Juror Communications, Health, and Trial Scheduling
38 linesSAN JOSE, CALIFORNIA SEPTEMBER 9, 2021 P R O C E E D I N G S
(ZOOM COURT CONVENED AT 3:33 P.M.)
(JURY OUT AT 3:33 P.M.)
JUDGE DAVILA: THANK YOU. DID MR. LEACH JOIN US YET? IT LOOKS LIKE HE'S TRYING TO.
MR. LEACH: YES, YOUR HONOR, I'M HERE. THANK YOU.
JUDGE DAVILA: ALL RIGHT. THANK YOU. LET'S CALL THIS CASE. THAT'S BEEN DONE. LET ME JUST GET APPEARANCES OF THE PARTIES PLEASE FOR THE RECORD. WHO APPEARS FOR THE GOVERNMENT?
MR. SCHENK: GOOD AFTERNOON, YOUR HONOR. JEFF SCHENK ON BEHALF OF THE UNITED STATES. I'M JOINED BY JOHN BOSTIC, ROBERT LEACH, AND KELLY VOLKAR.
JUDGE DAVILA: GOOD AFTERNOON, EVERYONE. AND FOR THE DEFENSE?
MR. DOWNEY: GOOD AFTERNOON, YOUR HONOR. KEVIN DOWNEY FOR MS. HOLMES. LANCE WADE, AND JOHN CLINE APPEAR AS WELL. AND MS. HOLMES HAS WAIVED HER APPEARANCE.
JUDGE DAVILA: THANK YOU. AND I THINK YOU SAID MR. WADE IS JOINING YOU HERE, AND I SEE HIM HERE.
MR. DOWNEY: YES.
JUDGE DAVILA: THANK YOU FOR THE SHORT NOTICE AND FOR YOUR PARTICIPATION HERE. I WANT TO TALK ABOUT TWO THINGS IN REGARDS TO OUR TRIAL. FIRST OF ALL, I DON'T KNOW, DID YOU RECEIVE A RECENT FORWARD OF AN EMAIL FROM JUROR NUMBER 12 THAT WAS RECEIVED BY MS. KRATZMANN?
MR. DOWNEY: WE RECEIVED ONE FROM JUROR 9, I BELIEVE, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. IT SOUNDS LIKE YOU DID NOT RECEIVE IT. MR. BOSTIC, DID YOU? I THOUGHT YOU WERE SHAKING YOUR HEAD POSITIVE. NO?
MR. BOSTIC: SORRY, YOUR HONOR. WRONG JUROR NUMBER I THINK.
JUDGE DAVILA: WE DID -- I WANT TO TALK ABOUT JUROR NUMBER 12 FIRST. APPARENTLY SHE -- MS. KRATZMANN RECEIVED AN EMAIL FROM JUROR NUMBER 12 ON SEPTEMBER 8TH AT 3:57 P.M. SHE INDICATES TO MS. KRATZMANN THAT -- AND I'LL FORWARD THIS TO COUNSEL. I'LL HAVE IT FORWARDED TO YOU -- THAT "I WORKED FOR KPMG FROM MAY-OCTOBER 2012 AS AN ADMINISTRATIVE ASSISTANT FOR A NUMBER OF PARTNERS. "DURING THIS TIME I WAS NEVER EXPOSED TO ANY INFORMATION OR MATERIAL REGARDING THE HOLMES CASE. "THE FIRST TIME I HEARD ABOUT THIS CASE WAS THE BROADCAST OF THE TELEVISED EPISODES AS I NOTED IN MY QUESTIONNAIRE." AND THEN SHE GOES FURTHER TO ASK INFORMATION ABOUT HOW TO GET TO THE JURY ROOM ON THE FIFTH FLOOR. THIS WAS SENT, AS I SAID, YESTERDAY AT 3:57 P.M. I JUST RECEIVED IT TODAY. BUT ALSO I RECEIVED TODAY AN EMAIL THAT WAS SENT TO MS. KRATZMANN SEPTEMBER 7TH AT 7:12 P.M. THIS WAS IN RESPONSE TO AN EMAIL THAT MS.
KRATZMANN SENT TO ALL OF THE JURORS WITH INSTRUCTIONS ON HOW TO GET IN AND THOSE TYPES OF THINGS, GET IN THE COURTHOUSE, ACCESS THE COURTHOUSE AND THINGS. BUT THIS JUROR ALSO ASKS, "THANK YOU FOR CONFIRMATION FOR TOMORROW CLARIFYING THE TIME WE NEED TO BE AT THE COURTHOUSE. I DO HAVE A QUESTION I THOUGHT OF OVER THE WEEKEND. "I DON'T KNOW IF WE WILL HAVE FURTHER OPPORTUNITIES TO TALK WITH YOU ONCE THE TRIAL BEGINS. "MY QUESTION IS, WILL WE ALSO BE RESPONSIBLE FOR THE (POTENTIAL) SENTENCING PHASE OF THIS TRIAL OR IS IT ALREADY PREDETERMINED BASED ON THE CHARGES?" AND THIS WAS SENT SEPTEMBER 7TH, AND I JUST RECEIVED THIS EMAIL THIS AFTERNOON SO I DIDN'T HAVE A CHANCE TO RAISE IT YESTERDAY WITH THIS JUROR. WHAT I INTEND TO DO WITH THIS JUROR IS AT OUR NEXT SESSION WE'LL CALL THIS JUROR UP AND WE'LL DO SOME EXAMINATION REGARDING BOTH OF THESE QUESTIONS IF THAT MEETS WITH YOUR APPROVAL, COUNSEL. I THINK THAT'S WHAT I'D LIKE TO DO. THAT WOULD BE OUTSIDE OF THE PRESENCE OF THE OTHER JURORS. ANY THOUGHTS, COMMENTS ABOUT THAT?
MR. SCHENK: THAT'S FINE WITH THE GOVERNMENT. THANK YOU.
MR. DOWNEY: THAT'S FINE WITH US AS WELL, YOUR HONOR. DID I UNDERSTAND THAT BOTH OF THOSE COMMUNICATIONS ARE FROM JUROR 12?
JUDGE DAVILA: THAT'S CORRECT.
MR. DOWNEY: OKAY.
JUDGE DAVILA: THAT'S CORRECT. OKAY. SO THAT'S WHAT I'LL DO THE NEXT TIME WE'RE IN SESSION. WE'LL CALL HER UP, AND I'LL FOLLOW UP WITH SOME OF THE THINGS. OF COURSE SHE WAS ADVISED DURING VOIR DIRE AND DURING PREINSTRUCTIONS THAT THE JURORS ARE NOT TO CONSIDER PUNISHMENT AND PERHAPS THAT ANSWERED HER QUESTION. THIS WAS A SEPTEMBER 7TH QUESTION IN REGARDS TO THAT. BUT WE'LL GET CLARIFICATION ON THAT. NOW LET'S MOVE TO JUROR NUMBER 9. THIS IS WHY I REALLY WANTED TO SPEAK WITH YOU. THIS WAS AN EMAIL THAT WAS RECEIVED TODAY ABOUT 1:50 P.M. THE JUROR -- YOU'VE ALL RECEIVED THIS I BELIEVE. AM I ACCURATE ABOUT THAT?
MR. SCHENK: YES.
MR. DOWNEY: YES.
JUDGE DAVILA: SO THIS JUROR INDICATES THAT HE MAY HAVE BEEN EXPOSED TO COVID OVER THE HOLIDAY WEEKEND. HE HAS TEST RESULTS, AWAITING LAB TESTS OR THE CONTACT IS AWAITING LAB TESTS, AND IT APPEARS THAT THOSE SHOULD BE AVAILABLE WITHIN THE NEXT 24 TO 48 HOURS. THIS JUROR INDICATES ASYMPTOMATIC AND A NEGATIVE TEST, OVER-THE-COUNTER TEST, AND HE'LL BE GETTING A LAB TEST SATURDAY. HE ASKS, "SHOULD I COME IN TOMORROW?" AND I HAVE SOME THOUGHTS ABOUT THIS. LET ME JUST SUGGEST MY THOUGHT IS THAT PERHAPS WE SHOULD GO DARK TOMORROW; WAIT FOR THE TEST RESULTS FROM THE CONTACT PERSON THAT WE MIGHT KNOW ABOUT BY TOMORROW, SATURDAY, MAYBE OVER THE WEEKEND; ASK HIM TO REPORT THOSE TO US; AND ASK HIM TO REPORT HIS LAB TESTS. HOPEFULLY HE'S GET THOSE ON MONDAY. THOSE ARE MY THOUGHTS. BUT I'M HAPPY TO HEAR FROM COUNSEL.
MR. SCHENK: THANK YOU, YOUR HONOR. I HAVE A FEW THOUGHTS, BUT LET ME START BY SAYING IF THE COURT WANTS TO BE PARTICULARLY CAUTIOUS, ESPECIALLY AT THE BEGINNING WITH POTENTIAL EXPOSURES, THE GOVERNMENT UNDERSTANDS AND APPRECIATES THAT AND CERTAINLY WILL DEFER TO THE COURT. WE SPENT A LITTLE BIT OF TIME LOOKING AT THE CDC GUIDANCE IN A SITUATION LIKE THIS, AND WHAT WE UNDERSTAND THE CDC GUIDANCE TO SUGGEST IS THAT WE CAN PROCEED WITH TRIAL TOMORROW, AND THAT'S FOR A COUPLE OF REASONS. THE FIRST IS THAT THIS JUROR IS VACCINATED, AND THE CDC GUIDANCE FOR QUARANTINE PURPOSES SEEMS TO HAVE A FORK IN THE ROAD AT THE VACCINATION STATUS OF THE INDIVIDUAL WHO MAY HAVE BEEN EXPOSED. THERE'S ALSO A FORK AT THE QUESTION OF WHETHER THE CONTACT QUALIFIES AS A CLOSE CONTACT. IT'S A LITTLE BIT HARD TO TELL FROM THE COMMUNICATION FROM THIS JUROR WHETHER THAT WOULD QUALIFY AS A CLOSE CONTACT.
IT CERTAINLY IS SAFER TO ASSUME IT'S A CLOSE CONTACT AND THEN PROCEED THROUGH THE ANALYSIS AS THOUGH THIS JUROR EXPERIENCED A CLOSE CONTACT. BUT WE ALSO DON'T KNOW WHETHER THE CONTACT IS POSITIVE. THERE WERE DIFFERENT RESULTS. I THINK THAT'S AN ADDITIONAL REASON WHY THE CDC GUIDANCE SUGGESTS THAT THE JUROR NEED NOT QUARANTINE AT THIS STAGE. THE JUROR DOES NOT HAVE SYMPTOMS, THE JUROR IS VACCINATED, AND THOSE ARE SORT OF THE TWO THRESHOLD QUESTIONS THAT THE CDC GUIDANCE ASKS BEFORE DETERMINING WHETHER QUARANTINING IS NECESSARY. SO I THINK UNDER THE CDC GUIDELINES IT WOULD BE FINE TO PROCEED WITH TRIAL TOMORROW UNLESS THE JUROR BEGINS TO DISPLAY SYMPTOMS. THE ANALYSIS CHANGES IF THE JUROR DISPLAYS SYMPTOMS, AND THE NOTE SEEMS TO SUGGEST THAT THE JUROR HAD NO SYMPTOMS AT THIS POINT, OR OBVIOUSLY IF THE JUROR RECEIVES A POSITIVE TEST THEN THE ANALYSIS CHANGES. BUT I THINK AT THIS STAGE THAT WE'RE IN IT WOULD BE SAFE TO PROCEED WITH TRIAL TOMORROW, BUT I UNDERSTAND THAT THE COURT MIGHT DETERMINE IT'S BETTER ESPECIALLY AT THE BEGINNING TO BE A LITTLE BIT SAFER, TO BE EXTRA CAREFUL, AND IF THAT'S THE DIRECTION THE COURT IS GOING, THE GOVERNMENT IS CERTAINLY NOT GOING TO OBJECT TO THAT.
JUDGE DAVILA: THANK YOU. MR. DOWNEY?
MR. DOWNEY: I WOULD BE GUIDED BY YOUR JUDGMENT, YOUR HONOR. I KNOW YOU HAVE CONSULTED WITH MEDICAL PROFESSIONALS ON BEHALF OF THE NORTHERN DISTRICT, AND I KNOW YOU'RE BALANCING A LOT OF FACTORS, SO HOWEVER THE COURT WANTS TO PROCEED WE'RE FINE WITH.
JUDGE DAVILA: WELL, I DID. THANK YOU. I DID INDICATE AT THE START OF THE TRIAL THAT SHOULD SOMETHING ARISE LIKE THIS I WOULD FOLLOW CDC GUIDELINES, AND MR. SCHENK HAS ACCURATELY REPORTED AND RECITED THE GUIDELINES AS TO WHAT TO DO IN THESE CIRCUMSTANCES. MR. SCHENK HAS ALSO POINTED OUT A VERY IMPORTANT FACT, WHICH IS THAT WE'RE AT THE START OF THE TRIAL, AND WE HAVEN'T FINISHED OUR FIRST WITNESS. MY SENSE, AND I'M BEING PERHAPS OVERLY CAUTIOUS HERE, BUT BECAUSE OF THE TIMING OF THIS REPORT IT PRESENTS, AND I GUESS I'LL PUT IT THIS WAY, AN OPPORTUNITY TO BE OVERLY CAUTIOUS, THAT IS, WE KNOW THAT THE CONTACT IS AWAITING LAB RESULTS, AND IT SEEMS LIKE WE SHOULD HAVE THOSE OVER THE WEEKEND. THIS JUROR REPORTS NO SYMPTOMS, HAS A NEGATIVE OVER-THE-COUNTER TEST, AND THERE'S A LOT OF LITERATURE ON THE ACCURACY OF THOSE TESTINGS AND THE ASSURANCE THAT THOSE TESTS GIVE, AND WE'RE PLEASED THAT HE'S NEGATIVE, BUT HE'S GOING TO GET A LAB TEST, IF YOU WILL, ON SATURDAY WHICH SHOULD YIELD A RESULT. I'M HOPING BECAUSE MONDAY AGAIN, THE TIMING IS IMPORTANT HERE, BECAUSE MONDAY WE'RE DARK, IT MAY BE THAT HE'LL HAVE THE RESULT BY THEN AND THAT WILL ALLOW US TO RECONVENE WITH GREATER CONFIDENCE. I KNOW SOME OF THE JURORS HAVE EXPRESSED IN THEIR QUESTIONNAIRES AND IN OUR DISCUSSIONS SOME CONCERN ABOUT COVID. MY SENSE IS THAT OUT OF AN ABUNDANCE OF CAUTION AND BELTS AND SUSPENDERS, HOWEVER YOU WANT TO DESCRIBE IT, IT MIGHT BE BEST FOR TOMORROW JUST BECAUSE OF THE TIMING TO TAKE ADVANTAGE OF THE TIMING, THE WEEKEND, ON MONDAY, AND PERHAPS GO DARK TOMORROW. I SHOULD ALSO ASK HOW MUCH THIS INCONVENIENCES THE PARTIES AS TO THEIR WITNESS SCHEDULES, TOO? I RECOGNIZE THAT THIS BRINGS INCONVENIENCE. MR. SCHENK, DO YOU HAVE ANY THOUGHTS ON THAT?
MR. SCHENK: YEAH. IT'S DIFFICULT TO QUANTIFY. YOU KNOW, I THINK WE HAVE A LITTLE BIT OF A CONCERN ABOUT JUST THE TOTAL NUMBER OF WITNESSES THAT WE WANT TO CALL OVER THE COURSE OF THE NEXT SEVERAL MONTHS IN THIS TRIAL, BUT I CANNOT TELL THE COURT THAT ONE DAY TOMORROW REALLY IS WHAT MAKES A DIFFERENCE. THAT'S NOT THE CHALLENGE. WE WILL SPEAK WITH OUR WITNESS THAT WAS ON THE STAND YESTERDAY AND CONFIRM THAT EITHER WE WOULD FLY HER BACK OUT MAYBE TONIGHT NOW AND THEN BRING HER BACK FOR TUESDAY OR WHETHER SHE CAN STAY THROUGH TUESDAY. SO IF WE COULD JUST HAVE A SHORT PERIOD OF TIME TO CONFIRM THE SITUATION WITH THIS ONE PARTICULAR WITNESS. BUT I IMAGINE THAT'S SOMETHING THAT WE'RE GOING TO BE ABLE TO WORK AROUND.
JUDGE DAVILA: ALL RIGHT. THANK YOU. THE OTHER PIECE THAT COMES TO MIND IS YOU KNOW I SET OUR SCHEDULE WITH LESS THAN A FULL DAY. THAT WAS INTENTIONAL. YOU HEARD ME TALK ABOUT THE SAFETY PRECAUTIONS THAT I WANTED AND HOPE THAT THAT SCHEDULE BRINGS. ON THE OTHER SIDE, IT ALSO -- THAT SCHEDULE ALSO. WITH THE CONSENT OF OUR JURORS, ALLOWS US TO GO A LITTLE DEEPER INTO THE DAY, AND IT MAY BE THAT WE'LL CAPTURE AN HOUR OR TWO OR THREE OR FOUR OR FIVE PER WEEK GOING AN EXTRA HOUR OR SOMETHING LIKE THAT. SO THERE'S SOME BUILT-IN CUSHION THAT I THOUGHT OF, CANDIDLY, WHEN I SAID WE WILL FINISH ABOUT 2:00 O'CLOCK. I'M HOPEFUL THAT WE CAN -- IF WE'RE DARK TOMORROW, WE CAN RECAPTURE THE FOUR OR FIVE HOURS THAT WE MISS OVER THE COURSE OF THE TRIAL IN SOME OTHER MEASURES. THAT'S WHAT I THINK WE CAN DO. I THINK WE'LL BE ABLE TO ACCOMPLISH THAT. ANY OTHER THOUGHTS FROM ANYONE ELSE ABOUT THIS?
MR. SCHENK: NO. THANK YOU.
MR. DOWNEY: NONE, YOUR HONOR, FROM US. EITHER WAY IS FINE.
JUDGE DAVILA: OKAY. WE ALSO HAVE TO COMMUNICATE WITH JUROR NUMBER 7 ABOUT HER AVAILABILITY. TOMORROW SHE'S GOING TO SPEAK WITH HER EMPLOYER ABOUT WHETHER OR NOT SHE CAN RESCHEDULE HER WORK SO THAT MIGHT AFFORD HER SOME -- IF WE NOTIFY HER TONIGHT THAT WE'RE NOT IN SESSION TOMORROW, MAYBE SHE CAN GET TO WORK EARLIER AND THAT MIGHT BENEFIT THAT CONVERSATION. OF COURSE, THE OVERARCHING FACTOR HERE IS THAT IT'S A LONG TRIAL. WE HAVE FIVE ALTERNATES. IT'S A LITTLE, I DON'T WANT TO SAY OMINOUS, BUT IT'S OF CONCERN THAT BEFORE WE FINISH THE FIRST WITNESS WE HAVE AN ISSUE. AND WE KNOW, AND WE'RE ALL READING THE NEWS FROM ACROSS THE COUNTRY, BUT FOR OUR SAKE AROUND THE COUNTY HERE WE'RE STILL HIGH NUMBERS, AND WE HOPE EVERYBODY CONTINUES TO BE SAFE. I THINK OUT OF AN ABUNDANCE OF CAUTION I'M GOING TO EXERCISE MY DISCRETION AND WE'LL BE DARK TOMORROW. FRIDAY WE WILL BE DARK. WE'LL CONTACT THIS JUROR NUMBER 9, AND KEEP IN CONTACT WITH HIM REGARDING TEST RESULTS OF HIS OWN AND HIS CONTACT. WE HOPE THOSE COME BACK NEGATIVE. AND WE'LL KEEP ALL OF YOU INFORMED. SO OUR NEXT SESSION THEN WOULD BE SEPTEMBER 14TH, SEPTEMBER 14TH. WE'LL START AT 9:00 O'CLOCK. THAT'S WHAT I'LL HAVE MS. KRATZMANN INDICATE. WE'LL BRING IN JUROR NUMBER 12 IN ADVANCE OF EVERYONE ELSE AND TALK WITH HER ABOUT THE ISSUES, AND I'LL HAVE THAT EMAIL FORWARDED TO YOU. I'M SORRY YOU DON'T HAVE IT NOW. BUT WE'LL GET THAT TO ALL PARTIES AND WE'LL TALK WITH HER. WE'LL RECEIVE INFORMATION FROM JUROR NUMBER 7 AS TO WHETHER OR NOT SHE WAS ABLE TO RESCHEDULE SUCH THAT SHE COULD REMAIN AS A PARTICIPANT, AS A JUROR IN THIS CASE. AND IF I HEAR ANYTHING ELSE THROUGH MS. KRATZMANN, I'LL CERTAINLY PASS THAT ALONG TO YOU. ANYTHING ELSE?
MR. SCHENK: NO. THANK YOU, YOUR HONOR.
MR. DOWNEY: NO.
JUDGE DAVILA: ALL RIGHT. THANK YOU VERY MUCH FOR BEING AVAILABLE ON SHORT NOTICE. THAT'S THE ORDER OF THE COURT. WE'LL BE IN TOUCH WHEN I GET INFORMATION THROUGH MS. KRATZMANN, AND IF ANYTHING ELSE COMES UP WE'LL MEET AGAIN. THAT'S THE BENEFIT OF ZOOM I SUPPOSE. ALL RIGHT. THANK YOU VERY MUCH. HAVE A GOOD LONG WEEKEND. THANK YOU.
COURT CLERK: COURT IS IN RECESS.
(COURT CONCLUDED AT 3:49 P.M.)