Your Honor, with regard to Dr. Rieders, Lisa Kahn immediately after--immediately after--right after our afternoon session, we spent approximately an hour. Miss Kahn was allowed to ask all the questions she wanted to ask and doesn't have any further questions. We were able to cover everything in an hour. So we anticipate being able to go forward on Monday morning.
Thank you, counsel. And I'm hoping we will have some extra time tomorrow as well. Thank you. All right. Let's address the 240 issue, counsel, the availability issue.
Your Honor, this is a preliminary matter if I may. I don't know if there's an issue in fact. I guess Mr. Goldberg is going to represent whether or not there's still a question of availability. If they are questioning availability, we have to know that tonight because this doctor, who is very, very busy, has set aside time tomorrow morning to be here to give testimony.
I think we'll find out in about three minutes because that's the exact issue that I'm interested in.
Good afternoon, your Honor. With respect to the unavailability issue, it's a little bit complex. I spoke to Dr. Chesne, who is Thano Peratis' treating physician, cardiologist, on Monday, Tuesday and Wednesday of this week. On Monday, he told me that it was possible that if Thano Peratis were to be questioned in a hospital setting under certain perimeters, that that might be acceptable to him.
Dr. Chesne. And Mr. Peratis has put this in the hands of his treating physician who is concerned about his health. On Tuesday, Dr. Chesne told me that he was having some reservations about that primarily because of the way many of the witnesses in this case have been cross-examined and his feeling that under cross-examination, he might become upset and that that could pose some health concern to Mr. Peratis. Today, he has said that he still has those kinds of concerns about questioning even in a hospital type setting. So it's not entirely clear to us exactly whether or not legally he's unavailable or not depending on the exact testimony of the doctors--doctor and the perimeters that this Court believes it would be willing to set up in order to have a conditional examination. The issue here is, your Honor, is that, as the Court knows based on previous offer of proof, Thano Peratis has said that the amount of blood in the vial is different from what was said at the preliminary hearing, and it is explained why it is that he gave that previous testimony and how it is that he's now determined what he believes to be a more accurate estimate, although I don't really think it is anything other than an estimate. And the Prosecution obviously feels it's very important to be able to bring these facts to the jury. The People's position therefore is this. Under evidence code section 1202, when we have a hearsay declarant testify in the form of reading their declaration from a preliminary hearing or deposition, we are allowed under the section to bring any inconsistent statements into evidence whether they're prior inconsistent statements or subsequent inconsistent statements. Does not matter. An inconsistent statement that is brought in under the section is not hearsay and it is not coming in for the truth of the matter asserted. It is only coming in for the purpose of allowing the jury to determine the credibility of the witness and it is--I should say the hearsay declarant, not the witness. And it is permissible. I'm sure the Court has some experience with this usually comes up in the context of gang prosecutions where the witness becomes unavailable and you want to impeach them. And as the Court knows, that impeachment is allowed of the hearsay declarant just as if the witness were testifying only because the witness is not given the opportunity to explain or deny the inconsistent statement. It does not come in for the truth of the matter asserted, but only comes in pursuant to evidence code section 1202.
And perhaps we'd ask the Court to take a look at that just to refresh its recollection as to what it says, although, as I said, I think probably the Court has some experience in these matters. Our position is that as long as we are able to do that, even though the inconsistent statement would not be coming in for the truth of the matter asserted and even though the Court would be probably giving a limiting instruction with respect to the inconsistent statement, that that would still adequately preserve our rights and our interests in having the jury fully understand the credibility issues with respect to this witness and his testimony about the amount of blood in the vial, and we would be willing to waive our right to cross-examine any witnesses at the unavailability hearing and in effect stipulate to unavailability as long as it is absolutely clear that we are going to have the right that we believe that we do have and know that we do have under the evidence code to impeach the hearsay declarant with the inconsistent statement. So that is our position, your Honor.
Your Honor, I don't think 1202 is an issue before the Court at this time. There's one issue and one issue only, which is whether or not the nurse, Mr. Peratis, is unavailable at this time. Whether or not they can attack his testimony on their rebuttal case, if you will, is a separate issue which we can litigate. If you recall, in this case, your Honor, Prosecutor Marcia Clark put the nurse, Mr. Peratis, on the witness stand in the grand jury and elicited from him that he drew 8 cc's of blood approximately. It was the same Marcia Clark who then put Mr. Peratis on the witness stand at the preliminary hearing. And again, he was asked how much blood he drew and he said it was 8 cc's, said it could have been 7.9, could have been 8.1, "The syringe is marked and that's how I know."
Right. Okay. So it was their witness who they put on twice who gave this one testimony. They now wish to impeach their own witness because they don't like the testimony that they offered or proffered through this witness on two prior occasions.
Well, counsel, right now, the issue is, are we going to have a 240 hearing. That's the issue.
I agree with you. And that's all I want to know. I spoke to Dr. Chesne, who is the chief cardiologist at the hospital, at freeman hospital and is his treating physician, and he submitted to the Court a sworn declaration which you've seen, where he said it would be a life-threatening matter for Mr. Peratis to give testimony whether it's in a court of law or even in his own home. Apparently, a representation was made to your Honor that he could do it in a hospital. When I heard about the representation, I called Dr. Chesne, and Dr. Chesne said to me, "The only reason I said he could possibly do it in a hospital was not that it would reduce the anxiety or stress or likelihood that this could trigger a heart attack or some other life threatening result, but simply that if such a thing did occur, at least in a hospital, we have people and facilities there to treat it in an emergency fashion." Now, that's an extraordinary situation to suggest that they want to put this man in a life-threatening situation, but it's okay to hospital because we have equipment there to deal with it. I think when Dr. Chesne realized that that's the limit of what he was saying, that the Prosecution at that point decided that they didn't want to put forward--
Counsel, that's not what I heard Mr. Goldman say. I heard him say that they're punting on the 240 issue.
And they wanted me to know that if a hearsay declaration which prior recorded testimony would be comes in, that they are going to insist that they be able to bring in another statement that is contrary under 1202 of the evidence code.
What I would argue is the following, your Honor. Okay. I'm not prepared to argue a 1201 issue. I never heard it until this afternoon. And Mr. Uelmen would be--
Well, frankly, this is a situation here where I've not even so sure this is hearsay. It's sworn testimony by this witness, and I know under the federal rules, that wouldn't even be considered hearsay. So I don't know exactly how analogous it really is. But all that aside, your Honor, they have to fish or cut bait. If they want to challenge unavailability--
No, no. I thought he said it conditional. He said, "We will withdraw our objection to unavailability only if we can bring in this other statement through 1202." I'm simply saying it's not conditional. Either he's withdrawing his objection under unavailability or he's not. If he's not withdrawing his objection under unavailability, we'll have the chief of cardiology here tomorrow morning so the Court can rule on it. That's a separate question, whether or not they on their case can offer other testimony.
Umm, I'd say it was conditional. It's becoming a little less conditional I suppose listening to the Court speak on the 1202 issue because it seems that if--at least if I'm perhaps reading in-between the lines correctly, that the Court's interpretation is similar to the People's.
But essentially, our reason for withdrawing any objection on the unavailability or requiring the doctor to come in would be to save time. I mean just that simple, and also for the convenience of the doctor. But it would--it would not save a lot of time if then we are going to have a very lengthy hearing with Mr. Uelmen coming down and arguing about the meaning of 1202 and perhaps finding some ambiguity that none of us in our wildest imaginations had ever previously seen, thought or contemplated and we spend 15 minutes for him to argue and 15 minutes for us to respond to that and so on. So our position was yes, as long as the Defense and the Court and the Prosecution all agree that the evidence code says what it says and what it's always said. And, therefore, our rights are preserved and we don't have to have this lengthy hearing with Dean Uelmen on 1202. Then we don't need a hearing on unavailability either and we'll save a lot of time.
All right. They're not willing to argue the 1202 issue at this point. All they want to bring is prior recorded testimony of Mr. Peratis. Counsel, given what you know about from talking to Dr. Chesne, given what we know from Mr. Peratis' condition as we know it today--I mean if you want a 240 hearing, we'll have a hearing. But from what me know at this point--
I certainly would not want a 240 hearing, your Honor, if Dr. Chesne had said all along from the first time we talked to the second time and so on, no, this can't be done, this would clearly present a health hazard. I believe that there is a possibility, a realistic possibility--I'm saying the Court will conclude this--but if we had an unavailability hearing, that your Honor might fashion certain remedies that would satisfy Dr. Chesne. I think the Court would defer to the doctor ultimately in terms of what he felt was in the interest of his patient and since the Court is not a medical doctor. None of us would want to make that decision unless the doctor in effect agreed or was on board. But I believe that there's a reasonable possibility that the Court could come up with certain perimeters for cross-examination or perhaps giving the doctor a right to terminate the conditional examination if he felt that Mr. Peratis was becoming upset. That might be satisfactory to the doctor, and that's based on my conversations with the doctor. I would not ask us--ask the Court to undertake something that would be totally futile.
Your Honor, perhaps I can talk to Miss Clark in light of the comments that the Court has made here today. I know your Honor doesn't want to rule on the 1202 issue right now.
Okay. I will ask her, and perhaps we can get back to counsel later this evening and tell them whether it's necessary. But as of now, yes, we want a 240 hearing.
May I say one thing, your Honor? Perhaps you and I talked to Miss Clark since he has at sidebar you'll recall. She indicated that her intentions were to withdraw it I thought. Can he call now?
No. I just spoke to her. I spoke to her on the phone before I came down and just before she left.
And the only thing that might change her feeling would be listening to the conversation that we've had right now in court.
The only reason I think we're entitled to know whether he wants to fish or cut bait is, Dr. Chesne is a very busy cardiologist.
He scheduled surgery for the afternoon to set aside a little time tomorrow morning.
I have to call him and tell him that he can do other work rather than be here unnecessarily. I think at least he's entitled to that since he--
He believes he is going to be here at 8:00 last time I spoke to him. It's our position right now, we want our hearing. I will try, and perhaps 15, 20 minutes, we'll try to inform counsel that they need not have their witness and that we will have a stipulation in the event we change our mind.
On Tuesday, Dr. Chesne told me that he was having some reservations about that primarily because of the way many of the witnesses in this case have been cross-examined and his feeling that under cross-examination, he might become upset and that that could pose some health concern to Mr. Peratis.
The only reason I said he could possibly do it in a hospital was not that it would reduce the anxiety or stress or likelihood that this could trigger a heart attack or some other life threatening result, but simply that if such a thing did occur, at least in a hospital, we have people and facilities there to treat it in an emergency fashion.
Mr. Goldman, is your punting conditional or unconditional?
our reason for withdrawing any objection on the unavailability or requiring the doctor to come in would be to save time. I mean just that simple, and also for the convenience of the doctor.