Jury Note No. 4 and Deadlock Procedure Conference
47 linesJUDGE DAVILA: THANK YOU. PLEASE BE SEATED. WE'RE BACK ON THE RECORD. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. WE'RE OUTSIDE OF THE PRESENCE OF THE JURY. I DID RECEIVE NOTE NUMBER 4. AND I'LL ASK OUR COURTROOM DEPUTY TO PROVIDE COPIES TO COUNSEL.
COURT CLERK: YES, YOUR HONOR. (HANDING.)
JUDGE DAVILA: LET ME READ THE NOTE INTO THE RECORD. IT'S DATED 1/3. IT'S 2:20. IT'S NOTE NUMBER 4. AND THE NOTE READS AS FOLLOWS: "AFTER CONSIDERING ALL EVIDENCE AND GIVEN INSTRUCTIONS, WE HAVE CONCLUDED THAT WE CANNOT REACH A UNANIMOUS VERDICT ON 3 CHARGES." IT'S SIGNED BY A JUROR. COUNSEL, MY THOUGHT IS TO BRING OUR JURY PANEL IN. THE COURT, OF COURSE, HAS GIVEN THE ALLEN INSTRUCTION, MODIFIED ALLEN INSTRUCTION, NINTH CIRCUIT MODEL INSTRUCTION. MY INTENT WOULD BE TO HAVE THE JURY RETURN TO THE COURTROOM, AND I WOULD MAKE INQUIRY OF THE FOREPERSON. I WOULD THEN IN SOME MANNER POLL THE REMAINING MEMBERS OF THE JURY TO DETERMINE WHETHER OR NOT THE QUESTION -- THEY AGREE WITH THE STATEMENT THAT IS LISTED IN THIS QUESTION. IF THEY DO, THEN IT WOULD BE MY INTENT TO ASK THEM, IF THEY DON'T HAVE THE VERDICT FORM WITH THEM, TO ASK THEM TO RETURN TO THE JURY ROOM AND THEN LET US KNOW WHAT THEY HAVE COMPLETED THE VERDICT FORM AND WE CAN THEN CALL THEM BACK FOR ANY DECISION THAT THEY'VE MADE. ANY COMMENT FROM THE GOVERNMENT? FROM THE DEFENSE?
(DISCUSSION AMONGST COUNSEL OFF THE RECORD.)
JUDGE DAVILA: MR. DOWNEY?
MR. DOWNEY: AS A PRACTICAL MATTER, I THINK THE COURT'S APPROACH GENERALLY SOUNDS CORRECT TO US. BUT WILL THE COURT BE DECLARING A MISTRIAL AS TO THOSE THREE COUNTS AT THIS TIME OR HOW DO -- OBVIOUSLY WE DON'T KNOW THE COUNTS, NOR DO WE WISH TO INQUIRE --
JUDGE DAVILA: CORRECT.
MR. DOWNEY: -- AND NOR DOES THE COURT WISH TO INQUIRE INTO THAT. SO I JUST WANTED TO INQUIRE AS TO HOW WE --
JUDGE DAVILA: NO. FAIR QUESTION. MY SENSE IS THAT WE WOULD, ASSUMING THE COLLOQUY GOES AS I'VE SUGGESTED, AND I WOULD ASK THEM TO COMPLETE THE VERDICT FORM AND RETURN, LET US KNOW WHEN THEY HAVE A COMPLETED VERDICT FORM. I WOULD HAVE THEM COME BACK. I WOULD ASK MS. KRATZMANN TO READ THE VERDICT FORM. IF THERE ARE THREE COUNTS THAT ARE NOT RESPONDED TO, THEN AT THAT POINT I WOULD RECORD THE VERDICTS IF THERE ARE ANY AS TO THOSE COUNTS. THE REMAINING VERDICTS WOULD BE SUBJECT TO ANY FUTURE MOTION FOR EITHER MISTRIAL OR ANY OTHER ACTION THAT WOULD BE TAKEN. MY SENSE IS THAT AFTER THE -- I THINK I'VE TOLD YOU THIS PREVIOUSLY, AFTER THE VERDICTS ARE RECORDED AND I RELEASE THE JURY, I WOULD, I WOULD INVITE THEM BACK TO PERSONALLY THANK THEM AND TO ASK THEM IF THERE'S ANYTHING THE COURT -- IF THEY HAVE SUGGESTIONS FOR THE COURT, FOR ANYTHING THAT THE COURT COULD DO TO ENHANCE A JUROR EXPERIENCE. I WOULD TAKE A BREAK AND COME BACK TO TALK WITH ALL OF US ABOUT NEXT STEPS. AND AT THAT POINT I'LL MAKE INQUIRY AS TO ANY REMAINING COUNTS AS TO ANY MOTIONS AS TO THOSE COUNTS THAT EITHER PARTY WISHES TO MAKE, AND THEN THE COURT WILL MAKE A DECISION AS TO WHAT TO DO ABOUT ANY REMAINING COUNTS AND SET ANY NEW DATES AS NEEDED. ANY COMMENT ON THAT?
(DISCUSSION OFF THE RECORD.)
MR. DOWNEY: IN THAT SENSE, YOUR HONOR --
JUDGE DAVILA: EXCUSE ME.
MR. DOWNEY: -- WHEN WOULD YOUR HONOR INTEND TO DISCHARGE THE JURY?
JUDGE DAVILA: WELL, IT WOULD BE AS SOON AS THE VERDICTS ARE RECORDED.
MR. DOWNEY: I THINK THERE WAS ONE MATTER WE WANTED TO ADDRESS WITH THE JURY WHICH WE'VE RAISED WITH YOUR HONOR, SO I WOULD REQUEST THAT THE JURY NOT BE DISCHARGED UNTIL AFTER THAT MATTER IS ADDRESSED.
JUDGE DAVILA: WELL, I THINK WE SHOULD TALK ABOUT THAT. I'M NOT SURE OF THE NECESSITY OF THAT GIVEN THE STATE OF RECENT DEVELOPMENTS, LET ME PUT IT THAT WAY, AND I'M NOT -- I'M JUST NOT CERTAIN THAT THAT IS SOMETHING, BECAUSE OF THE RECENT DEVELOPMENTS, I'M NOT CERTAIN THAT THAT IS REQUIRED, MR. DOWNEY.
MR. DOWNEY: WELL, I THINK WHAT YOUR HONOR IS REFERRING TO, WE DISCUSSED THAT POSSIBILITY PREVIOUSLY, AND AS I SAID AT THAT TIME, I THINK THAT'S OBVIOUSLY A NECESSARY BUT NOT SUFFICIENT STEP TO ADDRESS THE ISSUE WE'RE CONFRONTING.
JUDGE DAVILA: RIGHT.
MR. DOWNEY: SO I WOULD JUST MAKE THE REQUEST THAT THE JURY NOT BE DISCHARGED AND WE UNDERTAKE APPROPRIATE PROCEDURES TO ADDRESS THE MATTER.
JUDGE DAVILA: OKAY. THANK YOU.
MR. LEACH: THANK YOU, YOUR HONOR. THE GOVERNMENT HAS NO OBJECTION PROCEEDING IN THE WAY THAT THE COURT HAS DESCRIBED.
JUDGE DAVILA: OKAY. ALL RIGHT. AND NOT THE WAY THAT MR. DOWNEY SUGGESTED?
MR. LEACH: CORRECT. WE'RE NOT SEEKING THAT, AND AGREE WITH THE COURT'S PROPOSED COURSE OF ACTION. SO, YES, WE'RE FINE WITH THAT APPROACH.
JUDGE DAVILA: OKAY. ALL RIGHT. MR. DOWNEY, ANYTHING ELSE?
MR. DOWNEY: YOUR HONOR, I JUST WANT TO MAKE CERTAIN THAT I THINK THIS IS AN ASSUMPTION THAT WILL GUIDE THE COURT'S INTERACTIONS WITH THE JURY, BUT I THINK IT'S FAIR TO SAY THAT WE DON'T KNOW WHAT THE STATUS IS OF THE JURY'S DELIBERATION WITH REGARD TO THE REMAINING EIGHT COUNTS.
JUDGE DAVILA: THAT'S RIGHT.
MR. DOWNEY: AND SO IN THE SEQUENCE, WOULD THE APPROPRIATE TIME TO ADDRESS THE INABILITY TO REACH A VERDICT WITH THE KIND OF INQUIRY THAT THE COURT CONTEMPLATES, WHICH IS IN THE MANUAL AND IS CALLED FOR UNDER NINTH CIRCUIT LAW, WOULD THAT TAKE PLACE AFTER THE JURY HAS INDICATED IT HAS OTHERWISE REACHED A VERDICT?
JUDGE DAVILA: CORRECT. MY INTENT IS TO BRING THEM OUT, REVIEW THE NOTE WITH THE FOREPERSON, AND THEN MOVE TO THE COLLOQUY THAT IS SUGGESTED IN 7.8, MODEL INSTRUCTION 7.8. AND I THINK YOU HAVE SEEN THAT. WE'VE TALKED ABOUT THAT THIS MORNING. THE COURT WOULD MAKE INQUIRY OF THE BALANCE, IN ESSENCE POLL FOR PURPOSES OF THE NOTE, POLL AS TO THAT NOTE WHETHER OR NOT ALL OF THE JURORS AGREE WITH THE STATEMENT IN THE NOTE.
MR. DOWNEY: WELL, THE ONLY SUGGESTION I WOULD MAKE TO YOUR HONOR IS THAT I WOULD THINK THE FIRST STEP WOULD BE THAT WE DIRECT THEM TO DELIBERATE UNTIL THEY THINK THAT THEY HAVE EITHER REACHED A VERDICT OR ARE UNABLE TO REACH A VERDICT ON ALL COUNTS AND INDICATE THAT. AND THEN I THINK THE STEPS THAT YOUR HONOR CONTEMPLATES, OR THE APPROPRIATE STEPS IF THEY COME BACK AND INDICATE THAT THEY ARE ABLE TO REACH A VERDICT AS TO SOME COUNTS AND SOME REMAIN.
JUDGE DAVILA: I'M SORRY. THAT'S WHAT I WAS SUGGESTING WHEN I SAID THAT I'M GOING TO HAVE THEM RETURN TO THE JURY ROOM AND THEN TO LET US KNOW WHEN AND IF THEY HAVE COMPLETED A VERDICT FORM, OR THEY'RE READY TO COMPLETE A VERDICT FORM.
MR. DOWNEY: FAIR ENOUGH, YOUR HONOR. I JUST WANTED TO AVOID ANY SUGGESTION THAT IF THEY'RE NOT AT THE POINT OF A VERDICT NOW, THAT IT'S AN APPROPRIATE TIME. SO I THINK THE POLLING SHOULD AWAIT WHATEVER THEIR INDICATION IS.
JUDGE DAVILA: RIGHT. AND IF THEY CAN'T REACH A DECISION, AS THEY SAY IN THE NOTE AS TO THREE COUNTS, THEN I COULD -- I'M NOT GOING TO GIVE THEM ANOTHER ALLEN CHARGE, I'M NOT GOING TO DO THAT. BUT I WILL CONFIRM THAT THE NOTE IS ACCURATE AS TO EACH INDIVIDUAL JUROR IF THAT'S WHAT THEIR STATE OF MIND IS. AND IF THAT'S THE CASE, THEN I'LL ASK THEM TO GO BACK AND COMPLETE THE VERDICT FORM AS BEST THAT THEY CAN, AND THEN WHEN THEY'RE READY TO DO THAT, BRING THAT BACK AND INDICATE THAT THEY'RE READY TO DO THAT, BRING THAT BACK TO THE COURT, AND ASK THEM TO PROVIDE IT TO THE COURT, AND THEN I'LL HAVE MS. KRATZMANN READ WHATEVER VERDICTS, IF ANY, THEY HAVE REACHED AT THAT TIME.
MR. DOWNEY: FAIR ENOUGH.
JUDGE DAVILA: DOES THAT MAKE SENSE?
MR. DOWNEY: I WASN'T CERTAIN. I THOUGHT YOUR HONOR MIGHT BE PLANNING TO ENGAGE IN THAT FORM OF COLLOQUY WITH THE JURY AT THIS STAGE, AND I'M NOT SURE WE'RE QUITE THERE YET.
JUDGE DAVILA: RIGHT. OKAY. MR. LEACH?
MR. LEACH: THAT'S FINE WITH THE GOVERNMENT, YOUR HONOR.
JUDGE DAVILA: OKAY. ALL RIGHT. WELL, LET'S BRING THE JURY IN THEN. THANK YOU.
(JURY IN AT 3:31 P.M.)
JUDGE DAVILA: THANK YOU. PLEASE BE SEATED. THE RECORD SHOULD REFLECT THAT WE'RE BACK ON THE RECORD AND ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT AND OUR JURY IS PRESENT. THANK YOU FOR YOUR PATIENCE, LADIES AND GENTLEMEN. I DID RECEIVE NOTE NUMBER 4, AND LET ME JUST READ THE NOTE. THIS IS NOTE NUMBER 4. IT READS: "AFTER CONSIDERING ALL EVIDENCE AND GIVEN INSTRUCTIONS WE HAVE CONCLUDED THAT WE CANNOT REACH A UNANIMOUS VERDICT ON 3 CHARGES." LET ME ASK, WHO SPEAKS FOR THE JURY? JUROR NUMBER 2, THANK YOU VERY MUCH. JUROR NUMBER 2, LET ME ASK YOU SOME QUESTIONS, SIR. THANK YOU. YOU CAN BE SEATED. THANK YOU. JUROR NUMBER 2, IN YOUR OPINION, IS THE JURY UNABLE TO AGREE ON A VERDICT AS TO ONE OR MORE COUNTS?
JUROR: YES.
JUDGE DAVILA: AND LET ME DIRECT THIS TO ALL OF THE JURORS. IF ANY OF YOU DISAGREE WITH THAT STATEMENT, PLEASE LET ME KNOW NOW, THAT IS, RAISE YOUR HAND. I SEE NO HANDS. LET ME ASK THIS: IS THERE A REASONABLE PROBABILITY THAT THE JURY CAN REACH A UNANIMOUS VERDICT IF SENT BACK TO THE JURY ROOM FOR FURTHER DELIBERATIONS? IS THERE ANYONE WHO FEELS THAT THAT IS A PROBABILITY? IF SO, PLEASE RAISE YOUR HAND. I SEE NO HANDS. NOW, WITHOUT STATING WHERE ANY JUROR STANDS, I DON'T WANT TO KNOW ANY OF THAT, DO ANY OF YOU BELIEVE THAT THERE IS A REASONABLE PROBABILITY THAT THE JURY CAN REACH A UNANIMOUS VERDICT IF YOU'RE SENT BACK TO THE JURY ROOM FOR FURTHER DELIBERATIONS? IF ANYONE FEELS THAT, PLEASE RAISE YOUR HAND. I SEE NO HANDS. ALL RIGHT. THANK YOU. JUROR NUMBER 2 IS THE FOREPERSON. I'M NOW GOING TO ASK YOU TO RETURN TO THE JURY DELIBERATION ROOM, AND TWO, IF YOU FEEL IT APPROPRIATE NOW, TO COMPLETE THE VERDICT FORM. AND PLEASE LET US KNOW, LET THE COURTROOM DEPUTY KNOW IF YOU HAVE COMPLETED THE VERDICT FORM, AND WE'LL CALL YOU BACK SHOULD THAT BE THE CASE. ALL RIGHT? THANK YOU.
(JURY OUT AT 3:34 P.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. PLEASE BE SEATED. ALL RIGHT. I'M INCLINED TO STEP DOWN AND JUST WAIT TO SEE WHEN AND IF WE HEAR FROM THE JURY NEXT. ANYTHING FURTHER BEFORE I DO THAT, MR. SCHENK?
MR. SCHENK: YOUR HONOR, MAY WE COME BRIEFLY TO SIDE-BAR TO DISCUSS ONE ISSUE?
JUDGE DAVILA: YES, OF COURSE. WE'LL GO INTO THE JURY ROOM FOR A SIDE-BAR DISCUSSION.
MR. SCHENK: THANK YOU.