Sunday, November 20, 2011

James Fayed Formal Sentencing

James Fayed, left, with his defense attorney Steve Meister
at the reading of the death penalty verdict on May 31st, 2011

As much as I’d love to be down at the courthouse on a regular basis, real life has knocked on my door with more pressing responsibilities. Within the past few months, I’ve been called upon by my family to utilize my prior-life banking skills to conduct a forensic audit of my mother’s accounts. The work is tedious and painstaking.

In addition, my husband has needed me to help him with a difficult project that has taken much longer to complete than the original bid. Unfortunately, that work is going very slow right now.

I have had a chance to get away from these responsibilities for a few hours to attend the first debate between the candidates for LA County DA, on November 2nd, as well as the sentencing hearings of Tyquan Knox on November 8th, and James Fayed. Unfortunately, I have not had the time to write up my notes on all these events. Hopefully, soon.

Here’s what happened at the James Fayed sentencing hearing on November 17th, 2011.

I'm in the hallway waiting for the courtroom to open up. The family has arrived and they are shaking hands with a few of the jurors. I was here early chatting with Terri Keith from City News and one of the defense attorney's Steve Meister. The news cameras are here parked on the bench across from myself and Terri.

Pat Kelly is here from the Public Information Office and we were chatting about the Lazarus case and the delay. She is going to try to find out for me "why" that case was delayed.

Pamela's siblings (Dawn, Scott, Greta) and Scott’s wife Renee are here a few seats down talking to the jurors. The woman with the short gray hair I often saw during the trial is here. I believe (but I'm not positive) she is a public defender who represents one or more of the co-defendants.

More of the prosecution team shows up. I'm so horrible with names. I know the DDA's clerk is here, I think here name is Caroline but I'm sure I have that wrong. (I was wrong. I later learn it’s Monique.) She's hugging the family. DDA Eric Harmon arrived while I was still in the hallway and now I see DDA Alan Jackson is here.

Everyone is saying hello and shaking hands. Smiles everywhere. Mark Werksman is here. Steve Meister mentioned in the hallway that he has split with Werksman's firm and is now working solo.

PIO Pat Kelly is here and we chat about a few cases I’m following. Pat tells me that Cameron Brown has a new defense attorney and that case may be a year away from trial. She also tells me that currently, all the hearings for the "fake Rockefeller" case (Christian Karl Gerhartstreiter), accused of murdering Jonathan Sohus in 1985, are being held in an outlying courthouse, either Alhambra or farther out. I hope to cover that case but if it's going to be in an outlying area, it may be logistically undesirable.

Jackson greets the family and later speaks to the two jurors who I saw at the last hearing: Jason the jury foreman and Kathy (sp?). The cameramen set up in the jury box. The dark haired female Dateline producer is here, directing the cameramen. Miriam Hernandez from local ABC Channel 7 is here sitting next to Terri Keith in the third row. Miriam has a lovely rust and gold shawl covering her shoulders.

Eric Harmon is sitting in the front row but facing the family chatting with them. I don't see Desiree, Pamela's daughter yet. Werksman and Meister go back to speak with their client in the jail holding area. Pat Kelly is in the well area, coordinating with the cameramen.

Miriam is the only other reporter working on a laptop. I'm sorry that Marjorie for the Ventura County Star couldn't be here. I enjoyed getting to know her during the trial.

9:00 am: Desiree Goudie, Pamela Fayed's oldest daughter arrives and hugs her relatives. Jackson is explaining to Desiree (I believe) the sequence of what's going to happen with the sentencing.

Werksman and Meister are still in the jail area with their client. There's still a bit of bustling around with the camera crew (there appear to be four guys from maybe, two different networks).

Jackson and Harmon are speaking with the deputy for a moment.

Werksman and Meister are now out from speaking with their client and are discussing something with Jackson.

In looking at Judge Kennedy’s bench, all the figurines I was fascinated with during the trial are still there. It's a large assortment on the left side (her right) near the clerk's desk area.

The bailiff announces to turn all cell phones off and I hurry to turn my sound to silent and then turn my phone off. Fayed is brought into sentencing. His hair has grown out a bit and now has a graying-white mustache/goatee/beard. He looks quite different to me.

Judge Kennedy takes the bench.

Judge states there are several items on the calendar for this case, but there are two items that need to be marked as exhibits. One is a defense PowerPoint during opening and closings I think, to be marked as court's exhibit 14. The other is a typed letter regarding the issue during the accusation that promotional campaign materials from DDA Alan Jackson were sent to the jurors. That will be court's exhibit fifteen. Juror questionnaires will be marked as court exhibits, and some will be sealed. No other items need to be marked.

Several motions on calendar. Judge Kennedy asks both parties if they have reviewed the transcript, for errors. Harmon gets up to speak to Werksman. The court clerk states that they have not received anything.

Eric Harmon first states something to the effect that they have 60 days after formal sentencing to certify the verdict. Werksman and Harmon agree they will review the transcript before 60 days have passed. Judge Kennedy explains the lengthy process of verifying the trial record and that it can't be on day 59 they turn in their submissions.

Move onto the motions. First, is a defense motion for a new trial. The Court has read the original pleading and the people's opposition. Werksman wants to be heard in open court before the court rules.

Werksman: Each issue provides independent grounds for a new trial. The issues that were raised are serious. I believe that my client did not get a fair trial. The tape should have been excluded. (Of Fayed & Smith.) The court allowed the prosecution to play the tapes including the out of court declarant speaking on tape. (Shawn Smith). Werksman goes over how the prosecution led the jury to believe Shawn Smith although he did not testify in this trial. (During the trial, the court instructed the jury that Shawn Smith’s statements were not offered for the truth of the matter.) Then there is the Mary Mercedes tape. The defense was deprived of that evidence and the prosecution should not have been allowed to play it (as part of rebuttal).

There were a litany of additional errors that were made by the prosecution interpreting the jury instructions. Judge Kennedy asks Werksman where were his objections during trial. Werksman admits that some of his objections are missing.

I would ask your honor to look at the totality of each and every error that occurred, and it resulted in a jury verdict that was tainted. And an improper shifting of the burden of proof.

Harmon. As the court knows we addressed these issues in (our brief). Harmon does not argue.

Judge Kennedy states her ruling for the record. The Court has carefully considered all these issues. The court is convinced that the charges have been proved beyond a reasonable doubt.

The taped recordings.
I conclude that the tape of Shawn Smith and James Fayed was not admitted in error (cites case). The words of Mr. Shawn Smith which are, in essence, his discussions with Mr. Fayed about being a hit man or conduit to a hit man that would kill the three co defendants who participated. They are not offered for the truth of the matter. Mr. Swan Smith was not acting as a hit man. He was acting in his own benefit. The jury had the opportunity to listen to James Fayed and determine the truth of the matter.

We've litigated the issue of Shawn Smith four times and the court has made a record in each instance as to why the tape was admissible and I adopt my prior ruling at this time.

Recording of Mary Mercedes became relevant after the defense presented it's evidence. The defense presented evidence that Mary Mercedes contacted the sister (Patricia Taboga) and offered Patricia 200,000 for her husband to commit the murder of Pamela Fayed. Mercedes, outside the presence of the jury claimed 5th amendment rights and was unavailable to testify. It was at that point the evidence of conversation that the prosecutor had with Mary Mercedes. It only became admissible once the defense case was presented. It was not part of the prosecution's case in chief.

Withdrawal from the conspiracy.
The court indicated at the outset of this proceedings it was going to use CALJIC instructions, that's because in a death penalty case the court decided it was the wiser course to use instructions that have been tested on appeal. There are no reported cases of death penalty cases that has examined the CALCRIM instructions, no death penalty case has gotten that far that either supports or (attacks?) the CALCRIM instructions. It seemed more prudent (to use instructions) that have been battle tested, so to speak, and that the Supreme Court has affirmed.

When it come to jury instructions there is no requirement that the court use CALCRIM, CALJIC, or any instructions. The court only has to instruct the jury on the law.

Denying a request for a new trial on that basis. Even if CALCRIM was used, there is no evidence at all that the defendant withdrew from the conspiracy. Judge Kennedy goes over the evidence and that the defendant did not exercise any of the possible opportunities to warn the victim before she was killed.

One point in the prosecution argument about producing evidence of withdrawal. I don't think it was as artful as it could have been, but the court's instructions were clear. There was only one point, where the defendant asked for his money back, but that was before the victim was killed.

Judge Kennedy makes note that if objections are not made during the trial then she can't make a ruling or instruct the jury. That was not done in this case. Court finds the prosecution did not make misconduct; they did not argue outside the case or matters beyond the record.

One other point that was raised was the issue of not allowing the AUS Attorney to answer questions about the federal case against the defendant. It was irrelevant then it's irrelevant now. The strength of that case didn't make any difference on this case.

The issue of jury misconduct.
I have never in all my years, had a case like this, where, there were outside forces which somehow or another, were associated with the defense. NOT defense counsels’ creating mischief and attacking the very heart of our criminal justice system and trying to derail the jury in this case. I know there are jurors here that were present in the trial. I have nothing but the greatest respect for the jury in this case. A death penalty case is not easy. The facts of this case were gruesome and horrible. In this case, there was all this chicanery going on. The jury in the case, self reported (the problems with an alternate and one of the original jurors. They were talking and they let us know that.

I conducted a hearing and I removed an alternate and a juror. And thereafter, we got these anonymous (communications) and phone calls and letters that were claiming that jurors were performing misconduct. We had an anonymous voice mail on the Court’s telephone that was purportedly from one of the jurors.

And with regard to each and every one of those issues (that occurred) the Court conducted a hearing and I examined all of the jurors and made inquires. All of the jurors denied sending the letter, leaving the voice mails and I believe those jurors. I have nothing but the greatest respect for the jurors who participated in this trial. It was someone else, someone associated with the defendant.

If the defendant was willing to pay $25,000, (to kill his wife) why wouldn't he have someone do this? We'll never know who was exactly responsible. As I said again, I have the greatest respect with the integrity of the jury. The defense is not suggesting any way that the conduct occurred because of this baseless accusation. For all of the reasons that I stated here and considering all the arguments in support of a new trial. The motion of an new trial at this (time? point? is denied).

Werksman asks to speak.

Judge Kennedy (with an angry or exasperated tone to her voice) says no, we’re moving on.
But Werksman speaks anyway.

MW: There is a possibility that an opponent of one of the prosecutions may have wanted to embarrass the DDA (Alan Jackson).

JK: The only one who stood to benefit from this case being derailed, was the defendant. The prosecution did not benefit from that. What my finding is, that there was no misconduct by this jury.

JK: Move onto the defense motion to modify the verdict.

Judge Kennedy states she has read the motions by the defense and the people. Meister gets up to speak about his motions.

Mesiter states he knows of no evidence of an investigation into the jury misconduct or evidence to support the court's position on the jury tampering allegations.

Meister talks about the death penalty issue and in California death doesn't mean death. He brings up the “Night Stalker” Richard Ramirez, who was sent to death row in the 1990's and Ramirez habeas brief has been sitting in the US Attorney's office for the past five years.

The co defendants are not facing death. They are facing life without parole (LWOP). Sending Fayed to death row is not accomplishing anything. Meister reads from Marci's Law. A moratorium is now in place (in California). Meister brings up the probation report and Judge Kennedy interrupts him that she has not read the probation report and she can't comment on it at this point.

Meister talks long about what it's like in San Quentin, and that's where inmates often outlive their victims. It won't do Pamela Fayed's family any good. It won't give them closure. He will live there throughout 27 years of appeals. It will only be punishing Pam's family over and over.

Harmon speaks for the people, "We've made our point clear in the motion. There's no reason to set aside or modify the jury verdict.”

JK: There may be a lot wrong with the appeal system for condemned prisoners, but that's not something that the court can do anything about. We are a trial court; we do not make new law here. We don't make any laws here. We apply the laws that exist. And the laws require that the weighing process set forth in the penal code 190.3. The idea that, the victims families are somehow going to be punished by, if the court elects to impose the sentence the jury felt was the verdict to impose in this case, but that's a bit of arrogance. You are not a proponent of the victim's family in this case. What the court has to do is follow the law. And, so pursuant to the penal code, obviously this is an automatic motion of reduction to life in prison without parole. Judge Kennedy states she has reviewed independently the evidence. "The motion for modification of the verdict is denied for the following reasons:

I find that the first degree murder was an intentional killing, personally carried out by the defendant who hired the co defendants. I find that it was purposeful, premeditated and was carried out with malice aforethought. I further find that it was carried out with a means of lying in wait, and that it was carried out for financial gain, in relation to the pending divorce and in relation to the pending federal case."

Judge Kennedy goes onto describe Pamela Fayed’s injuries in detail. "The victim was brutally and brazenly murdered. Her throat was slashed. She was stabbed 13 times. She was attacked in a parking garage minutes after a preplanned meeting with the defendant and his lawyers."

Afterwards, the defendant was caught on tape, after her screams were bouncing of the office buildings. The people were coming out of their offices getting ready to come out for the day. The (poor?) witness witness in the area. (Judge Kennedy mentions Edwin Rivera, who was sitting in his car.) "There were lots of people around. Even thought we only had video tape, (no sound) you knew, we could hear those screams. An attorney in an office building across the street, several stories up could hear her scream."

Judge Kennedy talks more about the loud screams. "On the video tape, we could see, all the people are rushing over and looking up at the garage, everyone except the defendant. (We can see) the defendant is sitting there and texting on his cell phone. He doesn’t have a care in the world. He eventually walked over to where the people are. And that is one cold, calculated human being. Mr. James Fayed, he doesn't feel anything. This is his wife that at one time he loved. The mother of his child. And he doesn't feel anything. He doesn’t feel anything. He has no concern at all."

"That was one of the most chilling parts of the evidence, is that tape, where we see him totally outside that parking garage, totally immune to the screams of his wife. The mother of his child, his wife. Chilling."

Once the defendant was taken into custody, and housed in detention, not only did he brag about the murder of his wife, these are his words, “ a dumb fucking cunt and a dumb money fucking whore...”

Further, he planned to hire his cell mate to carry out three additional murders, the three co defendants who carried out the murder of Ms Fayed in the garage.

He was convicted not just of murder, but conspiracy to commit murder. He paid Jose Moya $25,000 to commit the crime. Within, days he promised to pay to (cell mate Shawn Smith) to carry out further murders of the co defendants, who was wearing a wire.

(The Court) considered there was no prior criminal conduct. The defense stated he was a good stepfather, "That was true to a point. At one point the defendant had withdrawn from the family, stayed in his room and was addicted to pain killers. In the penalty phase, there were no people called by the defendant who were present associates, but people he had known 15 years before."

The defense stated that he did not carry out the murder himself, however on the audio tape (the defendant is heard saying),

“I wanted to do it myself. I wish I could do it myself, but knew I would get caught.”

There's nothing mitigating about that, because he had a lot of money or he did at one time, to hire someone else to do it for him. I don't find that to be a circumstance to be mitigation in this case.

The Fayed’s had a lot of money. Most people in divorce court are dividing debts rather than assets. Mr. Fayed could have split up the assets and they both could have had a lot of money, but that wasn't good enough for him. His greed, was seemingly the controlling factor as to why this murder was carried out.

Judge Kennedy forcefully again, talks about the great respect she has for the jurors in this case, and the time they took to reach their decision in this case.

"I find that the aggravating circumstances so outweigh the mitigation the court denies the modification of the verdict," Judge Kennedy rules.

Judge Kennedy takes five minutes to read the probation report and then will return to the bench. Fayed is returned to the little jail area.

10:24 am: Fayed is brought back into the courtroom. Since I'm getting a better look, he looks like he has lost some noticable weight since the trial. Here is a photo from the LA Times.

Far left, Deputy Penna, defense counsel Mark Werksman, James Fayed, co counsel Steve Meister, and bailiff Deputy "Shawn."

Judge Kennedy takes the bench.

Werksman's client does not wish to be heard. Werksman asks to make a few statements.

Mr. Fayed now stands alone. He met his client two days after the murder, he was on pain meds and distraught over the death of his wife and the location of his daughter. He was arrested a day and a half later. Since then, he has lived through the most oppressive situation. He's been deprived the use of a telephone. I've watched over the past three-and-a-half years, I've watched his world shrink. His business disappeared overnight. Now, he has no one to call, no one to visit. Today, he is indigent and relies on the charity of others to put money on his commissary account. He wants to live. He want's to see his daughter's grow up. I know it seems (odd? contrary?) to want to see his daughters grow up, but he does your honor. But never the less, he loved his family. He want's to live. There are contributions he could make to society, and to not judge him on the very worst thing he did in his life.

JK: People?

We'd like give this day to the victims family, and to have your honor impose a justice sentence.

Two family members speak to the court.
Renee Goudie. "Pamela Goudie's sister in law for 29 years. In those 29 years, I've never met or spoken to this individual. I am the one raising his daughter. (Renee mentions something about being the one having to answer the hard questions that kids on the school bus ask, ‘Is your mother dead?’ and ‘Was she murdered?’)"

"I am the one that has to answer the questions. I do have a message that she (Jeanette) wanted to give her dad. She said to say 'Hi, and she misses him.' "

Scott Goudie, Pamela's kid brother. "(I am in) a void that this man has left in our life you can not describe. He has committed the ultimate betrayal of all, (and) to his children, they will never know and never get to feel their mother’s touch and caring hands again. He’s left our family in fear. This man kills people for money. We cannot pull into a parking lot, or we can not turn on the TV, because something reminds us of this."

"We can not live (a normal life?). Not just my family but our extended family. Our daughter (Jeanette) does not understand. I don't think to this day we have not seen the hardship that she will endure. There are not enough words to describe how I feel about this man. We will spend the rest of our life picking up the pieces of our lives, and trying to move on."

No other family members speak to the court before sentence.

Judge Kennedy states there are two additional exhibits to put on the record, the DVD recording, of the proposed (supposed) juror on the telephone call and the sheriff's office investigation.

The court has previously denied the request to modify the sentence an nothing that has been said here after has caused the court to change (it’s opinion? decision?). The fact that the defendant is living in an uncomforaable jail cell and no access to phones, that's a hell of his own making; and there are consequents of (his) actions.

Judge Kennedy reads her ruling and it’s addressed to the warden. She goes over the sequence of the events of his charging arraignment and the start of the trial, through the jury verdict and the jury's penalty phase verdict.

Court rules that James Michael Fayed sentence is the death penalty. It is the order of this court that you should suffer the death penalty.

Judge asks about restitution hearing. Fayed waves his right to be at the restitution hearing. Ordered to submit DNA samples, etc.

Ordered to San Quentin’s custody within 10 days. Orders warden of San Quentin to hold Fayed in custody until the time of his death.

Restitution hearing on January 24th, 2012.

Either Werksman, or Harmon tells the court, “It's complicated (by the) potential civil case, (but they would need) probably 1.5 hours.”

Only other issue is the transcript, December 19th, for submission of the initial corrections. No appearance necessary.

And that’s it for the sentencing hearing. Court is adjourned. I ask Jackson if he’s going to speak to the media. He tells me that if they decide to go, they will be there in about 15 minutes. Any longer, and they won’t be going.

Up on the 12th floor, media area, the defense team (Werksman and Meister) spoke on camera to the media (video taped) regarding the various issues they felt were errors in the judge's ruling. An abridged version of what he argued in his motions. After they spoke, Mr. Werksman came over and greeted me, shook my hand. He addressed me as, "Madam blogger" on the 12th floor and thanked me for being the most consistent reporter who covered the case.

I was quite impressed to hear Fayed’s defense attorney, Mark Werksman, on the 12 floor media area, make a very (to me) sincere sounding statement, “...sorry for your loss...” to the family regarding the loss of Pamela.

More camera men show up on the 12th floor.

One of the reporters asks what was given to the defendant. Because of where I was sitting in the courtroom, I did not observe this. I find out (I believe DDA Harmon answers this question but I could be wrong.) that each daughter (Jeanette, Desiree) wrote Fayed a letter. The children are both conflicted. There was a photo of the younger daughter in the one letter and given to Fayed in court.

It’s now11:27 am, and the family as a group speaks on camera to the media. (I have to tell you, I was quite disappointed with Miriam Hernandez and the questions she asked the family. She was clueless about the facts of the case. I think if you’re going to go to a sentencing hearing, it might help to know something about the trial, and the family as well before you shove a camera and a microphone in their face and ask questions.)

MSM: What does this sentence mean to you?

Scott Goudie: It brings partial closure. There are still three more defendants.

MSM: (What are your) feelings about sentence?

SG: I think the sentence is fair. He orchestrated the murder of another human being. I think it’s fair. I’m going to tell you... to tell you I’ve tried to prepare for each hearing you go to but you can’t. There isn’t any preparation to prepare you for what you are about to hear.

(Scott speaks about the family’s love for Pamela, and what she was like.)

SG: She was a generous, loving mother. She cared more about her daughters more than everything else. And one of her last words to me were to make sure that her daughter’s were taken care. She laughed a lot and enjoyed life.

MSM: You’ve had conversations with her daugher, Jennette? How is Jeanette doing?

SG: Jeanette is adjusting to the move to our household. She doesn’t discuss this a lot. And I don’t know how to describe how she feels inside. It’s hard for her. (Scott’s wife, Renee nods her head as Scott speaks.) “Its a different environment than what she's used to.

MSM: What went wrong with James Fayed?

There’s no way that I could perceive (...?).

MSM: Did Pamela ever share anything with you...?

SG: Other than, than, the last couple of years. The fact that he was quite a recluse in his living environment. (There might have been a question here, about what Pamela told her family that I miss.) She didn't; she didn't. She lived in fear of him the last six months of her life. While she was still married she didn’t' share a lot of that with me.

MSM: Anything else (you want to say?)?

SG: You know, I think the trial, went amazingly well. the DA office did a remarkable job, and they have been so helpful to our family throughout all of this. The police, an outstanding job as well. Special thanks to the jury, and what they had to go through in, in answering that letter (jury summons). It says report to jury duty and you can see that it deeply affected those people as well forever.

MSM: Why did you decide to speak now?

SG: No, there's (?....) and, I have spoken to some of the other media, but I generally try to keep it private, try to keep my private life private and above all, try to protect Jeanette.

Somone asks how old Jeanette is and how old she was at the time of Pamela’s murder.

SG: Jeanette is twelve and she was nine at the time.

I know Scott spoke about living in fear because of what Fayed might be capable of doing, even from a prison cell, the possibility of still being able to reach out and harm them, but I don’t have the quote exact. And that’s about it. There are questions about the spelling of their names.

DDA Alan Jackson, when addressed by the media states, “We don't have anything. This was about the family, unless you have specific questions.”

Other media asks about the status on the other three defendants. They are going to trial next sumer. (Some thought one of the co defendants may have pled out. That's not the case.) Hopefully, in the next six months. No one has pled guilty.

The reporters, who did not follow the trial, are asking about the "letter" which claimed to be from a juror anonymously. (This is another issue, that if any of these reporters had covered the trial, they would have known about.) The letter claimed that DDA Alan Jackson sent them campaign promotional materials. Miriam Hernandez tries to get a copy of the video tape Judge Kennedy spoke about of Fayed in the plaza, ignoring the screams of his wife but DDA Eric Harmon tells her she would have to get a copy directly from the court. The DA’s office cannot release them a copy since this same evidence will be used against the other three co defendants.

And that's it. I was quite touched by the family's many thanks to me for my trial coverage, and how much it helped other members of their family who could not attend the trial.

Local ABC Channel 7's video report on the sentencing.


Jason said...

Thanks for the recap. It was nice to finally be able to meet Pam's family, and I was glad that they approached me while we were waiting outside.

They were extremely grateful to me for my jury service, saying that they were sorry I "got dragged into this." While I appreciated the sentiment, I told them that whatever we jurors went through was nothing compared to what they as a family have been forced to deal with.

I was glad that the family got the chance in court to voice their feelings one last time before the sentencing, as well. Renee's recounting of how Jeanette is struggling to figure out what all of this means was heart-breaking.

On a small "selfish" note, it was also good to hear Judge Kennedy reaffirm her belief that (aside from the two jurors who were rightfully dismissed) we took our responsibility seriously.

Thanks again for the coverage.

Jason (Juror #3/Foreman)

Anonymous said...

Thanks for covering this sentencing hearing. A great job as always.

David In TN