Judge Delucchi marked into evidence the boat (People's 299) and the trailer (People's 300). The Judge, Scott and the Defense Counsel, and the Prosecution were present when the Jury took another look at the boat. Some of the jurors wanted to be able to sit in the boat. And the Judge said go ahead. Geragos objected vigorously to allowing the jurors to get into the boat and to rock the boat.
Geragos: The boat is in a trailer. It's not on the water. The Court excluded my demonstration on the water, which I would tell you was a lot closer to what the prosecution theory was than having a boat on a trailer in the parking lot allowing somebody to get in and start to go back and forth.
Delucchi: In my defense, that's debatable. But go ahead.
Geragos: Okay. The problem is, it would now -- we have now taken evidence. I want to reopen, and I want to show the demonstration. And there is -- it's a major problem, because we have a situation where jurors now have now gotten inside the boat. One juror literally -- actually more than one juror stood in the boat and started to rock back and forth in the boat. That's the taking of evidence, and that is a juror demonstration. And they are forbidden to do that under CalJIC. You read the instruction to them. They have now done precisely what you forbid them to do. And --Delucchi: With the Court's connivance, incidentally.
Geragos: Well, I don't think that the Court intended to do it. But what actually happened -- and I don't think the Court would dispute, at least two jurors were inside the boat rocking around. When I say rocking, I mean rocking. They were standing on one foot, putting weight on the other, putting weight back and forth. That is precisely what is not allowed under CalJIC. It's multiplied or amplified by the fact that I have the demonstration on the water in a similar boat, which obviously shows you can't do what the prosecution says you
can. You know, they have been led to believe that you have got the same kind of stability.
I will state for the record that when I started to object to what was going on, that the Court did, at the end of the viewing, tell them that, remember, the stability is not same on a trailer as it is in the water. But at that point the cat's out of the bag, and it's a major problem. So it's my -- I don't want a mistrial. What I want is to reopen --Delucchi: I understand.
Geragos: I want to show the demonstration.
Delucchi: Okay. I did advise the jury that they should bear in mind that this boat was not in the water as they stood in the boat. And I also advised them that the boat appeared -- also that the boat was secured to a trailer. The reason why the Court permitted the jury to get into the boat initially -- I didn't know they were going to jump up and down on the boat -- was the fact that the District Attorney had presented an experiment where they had -- a representative of the District Attorney's Office had actually laid down flat in the boat. And I thought it was important for the jury to take a look, see if there was enough room for somebody to sit -- lay down flat in the boat. That was not, in my opinion, taking additional evidence because it was already set forth on the record. The same case, People versus Mouser makes -- I'll allow the prosecution to address that issue.
Geragos insisted that the actions of the Jury constituted an experiment, and the CalJIC expressly forbids an experiment by the Jury. He asked for either of two remedies: to reopen the hearing and allow admission of his boat demonstration OR a mistrial. Delucchi denied his request, saying that in People v Mouser the right of the Jury to carefully scrutinize evidence was affirmed and the demonstration could work as well for the Defense as for the Prosecution.
Presiding Judge Mark Forcam conducted a hearing on a media request to have one pool still camera located approximately 40 feet from 2M at the time the verdict is read. Karl Olson represented the SF Chronicle, the Contra Costa Times, the LA Times, the Sacramento Bee, the San Jose Mercury News, and the Associated Press. Rochelle Wilcox represented the broadcasting media.
Geragos argued that having cameras on the 2nd floor violates Rule 980's prohibition against filming jurors or spectators. Judge Forcam and the court CEO had asked Delucchi to allow an audio feed of the verdict so the hallway wouldn't be filled with a crush of people waiting for the verdict. Dave Harris argued that the families should be given an opportunity to go someplace and take their time to compose themselves and decide if they want to go before the cameras. . . .with a telephoto lens, it's going to be reaching out directly into their face. It's going to be reaching out, zooming in to try and get as much grief and suffering as they can get for the ratings on TV. And that's not something that they should have to look at forever . . . we're asking the Court to look at the human side of this and protect the rights of the families against the media's intrusiveness.
Judge Forcam made a compelling point: Does the public really have, though, a need to see someone who's upset? I mean, let's assume, you know, that one side or the other, as counsel have argued here, is going to be very upset by the verdict, is it really necessary for the media to portray that sort of sadness? He denied the request because it would disrupt other court proceedings on the 2nd floor and to be consistent with Judge Delucchi's ruling. He did authorize 3 additional cameras on the 1st floor.
Judge Delucchi then resumed Court and read some additional instructions to the Jury. Text
In-chambers hearing. Delucchi ruled the hearing to be sealed because 1) the information therein would irreparably harm Scott's right to a fair trial, potentially prejudicing public opinion in this case; and 2) to protect the sanctity of the jury and the integrity of the deliberative process.
The jury was brought in and Juror #7 replaced with Alternate #2. Delucchi told the newly constituted jury that both Scott and the People have the right to a verdict reached only with the full participation of the twelve jurors who return their verdict, and admonished them to start their deliberations from the beginning. He also reminded them that they are to decide all questions of fact from the evidence received in this trial, and not from any other source.
After an in-chambers meeting, Judge Delucchi announced to the media and the public that the foreman, Juror #5, has been removed from the Jury and Alternate #3 will take his place and that Juror #6 was the new foreman. The Jury was brought in and Delucchi made the change, then instructed them to begin deliberations from the beginning and to decide all facts on the evidence presented during the trial. The Jury was then retired to begin deliberations.
As part of his Motion to Discharge Jury . . . filed November 17, Geragos included this exchange between himself and Judge Delucchi in response to the first foreman's concern that jury deliberations were aimed at pleasing the public.
In late afternoon, Grogan was sent out of the courtroom by Fladager, and then returned accompanied by a man Chuck Smith identified as a investigator for the San Mateo County DAs office. The investigator was escorted back into Chambers by a bailiff. Within a few minutes the Investigator came out of chambers and the bailiff announced the jury had ceased deliberating for the day and asked all to leave the courtroom. The rumor mill reported that someone had faxed information related to Juror 6 and his intent to block a verdict.
Outside the courtroom, the boat parked a few blocks away was gathering much attention. These are the pics I took about 4:00. Later that afternoon, the spectators grew in size, candles were arranged around the boat, and someone used the flowers to spell out Not Guilty.
Judge Delucchi entered as Court Exhibit 33 a letter from the investigator for the San Mateo County DA's office, and as Court Exhibit 34 a report from Sergeant Dowdy. Both documents were sealed.
Delucchi's next appearance in court was to announce that the verdict was in and would be received at 1 p.m. The Clerk read each verdict, and the foreman affirmed it was a correct verdict. 1st degree murder for Laci, 2nd degree murder for Conner, and yes on Special Circumstances. Pat Harris requested the Jury to be polled, and each one in turn affirmed each of the verdicts.
Delucchi informed the jury that we new enter the penalty phase, which would begin on Monday, November 22, with testimony being heard through the 24th. Court recessed then until Monday, November 29, with the conclusion of testimony, and deliberations expected to start on November 30. The Jury will be sequestered during the deliberations.