Safeway Renovation-Expense Evidence Hearing and Juror No. 4 Inquiry
160 linesSAN JOSE, CALIFORNIA OCTOBER 6, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:35 A.M.)
(JURY OUT AT 8:35 A.M.)
JUDGE DAVILA: THANK YOU. PLEASE BE SEATED. AND WE'RE BACK ON THE RECORD IN UNITED STATES VERSUS HOLMES. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. WE'RE OUTSIDE THE PRESENCE OF THE JURY. I THINK COUNSEL WANTED TO MEET THIS MORNING. MR. DOWNEY, YOU HAD A QUESTION, I THINK.
MR. DOWNEY: I DO, YOUR HONOR. YOUR HONOR, THIS IS RELATED TO OUR SECOND WITNESS TODAY, THE NEW WITNESS WHO IS STEVEN BURD, WHO IS THE FORMER CEO OF SAFEWAY. AS THE COURT KNOWS, SAFEWAY WAS A CONTRACTUAL COUNTERPARTY OF THERANOS UNDER AN AGREEMENT WHERE THERANOS WAS TO OPEN SITES WITHIN SAFEWAY STORES. THAT WAS DONE PURSUANT TO A SERIES OF CONTRACTS UNDER WHICH SAFEWAY PAID UNDER FAIRLY COMPLEX ARRANGEMENTS WHICH AREN'T REALLY RELEVANT TO THE DISCUSSION I WANT TO HAVE WITH THE COURT THIS MORNING. WE RAISED THE ISSUE, AS YOUR HONOR KNOWS, IN THE PRETRIAL PHASE AS TO WHETHER THAT CONSTITUTED AN INVESTMENT. THE COURT HAS ALREADY RULED THAT IT DOES, SO THERE'S NO QUESTION, I THINK, FOR PRESENT PURPOSES THAT THE ASSUMPTION IS THAT THE MONEY SPENT BY SAFEWAY UNDER THAT CONTRACT ARE THE PROPERTY OF WHICH IT WAS DEPRIVED, AND IT'S BEEN DETERMINED BY YOUR HONOR THAT THAT WAS AN INVESTMENT. THAT EVIDENCE I ANTICIPATE WILL ALL COME IN.
THIS DISCUSSION RELATES TO A SEPARATE SET OF EVIDENCE, WHICH IS TESTIMONY FROM MR. BURD ABOUT RENOVATION EXPENSES THAT SAFEWAY INCURRED TO PLACE THERANOS IN ITS STORES. I DON'T THINK THERE'S ANY SERIOUS QUESTION THAT THAT IS NOT AN INVESTMENT. IT'S FAIRLY -- IT'S NOT AN INVESTMENT, NOR IS IT PROPERTY UNDER THE WIRE FRAUD STATUTE. I THINK THE SUPREME COURT CASE LAW IS VERY CLEAR, INCLUDING IN THE LAST TERM UNDER UNITED STATES VERSUS KELLY, THAT THAT DOES NOT CONSTITUTE PROPERTY, WHICH IS -- WHICH THE VICTIM IS DEPRIVED OF. SO I DON'T THINK UNDER 401 IT HAS DIRECT RELEVANCE. THAT'S NOT REALLY THE ISSUE, BECAUSE THE COURT MIGHT SAY THERE'S SOME OTHER REASON THAT A DISCUSSION OF THAT IS RELEVANT. IT'S A VERY COMPLEX ISSUE, YOUR HONOR. WE WOULD HAVE TO PUT IN EVIDENCE REBUTTING THE REASONS WHY SAFEWAY SPENT THAT MONEY, THERANOS'S OFFER TO ACTUALLY PAY TO LEASE THAT SPACE, WHETHER THAT MONEY, THE DETERMINATION TO PAY THAT MONEY WAS SAFEWAY'S OWN DECISION OR NOT. SO WE'RE EXPOSED TO A VARIETY OF MINI TRIALS AS OPPOSED TO PREJUDICE FROM SHOWING THE AMOUNT OF THE EXPENDITURE, WHICH IS SAID TO BE IN THE HUNDREDS OF MILLIONS OF DOLLARS. SO I WOULD LIKE TO ASK THAT THAT BE EXCLUDED FROM MR. BURD'S TESTIMONY, WHICH I THINK WILL LARGELY BE ORAL.
JUDGE DAVILA: OKAY. THANK YOU. MR. LEACH, DO YOU WANT TO COMMENT ON THIS? LET'S SEE IF THIS -- MAYBE YOU KNOW MR. LEACH IS GOING TO GO INTO THIS. I DON'T KNOW.
MR. DOWNEY: I DON'T KNOW FOR SURE, BUT WE DID CHAT YESTERDAY AND I SUSPECT SO.
MR. LEACH: WE ARE GOING TO GET INTO IT, YOUR HONOR, ABSENT THE COURT SUSTAINING AN OBJECTION. AND JUST TO BE CLEAR, SAFEWAY IS AN INVESTOR. THEY ENTERED INTO A CONTRACTUAL ARRANGEMENT WITH THERANOS WHEREBY THEY NEED TO HAVE THE RIGHTS TO ACQUIRE CONVERTIBLE NOTES. A NUMBER OF REPRESENTATIONS ARE MADE DIRECTLY BY MS. HOLMES TO MR. BURD ABOUT WHAT THERANOS'S TECHNOLOGY CAN DO, WHAT THERANOS'S FINANCIAL STATUS IS, THEIR RELATIONSHIP WITH PHARMACEUTICAL COMPANIES, AND THE BONA FIDES OF THE TECHNOLOGY. BASED ON THOSE STATEMENTS, SAFEWAY SPENT APPROXIMATELY $300 MILLION BUILDING OUT ITS STORES IN ANTICIPATION OF THE DEVICE BEING PLACED INTO THE SAFEWAY STORES. THE AMOUNTS THAT SAFEWAY SPENDS IS DIRECTLY RELEVANT TO THE MATERIALITY OF MS. HOLMES'S STATEMENTS. IT SHOWS THE SERIOUSNESS WITH WHICH SAFEWAY TOOK MS. HOLMES'S REPRESENTATIONS IN REAL TIME. I THINK IT'S DIRECTLY RELEVANT TO ONE OF THE ESSENTIAL ELEMENTS OF THE OFFENSE, WHICH IS MATERIALITY.
AND, FRANKLY, I DON'T UNDERSTAND THE PREJUDICE OF THIS NUMBER. PERHAPS THERE ARE SOME ALTERNATIVE REASONS WHY SAFEWAY DID THIS. YOU CAN EXPLORE THAT IN CROSS-EXAMINATION. BUT I'M TALKING ABOUT ONE, MAYBE TWO DOCUMENTS WHERE MR. BURD MAKES REFERENCE TO THE NUMBER OR THE NUMBER OF STORES DIRECTLY TO MS. HOLMES. ONE OF THEM IS IN A POWERPOINT THAT SHE HAD A HAND IN PREPARING FOR THE SAFEWAY BOARD. AND I REALLY THINK THIS IS DIRECTLY RELEVANT TO MATERIALITY. IT'S ALSO DIRECTLY RELEVANT TO THE STATE OF MIND OF THE VICTIM AND WHY IT -- ONE OF THE VICTIMS AND WHY IT DID WHAT IT DID. THE OBJECTION I HEAR FROM MR. DOWNEY IS THAT THERE'S SOMEHOW SOME CONFUSION ABOUT WHAT THE MONEY OR PROPERTY THAT'S AT ISSUE WITHIN -- FOR PURPOSES OF THE WIRE FRAUD STATUTE. THAT CAN BE CURED WITH INSTRUCTION, AS I ANTICIPATE THE COURT WILL DO IN FINAL INSTRUCTIONS. BUT THE AMOUNT THAT SAFEWAY SPENDS TO BUILD OUT ITS STORES IS DIRECTLY RELEVANT TO THE MATERIALITY OF MS. HOLMES'S REPRESENTATIONS. IT SHOWS THE SERIOUSNESS WITH WHICH THEY TOOK THIS INVESTMENT IN WHAT SHE WAS SAYING, AND IT'S A VERY IMPORTANT PIECE OF THE GOVERNMENT'S PROOF. SO I DON'T -- I DON'T THINK THERE'S A BASIS UNDER 403 TO EXCLUDE IT HERE.
MR. DOWNEY: INJECTING THOSE ISSUES INTO THIS CASE, YOUR HONOR, REQUIRES AN EXAMINATION OF WHY SAFEWAY SPENT THAT MONEY. ITS DECISION TO SPEND THAT MONEY WASN'T THE RESULT OF ANY AGREEMENT WITH THERANOS. IT WAS THE RESULT OF ITS OWN DECISIONS AS TO WHEN IT WOULD BUILD THOSE FACILITIES, ITS EFFORTS TO PRESSURE THERANOS TO HAVE TECHNOLOGY READY AT PARTICULAR POINTS IN TIME. THAT SPACE IS, IN FACT, USED FOR OTHER PURPOSES TODAY. IT HAD MULTIPLE USES. THOSE POTENTIAL USES EXISTED AT THAT TIME AND, IN FACT, ANOTHER PROVIDER OF BLOOD TESTING SERVICES SITS IN THAT SPACE TODAY, WHICH SAFEWAY ALWAYS KNEW WAS POSSIBLE. SO I THINK TO GET INTO THIS ISSUE AND, YOU KNOW, SPEND TIME ON IT IS, IS MORE WITNESSES AND MORE DAYS WHEN IT'S REALLY NOT -- I THINK IT'S CONCEDED THAT IT'S NOT PROPERTY OF WHICH SAFEWAY IS DEPRIVED.
JUDGE DAVILA: IS IT THE -- MR. DOWNEY, IS IT THE NUMBER THAT TROUBLES YOU? IS THAT WHAT IT IS? IS IT THE FACT THAT SAFEWAY, EITHER IN RELIANCE OR BECAUSE OF THEIR RELATIONSHIP, DID SOMETHING TO FURTHER THEIR SIDE OF THE AGREEMENT? ISN'T THAT RELEVANT AND SHOULDN'T THE JURY KNOW THAT? AND THEN THEY CAN DECIDE WHETHER OR NOT -- ISN'T THAT A JURY QUESTION, TO DECIDE WHETHER OR NOT THAT HAS ANY RELATION?
MR. DOWNEY: WELL, I THINK IT'S BOTH, YOUR HONOR, BOTH THE PREJUDICE OF THE NUMBER, BUT ALSO DISTRACTING INTO THAT ISSUE AS A SIDE ISSUE. I THINK WHAT WE WOULD SAY TO YOUR HONOR IS THE NOTION -- THERE'S NO CONDUCT ON THERANOS'S PART THAT AUTHORIZES OR ENCOURAGES SAFEWAY TO UNDERTAKE THE DECISION TO BUILD THESE FACILITIES AT THAT TIME. THERANOS HAS NO INVOLVEMENT IN THEIR SUBSEQUENT USE OF THOSE PROPERTIES OF -- YOU KNOW, THOSE RENOVATIONS FOR OTHER PURPOSES. SO ALL OF THOSE ISSUES BECOME RELEVANT AND IT SWITCHES A BURDEN TO US THAT I THINK IS, YOU KNOW, CUMULATIVE AND A DISTRACTION AND WILL LEAD TO, YOU KNOW, A LOT OF EVIDENCE ON AN ISSUE THAT'S NOT CENTRALLY RELEVANT HERE.
JUDGE DAVILA: THANK YOU.
MR. DOWNEY: SO IT IS THE NUMBER, AND THAT'S A PREJUDICE ISSUE.
JUDGE DAVILA: RIGHT.
MR. DOWNEY: BUT IT'S ALSO A QUESTION OF WHAT IT'S PUTTING INTO THIS TRIAL.
JUDGE DAVILA: WELL, IT -- MR. LEACH SUGGESTS IF THERE IS AN ISSUE ABOUT THAT AS TO WHETHER OR NOT THAT'S APPROPRIATE FOR THE JURY TO CONSIDER WHEN THEY CONSIDER A WIRE FRAUD CONDUCT, AN INSTRUCTION CAN CERTAINLY GUIDE THEM AS TO WHAT THEY MAY OR MAY NOT USE, THE NUMBER OR ANYTHING ABOUT IT, IN THEIR DELIBERATIONS. WOULDN'T THAT BE PROPHYLACTIC?
MR. DOWNEY: YOUR HONOR, I THINK THE NOTION THAT THERE'S A LARGE NUMBER PUT IN FRONT OF THE JURY AND THAT IT'S CURED BY AN INSTRUCTION WOULD EVISCERATE REALLY THE PURPOSES OF 403. I MEAN, I THINK IT'S -- WHEN YOU COMBINE THE PREJUDICE OF THE NUMBER WITH THE FACT THAT YOU HAVE COMPLEX CIRCUMSTANCES AROUND DECISIONS SAFEWAY MADE THAT HAVE NOTHING TO DO WITH THERANOS, YOU KNOW, I THINK IT'S -- IT'S LEADING TO A DISTRACTION IN THE CASE THAT WE DON'T NEED AND THAT I THINK ISN'T NECESSARY FOR THE GOVERNMENT TO PROVE ITS CASE. WE ALL AGREE IT'S NOT THE PROPERTY THAT'S AT ISSUE. THEY SAY THAT IT'S A DEMONSTRATION OF MATERIALITY. THEY CAN ELICIT THAT SAFEWAY BEGAN TO BUILD FACILITIES WITHOUT GETTING INTO NUMBERS AND DETAILS ABOUT THAT.
JUDGE DAVILA: WELL, LET -- MY SENSE IS THE NUMBER IS, IS WHAT'S CONSUMING THE CONVERSATION HERE. IS THERE ANY WAY TO GET THIS INFORMATION IN WITHOUT MENTIONING A NUMBER OR MENTIONING PERHAPS A RANGE OR SOME ALTERNATIVE, MR. LEACH?
MR. LEACH: I CERTAINLY COULD DO IT WITHOUT THE NUMBER, YOUR HONOR. BUT THE NUMBER ITSELF IS EVIDENCE OF THE WEIGHT SAFEWAY PUT ON THE DEFENDANT'S MISREPRESENTATIONS. SAFEWAY DIDN'T SPEND 30 BUCKS BUILDING OUT A SINGLE STORE. IT SPENT $300 MILLION BUILDING OUT HUNDREDS OF STORES BASED ON THIS CONTRACT, THIS INVESTMENT, THE REPRESENTATIONS OF THE DEFENDANT. I CAN'T THINK OF MANY THINGS MORE PROBATIVE OF MATERIALITY --
JUDGE DAVILA: SURE.
MR. LEACH: -- THAN WHAT THE VICTIM DOES IN RESPONSE TO THOSE STATEMENTS.
JUDGE DAVILA: SO IF THE --
MR. LEACH: THERE ARE A LOT OF BIG NUMBERS IN THIS CASE, YOUR HONOR.
JUDGE DAVILA: YEAH, WE'VE HEARD SEVERAL ALREADY. IF THEY -- IF YOU ASKED HIM, WHAT DID YOU DO? WE BUILT HUNDREDS OF STORES. DID YOU SPEND MILLIONS OF DOLLARS? WE DID.
MR. LEACH: I COULD DO IT THAT WAY, YOUR HONOR. I DON'T THINK IT'S NECESSARY.
MR. DOWNEY: WELL, YOUR HONOR, I STILL OBJECT TO THAT. I THINK THAT PUTS A BURDEN ON US TO SHOW THE CONTEXT IN WHICH THOSE DECISIONS WERE MADE INTERNALLY AT SAFEWAY THAT JUST SHOULD NOT BE PART OF THIS TRIAL.
JUDGE DAVILA: WELL, IS THAT SOMETHING THAT YOU WOULD BE ABLE TO PROBE WITH THIS WITNESS?
MR. DOWNEY: POSSIBLY. BUT POSSIBLY NOT. AND IT CERTAINLY WOULD INTRODUCE A BURDEN THAT SHOULDN'T BE HERE FOR, YOU KNOW, AN EXCHANGE OF MONEY THAT HAS NOTHING TO DO WITH THE PROPERTY THAT THIS DEFENDANT IS ACCUSED OF --
JUDGE DAVILA: SURE, OKAY.
MR. DOWNEY: -- DEFRAUDING THEM OF.
JUDGE DAVILA: ARE YOU INTENDING TO GET INTO THIS TODAY? WILL THIS COME UP TODAY, MR. LEACH? OF COURSE, THAT'S DEPENDENT ON DR. ROSENDORFF'S TESTIMONY.
MR. LEACH: YES, I DO BELIEVE IT'LL COME UP TODAY, YOUR HONOR.
JUDGE DAVILA: PROBABLY NOT THIS MORNING. MY SENSE IS WE'RE GOING TO FINISH DR. ROSENDORFF THIS MORNING. OKAY. THANK YOU. THANK YOU FOR GIVING ME THE HEADS UP. BEFORE YOU LEAVE THE LECTERNS, I DO WANT TO TALK ABOUT A COUPLE OF OTHER ISSUES. APPARENTLY ONE OF THE JURORS HAS CONTACTED MS. KRATZMANN AND THE JUROR HAS ASKED TO SPEAK WITH ME PRIVATELY. AND I'M INFORMED THIS IS IN REGARDS TO THIS JUROR'S THOUGHTS AND FEELINGS ABOUT CONTINUED SERVICE AS A JUROR IN THE CASE. I HAVEN'T RESPONDED TO THE JUROR THROUGH MS. KRATZMANN YET. I WANTED TO RAISE IT TO YOUR ATTENTION. MY SENSE IS -- AND I -- MS. KRATZMANN SHARED WITH ME SOME OF THE COMMENTS THAT THIS JUROR HAS MADE, AND IT -- IT SOUNDS LIKE THE JUROR HAS EXPRESSED, I THINK -- I'M NOT TRYING TO QUOTE WHAT SHE TOLD MS. KRATZMANN -- THAT IT WAS ANXIETY ABOUT CONTINUING AND HAVING SOME CONCERNS ABOUT -- AND, AGAIN, THIS ISSUE OF PUNISHMENT APPARENTLY CAME UP AND THIS JUROR IS CONCERNED ABOUT PUNISHMENT AND WHETHER OR NOT HER CONTINUED SERVICE WILL CREATE ISSUES FOR THAT. I THINK SHE EXPRESSED SOME RELIGIOUS FEELINGS TO MS. KRATZMANN. SO I THINK WE NEED TO TALK WITH HER. SHE ASKED TO SPEAK WITH ME PRIVATELY. I'M GOING TO TELL MS. KRATZMANN TO INFORM THE JUROR THAT THAT'S NOT POSSIBLE, UNLESS YOU CONSENT TO THAT. BUT WHAT I WOULD INTEND TO DO IS TO BRING HER TO THE COURTROOM AND SEE IF I CAN ENGAGE A DIALOGUE WITH HER. IF SHE -- IF SHE TELLS ME THAT SHE WANTS TO SPEAK PRIVATELY OUTSIDE THE COURTROOM, WE'LL SEE IF -- I WON'T DO THAT WITHOUT COUNSEL PRESENT. BUT PERHAPS WE SHOULD ENGAGE THAT BEFORE WE START OUR EVIDENCE THIS MORNING.
MR. LEACH: THAT'S FINE WITH THE GOVERNMENT, YOUR HONOR.
JUDGE DAVILA: OKAY.
MR. DOWNEY: THAT'S FINE HERE, YOUR HONOR.
JUDGE DAVILA: OKAY, GREAT.
MR. DOWNEY: WHILE WE'RE DISCUSSING THE JURY, I DID WANT TO SEE IF WE SHOULD CLOSE THE LOOP ON ALTERNATE JUROR 3. I THINK SHE WAS GOING TO GET BACK TO US. I THINK SHE, SHE LIKELY HAS ADDRESSED THE ISSUE, BUT I THINK FOR PURPOSES OF THE RECORD, MAYBE WE SHOULD HAVE A FURTHER COLLOQUY WITH HER.
JUDGE DAVILA: MS. KRATZMANN RECEIVED AN EMAIL -- YOU'RE PRESCIENT, MR. DOWNEY -- MS. KRATZMANN RECEIVED AN EMAIL AND THE ISSUE OF THAT EMPLOYMENT IS NO LONGER ON THE TABLE, SO SHE WILL BE ABLE TO CONTINUE WITH HER SERVICE AS I UNDERSTAND IT. IS THAT CORRECT, MS. KRATZMANN?
COURT CLERK: YES, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. ALL RIGHT. SO LET'S -- I'LL STAND DOWN AND WE'LL SEE IF, IF AND WHEN THE JUROR ARRIVES, AND THEN WE'LL INVITE THAT JUROR OUT AND WE'LL HAVE A CONVERSATION.
MR. LEACH: THANK YOU, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
MR. DOWNEY: THANK YOU, YOUR HONOR.
COURT CLERK: COURT IS IN RECESS.
(RECESS FROM 8:49 A.M. UNTIL 8:57 A.M.)
(JURY OUT AT 8:57 A.M.)
JUDGE DAVILA: ALL RIGHT. WE'RE BACK ON THE RECORD. ALL COUNSEL ARE PRESENT. DR. ROSENDORFF WAS IN THE ROOM, HE'S LEAVING NOW. AND WE'RE OUTSIDE THE PRESENCE OF THE JURY. MS. KRATZMANN, IF YOU COULD PLEASE BRING IN JUROR NUMBER 4.
COURT CLERK: YES, YOUR HONOR.
(JUROR NUMBER 4 PRESENT.)
JUROR: GOOD MORNING.
JUDGE DAVILA: GOOD MORNING, JUROR NUMBER 4. PLEASE, SIT DOWN, PLEASE. THANK YOU. AND I BROUGHT YOU OUT HERE BECAUSE MS. KRATZMANN, OUR COURTROOM DEPUTY, TOLD ME THAT YOU WANTED TO SPEAK WITH ME, AND I'M GOING TO IDENTIFY YOU AS JUROR NUMBER 4. AND MS. KRATZMANN SAID YOU WANTED TO TALK WITH ME ABOUT SOMETHING ABOUT YOUR JURY SERVICE.
JUROR: YES.
JUDGE DAVILA: IF YOU COULD USE THE MICROPHONE, THAT --
JUROR: YES. MY NAME IS MINH NGUYEN, AND I AM A BUDDHIST, AND SO I PRACTICE FOR COMPASSION, YOU KNOW, FOR, LIKE, NOT KILLING PEOPLE, FOR LOVING AND FORGIVENESS. SO FROM BEGINNING, I ONLY THINK FOR FAIR. BUT THEN, IF I BE FAIR FOR BOTH SIDES AND THEN MAYBE I HAVE TO VOTE, MAYBE I HAVE TO VOTE FOR HER GUILTY, AND THEN I'M THINKING ALL THE TIME SHE IN JAIL AND I WOULD BE SO SAD. SO IT'S REALLY HARD FOR ME. FROM BEGINNING, I DIDN'T THINK ANYTHING LIKE THAT. I JUST THINK TO BE FAIR. BUT NOW I'M THINKING, WHAT HAPPEN IF SHE HAVE TO BE IN THERE FOR LONG, LONG TIME, AND THEN I AM OUT HERE.
JUDGE DAVILA: OKAY.
JUROR: I FEEL LIKE IT'S MY FAULT AND I FEEL GUILTY FOR THAT.
JUDGE DAVILA: SO -- THANK YOU. AND LET ME SAY, JUROR NUMBER 4, FIRST OF ALL, YOUR RESPONSIBILITY AS A JUROR, AND ALL OF YOUR COLLEAGUES, YOUR FELLOW JURORS, YOUR RESPONSIBILITY IS TO ONLY DECIDE THE FACTS OF THE CASE.
JUROR: YEAH.
JUDGE DAVILA: YOU ARE NOT TO DETERMINE, YOU ARE NOT TO DETERMINE ANY PUNISHMENT AT ALL. THAT'S FOR THE COURT TO DECIDE. THAT'S NOT YOUR DECISION. DO YOU UNDERSTAND THAT? AS A MATTER OF FACT, YOU'LL BE INSTRUCTED THAT YOU MAY NOT CONSIDER PUNISHMENT AT ALL IN YOUR DELIBERATIONS.
JUROR: BUT, YOU KNOW, I STILL FEEL -- I'M NOT -- I KEEP THINKING ABOUT THIS EVERY DAY, EVERY TIME.
JUDGE DAVILA: I SEE. HAS THAT -- WELL, LET ME -- AND THANK YOU FOR YOUR CANDOR. THANK YOU FOR BEING HONEST. I'M GRATEFUL FOR YOU TELLING ALL OF US THIS. I THINK WHAT I HEARD YOU SAY EARLIER IS YOU'RE A BUDDHIST.
JUROR: YES, I AM.
JUDGE DAVILA: AND YOUR FAITH PERMITS YOU TO EXPRESS COMPASSION.
JUROR: YES.
JUDGE DAVILA: I THINK I HEARD YOU SAY THAT.
JUROR: YEAH. THAT'S WHY FOR, YOU KNOW, FOR LOVING, FORGIVENESS.
JUDGE DAVILA: YES. ALL RIGHT. ARE YOU -- DO YOU THINK, MA'AM, DO YOU THINK YOU'RE ABLE TO SEPARATE, TO SEPARATE YOUR BELIEFS, YOUR RELIGIOUS AND YOUR PERSONAL BELIEFS, CAN YOU SEPARATE THOSE FROM YOUR JOB TO DECIDE THE FACTS IN THIS CASE? IS THAT SOMETHING THAT YOU CAN DO?
JUROR: I -- I CAN -- YOU KNOW, THE FACTS, YOU KNOW, I CAN DO THAT. BUT THEN I STILL -- IF SOMETHING, YOU KNOW, IS LIKE -- IT'S TO VOTE, AND THEN I FEEL LIKE IT'S BECOME MY, MY VOTE IS A VOTE FOR THE FUTURE OF HERS. SO THAT'S THE THING I WOULD --
JUDGE DAVILA: I SEE. OKAY. AND IF YOU COULD SPEAK INTO THE MICROPHONE, PLEASE. AND DO YOU THINK THAT THOSE FEELINGS ARE GOING TO STAY WITH YOU IF YOU REMAIN ON THIS JURY?
JUROR: I CAN -- IF IN THE FUTURE, LET'S SAY, LET'S SAY IF SHE GUILTY AND THEN, YOU KNOW, SHE GET PUNISHMENT FROM THE GOVERNMENT AND, YOU KNOW, AND IT'S -- IT WILL STAY WITH ME BECAUSE I KEEP THINKING OF THAT EVERY DAY --
JUDGE DAVILA: I SEE.
JUROR: -- IN MY LIFE.
JUDGE DAVILA: I SEE. AND DO YOU THINK THAT -- IT SOUNDS LIKE THAT'S GIVING YOU TROUBLE TO SIT AS A JUROR IN THIS CASE. IS THAT -- IS THAT WHAT YOU'RE FEELING NOW? YOU'RE FEELING PROBLEMS ABOUT SITTING AS A JUROR BECAUSE OF THAT?
JUROR: I CAN SIT, BUT MY -- MAY I NOT VOTE?
JUDGE DAVILA: OKAY. ALL RIGHT. THANK YOU. ALL RIGHT. I'M GOING TO ASK THE LAWYERS IF THEY HAVE ANY QUESTIONS FOR YOU.
MR. SCHENK: NO FURTHER QUESTIONS, THANK YOU.
MR. DOWNEY: NOT FROM US, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. IS THERE ANYTHING ELSE YOU WOULD LIKE ME TO KNOW?
JUROR: NO. I OKAY TO SIT HERE UNTIL THE END, BUT MY -- IF I CAN -- IF I'M NOT TO VOTE, I WILL BE OKAY.
JUDGE DAVILA: IF YOU DON'T HAVE TO VOTE, YOU'D BE OKAY. ALL RIGHT. OKAY. ALL RIGHT. WELL, THANK YOU VERY MUCH. THANK YOU VERY MUCH. YOU CAN LEAVE THE MICROPHONE, AND MS. KRATZMANN WILL TAKE YOU BACK.
JUROR: THANK YOU.
JUDGE DAVILA: YOU'RE WELCOME.
JUROR: THANK YOU, EVERYONE.
(JUROR NUMBER 4 NOT PRESENT.)
JUDGE DAVILA: ALL RIGHT. THE RECORD SHOULD REFLECT THAT WE HAVE FINISHED OUR CONVERSATION WITH JUROR NUMBER 4. I'M HAPPY TO HEAR FROM COUNSEL NOW. AND YOU CAN COME UP TO THE LECTERN. I DON'T KNOW, MR. DOWNEY, ARE YOU SPEAKING FOR YOUR TEAM?
MR. DOWNEY: YES.
MR. SCHENK: YOUR HONOR, I THINK WE SHOULD EXCUSE JUROR NUMBER 4. HER BELIEFS SEEM TO BE SINCERELY HELD. I FOUND IT INSIGHTFUL THAT SHE OFFERED TO STAY ON AND SIT THROUGH THE TRIAL IF SHE DIDN'T HAVE TO VOTE, AND THAT CERTAINLY SUGGESTS SHE'S NOT SAYING THIS TO TRY TO GET OUT OF THE REST OF HER SERVICE, BUT INSTEAD THAT THESE ARE SINCERELY HELD BELIEFS THAT ARE CAUSING A SIGNIFICANT AMOUNT OF STRESS AND ANXIETY, AND THAT CERTAINLY ISN'T SOMETHING WE WANT THE TRIAL TO CAUSE. SO WE THINK THAT SHE SHOULD BE EXCUSED.
MR. DOWNEY: YOUR HONOR, WE DON'T HAVE -- MOVE FOR HER EXCUSAL, BUT WE DON'T HAVE AN OBJECTION TO IT.
JUDGE DAVILA: ALL RIGHT. THANK YOU. AND THANK YOU FOR HEARING JUROR NUMBER 4. SHE -- WE ALL HEARD WHAT SHE SAID. SHE DID EXPRESS HER RELIGIOUS BELIEFS. I KNOW I READ -- I THINK I READ TO THE PANEL 7.4 EARLIER ABOUT PUNISHMENT AND THEY MAY NOT CONSIDER PUNISHMENT. WE HAD ANOTHER ISSUE WITH ANOTHER JUROR AND I READ THAT AGAIN. AND I APPRECIATE JUROR NUMBER 4'S CANDOR. IT APPEARS THAT HER DEEPLY HELD RELIGIOUS CONVICTIONS WOULD CAUSE HER SOME DIFFICULTY. THEY ARE CAUSING HER DIFFICULTY. SHE'S EXPRESSED SOME CONCERN, IF NOT ANXIOUSNESS, ABOUT CONTINUED SERVICE. AND EVEN THOUGH, AS I TOLD HER, EVEN THOUGH THE PUNISHMENT IS SOMETHING THEY MAY NOT CONSIDER, IT'S SOMETHING THAT THE JURORS DO NOT CONSIDER, THAT'S THE COURT'S PROVINCE, THAT DID NOT SEEM TO, TO ASSUAGE HER FROM HER FEELINGS. SO I DO THINK IT'S APPROPRIATE AT THIS TIME TO EXCUSE JUROR NUMBER 4, AND WE WILL EXCUSE JUROR NUMBER 4 AND WE'LL HAVE OUR NEXT ALTERNATE MOVE IN, MS. KRATZMANN, TO THAT SEAT.
COURT CLERK: YES, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT.
COURT CLERK: THAT WOULD BE MS. -- JUROR NUMBER -- ALTERNATE 2.
JUDGE DAVILA: YES, THANK YOU. AND WE CAN INFORM -- MS. KRATZMANN, YOU'LL INFORM JUROR NUMBER 4 OF THAT, AND PLEASE SEND HER OUR THANKS FROM COUNSEL AND THE COURT.
COURT CLERK: YES, YOUR HONOR.
JUDGE DAVILA: AND WE'LL TAKE A RECESS FOR ABOUT FIVE MINUTES TO GET THINGS SET UP AND THEN WE'LL BEGIN THE EXAMINATION. THANK YOU.
MR. DOWNEY: THANK YOU, YOUR HONOR.
MR. SCHENK: THANK YOU.
COURT CLERK: COURT IS IN RECESS.
(RECESS FROM 9:06 A.M. UNTIL 9:23 A.M.)
JUDGE DAVILA: DOCTOR, CAN I ASK YOU TO WAIT OUTSIDE?
ADAM ROSENDORFF: SURE.
JUDGE DAVILA: WE'RE BACK ON THE RECORD. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. THE WITNESS, DR. ROSENDORFF, IS LEAVING THE COURTROOM. I JUST WANT TO TALK TO COUNSEL ABOUT SOMETHING. AND THE RECORD SHOULD REFLECT DR. ROSENDORFF HAS LEFT THE COURTROOM. AS WE WERE COLLECTING -- AS MS. KRATZMANN WAS COLLECTING THE JURORS TO COME AND RETURN, SHE WAS APPROACHED BY ALTERNATE NUMBER 2, WHO WOULD REPLACE THE JUST RELEASED JUROR. ALTERNATE NUMBER 2 APPARENTLY EXPRESSED TO MS. KRATZMANN SIMILAR CONCERNS ABOUT CONTINUING HER SERVICE. SO WE'RE GOING TO BRING HER IN AND HAVE A CONVERSATION WITH HER.
(PAUSE IN PROCEEDINGS.)
COURT CLERK: ARE YOU READY, YOUR HONOR?
JUDGE DAVILA: YES.
COURT CLERK: OKAY. (JUROR NUMBER 4, FORMER ALTERNATE JUROR NUMBER 2, PRESENT.)
JUDGE DAVILA: GOOD MORNING. PLEASE BE SEATED. THANK YOU. AND GOOD MORNING. YOU ARE ALTERNATE -- ACTUALLY, YOU'RE NOW SEATED JUROR NUMBER 4. YOU HAD -- I UNDERSTAND YOU EXPRESSED SOME COMMENTS TO MS. KRATZMANN, OUR COURTROOM DEPUTY, ABOUT YOUR SERVICE.
JUROR: YES, SIR.
JUDGE DAVILA: YES. WHAT WOULD YOU LIKE ME TO KNOW ABOUT THAT? AND PLEASE SPEAK INTO THE MICROPHONE.
JUROR: WELL, I PREFER TO SPEAK PRIVATELY, PLEASE.
JUDGE DAVILA: YES. WELL, I -- I'M NOT ABLE TO DO THAT. I NEED TO HAVE THESE LAWYERS HERE LISTENING.
JUROR: IT'S OKAY.
JUDGE DAVILA: YES, PLEASE. SO --
JUROR: WELL, AS I TOLD YOU FROM THE BEGINNING, ENGLISH IS NOT MY FIRST LANGUAGE. AND I'M FOLLOWING ALL THE SITUATION HERE. IT'S MY FIRST TIME IN THIS SITUATION, AND IT'S HER FUTURE. I DON'T KNOW IF I'M 100 PERCENT READY TO PARTICIPATE IN SOMETHING LIKE THIS BEING ENGLISH NOT MY FIRST LANGUAGE, AND I COULD MAKE A MISTAKE IN SOMETHING. SO I DON'T KNOW.
JUDGE DAVILA: OKAY. WELL, THANK YOU FOR TELLING US ABOUT THIS. FIRST OF ALL, THIS IS YOUR FIRST JURY TRIAL. YOU'VE NEVER SAT ON A JURY BEFORE.
JUROR: YES.
JUDGE DAVILA: AND I THINK THERE ARE -- MANY OF YOUR FELLOW JURORS HAVE THE SAME EXPERIENCE. THE FIRST TIME FOR ANYTHING CAN BE SOMETIMES CHALLENGING. I UNDERSTAND THAT. SO I HOPE YOU DON'T FEEL THAT -- AND YOU SHOULDN'T FEEL -- THAT JUST BECAUSE IT'S YOUR FIRST TIME, THAT ANY, ANY FEELINGS YOU HAVE, NERVOUS FEELINGS ABOUT YOUR SERVICE SHOULD PRESENT A PROBLEM. THAT'S VERY NORMAL FOR JURORS TO BE NERVOUS ABOUT THE PROCEEDING. YOU TALKED ABOUT ENGLISH NOT BEING YOUR FIRST LANGUAGE. YOU MENTIONED THAT IN YOUR QUESTIONNAIRE, AND THESE LAWYERS HAVE HAD AN OPPORTUNITY READ YOUR QUESTIONNAIRE ABOUT THAT. THERE WERE QUESTIONS ASKED ABOUT YOU BEFORE YOUR JURY SERVICE. AND I THINK YOU'VE TOLD ME THAT YOU'RE FOLLOWING THINGS, YOU'RE ABLE TO UNDERSTAND.
I THINK I MENTIONED ALSO AT THE BEGINNING OF THE TRIAL THAT THIS COURT WHERE WE SIT, WE DRAW, WE DRAW -- WE ASK PEOPLE TO COME IN TO SIT AS JURORS FROM MANY, MANY DIFFERENT NEIGHBORHOODS, GEOGRAPHIC REGIONS, MANY DIFFERENT PARTS ALL THE WAY FROM MONTEREY COUNTY UP TO SANTA CLARA COUNTY AND EVERYTHING IN BETWEEN, SAN BENITO, SANTA CRUZ. AND SO WE PULL PEOPLE IN FROM ALL THESE REGIONS AND WE ENJOY THE DIVERSITY OF THOSE PEOPLE WHO COME, PEOPLE WHO COME FROM DIFFERENT CULTURES, DIFFERENT BACKGROUNDS, DIFFERENT GENDERS, AND OFTEN TIMES PEOPLE WHO SPEAK DIFFERENT LANGUAGES AS THEIR PRIMARY LANGUAGE. BUT THEY'VE COME HERE TO LIVE IN THIS AREA, AND WE RESPECT AND ENJOY OUR COMMUNITIES THAT ARE MADE UP BY THIS RICH, RICH COLLECTION OF INDIVIDUALS. AND WE RECOGNIZE THAT IN OUR COUNTRY, THIS IS A COUNTRY THAT WAS CREATED FROM IMMIGRANTS, WASN'T IT? WE KNOW THAT.
AND WE KNOW THAT WHEN PEOPLE COME TO THE COUNTRY FROM DIFFERENT PLACES, TO THIS COUNTRY FROM DIFFERENT PLACES, THEY BRING THEIR CULTURE, THEIR LANGUAGE. BUT WHEN THEY ALSO COME AND THEY SERVE THE COMMUNITY AS YOU'RE DOING, AND AS YOU'VE DONE -- YOUR QUESTIONNAIRE INFORMS US THAT YOUR BACKGROUND AND YOUR ABILITY TO LIVE AND WORK IN THE COMMUNITY USING ENGLISH, WE RECOGNIZE IT'S NOT YOUR FIRST LANGUAGE. THESE LAWYERS RECOGNIZE THAT. AND I THINK I ALSO MENTIONED THAT, RECOGNIZING THAT, THE LAWYERS WILL DO THEIR BEST, NOT JUST FOR YOU, BUT FOR YOUR FELLOW JURORS, THEY WILL DO THEIR BEST TO MAKE THE INFORMATION ACCESSIBLE, MAKE IT UNDERSTANDABLE, TO NOT USE COMPLICATED WORDS THAT MIGHT CONFUSE ANYONE. THAT'S WHAT LAWYERS TRY TO DO, TO HELP THE JURY UNDERSTAND THE EVIDENCE, NOT TO CONFUSE THE JURY. AND THAT'S WHAT MY SENSE IS THESE LAWYERS ARE DOING IN THIS CASE. NOW, THE OTHER POINT YOU RAISED, YOU MENTIONED SHE'S SO YOUNG, AND I THINK YOU WERE REFERRING TO THE DEFENDANT, MS.
HOLMES IN THIS CASE, AND THAT SUGGESTS TO ME THAT YOU HAVE CONCERNS ABOUT THE QUESTION OF PUNISHMENT. AND YOU SHOULD NOT BECAUSE YOU'RE NOT PERMITTED AS A JUROR TO EVEN CONSIDER THAT AT ALL IN YOUR DELIBERATIONS. THAT HAS TO BE OFF THE TABLE. YOU ARE ONLY, AS A JUROR, THE JUDGES OF THE FACTS. YOU GET TO DECIDE WHAT HAPPENED OR WHAT DIDN'T HAPPEN. YOU GET TO DECIDE WHAT THE EVIDENCE IS, AND THEN YOU COME AND YOU TELL, YOU TELL ME, YOU TELL THE LAWYERS, YOU TELL THE PUBLIC WHAT YOUR JURY FINDING IS. AND THAT'S IT. YOU MAY NOT CONSIDER PUNISHMENT IN ANY WAY. THAT'S FORBIDDEN. YOU MAY NOT DO THAT. AND I TELL YOU THAT TO -- HOPEFULLY THAT HELPS YOU, THAT EASES YOUR CONSCIOUS. NUMBER ONE, YOU WON'T BE CALLED UPON TO DECIDE PUNISHMENT IN THE CASE SHOULD THAT BECOME AN ISSUE IN THE CASE. THAT'S NOT -- THAT'S NOT FOR YOUR DECISION. THE JURY DOESN'T DECIDE THAT. DO YOU UNDERSTAND THAT?
JUROR: UM-HUM.
JUDGE DAVILA: ALL RIGHT. DOES THAT GIVE YOU SOME MORE CONFIDENCE, OR DOES THAT GIVE YOU SOME REASSURANCE ABOUT YOUR CONTINUED SERVICE AS A JUROR?
JUROR: YES, SIR.
JUDGE DAVILA: OKAY. I'M GOING TO ASK THESE LAWYERS IF THEY HAVE ANY QUESTIONS FOR YOU.
MR. SCHENK: THANK YOU. JUST ONE QUESTION.
JUDGE DAVILA: YES.
MR. SCHENK: I WANT TO JUST CONFIRM, YOU SAID THAT YOU HAVE BEEN ABLE TO UNDERSTAND EVERYTHING SO FAR; IS THAT RIGHT?
JUROR: YES.
MR. SCHENK: OKAY. THANK YOU.
MR. DOWNEY: NOTHING FROM US.
JUDGE DAVILA: OKAY. THANK YOU. DO YOU HAVE ANY OTHER QUESTIONS FOR ME?
JUROR: NO, SIR.
JUDGE DAVILA: OKAY. ALL RIGHT. THANK YOU. SO I HOPE I'VE -- AND THANK YOU FOR RAISING THIS. THIS IS THE APPROPRIATE THING TO DO AND I'M GRATEFUL THAT YOU TALKED TO MS. KRATZMANN TO RAISE THIS, THIS QUESTION. IT'S ABOUT YOUR JURY SERVICE. AND I JUST WANT TO INFORM YOU, IN THE STRONGEST TERMS POSSIBLE, JURORS DO NOT DECIDE PUNISHMENT. THAT'S NOT ANYTHING THAT THEY SHOULD DO, THINK ABOUT, CONSIDER AT ALL WHEN THEY DELIBERATE THE FACTS OF THE CASE. YOU HAVE TO DECIDE WHAT HAPPENED AND THEN YOU'LL RETURN AND YOU'LL TELL US ALL WHAT THE JURY DECIDED IN THE CASE. THE COURT WILL DO WHATEVER IT NEEDS TO DO AFTER IT HEARS YOUR DECISION. OKAY?
JUROR: OKAY.
JUDGE DAVILA: ALL RIGHT. ANY QUESTION ABOUT THAT?
JUROR: NO.
JUDGE DAVILA: OKAY. THANK YOU VERY MUCH. THANK YOU.
JUROR: THANK YOU.
JUDGE DAVILA: YOU'RE WELCOME.
(JUROR NUMBER 4, FORMER ALTERNATE JUROR NUMBER 2, NOT PRESENT.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. PLEASE BE SEATED. THANK YOU. THE RECORD SHOULD REFLECT FORMER ALTERNATE, NOW SEATED JUROR NUMBER 4, HAS LEFT. ANYTHING FURTHER FROM THE GOVERNMENT? MR. DOWNEY, YOU WANT TO COME FORWARD?
MR. SCHENK: YOUR HONOR, IT SEEMS LIKE THERE'S TWO ISSUES HERE, WHETHER THERE'S A LANGUAGE BARRIER AND WHETHER HER CONCERNS ABOUT PUNISHMENT MAKE THIS NOT THE RIGHT TRIAL FOR HER. I THINK THAT THAT COLLOQUY DEMONSTRATED THAT NEITHER ONE OF THOSE AT THIS POINT ARE A BASIS TO EXCUSE THE JUROR. SHE CONFIRMED SHE HAS UNDERSTOOD THE CONTENT OF THE PROCEEDINGS SO FAR AND SHE UNDERSTOOD THAT PUNISHMENT IS NOT AN ISSUE BEFORE THE JURY AND THEY'RE NOT TO CONSIDER THAT IN THEIR DELIBERATIONS, AND IT SEEMED TO GIVE HER A MEASURE OF COMFORT. SO I DON'T THINK IT'S NECESSARY TO EXCUSE HER.
MR. DOWNEY: YOUR HONOR, I HAVE MY OWN VIEW OF THIS, BUT MAY I JUST HAVE ONE MOMENT TO CONSULT WITH MY CLIENT?
JUDGE DAVILA: SURE, OF COURSE.
(PAUSE IN PROCEEDINGS.)
MR. CLINE: YOUR HONOR, EXCUSE US JUST ONE SECOND, PLEASE.
(DISCUSSION OFF THE RECORD AMONGST DEFENSE COUNSEL.)
MR. DOWNEY: IT'S ALWAYS EASIER TO AGREE. I THINK WE AGREE THIS JUROR SHOULD CONTINUE.
JUDGE DAVILA: OKAY. THANK YOU. ALL RIGHT. WE'LL BRING OUR PANEL IN IN JUST A MOMENT. WE'RE NOT GOING TO MOVE THE ALTERNATE DOWN. I THINK IT'S -- IT MIGHT BE EASIER JUST TO ALLOW THE JUROR TO REMAIN IN THE SEAT THAT SHE CURRENTLY OCCUPIES, AND THEN NEXT WEEK WE'RE GOING TO DO THE LINEUP CHANGE AND -- A LINE CHANGE, AND YOU CAN TELL MR. BOSTIC WHAT THAT IS.
(LAUGHTER.)
MR. SCHENK: YES, YOUR HONOR.
JUDGE DAVILA: I'M HERE TO HELP, MR. BOSTIC. ALL RIGHT. THANK YOU.
MR. SCHENK: THANK YOU.
COURT CLERK: COURT'S IN RECESS.
(RECESS FROM 9:35 A.M. UNTIL 9:38 A.M.)
(JURY IN AT 9:38 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. WE ARE BACK ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT, MS. HOLMES IS PRESENT. OUR RECONSTITUTED JURY IS PRESENT, AND ALTERNATE NUMBER 2 IS NOW JUROR NUMBER 4. BUT WE'LL MOVE YOU NEXT WEEK WHEN WE DO A REARRANGEMENT. THANK YOU. BEFORE WE BEGIN, MR. BOSTIC, I DO WANT TO INQUIRE OF THE JURY, DURING THE BREAK, HAS ANYONE OR DID ANYONE HAVE CAUSE TO SEE, HEAR, DISCUSS OR COME ACROSS ANY OUTSIDE INFORMATION ABOUT THIS CASE SUCH THAT THEY'D LIKE TO INFORM ME? IF SO, WOULD YOU PLEASE RAISE YOUR HAND AND LET ME KNOW? AND, AGAIN, IF YOU WANT TO TALK PRIVATELY ABOUT THIS, I'M HAPPY TO DO THAT. I SEE NO HANDS. THANK YOU. DR. ROSENDORFF, IF YOU COULD PLEASE STATE YOUR NAME AGAIN FOR THE RECORD, PLEASE.
ADAM ROSENDORFF: ADAM ROSENDORFF.
JUDGE DAVILA: THANK YOU. YOU'RE STILL UNDER OATH.
(GOVERNMENT'S WITNESS, ADAM ROSENDORFF, WAS PREVIOUSLY SWORN.)
JUDGE DAVILA: AND MR. BOSTIC.
MR. BOSTIC: THANK YOU, YOUR HONOR.