All right. Back on the record in the Simpson matter. All parties are again present. Mr. Douglas.
Thank you, your Honor. Good afternoon. Your Honor, pursuant to evidence code section 1291, we would ask the Court to declare the nurse Thano Peratis unavailable so that the Court can allow for the introduction of Mr. Peratis' preliminary hearing testimony as well as selected portions of his grand jury testimony. As the Court has hopefully now had a chance to read, we have submitted an affidavit which was signed yesterday by Dr. Robert Chesne, who is Mr. Peratis' treating physician, who is a cardiologist at Daniel Freeman hospital. Dr. Chesne has been treating Mr. Peratis for over 20 years.
We think, your Honor, that there is no alternative given the tenuous nature of Mr. Peratis' current health, that he has been home only for two weeks recuperating from his latest surgery, and we would seek to have the Court declare him unavailable and then we can turn to the question of what portions of the preliminary hearing testimony would be admissible, whether there need to be certain redactions done, et cetera. So I'm first focusing on the question of unavailability, and later on, what portions we should have admitted.
Yes, your Honor. We spoke with Mr. Peratis' doctor today, who indicated to us that there would be no problem with examining Mr. Peratis in the Daniel Freeman hospital. The problem that--the fear that he has is not that Mr. Peratis will have a heart attack, but only that there may be some arrythmia and that it would be easily accommodated in a room at the Daniel Freeman hospital where there are facilities that could be arranged for that examination. So Mr. Peratis is not unavailable.
Well, we can call the doctor in. If you would like, we can file a further declaration from the doctor indicating what he told us today.
Okay. We'll do that. We have not had--I've been in court and Mr. Goldberg was the one in touch with him and we weren't sure--I thought perhaps we were going to have a full-blown 240 hearing, in which case there would be an opportunity to take testimony. But if the Court would like a declaration from the doctor and we can resolve it that way, that would be fine.
Well, I mean, what do we contemplate, Miss Clark, as far as going to a hospital? Do we contemplate a conditional examination? Do we contemplate taking the jury with us? What are you contemplating here?
Either one. It would be fine. We can take the jury with us because they have conference rooms there that will accommodate the court staff and jury so that testimony could be taken. And the doctor does work out of Daniel Freeman hospital. The doctor would be present for the testimony, or we could videotape it in that same facility. Either one is possible.
But shouldn't I be concerned if the doctor wants to have or insists that this examination be conducted in a hospital facility? I mean, doesn't that raise some concern for Mr. Peratis' health and well-being?
Which concern the doctor feels will be adequately addressed by having it at the hospital. The doctor is the one who can indicate to us what his concerns are, how grave they are and how they are best addressed. And obviously the Court would always prefer to have live testimony in front of the jury than to mark a transcript which the Defense knows is not his position at all and thereby misrepresents what the true nature of his testimony would be. I think we all want the jury to have the truth, and if we can get the truth best by accommodating the doctor's concerns, by following the procedure I've outlined, then I think that all parties will be well cared for.
We could get a signed declaration to the Court this afternoon if the Court will accept a faxed signature. I would indicate to the Court however that since the declaration filed by counsel is hearsay and not admissible in evidence, the People would move to strike the declaration with an opportunity to cross-examine the witness.
obviously the Court would always prefer to have live testimony in front of the jury than to mark a transcript which the Defense knows is not his position at all and thereby misrepresents what the true nature of his testimony would be.
Counsel, I'm trying to do this the easy way.
Friday, 2 o'clock. Have your witnesses here.