Thursday, February 26, 2015

Mary O'Callaghan Trial - Day 1, Jury Selection

T&T full trial coverage can be found HERE.

LAPD Officer Mary O'Callaghan with her attorney Robert Rico
at a pretrial hearing. Photo courtesy KTLA website.

Wednesday, February 25, 2015
I'm at the downtown Los Angeles Criminal Court building. I got a notice a few days ago that the case against LAPD Officer Mary O'Callaghan was going to trial in a few days.

Mary O'Callaghan is charged with assault under color of authority in connection with the July 22, 2012 arrest of Alesia Thomas. Media reports indicate Ms. O'Callaghan is facing up to three years in state prison if convicted.

While in police custody, Ms. Thomas lost consciousness, went into cardiac arrest and died. The investigative report prepared by the DA's Justice System Integrity Division describes the events and the conclusions that were reached.

O'Callaghan was charged on October 10, 2013 and arraigned on October 15. Interestingly, O'Callaghan waived a preliminary hearing. It is unknown why the defense made this decision. Waving a prelim is not unusual; it happens.

When I arrive at the elevator bay in the lobby, I spot Pat Kelly from the Public Information Office. I ride the elevator up with her to the 13th floor. Pat is handling media requests for another case that is being heard in Dept. 100, the Olivia Cullbreath case. Cullbreath is charged with multiple counts of murder in a wrong-way car crash. I tell Pat I'm here for the O'Callaghan case.

Once inside Dept. 100, master calendar court, I see Deputy District Attorney Shannon Presby in the gallery. DDA Presby and his co-counsel Paul Nunez successfully prosecuted Detective Stephanie Lazarus of first degree murder in the death of Sherri Rasmussen. DDA Presby is sitting with another gentleman, whom I'm guessing is a co-counsel or his investigating officer. When DDA Presby sees me, he comes over to say hello. I tell him I'm here for his case.

I keep checking the gallery for other prosecutors I might know but I don't see anyone. I do see a familiar defense attorney, Kelly Gerner.  Gerner was part of the team that represented Lois Goodman.

Over in the seats to the right of the bench are a couple of cameramen. Pat Kelly heads over to them. They are here to video Cullbreath.

In the back of the gallery on the right side, I spot Ms. O'Callaghan and her attorney Robert Rico. A female friend is sitting beside O'Callaghan.

The O'Callaghan case is the second case called when Judge Scott Gordon, the Assistant Supervising Judge, takes the bench. The case is transferred to Dept. 118 on the 11th floor.  DDA Presby takes the court's case file and packs up. I also head towards the 11th floor. 

Dept. 118 is at the end of the left wing on the right side. On the door it states Anne H. Egerton, but when I step inside a man is on the bench, Judge Terry A. Bork.  Judge Bork has several cases on his calendar. There are two people at the prosecution table and a couple defense attorneys in the well. There are a few people in the gallery.  It looks like the court is quite busy at the moment.

I sit in the third bench row. Behind me are Ms. Callaghan, her friend and her counsel.  The courtroom is almost a mirror image of Dept. 108, Judge Ohta's courtroom. The only difference is, the jury box is slightly smaller. There are only 14 seats in the jury box instead of 18. This means the front row of the gallery seating is longer.

I note something different in Dept. 118 than any other courtroom I've been in on the 9th floor. There are no signs in the front row that say, "Do Not Sit Here" or "No Seating Without Permission."

I've seen seen Judge Bork's clerk before in other courtrooms, but I don't know her name. There is a small plant on the far corner of her desk. She has beautiful hair, that seems like it changes color. I'm really drawn to how the fluorescent light bounces off of her hair. First I think it's light brown, then it looks like it's dark blond, then it looks like there is a hint of red. I have to force myself to check out the rest of Judge Bork's courtroom. The court reporter is a tall, elegant black woman. Her hair is pulled back in a tight bun and she's wearing gold loop earrings. Judge Bork is a white man with balding hair. I'm also struck by the bailiff. He is almost the spitting image of actor Domineck Lombardozzi, who played “Herc” in David Simon’s HBO series, The Wire. The only difference is, this bailiff is slimmer and has a much more handsome cut to his jaw.

9:30 AM
DDA Presby arrives. He hands a witness list to Mr. Rico. DDA Presby heads over to the clerk's desk getting various papers logged in. She is stamping every document and it makes a loud sound each time.

More attorneys file in that I saw in Dept. 100, their cases transferred to this courtroom. One of them is Kelly Grerner.

I overhear DDA Presby and the defense attorney chat about the possibility that they will pick a jury at 1:30 pm. I hear the clerk tell counsel that the Judge will speak to them off the record. I see both attorneys introduce themselves to Judge Bork who shakes both their hands. I hear DDA Presby explain to the court the filings that he’s already made.

After they step away from the judge’s bench, DDA Presby confirms to me that they are back at 1:30 PM. At some point in the morning, DDA Presby told me that the man with him is his investigating officer, Pete Stone, with the LAPD's Force Investigation Division. In the elevator down, I mention to Officer Stone that I met another officer in his unit, Thomas Townsend. Townsend was the IO on the Rafael Martinez case.

I head down to the cafeteria to start writing.  The cafeteria is ice cold so I decide to take a walk outside to try to warm up. I walk to a cafe past LAPD Headquarters to get a cup of tea and find a warm, outside seat where I can write.

1:32 PM
Back inside Dept. 118, DDA Presby sets up his files. I note that there are many seats in the well in front of the jury box and along the dividing wall. The seats all have papers on them. Judge Bork asks counsel back in chambers.

1:50 PM
We're still waiting in the gallery. The clerk is very busy. She's sorting papers and inserting them into various case files.

1:55 PM
Judge Bork comes out and asks his clerk how long it would take for them to get jurors. Then all parties come out. The judge states that he's going to order a panel for 2:30 PM. They will get 60 jurors. Ms. O'Callaghan leaves the gallery and joins her counsel at the defense table. Judge Bork goes on the record. The parties state their appearances for the record.

The court states that the case was transferred from Dept. 100 to this court for jury trial. A panel has been ordered. Trial is estimated to take 10 days.

The judge addresses media requests. An independent journalist requests permission to live tweet the trial via either phone or computer. There are also two media requests to film the trial.  The defense objects to all the media requests due to prejudice to the defendant's right to a fair trial. The defense also objects to the impact the media coverage might have on the jury.

The people's position is no objection to the media coverage. The trial is an open proceeding and there is public interest.

Judge Bork rules on the request from an independent journalist, whose name is Thandi. (Thandi's twitter feed can be found HERE.) The request is granted as long as the laptop makes no audible noise in the courtroom.  I'm surprised. I've never covered a case downtown where the court allowed live tweeting from inside the courtroom. Judge Bork rules there is to be no audio recording and no photography. 

The media requests from KTLA and KCAL are granted but limited to opening statements, closing arguments and verdict. Judge Bork mentions the risk of jurors being shown. The cameras must be set along the back wall of the courtroom.

Judge Bork then makes a disclosure on the record. Prior to taking the bench in 2007, when he was Deputy District Attorney, he spent approximately 1-2 years in the JSID unit. "My time was 16 years ago. ... Then in the late summer of 2007, ... appointed to the bench." Judge Bork also mentions his prior work in private practice. Judge Bork feels his prior assignments do not merit recusal. He believes he can be fair to both sides. He asks counsel if they wish to be heard. No one wishes to be heard on his ruling.  Judge Bork also states that 12-15 witnesses may be called. 

Judge Bork then talks about how voir dire will go. Each side will get 10 peremptory challenges. He explains that he packs the well with 24 potential jurors. They will seat 12 in the box and the rest in the other chairs in the well. Counsel will get 1 minute each to question each juror, after the court has asked some preliminary questions. He tells counsel to budget their time accordingly. The court asks if counsel has a jury instruction draft. DDA Presby has a draft pattern for instruction 149.

The court then explains that once they get their panel today, he will conduct hardship questioning on the first 60 jurors. Tomorrow, they will start with voir dire.

2:15 PM 
There is a break until the jurors arrive. I take the time to contact the PIO to get approval to live blog the trial. After some back and forth, the court clerk comes over to me. I introduce myself and explain what I'd like to do. I agree to no audio or video recording. 

3:05 PM
Jurors arrive in Dept. 118.  The court asks the media to leave the benches and stand against the wall. I try to type with one hand while holding my laptop. 

Once all the jurors are seated Judge Bork tells the jurors about the case and introduces his court staff. He explains that everyone who works in the court takes an oath. Witnesses take an oath, and jurors are expected to take an oath as well.  Jurors are asked to stand and the oath is administered.

Judge Bork explains that if any juror has a question, they are to write it on a piece of paper and give it to the bailiff. He also explains to them about speaking in full words, and the difficulty of transcribing Uh-huh and Um. He also talks about asking and answering questions in a way that's understood.

The court has counsel introduce themselves and then reads the charges against Ms. O'Callaghan. He explains the time frame of the trial and that they will start about 10:30 AM or 10:45 AM each day and end at 4;15 PM. Possibly start even earlier on Friday's, by 10 AM.  The judge then goes on to explain financial hardship excuses. He will only excuse for extreme financial hardship at this time.

He tells the gallery that if they do not want to be heard on financial hardship at this time, then they can leave now and report back tomorrow at 10:30 AM.  If they want to be heard on hardship, they will call each juror one at a time and he will hear them. He then tells the potential jurors that there are media outlets in the courtroom and there may be media interest. He tells them that if they are watching the news and the case comes on, the court requests that they immediately turn the channel. No media, no Internet, no Twitter. He tells them they need to restrict what they hear about the case to sworn testimony and sworn evidence.

The court will now hear hardship cases. About 12-15 jurors hold up their hands to plead hardship. All the jurors exit the courtroom. Those who want to plead hardship line up in the hallway in number order. Eighteen jurors line up and are called before the court one by one.  Judge Bork is not sympathetic to people who state they will have trouble paying their rent or student loans. A few people misunderstood that this was only for financial hardship, and not because they don't understand English very well.  All of those jurors, he orders back. After the last juror is heard, court is adjourned until tomorrow at 10:30 AM.

To be continued in Day 2.....