Jury Selection and Swearing of Trial Jurors
120 linesSAN JOSE, CALIFORNIA SEPTEMBER 2, 2021 P R O C E E D I N G S
(COURT CONVENED AT 9:01 A.M.)
(JURY OUT AT 9:01 A.M.)
JUDGE DAVILA: LET'S GO ON THE RECORD IN OUR MATTER. I SEE ALL COUNSEL PRESENT. LET'S CAPTURE THE APPEARANCES, PLEASE.
MR. SCHENK: GOOD MORNING, YOUR HONOR. JEFF SCHENK ON BEHALF UNITED STATES. WITH ME AT COUNSEL TABLE ARE KELLY VOLKAR, JOHN BOSTIC, ROBERT LEACH, AND SPECIAL AGENT ADDY HERNANDEZ FROM THE FBI.
JUDGE DAVILA: THANK YOU. GOOD MORNING. AND FOR THE DEFENSE?
MR. DOWNEY: GOOD MORNING, YOUR HONOR. KEVIN DOWNEY FOR MS. HOLMES. WITH ME ARE MY COLLEAGUES LANCE WADE AND KATHERINE TREFZ. OUR COCOUNSEL, JOHN CLINE, IS WITH US HERE AS WELL. AND MS. HOLMES IS PRESENT HERE IN COURT.
JUDGE DAVILA: THANK YOU VERY MUCH.
(DISCUSSION WITH THE COURT AND CLERK OFF THE RECORD.)
JUDGE DAVILA: THANK YOU, COUNSEL, FOR COMING IN THIS MORNING. WHAT I THOUGHT WE WOULD DO IS HAVE A CONVERSATION BEFORE THE JURY -- OUR JURY HAS BEEN SUMMONED FOR 9:30. WE'LL BRING THEM IN, AND THEN WE CAN BEGIN YOUR JURY SELECTION EXERCISE OF ANY PREEMPTS SHOULD YOU HAVE ANY. THERE ARE A COUPLE OF THINGS I WANTED TO TALK ABOUT. THERE IS SOMETHING THAT WAS JUST LEARNED RECENTLY -- A COUPLE OF THINGS THAT WERE LEARNED RECENTLY. BUT, MR. SCHENK, WHAT ARE THE THINGS YOU WOULD LIKE TO BRING TO THE COURT'S ATTENTION?
MR. SCHENK: YES. THANK YOU, YOUR HONOR. THERE ARE TWO JURORS THAT HAVE COME TO THE GOVERNMENT'S ATTENTION THAT MAY NOT BE GREAT JURORS FOR THIS TRIAL. I RAISED IT WITH THE DEFENSE, AND I THINK WE AGREE THAT BOTH SHOULD BE EXCUSED. AND I CAN GO THROUGH EACH ONE FOR YOUR HONOR INDIVIDUALLY IF THAT'S THE WAY THAT YOUR HONOR WOULD LIKE TO PROCEED.
JUDGE DAVILA: WHY DON'T WE DO THAT, PLEASE.
MR. SCHENK: JUROR 113 PROVIDED AN ANSWER ON HIS QUESTIONNAIRE TO I THINK IT WAS QUESTION NUMBER 50. THAT ANSWER SUGGESTED THAT HE OR SOMEONE HE KNEW MAY HAVE BEEN ARRESTED. THE COURT ASKED A COUPLE OF QUESTIONS DURING ITS COURT CONDUCTED VOIR DIRE YESTERDAY. ONE QUESTION ON PAGE 396 OF THE TRANSCRIPT AND ANOTHER ON PAGE 2 -- I'M SORRY, 424 OF THE TRANSCRIPT THAT I THINK WOULD HAVE ELICITED FURTHER INFORMATION REGARDING THIS PRIOR. THE JUROR REMAINED SILENT DURING THAT QUESTIONING, AND THAT CAUSES SOME CONCERN OBVIOUSLY ON THE GOVERNMENT'S PART, AND I DON'T WANT TO SPEAK FOR THE DEFENSE BUT I THINK ON THE DEFENSE'S PART AS WELL. WHILE THE COURT CERTAINLY COULD BRING THE JUROR UP AND ASK FURTHER QUESTIONS, I THINK WE HAVE SUFFICIENT INFORMATION THAT BOTH SIDES FEEL COMFORTABLE EXCUSING THE JUROR AT THIS POINT, BUT OBVIOUSLY WE WOULD DEFER TO THE COURT ON HOW THE COURT WOULD LIKE TO HANDLE THAT ONE.
JUDGE DAVILA: THANK YOU.
MR. DOWNEY: YOUR HONOR, WE BELIEVE THE JUROR CAN BE DISMISSED AT THIS POINT. IT MAY BE THAT THE JUROR IS ACTUALLY INELIGIBLE TO SERVE, BUT I DON'T THINK WE NEED TO GO THAT FAR. I THINK THERE WERE ACTUALLY A SERIES OF QUESTIONS THAT SHOULD HAVE ELICITED INFORMATION THAT WOULD HAVE BEEN RESPONSIVE THAT WOULD HAVE BEEN RELEVANT, AND THOSE QUESTIONS WEREN'T ANSWERED, AND THE INFORMATION WAS NOT BROUGHT FORWARD. SO IT WOULD BE OUR VIEW THAT THE JUROR CAN BE DISMISSED NOW.
JUDGE DAVILA: ALL RIGHT. THANK YOU. THANK YOU FOR THIS. THIS WAS BROUGHT TO MY ATTENTION YESTERDAY AFTER WE HAD LEFT. MS. KRATZMANN SHARED WITH ME SOME INFORMATION RECEIVED. I HAD BEEN THINKING ABOUT WHETHER OR NOT WE SHOULD SUMMON THIS JURY UP AND I SHOULD HAVE A CONVERSATION WITH HIM. IT APPEARS THAT AT LEAST FROM THE INFORMATION THAT I HAVE, WHEN THE QUESTION WAS POSED, AS YOU ALL KNOW, WE ASKED THE QUESTIONS, AND I'D WAIT FOR THE RAISE OF HANDS IN RESPONSE TO THOSE QUESTIONS. AND IN REGARDS TO QUESTION 50, HE DIDN'T RAISE HIS HAND. AND THEN WE SUBSEQUENTLY LEARNED THAT THERE WAS INFORMATION TO THAT ANSWER THAT HE SHOULD HAVE RAISED HIS HAND AND THEN DISCUSSED IT. THE COURT ALSO SAID, AS IT DID AT THE OUTSET AS TO ANY QUESTION THAT THE COURT POSES OR THE LAWYERS POSE THAT WE CAN SPEAK PRIVATELY ABOUT THAT, AND I THINK I WAS EMPHATIC ABOUT THAT TO ALLOW PROSPECTIVE JURORS THE OPPORTUNITY TO HAVE A PRIVATE CONVERSATION SHOULD THEY WISH FOR WHATEVER REASON.
AND THIS, THIS PARTICULAR JUROR WHO WAS SEATED CLOSE TO THE BENCH, NOT IN THE AUDIENCE, FAILED TO RAISE HIS HAND IN RESPONSE TO THAT QUESTION. THAT WAS VERY DISAPPOINTING TO ME. I LEARNED NOW. I DON'T KNOW IF THAT WAS AN ACTUAL EVASION. WAS IT THE FACT THAT THIS JUROR DID NOT HEAR THE COURT? I'VE REVIEWED THE TRANSCRIPT LAST NIGHT TO SEE WHETHER OR NOT I HAD ACTUALLY ASKED THAT QUESTION, AND I WAS CONFIRMED THAT I DID ASK THE QUESTION, AND IT'S THE QUESTION THAT I TYPICALLY ASK OF EVERY TRIAL. SO I'M DISAPPOINTED. THAT'S AN UNDERSTATEMENT. I DON'T KNOW IF THIS PARTICULAR JUROR WAS BEING EVASIVE OR LACKED THE VERACITY INTENTIONALLY WITH THE COURT. NOW, I COULD CALL THIS JUROR UP AND WE COULD HAVE A CONVERSATION WITH THE JUROR ABOUT THE RESPONSE. THE INFORMATION I RECEIVED IS, AS YOU POINT OUT, OR I THINK MR. DOWNEY POINTS OUT, MAYBE HE WOULD BE INITIALLY INELIGIBLE FOR JURY SERVICE BASED ON THE INFORMATION THAT WE HAVE. WE COULD RECEIVE CLARIFICATION OF THAT.
I'M NOT SURE THAT WOULD HELP US. I DON'T THINK IT SERVES ANY PURPOSE. I DON'T PERSONALLY RELISH THE FACT OF DRESSING SOMEBODY DOWN FOR BEING LESS THAN CANDID WITH THE COURT. I DON'T THINK IN LIGHT OF WHERE WE ARE NOW, I DON'T THINK IT SERVES ANY PURPOSE TO DO THAT. I HAVE GREAT DISAPPOINTMENT. IN FACT, IF HE WOULD COME UP I WAS THINKING THIS MORNING WOULD I HAVE TO THEN HAVE TO TALK TO HIM ABOUT HIS FIFTH AMENDMENT RIGHT? HE WAS UNDER OATH, AND HE DIDN'T RESPOND. THE QUESTION IS A FAILURE TO RESPOND IN AFFIRMATIVE DISAVOWMENT. SO RATHER THAN GET INTO ALL OF THIS, I APPRECIATE YOUR MEET AND CONFER ABOUT THIS, AND I AGREE THE APPROPRIATE THING TO DO, JUST BASED ON THE CONDUCT HERE, THIS JUROR IS NOT FIT FOR SERVICE, AND I'M GOING TO STRIKE HIM, JUROR NUMBER 113 IS STRICKEN, AND HE CAN BE, HE CAN BE DISMISSED.
COURT CLERK: YES, YOUR HONOR.
MR. SCHENK: THANK YOU, YOUR HONOR. WE ALSO HAVE INFORMATION ABOUT JUROR NUMBER 130. THE SPOUSE OF SOMEONE ON THE PROSECUTION TEAM WORKS FOR THE COUNTY COUNSEL'S OFFICE. WE DISCOVERED LAST NIGHT THAT THIS SPOUSE HAS WORKED WITH JUROR NUMBER 130 IN THE PAST. THE SPOUSE HAS A DIFFERENT LAST NAME, SO WE HAVE NO REASON TO THINK THAT WHEN MR. MURPHY ANSWERED THE COURT'S QUESTION ABOUT WHETHER MR. MURPHY KNEW ANYBODY ON EITHER SIDE THAT HE WAS EVASIVE. AGAIN, A DIFFERENT LAST NAME, SO I DON'T THINK HE WOULD HAVE HAD A REASON TO MAKE A CONNECTION. BUT WE RAISED THAT KNOWLEDGE, THAT RELATIONSHIP WITH THE DEFENSE THIS MORNING AND WE AGREE, I THINK BOTH SIDES AGREE THAT BECAUSE OF THE EXISTENCE OF THAT RELATIONSHIP WE ALSO COULD EXCUSE JUROR 130.
MR. DOWNEY: LET ME SAY FIRST, I TAKE MR. BOSTIC AT HIS WORD. I THINK HE LEARNED THIS LAST NIGHT. WE WOULD BE UNCOMFORTABLE WITH THE SITUATION BECAUSE, AGAIN, DISCOVERY DURING THE COURSE OF THE TRIAL COULD PRESENT COMPLICATIONS. SO WE MOVE FOR DISMISSAL OF THE JUROR FOR CAUSE ON THE BASIS THAT I BELIEVE BOTH TEAMS HAVE JUST DISCOVERED.
JUDGE DAVILA: ALL RIGHT. ANY OBJECTION TO THAT?
MR. SCHENK: NO OBJECTION. THANK YOU.
JUDGE DAVILA: ALL RIGHT. AND I'M SORRY, THE JUROR WAS MR. MALO --
MR. SCHENK: MURPHY.
JUDGE DAVILA: MURPHY, PARDON ME. THANK YOU. THEN WE WILL STRIKE MR. MURPHY. I DON'T HAVE HIS JURY NUMBER.
MR. SCHENK: IT'S 130.
JUDGE DAVILA: THANK YOU. HE'LL BE STRICKEN FOR CAUSE. WITH THOSE TWO STRIKES, I THINK WE ARE AT THE MINIMUM NEEDED. ASSUMING EVERYONE EXERCISES EVERY PEREMPTORY CHALLENGE THEY HAVE, WE DO HAVE A COMPLEMENT SUFFICIENT TO SELECT 12 MEMBERS OF A JURY AND 5 ALTERNATES. SO WE WILL -- WITH THOSE TWO STRIKES, WE HAVE ASKED OUR JURY TO COME AT 9:30, I THINK, TO COLLECT THEMSELVES. WE'LL EXCUSE THOSE TWO JURORS WHO WE JUST HAVE HAD CONVERSATIONS ABOUT. BUT I -- IS THERE ANYTHING ELSE BEFORE I ASK WHETHER YOU'RE READY TO BEGIN YOUR SELECTION?
MR. SCHENK: NOTHING FROM THE GOVERNMENT. THANK YOU.
MR. DOWNEY: NOTHING FROM MS. HOLMES.
JUDGE DAVILA: SHOULD WE ENGAGE THE SELECTION THEN NOW? YOU HAVE THE SHEET.
COURT CLERK: I NEED TO UPDATE THE SHEET, YOUR HONOR, WITH THE CHANGES. IF I COULD HAVE A FEW MINUTES.
JUDGE DAVILA: SURE. SHOULD WE TAKE A RECESS WHILE WE --
COURT CLERK: YES. IT SHOULD BE ABOUT FIVE MINUTES.
JUDGE DAVILA: WHY DON'T WE DO THAT. WE'LL COME BACK OUT IN FIVE MINUTES, AND WE'LL START THE SELECTION PROCESS.
MR. DOWNEY: THANK YOU.
MR. LEACH: THANK YOU.
(RECESS FROM 9:11 A.M. UNTIL 9:22 A.M.)
JUDGE DAVILA: THANK YOU. WE'RE BACK ON THE RECORD. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN, AND WE'RE OUTSIDE OF THE PRESENCE OF THE PROSPECTIVE JUROR PANEL. THEY'RE DOWNSTAIRS. I THINK MS. KRATZMANN HAS PROVIDED YOU WITH THE UPDATED SELECTION LIST?
MR. SCHENK: YES, SHE HAS. THANK YOU.
JUDGE DAVILA: ALL RIGHT. THANK YOU. JUST A COUPLE OF THINGS. YOU WILL EXCHANGE THE LIST AS YOU ENGAGE ANY STRIKES THAT YOU HAVE. A PASS IS NOT A STRIKE. TWO PASSES IN SUCCESSION MEANS WE HAVE A JURY, AND WHEN YOU HAVE COMPLETED YOUR PROCESS OR THERE ARE TWO PASSES IN SUCCESSION, YOU SHOULD LET MS. KRATZMANN KNOW, AND SHE'LL TAKE THE FORM FROM YOU. IF YOU HAVE ANY QUESTIONS ABOUT THAT, PLEASE LET MS. KRATZMANN KNOW. ANYTHING FURTHER BEFORE WE BEGIN THE PROCESS?
MR. SCHENK: NO, YOUR HONOR.
MR. DOWNEY: NO, YOUR HONOR.
JUDGE DAVILA: YOU CAN START YOUR SELECTION. THANK YOU.
COURT CLERK: YOUR MICROPHONES ARE OFF, COUNSEL. MICROPHONES ARE OFF.
MR. SCHENK: THANK YOU.
(COUNSEL ARE MAKING THEIR SELECTIONS.)
JUDGE DAVILA: COUNSEL, MS. KRATZMANN HAS INFORMED ME AND PROVIDED ME WITH THE JURY SELECTION LIST THAT THE PARTIES HAVE REACHED AGREEMENT AS TO THE 12 JURORS WHO WILL SIT IN THIS CASE. IS THAT CORRECT, MR. SCHENK?
MR. SCHENK: NO, YOUR HONOR.
JUDGE DAVILA: MR. DOWNEY?
MR. DOWNEY: YES.
JUDGE DAVILA: ALL RIGHT. I WILL RETURN THIS SHEET TO YOU NOW, AND MS. KRATZMANN WILL DELIVER IT TO YOU AND YOU WILL BEGIN SELECTING THE FIVE ALTERNATES WHO WILL ENGAGE THIS PROCESS.
MR. SCHENK: YES.
JUDGE DAVILA: AND THEN MY PLAN IS THAT WE WILL SUMMON THOSE 17 TO THE COURTROOM. WE WILL THEN SWEAR THE 12, AND THEN WE'LL SWEAR THE 5 ALTERNATES, AND WE'LL PROCEED. I'M NOT GOING TO PRELIMINARILY INSTRUCT TODAY. I DO, OF COURSE, HAVE AN ADMONITION THAT I WISH TO READ TO ALL OF THE JURORS AT THAT TIME. ALL RIGHT. THANK YOU. I'LL HAND THIS BACK, AND YOU CAN BEGIN YOUR SELECTION PROCESS FOR ALTERNATES.
(HANDING.)
(COUNSEL ARE MAKING THEIR SELECTIONS.)
COURT CLERK: COUNSEL?
MR. DOWNEY: I THINK THEY NEED ANOTHER MINUTE.
JUDGE DAVILA: OKAY.
(COUNSEL ARE MAKING THEIR SELECTIONS.)
JUDGE DAVILA: COUNSEL, IT APPEARS THAT YOU HAVE REACHED AGREEMENT ON THE ALTERNATES AS WELL?
MR. SCHENK: YES, YOUR HONOR.
MR. DOWNEY: YES, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. WHAT I'D LIKE TO DO NEXT IS I'M GOING TO SUMMON THE ENTIRE PANEL UP, AND THOSE FOLKS WHO ARE SEATED ON THE LEFT SIDE OF THE COURTROOM, I'M GOING TO ASK YOU TO PLEASE MOVE OVER SO THE JURY CAN TAKE THOSE SEATS. I'M CALLING THE ENTIRE PANEL UP. WHEN THEY COME UP, I'LL ASK MS. KRATZMANN TO CALL OUT THE NUMBERS OF THOSE JURORS WHO HAVE BEEN SELECTED TO SIT AS JURORS IN THE TRIAL. WE WILL THEN SWEAR THOSE JURORS. I'LL THEN ASK MS. KRATZMANN TO CALL OUT THE NUMBERS OF JURORS WHO HAVE BEEN CALLED TO SIT AS ALTERNATES. THEY WILL TAKE THAT FIRST ROW IN THE GALLERY FOR NOW, AND WE'LL SWEAR THE ALTERNATES. I THEN WANT TO THANK THE BALANCE OF THE JURORS WHO CAME UP. THAT'S WHY I'M CALLING THE PANEL UP. I DO WANT TO THANK THEM. I DON'T WANT THEM TO LEAVE WITHOUT THE OPPORTUNITY TO EXTEND THE COURT'S GRATITUDE AS WELL AS COUNSEL'S GRATITUDE TO THEM AS WELL. SO WE WILL DO THAT. I WILL DISMISS THOSE JURORS WHO WERE NOT SELECTED, AND THEN I'LL HAVE SOME BRIEF COMMENTS TO THE JURY ABOUT OUR PROCESS. I WILL READ THEM AN ADMONITION. AND THEN MS. KRATZMANN IS GOING TO MEET WITH THEM TO GO OVER CERTAIN PROTOCOLS THAT WE WILL HAVE. SHE MIGHT HAVE THEIR JUROR BADGES AND THOSE TYPES OF THINGS. THEN WE'LL BREAK, AND WE'LL RECONVENE AFTER THE HOLIDAYS. I BELIEVE IT'S NEXT WEDNESDAY WHEN WE'RE SCHEDULED TO MEET AT 9:00 A.M. I THINK THAT'S RIGHT. ANY DISTURBANCE IN THAT SCHEDULE FOR NOW?
MR. SCHENK: NO, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
COURT CLERK: I NEED A FEW MINUTES.
JUDGE DAVILA: YOU NEED A MINUTE?
COURT CLERK: MORE THAN A FEW MINUTES.
(LAUGHTER.)
COURT CLERK: IF I CAN?
JUDGE DAVILA: OF COURSE. OF COURSE.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: COUNSEL, JUST TO REFRESH YOUR RECOLLECTION, WE'LL SEAT A IN THE BOX AND N, AND THEN THE FIRST ROW BEHIND YOU, BEHIND THE PROSECUTION THERE WILL BE USED FOR FIVE SEATS. IT MAY BE THE ALTERNATES WILL SIT THERE INITIALLY. WE'RE GOING TO KEEP THE ROW BEHIND THE ALTERNATES OR BEHIND THAT JURY CLEAR FOR THE TRIAL SO NO ONE IS SITTING IMMEDIATELY BEHIND THEM. THAT ROW WILL BE KEPT BLANK OPEN. WHAT I INTEND TO DO DURING THE TRIAL IS ROTATE OUR JURORS AS WELL SO THOSE SITTING IN THOSE SEATS AND OUTSIDE OF THE BOX AS WELL GENERALLY WILL HAVE AN OPPORTUNITY TO MOVE INTO THE WELL AND EXPERIENCE THE TRIAL THAT WAY. THAT'S MY INTENT. I HOPE THAT CAN WORK OUT. I THINK WE CAN WORK THE LOGISTICS OF THAT OUT. ANY QUESTIONS ABOUT THAT?
MR. SCHENK: NO.
MR. DOWNEY: NO, YOUR HONOR.
(PAUSE IN PROCEEDINGS.)
COURT CLERK: YOUR HONOR, IF I MAY CALL UP THE JURY?
JUDGE DAVILA: YES.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: GOOD MORNING. PLEASE COME IN AND HAVE A SEAT IN THE GALLERY. YES, THANK YOU, SIR.
(SELECTED JURORS AND ALTERNATES BEING SEATED.)
(JURY IN AT 10:07 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU, LADIES AND GENTLEMEN. WE'RE ON THE RECORD. ALL COUNSEL ARE PRESENT, AND MS. HOLMES IS PRESENT. OUR PROSPECTIVE PANEL HAS BEEN CALLED UP. LADIES AND GENTLEMEN, PROSPECTIVE JURORS, I WANTED TO SEAT YOU ALL IN THAT AREA. WE'RE GOING TO NOW -- I'M GOING TO ASK MS. KRATZMANN TO CALL OUT THE JUROR NUMBERS AND NAMES OF THOSE, FIRST OF ALL, WHO HAVE BEEN SELECTED TO SIT AS JURORS IN THIS CASE. PLEASE LISTEN CLOSELY FOR YOUR NAME AND NUMBER TO BE CALLED. MS. KRATZMANN WILL CALL IT OUT. WOULD YOU PLEASE, WHEN YOUR NAME IS CALLED, WOULD YOU PLEASE COME FORWARD. AND WE'RE GOING TO BE SITTING IN SEAT A; IS THAT CORRECT, MS. KRATZMANN?
COURT CLERK: YES, YOUR HONOR.
JUDGE DAVILA: RIGHT. AND THEN WE'RE GOING ACCORDINGLY DOWN. LADIES AND GENTLEMEN, THE LAWYERS HAVE MET, AND THEY HAVE MADE THEIR DECISIONS AS TO THE JURY IN THIS CASE. WE WILL FIRST CALL OUT THOSE MEMBERS WHO HAVE BEEN SELECTED TO HEAR THE CASE AS 12 JURORS. I WILL THEN ASK MS. KRATZMANN TO ADMINISTER THE OATH TO THOSE 12 JURORS. I'LL THEN ASK MS. KRATZMANN TO CALL OUT THE NAMES OF THOSE FIVE INDIVIDUALS WHO HAVE BEEN SELECTED TO SIT AS ALTERNATES IN THIS TRIAL. WE'LL HAVE THE ALTERNATES PROBABLY TAKE THE FRONT ROW, IF POSSIBLE, AND THEN MS. KRATZMANN WILL SWEAR IN THE ALTERNATES. I'LL THEN HAVE SOME FURTHER COMMENTS AND GIVE YOU ADVICE AS TO WHAT WE'RE GOING TO DO NEXT, THAT IS, THE SEATED JURORS. MS. KRATZMANN, IF YOU COULD PLEASE CALL OUT THE NAMES OF THOSE 12 INDIVIDUALS WHO HAVE BEEN SELECTED TO SIT AS JURORS IN THIS CASE.
COURT CLERK: YES, YOUR HONOR. MR. HANG, H-A-N-G. IF YOU'LL TAKE SEAT A, PLEASE. MR. ESPINOSA, SEAT B. MR. BETTS. IF YOU'LL TAKE SEAT C, PLEASE. MS. NGUYEN. THAT'S MINH, M-I-N-H, MS. MINH NGUYEN.
JUROR: WHICH ONE?
COURT CLERK: YOU, M-I-N-H. IF YOU'LL TAKE SEAT D, PLEASE. MS. HERNANDEZ. SEAT E IN THE FIRST ROW. MR. KAATZ, K-A-A-T-Z.
JUROR: KAATZ?
COURT CLERK: KAATZ.
JUROR: OH, BOY.
COURT CLERK: IF YOU'LL TAKE SEAT F, PLEASE. MS. HERNANDEZ-PEREZ. IF YOU'LL TAKE THE NEXT SEAT IN ORDER, THAT'S G. MS. STEFANEK. MR. ROBBINS.
JUDGE DAVILA: MR. ROBBINS WILL TAKE SEAT?
COURT CLERK: SEAT I, PLEASE. YES. THANK YOU. MR. GUERRERO. YOU'RE IN SEAT J. MR. KEW, K-E-W. SIR, YOU WILL TAKE SEAT L WHICH IS RIGHT IN FRONT OF THE BAR AREA. MS. GALANTE, YOU'LL TAKE SEAT M.
JUDGE DAVILA: ALL RIGHT. THANK YOU. LADIES AND GENTLEMEN, THE 12 OF YOU HAVE BEEN SELECTED TO SIT AS JURORS IN THIS CASE. I'M NOW GOING TO ASK YOU TO PLEASE STAND AND RAISE YOUR RIGHT HANDS. MS. KRATZMANN IS GOING TO ADMINISTER THE OATH TO YOU.
(SELECTED JURORS WERE GIVEN THE OATH.)
JUROR: YES.
JUDGE DAVILA: THANK YOU VERY MUCH. PLEASE BE SEATED. I'M NOW GOING TO ASK MS. KRATZMANN TO CALL OUT THOSE FIVE NAMES OF INDIVIDUALS WHO HAVE BEEN SELECTED TO SERVE AS ALTERNATE JURORS. I'D LIKE YOU TO SIT IN THE FRONT ROW. ARE THERE THREE PEOPLE IN THAT FRONT ROW NOW? COULD I ASK YOU PLEASE TO MOVE, PLEASE. THANK YOU. I'M SORRY FOR THE INCONVENIENCE. MS. KRATZMANN, IF YOU WOULD CALL THOSE NAMES, PLEASE.
COURT CLERK: ALTERNATE 1, MR. BEDNAR. IF YOU'LL TAKE SEAT N, PLEASE. ALTERNATE 2, MS. MUNOZ, MS. GOMEZ-MUNOZ. IF YOU'LL PLEASE TAKE SEAT O. ALTERNATE 3, MS. SALTING. ALTERNATE 4, MS. MASON-BURCHELL. ALTERNATE 5, MR. LEE. IF YOU'LL TAKE SEAT R, PLEASE.
JUDGE DAVILA: THANK YOU. AND IF OUR ALTERNATES COULD PLEASE STAND AND RAISE YOUR RIGHT HAND, WE HAVE A SPECIAL OATH FOR YOU AS WELL.
(ALTERNATE JURORS WERE GIVEN THE OATH.)
JUROR: YES.
JUDGE DAVILA: THANK YOU VERY MUCH. PLEASE BE SEATED. THE RECORD SHOULD REFLECT THAT WE HAVE SELECTED OUR 12 JURORS WHO WILL HEAR THE CASE AS WELL AS 5 ALTERNATES. THEY HAVE ALL BEEN SWORN. LADIES AND GENTLEMEN, BEHIND YOU -- I WANT TO SPEAK TO THOSE BEHIND YOU, PROSPECTIVE JURORS WHO ARE SITTING BEHIND OUR ALTERNATES. I WANT TO TAKE A MOMENT TO FIRST OF ALL RECOGNIZE DISAPPOINTMENT IN YOUR FACES.
(LAUGHTER.)
JUDGE DAVILA: I'M SERIOUS ABOUT THAT. I'M SERIOUS ABOUT THAT. YOU CAME HERE AND YOU SAT FOR TWO DAYS TO SERVE YOUR COMMUNITY FOR JURY SERVICE, AND I DO ANTICIPATE AND RATHER EXPECT THAT THERE IS DISAPPOINTMENT THAT YOU COULD NOT CONTINUE YOUR JURY SERVICE AT LEAST IN THIS CASE. SO LET ME TELL YOU THAT WE HAVE A VERY EFFECTIVE JURY COMMISSIONER, AND I EXPECT IT MAY COME TO PASS IN THE NEAR FUTURE I'LL BE ABLE TO SEE YOU AGAIN AND PERHAPS MAYBE YOU'LL BE PART OF A JURY IN A JURY TRIAL IN THIS BUILDING. BUT I DO WANT TO THANK YOU. I'M GOING TO RELEASE YOU IN JUST A MOMENT. I COULDN'T DO THAT THOUGH WITHOUT OFFERING ON BEHALF OF ALL OF THE JUDGES OF THE NORTHERN DISTRICT OF CALIFORNIA OUR THANKS FOR YOUR SERVICE. I SAY THAT ALSO AND I HAVE AUTHORITY TO EXPRESS GRATITUDE FROM THESE LAWYERS HERE AS WELL, BOTH TABLES, THEY ALSO EXTEND THEIR GRATITUDE TO YOU FOR COMING FORWARD, SERVING, ANSWERING THE QUESTIONS THAT WE HAVE, AND SITTING FOR CONSIDERATION ON THIS TRIAL. I'M REALLY GRATEFUL THAT YOU WOULD DO THAT. MY REGRET IS THAT PERHAPS I DIDN'T GET TO MEET YOU MORE AS A SITTING JUROR AND TO WORK WITH YOU, BUT AS I SAID, I'M SURE THERE ARE MANY OPPORTUNITIES IN THE FUTURE THAT WILL PRESENT FOR THAT. IT'S SO IMPORTANT NOW FOR YOU TO COME FORWARD AND SERVE YOUR COMMUNITY AS I INDICATED IN MY OPENING REMARKS. SO I HOPE YOU TAKE SOME PRIDE IN YOUR SERVICE HERE. I HOPE YOU ENJOYED YOUR BRIEF TIME HERE AND THAT YOU WALK AWAY WITH AN EDUCATIONAL EXPERIENCE AND ALSO YOU'LL TAKE SOME PRIDE IN YOUR JUSTICE SYSTEM AND YOUR COURTS. SO THANK YOU VERY MUCH. THOSE OF YOU WHO WERE NOT SELECTED, YOU MAY LEAVE IF YOU WISH. YOU MAY REMAIN. IT'S A PUBLIC COURTROOM AND IT BELONGS TO YOU, BUT THANK YOU VERY MUCH.
COURT CLERK: THEY CAN JUST GO HOME.
JUDGE DAVILA: AND YOU CAN JUST GO. YOU DON'T NEED TO CHECK IN DOWNSTAIRS. THANK YOU.
(PROSPECTIVE JURORS OUT AT 10:19 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. THE RECORD SHOULD REFLECT THAT THE BALANCE OF THE PROSPECTIVE JURORS LEFT THE COURTROOM. ALL OF OUR JURORS AND ALTERNATES REMAIN. LADIES AND GENTLEMEN, I WANT TO TAKE A COUPLE OF MINUTES TO EXPLAIN TO YOU WHAT IS GOING TO HAPPEN NEXT AND HOW THINGS ARE GOING TO PROCEED. WE'RE GOING TO TAKE A BREAK IN JUST A MOMENT, AND I'LL ASK YOU TO COME BACK WEDNESDAY NEXT, NEXT WEDNESDAY TO START OUR TRIAL. WHAT YOU WILL START WITH WILL BE PRELIMINARY INSTRUCTIONS THAT I WILL GIVE TO YOU. I WILL READ TO YOU PRELIMINARY INSTRUCTIONS THAT WILL GUIDE YOU AS THE TRIAL STARTS. AFTER THAT I'LL ASK THE PARTIES IF THEY HAVE ANY OPENING STATEMENTS THAT THEY WISH TO MAKE. IF THEY DO, WE'LL START WITH THE GOVERNMENT'S OPENING STATEMENT AND FOLLOWING THAT THE DEFENSE, IF THEY CHOOSE TO GIVE AN OPENING STATEMENT AT THAT TIME.
AFTER THOSE OPENING STATEMENTS, WE WILL THEN BEGIN EVIDENCE, AND THAT MEANS, AS YOU RECALL, THE GOVERNMENT WILL CALL WITNESSES OR INTRODUCE EXHIBITS IN THE TRIAL PROCESS AND THE EVIDENTIARY PROCESS OF THE TRIAL WILL THEN BEGIN. WE'LL MEET, AS I INDICATED, ON THOSE DATES. AGAIN, THOSE SCHEDULES MAY CHANGE. I MAY ASK YOU DURING THE COURSE OF THE TRIAL WHETHER YOUR SCHEDULES MIGHT PERMIT US MEETING EARLIER THAN 9:00 O'CLOCK, 8:30, SOMETHING LIKE THAT, DEPENDING ON GEOGRAPHY AND TRAVEL AND COMMUTES. WE'LL LOOK INTO THAT. SOMETIMES PEOPLE WHO LIVE OVER THE HILL I'LL CALL IT, SANTA CRUZ COUNTY, SOMETIMES THEY TELL ME IT'S EASIER TO GET HERE IN THE MORNING AND LEAVE EARLIER IN THE MORNING AND WE CAN INCORPORATE THAT INTO OUR SCHEDULE IF NEEDED AND APPROPRIATE. IT MAY BE THAT ON SOME DAYS I'LL ASK IN ADVANCE, I'LL GIVE YOU NOTICE, THAT WE MAY GO A LITTLE LATER JUST BECAUSE OF WITNESS SCHEDULES, EVIDENCE SCHEDULES. THAT SOMETIMES COMES UP AS WELL. THAT CREATES SOME ISSUES.
BUT I'LL GIVE YOU AS MUCH OF ADVANCE NOTICE AS I CAN FOR YOUR PLANNING. IF YOU HAVE ANY CONFLICTS THAT COME UP, YOU SHOULD LET MS. KRATZMANN KNOW IN ADVANCE. WHEN WE FINISH HERE TODAY, THAT IS, WHEN I STEP DOWN AND WE FINISH THESE PROCEEDINGS, MS. KRATZMANN WILL STAY WITH YOU, AND SHE WILL GIVE YOU SOME INFORMATION. SHE'LL PROVIDE YOU CONTACT INFORMATION. SHE'LL GIVE YOU INFORMATION ON HOW YOU CAN COME IN AND ACCESS THE COURT AND JURY BADGES, WHICH WILL ENHANCE AND EASE YOUR ACCESS TO THE COURT. SO SHE'LL DO ALL OF THAT WITH YOU WHEN WE'RE GONE. SO SHE'LL ENGAGE THAT. WE WERE GOING TO TAKE YOU NEXT DOOR TO SHOW YOU THE ROOM THAT WE'LL USE FOR YOUR DELIBERATIONS AND MEETINGS, AND I'M INFORMED THAT OUR I.T. STAFF MAY BE WORKING IN THERE. SO THAT MAY NOT BE AVAILABLE. IF IT BECOMES AVAILABLE, MS. KRATZMANN WILL TAKE YOU NEXT DOOR TO SHOW YOU THAT AS WELL AND GIVE YOU THAT INFORMATION AS WELL.
LET ME TELL YOU ONE THING THAT I'M THINKING OF DOING, AND I HOPE I CAN ENGAGE THIS THROUGHOUT THE TRIAL. IT'S A LONG TRIAL. I MAY TRY TO SEE IF WE CAN ROTATE YOUR SEATING, THAT IS, WE MIGHT GO A WEEK AT A TIME AND HAVE FOLKS ROTATE OUT FROM THE BOX HERE AND ROTATE OUT TO THE BENCH SO OUR FRIENDS IN THE FRONT ROW THERE, THE ALTERNATE JURORS, CAN ALSO COME IN AND SIT BACK IN THE BOXES IF POSSIBLE. THAT MAY ALLOW FOR BETTER COMFORT PERHAPS AND A FEELING OF GREATER PARTICIPATION. I KNOW IT'S DIFFICULT TO BE SEATED THE ENTIRETY OF THE TIME OUT BEHIND THAT RAIL. I AM ALSO GOING TO ORDER THAT THE SEAT, THAT IS, THE PEW THAT IS BEHIND WHERE OUR ALTERNATES ARE SEATED NOW, THAT IS GOING TO REMAIN VACANT AND OPEN THROUGHOUT THE TRIAL. I'M NOT GOING TO HAVE ANYONE SIT BEHIND THE JURORS WHO ARE SEATED IN THAT FRONT ROW. AND WE'LL MARK THAT AS INDICATED. SO NO ONE WILL BE SITTING BEHIND THE JURORS WHO ARE SEATED THERE. MS.
KRATZMANN WILL TELL YOU ABOUT -- SHE'LL PROVIDE TO YOU AND GIVE YOU INFORMATION ABOUT NOTE PADS. THE LAWYERS HAVE INDICATED TO ME THAT THEY'RE GOING TO PREPARE AND I'VE ASKED THEM TO PREPARE TRIAL BINDERS. AND EACH JUROR WILL HAVE A BINDER. THE BINDERS WILL HAVE AND I EXPECT WE'LL BE ABLE TO PROVIDE PHOTOGRAPHS OF EVERY WITNESS WHO TESTIFIES IN THIS CASE FOR YOU TO PUT IN THAT BINDER. YOU KNOW IT'S GOING TO BE A LONG TRIAL, AND I'VE ASKED THE LAWYERS TO PROVIDE THOSE PHOTOGRAPHS SUCH THAT YOUR MEMORY AT THE TIME WHEN YOU DELIBERATE THE CASE, THOSE PHOTOGRAPHS MIGHT BE OF SOME ASSISTANCE TO YOU AS YOU REVIEW THE EVIDENCE, THE TESTIMONY, AND THE EXHIBITS. THAT WILL BE PROVIDED FOR YOU AS WELL, AND YOU'LL BE ABLE TO LEAVE THOSE BINDERS HERE IN COURT IN THE DELIBERATION ROOM EACH DAY. SO WE DO WANT TO PROVIDE THAT FOR YOU AS WELL.
JUDGE DAVILA: LET ME ASK COUNSEL, ANY OTHER QUESTIONS? COMMENTS?
MR. SCHENK: NO, YOUR HONOR. THANK YOU.
MR. DOWNEY: NOTHING, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. SO, LADIES AND GENTLEMEN, WITH THAT WE WILL BREAK FOR THE DAY. HOWEVER, I DO WANT TO READ YOU AN ADMONITION. YOU'RE ABOUT TO TAKE OUR FIRST BREAK AS A SWORN JURY IN THE TRIAL. REMEMBER, UNTIL THE TRIAL IS OVER, DO NOT DISCUSS THIS CASE WITH ANYONE, INCLUDING YOUR FELLOW JURORS, MEMBERS OF YOUR FAMILY, PEOPLE INVOLVED IN THE TRIAL, OR ANYONE ELSE, AND DO NOT ALLOW OTHERS TO DISCUSS THE CASE WITH YOU. THIS RESTRICTION INCLUDES DISCUSSING THE CASE IN PERSON, IN WRITING, BY PHONE, TABLET, COMPUTER, OR ANY OTHER MEANS VIA EMAIL, TEXT MESSAGING, OR ANY INTERNET CHAT ROOM, BLOG, WEBSITE, OR APPLICATION, INCLUDING BUT NOT LIMITED TO FACEBOOK, YOUTUBE, TWITTER, INSTAGRAM, LINKEDIN, SNAPCHAT, TIKTOK OR ANY OTHER FORMS OF SOCIAL MEDIA. IF ANYONE TRIES TO COMMUNICATE WITH YOU ABOUT THE CASE, PLEASE LET ME KNOW ABOUT IT IMMEDIATELY.
DO NOT READ, WATCH, OR LISTEN TO ANY NEWS REPORTS OR OTHER ACCOUNTS ABOUT THE TRIAL OR ANYONE ASSOCIATED WITH IT, INCLUDING ANY ONLINE INFORMATION. DO NOT DO ANY RESEARCH SUCH AS CONSULTING DICTIONARIES, SEARCHING THE INTERNET OR USING OTHER REFERENCE MATERIALS, AND DO NOT MAKE ANY INVESTIGATION ABOUT THE CASE ON YOUR OWN. FINALLY, KEEP AN OPEN MIND UNTIL ALL OF THE EVIDENCE HAS BEEN PRESENTED AND YOU HAVE HEARD THE ARGUMENTS OF COUNSEL, MY INSTRUCTIONS ON THE LAW, AND THE VIEWS OF YOUR FELLOW JURORS. NOW, LADIES AND GENTLEMEN, AS I'VE TOLD YOU BEFORE, THIS CASE MUST BE DECIDED SOLELY AND EXCLUSIVELY ON THE EVIDENCE WHICH WILL BE RECEIVED HERE IN COURT AND ALSO IN ACCORDANCE WITH MY INSTRUCTIONS TO YOU AT THE CONCLUSION OF THE CASE. I'VE TOLD YOU BEFORE, A DAY AGO, THAT ALL PARTIES HERE HAVE A CONSTITUTIONAL RIGHT TO A FAIR TRIAL, THE GOVERNMENT AND MS. HOLMES. IT'S YOUR OBLIGATION TO FOLLOW THIS ADMONITION AS I'VE READ IT TO YOU.
WE'VE TALKED ABOUT THE DIFFICULTIES THAT MAY COME IN STAYING AWAY FROM MEDIA. I HAVE MADE SUGGESTIONS ABOUT TURNING OFF YOUR NOTIFICATIONS AND THOSE TYPES OF THINGS. I'M SURE YOU WILL BE CREATIVE IN YOUR ENDEAVOR TO KEEP FREE FROM ANY OUTSIDE INFORMATION AS WELL. THAT'S VERY IMPORTANT THAT YOU DO THAT. ONE OTHER THING THAT I WILL DO WHEN WE RECONVENE EACH DAY, I AM GOING TO ASK EACH OF YOU, AND IT MIGHT BE COLLECTIVELY, BUT I'M GOING TO PUT THE QUESTION TO YOU WHETHER OR NOT DURING OUR BREAK YOU HAVE, YOU HAVE BEEN EXPOSED TO ANY MEDIA, YOU'VE SEEN MEDIA, YOU'VE HEARD MEDIA, OR ANYTHING THAT YOU MIGHT HAVE EXPOSURE TO, AND I'M GOING TO ASK YOU TO PLEASE REPORT THAT TO THE COURT SO THE COURT AND THE PARTIES CAN HEAR OF ANY INCIDENT AND WE CAN DISCUSS IT. SO I'LL BE ASKING YOU THAT QUESTION EACH DAY. SO I GIVE YOU THAT IN ADVANCE. PLEASE BEAR THAT IN MIND AS YOU CONDUCT YOURSELVES. I'M NOW GOING TO -- I THINK WE CAN RECESS WITH OUR JURY. ANYTHING ELSE FROM THE GOVERNMENT?
MR. SCHENK: NO. THANK YOU.
MR. DOWNEY: NO, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. YOU HAVE BADGES?
COURT CLERK: I DO. I NEED NEW ONES, THOUGH.
JUDGE DAVILA: OKAY. ALL RIGHT. THANK YOU VERY MUCH, LADIES AND GENTLEMEN. IT'S A PLEASURE MEETING YOU. I LOOK FORWARD TO WORKING WITH YOU AS DO THESE LAWYERS IN THIS TRIAL. PLEASE REMEMBER THE ADMONITION. THIS ADMONITION IS ALWAYS IN PLACE. IT IS NOT JUST IN THE COURTROOM, IT'S WITH YOUR PERSONAL LIVES, AT HOME, THE THINGS THAT YOU DO WHEN YOU'RE OUTSIDE OF COURT, THIS WILL STAY WITH YOU. IF YOU NEED TO DISCUSS ANYTHING ABOUT THE TRIAL OR ANY ISSUE, YOU'LL PLEASE CONTACT MS. KRATZMANN AND SHE CAN TAKE CARE OF THAT. ALL RIGHT. THANK YOU VERY MUCH. WE'LL BE IN RECESS. THANK YOU.
COURT CLERK: COURT IS IN RECESS. COURT IS ADJOURNED.
(COURT ADJOURNED AT 10:28 A.M.)