First of all, your Honor, just for the record, I would like to object to the proposed instruction that you're going to give to the extent that it does not comport with the point I propose. In particular, what concerns me is--
Particularly, in regard to--I think that although the Court found that the failure to turn over the originals in the first instance was inadvertent, what I had proposed was that you also tell the jury whether it was inadvertent or not, they turned over whaDouglaswere claiming to be originals. And Mr. Hodgman just confirmed all of that including the fact that there were other documents that they say weren't originals that they subsequently turned over, which additionally misled us to believe that we had all the originals. And the problem here is that I was misled. Just assuming, even if it was inadvertent, it's still a false representation, misrepresentation that we had of the originals because counsel misled us, and I would like something--but be that as it may--
Mr. Scheck, let me invite you to do this since we're moving on to other subjects at this point. If you want to file a supplemental brief with me on that issue Monday, I'll consider it, or actually Tuesday morning since I'm going to take up the other sanctions issues Tuesday morning.
I mean, I think I made my argument and I presented the--and ask you to just consider that because-- but the real issue, your Honor, is that right now, they're making a big deal at this point with the jury. And what Mr. Cochran said and I would urge the Court, now is the time after they finish with this, then the instruction must be given since there's no question about this being a discovery violation and they then misled. So I would just ask you to consider adding additional language to your proposed charge that the Prosecution had turned--to the effect that the Prosecution had initially turned over to us what they claimed to be originals, but they were not, and this misled Defense counsel, and put that in in addition to what you propose to give and that you do it now after you finish with whatever else they're going to do with this because they're making a big deal about this. This is the time.
This is a tremendous, tremendous problem with what counsel just said to the Court. That is that they said they were misled. They had a questioned document examiner look at these things. They knew they were looking at a Xerox. They knew they didn't have the original. So where have they been misled and they never came to us and told us?
The misleading is, they were not aware of the location or true content of the original. We agree there's an original.
KEY QUOTEI'm just saying I think that in order for him to even get his toe in the door, he has to be able to say to your Honor in good faith that they didn't come to us with this problem--
Wait a minute. Hold on--and this wasn't a tactical decision on their part because your Honor knows it was a tactical decision. Counsel--
I know that your Honor has ruled. Your Honor carefully considered it, we argued it, we are rearguing it. There's another issue to the videotape. It would be appropriate for both sides to be addressed simultaneously. We did not--we did not get any instruction to the jury immediately after the delay. We didn't tell the jury that there was a delay occasioned by the Defense or any other thing.
Because, your Honor, I didn't really think it was appropriate. My approach to sanctions is, you address the harm that has been done, you figure out what really has been done here, what do the parties intend to do and you address it from that perspective. And I asked for the least onerous sanction that I could contemplate under those circumstances, which is essentially the legal--the legal approach that you're supposed to take under the penal code. You start with what the harm is and you work way down from the bottom up to the top. And it's a difference in style of advocacy, your Honor, of justice. Every time there has been an opportunity for them to accuse me of misconduct, the Prosecution, they did so, and I--that is just not my style.
Well, counsel, if you want to submit anything more, you are welcome to do so by Tuesday.
--that you add something with respect to the fact that the Prosecution was supposed to turn over originals; they did not. You can say it was by inadvertence, as you made the finding, and this misled Defense counsel, and then continue with the fact that they also intentionally did not call it to the attention of the Court and counsel before the end of cross-examination, and that's-- excuse me. Now, that's fair and should be done now. And I have refrained from--I'm not from here and I'm not friendly with all you people with the history, and I've restrained myself. I don't make loose charges. I don't call people names. But this is too much because I've been seriously and wrongfully misled. I've been harmed in the eyes of the jury. I've played this by the book. Mr. Hodgman came in here and confirmed this. And what happened here was wrong and it's damaging to my credibility as an advocate and it's wrong and should be corrected now while this is fresh in the jury's mind because they're going to think that I misled them and they are going to think all the other impeachment has no value.
And that's exactly what they're trying to do by their intentional misconduct, and the Court has recognized it and made a finding. I just want you to add one thing, which is a fact finding. We are entitled to it. And I'm not going to--Mr. Goldberg makes other misstatements about what happened, but I'm not going to go into that now, about the Xeroxes, what was Xeroxed. I can prove it, but that's not the issue. The issue is what happened now and we are entitled to do it now.
The Xeroxing issue is totally irrelevant, but counsel is right. I was controlling the machine. I mean, I just wanted to say I didn't mean to suggest he was controlling the machine.
That's the only way it can be cured. That's the only way that the bell can be unrung because now they're making a big deal, passing this around, the jury is going to think that we misled. And the only reason we're put in this position is because--whether it was through inadvertence or not inadvertence, the originals, they intentionally withheld them. So I couldn't clear this up by myself before the end of cross-examination, and that was wrong, and I'm entitled to have the jury hear that right now.
I've been seriously and wrongfully misled. I've been harmed in the eyes of the jury. I've played this by the book.
That's the only way that the bell can be unrung because now they're making a big deal, passing this around, the jury is going to think that we misled.
The misleading is, they were not aware of the location or true content of the original. We agree there's an original.
I was controlling the machine. I mean, I just wanted to say I didn't mean to suggest he was controlling the machine.
I'm not from here and I'm not friendly with all you people with the history, and I've restrained myself. I don't make loose charges. I don't call people names. But this is too much.