YOUR HONOR, WHAT SEEMS APPARENT IS THAT MR. GOLDBERG JUST SHOWED THE JURY THE PROPERTY REPORT WITH THE AIRLINE TICKET ITEMS. IT COULD HAVE BEEN REDACTED.
I'M SORRY, I DIDN'T NOTICE THAT, YOUR HONOR, AND MR. SCHECK DIDN'T BRING IT TO ME PRIOR TO PUTTING IT UP ON THE ELMO.
ALL RIGHT. I THINK WHAT I NEED TO DO IS GO OVER AND SEE WHAT I CAN SEE ON THE ELMO DISPLAY TO SEE IF IT IS APPARENT FROM WHAT IS THERE, BUT I'M NOT THRILLED ABOUT THIS.
ALL RIGHT. IT APPEARS THAT THIS EXHIBIT, I BELIEVE THIS IS NO. 175, THIS IS A PROPERTY REPORT, REFLECTS --
-- TWO ITEMS, THE 15 AND 16, WHICH ARE THE ITEMS THAT WE JUST HAD THE PROBLEMS ABOUT EARLIER THIS MORNING, AND UNFORTUNATELY, THE EVIDENCE PRESENTATION SYSTEM IS SUCH THAT I CAN, FROM THE JURY BOX, READ WHAT ITEMS 15 AND 16 ARE. AND IF YOU RECALL, THAT IS WHAT CAUSED ME TO READ THE SANCTION INSTRUCTION TO THE JURY AND NOW THE PROSECUTION HAS CHOSEN TO SHOW THIS TO THE JURY AGAIN.
I SEE THAT, YOUR HONOR, AND I DID NOT TAKE IT UPON MYSELF TO REDACT IT. I WASN'T THINKING ABOUT THAT AT ALL. AND MR. SCHECK SAW THE DOCUMENT BEFORE WE PUT IT UP AND HE DID NOT SAY ANYTHING TO ME.
IT IS NOT A QUESTION OF OBLIGATIONS; IT IS A QUESTION OF THERE WAS NO OBJECTION AND THIS IS A SITUATION -- WHAT ARE THEY TRYING TO DO, WAIT FOR SOMETHING TO BE PUT UP IN FRONT OF THE JURY AND THEN HOLD BACK AND THEN MAKE AN OBJECTION AND SUGGEST THAT SOME SORT OF REMEDIAL ACTION NEEDS TO BE TAKEN WHEN MR. SCHECK SAW IT? AND I THINK THEN IF YOU ASKED HIM, WELL, WHY DIDN'T YOU SAY ANYTHING AND HE WOULD SAY, I OVERLOOKED IT, TOO, IN ALL PROBABILITY. I MEAN, WHAT I WAS CONCENTRATING ON WAS ITEM NO. 17. THE ONLY RELEVANCE OF THIS DOCUMENT IS ITEM NO. 17, AND THAT WAS ALL MY CONCENTRATION WAS ON WAS ITEM NO. 17 AND EXPLAINING THAT PART OF THIS WITNESS' TESTIMONY.
WELL, I REALLY DON'T THINK IT IS THAT DIFFICULT, YOUR HONOR, IN ALL DUE RESPECT TO THE COURT. I MEAN, IT HAPPENED --
WELL, WAIT. WE HAVE AGREEMENT THAT THIS ITEM IS NOT GOING TO BE USED OR MENTIONED. YOU VIOLATE THAT AGREEMENT. I GRANT THE UNUSUAL REMEDY OF INSTRUCTING THE JURY THAT THAT SHOULD NOT HAVE BEEN DONE. TWENTY MINUTES AFTER THAT HAPPENS OR TWENTY MINUTES INTO THE SESSION THIS AFTERNOON YOU PUT THIS UP ON THE ELMO.
WELL, EVERYTHING THE COURT HAS SAID IS TRUE. I MEAN, THE COURT'S RECITATION OF THE FACTS ARE CORRECT.
WELL, THE FIRST EXPLANATION IS YOU HAD NO IDEA THAT THAT HAD BEEN THE AGREEMENT AND THE AGREEMENT HAD BEEN IF THIS WAS GOING TO BE BROUGHT UP AGAIN THAT THE DEFENSE WAS ENTITLED TO A DE NOVO 1538.5 MOTION.
I RECOGNIZE THAT. YOU KNOW, IT IS NOT CUSTOMARY, YOUR HONOR, FOR ATTORNEYS TO TAKE IT UPON THEIR -- THEMSELVES TO REDACT DOCUMENTS. I REALIZE THAT WHAT SHOULD HAVE BEEN DONE HERE --
WELL, COUNSEL, HERE IS THE PROBLEM: THE COURT CANNOT SUPERVISE THE PREPARATION OF EACH AND EVERY EXHIBIT, OTHERWISE WE WOULD BE SPENDING A WHOLE LOT OF TIME JUST LOOKING AT EXHIBITS, AND I TRUST THE PROFESSIONALISM AND INTEGRITY OF THE LAWYERS INVOLVED IN FRONT OF ME TO AT LEAST CULL OUT THE THINGS THAT AREN'T GOING TO BE CONTROVERSIAL. THIS CLEARLY IS.
YOU ARE RIGHT, AND I DID NOT TAKE A SECOND LOOK AT THIS BEFORE I USED IT THIS AFTERNOON AFTER THE COURT'S RULING. I MEAN, I JUST DIDN'T THINK ABOUT IT.
WELL, I MEANT THE RULING EARLIER THIS MORNING, AND MR. SCHECK, WHO SAW IT, DID NOT SAY ANYTHING TO ME.
YOUR HONOR, I THINK THE FACTS SPEAK FOR THEMSELVES. I'M SURE MR. GOLDBERG HAD PLANNED TO INTRODUCE THIS DOCUMENT IN REGARD TO THE MATTER OF THE TRANSFER OF THE BLOOD VIAL AND ITEM 17. I WALKED OVER, TOOK A QUICK GLANCE. I DID NOT THINK AT THAT MOMENT THAT -- ABOUT THE AIRLINE TICKET BEING IN THAT PARTICULAR PLACE, THAT IS TRUE, BUT HE IS TRYING HIS CASE. IT DIDN'T OCCUR TO ME UNTIL WE SAT DOWN AND TOOK A LOOK AT THE MONITOR AND I SAID, OH, MY GOD, THERE IT IS, SO I DON'T KNOW WHAT TO SAY ABOUT THAT, OTHER THAN I DON'T WANT TO TRY HIS CASE FOR HIM AND I SUPPOSE HE HAS TO LOOK AT THE ITEMS AND REDACT THEM AS APPROPRIATE. THE REAL DILEMMA THAT I ACTUALLY HAVE AT THIS MOMENT, AND I DON'T KNOW IF THE COURT WANTS TO ADDRESS IT, IS THE ISSUE OF REMEDY, SO WHENEVER YOU WANT TO -- BUT THAT IS THE ONLY COMMENT I CAN MAKE ON THIS.
YOUR HONOR, IN TERMS OF THE REMEDY, AS INDICATED BY THE INITIAL INSTRUCTION THAT DEAN UELMEN PROFFERED TO THE COURT, UMM, OUR CONCERN IS REALLY WITH AT THIS POINT THE PROSECUTION'S VIOLATING ITS AGREEMENTS. AT THIS STAGE WHAT WE ARE CONCERNED ABOUT IS THAT IT NOW BEGINS TO LOOK AS THOUGH WE ARE TRYING TO HIDE THESE ITEMS WHEN THERE WAS AN AGREEMENT THEY WOULDN'T BE INTRODUCED, AND NOW IN REINSTRUCTING THEM, ALL OF A SUDDEN THE IMPORTANCE OF THIS MAY TAKE ON GREATER WEIGHT IN THE JURY'S MIND THAN IT REALLY OUGHT TO IN TERMS OF THE DEFENSE TRYING TO HIDE SOMETHING FROM THEM WHEN THAT IS NOT REALLY WHAT IS GOING ON HERE. WHAT IS GOING ON HERE IS THE PROSECUTION NOW TWICE HAS VIOLATED ITS AGREEMENTS. IN FACT, I THINK IN THE FIRST INSTRUCTION THAT DEAN UELMEN PROFFERED TO THE COURT WE DIDN'T EVEN NECESSARILY ASK FOR A REMEDY, DISREGARD EVERYTHING YOU'VE HEARD ABOUT THAT, BECAUSE WE DO HAVE THAT CONCERN THAT IT IS GOING TO LOOK LIKE WE ARE TRYING TO HIDE SOMETHING FROM THE JURY, BUT WE NEVER SHOULD HAVE BEEN IN THIS DILEMMA IN THE FIRST PLACE. SO THE REMEDY IS -- THE REMEDY IS WE WOULD LIKE YOU TO INSTRUCT THE JURY THAT THE PROSECUTION HAS AGAIN VIOLATED ITS AGREEMENT WITH RESPECT TO PROVING THESE ITEMS OF EVIDENCE AND VIOLATED THE COURT'S ORDER.
WELL, YOUR HONOR, IN THE -- THE PROBLEM WITH THESE ARGUMENTS IS THAT THIS SEEMS LIKE AN INCREDIBLE PLACEMENT OF FORM OVER SUBSTANCE. I MEAN, DON'T YOU START YOUR BEGINNING -- YOUR ANALYSIS BY ASKING YOURSELF WHAT IS THE PREJUDICE HERE? AND YOUR HONOR MAY RECALL THAT ONE OF THE FIRST QUESTIONS THAT I POSED, RHETORICAL QUESTIONS WHEN WE WERE ARGUING THIS EARLIER, TO THE DEFENSE WAS CAN THEY LEGITIMATELY CLAIM IN GOOD FAITH THAT THIS IS SOMETHING THAT IS PREJUDICIAL TO THEM OR THAT THIS IS SOMETHING THAT THEY MIGHT NOT EVEN HAVE INTENDED TO INTRODUCE ANYWAY? I MEAN, BASED ON WHAT THE JURY HAS HEARD --
WELL, MR. GOLDBERG, WERE I IN YOUR SHOES I WOULD BE THINKING ABOUT ADOPTING AN ATTITUDE THAT THE COURT WOULD BE RECEPTIVE TO HEARING.
AND RATHER THAN CAST THE PROBLEM AND THE BURDEN UPON THE OTHER SIDE, OPPOSING COUNSEL, I WOULD BE CONTEMPLATING HOW BEST TO SALVAGE MY CREDIBILITY BEFORE THE COURT AND I WOULD BE THINKING ABOUT THAT I COULDN'T SAY MEA CULPA TOO MANY TIMES IN THIS SITUATION WERE I IN YOUR SHOES.
YOUR HONOR, I DID. I SAID IT THE FIRST TIME, I WILL SAY IT AGAIN, AND I SAID IT DURING MY ARGUMENT. IT WASN'T THE FIRST TIME A MISTAKE WAS MADE BY THE PROSECUTION, BY ME, BY DEFENSE COUNSEL; IT WON'T BE THE LAST TIME. I JUST DIDN'T KNOW HOW SOON IT WAS GOING TO OCCUR.
WELL, THE FACT THAT IT OCCURRED AGAIN SO QUICKLY IS PERHAPS NOT SURPRISING, BUT WHAT IS INCREDIBLE IN THE TRUE SENSE OF THE WORD, INCREDIBLE, IS THAT IT WOULD HAPPEN ON THE SAME SUBJECT MATTER.
KEY QUOTEWELL, WHAT I WOULD ASK THE COURT TO DO -- I CAN MAKE A REPRESENTATION AS TO WHAT HAPPENED. I CAN SAY THIS IS A MISTAKE. I CAN SAY IT SHOULDN'T HAVE HAPPENED. I CAN SAY I AM SORRY. I CAN ALSO REPRESENT TO THE COURT THAT THIS IS NOT DONE INTENTIONALLY. I DON'T KNOW WHETHER THE COURT BELIEVES THAT OR NOT, THAT IS SOMETHING THAT YOUR HONOR HAS TO DECIDE. I KNOW I HAVEN'T PRACTICED IN FRONT OF THE COURT BEFORE, BUT I HOPE THAT BASED UPON MY REPRESENTATIONS AND THE WAY THAT I'VE TRIED TO HANDLE THE LEGAL ISSUES, PERHAPS YOUR HONOR IS IN A POSITION TO DECIDE THAT. BUT ASIDE FROM THAT ISSUE, I WOULD ASK THE COURT ALSO TO THINK ABOUT THIS JUST FROM A CIRCUMSTANTIAL -- IF YOU WANT TO TALK ABOUT EVIDENCE AND LEGAL ANALYSIS FOR A MOMENT -- THINK ABOUT IT FROM A CIRCUMSTANTIAL EVIDENCE STANDPOINT WHICH IS MAYBE PERHAPS THE ONLY EVIDENCE THAT YOUR HONOR FEELS THAT YOU CAN RELY ON IF YOU DON'T WANT TO ACCEPT MY WORD.
WELL, MR. GOLDBERG, I JUST HAVE TO SAY THAT IF I WERE YOU, I WOULD ASK THE COURT'S PERMISSION TO PUT UP A REDACTED COPY OF THIS EXHIBIT AND I WOULD ASK PERMISSION TO DIRECTLY SAY TO THE JURY, I'M SORRY, I DID IT AGAIN, AND MOVE ON.
KEY QUOTEWELL, OKAY. I THINK THAT THE COURT DOESN'T WANT TO HEAR ANY MORE ARGUMENT ABOUT IT. IF THAT IS THE WAY THE COURT FEELS IT SHOULD BE RESOLVED, I WOULD AGREE TO THAT, BUT JUST SO THAT WE DON'T HAVE ANY PROBLEMS --
WELL, I DON'T KNOW WHAT I CAN DO, YOUR HONOR. IT IS HEARTFELT. I MEAN, I THINK THAT THE COURT CAN IMAGINE --
WELL, MR. GOLDBERG, TRUST ME, I DON'T MEAN TO EMBARRASS YOU BY THIS, BUT YOU'VE GOT TO ADMIT IT IS INCREDIBLE THAT THIS COULD HAPPEN ON THE SAME SUBJECT TWICE ON THE SAME DAY.
AND I WOULD STILL ASK YOUR HONOR TO THINK ABOUT WHETHER OR NOT -- YOUR HONOR HAS QUESTIONED I THINK MY INTEGRITY -- WHAT POSSIBLE ADVANTAGE --
I DIDN'T SAY THAT. I SAID THAT I WOULD TRY TO SALVAGE IT WERE I YOU AND I WOULD BE CONCERNED ABOUT IT.
AND I AM. I MEAN, WHAT ELSE CAN I DO? I MEAN -- I MEAN, I WISH THE COURT WOULD THINK ABOUT IT. I'M CERTAINLY SORRY IT HAPPENED. I DON'T KNOW WHAT ELSE TO SAY.
YOUR HONOR, WE'VE TALKED IT OVER, AND OUR PROBLEM AT THIS POINT IS THE CONCERN I EXPRESSED BEFORE ABOUT REDACTING IT OUT.
MR. GOLDBERG, BEFORE WE GO TOO MUCH FURTHER, PLEASE ACCEPT MY APOLOGIES TO YOU IF I SEEM IRRITATED, BUT THIS DAY HAS NOT GONE WELL. IT STARTED OFF WITH MANY DIFFERENT ARGUMENTS OVER MANY CONTENTIOUS ITEMS, AND IT HAS BEEN A BAD DAY TODAY.
ALL RIGHT. SO DON'T TAKE IT PERSONALLY, BUT YOU ARE NOT MAKING MY JOB ANY EASIER TODAY. ALL RIGHT. MR. SCHECK, YOU WERE SAYING YOU DON'T WANT TO HIGHLIGHT THIS IS WHAT YOU ARE SAYING?
YES, YOUR HONOR. I THINK IF COULD I MAKE THE SUGGESTION THAT THE COURT SHOULD ADMONISH THE JURY IN ANY WAY YOU SEE FIT WITH RESPECT TO THE VIOLATIONS OF THE AGREEMENT, BUT AT THIS POINT IT SEEMS THAT WE DON'T WANT TO BRING ANY MORE ATTENTION TO THAT AND MAKE IT SEEM AS THOUGH THERE IS SOME UNDUE SIGNIFICANCE TO IT. I THINK IF THE JURY MAY THINK, IF THEY ARE TWICE INSTRUCTED TO DISREGARD, THEY MAY THINK THAT THE DEFENSE MAYBE AT THIS POINT --
NO, WE DON'T WANT THE REDACTED COPY, YOUR HONOR, BUT WE WANT THE ADMONISHMENT THAT IT SHOULDN'T HAVE BEEN SHOWN AND AT THIS POINT IT IS OF --
AFTER DUE CONSIDERATION, WHAT WE WOULD REQUEST OF THE COURT IS, YES, A REDACTED COPY AND AN INSTRUCTION TO THE JURY THAT THE PROSECUTION HAS BROKEN ITS AGREEMENT AGAIN AND A FURTHER INSTRUCTION TO THE JURY THAT THE ITEMS THERE ARE IRRELEVANT.
WELL, YOU KNOW, WITH WORD PROCESSORS WE DON'T HAVE WHITE OUT ANY MORE. ALL RIGHT. MR. GOLDBERG, I'M GOING TO SUGGEST THAT YOU PROCEED AT THIS POINT WITHOUT THIS EXHIBIT. MR. FUNG CAN TESTIFY WITH REGARDS TO HIS MEMORY WITH REGARDS TO THESE ITEMS, REFER TO HIS OWN REPORTS, AND IF WE USE THIS ITEM AGAIN, NO. 175, IT WILL HAVE WHITE OUT INSTEAD OF BLACK OUT, BECAUSE THAT IS JUST TOO OBVIOUS. ALL RIGHT. LET'S HAVE THE JURORS.
WELL, THE FACT THAT IT OCCURRED AGAIN SO QUICKLY IS PERHAPS NOT SURPRISING, BUT WHAT IS INCREDIBLE IN THE TRUE SENSE OF THE WORD, INCREDIBLE, IS THAT IT WOULD HAPPEN ON THE SAME SUBJECT MATTER.
WELL, MR. GOLDBERG, I JUST HAVE TO SAY THAT IF I WERE YOU, I WOULD ASK THE COURT'S PERMISSION TO PUT UP A REDACTED COPY OF THIS EXHIBIT AND I WOULD ASK PERMISSION TO DIRECTLY SAY TO THE JURY, I'M SORRY, I DID IT AGAIN, AND MOVE ON.
SOMEHOW I GET THE FEELING IT IS NOT HEARTFELT.
I DON'T WANT TO TRY HIS CASE FOR HIM AND I SUPPOSE HE HAS TO LOOK AT THE ITEMS AND REDACT THEM AS APPROPRIATE.
THE BUSY BEES TELL ME THEY HAVE A WHITED OUT COPY ON THE WAY.