Modified Allen Charge and Reasonable-Doubt Instruction
67 linesSAN JOSE, CALIFORNIA JANUARY 3, 2022 P R O C E E D I N G S
(COURT CONVENED AT 10:47 A.M.)
(JURY OUT AT 10:47 A.M.)
JUDGE DAVILA: WE ARE ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. WE ARE OUTSIDE OF THE PRESENCE OF THE JURY. THE JURY CONTINUES TO DELIBERATE. WE RECEIVED A NOTE FROM THE JURY. THIS IS NOTE NUMBER 3. IT WAS RECEIVED AT 9:55. MS. KRATZMANN WILL PROVIDE COUNSEL THE NOTE NOW.
COURT CLERK: (HANDING.) COUNSEL, I'M GOING TO GIVE YOU A MOMENT TO DISCUSS AT YOUR TABLES, AND THEN I'LL ASK FOR ANY COMMENTS THAT YOU MIGHT HAVE.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: COUNSEL, LET ME ASK THIS, WOULD YOU BENEFIT FROM ME STEPPING DOWN AND HAVING -- GIVING YOU SOME TIME?
MR. LEACH: NOT FROM THE GOVERNMENT, YOUR HONOR. WE THINK WE HAVE A POSITION BASED ON THE NOTE. WE'RE HAPPY TO CONFER WITH THE DEFENSE.
JUDGE DAVILA: OKAY. ALL RIGHT.
MR. DOWNEY: YOUR HONOR, I THINK THAT -- LET US TAKE AN OPPORTUNITY TO CONFER WITH THE GOVERNMENT, BUT I DON'T THINK THAT WILL TAKE MORE THAN A FEW MOMENTS. I DON'T KNOW IF YOUR HONOR WANTS TO STEP DOWN.
JUDGE DAVILA: I'M HAPPY TO STAY HERE IF YOU'RE COMFORTABLE WITH THAT. THAT'S FINE.
(DISCUSSION AMONGST ALL COUNSEL OFF THE RECORD.)
MR. DOWNEY: I THINK WE'RE READY, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. I DO HAVE THE NOTE. I'LL READ IT AT THIS TIME. IT'S DATED TODAY'S DATE. IT IS TIME STAMPED 9:55. IT IS NOTE NUMBER 3. AND THE NOTE READS AS FOLLOWS: "WE ARE UNABLE TO COME TO A UNANIMOUS VERDICT ON 3 OF THE COUNTS." IT'S SIGNED BY A JUROR. I WANTED TO DIRECT COUNSEL TO 7.7. I THINK YOU'VE REFERENCED THAT ALREADY PERHAPS. AND I'M HAPPY TO HEAR FROM THE PARTIES. HOW YOU WOULD LIKE TO PROCEED.
MR. LEACH: GOOD MORNING, YOUR HONOR. THANK YOU. MAY I REMOVE MY MASK?
JUDGE DAVILA: PLEASE. YES, PLEASE.
MR. LEACH: WE AGREE WITH THE COURT'S INCLINATION THAT THE COURT SHOULD GIVE MODEL INSTRUCTION 7.7. I WOULD RECOMMEND IN THE FIRST SENTENCE RATHER THAN SAYING "IN THIS CASE," AND REPLACE THAT WITH "ON THREE OF THE COUNTS," AS REFLECTED IN THE NOTE. AND OUR POSITION IS THAT THE COURT SHOULD GIVE INSTRUCTION 7.7 MODIFIED TO THE NUMBER OF COUNTS AND PROVIDE NO OTHER INSTRUCTIONS AT THIS POINT.
MR. DOWNEY: YOUR HONOR, IF YOU'RE TO GIVE 7.7, WE ASK THAT THE COURT GIVE THE INSTRUCTION AS TO BURDEN OF PROOF AS CONTEMPLATED UNDER UNITED STATES VERSUS QUINTERO-BARRAZA, 78 F.3D 1344 AT 1350, THAT'S THE NINTH CIRCUIT IN 1995, ALTHOUGH IT'S NOT MANDATORY. THE NINTH CIRCUIT SUGGESTS IT'S HELPFUL TO COUNTERACT ANY COERCIVE EFFECT. AS TO GIVING 7.7 AT THIS STAGE, I THINK THE JURORS ARE DISTINGUISHING BETWEEN COUNTS. AS I READ THE NOTE, I THINK THEY'RE DISTINGUISHING BETWEEN COUNTS AS TO WHICH THEY CAN AND CANNOT REACH A VERDICT. I THINK 7.7 IS PROBABLY UNNECESSARY AND RUNS THE RISK OF BEING COERCIVE. SO I UNDERSTAND THAT 7.7 IS GIVEN IN CASES OF DEADLOCK, BUT GIVEN THE LENGTH OF DELIBERATIONS ALREADY AND THE LENGTH OF TRIAL, ET CETERA, WE WOULD OBJECT TO THE COURT GIVING 7.7.
JUDGE DAVILA: OKAY. THANK YOU.
MR. LEACH: YOUR HONOR, WE'VE RECEIVED TWO NOTES FROM THE JURY. ONE WAS, I THINK, TO REPLAY CERTAIN TESTIMONY, AND I THINK THE OTHER ONE WAS NOT TERRIBLY SUBSTANTIVE. THIS IS ONLY THE THIRD TIME WE HAVE HEARD FROM THEM. I THINK THE AMOUNT OF TIME THAT THEY HAVE BEEN WORKING HARD IS A REASON TO GIVE THE INSTRUCTION, NOT TO REFRAIN FROM GIVING THE INSTRUCTION. I THINK THE NINTH CIRCUIT HAS PROPOSED LANGUAGE THAT IS NOT COERCIVE, AND GIVEN THE LENGTH OF THE TRIAL AND THE ABSENCE OF ANY DISSENSION TO DATE, COUNSEL IS IN FAVOR OF GIVING IT, AND WE WOULD URGE THE COURT TO DO SO.
JUDGE DAVILA: ALL RIGHT. THANK YOU. THE -- I HAVE 7.7 IN FRONT OF ME. I THINK -- I HEARD YOU INDICATE A QUOTE ON THE FIRST LINE, AND I'M NOT SURE -- PERHAPS WE DON'T HAVE THE SAME COPY.
MR. LEACH: I'M WORKING FROM THE ELECTRONIC VERSION ON THE NINTH CIRCUIT'S WEBSITE, YOUR HONOR. AND WHAT I'M LOOKING AT READS, "MEMBERS OF THE JURY, YOU'VE REPORTED THAT YOU HAVE BEEN UNABLE TO REACH A UNANIMOUS VERDICT IN THIS CASE." I WOULD REPLACE THE WORDS "IN THIS CASE" WITH "ON THREE OF THE COUNTS."
JUDGE DAVILA: ALL RIGHT. THANK YOU. MR. DOWNEY, WHAT ARE YOUR OBJECTIONS TO THE COURT GIVING 7.7 NOW? AND WE'LL NOTE THAT I BELIEVE THIS IS DAY SEVEN OF THE DELIBERATIONS. OF COURSE THE FIRST DAY WAS ABOUT 30 MINUTES I THINK, THAT FRIDAY THE 17TH, I THINK IT WAS ONLY ABOUT 30 MINUTES. THE RECORD SHOULD REFLECT, AS I'VE SAID, THE QUESTION WAS PROVIDED AT 9:55, AND I BELIEVE THE JURORS BEGAN THEIR DELIBERATIONS TODAY ABOUT 8:30, MAYBE A LITTLE AFTER THAT, AND THEY CONTINUE TO DELIBERATE NOW. BUT MR. DOWNEY?
MR. DOWNEY: WELL, YOUR HONOR, I THINK JUST TO FRAME THE TIMEFRAME CORRECTLY, I THINK THIS IS THE EIGHTH DAY IF WE COUNT THE TAIL END OF THE DAY WHERE THEY BEGAN DELIBERATING ON A FRIDAY AFTERNOON. I THINK THE NOTE REFLECTS THAT THEY ARE CAPABLE OF DISTINGUISHING BETWEEN COUNTS, AND IT'S NOT A NOTE THAT IS ISSUED, I THINK, TO US LIGHTLY. THEY'VE BEEN AT IT OVER A VERY LONG PERIOD OF TIME, EVEN THOUGH IT'S -- THE COURT IS CHARACTERIZING IT AS ONLY THE EIGHTH DAY, THEY HAVE ACTUALLY BEEN DELIBERATING SINCE THE AFTERNOON OF THE 17TH. EXHAUSTION IS ALWAYS A FACTOR THAT INCREASES THE RISK WITH RESPECT TO AN INSTRUCTION THAT CAN BE HEARD AS COERCIVE. SO I THINK I WOULD SAY THE LENGTH OF DELIBERATIONS, NOT ONLY IN TERMS OF NUMBER OF DAYS, BUT THE PERIOD OVER WHICH DELIBERATIONS HAVE TAKEN PLACE, RUNS THE RISK OF COERCION. BUT IF THE COURT IS INCLINED TO GIVE THE INSTRUCTION, I WOULD JUST URGE THE COURT, YOU KNOW, 18 DAYS OUT FROM HAVING GIVEN INSTRUCTIONS, THAT THE COURT REITERATE THE APPROPRIATE BURDEN OF PROOF IN THE INSTRUCTION.
JUDGE DAVILA: THANK YOU. WE DO NOTE THAT THIS JURY HAS AT LEAST THEIR INDICATIONS WHERE THEY TOOK LAST WEDNESDAY -- EXCUSE ME, LAST WEDNESDAY WAS THE LAST DAY THAT THEY DELIBERATED, I BELIEVE, AND THEY CHOSE TO TAKE THE THURSDAY BEFORE THE HOLIDAY OFF. OF COURSE THEY WERE PERMITTED TO DO SO. THEY SET THEIR OWN SCHEDULE. SO THEY'RE NOW JUST BACK FROM THAT BREAK THAT THEY SET THEMSELVES. MR. DOWNEY, OF COURSE THE COURT MUST MAKE, AND I WILL MAKE, SOME INQUIRY AS TO THIS NOTE. THE QUESTION IS SHOULD THE COURT GIVE 7.7 NOW OR SHOULD THE COURT MAKE INQUIRY RECOGNIZING THE NOTE AND MAKE INQUIRY NOW AS TO -- FROM THE FOREPERSON AS TO HIS FEELINGS ON THE DELIBERATION STATUS?
MR. DOWNEY: WELL, YOUR HONOR, I THINK IF THE COURT IS INCLINED TO GIVE 7.7, I THINK INQUIRY IS APPROPRIATE AND MAY EVEN BE REQUIRED TO DETERMINE THE EXTENT OF DEADLOCK. I'M INFERRING FROM THE CONTEXT SOMETHING ABOUT THE NOTE, BUT I CERTAINLY THINK IF THE COURT THINKS IT DOESN'T CONVEY WHAT I READ IT TO CONVEY, I THINK -- THE COURT IS, I THINK, OBLIGATED UNDER NINTH CIRCUIT LAW TO MAKE SOME FORM OF INQUIRY.
JUDGE DAVILA: RIGHT. I AGREE WITH YOU. I THINK I DO HAVE TO. THE JURY HAS INDICATED IN THEIR NOTE THAT THERE ARE THREE COUNTS THAT THEY'RE UNABLE TO REACH UNANIMOUS VERDICT ON. NOW, I COULD GIVE THE ALLEN WITH THE PRESUMPTION OF INNOCENCE INSTRUCTION. AGAIN, MR. LEACH, DO YOU HAVE ANY THOUGHTS ON THAT?
MR. LEACH: I DON'T THINK IT'S REQUIRED, YOUR HONOR, BUT I CERTAINLY DON'T THINK IT WOULD BE ERROR TO REMIND THEM THAT THEY MUST BE UNANIMOUS AND MUST FIND THE ELEMENTS BEYOND A REASONABLE DOUBT. I WOULD ALSO NOTE TO THE COURT THAT THERE IS A MODEL INSTRUCTION 7.8 FOR A POST-ALLEN INQUIRY THAT SUGGESTS --
JUDGE DAVILA: RIGHT.
MR. LEACH: -- QUESTIONS THAT, IF THE COURT IS GOING TO VOIR DIRE NOW, MIGHT BE APPROPRIATE.
JUDGE DAVILA: WELL, THAT'S THE, THAT'S REALLY THE QUESTION HERE THAT THE COURT HAS, AND I WANT TO GET YOUR THOUGHTS ON THAT. THE COURT COULD -- I KNOW 7.8 HAS THE POST-ALLEN QUESTIONS. OFTENTIMES THOSE QUESTIONS ARE USED AT THE FIRST INSTANCE OF RECEIVING A NOTE LIKE THIS.
MR. DOWNEY: THAT'S RIGHT, YOUR HONOR. AND I THINK, UNLESS I'M MISREADING THE MODEL INSTRUCTIONS, I THINK THERE'S A MODEL RULE THAT CONTEMPLATES A PRE-ALLEN INQUIRY IN 54(A).
JUDGE DAVILA: AND I COULD -- WHEN I LOOK AT THIS, I UNDERSTAND THE COERCIVE CONSTRAINTS ABOUT GIVING ALLEN, AND NONE OF US WANT TO IN ANY WAY SUGGEST TO THE JURY THAT -- ANYTHING COERCIVE TO THE JURY IN REGARDS TO THEIR DELIBERATIONS. WHEN I LOOK AT 7.8, IT DOES HAVE, AND I THINK WE'RE LOOKING AT THE SAME PAGE, IT DOES HAVE THE COLLOQUY THAT I THINK LOOKING AT THAT COLLOQUY IS -- IT CUTS TO THE CHASE, IF YOU'LL PARDON ME FOR PUTTING IT THAT WAY, IT ASKS THE FOREPERSON TO SPEAK TO THE STATUS AND STATE OF THE DELIBERATIONS AT THIS TIME. MR. LEACH?
MR. LEACH: I DON'T THINK IT'S ERROR, YOUR HONOR. I DO THINK THAT IT'S EARLY IN THE DAY. THIS IS THE FIRST NOTE THAT WE'VE GOTTEN INDICATING THAT THERE'S SOME DISSENSION ON ANY COUNTS. THIS WAS A LONG TRIAL. BOTH SIDES HAVE AN INTEREST IN RESOLUTION ONE WAY OR ANOTHER ON ALL OF THE COUNTS, AND I THINK THE LANGUAGE IN 7.7 IS CAREFULLY TAILORED TO NOT BE COERCIVE. AND SO I DON'T SEE ANY RISK OF COERCION WITHOUT THAT TYPE OF INQUIRY, BUT IT CERTAINLY WOULDN'T -- IT CERTAINLY COULD AID THE INQUIRY. IT WOULDN'T BE ERROR FOR THE COURT TO ASK THE 7.8 QUESTIONS NOW RATHER THAN AFTER THE ALLEN CHARGE.
MR. DOWNEY: YOUR HONOR, WE CERTAINLY DON'T OBJECT TO THE INQUIRY. I MIGHT NOTE THAT I THINK THE REQUIREMENT AS WELL IS THAT THE JURY BE POLLED AS YOUR HONOR I THINK KNOWS.
JUDGE DAVILA: WELL, WHEN THEY -- YOU'RE TALKING ABOUT WHEN A VERDICT IS RECEIVED OR INDIVIDUALLY? MY INTENT WOULD BE TO ASK THEM THE 7.8 LANGUAGE AT SOME POINT AND THEN TO ASK THE JURORS IF THEY'RE IN AGREEMENT WITH WHATEVER THAT STATEMENT IS.
MR. DOWNEY: THAT'S RIGHT, THAT'S RIGHT, YOUR HONOR. THAT IS WHAT I'M CONVEYING.
JUDGE DAVILA: RIGHT. THE SECOND QUESTION IS IF THE JURY, DEPENDING ON THEIR ANSWER, THEY'LL GO BACK AND I'LL ASK THEM TO LET US KNOW WHEN AND IF THEY'RE ABLE TO RETURN A VERDICT. IF THERE IS -- IF IT REMAINS AS IT SEEMS IN THIS NOTE, THEN THE QUESTION IS WHEN AND SHOULD THE COURT DECLARE A MISTRIAL AS TO ANY COUNTS WHERE THERE'S A LACK OF UNANIMITY? YOUR THOUGHTS?
MR. DOWNEY: WELL, YOUR HONOR, I HAVE MADE MY POSITION CLEAR AS TO RECHARGING THEM. I THINK IF THEY COME BACK IN RESPONSE TO THE INQUIRY AND INDICATE THAT THEY'RE WHERE I THINK THEY ARE BASED ON MY READING OF THE NOTE, THEN I THINK WE PROBABLY HAVE A MISTRIAL AS TO THOSE COUNTS.
MR. LEACH: I DON'T HAVE AN IMMEDIATE REACTION, YOUR HONOR, BUT I THINK IT WOULD BE APPROPRIATE TO TAKE THE VERDICT AND CONFIRM THAT THEY'RE DEADLOCKED ON THOSE THREE COUNTS.
JUDGE DAVILA: YES.
MR. LEACH: BUT THAT'S SOMETHING THAT I HAVEN'T CONSIDERED BEFORE COMING UP HERE.
JUDGE DAVILA: WELL, WE'LL SEE WHAT THE VERDICT FORM SAYS OF COURSE, AND THEN THE COURT INTENDS TO POLL THE JURY AS TO WHATEVER VERDICTS THEY HAVE REACHED DEPENDING ON HOW THE FORM IS COMPLETED. WELL, LET ME DO THIS, LET ME -- MR. DOWNEY, IF THE COURT READS 7.7, YOU'RE ASKING THAT THE COURT ALSO READ JURY INSTRUCTION NUMBER 2?
MR. DOWNEY: WOULD YOU GIVE ME A MOMENT, YOUR HONOR? LET ME JUST CONSULT WITH --
JUDGE DAVILA: OF COURSE.
(DISCUSSION OFF THE RECORD.)
MR. DOWNEY: THAT'S RIGHT, YOUR HONOR, ON PAGE 3.
MR. LEACH: FORGIVE ME, YOUR HONOR. WHAT NUMBER WAS THAT?
JUDGE DAVILA: IT WAS JURY INSTRUCTION NUMBER 2, AND IT'S FOUND ON PAGE 3 OF THE FINAL JURY INSTRUCTIONS.
MR. LEACH: YES. NO OBJECTION.
JUDGE DAVILA: ALL RIGHT. ANY OBJECTION TO THAT, MR. DOWNEY?
MR. DOWNEY: NO, YOUR HONOR. BUT I WOULDN'T OBJECT TO 3.2 EITHER IN THE MODEL.
JUDGE DAVILA: I'M SORRY, 3.2 DID YOU SAY?
MR. DOWNEY: AND I THINK WHAT WE HAVE DONE IS PRETTY CLOSE TO THAT. SO JURY INSTRUCTION 2 IS FINE FROM OUR PERSPECTIVE.
JUDGE DAVILA: ALL RIGHT. ALL RIGHT. THANK YOU. ALL RIGHT. THANK YOU. I WILL READ 7.7 WITH MR. LEACH'S SUGGESTED MODIFICATIONS. THE FIRST LINE WE WILL MODIFY "TO REACH A UNANIMOUS VERDICT ON THREE OF THE COUNTS." I'LL READ THE FOLLOWING PARAGRAPHS, AND THEN I'LL CONCLUDE BY INFORMING THE JURY THAT I'M GOING TO READ JURY INSTRUCTION NUMBER 2. AND THEN I'LL ASK THEM THEN TO RETURN TO THE JURY ROOM AND CONTINUE DELIBERATIONS, AND WE'LL AWAIT ANY FURTHER WORD FROM THE JURY. ALL RIGHT. LET'S BRING THEM IN. THANK YOU.
MR. LEACH: THANK YOU, YOUR HONOR.
(PAUSE IN PROCEEDINGS.)
(JURY IN AT 11:11 A.M.)
JUDGE DAVILA: THANK YOU. PLEASE BE SEATED. WE ARE ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. THE JURY IS PRESENT. GOOD MORNING, LADIES AND GENTLEMEN. I JUST WANT TO CONFIRM THAT THE COURT DID RECEIVE NOTE NUMBER 3 FROM THE JURY. THE NOTE READS: "WE ARE UNABLE TO COME TO A UNANIMOUS VERDICT ON 3 OF THE COUNTS." LADIES AND GENTLEMEN, WHAT I WOULD LIKE TO DO IS TO READ TO YOU AN ADDITIONAL INSTRUCTION, ACTUALLY TWO, AND THEN I'M GOING TO ASK YOU TO CONTINUE DELIBERATIONS AFTER YOU HEAR THESE. SO PLEASE DO LISTEN CLOSELY. MEMBERS OF THE JURY, YOU HAVE REPORTED THAT YOU HAVE BEEN UNABLE TO REACH A UNANIMOUS VERDICT ON THREE OF THE COUNTS. I HAVE DECIDED TO SUGGEST A FEW ADDITIONAL THOUGHTS TO YOU. AS JURORS, YOU HAVE A DUTY TO DISCUSS THE CASE WITH ONE ANOTHER AND TO DELIBERATE IN AN EFFORT TO REACH A UNANIMOUS VERDICT IF EACH OF YOU CAN DO SO WITHOUT VIOLATING YOUR INDIVIDUAL JUDGMENT AND CONSCIENCE.
EACH OF YOU MUST DECIDE THE CASE FOR YOURSELF BUT ONLY AFTER YOU CONSIDER THE EVIDENCE IMPARTIALLY WITH YOUR FELLOW JURORS. DURING YOUR DELIBERATIONS, YOU SHOULD NOT HESITATE TO REEXAMINE YOUR OWN VIEWS AND CHANGE YOUR OPINION IF YOU BECOME PERSUADED THAT IT IS WRONG. YOU SHOULD NOT, HOWEVER, CHANGE AN HONEST BELIEF AS TO THE WEIGHT OR EFFECT OF THE EVIDENCE SOLELY BECAUSE OF THE OPINIONS OF YOUR FELLOW JURORS OR FOR THE MERE PURPOSE OF RETURNING A VERDICT. I ALSO REMIND YOU THAT IN YOUR DELIBERATIONS YOU ARE NOT -- YOU ARE -- EXCUSE ME. LET ME READ THAT AGAIN. I ALSO REMIND YOU THAT IN YOUR DELIBERATIONS YOU ARE TO CONSIDER THE INSTRUCTIONS THAT I HAVE GIVEN YOU AS A WHOLE. YOU SHOULD NOT SINGLE OUT ANY PART OF ANY INSTRUCTION, INCLUDING THIS ONE, AND IGNORE OTHERS. THEY ARE ALL EQUALLY IMPORTANT. NOW, WHAT I HAVE JUST SAID IS NOT MEANT TO RUSH YOU OR PRESSURE YOU INTO AGREEING ON A VERDICT. TAKE AS MUCH TIME AS YOU NEED TO DISCUSS THINGS. THERE IS NO HURRY.
I ALSO WANT TO READ TO YOU JURY INSTRUCTION NUMBER 2, WHICH READS, THE INDICTMENT IS NOT EVIDENCE. MS. HOLMES, THE DEFENDANT, HAS PLEADED NOT GUILTY TO THE CHARGES. MS. HOLMES IS PRESUMED TO BE INNOCENT UNLESS AND UNTIL THE GOVERNMENT PROVES HER GUILTY BEYOND A REASONABLE DOUBT. IN ADDITION, MS. HOLMES DOES NOT HAVE TO TESTIFY OR PRESENT ANY EVIDENCE. MS. HOLMES DOES NOT HAVE TO PROVE INNOCENCE. THE GOVERNMENT HAS THE BURDEN OF PROVING EVERY ELEMENT OF THE CHARGES BEYOND A REASONABLE DOUBT. LADIES AND GENTLEMEN, I'LL NOW ASK YOU TO NOW RETURN TO THE JURY ROOM AND CONTINUE YOUR DELIBERATIONS WITH THESE ADDITIONAL COMMENTS IN MIND. YOU CAN NOTIFY THE COURT OF ANY ADDITIONAL QUESTIONS OR ANY OTHER POSITIONS YOU HAVE WHEN APPROPRIATE. SO I'LL ASK YOU TO RETIRE NOW IF YOU WOULD, PLEASE. MS. KRATZMANN, IF YOU COULD.
(JURY OUT AT 11:15 A.M.).
JUDGE DAVILA: ALL RIGHT. PLEASE BE SEATED. THANK YOU. THE RECORD SHOULD REFLECT THAT THE JURY HAS LEFT. LET ME ASK THE PARTIES, THE GOVERNMENT, ANY OBJECTION TO THE COURT READING THE 7.7 AND THE JURY INSTRUCTION NUMBER 2?
MR. LEACH: NO, YOUR HONOR.
JUDGE DAVILA: MR. DOWNEY?
MR. DOWNEY: YOUR HONOR, YOU'VE READ CONSISTENT WITH MODEL 7.7. SO SUBJECT TO OUR PRIOR DISCUSSIONS, NOTHING FURTHER.
JUDGE DAVILA: ALL RIGHT. THANK YOU. ALL RIGHT. WE'LL BE IN RECESS. THANK YOU.
COURT CLERK: COURT IS IN RECESS. (RECESS TAKEN AT 11:16 A.M. PENDING THE DELIBERATIONS OF THE JURY.) AFTERNOON SESSION
(COURT CONVENED AT 3:19 P.M.)