Thursday, February 26, 2015

Mary O'Callaghan Trial - Day 2, 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.

UPDATE 10:30 PM spelling of Judge Bork's name; I blame my dyslexia
UPDATE 8:37 PM spelling, clarity
UPDATE 6:26 PM see below
Thursday, February 26, 2015
10:25 AM
A few minutes after I arrived this morning it appears there has been a big wrench thrown into the trial. At this point, I can't say specifically what it is. The court has had two in camera discussions with attorneys.

As soon as the court goes on the record about what has happened I will give an update as soon as possible.

11:20 AM

Judge Bork apologizes to the jurors. There is an issue that the court is dealing with right now, and I’m asking for your patience. The court tells the jurors they are to return at 2 PM.

This happens sometimes, where the selection process is slowed.  The court then tells jurors about some places they may want to go. Judge Bork mentions Chinatown, Grand Central Market and Little Tokyo, where there are museums and several restaurants where they can get sushi. Judge Brock also mentions the Eli Broad museum west of the courthouse. He also encourages the jurors to walk the new Grand Park. He tells them that the park has a waterfall and Starbucks. “They’re worth seeing,” Judge Brock adds.  He asks them to accept his apologies for the delay and to, “Roll with it. ... Return at 2pm today.”

One juror is asked to stay behind. This juror is excused for just cause.

Once all jurors had left the courtroom, Judge Bork goes on the record. “Counsel approached [this morning]. Mr. Presby brought to the court’s attention that he was notified about other possible evidence out there, if indeed it exists, may be relevant.” The court then tells counsel he will ask them to make a brief record. “Tell me what [it is] you can that’s out there at 1:30pm.  ... What is out there so I can consider if there is good cause to continue or not. ... It’s [hard?] if you know something is out there, as to what it is or how extensive it is in the absence of that evidence. ... Get out there as promptly as you can, find out as much as you can and report back to me at 1:30pm.”

The court then tells DDA Presby to make his record. 

(I have decided at this point, not to mention any officer’s names that were mentioned in court until a decision has been made by the court about this potential new evidence. Sprocket)

DDA Presby states he was approached by Sgt. “A” assigned to a division within LAPD that prosecutes, administrative actions against police officers. Sgt. A advised DDA Presby that there had been a Board of Rights hearing regarding another officer, Officer B (related to the July 22, 2012 event). During the course of the incident, Officer B testified at a Board of Rights hearing that he advised the defendant, Ms. O’Callaghan, after there had been some application of force, words to the effect of, “Stop it, that’s enough, or cut it out.”

Officer B testified he told Ms. O’Callaghan that on the evening of the event. The criminal investigation discovery into the death, by the Force Investigation Division is a separate department. In the criminal investigation transcribed interview of Officer B, those questions were not asked and there were no statements. Sgt. A also told Mr. Presby that another officer, Officer C, testified at another Board of Rights hearing that he heard Officer B say, “Stop it; cut it out.”

DDA Presby tells the court that as soon as he heard this, he directed his IO, Mr. Stone to conduct an interview [with?] about [this testimony?] in front of the Board of Rights. DDA Presby also asked that Sgt. A get those transcripts from the Board of Rights hearings.

After DDA Presby gave those instructions to Mr. Stone and Sgt. A, he saw Mr. Rico in the hallway and informed him of what he just discovered and then brought it to the courts attention.
Sgt. A., who is the person who has access to that material [Board of Rights transcripts] he is attempting to obtain the report of the transcripts of Officer B and Officer C’s testimony, and preparing some kind of statement form with respect to the content of that material or the circumstances surrounding this disclosure this morning.

DDA Presby states that he is going to ask that Mr. Stone contact Sgt. A, that all the transcripts from all the Board of Rights hearings [related to this incident] be provided to the DA’s office so they can then be provided to the defense [via discovery].

In closing, DDA Presby adds, “And as I told your honor, there may be some legal impediments to providing that material. We may need judicial guidance from your honor or another court with production of that material.”

Judge Bork states that before he turns it over to Mr. Rico for his record, he tells counsel, “We are in trial and I’ve got 55 plus jurors to excuse from this problem. I don’t know yet how much of a problem it is and what is out there, and I don’t know what independent or inconsistent statement, or is it ... and it’s hard to judge what’s out there before we have some greater certainty.”

DDA Presby tells the court he will get with the parties to try to provide the material so a decision can be made.

Then Mr. Rico makes his record. He states that around 10:25am he was approached by DDA Presby who informed him about being approached by Sgt. A. Mr. Presby advised Mr. Rico that he was informed that there was a statement made by Officer B at his own Board of Rights hearing, that he had told or made a statement to Officer O’Callaghan to stop or something. Officer C, testified [at a Board of Rights hearing] under oath and that he had supported Officer B of that position and also told her to stop.

Mr. Rico tells the court that in the past 14 months he has been given voluminous discovery. DDA Presby has been more than candid with discovery. My issue is with the due process and the fairness to Ms. O’Callaghan. I know that what ever testimony that has been given [at these Board of Rights hearings] would have been taken down, just like we have a court reporter here and those statements would be transcribed if not already transcribed. 

Mr. Rico’s position is clear, that this is rather Brady, discoverable. It is a prior inconsistent statement to be used for impeachment purposes. Mr. Rico closes with, “I’ll leave it at that, your honor.” I believe Mr. Rico adds that it greatly impacts his clients right to a fair trial. It greatly impacts the jury in this matter. Mr. Rico also mentions something to the effect that it cannot be reviewed overnight. Mr. Rico will ask for a continuance of the proceedings if that evidence does exist.

The trial has until 2pm when jurors come back.

Judge Bork again instructs counsel that he needs their help in determining what is out there. Is the information out there? Is it transcribed? Is it in fact inconsistent statements? How does the court get it into your hands. Judge Bork requests that Sgt. A be present at 1:30pm. I believe the court adds that he knows there are issues as to what can be turned over .... and when personnel protections that must be  made there. The court states he needs to know what is out there, and the defendant has a right to a speedy trial. The judge again requests that Sgt. A be present. If he needs a city attorney, the court is sure one could be present. The court states he needs St. A’s assistance and everyone’s assistance to see if there is a good cause basis for continuance or not.

Counsel ordered back at 1:30pm with as many answers as they can get.

1:35 PM
Back on the record. DDA Presby tells the court that he has received a single page document from Sgt. A. However, because the information contains personal information regarding LAPD officers, he may be committing a misdemeanor if he turns this document over to the defense. DDA Presby is willing to present the document to the court under seal. The court then could read the document to see if the information in the document gives the court guidance on how to proceed. DDA Presby states that the only method to turning this information over to the defense is through Pitchess motions.

There's more discussion that I'll detail later. In closing, Mr. Rico moves for a 1050 motion for a continuance of the trial to preserve his client's right to a fair trial. DDA Presby joins in that 1050 motion. Judge Bork asks the parties to hold on. He's going to consider this for five minutes.

1:58 PM
Back on the record.
Is the matter submitted?  Court finds itself in a most unfortunate situation a panel of 60 jurors sworn, most of whom are out in the hallway so to speak. But it has come to the courts attention there is probative material that cannot be obtained by a simple court order. There is the Pitchess process that must be followed. Based on what has been presented to me, there is evidence that must be disclosed to both parties. It's very possibly Brady evidence. And it must be litigated for it to get to the defense.

As much as I'd like to move forward, I have no alternative but to declare a mistrial, because there is evidence to declare a mistrial and continue the case.  He will excuse the jury first then they will set up a new date.

3:35 PM
T&T readers. I'm back home. Over the next few hours I'll be transcribing my rough notes from the afternoon session and posting in a few hours.

Judge Bork set the next pretrial hearing date in the O'Callaghan case for April 2nd in Dept. 131.

Below are my updated, detailed notes for the afternoon session as promised. Sprocket.

Around 1:30pm I enter Dept. 118. Counsel are already at their respective tables. Off the record Mr. Rico asks the court how he feels about water on the table. Judge Bork replies, “If it’s in a small, discreet container, I’m okay with that.”

 Judge Bork says, “Back on the record. No jurors are present. Thank you for your promptness counsel.”

DDA Presby addresses the court. “I have been provided with a one pager report from Sgt. A, who is also in court. ... I believe I may be committing a misdemeanor if I turned that over. ... I think we need to go through the Pitchess process before we turn this over.  ... While the people may obtain these protective personnel records ... we are prohibited from disseminating those records absent a court order.”

DDA Presby continues that he has a one page memorandum from Sgt. A. “I can provide that to your honor under seal. ... Your honor can review that. ... Maybe that would be enough in respect of the 1050 motion.”

Judge Bork asks, “Are you able to tell me what that is without ... jeopardizing it’s possible confidentiality?” DDA Presby responds, “It is a memorandum to Detective Pete Stone from Stg. A dated today regarding a Board of Rights [Hearing].”

Judge Bork responds, "So your suggestion is that I view it ... that it may give me additional insight whether or not there is discovery evidence out there that would need to be turned over or sought, and could constitute good cause for a mistrial and a continuance?”  DDA Presby replies, “Yes.” 

The court asks but Mr. Rico does not want to be heard at this point.

Judge Bork states, “Since I’m aware of Pitchess and his prodigy as to confidentiality as to personnel records ... I will review that and seal it. ... If I determine that it does not need to be under seal then I will either offer it back to you and or unseal it.”

DDA Presby states, “We offer it under seal.” He also adds that he does believe that it contains protective personnel records.

Judge Bork reviews the document then addresses counsel. “Without revealing what is in the memorandum, there is an indication that there was an attachment.” DDA Presby tells the court that he did not receive an attachment with the single page document.

Judge Bork tells the parties that he is striking through that information on the document that states there is an attachment. “I have not read any transcripts and read the one page memo only,” Judge Bork adds.

Judge Bork addresses DDA Presby, “So your review would state that Board of Rights needs Pitchess?” DDA Presby replies, “Not necessarily for the DA’s office but certainly for dissemination to the defense.”

That hearing could contain Brady material.

The court expresses “great frustration here.” Judge Bork adds, “I’ve got 55 jurors that will be back in 22 minutes and have interrupted their lives for two days. If there ever is a time that we should have information relevant to a defendant ... but we’re faced with the possibility of [continuance?].”

Mr. Rico addresses the court. “I share the court’s frustration. I believe the fair rights of my client and due process supersedes the concerns of both myself, the counsel and the court and believe the 1050 should be granted.”

Judge Bork states, “I have every reason to believe that both counsel are acting in good faith. At some token, it is beyond me how we could have gotten to this state. ... That a person is charged with a crime where that person could go to prison and we don’t have full discovery.”

DDA Presby adds, “I understand the court’s frustration in this area. ... This area is a very complex area and the privacy rights afforded to police officers is a significant challenge to both sides.” Judge Bork replies, “One or both of you, tell me what each of your motions is. But I want to know so our record is clear.”

Mr. Rico puts his motion first. “On behalf of Mary O’Callaghn, to continue this matter according to section 1050. There is impeachment material [that?] exists, and those statements were given at a protective, private hearing, that can only be disclosed via Pitchess. ... [My client] could not have a fair trial if there is Brady material that exists. ... The people have been candid in their disclosure. This has not been at the error of the defendant.” Mr. Rico asks for a motion to continue the case and to declare a mistrial.

DDA Presby states, “The people join in the motion to continue. I don’t believe jeopardy has attached. I don’t know if the proper remedy is to declare a mistrial or to quash the [voir dire?]. ... I do apologize to the court to derailing these proceedings at this point. ... Only discovered [this material today]. ... Given the privileges that are given to the officers and to the City of Los Angeles, they are the only ones that can waive the Pitchess process.” 

Judge Bork asks, “Why can we not get someone from the city attorney’s office to determine if there is a willingness to waive?”  DDA Presby answers, “It has to be on a written motion and it has to be 21 days notice. ... And besides, they are going to gather the material and make any objections themselves. ... The officer that’s involved, Officer B needs to be [involved/notified].”

Judge Bork tells counsel, “We have 18 minutes until our jurors get back. I’ll take [this] under submission for about five minutes.”  Presby then tells the court that he does have the citation where, he could be committing a misdemeanor. I miss getting the correct citation number. Presby reads from the citation, “Hold in essence that disclosure of peace officer police records can constitute a misdemeanor crime according to the government code. ... The proper method to disclosing that material is through Pitchess.”  Judge Brock rules the one page memo be sealed and takes this under submission. He tells counsel, “Don’t go too far.” Judge Bork leaves the bench and goes back into chambers.

It seems like less than five minutes goes by and Judge Bork is back on the bench.

It’s 2pm. The jurors file in. I have to stand against the wall while the jurors take all the available seats. It’s difficult to near impossible to hold my laptop and type, but I do my best.

Judge Bork thanks the jurors and hopes they were able to enjoy the noon lunch hour. He informs the jurors that there is a piece of potential evidence that he can’t get and that counsel can’t get. He can’t move forward with the trial and it’s deeply frustrating. He tells the jurors that everyone has acted in good faith. There is no other remedy but to declare a mistrial. I’m going to excuse the jury. Everyone has done their duty, but we are unable to move forward with the trial. I apologize, but I’m grateful for your service.

Judge Bork then talks about the the jury system in the US.

“For well over 200 years, we have solved our disputes by trial by jury. ... It was brought over from England well over 200 years ago. ... For all that time, rather than fight it out in an alley, ... we ask folks like you to come forward and decide the case. ... But that’s how we solve our problems in this country, trial by jury. ... They know their case will be decided by folks like you.”  Judge Bork mentions the inconvenience that the jurors have endured, and that many of them are not being paid. He then tells the jurors that the only time that we did not have trial by jury was in [1765?] when the sovereign, King George suspended that, then we had the Revolutionary War. ... I’m grateful for your time and patience but my hope is that you will have another opportunity to do that [serve on a jury].”

He tells the group to turn in their orange tags and go back to the 11th floor jury room, not the fifth floor jury room and turn in their other badge to get credited for their jury service.

After the courtroom clears, I get to sit back down on a bench. Judge Bork states, “All jurors have now left and all parties are now present.” The next date on this matter, will be set back to Department 131. Counsel spoke earlier about an April 2 return date. Mr. Rico wants the April 2 date for a return. DDA Presby agrees.

Judge Bork addresses the defendant. “Ms. O’Callaghan, do you agree that we can set your next date as April 2?” She agrees. She is ordered back to Dept. 131 on April 2.

And that's it. I do not know at this time if I will be able to attend any future hearings in this case. It’s my understanding that the Cameron Brown trial is scheduled to start in mid March or early April of this year. I’ve tracked the Cameron Brown case since the second trial in 2009.