Note: I am slowly but surely getting my detail notes on this trial completely edited and up on the blog. Testimony in the penalty phase (May 20th and May 23rd) is up and complete now. Besides this day, (Day 6), I still have Day 7 and closing arguments of the guilt and penalty phases to edit and post. Sprocket.
May 12th, 2011, Day 6
Inside 109 and I set up in the corner next to Marjorie.
I check with Mr. Jackson to see if we can get a copy of the transcript of the taped recording after it’s been entered into evidence. He's going to see if we can.
Public defender representing one of the three co-conspirators, Moya is here, taking notes.
There might be another issue with a juror. Or anther possible issue with another juror.
Fayed is brought in @ 9:17 am.
JK: The defense present. The people are present. we are out of presence of jurors.
JK: Werksman provided to the court copy of an e-mail provide to the people. Mr. Werksman, please state what particulars about how e-mail came to you.
MW: This morning accessed my office e-mail from my server from my own office. It appears to have been from
anonymous at jamison.com
to me Mark Werksman via the firm’s web site.
Werksman explains that there are links on his web site where someone can click a link to contact the office, it opens up a link to where the person can send an E-mail to his firm and that will send an E-mail directly to him.
Werksman reads from the E-mail but I don’t get it all verbatim.
“Wanted to state you, you and comma, deserves fair fair trial ... please express (to Judge) .... many jurors continue to express opinions of trial and (evidence?)...."
It’s not long but that’s only the gist of it.
MW: I had to e-mail it to myself to print it from my home computer. A few minutes later I E-mailed it to both DDA’s. (snip) Your honor, it’s either a hoax, trying to be mischievous or this is Juror #5 who has anonymity issues and he’s trying to reach out. (snip) It’s disturbing on two levels. (The jurors are) still talking at the case and looking at the case (online?). (snip) Either they are reading about me or linking to the cases I handled.
JK: It creates a lot of disturbing issues on both levels. The only juror that contacted the court was juror #5. No other juror or alternate juror expressed anything to the court. (snip) (Under questioning) there were other jurors that expressed issues about the misconduct which juror #11 or #1 were removed.
JK: But there is not other juror that initiated any contact to the court on juror misconduct. It would strike me as odd, that Juror #5 if this is Juror #5 would send and E-mail to you, as opposed to contacting the court again if he felt there were still issues or problems
AJ: (Would it please the court?) I’ve been through this before. Spent three years going through a high profile case and these things happen. (snip) This is not this type of ... (?)
AJ: Acknowledgment that Juror #5 knows how to contact the court. Or more appropriately, how to notify the court, instructed most of the jurors. Second and more pointedly,
I recall the note that Juror #5 left. It was extraordinarily well written. What is actually in the E-mail...
Jackson reads from the E-mail: “Counsel, comma I notified judge however l wanted to state you and state that I believe Mr. Fayed deserves fair trial please continue to express opinion....”
(I did not get all of what Jackson had read.)
AJ: Many grammar errors. Spelling errors.
“Include just please express concern.”
AJ: (? instructed to contact the court?) ...under preferred contact number, Mr. Werksman would correct me on that.
MW: ...leave your name under name it says Juror.
AJ: Not Juror #5. (snip) This is a ridiculous, and I wouldn’t even call it a hoax. (snip) If the court would compare this on it’s face, to..... Normally, I wouldn't have a problem having the court inquire.....
Jackson goes over what happened yesterday.
AJ: I fear, developing an aura, around Juror #5 without the others, that he’s somehow identified as a pariah ... and that doesn’t work (to my benefit?). (snip) If the court wants to make an inquiry.... (snip) We ask the jurors in bank, ask if they sent an e-mail. (snip) Follow up with a note to the bailiff at the break and that way we haven’t signaled anyone out.
JK: K have the note Juror #5 wrote) in front of me. (There are) no misspellings (and no) grammatical errors. It’s syntax makes sense, these no words left out. (snip) And it doesn’t appear to be the same kind of (?) (if that’s) the right word.
MW: I understand the note, however, a couple of points. This is not the Phil Spector trial. It is not that high profile of a trial, and we haven’t got that much coverage. (snip) You can see in the gallery (it’s practically empty).
JK: However there was (media coverage when the murder occurred) and Ventura County coverage.
MW: Juror #5 came forward with information and yesterday with information. And they lied to you in your face.
JK: One more thing I want to say about that. (snip) When Alternate #3 was describing the encounter in detail, and I asked her what the juror looked like, she said the juror was long (?) and short hair, and it was obvious to us that was #11 and I never put that on the record, because that was obvious to us.
MW: Two jurors lied to us already. I don’t know if this will make him a pariah, and I don’t care if it makes him one. He obviously wants to do the right thing. I want to take this seriously, and I want the court to take Juror #5 out here.
Werksman then wants the court, after Juror #5 is brought out, to ask them as a group.
MW: Because to ignore it, because it was syntactically different than the other note, I think it’s irresponsible to take no action.
JK: Mr. Jackson didn’t ask for no action.
MW: But what he’s asking is so passive as to be meaningless. That’s not enough to have them ask the bailiff at the next break. We were going there, were those who didn’t think we needed to inquire (of the) the individual jurors. But when we did, oh, by the way. I think we need to make an inquiry; a serious focus.
AJ: My action was to ask all the jurors. That was my idea. He doesn’t care if Juror #5 if becomes a pariah.
(? AJ? JK:) Of course he doesn’t .
JK: My suspicion is this came from Juror #11 but we’ll never know. (snip) If we ask the jurors to follow up on a break, that’s exactly what Juror #5 did.
(?) I think it’s unfair to the jurors...
JK I’m going to simply make the general inquiry. Were there any of the jurors or alternates (that) contacted either counsel or court by e-mail and if so, I’m going to ask them to notify the bailiff on the break, so we can follow up. (?) ..not handle, to deal with any issues that may exist.
AJ: (I submit the court) take a further step to labeling the Werksman e-mail (understanding?), label (it) court’s exhibit next in order, and the Juror #5 (note) as court’s exhibit next in order so the appellate record is in order.
JK: The top portion of that which is on a piece of steno paper, courts exhibit #2 and the anonymous e-mail will be court’s #3. And I was thinking is another court exhibit we will need, is another revelation, that you utilized during your opening statement (power point presentation) court’s exhibit #4 and closing arguments (power point presentation) will be court’s exhibit #5.
Harmon states for the record that the program to access the power point presentations is called “Keynote” and they can only be accessed with this program.
MW: Objection to the Shawn Smith tape.
JK: You want to (argue?)?
MW: (We) made objections at all prior hearings. We’ve had first amendment, fifth amendment and sixth amendment issues, based on the fact that the tape will be played without the foundation of the other party to it, Mr. Smith.
Harmon argues the people’s position.
EH: As we did at the preliminary hearing and grand jury, our intention is to lay a foundation from Detective Abdul. He took possession of the recording device. There is ample foundation of the recording device. Rather, this is a discussion between Mr. Smith and Mr. Fayed.
Werksman. (I miss his argument)
JK: Assuming they can establish a foundation, I don’t believe Mr. Shawn Smith’s statements are being offered for the truth of the matter. Mr. Fayed’s statements are offered for the truth of the matter, so it’s not hearsay.
Werksman still objects.
MW: I need a clarifying instruction...
(But I miss the rest of his argument.)
That appears to be it for the Fayed case at the moment. Judge Kennedy hears another case for a (scheduling?) date. A bench warrant is requested for that case. And that’s it.
9:42 am: The court clerk calls for the 109 jurors over the speaker system.
JK: All of our jurors present. Thank you very much for your patience. I have a question for you. My question is this. Have any of the jurors or alternates contacted by e-mail counsel for the defense, counsel for the people or for the court? If anyone has done so, I’d ask you to notify the bailiff at the break. (snip) And I think we are ready to start......
Detective Abdul is back on the stand
JK: Mr. Harmon?
EH: We were discussing your contact with a man named Shawn Smith. (snip) After Pamela Fayed was murdered did you retrieve her iPhone?
Det. AS: Yes, I did.
EH: And did you download contacts off that phone and what those contacts were?
Det. AS: Yes, I did.
EH: People’s next in order, #147. Is this a print out of a list of names indicating the number of numbers she (Pamela) had for James Fayed?
Det. AS: That’s correct.
EH: Now moving to Shawn Smith. You got information from the Assistant US Attorney that someone wanted to talk to you about this matter, a Mr. Shawn Smith who was in custody at the Men's Detention Center? (snip) You’ve talked with may people who claim that they know something about (crimes)? (snip) Did you think this merited further investigation? (snip) Did you verify he was in fact the cell mate of James Fayed?
Det. AS: Yes I did.
Harmon presents a document for him to verify this.
EH: People's next in order #148. First page, housing designation for Shawn Smith (at Men's Detention Center) dated June 24th, 2008 until September 11th, 2008?
Det AS: He was housed in E08 651 L (L=lower).
EH: Second page, other housing arrangements (for Smith). And last page for Fayed?
Det. AS: He was E09 561 U (U=upper) from August 1st to September 11th, 2008
(As you can see from my poor typing skills, the numbers are switched and not matching exactly.)
EH: (After September 11th,) these people were no longer cell mates?
Det. AS: That’s correct.
EH: That’s based on Shawn Smith (being) used as a listening post via a recording device?
Det. AS: That’s correct.
EH: Lets talk a little bit about that. When you sat down and spoke with Shawn Smith and spoke with (him regarding) this, you as you said before, it warranted more investigation , so you verified they were in the same cell together?
Det. AS: Yes.
EH: Did you take any information to determine that you could get reliable information? I explained to Mr. Smith once the wire was in place that he would have to not expose the wire to Mr. Fayed. (snip) He should talk to Mr. Fayed in a way that was not soliciting in any way, to see if he would reveal the information in the way he did before.
EH: The wire and listening post goes on the person, then later retrieved from (?) to September 10th, 2008? (snip) Where were you when (you) placed this recording device on Mr. Smith?
Det. AS: At the detention center. (snip) I believe he had a medical call that morning. 8:56 am (I) hooked up device and at 3 :30 pm took the device from him. And at 6:10 pm transferred the information to CD.
EH: People's next in order #149 a CD. I’ve loaded it into a computer. I also have transcripts, People's #150. (The) court’s permission to pass them out to the jurors?
JK: Yes. And to the defense as well. (Addressing the jury:) I remind you what I said about transcripts. And that is, that you are not bound by the transcripts. The transcript is to assist you as the tape is being played. You will have the opportunity to listen to this evidence again but you are not bound by the transcript.
EH: Anyone who doesn’t have a transcript?
(Marjorie and I jokingly raise our hands off our keyboards a little ways and smile at each other.)
Abdul identifies voices on the tape.
(Wow, the background sound is loud!)
Det. AS: That's my voice on the recording placing the listening device on (Smith).
JK: Stop it. Is that as loud as as it going to be, because it’s difficult to hear.
EH: This is the preparatory, where the device is hidden and then it becomes a lot more clear.
(I was not able to make out what was said from where I am. )
EH: Let me turn it as loud as it will go, and when it becomes a little more clear I’ll adjust it and turn it down.
(It’s thundering loud.)
JK: One more thing, stipulated that the court reporter (does) not (have to) transcribe the tape
(?) So stipulated.
Harmon accidentally starts a song instead of the audio tape and there’s a bit of laughter.
EH: That’s not it.
Det. AS: That second voice you heard was Shawn Smith.
(Did Werksman say that?)
A copy of the transcript is given to Scott and Dawn to follow along. Those of us in the gallery can’t understand a word from where we’re sitting. Just snatches of words. Marjorie and I both mouth to each other that we can’t understand a word. But we can tell they are still attaching the device to Smith. Damn. There are no extra copies for the press at this time.
Harmon stops the tape and asks the detective a question.
EH: Mr. Smith is being escorted by a nurse back to his cell?
Det. AS: Yes he is.
Background noises of the jail can be heard on the tape. We can hear footsteps. Heavy footsteps. I can hear the announcements over speaker at the jail. The female public defender in the back row leans in and tries to hear. I believe the other two people next to her are also from the public defenders office.
EH: The voice that you hear there, who is that?
Det. AS: James Fayed.
EH: The man is court today?
Det. AS: That’s correct.
(Please note that my notes below are in NO WAY a complete or accurate transcription of the audio recording. Many times, I cannot tell who is speaking or even get the complete statement that was said.)
“Oh man I saw her.”
(I can’t tell who’s voice is whose.)
“I thought you were in the hospital.”
(I really can’t tell who’s who.)
A toilet flush sound, I do believe.
“No, you know, did something wrong with his dress. Sat down there and didn't’ let him?”
“Sat down there...”
(I’m totally frustrated. I can’t make out much of anything, just snatches of conversation here and there.)
“No sat down in the chair. Sorry can’t let your visitor through?”
“So my (?) trying to see me.”
“I don’t know what they require.”
There’s lots of noise on the tape. Flush sound.
“Well this is all good man, this is all good.”
“Well you’re gonna help me.”
“We’re gonna have my...”
“I was up most of the night thinking about you.”
“Check this out.”
Sounds of laughter.
“Tell me you're...”
“And last night I was thinking this is a big one right here”
“What do you think”
“No body fucking knows what we've got...”
“How cool is that.”
(I type that I’m not going to try to transcribe anymore. And then I hear a bit more coherent sentences and try to catch what I think I’m hearing.)
Fayed leans in and speaks to Steve Meister.
“Couple of things. I’m concerned, man, I’m thinking man, and then you tell me what you think”
I'm thinkin' ... 30 40 g’s is unfuckin' god knows what he is thinking...”
“Don’t tell me that motherfucker is going to do you something wrong”
“You don’t want to?”
Harmon stops the tape for a small break and ask a question of his witness.
EH: Couple of things. There is apart of the tape where Mr. Fayed is asking Mr. Smith to take off his clothes (to prove) that he’s not wearing any wire.
(?) And it just could be that the wire is moving around inside clothing.
(I think the tape is started again and then stopped.)
“It was the stupidest motherfucker thing”
EH: What’s going on at this point?
Det. AS: That’s when Mr. Fayed was in the room...
MW: I object! No foundation!
(The tape is started again.)
“I can’t see that great. Draw me a small map as to...”
(Marjorie goes over to speak to one of the family and read over their shoulder from their copy of the text of the transcript.)
10:25 am: The public defender leaves but the two other people in the back row stay to listen.
EH: Just so the record’s clear, we are at the top of page 34.
(I put my feet up on the bench in front of me and stretch out. We are in for a long haul. I sit back and listen for a while.)
“Stop being fuckin’ paranoid.”
10:52 am: The morning break is called. I breathe a sigh of relief.
Mr. Werksman introduces himself to me during the tail end of the break. I saw him at the soda machines a few minutes earlier on the phone. Before I stepped into the vending machine alcove, I asked him if he needed some privacy. He said no, smiling. He was just trying to get a good signal (the building is notorious for some areas not being able to get a good cell phone signal) so he could call his son back about (I think) an exam he just took.
JK: Back on record with Fayed. The court clerk brought to my attention that there is a voice mail on the courts phone that was sent last night (around 10 pm) from a juror, female. The juror she doesn’t identify her number and that there are jurors talking about the case. That the jurors are talking about and looking up things on the Internet. (snip)
JK: And there was discussion between jurors. The voice mail is really long. We’ll play it so that the court reporter Lynn will transcribe it over lunch. It was (mentioned on the recording) #5 & #9 were talking while walking back to the parking lot and on the Internet.
JK: After lunch we will have to deal with it. (snip) During the break, any correspondence given to the bailiff?
Sean says no.
JK: I’m not sure which juror this is, either number 7? We will go forward with the tape for now. Bring jurors back in for now.
We are back to listening to the playing of the tape at this time.
EH: We left off on page 54.
At break, Marjorie who is reading along with the family, she told me we are to the part where he is drawing a diagram of where the killers are to go. Instructions from Fayed to “don’t go to the main house where his sister ~and daughter~ would be, go to the guest house.”
So I ask her, clear evidence of planning, incriminating?
At the break I speak to a woman who is externing for a judge in another courtroom. (They are called “externs” if they are assigned to a judge.) She was told to come down here and listen in on the trial. Since she’s not been in the courtroom, I fill her in on what’s going on, and the outline of the case.
11:33 am: Another young, suited man enters and sits in the back row. Probably another extern.
(Man, these guys flush the toilet in their cell more times than I can count!)
Now I hear yelling in the background of the tape. I can’t pay attention unfortunately, so I try to edit my notes.
I see a side view of Judge Kennedy. She has her hair on her left side, pulled away from her face, behind her ear.... and her bangs are slightly parted in front, It’s a much softer look on her. From where I’m sitting, it’s almost like she’s been hiding behind her thick hair . Not really, it just SEEMS like it to me. Her hair is light brown with highlights. I believe she is reading along with the transcript.
Fayed is turned away from the jury. He’s facing towards Meister, but Meister is looking at his laptop. To me, Fayed, looks like he’s not even interested as to what’s going on.
“Get my fuckin money back.” (Fayed?)
(I’m begging in my mind for the judge to call lunch. It’s after 12 now. Judge! Judge! Please! Lunch!)
Harmon calls for break. (Thank God!)
Judge Kennedy calls the noon recess. She then gives the jurors the admonition before they leave.
Werksman informs the court about the E-mail he received, that he received it around midnight. Plus, in his E-mail it says Eastern Standard Time.
I believe Harmon states he disagrees about something.
JK: I don’t know. It says a juror.
(?) From the context said in the E-mail we thought it was perhaps from Juror #5 because that’s the only one who notified the judge.
(JK?:) I don’t know if that E-mail has anything to do with the phone call. (snip) The phone call is a woman. And it’s a woman without an accent. (snip) From my opinion it’s from one of those Jurors #7 or #10.
That’s it. Judge Kennedy is off the bench.
1:04 pm: I see in the cafeteria, Werksman meets with a couple. I see him shake hands with them. Steve Meister then joins them at the table.
1:34 pm. I’m back in Dept. 109. The deputy is getting the defendant. There’s a new court reporter up. I don’t recognize her.
The extern who I spoke with at the break is in Judge Pastor’s courtroom. We chatted earlier about how great a judge we think he is. The Dateline producer (a woman I’ve never met) gets a copy of the transcript. Harmon just hands her one. Dang. Me and Marjorie look at each other and are like... WTF? Dang.
EH: Court exhibit next in order #(?4). People’s power point.
JK: This would be five? (snip) Transcription of message left on the courts phone at 10:07 (?). The court reporter transcribed the phone call and provided copies to counsel.
The court asks Mr. Harmon if they want to wait for Mr. Jackson.
EH: Whatever the court decides. He will be back at 2 pm. Request we continue playing the tape for the jurors until Mr. Jackson comes back.
Judge Kennedy agrees. Greg Fisher from CBS returns. Marjorie, needing to see some of this transcript for her report and deadline, goes over and sits next the Dateline producer who got a copy of the transcript from Eric Harmon. The tape is played again after Harmon asks the judge what page we left off at.
EH: Checks they are at the top of page 106 on the transcript to the tape.
The tape is started again.
“What can go wrong?”
“My handwriting. I can’t”
(Now I hear Fayed talking about a set up hit of Pamela when she went to this Fourth of July party in a rural area. Had it set up, dates times.)
“Can you believe that?” (I can tell now this is Smith laughing.)
“All he had to do was boom!”
“Sounds like he’s involved. That’s what I told him, when you’re shooting dude”
“Fuck no! I wanted to get my fuckin’ money back.” (Fayed?)
“When you get out of this mess, when all it’s off your back” (Smith)
“That’s what I’m sayin’. I gotta get my money back.” (Fayed)
“Four fuckin times?”
“Did he have any excuses?”
“Yeah, I can’t tell ya, who knows. Stupid shit.”
“Let me tell ya, I’m not shitin’ ya dude.” (Fayed)
(There is something about FOUR TIMES.)
“This wasn’t the way I expected this to be done. I’m a detail person. Detail person I’m professional as to what I do.” (Fayed)
“So am I brother, so am I.” (Smith)
One of them says something about not hiring someone who has tattoos all over them and the other says he understands. The sound is much better, but I still am having a harder time hearing.
“I don’t see, if it’s done right and everybody gets (?) out” (Smith)
Fayed still looks away from the jury. It’s almost 2 pm. I hope Jackson makes it back soon. Can’t wait to see what happens with the juror issue. I can now distinguish Fayed’s voice on the tape.
“Those sloppy motherfuckers left prints in the car. You are so fucked.” (Smith)
“The money that can be generated is fantastic.” (?)
Jackson returns at 2:02 pm.
“Somebody woke me up at 3:30 somebody was snoring” (Smith?)
“That’s the best way right there ... and the people that took care of your wife are going to be dead (Smith)
“The divorce lawyer. That’s what I told him. Forget it. too late it’s done. Forget it.” (Fayed.)
“Following what I’m saying? He was supposed to go get my money. I told him he blew it. It’s too late. Forget it it’s done. See what I’m saying? I said forget it man. It’s ? or nothing. I want my money back. (snip) Then I get the call from the lawyer that she’s (been killed) out the garage! (snip) Then I get a real bad feeling in my stomach. You stupid mother fucker. I had to find, there wasn’t anything” (Fayed)
“There wasn’t any guarantee that I was going to get whacked out with any sanctions. The rulings and shit like that.” (Fayed)
“I told you she knew her boundaries. She ran her mouth too much she was out of control. It was all an idea it was shit that she made statements about it was things that she fabricated in her own mind she made stuff up. She believed her own lies.” (Fayed)
“She went out to make all these stupid accusations against me and made stuff up.” (Fayed)
“So I left her I said it s over I’m done.” (Fayed)
“So I woke up. She had all these wild ideas. She sat there and swore that I was trying to sell to the CIA. She went on the record saying that stuff when it wasn’t the (?) it was the NSA!” (Fayed)
“I spoke to the NSA.” (Fayed)
“And she wasn’t even there. She didn’t know anything about it.” (Fayed)
“It was one meeting between me and one employee and the NSA.” (Fayed)
“So she’s such a moron” (?)
“She a smart lady? “(Smith)
”No. She doesn’t grasp the big picture.” (Fayed)
“She couldn’t even grasp a balance sheet.” (Fayed)
“I was constantly trying to ensure if there were questions. She was just a dumb fuckin’ girl.” (Fayed)
“Then the more I found out about her, the more I found out what a big (instigator?) she was.” (Fayed)
“Everything she ever told me her entire life was an entire lie.” (Fayed)
“She didn’t have (?) She didn’t have a jewelry shop. She never hand any of that stuff.” (Fayed)
“She never went to college.” (Fayed)
“She made all this stuff up.” (Fayed)
“I had a PI look into her background she had a record back in Orange county.” (Fayed)
“She said she” (Smith)
“Engagement ring” (?)
(I think they are getting to the end of the tape.)
“That all came out to be a big lie. He said he never heard from her before.” (Fayed)
“She had a graduate degree from Malibu” (?)
“She didn’t have anything” (?)
(I don’t know if I got that last statement right.)
Fayed talks about the university she said she went to.
“It’s not Ivy league but it’s close to it.” (Fayed?)
“It’s 200 grand a semester” (?)
“Who can afford that?” (Smith)
“What’s the difference if she went to UCLA? (Smith)
2:24 pm. I’m begging inside for this tape to be over and the afternoon break called.
“She really did. She got way out of hand. If I wasn’t around to stabilize her... she could get flat out (drunk?) (Fayed)
“I didn’t have problem with any drugs as fat as I am. I could do cocaine... never had a problem.” (Fayed)
“Never freebased. Done opium. I loved it.” (Fayed??)
“I didn’t have a problem with that. It’s just like a cigarette, I don’t have a problem with that, I can walk away from it.” (Fayed)
Fayed talks about how she “trapped” him into marriage by getting pregnant.
“She ended up being a super, money grabbing... Well, now I know what not to do, once I get out of here” (Fayed)
Finally the tape ends at 3:32 pm. Relief.
EH: Does the tape continue until you retrieved it from the FBI, (the) device with the agent at roughly 3 hours?
Det. AS: Yes.
Direct is finished and Werksman gets up to cross.
MW: Before I ask you a few questions about Shawn Smith (statement?) I want to go back to beginning of (your) testimony. (snip) You testified recovering the Flip Phone that belongs to James Fayed.
Det. AS: The Flip Phone was recovered by West LA LAPD, who then gave it to me.
MW: You went through looking for text messages, dates?
Det. AS: I went through looking for any text messages, not any for just those dates.
MW: In your testimony, you said the text messages had been deleted. You don’t know to this day how it simply came to be how there were no text messages (on the phone)?
Det. AS: That’s correct.
MW: There could be, you have no idea, if the battery might have failed?
Det. AS: I don’t know how they got deleted, but they got deleted.
MW: Do you know that there (was?) anything there in the first place?
Det. AS: By the information evidence we collected.
MW: And your assuming there were text messages? (snip) Because text messages were sent?
Det. AS: That’s correct.
MW: But in early August you found no text messages?
Det. AS: I got the phone in late August and there didn’t appear to be any text (messages on the phone).
MW: You don’t know how or why (anything go deleted)?
Det. AS: That’s correct.
Werksman put up one of the people’s exhibits, a map of the Century City streets for cell towers on screen with times and locations where certain transmissions on Mr. Fayed’s telephone were sent.
MW: July 28th, 2008 Fayed called Armon (sp?) hyphen driver?
(EH?) There’s nothing presented. Was...
(I think I missed some questions.)
MW: Detective, you’re aware that there was a car service that transported Mr. Fayed from his ranch? (?) Armon (sp?) and that’s the....
EH: Objection! That I have. That’s hearsay.
(?) Well is the guy’s name Armon Driver?
(MW?) Armon is the name (not driver).
JK: I guess it’s technically hearsay. (snip) But he called Armon dash driver (?)
(?) Who is Armon Gregorian (sp?)?
(?) That’s Mr. Fayed’s driver.
MW: Do you know if Mr. Fayed was transported by a driver?
MW: You prepared Shawn Smith before he tape recorded the meeting with Mr. Fayed? (snip) You outfitted him with a listening device?
The detective was there when the device was attached. It was attached to the bottom of the crotch/pants. The microphone was attached to the (under?) pants.
MW: When he moved around his clothing moved? (snip) Is that what we are hearing sometimes?
Det. AS: Sometimes, yes.
(Another question I miss.)
Det. AS: I didn’t know Shawn Smith’s criminal history.
MW: You know that he was convicted of distributing of cocaine, spent 18 months (in prison?). Then another conviction, transporting (drugs?) sentenced to 2 years. Another conviction given probation? Driving under the influence, a hit and run. He Spent time in Riverside County jail. Then another time spent in jail. He had twice hit people in his car and took off.
Det. AS: I don’t recall exactly that. I don’t recall that either.
Werksman crosses on the fact that Shawn Smith was arrested in 2008, where he sold cocaine to a federal agent.
Det. AS: I don’t remember what the (exact charge was).
MW: And you know that he pled guilty?
(These are all questions to get Smith’s criminal history in.)
MW: And also sold arms to that Federal agent?
Det. AS: I believe it was also the same charge.
MW: And are you aware of the circumstances that caused him to be arrested? (snip) Are you aware that he had his son with him?
EH: Objection! Lacks foundation.
JK: Objection sustained.
Another objection to the next question, lacks foundation.
JK: The objection is sustained.
(JK?:) Nothing on that tape that Mr. Smith said is being offered for the truth of the matter.
MW: He was facing five years in prison, for the thing he pled guilty for?
I miss the detective’s answer.
MW: You knew that he faced considerable time and the cooperation with Fayed, was to get a benefit?
EH: Objection. Lacks foundation.
MW: Did you become aware approximately five weeks after he taped the conversation that he was released on an unsecured bond?
Det. AS: Yes I was.
MW: And that he was sentenced to 10 months to the criminal case that he was arrested on.
Det. AS: I wasn’t aware of the amount of time, but..
MW: As a result of cooperating, Mr. Smith got released from jail?
Det. AS: I can’t make that assumption, because I wasn’t involved in that. It didn’t have anything to do with Mr. Fayed.
MW: Did you cooperate?
Det. AS: Did I cooperate?
MW: Did you provide information about his cooperation so as he could get released early?
Det. AS: Well, it was the US Attorney who brought Mr. Smith to our attention.
MW: Was that Mr. Avis?
Det. AS: Yes it was.
MW: Did you discuss with Mr. Smith, what he would say to encourage Mr. Fayed to (discuss/confess?)?
Det. AS: There was a previous conversation, so there was no reason for me to discuss that.
MW: Did you tell Mr. Smith, at (the) very beginning on page 4 of transcript, detective, line nine, did you say you could have probably gotten an Oscar or something like that?
Det. AS: Yes.
MW: Did you counsel Mr. Smith on what kind of representations he should have?
Det. AS: I didn’t counsel (him).
Werksman asks the detective to describe what Shawn Smith looks like.
Det. AS: He’s a male Caucasian, six feet (or) five-eleven, medium build.
MW: Describe his eyes.
Det. AS: He had some type of glaucoma or eye disease.
MW: Did his eyes look disfigured? (snip) Did you know whether his eyes had been damaged in a meth lab?
EH: Objection! All this is based on hearsay.
Another question objected to and sustained.
MW: In the conversation that was taped there's a lot of discussion about writing, about a map. No map or writing was discovered in that cell when Mr. Smith was removed from it (was there)?
Det. AS: That’s correct.
MW: There’s additional dialog where the transmitter was removed?
Det. AS: It was removed in my presence and I took custody of it.
MW: And it’s been not altered or changed in any way?
Det. AS: Correct.
MW: How long after the tape ends did Mr. Smith leave that cell?
Det. AS: I couldn't tell you that. I went back to (NBC? MDC?) around 1500.
MW: And there was no map or writing found in the cell and Mr. Smith didn’t produce any writing?
Det. AS: That’s correct.
Cross is finished and redirect begins.
EH: Are you aware of any force or threats that made Mr. Fayed say these things to Mr. Smith? (snip) When you asked Mr. Smith to go back in the cell, did you take a gun and say put this to Mr. Fayed (?)?
Judge Kennedy asks a question about coercion.
The detective finally steps down.
I think it’s Alan Jackson who states, “We are prepared to rest. People’s 1 through 150 and the people rest.”
Opportune time to take break.
JK addresses the jurors.
JK: Please not form or express an opinion about this case. Ten minutes after three please, be back outside our doors. Thank you very much.
JK: Mr. Werksman, any objections to any of the exhibits?
MW: If I could have five minutes at then end of the break (your honor).
AJ: Well make the rest in front of the jurors formally.
Werksman is on his cell phone and he tells Judge Kennedy, “I’m texting my witness to get upstairs." (That's so Judge Kennedy doesn't think he's outright trying to offend the court by being on his cell phone while she's still on the bench.)
The judge and counsel talk about the juror misconduct issue.
AJ: And I leave, and so the whole place comes apart? (It’s said somewhat jokingly.)
AJ: I’ve seen the transcript. One day after another.
JK: I’m afraid for these jurors take any kind of break at all. Mr. Werksman, refer but not waive on the exhibits.
(?) We have a problem.
JK: I’m not necessarily convinced (it's the) same juror. Could be a trouble making person.
(MW?) I am officially concerned that there is a taint of this jury. So maybe I’d like to ask what the court intends to do. Because we may have the same idea.
JK: Let me ask you a question Mr. Werksman. What ever I do with this, it is going to take time and ultimately I don’t know what the result of all this is going to be. And you also made the urgency of a witness testifying (today).
Judge Kennedy asks Werksman if he wants to take up the issue now if his witness is available tomorrow, and they deal with this issue now.
MW: My preference would be to put my witness on. If we have an insurmountable problem (snip) but if we don’t have a problem with the (jury) and we could go on. And I don’t know if it makes any difference what we do with this jury, then i would favor to allow me to put my witness on. But before we have closing and instructions (we deal with the juror issue then).
JK: Okay. We’ll take a break for the court reporter. We’ll call your witness and it will take about an hour and she can go back to where she came from. Then we’ll take up this issue.
JK: And (?) and as I said, I know this is a woman’s voice on the tape. A female juror and it’s no accent. No discernable accent, so its one of the jurors that sits in the back row.
So we’ll figure it out which (one) it is and take a break.
To be continued in Day 6, Part II.....