Your Honor, while we're waiting for Miss Clark, I think I have to--we have to resolve this scheduling problem now with tomorrow. I'm assuming that Professor MacDonell will certainly be finished within an hour tomorrow morning. It was our intention to call if not Tracie Savage as our next witness, certainly Michelle Kestler. However, Michelle Kestler, at least tomorrow. We'd like to resolve the 402 issue as it applies to Tracie Savage. As was pointed out to you by my colleague, Dean Uelmen, we wish to add to the hopper if you will for your thinking about the various factors, Michelle Kestler's outside the presence of the jury testimony on that limited issue.
There was some mention that she has an appointment or she has I think a funeral or something in the afternoon. So perhaps we could do at least the outside the presence of the jury portion of her testimony earlier tomorrow, but we do not have another--and we can play the Peratis tape. But, you know, that doesn't take up that much time. But after that, our next witness is Dr. Gerdes, and we're not ready yet with Dr. Gerdes. We'll be ready with him by Wednesday, by Wednesday morning. But we are not ready. We were planning on having these other witnesses Monday and Tuesday.
I'm just thinking, I can't believe, although I've been wrong before, that Mr. MacDonell will take up the full morning session.
KEY QUOTENo. I think you're right. He won't. Miss Clark represented that she only has a few minutes I believe.
Your Honor, is the Court aware that Michelle Kestler is not going to be available until probably late tomorrow afternoon, she's attending a funeral?
No. I'm aware she has a funeral obligation in the afternoon. What's her status in the morning?
Well, I think she's leaving for the funeral and will not be available after 11:00 and then will probably be available again after 4:00 was her best estimate.
Since her testimony at least to make out this offer should not take more than 20 minutes--
How about if we start with her at 9:00, do that out of the presence and bring the jury down? That sounds like the best way to do it.
Well, your Honor, the other possibility would be to require counsel to make an offer of proof as to what she's going to say or they think she's going to say outside the presence of the jury that would be relevant to the issue as to--
KEY QUOTEI think we've already gone over that though. If you recollect, Mr. Goldberg, this morning, we were just sort of thinking out loud that Miss Kestler could testify to the--any inquiry that was made of her, any knowledge that she has or any action that she took regarding leaks. I mean, there are things that as the then acting head of the laboratory and now the head of the laboratory, that she can speak to with regards to this issue. So I'm convinced there's enough to at least ask her some foundational questions with regards to these issues.
What your Honor might not be aware of is that counsel did speak to Miss Kestler at length. So they know specifically what she would say and the extent of her knowledge on many of these issues.
Well, that's not the point though, counsel. The point is, for me to go further on the Tracie Savage issue, they want to offer more evidence with regards to the materiality of the issues concerned. And maybe I misunderstood the comments of other counsel, but I consider this to be a very serious and very sophisticated issue. So there.
So why don't we take that up at 9:00. I assume, Mr. Uelmen, we're talking about a relatively brief direct examination, 20 minutes or so.
Yes. Actually, Mr. Neufeld will conduct it. It should take no more than 20 minutes, half hour.
I have to do that because if it's any longer, I have to deal with Professor MacDonell who's already been out here three times, and I assure the Court that that's what we're talking about.
Okay. All right. So tomorrow, we'll take up Michelle Kestler first, we'll finish with Mr. MacDonell, we'll play the Thano Peratis tape, and then if we haven't resolved the Tracie Savage issue yet, we may run out of witnesses. But even if we have the Tracie Savage issue--well, I don't know how long that could take.
There is one other issue that your Honor may be able to resolve today. In addition to the tape, we would like to present the Thano Peratis grand jury testimony. I don't know that that has been resolved yet.
No. That hasn't been offered formally to me. It's been mentioned, but nobody has cited--nobody has argued the admissibility or non-admissibility of the grand jury.
No. We need to discuss one other matter. All right. Let finish Mr. Neufeld's--do you need to go?
I consider this to be a very serious and very sophisticated issue. So there.
The other possibility would be to require counsel to make an offer of proof as to what she's going to say or they think she's going to say outside the presence of the jury.
I can't believe, although I've been wrong before, that Mr. MacDonell will take up the full morning session.
In addition to the tape, we would like to present the Thano Peratis grand jury testimony. I don't know that that has been resolved yet.