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Kobe transcripts released

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District Court County of Eagle State of Colorado 885 Chambers Avenue P.O. Box 597 Eagle, Colorado 81631 Telephone Number:(970)328-6373 | | ** COURT USE ONLY ** ___________________________________|________________________ | Plaintiff: THE PEOPLE OF THE | Case No. 2003 CR 204 STATE OF COLORADO | | Defendant: KOBE BEAN BRYANT | ___________________________________| REPORTER’S PARTIAL TRANSCRIPT OF PROCEEDINGS ____________________________________________________________ This matter came on for Hearing on Motions on Monday, June 21, 2004, before the Honorable W. Terry Ruckriegle, District Court Judge. ____________________________________________________________ Appearances: Office of the District Attorney Fifth Judicial District Mark D. Hurlbert, Attorney No. 24606 Greg Crittenden, Attorney No. 26001 Ingrid S. Bakke, Attorney No. 19680 Dana J. Easter, Attorney No. 14986 955 Chambers Avenue P.O. Box 295 Eagle, Colorado 81631 Telephone: (970)328-6947; Facsimile: (970)328-1016 Office of the Attorney General Matthew S. Holman, Attorney No. 17846 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303)866-5785; Facsimile: (303)866-3955 E-mail: matt.holman@state.co.us ** IN CAMERA PROCEEDINGS ** HADDON, MORGAN, MUELLER, JORDAN, MACKEY & FOREMAN, P.C. Harold A. Haddon, Attorney No. 1596 Pamela Robillard Mackey, Attorney No. 15136 Kevin M. McGreevy, Attorney No. 27407 150 East 10th Avenue Denver, Colorado 80203 Telephone: (303)831-7364; Facsimile: (303)832-2628 HECKMAN & O’CONNOR, P.C. Terrence P. O’Connor, Attorney No. 9574 P.O. Box 726 Edwards, Colorado 81632 Telephone: (970)926-5991; Facsimile: (970)926-5995 Wheeler & Clune, LLC. John C. Clune, Attorney No. 27684 Alpine Bank Building, Suite 101 P.O. Box 8612 Avon, Colorado 81620 Phone: (970)845-8680 Facsimile: (970)845-8604 E-mail: jclune@wheelerandclune.com INDEX Monday, June 21, 2004 Motion re: Jury Questionnaire Mrs. Mackey 4 Ms. Easter 5 Court Discussion 7 Defense Motion for Elemental Instruction Mr. Haddon 27 Mr. Holman 36 Mr. Haddon 48 Mr. Holman 55 Defense Motion for Adverse Inference Instruction Mr. Haddon 57 Mr. Hurlbert 59 Court’s Ruling 64 Defense Motion to Show Cause re: DNA Retesting Ms. Easter 67 Mr. Haddon 79 Ms. Easter 81 Motion re: Designation of Victim Representative Mr. Clune 83 Mrs. Mackey 91 Court’s Ruling 94 Defense Motion to Strike Expert Mr. Hurlbert 99 Court’s Ruling 100 Defense Motion for Redaction of Response Mrs. Mackey 100 Ms. Easter 101 Court’s Ruling 103 4 1 MORNING SESSION, MONDAY, JUNE 21, 2004 2 (Court convened this matter at 8:40 a.m., and the 3 following proceedings were held in open court with counsel 4 and Mr. Bryant present.) 5 THE COURT: Good morning, ladies and gentlemen. 6 The people will call case 2003 CR 204, People 7 versus Kobe Bryant. Are the People ready to proceed? 8 MR. HURLBERT: Your Honor, Mark Hurlbert, District 9 Attorney, Greg Crittenden, Chief Deputy District Attorney,10 Dana Easter, Ingrid Bakke, and Matt Holman, Deputy District11 Attorneys appearing on behalf of the People. And we are12 ready.13 THE COURT: And the defense.14 MRS. MACKEY: Good morning, Your Honor. Terry15 O’Connor, Hal Haddon, and Pamela Mackey on behalf of Kobe16 Bryant. He appears with us, sir.17 THE COURT: We have a number of matters that have18 been scheduled for open proceedings beginning this morning,19 and we are ready to begin with the oral argument on motion20 for jury questionnaire.21 MRS. MACKEY: Your Honor, just a brief history of22 this. I believe that there was never any disagreement23 between the parties or the Court that a questionnaire would24 be appropriate in this case. Both the prosecution and25 defense submitted proposed questionnaires some time ago. At 5 1 the Court’s direction the prosecution and defense met, we 2 combined those questionnaires, submitted them to the Court 3 along with a cover pleading trying to outline how that 4 combination had occurred, and at this point the defense 5 takes the position that it’s really up to the Court to 6 conclude what portion or in total of the proposed 7 questionnaire should be given. That’s uniquely within the 8 discretion of the Court. 9 One slightly different procedure that had been10 suggested by the defense based on a another high-profile11 case here in Denver was to send out a preliminary12 questionnaire to try and identify for-cause challenges to13 potential jurors. I know that that is logistically very14 difficult for the Court because of the way jury summons are15 printed and distributed.16 The Court asked whether or not — to come prepared17 to discuss that, and I can just represent that should the18 Court elect to send out that preliminary questionnaire along19 with or about the same time as the summons, the defense20 would be willing to pay for half of that cost.21 THE COURT: Mr. Hurlbert, or –22 MR. HURLBERT: Ms. Easter.23 THE COURT: Ms. Easter.24 MS. EASTER: Thank you, Judge.25 Judge, I have no objection to the preliminary 6 1 short questionnaire. I am not volunteering the prosecution 2 to bear half of that cost. 3 Judge, I had, as the Court is aware, objections to 4 questions 56 and 59. I think those are more appropriate 5 for — first of all they’re inconsistent one to the other. 6 Secondly, I think they’re confusing without jurors having 7 heard presumption of innocence instruction. And also 59 8 gives a statement of the law that it does not comport with 9 what the judge will read to the jurors.10 In any case, I think both of those questions are11 more appropriate for oral questioning of juror — potential12 jurors.13 In terms of 82, 83, and 84, I understand that14 defense counsel would like to find out about societal views15 or panel member views regarding race, but each of those16 questions refers to interracial relationships, relationships17 or dating. Those are so far from the facts in this case18 that I object to those questions as worded. This was not a19 relationship, this was not a date, and those questions leave20 the wrong information.21 In addition, Judge, if the Court determines that22 it wants to send out short questionnaires, there are –23 there are some changes which are reflected in the motion to24 the Court, which was really a joint motion. Those are25 reflected, I think they’re fairly minor and the Court can 7 1 really without me taking up more time refer to the written 2 order. 3 I don’t have anything else, Judge. 4 THE COURT: So that I can be sure that we’re 5 talking about the same documents, because I have received a 6 couple of different sets, are you now referring to the June 7 8th proposed jury questionnaire and suggestions for use, is 8 that — 9 MS. EASTER: Yes, Judge. And that was signed by10 both Mrs. Mackey and myself.11 THE COURT: Have there been changes to the –12 we’ll call it the short questionnaire since that time?13 MS. EASTER: They were so minor that they are not14 worth discussing. I think it was just a couple of15 typographical errors.16 THE COURT: I noticed a couple of those.17 MS. EASTER: There are changes, deletions that I18 propose in the letter that would accompany the short19 questionnaire.20 THE COURT: All right. The Court has done some21 investigation through the jury commissioner in is Summit,22 since I’m primarily there and have the opportunity to23 communicate with her, and did a couple of things. One is to24 get a copy of the regular summons, which already has some25 questions on it; and secondly, to determine if it is 8 1 possible whether modifications could be made to that. 2 The answer was yes, but limited, without sending 3 out a separate set of questionnaires, which is I think what 4 Mrs. Mackey was alluding to in terms of the cost, the 5 additional cost. 6 And to that point you’re indicating that the 7 People are not willing to — 8 MS. EASTER: I understand that we’re not willing 9 to, Judge. This case is obviously very expensive. The10 state has very limited resources, and we have — that’s not11 an expense that we have had the — well, essentially the12 channels that we would have to go through to okay that we13 have not done that, and I really think, although we have no14 objection to it, it is truly defendant’s proposal.15 So I was not willing to volunteer the prosecution16 having to pick up that cost.17 THE COURT: I think what I’ll do is to ask18 Mr. Hurlbert and you to investigate the possibility of that,19 and in the meantime I will contact judicial again to find20 out if there is additional cost in adding questions. And21 then secondly we could pretty easily identify what the cost22 might be if we have to send out separate questionnaires,23 because that would basically be the 37 cents plus the reply24 cost, in order to determine what the potential would be.25 In terms of a time frame, what are you suggesting 9 1 as far as how far ahead of trial send this out and to try to 2 get it back? Because normally we operate on a six-week, 30 3 to 60 days — I mean 30 to 45 days is minimal in terms of 4 getting the summonses out. We usually try to get them out 5 about six weeks ahead. 6 MRS. MACKEY: Judge, I would suggest that they go 7 to simultaneous with or within a day or two after the 8 summons from the Court, if it cannot be put into one 9 document, and obviously the more time the better. I10 understand six weeks is the normal time. With a special11 panel like this, my experience has been sometimes we can get12 it to eight weeks. But I think that’s really an13 administrative issue that we leave to the Court’s14 discretion.15 THE COURT: Ms. Easter, any comment on that time16 frame?17 MS. EASTER: Judge, I think that a six-week period18 is adequate. Perhaps more time would be ideal, but I think19 six weeks is adequate.20 THE COURT: One thing that I noted is that the21 questionnaire that is used routinely across the state22 indicates they are to bring that with them on the day that23 they report. And what my understanding is that you’re24 requesting that that be sent back in ahead of time, and so I25 was interested in finding out what sort of time frame, one. 10 1 And two, what if we don’t get those questionnaires back but 2 do have people show up. 3 MRS. MACKEY: I would suggest that we ask them to 4 return them within ten days of receipt. And I don’t think 5 that there is any way that we can penalize people for not 6 returning them. This is a discretionary procedure with the 7 Court, and I don’t think there would be any authority to 8 affect someone’s jury service because they hadn’t complied 9 with the request.10 So I think that would be the defense position, we11 would ask that there would be a notice that they be12 requested to return it within ten days, but I don’t think13 there should be any term of penalty if they do not.14 MS. EASTER: Judge, I would concur with those time15 frames and the statement regarding penalties.16 THE COURT: Of course we’ll have some indication17 of the reduction in potential venire as a result of those18 summonses being returned, which we experience on a regular19 basis at a considerably higher level than is desired, and20 that can be from 1/3 to 1/2 of them that just come back,21 because those people aren’t there to respond to any one of22 them, due to the transient nature of these mountain23 communities. That’s pretty standard across the Fifth24 Judicial District.25 My concern, as I previously expressed it, was with 11 1 the number and therefore length of questions and space 2 necessary, because if we can get the questions on the form, 3 it’s a much better likelihood of us being able to accomplish 4 what you have indicated you desire. In reviewing it, I see 5 that — and I am — I guess I could make copies of this, but 6 I assumed at some point you might have had a chance to see 7 it, but several of the questions are already on there. 8 Number one, of course it has name, residence 9 address, and then mailing address. So the question with10 regard to, you know, where do you actually live as opposed11 to the mailing address I think could be covered, which was12 six. And it says in what city. Obviously we might need to13 look at city or portion of the county.14 Number three, how old are you. Age is covered on15 the questionnaire.16 We have date of birth on there, which is number17 four. We don’t have place that you have requested. Is that18 particularly important? I mean, that would just be another19 modification to this form. Is place something that we need20 on the preliminary? Obviously you’ve put it in here, so you21 want it.22 MRS. MACKEY: Exactly.23 THE COURT: But I’m just trying to see if we can24 narrow this down.25 MRS. MACKEY: I understand, Judge. I mean, we 12 1 would like it. 2 THE COURT: And the People agree with that? 3 MS. EASTER: We do, Judge. 4 THE COURT: Number five, was the notice you 5 received addressed correctly, and if not please provide the 6 correct address. 7 MRS. MACKEY: I think that’s covered by the 8 standard one saying, give us your address, both physical and 9 mailing. So I don’t think you have to say that a different10 way.11 THE COURT: Ms. Easter?12 MS. EASTER: I agree, Judge.13 THE COURT: Thank you.14 Length of residence in Colorado in the15 preliminary. What’s the purpose of that in the preliminary?16 We always ask that, but as opposed to in the general17 questionnaire later on.18 MS. EASTER: Well, Judge, in part I think both19 parties were interested in keeping as much of this very20 general information, getting that early and absorbing that21 early so that it didn’t take so much time in court. That’s22 one of the reasons why this is very thorough and somewhat23 lengthy. But that would certainly eliminate a question that24 this Court would have to ask, or I assume this Court25 normally asks. 13 1 THE COURT: Well, I was more concerned about why 2 in the preliminary, and you said just to absorb it. But is 3 there anything particular that would be gained by asking 4 that now as opposed to the questionnaire process, which 5 we’ve generally discussed as being the jury brought in, fill 6 out questionnaires in the morning, we copy and review and so 7 forth, and then wouldn’t begin any visual until the next 8 court date. 9 MRS. MACKEY: Judge, that’s one we would be10 willing to give up for space considerations, if the Court’s11 looking for places to cut.12 THE COURT: On the standard questionnaire13 contained within the summons is a question about your14 occupation. And that is also one you’ve indicated in number15 eight, if you work outside the home, where do you work. Do16 you think that that’s one of the more important ones in the17 preliminary questionnaire, or the short questionnaire, as18 you want to call it?19 MRS. MACKEY: Judge, we would ask that the more20 specificity of who is the employer, rather than just a more21 general statement as to occupation. And again looking at22 for cause, it may be that once we know precisely where23 someone works, that does give rise to a for-cause challenge.24 THE COURT: I suppose some might on their face,25 but more likely we’ll have to inquire further. 14 1 The question about law enforcement agency or 2 public defender employment is fine. 3 The retired question. I suppose somebody might 4 not respond to the standard question of occupation with 5 retired, but how important is that? I had a question mark 6 there, in the preliminary stage. 7 MRS. MACKEY: I think for the same reasons stated 8 as to occupation, Judge, we do believe that it’s important, 9 and I’ve seen many a questionnaire response that just listed10 “retired,” and then had to go beyond that and inquire what11 they had previously done.12 So it’s been my experience that people don’t13 necessarily volunteer their former employer when asked, what14 do you currently do.15 THE COURT: Ms. Easter.16 MS. EASTER: Judge, I would agree with that. In17 fact, I think that’s almost always the response of people is18 to put “retired,” even if your first question is — says,19 “or where did you work when you retired.” I think the only20 way you really get the answer to that from retired people is21 asking it this way.22 THE COURT: You requested that the Court include a23 question concerning receipt of any disability payments,24 and –25 MRS. MACKEY: Judge, it’s one way of getting at — 15 1 we could change the question, but what we’re trying to find 2 out if people do have any disabilities which would impact 3 their ability to serve. Hearing, back problems, those types 4 of things. That is one way to ask that question. 5 THE COURT: But they might not receive a payment. 6 MRS. MACKEY: Sure. True. You could ask it more 7 broadly. 8 THE COURT: Maybe more direct. 9 MRS. MACKEY: Yeah.10 THE COURT: And you believe that that’s necessary11 in the short questionnaire? More necessary to be in the12 short questionnaire?13 MRS. MACKEY: Well, our design behind this was to14 identify early on potential for-cause challenges, and it15 seems disabilities are classically in that category, Judge.16 THE COURT: So you might want to think about the17 different language there that would be more specific to18 determining whether someone’s on disability. I mean, after19 all, we usually apologize to them a number of times about20 probing into their private lives, and so we need to ask them21 if they’re suffering any disability.22 Ms. Easter.23 MS. EASTER: Judge, I actually would suggest that24 perhaps a way to restate this would be straight out of the25 statute, whether or not they themselves are concerned about 16 1 their ability to serve as a juror due to a disability, or 2 whether they take care of a person who is homebound and they 3 are the sole caretaker, which essentially reflects the 4 language of the statute. 5 THE COURT: Normally that question is — we don’t 6 usually use questionnaires, so it’s done normally by the 7 Court. So for the same reason, you believe it would be 8 helpful at the preliminary stage of the short questionnaire, 9 correct?10 MRS. MACKEY: Yes, Judge.11 THE COURT: Same goes for the question about12 difficulty reading, writing, speaking, or understanding13 English. That is certainly one of the standard questions14 for purposes of challenges for cause or even just15 disqualification sua sponte by the Court. I’ve always had16 difficulty with that, because if somebody can’t read17 English, then they probably can’t read that question.18 But do you think that that’s one that is19 particularly important in the preliminary stage?20 MRS. MACKEY: Again, Judge, I think that that’s21 something that the Court would want to know. I mean, the22 Court can then make a decision as to whether an interpreter23 would be provided. Actually, one benefit to having this24 mailed out is they could — if they don’t read English they25 could secure assistance to get the form read to them. But I 17 1 think that that would be a planning issue that would be good 2 both for the Court and the parties to know ahead of time. 3 THE COURT: Ms. Easter, any position on that, or 4 the same? 5 MS. EASTER: Judge, again I think this is one 6 where both the Court and counsel can early on identify 7 persons who don’t meet the statutory qualifications to serve 8 as a juror. 9 THE COURT: The next is related to conviction10 through guilty plea, no contest, or by court or jury, any11 state or federal crime other than traffic infraction.12 Mrs. Mackey.13 MRS. MACKEY: Judge, again, sort of classically14 for-cause questions.15 THE COURT: My questions are really intended to be16 why at this stage as opposed to later on.17 MRS. MACKEY: Judge, it’s just that we had18 designed this as a way to try and identify for-cause19 challenges as early as possible, and because this is20 classically for-cause type of information, we would like to21 know it as soon as possible.22 THE COURT: The concern that I have is as I23 already indicated, the number of questions which relates to24 space, but also then the follow-up, which is, “explain,”25 because then you need to give them room to explain. And 18 1 that’s where we run into problem with this particular format 2 that exists. And I’ll be quite frank, I’m trying to avoid 3 any supplemental mailings, because I feel that the 4 additional cost, you know, does have to be borne. I 5 appreciate your offer to do that, but obviously the state 6 would have to incur some of that. 7 Ms. Easter, your position on the conviction. 8 MS. EASTER: The only thing I can suggest, Judge, 9 is that if we leave out the “please explain,” we would know10 which persons we needed to further inquire of. But perhaps11 if we left those explanations out, the Court would be able12 to fit it on its sheet.13 THE COURT: This question and a couple of the14 others are also included on the 117 or whatever the number15 is, 115 questionnaire, and so would it be satisfactory to16 have at least the red-flagging if we run into a space17 problem of the conviction, yes or no?18 MRS. MACKEY: Sure, Judge. That would be better19 than not asking the question at all.20 THE COURT: Right. Then you have “criminal21 charges pending.” Comment on that?22 MRS. MACKEY: Same issue, Judge. And if the23 Court’s worried about space for explanation, then at least24 having the red flag, as you say, would be better. We could25 then do additional work on any charges that we needed to. 19 1 THE COURT: Ms. Easter. 2 MS. EASTER: I have nothing to add, Judge. 3 THE COURT: That is I think a legitimate question, 4 because the only time I’ve ever had to change venue during 5 the course of a trial, and it was in jury selection when it 6 was a case out of he can Eagle County a number of years ago, 7 it was a homicide case, and after we had impaneled the jury 8 it was learned that several of the jurors actually had 9 pending cases and had not indicated them on the10 questionnaire, and so we had spent a week getting a jury11 until 7 o’clock on Friday night, and then the next week,12 why, I had to transfer it to another county. So I think13 that’s a good question to ask.14 Then we have the one about physical, mental, and15 there was a typo there, or emotional condition. Comment on16 the importance of that at the preliminary stage,17 Mrs. Mackey, number 16.18 MRS. MACKEY: Judge, same argument. We’re trying19 to identify early potential for-cause excuses, and as the20 Court points out, someone may not receive disability21 payments or we may not ask that question in such a way to22 actually explore all of the options. Maybe those could be23 combined into one with more of a laundry list. But it’s the24 same type of question as the disability payments, or do you25 suffer from a disability. Just trying to figure out if 20 1 someone is unable to sit through a long trial. 2 THE COURT: Ms. Easter. 3 MS. EASTER: Judge, I have nothing to add to that, 4 although I would say, given that we have 11 and 16, I think 5 we could certainly eliminate number 11, although if you were 6 to ask, do you have any physical, mental, or emotional 7 condition which would prevent you from service on this jury, 8 or do you take — are you the sole caretaker of a person who 9 is homebound, again, pursuant to the statute, that’s one way10 to eliminate a question.11 THE COURT: The last one, I understand the12 question that is asked, but of course I’m concerned about13 doing so at the preliminary stages, “Is there any other14 reason that would prevent you from serving on the jury?”15 You have to remember that the process here is16 sending out questionnaires, and it would be easy for someone17 to put down a number of perceived justifications for them to18 be excused from the jury. My experience is that it’s much19 more effective to communicate with them face-to-face about20 those particular types of issues, the general causation of21 anything to prevent them from serving.22 Do you think that this is particularly important23 at this stage?24 MRS. MACKEY: Judge, I really do. And in part25 it’s because of the combination of the immense amount of 21 1 pretrial publicity and the nature of the small community in 2 which this case will be tried. And because of those two 3 issues in the same case, I believe that people may know or 4 have heard or be associated with people here at the local 5 level that will cause us grave concern. 6 I don’t disagree with the Court that we’ll 7 probably get in writing what we often do orally and that 8 some people really honestly answering this question and that 9 there are reasons they can’t serve, and other people just10 trying not to have to sit in the courtroom for several11 weeks. But we’re able to distinguish between those in12 court, and it’s not something that won’t require some13 follow-up, but I think to identify early those people in14 that category would be very important.15 THE COURT: Ms. Easter.16 MS. EASTER: Judge, I’ve actually reconsidered my17 position on this question, and I think I agree with the18 Court that this is better done face-to-face. So I actually19 would concur with leaving out number 17.20 THE COURT: There’s a delicate balance there.21 What it would so, as I’ve used the term, red flag. It22 certainly wouldn’t, unless it was something significant,23 cause me to go to an excuse for cause just generally because24 of some of those publicity or small community issues that25 might be indicated. 22 1 Of course there’s — it opens it up to hardship 2 issues, too, which I do believe are particularly important. 3 And what we might want to do is to make sure that people can 4 have justification. The jury commissioner is regularly 5 communicating to people about the type of information, 6 whether it’s medical or employment, that they need to 7 provide, and rarely do they come in with that. Instead they 8 just try to make their case to the Court about how it would 9 be a hardship on them.10 All right. I will review these and then consult11 with the people who are responsible for the production of12 the questionnaire to determine if we can make some13 modifications.14 The other issue, in terms of a preliminary or15 short questionnaire, is the jury notice. And some of –16 I’ve gone through that and I know there are some concerns.17 The way I read it, in particular that the People have; is18 that correct? The defense does recommend the notice as19 provided verbatim?20 MRS. MACKEY: Yes, Judge. And just by way of21 background, it’s taken essentially verbatim from the22 documents provided to me by the federal court.23 THE COURT: Oh, but if we had the resources.24 MRS. MACKEY: I understand.25 THE COURT: All right. 23 1 Ms. Easter, do you want to address those concerns, 2 which I think were bolded and bracketed in that document? 3 MS. EASTER: Judge, my only suggestion, and it was 4 a very minor one, was that I would be asking the Court to 5 instruct potential jurors and selected jurors to not read 6 the newspaper. You know, particularly as deceptive as some 7 headlines are, and I certainly see that that is done very 8 frequently, and not to listen to news magazines on 9 television or news programs on the radio and that sort of10 thing.11 So I was just asking for a larger ban or a more12 concrete ban, like don’t read the newspaper. That sort of13 thing. And that is actually set out in what the Court14 received.15 THE COURT: Mrs. Mackey.16 MRS. MACKEY: Judge, it was my understanding that17 with regard to the letter that would accompany the short18 questionnaire, that the prosecution objected to two portions19 of that. The first being that the prosecution did not want20 the notice to include an instruction on the presumption of21 innocence and burden of proof, that they wanted those22 instructions deleted. If they’re withdrawing that, that23 would be terrific, we don’t have to argue about it.24 With regard to the one that Ms. Easter has just25 addressed orally, which is on page two of the letter, the 24 1 notice as crafted by the federal court had been a suggestion 2 to be careful. Ms. Easter wants a total ban on reading 3 magazines, newspapers, watching TV. I really leave that to 4 the Court’s preference on what kind of restrictions the 5 Court would want to put on the jury. 6 THE COURT: Ms. Easter, I did note that from the 7 pleading there was some objection by the People to the 8 language in paragraph 2 on the first page, including 9 presumption of innocence and burden, and then also that10 language that says “That is what the Colorado and United11 States Constitution require.” Constitutions. Excuse me.12 MS. EASTER: Judge, I’m not making a vehement13 objection to that. I think when you give these instructions14 without giving the whole instruction that it can be somewhat15 misleading. I don’t — I certainly would just leave it to16 the Court in terms of what the Court thinks is appropriate.17 THE COURT: I think the jury panel’s going to hear18 enough about the law and the Colorado and United States19 Constitutions. I don’t see that that statement in the jury20 notice is necessary. I’ll evaluate it with regard to21 presumption and burden. I think that that’s something22 they’ll hear repeatedly throughout jury selection, and23 ultimately in the jury instructions.24 The other concern that I had was — and I know25 that you’ve used a form from the federal court, as you 25 1 indicated, but that those excused from service will be 2 notified by mail. I’ll need to discuss whether that’s how 3 we would do that or whether we would have some other form of 4 notice. 5 I do have concern about the People’s proposal that 6 for a period of a number of weeks perspective jurors and 7 then ultimately those chosen would be asked not to read, 8 listen to, or watch. I understand the reason for that. I 9 know that there are instances where headlines and articles,10 as you pointed out, are not consistent and may be11 misleading.12 Although the Court has repeatedly acknowledged the13 extensive publicity in this case, it’s hard to disregard the14 reality that it’s not the only case that’s received15 extensive publicity, and that there is a substantial body of16 informations provided in newspapers, magazines, television17 and radio that does not relate to this case.18 I think that to indicate to jurors that they19 cannot read, listen to, or watch media accounts, well, for20 one would probably create a void in a lot of people’s lives.21 MS. EASTER: Certainly.22 THE COURT: And for two would probably run some23 people out of business if I were to issue that order around24 here, but.25 MS. EASTER: Judge, actually I am seeing a middle 26 1 ground here. One of the things that I really object to in 2 the letter, as it exists, is it does not even instruct 3 people not to read articles about the case itself. And it 4 is certainly my experience that court reporters will sit in 5 and listen to in camera arguments and then report on those 6 in camera arguments, and the reason they’re in camera is so 7 that they weren’t in front of the jury. 8 THE COURT: In camera during trial is what you’re 9 referring to. In other words, out of the presence of the10 jury, correct?11 MS. EASTER: Yes. And this admonition is so12 nonspecific, it does not even say, you should not read any13 article or listen to any program regarding this case. And14 so I think it’s very lacking in there. And it doesn’t even15 say that you should avoid discussing the case with your16 friends and family, which I know this — I’m sure this Court17 reads an admonition to the jury that’s not consistent with18 this.19 So I think there probably is a middle ground that20 is — really would not cause news junkies to go into21 withdrawal, probably.22 THE COURT: I think what I’ll have you do is to23 look at that and try to find some better language. I24 certainly had hesitated with this language in terms of, one,25 the limitation that was proposed in the alternative; and 27 1 two, that this didn’t go far enough in terms of this Court’s 2 experience in admonishing them not to — and you can tell by 3 how easily it flows off my tongue — read, listen to, or 4 watch. I mean, anything in regard to news counts relating 5 to this case. And I think that would be a good suggestion 6 in the alternative. 7 Again, I need to find out whether the procedure 8 for a notice of this length can be accomplished. 9 Anything else with regard to questionnaire10 suggestions and use?11 MS. EASTER: Nothing, Judge.12 THE COURT: Thank you.13 Next is the argument on defense motion for14 elemental instruction.15 MR. HADDON: Your Honor, we discussed this16 preliminarily on May 11, and there has been a lot of paper17 that has flown around since, and I think some of it is18 artful. When I’m saying our, I’m being collegial. I think19 we have filed five filings since May 11th that address20 various aspects of this issue.21 So let me see if I can’t summarize what I think22 some of the issues are around what they aren’t, and then23 give you our position on the elemental instructions24 themselves.25 Your Honor would recall that on May 11th we 28 1 discussed a verdict form and a special interrogatory, and we 2 essentially agreed on the language and form of that verdict 3 and special interrogatory, and pursuant to your direction on 4 May 21 we filed a proposed verdict form and special 5 interrogatory, special interrogatory related to the 6 aggravator, use of force or violence. 7 I believe — although I haven’t had any 8 discussions on this with the prosecution — I believe that 9 we are in agreement on that, and I have not seen any10 objection to that. So that was the first piece of what Your11 Honor asked us to do on May 11.12 THE COURT: My understanding is that the People do13 not have any objection with regard to the proposed verdict14 form and special interrogatory. Is that is what –15 MR. HOLMAN: I believe that’s correct, Your Honor.16 MR. HADDON: So the second part of the issue17 having to do with elemental jury instructions I believe is18 still at issue, and you’ve had now two pleadings from our19 side since May 11, and two pleadings from the prosecution20 since May 11, is, in essence, if I can attempt to boil it,21 although the law and the statutes are confusing, the22 question is, is consent a defense, and if so, is it an23 affirmative defense, a defense to the elements, or both, and24 ultimately how do you cut through the 2002 statutory25 amendments, which I think it added to the confusion, and 29 1 craft an instruction that not only is consistent with the 2 law, but more importantly makes sense to people who didn’t 3 go to law school. 4 And that’s the issue on which we spilled all that 5 paper, and that’s the issue that I would like to address 6 briefly this morning. 7 Again, understanding that we’ll probably take 8 another cut at this at final jury conference. 9 THE COURT: I would just — I wanted to discuss10 this. Obviously the ultimate instruction will not be11 determined until the final jury conference. But at least we12 can address the issue, particularly with regard to consent,13 affirmative defense, and try to narrow down the focus.14 MR. HADDON: What we did in our post-May 1115 submissions was submit to Your Honor two alternative forms16 of instruction with respect to the issue of consent. One17 lays it out as straight affirmative defense on very standard18 kinds of jury instruction forms. And the other attempts to19 apply the new statute, 18-3-408.5, in such a way as to20 fashion jury instruction on consent that hopefully is21 consistent with what the legislature thinks, consistent with22 what the Supreme Court has said in Dunton and other cases,23 and most importantly consistent with the Constitution.24 But I should back up and state a premise that I25 think underlies both the new statute and the case law that 30 1 we see under the old statute, and that is that I think it is 2 clear, and Ms. Easter acknowledged this the last time we 3 discussed this on May 11, consent is a defense in some form. 4 The question is whether or not is it — it is an affirmative 5 defense that goes in the elemental instruction, whether — 6 or whether it is a defense which is to be defined elsewhere. 7 And then the question is, how do you relate it to the 8 elements of the elemental instruction themselves so it makes 9 sense.10 If you wanted to do it simplistically in a way11 that makes sense, you would either do it as an affirmative12 defense, but I acknowledge that 18-3-408.5 says it’s not an13 affirmative defense. But that same statute says that it is14 a defense to the elements of the charge.15 And so Your Honor has to then decide, how do you16 knit that into the elemental instruction in such a way that17 the jury understands that if the prosecution does not18 disprove consent beyond a reasonable doubt, then the19 defendant should be acquitted, because it is in the language20 of the statute a defense to, quote, the elements of the21 charge.22 You could simply instruct the jury that way. You23 could simply give a bright line instruction saying, ladies24 and gentlemen of the jury, the defense has raised the issue25 of consent. There is evidence of that, and if the 31 1 prosecution has not disproven it beyond a reasonable doubt, 2 you must acquit. And not talk about which element consent 3 applies to. 4 Again, that sounds simple and rational, and 5 obviously we lawyers have constructed something that may be 6 more complicated. But that is one alternative. We didn’t 7 set that forth as an alternative, because I think that the 8 jury instructions, the draft jury instructions the Supreme 9 Court has now published seem to contemplate a different way,10 but they don’t address this issue. So.11 THE COURT: Well, what about include it in the12 theory of defense case instruction as an alternative the13 affirmative defense, which as you point out is not truly14 recognized?15 MR. HADDON: Certainly under the statute it is not16 truly recognized, although it fits every rubric of the17 classic affirmative defense or any other crime in this18 state. Any other crime that doesn’t involve sexual assault,19 if you meet the elements of 18-1-505, obviously affirmative20 defense elements, you’re entitled to that instruction for21 any other crime.22 THE COURT: You could keep the 2005 legislature23 busy with amendments to the sexual assault statute.24 MR. HADDON: Well, they could certainly clarify25 it, because it’s terribly murky as they redrafted it in 32 1 2002. 2 The other alternative that we suggested, and this 3 is one that may make legal sense, although more — less 4 sense for a juror, is we know that the People have to prove 5 beyond a reasonable doubt that under the language of the 6 statute there had to be submission against her will. 7 Those — those are the terms of the statute, and we agree at 8 least in principle that those words have to appear somewhere 9 in the elemental instruction. I think we disagree as to10 where they have to appear and what those particular terms11 define.12 But as we’ve pointed out in our briefing papers,13 the term “submission against her will” is a long and14 somewhat common-law way of saying submission without her15 consent.16 And so our proposal, in alternative B, and in17 particular B1 and B2, is to simply tell the jury that18 submission without — submission against her will means19 without her consent, and then we define consent.20 And so that you relate the consent defense to an21 element of the offense, a defined element of the offense,22 which all parties agree has to be in that elemental23 instruction, and which the legislature says is a defense to24 the elements, without telling us which, if any, elements,25 and therefore presumptively to any or all elements. 33 1 So that’s the way we crafted it in our alternative 2 B. And I think that — that’s the hard choice that Your 3 Honor has to make with respect to how to craft a consent 4 instruction in light of the statutory amendments. 5 We do think, however, that it is clear that the 6 legislature by taking the force and violence language out of 7 the first degree assault statute, and instead placing it out 8 there as an aggravator, means that the concept of consent 9 being a subjective one and not — not one that the defendant10 reasonably understands, has been replaced except during the11 aggravator portion of the jury’s deliberation.12 And therefore we think that Dunton, which13 essentially says in somewhat confusing language that the14 defendant’s objective understanding of whether or not a15 person consents isn’t — doesn’t have to at least appear in16 a jury instruction, although it goes on to say it may be17 harmless error to keep a defendant from talking about it.18 Which when I reread that case again this morning struck me19 as difficult to knit together.20 But that notwithstanding –21 THE COURT: Talk about something that’s not in the22 instruction, and –23 MR. HADDON: Yeah. And apparently the defense24 counsel was allowed to talk about it, and the Supreme Court25 decided that since defense counsel talked about it anyway, 34 1 even though the instruction was rejected, it was harmless 2 error. Which is a strange way of going about jury 3 instructions. But we think it clear that if defendant’s 4 subjective understanding of whether a person consents is now 5 a defense post the 2002 amendments, and for that reason we 6 structured the elemental instructions in the alternative as 7 we did. 8 And again, it’s confusing, and you could cut 9 through a lot of the confusion by simply either making it an10 affirmative defense, or in the alternative instruct on11 consent, flat out. It’s an alternative we didn’t give you,12 but it’s certainly one that has a lot of appeal, and just13 give a definition of consent and tell the jury that it’s a14 defense to each of the elements of the offense, which the15 statute says it is, and that the prosecution has to disprove16 it beyond a reasonable doubt. That common sense solution17 probably defies legal analysis, but it makes a lot of sense18 to me, even after having been a lawyer for 34 years.19 THE COURT: Well, that’s the ongoing struggle is20 what fits with the law and what makes sense to jurors in21 terms of instructions on the law. And obviously my concern22 is with regard to the statute and the fact that it’s not23 recognized as an affirmative defense. So once I use the24 mechanism of the instruction to identify it as such, my head25 starts turning around the other way and saying, how can you 35 1 do that. So I’m accommodating the jurors, but then run into 2 a conflict with the Supreme Court in terms of the proposals, 3 and the legislature in terms of the statute. 4 MR. HADDON: And at the same time the statute 5 clearly says it’s a defense to the elements. 6 THE COURT: Well, there’s a slight difference 7 between affirmative defense and the implication of that, and 8 being a defense. But of course we’re left to figure that 9 out, how to –10 MR. HADDON: Yeah. We’re left to figure that out11 and the legislature doesn’t say with respect to that defense12 that the defendant is required to meet any sort of burden.13 And therefore, I submit, that it’s like any other defense,14 whether you call it affirmative or not, the prosecution has15 to disprove it. But they didn’t — they don’t grace us with16 that particular explanation.17 And they’re — by the way, this is something that18 bears noting, we took a hard look at the legislative history19 of this case, and that statute in particular, and it went20 through without comment. So we don’t have the benefit of21 the drafters’ thinking on it.22 THE COURT: Or do.23 MR. HADDON: Well, yeah. Anyway, that24 essentially, Your Honor, is our argument and our statement25 as to where I think we are. Depending on your Court’s 36 1 pleasure — Your Honor’s pleasure, we could at the final 2 jury instruction submission give you our best shot what we 3 think is most appropriate, and we’re happy to do that. 4 But we gave you a couple of alternatives, and 5 hopefully our briefs have been somewhat explanatory, 6 although there’s so many of them that they’re hard to 7 digest. 8 THE COURT: People’s response. 9 I’m so used to saying that there are — when I10 wake up in the middle of the night I see four attorneys over11 here and three over here, and now I see five.12 MR. HOLMAN: At least today.13 Good afternoon. Your Honor, I’m Matthew Holman,14 I’m an attorney with the Colorado Attorney General’s office,15 but I’m appearing here as a special DA.16 I’m trying to juggle my paper here.17 I’ll generally respond to the defense’s points,18 and if you would like me to be more specific about some of19 the instructions, I would be happy to address those in20 detail.21 The defense focuses on the fact that the22 legislature restructured the sex assault statutes in 2000.23 And while that’s true and it changes some of the ways that24 they are determined by the jury, in other words separating25 things into elements and enhancers, there hasn’t been a 37 1 change to what the jury has to determine. In our brief we 2 refer to the core offense is essentially the same offense 3 that was laid out under the former second degree sexual 4 assault statute, and then the enhancer comes out of what 5 used to be the first degree sexual assault statute. 6 So the substance is identical, and I think both 7 the case law, the Dunton case and the Smith case and the 8 Braley case, and even the prior model jury instruction for 9 second degree sexual assault, all — and I guess the10 instruction used in Dunton, albeit a first degree sexual11 assault instruction, indicate that the People’s proposed12 instruction is a better structure of the instruction on the13 law as compared with the elements, as compared with the14 defense’s, both their A1 and B1.15 THE COURT: Let me make sure that I’m following16 you.17 MR. HOLMAN: All right.18 THE COURT: You had a brief on June 7th, and a19 brief on June 11th.20 MR. HOLMAN: That’s correct, Your Honor.21 THE COURT: And your proposed elemental that you22 are now referencing.23 MR. HOLMAN: Is — I know I have it here in my24 stack.25 THE COURT: The 11th I only had a consent 38 1 proposal. 2 MR. HOLMAN: If I could find the People’s. 3 THE COURT: And the one on the 7th, I only had one 4 related to knowing. 5 MR. HOLMAN: Here it is, Your Honor. The People 6 filed, it looks like on May 21st, looks like proposed jury 7 instructions and interrogatory. And that — that’s been 8 taken from the unofficial proposed jury committee 9 instructions from 2002. And I think that’s referencing our10 June 7th brief.11 THE COURT: Okay.12 MR. HOLMAN: If you don’t have a copy of that, I13 have one here.14 THE COURT: I assume it’s this?15 MR. HOLMAN: Yes.16 THE COURT: Exhibit 2A?17 MR. HOLMAN: That’s right. Thank you.18 THE COURT: Thank you.19 MR. HOLMAN: Thank you, Your Honor.20 That instruction, again, is taken from those21 proposed model jury instructions. And it also mirrors, I22 think, the instruction in Dunton as far as the causing23 submission. And then the second part, in Dunton it was the24 by use of physical force, but they reference the Smith case,25 which talks about by means of sufficient consequence 39 1 reasonably calculated to cause submission. 2 I don’t think consent operates as a true 3 affirmative defense what we know from law school and an 4 analytical analysis where it’s used to justify or excuse an 5 offense. In other words, someone doesn’t commit a sexual 6 assault and then claim that they’re excused from 7 responsibility through consent. 8 Consent works as what’s called a — I guess a 9 defense as opposed to an affirmative defense in that it10 affects and is relevant to certain of the elements, which is11 the caused submission of the person and by means of12 sufficient consequence reasonably calculated to cause13 submission against the person’s will.14 The defense a couple of times — I just want to15 hit on this before I forget — mentioned that — that you16 could give a separate instruction saying that it was the17 defense and it is the People’s burden to disprove that18 consent. But that’s incorrect, because as the Braley case19 and the Dunton and Smith cases show, by proving the elements20 of sexual assault you necessarily disprove consent.21 And I think by breaking it out in that other way22 you ultimately confuse the jury into thinking that once23 they’ve satisfied all the elements of sexual assault that24 they can still excuse that behavior by some independent25 finding on consent. 3925 40 1 THE COURT: Let me ask you if it is your position 2 now that the proposed instruction we were just referring to 3 is the appropriate one, including — 4 MR. HOLMAN: Not number 4. I anticipated your 5 question. I think that doesn’t belong. I think there may 6 be other defenses that are affirmative defenses that go with 7 this model instruction. I’m not sure what they would be, 8 but — 9 THE COURT: But this is the most current model10 proposed instruction.11 MR. HOLMAN: That is correct, Your Honor.12 THE COURT: Right. Maybe someday, seems like we13 haven’t had anything since ’93, maybe we could get some14 permanence.15 MR. HOLMAN: And I know it’s intended for use in16 different settings, and I know there may be one — I know17 there are some sexual assaults where a belief that a person18 who is of the age of the majority is an affirmative defense19 of some kind, and I believe that’s included in the defense20 there. I think the 18-3-401(1.5) makes it clear, that the21 legislature makes it clear that it is not what I term a true22 affirmative defense. It simply operates as a defense.23 It seems, and I was relieved to hear that we were24 not going to determine the specific language of the jury25 instructions now. I certainly am prepared to do that. But 41 1 it seems that the theory of the case, the defendant’s theory 2 of the case, is an appropriate place to put a consent 3 instruction, if that’s the defendant’s theory is that the 4 victim consented. 5 THE COURT: Well, I raise that. But then where do 6 we go from there in terms of further explanation of the 7 definition or the integration of consent within the language 8 of the statute with regard to causing submission? 9 MR. HOLMAN: Well, I think that we have to be10 careful, because I think there is that distinction. I know11 in their — it’s proposed instruction, it’s theory — it’s12 defense’s Exhibit B2 they equate submission against the13 person’s will with — that that means without the person’s14 consent. And I think that’s not what the law requires or15 says. I don’t think those things are equal. I think the16 case law is very careful to distinguish those things and17 points out by proving the causing of submission and18 submission against a person’s will that that necessarily19 proves without consent, or satisfies that concern.20 I don’t think they work in the opposite way, which21 is proving nonconsent necessarily proves that someone used a22 means that is sufficient to cause submission against a23 person’s will.24 So I think it’s interesting, there’s one of the25 cases, I can’t remember which one it was, where they sort of 42 1 said in passing, it might have been better to explain the 2 relationship between the two, but we don’t find any plain 3 error. And I think that is — it’s tricky and they don’t 4 tell you how you should do that. 5 I think they’re just — I think they’re distinct 6 concepts. The cases say the issue of consent is relevant to 7 the elements of the offense, but I don’t think necessarily 8 they’re equating it in the way that they are in this 9 instruction.10 So I think it may be appropriate simply to say11 that consent is a defense, that’s the defendant’s theory.12 That — and then give a definition of consent.13 THE COURT: And then you do have a proposed14 definition of consent, which I think is the same as the15 defense.16 MR. HOLMAN: Actually, it’s slightly different,17 Your Honor. It includes the language from the statute18 concerning relationships. I’m looking at our June 11th, I19 guess, brief. And the statute includes language saying that20 a current or previous relationship shall not be sufficient21 to constitute consent under the provisions of this part 4,22 and then the model instruction which is also taken from the23 current unofficial proposed 2002 jury instructions includes24 that language. I think it’s appropriate to include that25 language in instruction here. 43 1 THE COURT: Why? 2 MR. HOLMAN: Well, I think — 3 THE COURT: In this case? 4 MR. HOLMAN: And — 5 THE COURT: Current or previous relationship? 6 MR. HOLMAN: Yeah. And I think the language is — 7 is fairly broad, and I think it covers an entire spectrum of 8 possibilities of sexual assault. Obviously on that spectrum 9 we have stranger sexual assault where a defendant and victim10 don’t know each other. That seems to be outside of this.11 There’s no prior relationship. At the far end of that we12 have the marital relationship, which also does not13 constitute a — a consent under our law.14 I think in between that we have the range of15 acquaintance rape, or date rape, and then all the way up the16 spectrum, I suppose. So I think it covers — it clarifies17 that any prior — any prior form of a relationship, whether18 it’s just an acquaintance relationship or friend, does not19 constitute consent in and of itself, and I think that’s20 appropriate to be — I’m sorry, I think I interrupted you.21 THE COURT: That’s all right.22 MR. HOLMAN: The other thing I’m concerned about23 indicating in these proposed instructions is they seem to24 interject the idea that — that the defendant must actually25 know of the fact of a person’s nonconsent. And again, 44 1 that’s not how the statutes and the law operate. The 2 statutes are, again, essentially similar to the way they 3 were in 1999, and the cases make clear that that’s not a 4 requirement. 5 That by finding the two elements in ours, in our 6 instruction of “caused submission of the person by means of 7 sufficient consequence reasonably calculated to cause 8 submission against the person’s will,” that equates with the 9 issue and finding on the issue of consent, but we don’t10 require an independent finding or a finding of actual11 knowledge.12 The cases state that it’s enough that the person13 know that they used such conduct that would be sufficient to14 cause submission in this manner. And I know the defense15 makes a distinction between the first degree sexual assault16 statute in Dunton because that use of physical force has17 been moved into the enhancer, but I think that’s a18 distinction without a difference. The Smith case, which was19 cited in Dunton, makes clear that they’re saying the same20 analysis applies there, and the language in Smith I think is21 helpful, too.22 It indicates that the person need not be aware23 that the person does not consent. I think that’s in24 footnote seven in Smith. Yes. It says, “The actor need not25 know that the victim in fact submits nonconsensually.” The 45 1 phrase “of sufficient consequence reasonably calculated” 2 clearly implies that the actor must be aware that his or her 3 conduct is of sufficient — is sufficient in character and 4 degree to be likely to cause nonconsensual submission. 5 So under — under the statutes and the law I think 6 those — those are the elements that have to be proven at 7 trial. 8 I noted in the defense’s reply brief that they 9 mentioned that we did not respond to their argument that an10 independent finding on consent is constitutionally required11 by the U.S. Supreme Court, Lawrence v. Texas, which dealt12 with a statute that outlawed homosexual relations that –13 where there was no issue of consent at all, and I don’t14 think that changes the law here. Because again, under our15 statutes we are essentially finding that there was without16 consent under the elements here. So I think that makes no17 difference. I don’t think that case changes the statutes18 here or the Constitution in any way.19 I would like to point out one more thing about the20 defendant’s proposed instructions. The instruction on –21 it’s in the A section, A2, concerning affirmative defenses22 of consent. I think I’ve addressed in the briefs some of23 the problems as far as affirmative defenses go. But I24 wanted to point out that the language at the bottom which25 says, “if you decide that the prosecution has failed to 46 1 disprove beyond a reasonable doubt any one or more of the 2 elements of the affirmative defense, you must find a verdict 3 of not guilty.” And that’s incorrect. Because essentially 4 if the People disprove some element of consent, they have 5 necessarily disproven consent. And for example, under their 6 definition of consent, it says, “that involves cooperation 7 in act or attitude pursuant to an exercise of free will.” 8 Now, if we disproved “pursuant to an exercise of 9 free will,” we will necessarily have disproven consent. We10 wouldn’t have to disprove each and every what they’re11 calling elements of consent. So I think that’s an improper12 statement of the burden there, and I just wanted to point13 that out.14 And then also in their — both their elemental15 instructions A1 and B1, at the very bottom they reversed the16 language of the model instructions by starting with, “if you17 decide the prosecution has failed to prove any one or more18 of the elements, you should find not guilty.” And after –19 and then the second one is, “if you decide the prosecution20 has proven each.”21 I looked through just generally the model jury22 instructions. They always seem to be in the other order. I23 assume it’s because they better track the burden and focus24 the elements on the People’s burden to prove each and every25 one of the elements, and also they track the other 47 1 instructions on presumptions of and burdens of proof in the 2 model instructions. I just wanted to point those out. They 3 seem to be the opposite. I’m not sure what the reason is 4 for that alteration. 5 THE COURT: I don’t know. We’ll find out. 6 As far as the affirmative defense instruction, 7 though, it seems to track the standard affirmative defense 8 instruction. Were you referring to A2 of the defense 9 proposal from June 11th?10 MR. HOLMAN: Yes, I was, Your Honor. It does11 track the standard affirmative defense instruction, I think.12 However, again, because it doesn’t operate as a affirmative13 defense, that’s not appropriate. I don’t know about the14 language, if the language at the bottom, if that’s what15 you’re referring to, is even a model instruction or not.16 THE COURT: Well, I think what they’ve done, and17 I’ll ask Mr. Haddon, is to modify the general affirmative18 defense instruction to apply to the specific consent19 affirmative defense as they’ve argued it to apply.20 I have always in the past given both a general21 affirmative defense instruction, 701, if applicable, and22 then a separate definition of the specific affirmative23 defense propounded, which would in this case, although these24 are outdated, but 705, consent of victim, it’s not the one25 that would apply under this particular case. But I mean, 48 1 that’s — I guess it’s 704. 2 But anyway, the point is give a general and a 3 specific. But I’ll talk to Mr. Haddon about that, because 4 it looks like he’s incorporated that into the general. 5 But the language is basically saying if you decide 6 the prosecution has failed to disprove, you’re not convinced 7 beyond a reasonable doubt, and there’s a distinction right 8 there. We’ll talk further about that. 9 Anything else?10 MR. HOLMAN: That’s all, Your Honor, unless you11 have any other questions.12 THE COURT: Thanks.13 One of the procedures that I require in tendering14 proposed instructions normally, and this case has a number15 of distinctions from the normal process, is that you cite16 authority. And I assume from my review that the instruction17 we’re referring to here, Mr. Haddon, is one that you have18 crafted from the previously existing instruction,19 specifically as I was just now referring to in your A2?20 MR. HADDON: That’s correct.21 THE COURT: All right. You may go ahead.22 MR. HADDON: I’m happy to answer any other23 questions about this. But this is the form that we took24 from — actually it was Supreme Court’s new instructions and25 with the addition of the affirmative defense. Otherwise 49 1 it’s the same format as you see in the 1993 edition of the 2 jury instructions. 3 THE COURT: And I haven’t had an opportunity to 4 review all of those to determine, do they not still follow 5 the procedure of a general affirmative defense instruction, 6 and then the specific? 7 MR. HADDON: Yes, they do that. 8 THE COURT: They do still do that. 9 MR. HADDON: Yes.10 THE COURT: Okay.11 MR. HADDON: And I don’t want to belabor this12 because I know that you’ve got too much paper and at day’s13 end we’ll have to focus, but there are a few things that I14 think have to be emphasized.15 One, although counsel argues that consent is a16 defense, he seems to suggest, without saying, that it’s a17 defense that the defendant has to prove by some evidentiary18 burden, unstated in statute or case law. And I don’t think19 that’s the case.20 For better for worse, we now have a statute that21 says it is a defense to the elements, without saying whether22 it’s a defense to any one or all of the elements. I think23 that once a defense is raised by competent evidence under24 our criminal code and our case law the prosecution has to25 disprove it beyond a reasonable doubt, and that’s a point 50 1 that I guess Your Honor’s going to have to grapple with, 2 though we certainly believe that that needs to be said, 3 however you instruct the jury, whether it’s a defense or 4 affirmative defense or both, the jury has to be told that 5 once the defense is raised by competent evidence the 6 prosecution has to disprove it beyond a reasonable doubt. 7 THE COURT: Well, I guess that’s the language that 8 I’m concerned about. Because it’s not the first time that I 9 have had the defense propound that theory that it has to be10 disproven. But when I look at the standard instruction11 previously adopted by the Supreme Court, and based upon your12 indication that it still is separated into general and13 specific, it never says — what it says is, “if you are not14 convinced beyond a reasonable doubt.”15 It reiterates the burden, and yet does not go to16 the language that you are requesting with regard to.17 MR. HADDON: The problem is that it is no longer18 an affirmative defense, and the legislature’s statement to19 that effect is going to be the way the jury is instructed,20 then it’s a free-floating defense. And I –21 THE COURT: I understand that.22 MR. HADDON: And I don’t think it can float free.23 I think it has to be tied to the elements that the jury24 knows, that it is in fact a defense to the elements, and I25 think the element of submission against her will is the 51 1 element that the Williams case, which Counsel discussed, is 2 the element that consent relates to. 3 The Williams case, which is a 1995 Colorado Court 4 of Appeals case, cited in I think our initial pleading post 5 May 11 on this issue, does state, say, just as Counsel 6 suggests, that it would have been better, in the language of 7 the Court of Appeals, if the jury had been told that consent 8 relates to, quote, “submission against her will.” 9 And so I think that rather than leave it free10 floating, assuming you’re not going to give an affirmative11 defense instruction, over my squealing body, then it has to12 be tied to the elements in a way that the jury understands.13 And the jury has to be told that if someone consents, in14 plain language, that’s not submission against her will.15 And I think Williams is the best analogy and the16 most sensible one to look to. I’m trying to cut through17 the –18 THE COURT: Well, my question was more19 specifically related to, if it is an affirmative defense,20 why would I follow the language that you’ve proposed as21 opposed to the traditional affirmative defense instruction?22 Because you want it.23 MR. HADDON: Well, I’m assuming, without having to24 make the dreaded decision, that you’re not going to issue an25 affirmative defense instruction. 52 1 THE COURT: Well, that’s fairly perceptive, but I 2 have to see. Go ahead. 3 MR. HADDON: And anyway, I hope that I’m as clear 4 as I can be on that very unclear issue. 5 But, you know, the notion that it’s simply okay to 6 put it in a theory of the case instruction I think is 7 contrary to both the new statute, 408.5, and the necessity 8 to inform the jury what consent is, first of all, since 9 we’re entitled to under the instruction on consent; and10 secondly, how it relates to the elements that the People11 have to prove beyond a reasonable doubt.12 And a theory of defense instruction, as Your Honor13 well knows, is typically more broadly crafted to inform the14 jury what the defendant’s defenses are and so on. It15 doesn’t define with precision what the elements of the16 offense are, and we think that consent has to be part of17 that definitional instruction.18 You had a colloquy with counsel about whether or19 not you had to in a definition of consent include the20 language of the statute and this talk about prior21 relationships. Ms. Easter argued this morning with respect22 to the jury questionnaire that there was no prior23 relationship, and so it is our view that that particular24 sentence simply isn’t applicable to this case, and ought to25 come out. 53 1 The Lawrence v. Texas argument, although it may 2 appear oblique, is really important. It’s important because 3 you’ve got this curious statutory structure that talks about 4 submission against her will and use of means of sufficient 5 consequence to cause submission. At the risk of wasting a 6 minute, I would like to talk a little bit what I think the 7 implications of Lawrence are. 8 Because what Lawrence says, essentially, is that 9 private sexual conduct between consenting adults is10 constitutionally protected and cannot be subject to11 prosecution. It does — it basically doesn’t talk about any12 particular means, but what the people try to do in13 structuring these instructions is suggest to a jury, without14 ever saying it because you couldn’t say it without violating15 the law, that if there are means which appear to a jury to16 be sufficient to cause somebody to submit, that’s enough to17 prove sexual assault.18 If the person consents to those means,19 Lawrence v. Texas says that’s private sexual conduct and it20 can’t be the subject of a criminal prosecution. And that’s21 why Lawrence is a talisman that we think requires a close22 look at the so-called means sufficient language, and we23 think has to be tied to the whole consent issue.24 And that’s a fairly long way of saying that there25 are constitutional implications and how you structure these 54 1 elemental instructions, and why we think you need to tell a 2 jury that consent goes to every one of them. Or at least 3 the last two, will and means. 4 I’m sort of torturing — torturing the welfare law 5 by talking about means testing, but in essence you have to 6 make it clear to the jury that whether or not you like the 7 means, if someone consents to it it’s not criminal conduct. 8 And that’s the implication of Lawrence v. Texas. 9 THE COURT: Well, I understand that as it relates10 to Lawrence, but I don’t know whether that’s the kind of11 message that we need to make clear to the jury under the12 facts of this case.13 MR. HADDON: Probably not under the facts of this14 case. It depends on what the facts of this case play out15 as.16 But to us it’s an important argument. And I17 think — I think frankly I’ve covered all of the other18 points that Counsel makes, and unless you have other19 questions, I’ll sit down.20 THE COURT: Well, that brings us back full circle21 to the earlier discussion of trying to provide a meaningful22 instruction to the jury with regard to consent, and yet23 trying to comply with the law.24 In light of some concerns with regard to25 publicity, but yet acknowledging that jurors, like lawyers, 55 1 are intelligent, rational people, are we not approaching a 2 level of confusion in terms of overdefining an issue here, 3 which people who will be serving on the jury can clearly cut 4 to, was there submission or was there consent? And in light 5 of trying to make it clear to them, are we not overlawyering 6 the instructions? 7 MR. HADDON: I agree totally. I think the model 8 instruction is overlawyered. I would love an instruction 9 which simply said exactly what Your Honor has said, was10 there submission, and if so, was there consent. Simply put.11 I would love an instruction like that. Lawyers don’t seem12 to be able to draft them that way. But that — that’s a13 simple and plain and appropriate instruction as I think you14 could get.15 THE COURT: Anything further on those issues?16 MR. HADDON: No.17 THE COURT: Thank you.18 Anything else to add? The reason I was concerned19 about the language in the consent statute is because, and I20 know that you haven’t been here, Mr. Holman for the infinite21 number of references to the facts in this case, but why are22 we talking about a relationship, current or previous?23 MR. HOLMAN: Well –24 THE COURT: Because it’s a statutory definition?25 MR. HOLMAN: No. I think — I think it’s 56 1 relevant. And I have to be candid, Your Honor, I am not 2 familiar with all of the details of the facts in this case. 3 But I think that that language of the statute is broader 4 than just a romantic relationship or a marital relationship. 5 It’s intended to clarify the situation that any kind of 6 acquaintance situation is not in and of itself consent. 7 And so I think it’s just broader. I think it 8 covers, as I said, the full spectrum from acquaintance rape, 9 which sounds more like the facts we have here, and all the10 way up the spectrum to marital. Just simply clarifies that.11 I guess I will respond just for a moment about the12 Lawrence v. Texas and whether consent needs to be13 essentially proven separately. And again, I think if you14 read the language in Dunton, if I can find it, it says,15 “these acts of the defendant caused the victim to be unable16 to consent.”17 And I think that’s the concept under both the18 first and second degree sexual assault, which is if someone19 causes someone to submit to a sexual act through means that20 are — that they’re aware are reasonably calculated to cause21 submission, that in and of itself, you can’t get consent in22 that manner. That’s what the statute says.23 You can’t use an overbearing thing or the physical24 force or violence, under the statutory language, and then25 claim consent to that conduct. 57 1 So I think there is that important distinction. I 2 think that’s why the cases and the statutes make clear that 3 those are the elements, and not this independent awareness 4 of nonconsent. 5 That’s all I have, Your Honor. 6 THE COURT: Thank you. 7 MR. HOLMAN: Thank you. 8 THE COURT: Next we can address the defense motion 9 for adverse inference instruction.10 MR. HADDON: Your Honor, this briefing was11 eliminated from Your Honor’s review of our brief in support12 to put forth expert testimony about the crime scene. And13 Your Honor noted in that brief there was reference to a jury14 instruction regarding adverse inferences, that law15 enforcement had not collected evidence following routine law16 enforcement procedures, so Your Honor asked us to submit a17 proposed instruction on that issue. We have done so. We18 have drawn it essentially from the Delaware formulation.19 We have cited to Colorado Court of Appeals case,20 very recent Colorado Court of Appeals case, which is on cert21 to the Supreme Court, I might say, Pfantz v. K-Mart, which22 allows instruction that an adverse inference may be drawn if23 material evidence is lost or destroyed, even if negligently24 done and not done in bad faith.25 THE COURT: In a civil case. 58 1 MR. HADDON: In a civil case, right. Where only 2 money and not liberty is involved. But there is floating 3 around our jurisprudence the notion that due process is 4 applied in both kinds of contexts, and the prosecution in 5 its briefing acknowledges that courts in other states have 6 given such an instruction, one is Virginia, there’s another 7 I believe they cited to, and I believe they cited a Nebraska 8 case called Davlin. 9 And the prosecution argues that you can only give10 such an instruction if there is the finding of bad faith on11 the part of law enforcement. A judicial finding.12 I submit that a jury can be told that if they13 determine that there’s bad faith and failing to search for14 and collect evidence pursuant to routine police procedures,15 if they find bad faith then they can draw an adverse16 inference. And that’s one way to structure an instruction17 that covers these problems.18 But it seems to us, and I’m not going to belabor19 this, that the Court ought to defer a decision on this one,20 too, at least until jury instruction conference, and perhaps21 until you’ve heard all of the evidence and determined after22 hearing the officers testify and our crime scene experts and23 the prosecution’s crime scene experts testify whether that’s24 an appropriate instruction. But the cases that we’ve cited25 to you clearly say — and they’re rooted, I submit, in due 59 1 process considerations, that where law enforcement or a 2 party in a civil case has control of physical evidence and 3 they don’t preserve it, and to preserve it would be routine 4 and standard practice, that a jury can infer from that that 5 the evidence, had they collected it, would be exculpatory to 6 a defendant in a criminal case, or adverse to a defendant in 7 the civil case. And that’s the simple proposition on which 8 we base that tendered instruction. 9 And again, I think you might — you might want to10 wait until you hear all of the evidence before we decide, A,11 whether one’s appropriate; and B, if so, exactly how to12 phrase it.13 But we’ve tendered it pursuant to Your Honor’s14 suggestion.15 THE COURT: Mr. Hurlbert.16 MR. HURLBERT: Thank you, Judge.17 Judge, I don’t think you even need to wait until18 evidence is in. It is simply not the law in the state of19 Colorado. The law in the state of Colorado is they don’t20 get this inference whether there is — and we do not concede21 in our brief that a showing of bad faith gives us this22 instruction. They don’t get this instruction whether23 there’s a showing of bad faith or not.24 And, Judge, they haven’t really even really25 brought that up in their brief. What they say is that the 60 1 above listed items of physical evidence are highly material 2 to the defense. That is not the standard. The standard as 3 we cited in our brief in Wyman, W-y-m-a-n, 788 P.2d 1278, 4 Supreme Court case from 1990, said first of all you have to 5 have bad faith. Was there bad faith. They are not even 6 alleging that in their brief. What they’re alleging is the 7 officers just didn’t do their job. Not that it was they did 8 it in bad faith. 9 And then even if you get that there was bad faith10 to show that there was a violation on the failure to11 preserve evidence is whether it’s constitutionally material,12 not whether it’s highly material or whether somebody thinks13 it’s material. It’s whether it’s constitutionally material.14 And what that means is must have had an exculpatory value15 that was apparent before the evidence was lost or destroyed.16 And, two, the defense must be unable to obtain comparable17 evidence through other available means.18 Judge, this argument, I’m just going to be brief19 because it’s slightly premature, but stuff that they — the20 stuff that they’re asking for, Judge, this is a consent21 case, as the defense has said over and over again. The22 officers got to the room about 24 hours after the assault.23 This is a hotel room, which changes its sheets, its towels,24 washes its sinks.25 THE COURT: Everybody keeps saying that, but I 61 1 haven’t really heard any evidence of that, I guess. 2 MR. HURLBERT: That it happened in a hotel room? 3 THE COURT: No. That they changed the sheets. I 4 don’t know. Maybe it’s one of those that says, we’re 5 environmentally friendly and we don’t clean up this place 6 unless you ask for it. I mean. 7 MR. HURLBERT: Right. 8 THE COURT: That’s a reality these days. 9 MR. HURLBERT: I understand that, Judge, it is10 a –11 THE COURT: Is there evidence? Does anybody know12 if there’s evidence to whether it was cleaned or not13 cleaned? I’m not asking for the answer. Does anyone know14 if –15 MR. HURLBERT: Yes, Judge, there is.16 MR. HADDON: And I say no, Judge.17 THE COURT: Okay. So you don’t know, and somebody18 else knows.19 MR. HURLBERT: We know, Judge, yes. And it is20 contained in discovery.21 THE COURT: All right.22 MR. HURLBERT: So, Judge, they haven’t even gotten23 that far as showing that even if it is bad faith or24 constitutionally material, and Judge, even if they show all25 of that, they don’t get an instruction. The Colorado law 62 1 does not say in criminal cases that there is this recent 2 civil case, does not say in criminal cases that they get an 3 inference that if the police did not do their job, that they 4 can infer it’s exculpatory. They can’t infer one way or the 5 other. 6 Now, in the jury instructions. Now, the defense 7 can get up and argue that. The defense can get up and argue 8 that, gee, they didn’t do their job so therefore it must be 9 exculpatory. But it is not the state of Colorado law at10 this time, and so should not be a jury instruction. Whether11 they can show the bad faith or not.12 So, Judge, the People would ask you to deny this,13 not even wait on this. And, Judge, jury instructions are14 very important, and I think this Court knows that one of the15 ways trial courts get overturned more than just about16 anything is on jury instructions, because these are the law17 that is coming from the Court to the laypeople. To the18 jury. And Judge, they cannot be wrong.19 And this is simply wrong. It is simply not the20 state of the law in Colorado. It’s the state of the law in21 Delaware, but we’re not in Delaware. But it is not the22 state of the law here, and the People would ask you to –23 THE COURT: Well of course I’m certainly receptive24 to your arguments with regard to the potential, but in this25 case it would work that way, if there were a conviction, and 63 1 I gave this instruction, it’s not one that’s likely to 2 result in overturning here. 3 MR. HURLBERT: No, Judge, I’m not saying that 4 you’re going to get overturned if you give this instruction. 5 What I’m telling you is how really important this is, and 6 the Supreme Court and Court of Appeals have recognized this, 7 is how important these jury instructions are and how they 8 need to reflect the state of the law today, and this does 9 not reflect the state of Colorado law. So we would ask you10 to deny this motion.11 MR. HADDON: Your Honor, I would only say that12 there’s no Colorado case in a criminal context one way or13 the other. So to say that it’s not the state of the law14 does not suggest that courts have rejected it, and courts in15 other states have indeed suggested that in an appropriate16 case it should be given.17 But the question of whether or not the room was18 cleaned, which is very much an open evidentiary question to19 us, doesn’t resolve the matter, either, because there was a20 lot of evidence that could have and should have been21 gathered, as we’ve noted in our pleadings with respect to22 expert witnesses, that wasn’t. And now it’s lost forever.23 So that notion doesn’t end the matter. And24 ultimately, the failure to follow even the most routine 10125 police evidence gathering procedures, as we’ve argued in 64 1 other briefs, goes to bias, and that’s equated with bad 2 faith. 3 And so I think that to argue Wyman, which is a 4 suppression case and not a jury instruction case, is simply 5 inapposite. The short take on all of this is that it’s an 6 issue of first impression in Colorado in the criminal 7 context, and in a civil context the Court of Appeals has 8 determined that it’s appropriate. And we think that 9 assuming the evidence bears out our version of events, it10 ought to be given.11 THE COURT: All right. Thank you.12 We’ll take the morning recess at this time.13 (A recess was then taken.)14 THE COURT: I feel compelled to apologize for the15 design of the building. For those of us who have been here16 before and tried cases, sometimes it’s hard to hear because17 of the architectural niceties. So again I’ll ask everybody18 to make sure you speak up. And I know that I need to do19 that, too.20 I forgot to give you copies of these juror21 summonses for your review so that you can have a better idea22 of what the limitations are, and then review those for what23 changes you might make.24 MRS. MACKEY: Thank you, Judge.25 THE COURT: On the issue of the defense motion for 65 1 adverse inference instruction, the Court finds as follows. 2 The victim alleged that the assault occurred on — 3 at approximately 11:00 p.m. on June 30th, 2003, at the 4 Cordillera lodge. The alleged victim reported the assault 5 on July 30th, 2003. Officers first made contact with 6 Mr. Bryant just after midnight on July 2nd, 2003. Since the 7 alleged assault happened at a hotel, and there is apparently 8 a dispute as to whether the sheets, towels and trash cans 9 had already been changed by the time the officers arrived,10 the Court cannot make that ultimate determination at this11 juncture.12 However, there is no evidence before the Court at13 this time that any tests performed on the items the defense14 wishes had been preserved would have been material, or more15 particularly, exculpatory, in light of the defense of16 consent, which we have so extensively discussed.17 This evidence does not appear to be exculpatory in18 this case. The defense contends that, and Mr. Bryant is19 entitled to a instruction that requires the inference that20 uncollected items should be inferred to contain exculpatory21 evidence and relies on a Colorado civil case, and cases22 decided out of the state of Colorado. And that case is23 specifically Pfantz, P-f-a-n-t-z, v. K-Mart, 85 P.3d 564.24 However, Colorado has never applied adverse25 inference principle in the criminal arena. Under Colorado 66 1 law a due process claim based on the failure of police to 2 retain potential evidence requires a showing of bad faith. 3 Even if bad faith is shown, then the question is whether the 4 evidence is constitutionally material. To be 5 constitutionally material, the evidence, one, must have an 6 exculpatory value that was apparent before the evidence was 7 lost or destroyed; and two, the defendant must be unable to 8 obtain comparable evidence through any other available 9 means.10 A defendant may argue to the jury that an11 inference should be drawn from the absence of certain12 evidence, or he may cross-examine the state’s witnesses with13 regard to that absence. That has been done and developed in14 some of the pretrial proceedings in this case, and of course15 remains available to the defense at trial.16 However, such an instruction places an undue17 emphasis on one of the many inferences, as the Court will18 instruct the jury, may be drawn from evidence. Therefore,19 the Court will deny the defense motion for an adverse20 inference instruction as it relates to the state’s failure21 to collect and preserve material evidence.22 The next matter we had scheduled related to the23 defense motion to show cause regarding DNA retesting. The24 Court has received two pleadings relating to that, the most25 recent pleading’s dated June 17th. First was the People’s 67 1 response to defendant’s motion to show cause for failure to 2 comply. And then secondly the Court received the People’s 3 notice of discontinuation of testing. 4 In light of the record, as well as the pleadings 5 in this case relating to that issue, the Court deemed it 6 appropriate that we make an accurate record with regard to 7 that issue at this time. 8 So my understanding is that the People, based upon 9 the notice of discontinuation of testing, are taking the10 position that the issue with regard to the show cause is now11 moot and therefore should be discharged.12 MS. EASTER: It is, Judge, at this point in time,13 and we are doing that in hopes of securing a summer trial14 date. If that should not happen, we will certainly bring15 this back to the Court’s attention should we change our –16 our minds about what we’re doing with the evidence.17 THE COURT: Well, I’m sure that Mr. Hurlbert has18 advised you, since you’re now not too familiar with this19 court but not familiar with all of the quirks of the Court,20 that I don’t enter into negotiations with regard to rulings21 or settings or a number of things, sentence concessions and22 so forth.23 If we’re going to go forward under any24 circumstance with any further testing, we need to address25 that and address it now. 68 1 MS. EASTER: Well, Judge, I’m not inviting the 2 Court to engage in any sort of negotiation. It is our 3 intention, it is our hope, to set this for trial as early as 4 possible, and because of that and because of the delay 5 caused by the show cause proceedings, we decided to not test 6 the evidence so that we could obtain a trial date. 7 If that does not happen, then we do — we may 8 decide to proceed. Of course we will notify the Court and 9 counsel.10 But if the Court really does want to hear this11 today, I’m certainly prepared to argue it.12 THE COURT: Well, I appreciate the People’s13 position and had anticipated going forward, based upon that14 representation, not addressing the issue. In light of your15 comments, I may need to reevaluate that, and that’s the16 reason that I said that I thought we should make a record.17 Because I think we’ve visited and revisited this issue on a18 number of occasions, and, you know, there are a variety of19 positions taken by the respective parties, but if it’s still20 an issue, we need to address it.21 My position has always been that I would set the22 matter for trial when counsel can assure me not just by23 words that they are prepared but by deeds, and that24 additional issues are not being raised by motions other than25 those that might arise from certain court rulings. 69 1 This is the best example that I can think of, but 2 not the only one, in which we’ve had some dispute arise in 3 which an objection was stated, and then later stipulated to, 4 and then that was withdrawn in either words or deeds, and 5 we’ve had to revisit the issue, and that’s back to when I 6 originally ordered certain materials to be turned over. So 7 I don’t want to let this go. 8 If it’s the People’s position that they are 9 discontinuing with testing and they are asking the Court to10 set the matter as quickly as possible, I will assure you,11 that there are other contingencies that I need to address12 with regard to matters that I need to rule on, and that the13 parties need to assure me that they have no other issues to14 raise other than what might come out of some of those15 rulings. And we all know what we’re talking about, issues,16 motions in limine and so forth, depending on, one, the17 evidentiary ruling of the Court.18 So with that in mind, I guess I’ll give it back to19 you in terms of the People’s position.20 MS. EASTER: Well, Judge, I don’t think that gives21 me sufficient direction to not argue it, so I think what I22 do need to do is tell the Court what the People’s position23 is in regards to testing.24 THE COURT: All right. Thank you.25 MS. EASTER: Judge, the evidence in question here 70 1 has to do with four swabs. Those are — those swabs were 2 physically cut in half, and that cutting was actually 3 witnessed by the defense expert Dr. Libby Johnson. Those 4 swabs have remained — or those half swabs, and I’ll call 5 them the prosecution’s half, have remained in our custody at 6 all times. 7 The defense has done — well, first of all, there 8 was certainly consumptive testing that was observed by all 9 parties at the Colorado Bureau of Investigation. The10 defense then took their — their half of the swabs. They11 also took all of the evidence, and I would say that12 particularly in light of the test results, the People are13 very concerned that we did have to turn over all of the14 evidence. We would like to have been able to split the15 evidence in half, just as the swabs were done.16 Now, our expert was not able to observe the17 testing, although they were invited to observe the testing18 at Mark Taylor’s lab. We decided that we wanted to rule out19 contamination, and that we wanted to pick one of — pick a20 very good laboratory. Now, we would have chosen the21 Colorado Bureau of Investigation, but because of the rules22 under which they operate, because they are a government lab,23 we could not get the kind of testing done that we needed.24 And we are talking about obtaining DNA samples25 that are so minuscule that they fall well under — three 71 1 times under the C.B.I. limit for even reporting the presence 2 of DNA. And we are talking about pieces of evidence that — 3 we’re talking about a very durable and a very transferrible 4 item, which is spermatozoa. 5 We determined that the lab that we wanted to have 6 this testing done at, which did the type of testing C.B.I. 7 does not do, was a lab called Bohde Technologies, in 8 California. 9 Judge, we had no objection to the defense10 observing that testing. However, we learned that this11 laboratory, as many other laboratories do, does not allow12 people into their lab. And in fact, Colorado Bureau of13 Investigation in the past has never allowed anyone in their14 lab, except to observe consumptive testing.15 It is not unusual in the industry, Judge, for16 people not to allow experts of either side into their17 laboratory. And although defendant says that C.B.I. has18 never complained, in fact what the truth is is that they19 have not heard C.B.I.’s complaints. It is time-consuming20 and there is a risk of contamination when outside people are21 allowed into the laboratory. And it is very time consuming.22 It disrupts what they need to do, and C.B.I. is23 extremely busy and understaffed. That is a position taken24 by many laboratories. Judge, this is not Gomez evidence,25 this is not any evidence that the defense has any right to 72 1 dictate where we test or how we test. They can certainly 2 question it afterwards. 3 THE COURT: My concern about your position, while 4 it may be well taken, is that in neither of the two times 5 that the Court discussed that with you was that the position 6 of the People. 7 MS. EASTER: And Judge, the main reason is that we 8 don’t have any objection ourselves to the defense expert 9 watching the testing. We don’t.10 We were misinformed initially about whether or not11 experts were allowed. The miscommunication occurred because12 what Bohde Technologies does allow is for the expert to be13 sitting in the waiting room and be shown the test results as14 they come up. As they come up in the gel, or as they come15 up on the Polaroids. And they are allowed to see that but16 they’re not allowed in the lab. And that would go for both17 our expert as well as their expert.18 So because we did not anticipate the problem,19 Judge, we could not address it. We were not aware of this20 until the day that the DNA actually arrived at the lab and21 we were going to start testing, which was June 1st.22 We would have been finished with testing by last23 Friday if we could have gone ahead. But given that delay,24 we decided not to go ahead.25 But in any case, Judge, this is not — the defense 73 1 does not have a right to observe this testing. 2 THE COURT: But isn’t that your afterthought 3 position, because the Court did make it clear. And for the 4 moment I’ll set aside whether that was an order or not. 5 MS. EASTER: Yes, Judge, the Court made it clear. 6 THE COURT: You knew that that was the Court’s — 7 MS. EASTER: Which is why we did not go forward 8 with testing. When we learned what their true position was, 9 we didn’t go forward with testing.10 THE COURT: So your position is that you learned11 from somebody, I forgot what the language is, but at the –12 a receptionist or someone who said yes, they could be13 present. But when you talked to whom at the laboratory did14 they advise you that –15 MS. EASTER: I’m not aware of the name of the16 person, but it was the scientist.17 THE COURT: And at that point then did you explore18 other alternatives of laboratories? Since I know for a fact19 that there are other labs; as you pointed out, some do, some20 do not allow experts.21 MS. EASTER: Right. Judge, at that point because22 of the time delay and the hope for an August trial setting,23 we determined to just discontinue testing in hopes of24 getting an early trial setting.25 If that should not happen and we have sufficient 74 1 time, I will tell the Court that our position is going to be 2 that it’s our evidence and we ought to be able to take it to 3 whatever lab we want, and if we choose a lab, an excellent 4 lab, this lab was recommended to us by our expert, that does 5 not allow the defense in, there’s nothing wrong with that. 6 Because under the law we do not have to allow the defense to 7 observe. 8 THE COURT: Which is a determination ultimately 9 the Court must make.10 MS. EASTER: Well, Judge, I actually think that if11 you look at the case law in this area, that what it says is12 it’s our evidence. And I understand that the Court has a13 lot of control over that, particularly in terms of timing,14 but I don’t think that the Court can enter orders which are15 contrary to the law in Gomez and Greathouse.16 THE COURT: But of course the delay has been that17 it wasn’t objected to, the People agreed to it, and it’s the18 independent lab that is refusing to go along with the19 directive, say for the moment, not following an order, that20 they will be allowed.21 So, you know, timing certainly is an issue and22 timing was stated to be an issue when we discussed it at23 various hearings, and even the telephone conference.24 MS. EASTER: Right. The problem is, Judge, I25 don’t really know what to say because I feel like we’re 75 1 going around in circles. 2 THE COURT: Fine. Go ahead with your point. 3 MS. EASTER: Well, I’m essentially finished. 4 THE COURT: Okay. Now, is it then, in light of 5 you stating that you’re finished, no longer your position 6 that the language which you cited in your response to the 7 order to show cause is not an order of the Court? 8 MS. EASTER: Judge, I also think that that is an 9 inquiry that’s neither here nor there. I am asking the10 Court for direction, if that is a court order, then we know11 what procedures we need to take if we want to continue to12 use Bohde Laboratories. So it would certainly, if — it13 would certainly be helpful for the parties to know whether14 or not that’s an order.15 THE COURT: Well, it was intended to be an order,16 and I — I was somewhat shocked, and as we briefly discussed17 in one of the phone conferences, I wanted to verify that18 that was the People’s position that it was not an order.19 You know, we have counsel here who are serving as20 media consultants in this case with more experience than21 probably all the rest of us put together. And when the22 Court gives a directive that states, I think it’s fair to23 anticipate the likelihood of a need to arrange for presence24 of a defense expert to not be — that certainly is a25 directive if it’s not an order, just surprised me. I mean, 76 1 I would never have, as a practicing attorney, tried to argue 2 to a Court that that wasn’t an order. 3 MS. EASTER: Judge, I think the fact that we did 4 not go forward with testing shows the Court the respect with 5 which we held your directive or order or whatever you want 6 to call it. Had we gone forward with testing, based on 7 that, I can certainly understand why the Court would want to 8 impose sanctions on us. 9 The fact that we did not go forward with testing10 makes it moot. I mean, we acted as if it were an order.11 Whether it was or not.12 THE COURT: And I commend you on that, although13 when I read this I wasn’t quite sure, and then when I asked14 about it at the conference in terms of schedule whether we15 needed to do that.16 Now I’m back to that concern, because although I17 hear you saying that you will accept the statement of the18 Court that it is an order, but we spend a fair amount of19 time, I assume you did, I know I did, addressing this issue20 between now and when — between when the Court raised it21 originally and now, and to have spent that much time and to22 now say, well, we’re not going to go forward if you give us23 a trial date that we — that is acceptable to us does not24 comport with my understanding of the ultimate responsibility25 of case management lying with the Court. 77 1 And I just don’t know how to — 2 MS. EASTER: Well, Judge — 3 THE COURT: I just don’t know how to react to 4 that. And I understand that you respected the Court’s 5 order. 6 MS. EASTER: Judge — 7 THE COURT: When I issued the show cause, that was 8 based upon a procedure that I know to be standard, and that 9 is when a motion is brought to the Court, whether it’s in a10 child support case or whether it’s before the Supreme Court,11 and they determine to issue a show cause order, then the12 response comes.13 Now, is that not the procedure that you’re14 familiar with?15 MS. EASTER: Judge, I have seen it handled many16 different ways, and I think that’s the best I can say.17 What I can say to the Court is that we’re not18 trying to blackmail the Court. We have a thousand decisions19 to make, and some of them are based on considerations that20 of course the Court can’t know about. Some of them are21 based on considerations of moving things along for the22 Court’s benefit, for the victim’s benefit, for the23 defendant’s benefit, for everything. We have a thousand24 decisions to make.25 THE COURT: I respect that. 78 1 MS. EASTER: We did not make the decision to go 2 forward with testing lightly, and we certainly did not make 3 the decision to stop testing lightly. We were very dismayed 4 when we realized that we were looking at a very lengthy 5 delay, two-and-a-half weeks or three weeks. And based on 6 how many considerations and decisions we have to make, we 7 decided that we had to discontinue testing in hopes of the 8 early trial date. 9 And I do — would like to ask the Court for10 clarification. Is it an order that the defense — that the11 defendant be present when testing is done?12 THE COURT: That was the Court’s order.13 MS. EASTER: Is that now the order?14 THE COURT: Well, since you can’t tell me whether15 you’re going to go forward with testing or not, I don’t feel16 compelled to answer that question. I mean, I don’t mean to17 be smart and that sounds smart, but that’s not exactly the18 way things go.19 If you’re telling me — because that leads to my20 next question, so what are the parameters? If I say, August21 trial date, it’s okay. If I say September trial date it’s22 not okay, you’re going to retest. See, that’s the problem23 with this –24 MS. EASTER: Right.25 THE COURT: It is — 79 1 MS. EASTER: I understand. And it’s not my 2 decision alone, Judge, so I really can’t stand up here and 3 answer that. 4 THE COURT: But that’s the reason I can’t answer. 5 MS. EASTER: I understand. 6 THE COURT: Because I certainly understand your 7 position with regard to the exculpatory nature. I have some 8 concerns about that that have now been raised that were not 9 raised at any of the earlier hearings we had with regard to10 retesting.11 Now it’s an issue. And of course that compounds12 the concern about the delay, because I didn’t see any13 problem initially. I didn’t see any problem when we14 consulted about it with me giving you some direction as to15 time frames, and then all of a sudden it became an issue.16 So anyway, I don’t know if the defense would like17 to address this or not.18 MR. HADDON: Only to say this. I agree that Your19 Honor can’t be giving orders in the abstract. But we20 started on this road six weeks ago. We’ve lost six weeks, a21 lot of paper, and a lot of cost to our client litigating22 whether or not Your Honor issued an order, which you clearly23 did, and whether or not they stipulated to the order, which24 they clearly did, and whether or not their stipulation to25 the order, in their eyes, somehow was a breach of the 80 1 executive function. 2 And so in our view if there’s going to be more 3 testing, we’re going to lose another three months. And it 4 seems to us that the People, having made their election, 5 have elected not to do more testing, and that window is 6 closed. More testing will require us to reargue, I guess, 7 since it’s now a new issue, a right to be present, and the 8 important implications of that. 9 And I just think I need to say one other thing,10 and that is the prosecution continues to state it’s, quote,11 “our evidence,” unquote. It doesn’t belong to anyone. The12 material evidence, the integrity of which and the13 persuasiveness of which ultimately is in the Court’s control14 and the justice system’s control, and they don’t have a15 right to do what they wish to with it and manipulate it.16 And we’ve pointed out in our pleadings that this17 DNA testing was not only sophisticated, but it’s critical,18 critical in this case that it be done right because it’s so19 sophisticated, from extraction to interpretation.20 And that’s why we requested to be present, and no21 one objected to it, and it became an order of Court. And22 now what I sense is that if counsel doesn’t like the trial23 date that you give us, then they’re going to try to retest24 and start this — this circus all over again. And our25 position is, enough’s enough. 81 1 They have elected not to retest, and we should 2 proceed expeditiously to get this matter to trial with the 3 evidence that they have elected to go with. 4 I could discuss sanctions. It seems to me that 5 presently that’s a moot point. But if they choose to reopen 6 this issue, I can assure Your Honor that we’re going to seek 7 serious sanctions. Some of which we’ve discussed in our 8 pleadings. 9 But our bottom line is they’ve made an election,10 they ought to be forced to stick with it. Otherwise we’re11 going to go around and around and around and we’ll never get12 this case tried.13 THE COURT: Ms. Easter, anything further?14 MS. EASTER: Well, Judge, as this Court certainly15 knows, it’s very difficult to tell the future. And because16 we don’t know absolutely what’s going to happen or whether17 the Court would grant a motion to continue or anything like18 that, I think that there’s a possibility that we might want19 to go forward with testing.20 The defense was given half of the swabs, they have21 had that testing at a place where they wanted the testing22 done, and I think that there is nothing wrong with going23 forward with one of the foremost DNA laboratories in the24 country testing this evidence.25 We are testing it for a truth-seeking function, 82 1 and for Mr. Haddon to imply that we’re not is just simply 2 not correct. 3 And that is why I truly am asking the Court to 4 give us some direction about that. We have elected at this 5 time — to preclude us from deciding to test in the future 6 if circumstances are different is simply not right. I mean, 7 truly this is an executive function. This is the function 8 of the district attorney’s office. So. 9 THE COURT: Well, there’s no doubt about that.10 That gets into another issue with regard to your argument11 that I am trying to preempt an executive function, and of12 course that’s just absolutely absurd.13 The point is that I had entered an order with14 regard to how the test would be conducted, that the People15 had not objected to that, that they had even agreed to go16 forward with the testing and the time frames that the Court17 had established, and only after that — as you pointed out18 this morning — did you find out the lab wouldn’t go along19 with it.20 So it’s not an issue from that standpoint as to21 what the Court ordered or what the People agreed to. It was22 merely an issue as to whether that lab would comply with the23 Court’s order. The People have the right to test as they24 deem fit. The People also have a right to take a chance as25 to whether ultimately that would be admissible if they 83 1 choose to test as they deem appropriate as opposed to the 2 manner in which the Court had directed the testing to be 3 done. 4 So I certainly cannot anticipate what might result 5 if that issue were to arise again. I in good faith accepted 6 the People’s notice of discontinuation of testing as one 7 that acknowledged the time that might be spent, and now the 8 reality is the time that has been spent, on that issue, and 9 that they were withdrawing, as the motion says, in hope of10 an August trial date.11 I don’t think those kinds of contingencies can be12 imposed on a court in terms of we’ll back off if you give us13 what he want. That — there’s no other way to read that.14 Now, I can’t deliver on that. I will continue to15 pursue, as you wish and as Mr. Clune has expressed on behalf16 of the alleged victim and the defense has expressed, as17 early a trial date as possible. I will accept the People’s18 notice of discontinuation of testing as a representation19 that they will no longer seek any further testing of the20 items in question. And therefore the issue of any show21 cause is moot, and the Court will order that it be22 discharged.23 Next is the issue of designation of victim’s24 representative pursuant to the statute.25 Mr. Hurlbert, I don’t know if you were going to 84 1 address that, or Mr. Clune, we discussed the possibility of 2 him doing that. 3 MR. CLUNE: Good morning, Judge. John Clune on 4 behalf of the victim. 5 Judge, I’ll be brief. This was an issue that came 6 up while I was gone at the last hearing, and I think 7 actually the fact that I wasn’t present for the last hearing 8 probably lent itself to the issue even coming up in the 9 first place.10 But from reviewing the transcript, what my11 impression was that had taken place is that there was a12 designation of a victim’s representative as her mother for13 that particular hearing. There was not a specific objection14 by the defense to the victim’s mother being present for the15 hearing as the representative, but that I think triggered16 the Court’s questioning about whether or not a victim can17 change their designee as a representative, or if it needs to18 be one person from start to finish.19 The prosecution filed a brief in regards to that.20 The defense responded, and at our status conference by phone21 a couple weeks ago the Court had inquired about whether the22 prosecution or I would argue the motion. I’ve elected to do23 so, and so I stand before you today.24 Judge, there’s a couple of things –25 THE COURT: And I just want to make clear, I 85 1 assume there is no objection by the defense, even though it 2 was the People’s brief. 3 MRS. MACKEY: No objection, Judge. 4 THE COURT: All right. Thank you. 5 MR. CLUNE: Judge, the defendant’s brief states 6 that they think that I should be the victim’s representative 7 from now through the remainder of the motions and trial in 8 this case, and they state some good reasons why it makes 9 sense and why it works well for a victim’s attorney to be10 a — a representative on behalf of the victim, and I think11 that’s part of the reasons why this particular victim sought12 counsel in the first place.13 However, under the statute that designation is not14 one that is able to be made by the defense or the15 prosecution or the Court or even myself. It’s made by the16 victim.17 That being said, and I don’t say this to in any18 way undermine the importance of this issue, but I’ll put the19 Court on notice from a practical standpoint, I find it20 highly unlikely that there will be any change in the21 victim’s representative, other than myself, for the22 remainder of all motions and trial. I can’t foresee23 emergencies or medical emergencies either to myself or24 family or that sort of thing, but it is my intent to be25 present as the victim’s representative for the remainder of 86 1 the motions hearings, trial, and sentencing hearing. 2 Judge, the issue that comes up before the Court is 3 on the interpretation of the particular subsection in the 4 victim’s right statute that is referred to in both briefs, 5 and I’ll read that statute. 6 It says, under (6)(A) from 24-4.1-303. (6)(A) 7 says, “A victim or an individual designated by the victim 8 may be present at all critical stages of a criminal 9 proceeding regarding any crime against such victim, unless10 the Court or the district attorney determines that exclusion11 of the victim is necessary to protect the defendant’s right12 to a fair trial, or the confidentiality of juvenile13 proceedings,” which don’t apply in this particular case.14 Then it goes on to discuss there can be a15 representative as well accompanying the victim if she elects16 to be present.17 Judge, there’s two different reads of this18 statute, and I think both the prosecution and the defense19 have well outlined the two different interpretations that20 you can have on this. One of which is to say that a21 particular victim can designate one single individual, and22 that’s it. You get that individual, that’s your23 representative, start to finish in the case without change.24 The other read is what the prosecution has25 suggested is that the statute proscribes that you’re 87 1 entitled to have one representative, but not limited that 2 one representative to each and every hearing. So that would 3 mean that you can’t have two or three or four people sit in 4 on a hearing or a trial in your behalf, you only get one 5 representative. 6 But the People have taken the position, and I 7 concur with this position, that the victim has the right to 8 designate that individual depending on — on the particular 9 hearing, the availability of that individual, and also the10 nature of the hearing.11 As the Court is well aware, and we talked about12 this a little bit on the status conference, there can be a13 time there is a conflict between the victim’s right to have14 a representative in court, and the defendant’s right to a15 fair trial. And sometimes in cases, and this case in16 particular, we have things like sequestration orders which17 are designed to make sure that people’s testimony is not18 tainted.19 Well, if a victim were to have a designated20 representative that proceeds as the representative for the21 first six months of the case and then the defense files a22 motion, that representative then gets subpoenaed and is23 subject to a sequestration order, under the defense’s theory24 at that point the victim would not be able to have25 representation because that individual may need to be 8725 88 1 excluded based on the sequestration order. 2 And a couple other things that I had alluded to, 3 you know, I’m content with being the victim’s representative 4 for the remainder of this case, but I can’t guarantee that 5 there isn’t going to be some sort of medical reason that I 6 can’t be present. I can’t guarantee that there isn’t some 7 sort of family emergency that I’m not permitted to be there, 8 and the concept of not allowing somebody else to fill in in 9 some sort of exceptional circumstance seems inconsistent10 with the purpose of the victim’s legislation.11 Another thing that came up in this particular case12 by example, Judge, is initially on the case there was some13 victim representation prior to court proceedings, but victim14 representation through the Resource Center, the Eagle County15 Victim’s Advocates program. One individual who was working16 closely with the family and was the victim’s representative17 with the district attorney’s office left that job, and she18 moved on to another job.19 So the concept of not being able to change your20 designee for some sort of legitimate circumstances seems,21 again, inconsistent with the purpose of the legislation,22 which generally speaking, Judge, if you take the entirety of23 our victim’s rights legislation and you look at what it is24 they’re trying to do with this legislation, I won’t read the25 preamble purpose of that, but generally what we’re trying to 89 1 do is to make sure that the victim’s rights are complied 2 with, and particularly make sure that the victim has a free 3 flow of information about what’s going on in the particular 4 case that they’re a victim of. 5 So those two things seem consistent with the 6 concept that the only logical interpretation of that section 7 is not that you get one representative start to finish in 8 the case and if that person can’t be there or something 9 happens to that person you’re out of luck. The only logical10 interpretation is that you get one person to come to the11 court on your behalf, and there’s no real logical basis to12 prohibit a victim from changing that representative based on13 particular needs or based on the particular motion or trial14 issue that’s being litigated.15 THE COURT: I understand your position with regard16 to logic, but you also stated the basis of concern that the17 Court has, and that is a free flow of information as to what18 is occurring. Of course that contravenes the idea and the19 intent of sequestration if the representative, the designee20 of the victim is present, and then they tell the victim, as21 defined under the statute, of what happened, we have at that22 point created the potential for the disqualification because23 of tainting as a result of that free flow of information24 contrary to the intent of sequestration orders, which are25 mandatory under Rule 615. 90 1 MR. CLUNE: Well, and I think that’s why they 2 build into this particular provision that the Court has the 3 right to exclude if the defendant’s right to fair trial is 4 at issue. And I think if there are situations, and, you 5 know, the other remedy I think the Court probably has is to 6 issue a protective order to a representative. But I think 7 either of those two things are easily fashionable remedies 8 for that issue, and we would subject that — submit that the 9 Court has the ability to do that.10 THE COURT: Well, I agree with the latter. The11 Court has the ability. I don’t agree with the former that12 it’s easily remediable, because then the burden is on the13 Court to constantly monitor and remind that victim designee14 that you can say this but you can’t say that, and that’s not15 something, well, I shouldn’t say that’s not something the16 legislature didn’t intend. I would venture to say that they17 did not contemplate. So that that can be done with ease is18 a little easier from maybe your understanding of the Court’s19 function than it is from mine.20 Well, anything else that you want to add?21 MR. CLUNE: The only other thing I’ll say, Judge,22 is you know, I think that in terms of our perspective on23 your ruling on this issue, you know, we can either come up24 with some sort of blanket ruling that’s resolving this25 today, or if the Court wants to take time to consider the 91 1 issue in writing. You can either come up with one issue 2 across the board, or you can address this issue as it comes 3 up. 4 I don’t anticipate — 5 THE COURT: Every day? 6 MR. CLUNE: Well. 7 THE COURT: I mean, that’s what your position is, 8 right? It can be somebody different every day? 9 MR. CLUNE: Well, what my position is is that it’s10 not going to be someone different every day. You may not11 have an issue to resolve on this case. If it’s easy enough12 for you to fashion a remedy and fashion a ruling today,13 that’s fine with us. But we’re also content with you14 deferring to see if this is even something that the Court’s15 going to need to address.16 THE COURT: Thank you.17 Mrs. Mackey.18 MRS. MACKEY: Judge, I realize that it’s Mr. Clune19 making the response here, but I do feel compelled to point20 out two issues with regard to the pleadings that have been21 filed to date. The prosecution titled their pleading22 “People’s Brief in Support of Victim’s Right to Designate a23 Representative.”24 This Court never took issue with the accuser’s25 right to designate a representative. The Court always 92 1 freely permitted that, and in fact the defense did not 2 object. 3 Where this issue arose was what appeared to be a 4 change in person filling that slot on top of advisory 5 witnesses whose identities were also changing in the context 6 of closed or in camera hearings. And it was the defense’s 7 perception that this was getting increasingly confusing to 8 determine who was permitted in the courtroom and who was 9 not. And a review of the transcript indicates that the10 Court was concerned not only the right for the accuser to11 have a designated representative. That was — that was12 never the issue. But just could that change on a hourly,13 half day, daily, weekly basis. And that is what we chose to14 address.15 Likewise in the pleading the Court never ordered16 Mrs. Christa Flannigan from the courtroom. The Court17 allowed her to make a choice between roles, either that as18 the public information officer, or as the designated19 representative. She made that choice to assume — continue20 in the role of public information officer and left the21 courtroom. The Court never threw her out.22 That being said, Judge, I’m delighted to hear that23 the accuser and her attorney have seen the difficulties in24 the practical application of her statutory right to have a25 designated representative, and that Mr. Clune is the one 93 1 that would be present. 2 What the Court — what I perceive the Court to be 3 struggling with was a practical solution to a statutory 4 right, and to be able to know who was permitted in the 5 courtroom at any one time, particularly how that interfaced 6 with the sequestration issues, the advisory witness issues, 7 and the closure or in camera issues. 8 Certainly the statute gives this Court authority 9 to limit that designation to an individual. I also think10 that the Court in its impression can, under practical11 situations, allow for more than one person to fill that12 slot. But because of the numerous hearings in this case,13 and moving positions, it was becoming very difficult to keep14 track.15 We provided to the Court authority to limit that16 to one person. If the accuser has decided that that person17 is going to be Mr. Clune, that’s fine by us, we just wanted18 to be mindful of the concerns raised by the Court, which was19 keeping track of who was permitted in the courtroom, and20 also the issue that the Court raises with regard to21 sequestration that information was not being impartially –22 improperly, excuse me, improperly conveyed to people who23 should not know.24 There’s also the attendant issue that Mr. Clune is25 governed by this Court’s pretrial publicity order without 94 1 question, and so for those reasons we’re glad to hear that 2 he would be the representative for the accuser. 3 Thank you, Judge. 4 THE COURT: Mr. Clune, anything further? 5 MR. CLUNE: Nothing, Judge. Thank you. 6 THE COURT: Well, I’m glad to see that we have 7 come closer to a practical as well as a legal resolution of 8 this, in light of the representation that Mr. Clune intends 9 to serve as the designee of the alleged victim to be present10 during these proceedings. The Court recognizes, as does the11 statute, that the Court may, if necessary to protect the12 defendant’s right to a fair trial or confidentiality, it13 says at juvenile proceedings, but really that applies to14 these, confidentiality of these proceedings, enter orders15 specific to those concerns.16 The Court believes that while the statute does17 identify an individual, the language is not so strict as to18 under no circumstance allow the Court to modify or to allow19 the Court to accept a modification of the designation based20 upon particular circumstances, and what I would categorize21 as good cause shown.22 The Court, in light of, one, the representation of23 Mr. Clune, and two, the particularly unique circumstances of24 this case, both with regard to the number of hearings and to25 the number of witnesses that have been presented and likely 95 1 will be presented to the Court, reserves the right to accept 2 other designees than Mr. Clune. 3 The Court will allow the representatives under 4 specific circumstances for good cause shown, and the Court 5 also reserves the right to exclude representatives if their 6 presence would contradict other rules and procedures such as 7 the intent of orders of sequestration pursuant to Rule 615. 8 The Court will require that the victim designate 9 to the Court no less than 24 hours in advance if there is10 any intent to modify that designation, and the specific11 basis for that that would qualify for the good cause that I12 have indicated would be considered by the Court.13 I do believe that when one — when the Court views14 the intent of the victim’s rights legislation, particularly15 under the statutes and the legislative declaration, that it16 was not intended to limit it to one individual under any17 conceivable circumstances, and of course we all know that18 the law is composed of rules and exceptions, and that’s how19 I perceive the application of this statute to be most20 appropriate in this case.21 The next matter relates to issue concerning22 Exhibit 16, the tape recorder, and I most wanted to be23 brought up to date on the status, I guess at the conference24 call they’ve indicated that it’s been returned. I don’t25 believe — well, I haven’t verified that, but I don’t 96 1 believe there’s any issue on that. The question was whether 2 there were any other issues to be addressed concerning that 3 particular exhibit. 4 MR. HADDON: The exhibit has been returned. My 5 understanding is that it was returned to the clerk of this 6 court on May 12. Subsequent to that — actually on May 11th 7 and thereafter experts for both sides examined the tape 8 recorder and then conducted further tests on it. We 9 exchanged expert reports on I believe Wednesday, June 16.10 We didn’t file those with the Court. I don’t know if the11 Court wants them filed, but we just exchanged them between12 the parties.13 THE COURT: I see no reason for them to be –14 MR. HADDON: No. And we didn’t file them.15 And we do not anticipate, based on the reports and16 the testimony, asserting any Shreck or 702 issues with17 respect to prosecution’s expert.18 Now, our expert did, after reviewing the19 prosecution’s expert report on the 16th of June, conduct20 some further tests and has a few supplemental conclusions,21 which he’s reduced to writing, and I would tender to22 Mr. Crittenden today.23 Be we don’t anticipate doing anything else. I24 don’t know if the prosecution does.25 THE COURT: Mr. Crittenden. 97 1 MS. BAKKE: Judge, we don’t. 2 MR. CRITTENDEN: Judge, we don’t. I didn’t know 3 until — I didn’t know that they’ve done some supplemental 4 stuff, and so until I see that today I can’t tell you that, 5 no, we don’t intend on doing anything supplemental today. 6 THE COURT: Those supplemental reports can be 7 provided today? 8 MR. HADDON: They can be provided — 9 THE COURT: Posthaste.10 MR. HADDON: At this time. Real time.11 So provided.12 THE COURT: Then Mr. Crittenden, I guess my13 question will be if you anticipate any further testing in14 light of that. And I know you can’t answer that now since15 you just got it. How much time do you need to review that?16 MR. CRITTENDEN: Judge, I think that the Court had17 previously ordered for everything to be done by Wednesday so18 we could be able to tell the Court today what we’re going to19 do. So I guess five days, four days.20 THE COURT: All right. Five days to advise the21 Court of any further testing or requests.22 Do you anticipate any Shreck or 702 issues?23 MR. CRITTENDEN: No. No, Judge. No.24 THE COURT: So review in five days. And how about25 if I say report — well, I was going to say ten. Give me 98 1 your position. 2 MR. CRITTENDEN: In regards to whether or not — 3 yeah, we will let the Court know within five days whether or 4 not we will file any motions or any more requests for 5 testing of Exhibit 18. 6 THE COURT: Okay. And then within ten days after 7 that, which would be 15 now, completion of any testing. And 8 five days for a report. Is that agreeable? 9 MR. CRITTENDEN: That’s fine, Judge. I haven’t10 talked to my expert, but if there’s any issue or problems11 we’ll definitely let either the defense and you, the Court,12 know.13 THE COURT: You can definitely raise that within14 five days.15 MR. CRITTENDEN: Sure.16 THE COURT: All right. We will take a luncheon17 recess at this time, and reconvene at 1:15. Is that enough18 time for everyone?19 MR. HURLBERT: Fine, Judge.20 THE COURT: All right.21 MRS. MACKEY: That’s fine with defense, Your22 Honor.23 THE COURT: Thank you.24 (This matter recessed from 12:00 to 1:25 p.m.)25 99 1 AFTERNOON SESSION, MONDAY, JUNE 21, 2004 2 (Court reconvened this matter at 1:25 p.m., and 3 the following proceedings were held in open court with 4 counsel and Mr. Bryant present.) 5 THE COURT: Good afternoon, ladies and gentlemen. 6 The next matter is People’s motion to strike 7 expert, in the alternative allow more time for expert 8 endorsement. 9 MR. HURLBERT: Judge, I talked with Mrs. Mackey10 about this, and originally the Court had given us ten days11 after June 4th which was when their underlying data was12 supposed to be in, which was the 14th. That underlying data13 did not come in until the 14th, and so the People filed our14 motion asking for more time.15 So Judge, we did get a little more information on16 the 16th. So what we’re asking for, Judge, is ten days from17 the 16th, which is the 26th, that’s a Saturday, so the18 People are asking for the 25th to get our endorsement from19 Dr. Lee on that. I talked to Mrs. Mackey, she said she has20 no objection on that.21 THE COURT: And so you’re satisfied with that22 stipulation as opposed to addressing the issue in terms of23 the motion to strike?24 MR. HURLBERT: That’s correct, Judge.25 THE COURT: Mrs. Mackey. 100 1 MRS. MACKEY: That’s correct, Judge. 2 THE COURT: All right. The Court will grant the 3 People ten additional days up to and including the 26th. Is 4 that what you said? 5 MR. HURLBERT: I believe that’s a Saturday, Judge, 6 so I was thinking — 7 THE COURT: 25th. 25th is a Friday. All right. 8 For the People’s expert endorsement and report. 9 MR. HURLBERT: Yes, Judge.10 THE COURT: Next, the defendant’s motion for11 redaction of prosecutor’s response. Mrs. Mackey.12 MRS. MACKEY: Thank you, Your Honor.13 Judge, this arose in the context of the Court14 requesting some briefing on adverse inference instruction.15 In order to set up the backdrop for that, we reiterated to16 the Court that the accuser in this case was making17 allegations of sexual assault, that Mr. Bryant had denied18 those allegations and raised the defense of consent, and19 then went on to brief that issue.20 In the prosecution’s response they allude to three21 different alleged statements. We take issue with their22 accuracy, but that’s left for another day, alleged23 statements attributed to Kobe Bryant.24 We simply ask that those statements which are25 still subject to the Court, the pending motion to suppress 101 1 filed by the defense, be redacted from that pleading. 2 THE COURT: Ms. Easter, are you going to address 3 that? 4 MS. EASTER: Yes, Judge. 5 The defendant filed a motion which contained facts 6 which the prosecution believed not to be accurate or wholly 7 accurate, and we therefore went to the original source, 8 which is the audio recording of the defendant’s statement as 9 well as the video recording of the victim’s statement, and10 looked at the statements directly from there. We felt that11 those statements were absolutely necessary to show the Court12 that the adverse inference instruction was not appropriate13 in this case because it wasn’t material in any way, shape,14 or form.15 And –16 THE COURT: And I understand the importance of17 letting the Court know or reiterating to the Court the18 evidence, but I had earlier addressed a request by the19 People concerning filing motions under seal, and I thought I20 had given some direction about you can file supplements21 under seal if it relates to evidence that had not been22 previously disclosed. Would that have been just as23 effective or –24 MS. EASTER: Well, Judge, I didn’t think it was,25 and I’ll tell the Court why. Because their motion was not 102 1 filed under seal, and it was inaccurate. There were 2 inaccuracies in the statement. And I know the Court has 3 never censored any of the motions filed by the defendant, 4 either, and there were motions that we filed under seal and 5 the defense responded wholly not under seal, and I know the 6 Court never censored those before. 7 And I will tell the Court that I only made the 8 barest minimum of statements necessary, but I do think it’s 9 important that accurate facts come out, and if their motion10 is not filed under seal, then I think we should be able to11 file — file it as they did.12 THE COURT: Well, had their — I don’t — sorry to13 stutter. I have the same perception as you do that some of14 those motions or responses went beyond what had previously15 been made public, but I don’t recall, and I don’t want to16 intimate I’m inviting any such action by the People, that17 there had been a request to redact any of those.18 MS. EASTER: We didn’t have — we didn’t have a19 chance, Judge. They were posted before we ever saw them.20 THE COURT: Okay. But basically that principle21 that you’re talking about responding publicly as opposed to22 the Court, and because the defense got away with it, then –23 MS. EASTER: No. I’m talking about a fair24 response to the motion they filed this time.25 THE COURT: Anything else? 103 1 MS. EASTER: Nothing, Judge. I would just rest on 2 my written motion. 3 THE COURT: Mrs. Mackey. 4 MRS. MACKEY: Nothing further, Judge. 5 THE COURT: Well, the Court has previously 6 expressed, as I did just now, concern with regard to the 7 pleadings as well as comments that from time to time have 8 been made openly in either a public pleading or openly in 9 court, and I have attempted to emphasize and reemphasize to10 counsel the concern that I have.11 Quite frankly, I have perceived that on occasion12 to be not just for the purpose of fairly responding, but13 also for the purpose of putting information out into the14 public domain which had not yet been cleared by the Court15 for public distribution and consumption.16 I have reviewed the motion. I did, of course,17 review the response to the submission of adverse inference18 instruction that was propounded by the People.19 Based upon my continuing review of the evidence20 relating to suppression issues, and particularly21 Mr. Bryant’s statements, I believe that the information22 targeted by the defense as set forth in the People’s23 response is information which has not to this point in time24 been cleared by the Court for such public information25 distribution and consumption. 104 1 So the Court does believe that the proper action 2 to be taken would be to redact that response for purposes of 3 the posting. Obviously I think it’s fair to say in light of 4 the Court’s ruling this morning concerning the adverse 5 inference instruction the Court has taken into consideration 6 that evidence as it stands before the Court. 7 So the motion will be granted, and the Court will 8 direct the clerk to redact it in the fashion requested prior 9 to it being transmitted to judicial for posting on the web10 site.11 MS. EASTER: Judge, based on your ruling can I12 make a request that we, the prosecution, be afforded time to13 look at motions? I suspect all of those have already14 happened, but just in case it happens again, can we be15 afforded time to see motions before they’re posted as well?16 THE COURT: Well, I’m not surprised at that.17 It’s — I’ll let Mrs. Mackey respond first, and then18 comment.19 MRS. MACKEY: Judge, it’s been our practical20 experience that we get the motions 24, sometimes 48 Hours21 before the posting. There’s typically, except for the22 Court’s orders, there typically is a lag time between the23 time we receive the pleadings and the posting. So as a24 de facto matter, that happens.25 I certainly don’t have any objection to it, but I 105 1 think that it’s occurring just because of the time that it 2 takes to get the motions transmitted and posted. 3 THE COURT: Well, certainly in the interest of 4 fairness that seems to be a legitimate request. What the 5 practical aspect of that is is that more time has to be 6 spent by the Court and the staff that’s involved in 7 reviewing those, and it is — it’s going to — it has the 8 potential of being fairly burdensome. 9 We already have a procedure — the actual posting10 is something that doesn’t have any direct relationship to –11 well, it has a partial relationship to when it’s filed and12 by whom. Some of them are faxed, some of them are hand13 delivered. A clerk or deputy clerk here reviews them along14 with a research attorney in order to evaluate whether there15 is information, to the best of our ability, which had16 previously not been disseminated because of an error that17 occurred earlier in the case, and then if it’s approved it’s18 transmitted down to judicial.19 There are only two people at judicial that have20 authority for proceeding with posting, and obviously it’s21 dependent upon their availability as to whether they can22 review it, and then when it proceeds to — is cleared for23 and proceeds to posting.24 Sort of like a situation I earlier alluded to25 where you have a rule and then you have exception, and the 106 1 legislature is constantly passing laws to address a 2 particular issue, and all it does is to raise some other 3 issue once that’s gone through the process of 4 interpretation. 5 I would need to consult with everyone to see. But 6 what is your request? I mean, 24 hours and then — 24 hours 7 from what? And so forth? I mean, I don’t know how to 8 actually set out and enforce such a request, since it’s so 9 unusual.10 MS. EASTER: Well, and the problem is, Judge, is11 that sometimes these things are posted very, very quickly.12 THE COURT: And I was just telling you the13 process. I mean, you’re right. I mean, it’s not seems to14 be, sometimes it’s posted quickly and sometimes it’s not15 posted for three days. If it comes in here at 3:00 — I’ve16 had that happen with my orders. If it comes in here at 3:0017 on a Friday afternoon, you may not see it until Monday18 afternoon.19 MS. EASTER: Right. And on the other hand I20 recall a particular time when something was filed on a21 Friday afternoon and posted that Friday afternoon as well,22 and that was something that contained a lot of damaging and23 inaccurate innuendo.24 So, Judge, I would be — I don’t know the25 particulars other than what I’ve just heard from the Court, 107 1 but I would ask for some time to maybe discuss matters with 2 particular personnel and see if there was an acceptable 3 procedure. 4 THE COURT: Particular personnel? 5 MS. EASTER: In the clerk’s office. 6 THE COURT: Well, that’s only half of the process. 7 And I certainly hate to open it up. I will give you the 8 opportunity to submit a proposal to the Court with regard to 9 that. I have the concern that you’ve expressed.10 I don’t want to open it up every time for another11 layer of litigation with regard to what we just addressed.12 I just had to stop working on the suppression issue because13 of so many motions that just came in in the last week or ten14 days on other issues, and when we were dealing with the show15 cause back on June 3rd, I had to stop and address that16 issue.17 And I know that all of you are interested in18 moving this along to trial, but unless I get time to work on19 the major substantive issues, if we get into disputes on20 these minor matters, and I — I say minor only in — within21 the context of what we know to be major and minor in this22 case.23 I have the concern that you do with regard to24 information that’s been published. Clearly within the25 questionnaire and within the anticipated voir dire process 10725 108 1 we’re going to talk to jurors about the impact of those 2 ultimately. Quite frankly, with all due respect — I’ll 3 never say that again with the same understanding that I have 4 had before — but I know that these people out there who 5 publish things have a job, and I know that I have a job to 6 make sure that the jurors disregard that if they’re going to 7 be fair and impartial jurors in this case. So that’s a 8 different mechanism for screening. 9 So if you want to have five days to give me a10 proposal, I’ll entertain that.11 MS. EASTER: Thank you.12 THE COURT: Mrs. Mackey, if you want to respond,13 you can have five days.14 This morning we had some discussion and dialogue15 concerning trial date, and I want to revisit that before we16 close the proceedings for the remainder of today and17 tomorrow, because I do sincerely agree that we all have18 interest of moving this along to trial as expeditiously as19 reasonable. As is not uncommon, reason on your side of the20 bench may differ from reason on this side of the bench in21 terms of a perspective of timeliness.22 In light of our discussions this morning and what23 you know to be issues remaining, as well as possible24 motions, because I don’t think like an advocate, you do,25 when would you anticipate being ready for trial? 109 1 People first. 2 MR. HURLBERT: Judge, a lot of this does depend on 3 when your rulings come, because then we have — that will 4 depend on the number of witnesses. 5 THE COURT: And that depends on how many motions I 6 have to address so that I can get back to that. 7 But anyway, you know, it’s circular. I understand 8 you. But I am saying given, I mean, in your experience, 9 given that motions can go and rulings can go either way,10 when do you think you would be ready for trial? I see11 Mr. Robinson sitting back there and I see Mr. Early and12 Mr. Silverman, and they know when a Court says, when are you13 going to be ready for trial, what that means. Give me your14 best evaluation.15 MR. HURLBERT: Could I just have a moment, Judge?16 MRS. MACKEY: I didn’t hear that.17 THE COURT: Just a moment.18 (Discussion held among prosecution attorneys off19 the record.)20 MR. HURLBERT: Judge, we could be ready by the end21 of August.22 THE COURT: Pardon me?23 MR. HURLBERT: End of August.24 THE COURT: And my other question, which only to25 those of us who are educated in legal nuances, when would 110 1 you be requesting trial? Same? 2 MR. HURLBERT: Same, Judge. 3 THE COURT: What motions, if any, do you 4 anticipate filing other than those that might result from 5 those rulings that the Court is entertaining? 6 MR. HURLBERT: Judge, I don’t see anything other 7 than those that may result from your rulings, at this time. 8 THE COURT: And the question that I’ve asked from 9 time to time, how long do you anticipate? I noticed in one10 of these pleadings some — in the proposed questionnaire we11 indicated two to three, which had been traditionally what we12 had looked at, and the last time somebody said three to13 four, I don’t remember which side. But how long?14 MR. HURLBERT: It just again depends on your15 ruling, but I think we’re thinking right around three weeks.16 THE COURT: Thank you.17 Mr. Mackey, those questions. When do you18 anticipate being ready, or in the alternative when are you19 requesting?20 MRS. MACKEY: Judge, as we’ve stated before, I’ve21 always thought the last week in August was the earliest22 realistic date that we could go. We would both request that23 it be set then, and state that we would be ready at that24 time.25 With regard to other substantive motions, the 111 1 Court’s already set a deadline on any motions for request of 2 using the text messages in an evidentiary matter, that those 3 would be filed. The Court’s now set a new deadline pursuant 4 to stipulation for additional reports regarding the DNA 5 evidence in this case of the 25th. We may have Shreck/702 6 with regard to that. And of course, Ms. McAllister’s also 7 in that category, depending on some other rulings from the 8 Court. Let me just check with Mr. Haddon and make sure I’ve 9 got them all.10 And one final sort of Shreck/702 issue would be11 with regard to Dr. Baden, and that issue is coming up with12 the closed issue this afternoon.13 My recollection is that the Court has asked us to14 hold some time the week of July 19th. I think all of those15 issues would be ready for the Court to hear, if not16 previously decided, and then depending on the Court’s17 schedule to be able to issue rulings. That would get us18 about 30 days, give or take, if we started jury selection19 the last week in August.20 I believe that the estimate of length of trial of21 course is dependent on some rulings, but I don’t think the22 evidence would go any longer than three weeks. It could be23 shorter depending on what the Court –24 THE COURT: Evidence.25 MRS. MACKEY: Evidence. Yes. 112 1 THE COURT: Three weeks. 2 MRS. MACKEY: Yes. 3 THE COURT: What were you anticipating in light 4 of — and I didn’t ask that of — I mean, what I asked was 5 length of trial for people. 6 MRS. MACKEY: Oh. 7 THE COURT: That’s okay. But that ties back into 8 my question with regard to jury selection in light of the 9 questionnaire and the procedure that we are anticipating10 following.11 MRS. MACKEY: I believe that if we get the dual12 questionnaires and have that much information available to13 us, Judge, that hopefully we can do jury selection in a14 week. Four to five days.15 THE COURT: All right. Thank you.16 Anything else, Mr. Hurlbert? And I didn’t17 separate out jury selection, length of evidence, but –18 MR. HURLBERT: Judge, we think the whole thing19 could be done in about three weeks.20 THE COURT: Three weeks.21 MR. HURLBERT: Depending on the rulings.22 THE COURT: I have instructed the administrator to23 continue the communication, and it’s just too time-consuming24 for the Court to do that with regard to the juror summonses25 and questionnaires, and so I’m going to hand off that 113 1 responsibility to find out how much can be included 2 spacewise, and what the cost would be in the alternative. 3 I’ve determined after consulting with the 4 administrator and representative from the state office that 5 it’s not realistic for us to have a procedure whereby we 6 send out the summons with the questions and then have a 7 return mailing included with that. So I need to get some 8 other input on that, under the procedures that are now being 9 used in the last couple years.10 And then I’m going to find out about what cost is.11 Obviously we could send it out with a self-addressed,12 stamped envelope and get it back, at a cost. And then the13 third alternative is just looking directly to the process14 that we’ve talked about, which is having them come in, fill15 out thees questionnaires, and then setting aside some time16 for evaluation of that in the alternative. That’s a more17 traditional way of approaching it.18 All right. We do have time set aside the week of19 July 19th, and I was going to ask if there are — what20 matters that you would anticipate addressing at that time.21 Obviously depending on ruling.22 Before I do that, I want to reiterate that my23 previous order had been, based upon the Court’s rulings on24 any motions, any party has five days within which to file a25 motion concerning those rulings, any follow-up motions, 114 1 motions in limine are the prime example, and then the 2 opposing party would have five days to respond to those, so 3 that we can have time to address them in a timely fashion. 4 What are the matters that you anticipate on July 5 19th? I know that the defense has accepted the 6 responsibility requested by the Court of maintaining the 7 motions tracking diagram. Graph. 8 MRS. MACKEY: Chart. 9 THE COURT: Chart. Thank you. And I would10 request that you do that on a regular basis, weekly if not11 more often requested by the Court. We’ll have a conference12 call, obviously, depending on –13 MRS. MACKEY: Would you like me to just start14 faxing it every Friday, or –15 THE COURT: That’s fine. That’s fine. For16 purposes of preliminary scheduling, what matters do you17 anticipate addressing then?18 Ms. Easter.19 MS. EASTER: Judge, aside from — aside from20 motions generated from the Court’s rulings, the only thing21 we can recall, defense has said several times that they22 intend to file or they may file something regarding the23 audiotape of the defendant. But other than that I can’t24 recall or think of another motion that we would be filing,25 or that defense counsel has mentioned. 115 1 THE COURT: And I gave some time frames for that, 2 so — with regard to the audio. 3 MRS. MACKEY: Judge, our list would be text 4 messages, any Shreck/702 issues that we’ve already touched 5 on. Any in limine motions, and I just once again raise for 6 the Court’s consideration the fact that I believe we may be 7 in a situation where we’re going to have to get out-of-state 8 subpoenas, and that won’t take any court time, but they do 9 take a long time to secure.10 THE COURT: That’s really relating to sufficient11 advance notice of the actual trial date so that those can be12 processed through this court and the other jurisdiction13 involved.14 MRS. MACKEY: Precisely, Judge.15 THE COURT: Now, my experience in that has been16 that you need 45 to 60 days. What — and I just had that17 issue come up in another case recently.18 MRS. MACKEY: I’ve never been able to do it in19 much less than about two months. We have everything ready20 to go as soon as we get a date. But we of course would move21 with all due speed. But it is a time-consuming process.22 THE COURT: Anything else?23 We will take the afternoon recess so that we can24 make the necessary transition into closed hearings. The25 Court will be in recess. 116 1 (A recess was then taken, and further proceedings 2 were held which are not herein transcribed.) 3 4 5 1 REPORTER’S CERTIFICATE 2 I hereby certify that the above and foregoing 3 transcript, containing 116 pages, is a true and complete 4 transcription of my stenotype notes taken in my capacity as 5 Official Reporter of District Court, Eagle County, Colorado, 6 at the time and place above set forth. 7 Any copies of the within transcript not containing 8 an original certification page or not obtained from the 9 undersigned reporter or through RealLegal are not certified10 for accuracy, including any transcripts posted on any11 internet site, as they are made outside of this reporter’s12 knowledge and control.13 Dated at Adams County, Colorado, this 24th day of14 June 2004.15 16 17 18 _______________ _________ Michelle L. Goodbee, RMR, CRR

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