Exhibit and service declaration procedures

📄 Exhibit and service declaration procedures — Tuesday, December 17, 1996

Address:

C:\DEPT103\CIVIL\1996\DEC\17\EXHIBIT-AND-SERVICE-DECLARATIO.DOC

TRIAL

▲ Day 33 of 57

◀ Jury instruction Redirect examination of Michael Baden (part 1) ▶

Date: Tuesday, December 17, 1996 • Utterances: 36

Defense counsel addressed three service declarations for unavailable witnesses (Brasini, Ramirez, Ball, and Norris), obtaining court permission to read their criminal trial testimony into the record. Nine defense exhibits were then admitted without objection. Finally, Petrocelli raised a pre-jury issue about limiting Dr. Henry Lee's shoe print testimony, arguing Lee could not establish that a non-Bruno-Magli imprint was placed at the scene on the night of the murders.

# 1 (REGINA D. CHAVEZ, OFFICIAL REPORTER)

# 2 (The following proceedings were held in open court, outside the presence of the jury.)

# 3 THE COURT:

There are three declarations regarding service. First one is as to Brasini.

MR. P. BAKER: In terms of Brasini, Judge, we called the number provided to us; we sent a process server out to his occupation or his workplace in Chula Vista for approximately six hours, informed Mr. Brasini -- that he was there. He wouldn't come out and accept service.

I called him, asked to leave a message for Mr. Brasini, that I was an attorney trying to serve him with a subpoena. He wouldn't accept service. And we've tried, now, for over 20 hours to serve this gentleman; he's avoiding service.

We would request to read his trial testimony in.

# 4 THE COURT:

Okay. That's not a deposition, but trial testimony?

MR. P. BAKER: Trial testimony from the criminal trial.

# 5 THE COURT:

Okay.

# 6 MR. PETROCELLI:

Submit.

# 7 THE COURT:

You're conceding?

# 8 MR. PETROCELLI:

We don't concede anything, Your Honor; we submit to your good judgment.

KEY QUOTE

# 9 THE COURT:

Normally, there are some issues, but if you're just submitting, then we'll go along.

# 10 MR. PETROCELLI:

Okay.

# 11 THE COURT:

Declaration with regards to --

MR. P. BAKER: There's --

# 12 THE COURT:

-- Ramirez and Ball.

MR. P. BAKER: Ramirez and Ball are both in Indonesia. We're only going to call Edward Ramirez because Ramirez and Ball are duplicative.

# 13 THE COURT:

These are police officers?

MR. P. BAKER: Yes.

# 14 MR. PETROCELLI:

Same.

# 15 THE COURT:

Okay.

MR. P. BAKER: Michael Norris, who currently resides in Kansas, we would request to read in his criminal trial testimony.

# 16 MR. PETROCELLI:

Same thing.

# 17 THE COURT:

Okay.

MR. P. BAKER: We have some exhibits to move in, for the record for --

# 18 MR. BAKER:

1239, 1240, 1241, 1403, 1404, 1405, 1406, 1407, and 1411.

# 19 THE COURT:

There being no objection, they're received.

# 20 MR. BAKER:

Thank you.

# 21 (The document previously marked Defendants' Exhibit 1239 for identification, was received in evidence.)

# 22 (The document previously marked Defendants' Exhibit 1240 for identification, was received in evidence.)

# 23 (The document previously marked Defendants' Exhibit 1241 for identification, was received in evidence.)

# 24 (The document previously marked Defendants' Exhibit 1403 for identification, was received in evidence.)

# 25 (The document previously marked Defendants' Exhibit 1404 for identification, was received in evidence.)

# 26 (The document previously marked Defendants' Exhibit 1405 for identification, was received in evidence.)

# 27 (The document previously marked Defendants' Exhibit 1406 was received in evidence.)

# 28 (The document previously marked Defendants' Exhibit 1407 for identification, was received in evidence by reference by reference to Criminal Case No. BA097211.)

# 29 (The document previously marked Defendants' Exhibit 1411 for identification, was received in evidence by reference to Criminal Case No. BA097211.)

# 30 THE CLERK:

1407 and 1411 were received by reference.

# 31 THE COURT:

Okay.

Bring in the jury, please.

# 32 MR. PETROCELLI:

Before you do so, may I briefly be heard on the side-bar conference we had concerning Henry Lee's opinion testimony on the subject of the shoe prints?

# 33 THE COURT:

All right.

# 34 MR. PETROCELLI:

I reviewed the trial testimony taken by video deposition, and at page 167, Dr. Lee testifies that he saw one other imprint besides the Bruno Magli shoe prints, which he was able to identify as a shoe print that is set forth in Criminal Exhibit Number 1337-A.

However, on cross-examination, at page 320, Dr. Lee testifies that he is unable to say whether that particular imprint was identified -- excuse me -- was put on the scene after the murders or not.

In other words, Dr. Lee was unable to testify that this one particular imprint that he said was a shoe print was actually placed on the scene the night of the murders, as opposed to some subsequent time. So the only shoe prints that Dr. Lee was able to identify as having originated at the time of the murders were the Bruno Magli shoe prints.

# 35 MR. BLASIER:

Obviously, Dr. Lee wasn't allowed on the scene until the 25th of June. He saw this imprint evidence, which he testified was consistent with the shoe print. A phenol test was done on it; it was tested positive for blood. That's the best we can do.

# 36 THE COURT:

You may frame the question appropriately within the parameters of Dr. Lee's qualifications of that evidence. And you may not state it categorically as a determination.

All right. Bring the jury in.

KEY QUOTE

Temperature

procedural

Key Quotes (3)

Daniel Petrocelli

We don't concede anything, Your Honor; we submit to your good judgment.

Petrocelli's careful verbal maneuvering — declining to concede while effectively not opposing — illustrates the plaintiffs' strategic posture on minor procedural matters.

Daniel Petrocelli

Dr. Lee was unable to testify that this one particular imprint that he said was a shoe print was actually placed on the scene the night of the murders, as opposed to some subsequent time. So the only shoe prints that Dr. Lee was able to identify as having originated at the time of the murders were the Bruno Magli shoe prints.

Plaintiffs successfully narrow the scope of Lee's shoe print testimony to only the Bruno Magli prints, undercutting any defense argument from the unidentified imprint.

Hiroshi Fujisaki

You may frame the question appropriately within the parameters of Dr. Lee's qualifications of that evidence. And you may not state it categorically as a determination.

Fujisaki limits how defense can present Lee's testimony about the mystery shoe print, restricting its evidentiary weight.