to expect the jury to
27:41remember the evidence it received prior
27:43to the adjournment and avoid outside
27:46influences during the delay of this
27:47magnitude let's examine those one at a
27:50time because they're disingenuous and
27:53their fashion Utley inaccurate and
27:54they're just simply not true let's go
27:56with the first one we've had a total of
27:59ten witnesses testify over two days
28:02there are twenty different ways that the
28:05court could resolve a situation which
28:06the court is required to do short
28:08mistrial
28:09among them think about the testimony
28:11read back they could have the witnesses
28:13recalled we actually had audio tape of
28:16each of the witnesses who testified the
28:18court could inquire the jury if there's
28:20an issue with them remembering the
28:21testimony but here's what's really an
28:24interesting concept to kind of analyze
28:27the things that these witnesses
28:29testified to number one your honor
28:32they're not in dispute these witnesses
28:34testified to catheter suffering not in
28:37dispute they testify to the domestic
28:39violence not in dispute when I say not
28:41in dispute not only not in legitimate
28:44dispute the defendant has admitted
28:46repeatedly on tape and even during jury
28:49selection that in fact this is conduct
28:52that he engaged in number three and the
28:55only other witnesses who testified were
28:57the witnesses that went to the finding
29:02of Susan Berman's body and as the court
29:05is aware none of that is in dispute
29:06there was limited cross-examination then
29:09you have the fourth point which is
29:11really again it takes some nerve the
29:14defense says hey listen we're concerned
29:16the jury can't remember this evidence
29:19that one is damaging to my our client
29:21and two which is not in dispute so I
29:25think your honor and this is why it
29:27becomes very important previously in our
29:32motion we attached your honor as the
29:33court is aware a summary of a
29:37conversation that the defendant had with
29:41his wife back on
29:44March 24th of 2020 and your honor so
29:49again Your Honor the court I am NOT
29:52going to the court had asked and we'd
29:54agreed so I'm not going to at this point
29:57your honor
29:58repeat the specific comment that the
30:00court did not want other but what I will
30:04address is the fact that mr. jurors in
30:06that conversation made it clear that he
30:09wants a do-over this is a tactical and
30:12strategic point I know the court had
30:13said it on our conversation with the
30:16defense which was not transcribed by the
30:18court reporter but you know what
30:20to some degree the court is looking at
30:22just a legal issue that doesn't matter
30:24what mr. barish wants at cetera and your
30:27honor certainly the court is free to
30:29look at that evidence and say I don't
30:31give it much value we have a different
30:34perspective and this is our perspective
30:36the defense in this case your honor has
30:38asked for missed trials every day of the
30:41trial and most days they've asked for
30:43missed trials three four or five times
30:44they've asked for missed trials as the
30:47court is aware on a variety of issues at
30:49least five that I can think of none of
30:53which had anything to do with Kovac so I
30:55think your honor we have to be realistic
30:57and we have to go back and say okay is
31:00the Kogan situation a legitimate issue
31:03absolutely it is completely legitimate
31:05but for the defense to get up and say to
31:08the court your honor we want it we want
31:10to pursue on with this case we've always
31:12wanted to receive with this case no they
31:15don't
31:15then they missed try to motion after
31:17mistrial motion so that's just not
31:20accurate it's not correct and the court
31:21can certainly your honor and this is
31:23important to us mr. dersh is a very
31:26wealthy man with a lot of lawyers that's
31:28his right it's his money he can do what
31:30he wants with it but he doesn't get his
31:33own sense of justice he doesn't get his
31:36own process of justice which is
31:39different everything from everyone else
31:40he doesn't get a do-over because he's
31:42not happy with whatever issues he's not
31:44happy about which the court is well
31:46aware of what those are so I think when
31:49we're looking at the arguments the
31:51defense makes we cannot
31:53the idea that in the end this is
31:56gamesmanship on part of mr. Gerst and in
31:59the end of our honor although he has
32:01attorneys mr. dersh is responsible
32:03ultimately it's his case
32:06these are his decisions and mr. dersh
32:09has made clear the decision he wants is
32:12I want to do over so now we start
32:14looking at the other points that the
32:16defense makes in their arguments um they
32:19discuss the idea that the jurors are
32:22going to be susceptible to having
32:25committed misconduct by a quote outside
32:27information you know what's interesting
32:29your honor they don't cite to one piece
32:33of outside information that has been in
32:36the media that has not already been
32:37ruled admissible in this trial so it's
32:40very interesting point even if you
32:43assume that the jury disregarded the
32:45courts instructions which we have no
32:47reasonably perfect the court has already
32:50let in all of the evidence that we have
32:54sought it's all in so the defense the
32:57reason they don't come up your honor and
32:58I'll just give an example let's assume
33:00we had a case where there was a
33:03confession that had been kept out of the
33:05trial and over on a german of the case
33:09that confession was discussed in the
33:12media and the jurors heard about it and
33:15they were not able to disregard it we
33:18don't have that situation i think the
33:20only rest would be the the tone of
33:22commentary about the evidence because
33:24her you're right about about there not
33:27being any evidence all relevant evidence
33:30is admissible in it i have admitted it
33:32so that's not really the point you were
33:35right doing examples have been given
33:37that defense has volunteered to file or
33:40file such a thing if
33:41but it does again again it's not been
33:45identified for the purpose of this
33:47promotion um we also your honor in that
33:51same contest the conduct of mr. Durst
33:58which the defense even fought dear on
34:01themselves which they chose to explain
34:03to the jury in the questionnaire a CNN a
34:07CNN ad for some TV show that equates the
34:14defendant I guess by implication with
34:17these other notorious individuals I
34:19don't know how that's any more damning
34:23than the defendants own admitted and
34:26relevant conduct in this case so I'm
34:28going to leave that and I'm going to go
34:30to the next issue the defense is now
34:35saying and we're concerned as the courts
34:37aware prior to the defense opening we
34:41went in on the record and I said to the
34:44court in to the defense your honor if
34:47they tell a story in opening that
34:50involves mr. Durst having to testify and
34:52they made the decision later for
34:54whatever reason that he is not going to
34:57testify then I'm going to end up in
35:01essence jamming that story right back at
35:03them and explain to the jury you can't
35:05consider it the court completely and
35:08within the courts authority and and you
35:11know correctly said listen I can't stop
35:13the defense from then every right to
35:15present their theory but you mentioned
35:18them at that time defense if you choose
35:21to do that mr. Lewin's right so you
35:24better be a hundred percent sure he's
35:26going to testify now what's also very
35:29interesting is that the defense file
35:32there's a declaration by mr. to
35:34guarantees that goes to the fact that he
35:36was mr. Durst chosen lawyer etc and
35:39what's very interesting about that your
35:41honor is they omit on a crime
35:44important detail in that declaration
35:46which I know the court is aware of and
35:49that information is as follows as the
35:52court remembers the people have wanted
35:55to start this case for more than a year
35:58between one in two years before we
36:00started the trial it was defense
36:02continuances and the people were I think
36:05the court would agree as patient and
36:07accommodating to me could possibly be as
36:09we were about to start the trial on
36:11October 28 2009 teen mr. de Guerin
36:15brought up an issue of a health issue
36:17that he had and asked to continue the
36:19case for six months
36:20the court said he wasn't going to do
36:22that and the court said in fact that
36:24there was no guarantee that he was the
36:25Court did that that the problem would
36:27wouldn't occur in six months the court
36:30instructed defense counsel in all of us
36:32this is off the record in chambers I
36:34made the comment as follows your honor
36:37at this time the court delays us at all
36:40as long as there is one lawyer available
36:43for each side we're going through with
36:45this correct the court said that's
36:47correct and defense counsel agreed to it
36:50so now what we have is mr. Guerin is now
36:53saying you know what I can't continue
36:55for health reasons but your honor the
36:58defense already waived in mr. Durst's
37:00directly waived that issue the court
37:02said very clearly mr. Garrett if you
37:04choose to start this trial and you're
37:06unable to continue with it then that's a
37:09risk that you and mr. Gerst and the
37:11defense are taking so now what mr.
37:13dgeren has to be nearly done is he said
37:15listen I can't proceed now for a
37:19different health reason but that doesn't
37:21matter
37:21then we're already told it was already
37:23explained to them that in the end one
37:26lawyer each for the years and years that
37:30justice has been waiting to happen on
37:32this case we're going through it when
37:34counsel says one lawyer couldn't handle
37:36this case they've had five years of
37:42discovery on this case five years
37:46they've been here since in November
37:50it'll be four years since mr. Dores
37:54the issues are what the issues are there
37:58is at this point in time your honor it
38:01is not going to be acceptable for the
38:03defense to basically get notes from
38:05their doctors saying listen they can't
38:08come you know they can't come to school
38:10today
38:11it's here's a note you know signed my
38:14doctor that doesn't work it especially
38:18doesn't work in the context of all the
38:21efforts they have made to get the
38:24do-over they so desire
38:26we are sympathetic your honor to the
38:28issues involving Kotick and I'll tell
38:30you what's another clue your honor as to
38:32where the defense is coming from if the
38:34court remembers back before we adjourn I
38:37brought up the issue to the court of
38:40using two-way communication I thought
38:43emotion at that point in time I brought
38:45up using zoom not just for the
38:50utilization of witnesses but I actually
38:52brought it up back in March in case we
38:56ended up restarting the trial and we had
38:58an adjournment the people have made
39:01numerous efforts to locate and figure
39:05out different systems that can be
39:07utilized where communication is
39:09available between the attorneys between
39:11the Klein the attorney etcetera mr.
39:14milli has sent a detailed email to the
39:16court and the counsel with all these
39:19suggestions the defense responded with
39:22not only have they done nothing there
39:25has been no evidence that they've made
39:26one call made any effort so they say we
39:30can't prepare our client Bob Dewar's for
39:33trial really you made the decision he
39:37was going to testify well before trial
39:40as soon as they stipulated on December
39:4322nd of 2019 that Bob Durst in fact
39:49wrote the cadaver now Bob Dewar's was
39:53testifying didn't have a choice they
39:55have to explain what the situation was
39:57how many times they sit down and prep
40:00him do they meet with him where the
40:02letters that they have sent to LA County
40:04Jail saying you know what can you
40:06please help us how can we meet with our
40:08client can we do it by video can you
40:10secure a room nothing and the reason is
40:14very clear this is not a situation of
40:18the defendants estate percent of your
40:20honor we so much want to go forward we
40:22would do anything to finish this trial
40:24we're as disappointed as anybody that's
40:27not accurate if there's a word for it I
40:31can't stay in court but but it's very
40:33clear exactly your honor
40:35that's not sincere they want a mistrial
40:38I understand why they wanted mr. I'm not
40:40faulting them for it but my job as an
40:42advocate is to basically look at their
40:45arguments and see number one not only
40:47are they reasonable but are they honest
40:49and in the end Your Honor this desire
40:52for mistrial it pre-existed the pandemic
40:56it's continuing pandemic and when the
40:59pandemic is over guaranteed we'll be
41:01getting more mistrial motions because
41:03they want to start this case from
41:06scratch
41:06so let me just take a look Your Honor I
41:10think that I have covered but I want to
41:15make sure it's one moment please
41:22[Applause]
41:30the last couple of things um defense
41:32counsel talks about the issues of mr.
41:35Durst and his health etc how do you have
41:39they inquired on another mr. d'oeuvres
41:41can be transported in his own van here
41:43meaning can they just take him by
41:45himself have even made those efforts I
41:47don't believe they have um they are now
41:51talking about well what about the issues
41:53of individuals touching things well
41:56mister just not wants to cite his
41:59current kovaydin knowledge it's been
42:00very clear that all the experts are now
42:02saying that the way you get Cogan is you
42:04get it by having extended contact with
42:07somebody for an extended period of time
42:10without social distancing without and
42:12that's the whole idea of touching
42:14something and then getting Kovac has
42:17been disproved by the science we also
42:22have the idea and again they have
42:26proposed this that in essence there's no
42:30way for them to get here because they
42:33can't fly this was an emotions ah they
42:35have plenty of time they're being paid a
42:38lot of money on this case they can find
42:40a way which has an office in Las Vegas
42:42he can get here mr. Louison
42:44is in Texas he can get here in the end
42:48your honor this comes down to really one
42:49point I know the courts aware of it they
42:52have the burden of proving in this case
42:56that mr. Durst has been irreparably
42:58damaged they haven't even come close to
43:02proving that in fact the evidence that
43:05we put on house established it the other
43:07way which is not even our burden so in
43:13the end your honor if this case is not
43:17done now and the defense this is yet
43:19another argument that I don't think they
43:23can actually believe we're gonna lose
43:25quote a few months of picking a jury are
43:29you kidding there is not one juror your
43:33honor if the court remembers who wanted
43:34to be on this case
43:35well when the defense wants to give our
43:37current jurors you they want to give
43:39them this question here we
43:41can only be summarized as let me suggest
43:45to you all the checkboxes you can make
43:47so that you get out of jury service
43:50if we waited to do trials like this to
43:53have jurors who wanted to be here your
43:54honor
43:55we wouldn't try any cases so in the end
43:58if we have to redo this and I know the
44:00court had said to counsel and to the
44:04people on one of our phone conferences
44:07we made the point which is true in the
44:10court agreed with if this trial is not
44:13done now when are we ever going to be in
44:17a position where we're going to be able
44:19to get 400 plus jurors in the room to
44:25fill out a question here how are you
44:26going to - why dear these individuals
44:29how are we going to assemble them right
44:32now we have 23 jurors and we can
44:34distance the court has worked very hard
44:36so unlike the defense who basically is
44:39set a well I guess what can we do better
44:43miss try this thing the court has worked
44:45hard and the people who worked hard to
44:48try to find and suggest alternatives the
44:50court went and found a courtroom I know
44:53that wasn't easy I know the court was
44:54dealing with all kinds of
44:56responsibilities here and you went out
44:57and you found us at corporate and you
45:00found a way to make this case work so in
45:03the end your honor they simply have not
45:06met their burden and our concern is that
45:08mr. Durst not be treated differently
45:12than any other defendant in Los Angeles
45:15County he's not special what that we
45:19would submit thank you ma'am mr. Chesney
45:22you may reply to the new arguments that
45:26you've heard from mr.
45:32arguing with me they couldn't answer
45:34this question so they called names I
45:37wanna tell you this your honor he fails
45:42to reply to the arguments of all the
45:46courts that had said that even half as
45:50much time is the basis for a mistrial
45:54all of those cases that we cited talked
45:58about the fact that judges across the
46:02board
46:03federal judges state judges California
46:06judges all recognized that if so much
46:09time passes during an adjournment for
46:12whatever the cause of the adjournment
46:14there is prejudice to the defendant and
46:17that's one of those cases did not start
46:21over
46:22either through reversals from his trials
46:25mr. Lewin is unable to cite a single
46:28Authority that says that you can have a
46:31hundred and thirty five days delay
46:34through no fault of the defendants and a
46:38lot of that trial that could resume
46:40again with the same jurors not a single
46:43case has ever said that secondly this is
46:47not a fight between mr. wood and mr.
46:49Durst this is the people of California
46:52against mr. Demarest
46:55who has chosen lawyers we do not make
46:58miss Chong
46:59Your Honor for the heck of it as the
47:02court knows from your own experience as
47:04a defense lawyer mr. motions are they
47:07based on the need for defense counsel to
47:10preserve the record and to ask from his
47:13trials to start negates afresh without
47:17prejudice to the defendant in this case
47:19Your Honor we represent to you we want a
47:22mistrial because we believe as the cases
47:25of then you get not a German for this
47:28period of time and begin with the same
47:31jurors because of the two things that
47:33affected your their memory your honor
47:38outside influences regardless of whether
47:42there's empirical matter or not
47:44those cases that we cite do not describe
47:46empirical data they say it is a social
47:49reality that people away from their jury
47:53responsibilities are affected by outside
47:56influences finally your honor not
47:59finally in respect to this mistrial
48:01argument we make this mistrial argument
48:04because it is righteous the NACDL backed
48:09us the strike force because they made a
48:12conscious decision that it was righteous
48:15it has nothing to do with mr. Durst it
48:19mr. Thurston said he didn't want to miss
48:23trial david says not take the air the
48:26decoration
48:27for one because that's what the law
48:29mandates your honor his mandates in this
48:33trouble in this circumstance for mr.
48:36aluminum to cavalierly describe LuAnn
48:40uncommon when a hundred and twenty
48:43thousand Americans have died it's not
48:46flippant your honor his argument was
48:49flipping its disregard for scientific
48:53evidence for example containing their
48:57honor please where the professor and
49:00doctor explained the comparison between
49:03the courtroom and the example that you
49:06gave in Korea
49:07this is science this reminds me of the
49:11idiocy of people who put in place
49:15controls who are now saying it's okay
49:18now to look around these without next
49:21time that's the simple kind of argument
49:24that this being made which is causing
49:27the spike which is going to be more
49:29illness which is causing more death I
49:32did not tell you your honor in the big
49:37scheme of American jurisprudence taking
49:41an extra two months the victim of
49:43journey that has been impacted and
49:46through mr. lewin disease yes what does
49:49he think anybody in their right mind
49:51that was on the jury is gonna want to
49:53come to the courtroom he suggested we
49:57are leading them to this decision if for
50:00some reason your honor you did not grant
50:03this mistrial immediately based on want
50:07to put before you
50:09Your Honor you should inquire of these
50:12jurors as to the questions that were in
50:15that questionnaire which ultimately as
50:17we expressed your honor led to a
50:20mistrial in another case with another
50:22similarly situated a judge or an
50:26effective it just seems to me your honor
50:28that the most important thing is mr.
50:31Lewman did not cite any authority that
50:34says mr. Durst should be have to go to
50:38trial the jurors would not for a hundred
50:40thirty five days without his lawyers he
50:43doesn't address that and when we said
50:46even though he was in and upon something
50:49that was on the record that was sending
50:51chambers which is par for the course we
50:54agree your honor that mr. Kadabra
50:56couldn't be there mr. a mr. Lewis and I
50:59can do it what I'm talking about that
51:01scenario now mr. ray and I can't do it
51:04mr. Lewis threw his own reasons should
51:07not do it at this point in time I don't
51:09want to subject anybody so what I don't
51:11want your family smokes do it your
51:13courtroom Clerk
51:14I don't want mr. a family in expose to
51:17it so I'm saying to you your honor
51:20without any authority mr. Lewin just
51:23grabs things out of the air makes the
51:26same argument sees me over and over
51:29again about our motives for things our
51:32corners are pure your honor our motors
51:38so for this it leads to death your honor
52:27and I can't understand how a district
52:31attorney because of his own personal
52:34desire to see this case finished for
52:39whatever reason and I will say the
52:41following Your Honor he talks about
52:42delay the corners there are multiple
52:45occasions include on the way put it on
52:50so with that said your honor
52:53either grandpa mr. Avalos respect on
52:56your honor
52:56or at least proceed to inquire as to
53:00what the status of our jurors is even
53:03though I don't believe the case law
53:05requires you to make those findings
53:06thank you you're all right another Thank
53:10You mr. Chen it's not thank you I'm
53:12gonna address some of the arguments in
53:21this way I think the argument is very
53:23passionate on both sides we are in a
53:28very difficult time it's an emotion
53:31all time people are frustrated and not
53:37surprised that that may come out in
53:40argument but I need to focus on the
53:43issue for me let me speak first multiple
53:50larger issue the health and safety
53:52concerns are identified by the defense
53:54and acknowledged by the people they're
53:56legitimate those are real issues
54:00I agree completely sympathetic and I
54:07will not put anyone's health in jeopardy
54:12secondly I'd like to say that the right
54:17to counsel is as important to me as it
54:21is to the defense as the right to
54:25counsel will not be compromised
54:27neither of these concerns are the issue
54:30before me now I want to focus I love the
54:34law the standard for granting a mistrial
54:37is stated as both sides agreed by people
54:40versus Iowa 23 Cal for - 25 it's only
54:44when a party's chances of receiving a
54:48fair trial have been irreparably damaged
54:51but in this pro must be granted I want
54:54to focus on one very important fact
55:01on March 13th
55:05the defense move for adjournment of the
55:09trial until safety could be assured that
55:14was the time frame but the defense
55:17sought that's the standard they wanted
55:21me to use in determining how long this
55:24trial ought to be
55:26jerk the court granted the defense
55:29motion on March 16th and the court has
55:33deferred the trial twice it since then
55:37so that we could in fact assure safety
55:40to all of the participants that does
55:45remain the courts primary concern here
55:51for you safe for you
55:53is the motto of the Los Angeles Superior
55:55Court
55:56we are both justice will be done here
55:59and it will be done safely according to
56:07the motion the length of the delay is
56:10unprecedented this is not correct the
56:16defense on the first page of their brief
56:18cite People vs gray 2005 37 Cal forth
56:25168 it permitted an 11 month delay where
56:31the adjournment was on defense motion
56:34and the jury received regular
56:37admonitions in our case the trial was
56:41adjourned for good cause and on defense
56:44motion until safety could be assured the
56:48jurors were admonished again on Thursday
56:51that's the third time in three months
56:53but they have been admonished our case
56:57is governed by gray the distinction
57:02suggested by the defense is a
57:05distinction without a difference though
57:08the delay in gray was between the guilt
57:12and penalty phases of that trial
57:16Tabo trials are unitary proceedings the
57:20guilt phase is an integral part of the
57:23penalty decision the circumstances of
57:26the crime presented eleven months
57:29earlier
57:30/ the penalty phase decision and our
57:33Supreme Court affirmed denial within
57:37this trauma motion and the defense
57:42focuses of course on the impact on
57:45jurors first of all the idea of fading
57:48recollection we have as mr. Lewin has
57:51pointed out only two days of testimony
57:54it can be read back to them
57:57that's what Gray said at page 227 this
58:00is no different from any long trial the
58:04trial lasts four months it may be
58:06difficult to remember the first
58:07witnesses this is not a reason for a
58:11mistrial it is typical in trials also in
58:15gray this argument was waived because it
58:19was adjourned on the defense motion the
58:24defense took a writ they knew it would
58:27delay the penalty phase that's the
58:31that's a path paycheck that's great page
58:33227 interesting question is whether a
58:38mistrial is required where jerusem given
58:41a been given a one-sided presentation
58:45that was people versus Engelmann 1:16
58:48cow at third suck 14 and in Engelmann
58:57there was no justification for delay and
59:00the jury had heard the entirety of the
59:03people's case before the adjournment and
59:05that this is more like people versus
59:07Katzman 258 Calif second 7 7 7 where the
59:11delay came after jury selections before
59:14evidence so there was no prejudice it's
59:17this case is somewhere in the in between
59:18but much closer to Caston but Santa
59:23Maria which the people cite was in
59:25completely unjustified delay there was
59:27no reason at all for that of the court
59:29to adjourn and so
59:31it's a very little personal reason with
59:33the judge that wasn't justified here
59:36there's ample justification it's
59:41interesting in in gray quote the
59:44decision would turn largely on evidence
59:47that jury had not yet heard that's
59:50absolutely our case here though there
59:53may have been some evidence that could
59:55be read back and everything will turn on
59:57evidence the jury has 90 have her to
59:59this argument that the jury's only heard
1:00:01a one-sided presentation does not
1:00:03justify a mistrial gray distinguished
1:00:07United States versus Haines and there
1:00:09the jury heard all of the people's
1:00:12evidence before an unjustified
1:00:14adjournment so our situation is governed
1:00:18by gray there is no need for a mistrial
1:00:21let's talk about exposure to media
1:00:24accounts first of all it's speculative
1:00:26that this is so it's not been
1:00:28demonstrated jurors are presumed to
1:00:31follow their admonition that's gray page
1:00:34229 and our minutes fully reflect an
1:00:37admonition after adjournment and three
1:00:39additional admonitions for the course of
1:00:41three months let's talk about the likely
1:00:45hardship to jurors and the defense is
1:00:49described with what may be when it's
1:00:51possible for our jurors first of all
1:00:54this is speculative and they know that
1:00:57it's speculative I think that's why
1:00:59there is a request for a questionnaire I
1:01:02see why the question there apparently
1:01:05was used and led to a mistrial it's a
1:01:07theory not only a very suggestive
1:01:11questionnaire it's very intrusive I see
1:01:14no authority for forgiving a question
1:01:17there about nature
1:01:18if jurors have hardships when they
1:01:22return they will let us know and we will
1:01:24deal with them there are many
1:01:26possibilities short of
1:01:29mistrial let's talk to let's talk about
1:01:35the risks to trial participants in the
1:01:39brief the defense describes the need for
1:01:44conditional witnesses to somehow justify
1:01:46in this trial and that that just doesn't
1:01:49follow if the witnesses are unavailable
1:01:52their reported testimony is admissible
1:01:54if they're not unavailable is it's not
1:01:57it's a justification for a mistrial and
1:02:00it's the same thing with remote
1:02:01testimony either it satisfies Maryland
1:02:04versus Craig or 97 us 850 or it doesn't
1:02:08it's not a mistrial as far as the
1:02:12defense counsel being there they're the
1:02:17health and age precluding the travel at
1:02:21this time so that's why I've allowed the
1:02:25appearance today
1:02:27by telephone and we'll talk about how we
1:02:30will proceed further but it's not a
1:02:32reason for a for a mistrial so there's
1:02:39nothing about risk to - and I appreciate
1:02:42the concern of a courtroom staff we work
1:02:45here every day we we haven't we've been
1:02:47handling in a calendar we're very
1:02:49careful we require masks we do require
1:02:52social distancing we're very careful
1:02:55we're often using gloves and and
1:03:00frequently sanitizing our hands I don't
1:03:02know that it's been that disproved that
1:03:06services are are a source and think
1:03:08they're not as likely a source as once
1:03:10thought but I think it's an important -
1:03:12to cleanse and and we do that we're
1:03:17taking all the steps that we can wear it
1:03:19were constantly
1:03:20looking at issues and how they can be
1:03:23resolved to maintain safety if we come
1:03:28to the point where we believe it's not
1:03:30safe we won't continue with the trial
1:03:33we're not going to expose people to to
1:03:39this illness but to the extent that we
1:03:42can safely do so we will but the point
1:03:45is it's not justification now for in
1:03:47this truck let's talk about
1:03:49justification and defense asserts in the
1:03:52brief that is quote a desire to avoid
1:03:55implicated jury selection does not
1:03:57outweigh defendants constitutional
1:03:58rights in very persuasively mr. Chesney
1:04:01offs sighs Stan Lee versus Illinois that
1:04:05higher their higher values and speed and
1:04:08efficiency and that's sure I mean that's
1:04:11a self-evident of course of course
1:04:13that's true that's not the question
1:04:16there's been no showing then mr. Gerst
1:04:19constitutional rights are implicated
1:04:21have been sacrificed in any ways and
1:04:26it's it's not a matter of waiting this
1:04:29trial is not a matter of weighing it is
1:04:31a matter of justification has legal
1:04:33grounds that stated or not they've not
1:04:35been stated but let's talk about the
1:04:40value of having a jury it took us two
1:04:46months narrowing down more than 1,000
1:04:51individuals down to 23 jurors we brought
1:04:56in more than a hundred jurors a day into
1:05:00our jury assembly room we cannot do that
1:05:03under current circumstances redoing that
1:05:06will take more than twice as long
1:05:09so keeping our jury the saves four to
1:05:14six months
1:05:15it's an enormous judicial economy and
1:05:18that's real that's four to six months
1:05:21we're at work and we'd be in the
1:05:23courtroom where we'd be taking risks
1:05:25where there would be travel and exposure
1:05:30four to six
1:05:32would delay mr. versus speedy trial
1:05:36which though he's willing to adjourn he
1:05:39said keep in mind he has been waiting a
1:05:43long time for his trial he would like to
1:05:46get it done and 4 to 6 month delays in
1:05:50real delay this extra courtroom time
1:05:54period the concern was that the jurors
1:05:57didn't know the trial would take this
1:05:59long well but still they're not in the
1:06:02court they're not in the court for these
1:06:04for this period of time of our
1:06:06adjournment so the four to six months is
1:06:08it's a very significant but again just
1:06:11explaining why it is so important for us
1:06:15to keep our jurors everyone has a right
1:06:17to the jury we have selected and there
1:06:21is no speculation about those jurors is
1:06:26not it's not a justification for a
1:06:29mistrial nor is this a weighing process
1:06:32when there's been no showing so the the
1:06:39motion is and the defense reply brief
1:06:41are very very well written TC to forget
1:06:46it's so persuasive and and the data
1:06:50covet is so compelling it's easy to
1:06:54forget that it was the defensive
1:06:57requested this adjournment and it's not
1:07:00the consequences of that adjournment to
1:07:02which they now inject a party can't move
1:07:05for a German and then demand a mistrial
1:07:07because the motion was granted so I know
1:07:10I know that
1:07:12mr. chestnut I know you did baby
1:07:16we asked for it because we were afraid
1:07:18we were going to get sick and everybody
1:07:20else had left then I drove back from Las
1:07:22Vegas because the fear of being sick I
1:07:27believe at the time we indicated that we
1:07:30may at some point in time have to speak
1:07:32with mistrial but even if we didn't your
1:07:35honor
1:07:35when we researched it and we found cases
1:07:38that were not in the penalty phase but
1:07:40in the trial phase where there was a is
1:07:47going back to the okay I'm not against
1:07:58it
1:07:58I'm not against your filing the motion
1:08:00okay so maybe that to be to be fair when
1:08:03you move for an adjournment and then
1:08:06when you realize the adjournment would
1:08:08have these other consequences then you
1:08:11realize you ought to move for a mistrial
1:08:12in particular you're talking about all
1:08:15of these cases none of which describe
1:08:18our situation all of which are
1:08:21superseded by grey you did quote
1:08:23nineteenth-century cases and those those
1:08:27did talk about various assumptions about
1:08:29people and what they would do but they
1:08:32are no longer controlling great
1:08:34especially the German
1:08:37anyway quarter shut down so that's true
1:08:41but it was it was on and it is not there
1:09:30I'll get there we're not we're not at
1:09:33the point where we're scheduling our
1:09:35next appearance but will we will discuss
1:09:40it all right so the motion for Miss
1:09:45Collins tonight
1:09:46next is the motion for two motions
1:09:54regarding witnesses the first one is
1:09:57regarding conditional witnesses and the
1:10:03people assert that those witnesses are
1:10:05unavailable under evidence Code section
1:10:09244 witnesses who are conditionally
1:10:12examined are identified you have
1:10:15anything to add to your to your motion
1:10:17like your honor it's very interesting
1:10:19the defense is contesting the
1:10:22unavailability of for witnesses
1:10:24apparently completely disregarding the
1:10:29fact they've now stipulated to the
1:10:32testimony of two of them which occurred
1:10:35well before they filed that motion so we
1:10:38are only down to
1:10:39two witnesses the other two Silberman
1:10:41and Lachman we have agreements already
1:10:44so we're talking about two witnesses
1:10:46those are shaven and struck and then the
1:10:50situation your honor is the courts aware
1:10:53detective struck had a number of health
1:10:56issues previous when we tried to get him
1:10:59out to testify pH examination we are
1:11:03also being told and I'm hearing this
1:11:06from prosecutors that I've talked to in
1:11:08other states that what's going on
1:11:12now with respect to the interstate
1:11:14compact is that if you have a witness
1:11:18that has already testified so the
1:11:23purpose they were brought out to testify
1:11:25it was memorialized etc and now you are
1:11:28coming to the not escape court saying
1:11:29hey listen so-and-so is a necessary
1:11:32witness and they have to come back out
1:11:34again what these judges are saying which
1:11:37makes sense that the court would have to
1:11:39sign off on this as well as is in
1:11:40essence given the situation with coda
1:11:44and again mr. Chesney off respond to
1:11:47whoever wrote that motion responds that
1:11:49well what's the big deal it's no
1:11:52different having a witness travel across
1:11:55the country in airports than it is
1:11:58having a witness or
1:12:00defense themselves come in here that's
1:12:02just not true as we all know hardware
1:12:04and as everyone is recommended to places
1:12:08that everyone has basically said every
1:12:11expert you don't want to be or on a
1:12:13cruise ship and on an airplane so the
1:12:17problem we're going to have your honor
1:12:18is even if the court rules you know what
1:12:21I'm not finding these witness is
1:12:23unavailable the problem we're going to
1:12:27have is is my guess is going to be
1:12:29particularly with detective struck is
1:12:31we're going to have an incredibly hard
1:12:33time convincing a New Jersey judge when
1:12:37he came out here and testified over his
1:12:39own objection last time that he is still
1:12:41necessary now these are issues that we
1:12:44brought up to the defense months ago I
1:12:47brought this issue up in terms of
1:12:49tactics truck and I want to be clear he
1:12:52is likely we're not even going to call
1:12:54him as a witness mr. Durst has already
1:12:57said that he is going to be testified I
1:13:00will be able to cross-examine him on
1:13:02everything that I want and there are
1:13:05statements that he's already given that
1:13:07are going to cover what I would likely
1:13:08lean from protect obstruct the defense
1:13:12is the one who brought him out for
1:13:13conditional examination so I told them
1:13:16listen if if you want detective struck
1:13:21out here you better go arrange together
1:13:23because very likely we're not going to
1:13:26be calling him now I did that I sent a
1:13:29series of at least four emails of which
1:13:32the judge was you were copied on them
1:13:34Lane that issue out they have not
1:13:37responded other than to say that we
1:13:40don't have a position at this time so I
1:13:43think your honor that the idea it's
1:13:46within the courts certainly its
1:13:47parameter it's its authority right now
1:13:50how on earth can the defense say well
1:13:55you have a demonstrated unavailability
1:13:57for this out-of-state witness when he's
1:14:0075 years old has pre-existing
1:14:03issues has a letter from his doctor
1:14:06saying saying that he can't travel has a
1:14:10pre-existing letter from his doctor that
1:14:12went back to his issues regarding the
1:14:16condition examination I don't think the
1:14:18court your honor
1:14:19passed it individually at this point in
1:14:22time given cobia the court can look at
1:14:24the CDC recommendations at cetera and
1:14:26the court can make a finding that you
1:14:28know what that's why we conditionally
1:14:30examine these people but again what's
1:14:32ironic is that very likely he's not even
1:14:35going to be our witness we're likely not
1:14:37even going to call him and and I told
1:14:39the defense listen I'm gonna be very
1:14:41fair and honest with you if you decide
1:14:43that you want to call detective struck
1:14:45I'm not going to play games with you and
1:14:47say well you don't get to call him
1:14:49because he's not unavailable that's not
1:14:52how we do things as the court to air
1:14:53that's not how we've done things
1:14:54throughout this trial we've assisted the
1:14:56defense numerous times in witnesses
1:14:59we're the ones that arranged for
1:15:00detectives dropped the first on for the
1:15:02defense
1:15:02so I think with respect to detective
1:15:05struck that's where we stand now mr.
1:15:08Schaben at this point your honor the
1:15:10last time that I spoke with him he has
1:15:13indicated that he is willing to come out
1:15:16here despite the risk and and I have
1:15:21detectives on the line on that I've
1:15:23already informed counsel of this as well
1:15:25I don't know if that's gonna last and
1:15:28quite frankly I think we'll be in the
1:15:31same position he is in his mid-70s as
1:15:33well again testified here for several
1:15:36days I think that if he decides that he
1:15:39does not want to come out I don't think
1:15:42we're gonna have much choice which
1:15:44brings as to why we need to do this now
1:15:46I need the court to give a ruling on
1:15:49witness unavailability so at least we
1:15:52can edit their testimony by the way we
1:15:55sent transcripts to the defense as we've
1:15:58done with everything and we said it and
1:15:59listen if you can you're off for months
1:16:02please go through this and by going
1:16:05through it you're not agreeing that
1:16:08they're unavailable but if you don't do
1:16:11it we're
1:16:11not going to have the time to be able to
1:16:13edit it and we cannot be in a position
1:16:15where we interrupt the trial because we
1:16:18have to edit two or three days of
1:16:19testimony so your honor
1:16:20bottom line is a witness unavailability
1:16:23pursuant to 240 has been shown
1:16:25particularly the context of Kogan and
1:16:28the instructions from the Chief Justice
1:16:31of California Court with that in the
1:16:32recently mr. Chappell you argued this as
1:16:35well all right mr. Bergeron you may
1:16:46proceed judicially legislate a change in
1:17:04what 240 requires what they reply with
1:17:18what's required to show unavailability
1:17:22rules to party we say that it's a very
1:17:25narrow issue and that Kofi's 19 thread
1:17:32does not dip what 240 requires I know
1:17:38that there is the same conundrum
1:17:41apparently that mr. Lewin the even that
1:17:45is they want to start in trial by the
1:17:49way
1:17:50regardless of whether I'm available in
1:17:54mr. raise my sword about our ability
1:18:14there and everybody all right Thank You
1:18:26mr. chairman decided everything else
1:18:32[Music]
1:18:35Thank You mr. chairman and do you wish
1:18:39your plier already submitted submit all
1:18:42right
1:18:48[Applause]
1:18:51infirmity inside one of the bases for
1:18:55unavailability under a tube or D that is
1:19:01240 a 3 dead or unable to attend or
1:19:05testify at the hearing because of then
1:19:07existing physical or mental illness or
1:19:10infirmity and and I think that the
1:19:13briefs seem to go on on the different
1:19:16tack
1:19:17I think the and the case law in fact it
1:19:20talks about mental infirmity but that
1:19:24doesn't mean that physical infirmity
1:19:25doesn't qualify I found a case of
1:19:27physical infirmity Hernandez people
1:19:30versus Hernandez to 63 calyx 2nd to 42
1:19:34so vulnerable 'ti to illness is
1:19:38infirmity it's not a matter of simple
1:19:42fear it's not mental infirmity
1:19:45it doesn't require expert testimony
1:19:48despite the brief 240 C is a section
1:19:52that describes expert testimony for
1:19:54certain circumstances this is to 48 3
1:19:57physical infirmity the court has
1:20:00discretion as to the sufficiency of the
1:20:02showing people versus Alcala for Cal for
1:20:07742 and at this point I agree CDC
1:20:11guidelines specify persons age 65 or
1:20:15older or with serious medical condition
1:20:19should stay home so the vulnerability
1:20:22took over nineteen due to age or health
1:20:25is infirmity the people of made other
1:20:29showings as well so the conditional
1:20:31examinations I guess Lachman and silver
1:20:33and aren't an issue but also in the
1:20:35chavín and detective Michael struk will
1:20:38be admitted and that is of course unless
1:20:41there's a dramatic change of
1:20:43circumstances it's been established that
1:20:45they are unavailable with
1:20:49to that issue then you know can the
1:20:51court order
1:20:52obviously we're going to be using mr.
1:20:56cable we're going to get his stuff ready
1:20:58if he's able to come out he's willing
1:21:00they hadn't spent that then that will do
1:21:02it however we need the defense your
1:21:05honor can they court order the defense
1:21:07to cooperate on we've given them a
1:21:12transcript of detective struck now that
1:21:14the courts made that that order we need
1:21:18to edit it whether or not the defense is
1:21:21going to use him or we are it's highly
1:21:23unlikely working through them but we
1:21:24don't want to be in a situation of
1:21:26ineffective assistance where the defense
1:21:28ends up saying later oh we didn't have
1:21:31time now all of a sudden you're gonna we
1:21:35may need to use detective Struck's
1:21:36transcript and we're not ready now we
1:21:39will volunteer Your Honor at great
1:21:42expense in time if once we get an
1:21:46agreement from the defense of what
1:21:48detective struck testimony will look
1:21:50like we will assume the responsibility
1:21:53even though we are unlikely to call him
1:21:54as our witness we will assume the
1:21:57responsibility of doing the edit find us
1:21:59something that we don't need to do but
1:22:00we'll do it you find you've reached the
1:22:02number of stipulations I'm going to
1:22:04catch that a little later okay and that
1:22:06shows how you can cooperate I'm sure
1:22:08that you'll cooperate I don't think I
1:22:10need to order the defense to do anything
1:22:12but since they have this time on
1:22:15accomplish their lines through the
1:22:43weakened seamless been redacted and
1:22:45either agree or not agree if I don't hit
1:22:47mr. baby I think
1:22:52[Applause]
1:23:01all right Thank You mr. Baily I was mr.
1:23:03Baily and that didn't need to be on the
1:23:05record but it is on the record mr. Baily
1:23:07and described exactly how the
1:23:08cooperation can be accomplished thank
1:23:10you
1:23:10we're concerned he's being held hostage
1:23:12your honor we don't see them physically
1:23:14and someone they're called we just if
1:23:15the court could inquire as to its
1:23:16current state are you going to
1:23:20mountainside mr. Baily you climb the
1:23:24mountain is Romania we're very jealous
1:23:34was rebellion thanks a lot okay next
1:23:38let's talk about remote testimony so
1:23:44this is a motion to allow certain
1:23:49witnesses to testify and this motion
1:23:52uses Penal Code section 1340s a model
1:23:56and the lies on on the Code of Civil
1:24:00Procedure we need to take break and then
1:24:11we launch into remote the issue of
1:24:13remote testimony so we'll see you back
1:24:16at or the 211 don't forget mr. Bailey in
1:24:32them yeah
1:24:34please maintain social distance when
1:24:36exiting the courtroom thank you
1:24:44[Applause]
1:25:56you

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