Arial view of Inspration Point,
in Rancho Palos Verdes, California
Update 9:50 PM: clarity, spelling
Update Note: I will have copies of all the motions argued on 3/12 up on T&T hopefully late in the day on 3/18, Sprocket.
Thursday, March 12, 2015
I got a late start today, so I arrived on the 9th floor about 8:35 am. Mr. Laub, DDA Hum and Judge Lomeli are in chambers, but I didn't know it at the time.
When Patty Brown, the defendant’s wife arrives, she asked me if I’d seen Mr. Laub. I had not. They were not in the courtroom when I arrived.
DDA Hum, Mr. Laub and Judge Lomeli come out of chambers about ten minutes later. In off the record discussions, Judge Lomeli is telling a counsel in another case that he’s getting ready to start an 8 week trial.
I didn’t realize that this case would take that long. Eight weeks. During the second trial, I became ill during the presentation of the defense case and had to stay home. I missed most of it. I'm thinking about how I'm going to cover this case and help Mr. Sprocket with his billing invoices at the same time. It will be a challenge.
Mr. Laub and DDA Hum come out from chambers with Judge Lomeli.
DDA Hum and two other deputy district attorneys stand in the well in front of the jury box. Mr. Laub is standing near them, looking over some papers. The court and counsel in another case are in discussions off the record.
Judge Lomeli then addresses DDA Hum and Mr. Laub on a few issues of their case. They will get their first batch of jurors on Wednesday, March 18, and the second, smaller batch the next day on Thursday, March 19.
The other case goes on the record. Three defendants are brought out. A Sheriff’s Sargent arrives. (Anytime Cameron Brown is moved, a Sargent must be present.) It’s a pretty, petite Latino woman. Once that hearing is concluded, Laub and Hum go into chambers again with Judge Lomeli. Brown is brought out. Brown has shaved off his ZZ Top beard and his hair is cut very short, very close to his scalp. He looks 100% different than he did before. He looks similar to how he appeared at the second trial, but his haircut is shorter.
Patty has brought some pants for her husband to try on. When I saw the bag, Patty explained in a low voice that Brown didn’t think that his pants would fit. The bailiff is speaking to Brown. The Sargent is standing directly in line between Brown and his wife. Brown leans forward to see his wife. Patty pulls the pants out of the bag. Brown nods his head. Since counsel are still in chambers, Brown is brought back into custody.
Judge Lomeli and counsel come out from chambers. Mr. Laub and Patty step outside. DDA Hum also asks for a moment.
There is some friendly joking between Judge Lomeli, his bailiff and the Sargent about whether or not the bailiff deserves a pay raise.
Brown asks the court if he can try on his pants. Judge Lomeli states that Brown will have an opportunity to do that. The bailiff tells patty the pants must go through the metal detector again.
We go on the record in People v. Brown.
Judge Lomeli states a number of motions were filed. He mentions that even though a date was made for motions to be filed by, the defense filed motions late, on this past Monday, March 9. Even so, Judge Lomeli read all motions and is ready to rule on them.
The first motion that is ruled on is the people’s motion for the jury to see the crime scene. Judge Lomeli first asks Laub if he has anything to add that’s not already recorded in his motion. Laub states he will rest since Mr. Hum did not file a response to the defense opposition motion. DDA Hum adds just a few words. Hum makes a comparison of Inspiration Point to the Grand Canyon and Yosemite. “You can see photos all day long, [but until you’ve been there] you don’t understand the magnificence.” Mr. Laub then decides to make a response to that. “Mr. Hum makes my argument for me. ... You see it for the emotional response. In this case, what the jury needs to know to be able to discuss the facts that are relevant, and to where things happen, and look, it’s already been documented. ... The only thing that’s left that’s missing is the emotional response, and that’s not supposed to be part of the trial.”
Judge Lomeli then reads his ruling. It includes arguments from the motions prepared by both sides. The court is inclined to allow the viewing of the scene. Judge Lomeli states that photographs and diagrams are insufficient to accurately document the scene. The court adds that it’s necessary to educate the jury. Brown turns around to look at his wife. He gives her a bit of a nod.
The next motions that will be ruled on are Mr. Laub’s motions that were filed on Monday.
The court then states, “Mr. Laub I will ask again. Is there anything not incorporated in your original motion, not already considered?”
Mr. Laub filed his motions late. Laub only addresses the prosecution’s response to issue seven on page 8, Paragraph two talks about information the prosecution plans to introduce, the argument, and that it’s not introduced for the truth of the matter, but state of mind. Mr. Laub argues that there’s plenty of other evidence to support the state of mind of Ms. Key-Marer. At best, it’s accumulative. Further, this kind of information is prejudicial enough that, I think that under 352, that whether or not the ruling is one limited, the use of the evidence, having heard it, it is going to be very difficult for the jury not to become biased against Mr. Brown.
DDA Hum responds. “I want to make an overall observation in regards to this motion. This motion was filed three days ago on Monday afternoon. Back in November, when we set a trial date in this case, counsel indicated [when they would be?] filing motions. Defense counsel stated he would get motions filed in a timely manner. ... Nothing was filed for months. We set a motion date. ... February 27 was set to hear motions. The people filed their motions in January.”
DDA Hum goes onto explain that the people's motions were updated from when they were filed in prior trials, but that there were no new issues. Counsel met on the 27th of February. In chambers, resetting the motion date. Counsel indicated he would file motions no later than nine days ago. Nothing was filed after that hearing. DDA Hum stated that he sent several emails to counsel, to let him at least know what the issues were so that he could research them. “I got nothing,” DDA Hum adds. “And when I did get the motions [the defense filed], they were responses to my motions. I didn’t get these in limine motions until last Monday afternoon.” This late filing gave DDA Hum less than three days to respond.
DDA Hum points out to the court that this late filing puts the people at a disadvantage to have motions filed and relayed in this manner. Case law can be over looked because of the truncated response time. The second issue is, it really puts the people at a disadvantage because the case is less than a week away from trial. But when the people get a motion with less than 2 days to respond ... “The court states we could do what we could to reduce the level of conflict, but the opposite seems to have happened to this point," DDA Hum adds. After DDA Hum said this, I see Mr. Laub slowly shake his head.
DDA Hum adds that he finally got a witness list from the defense today. DDA Hum states that he did have an opportunity to respond to the motion and that he addressed it as best he could given the limited amount of time.
Hum states the only issue he will address is his response to issue number seven. There are statements made by the defendant’s mother and father, prior incidents of violence.
(From what I’m gathering, both the defendant’s father and mother, told Sarah Key-Marer, the victim’s mother about prior violent incident[s?] by Brown.)
DDA Hum argues, the reason that these are at least probative is because they came from his parents, people who know him intimately; people who would have the position to look favorably on him (the defendant). DDA Hum states that in the prior proceeding, Ms. Key-Marer was only allowed to mention that he was informed of a prior instance by the mother and father. That’s all. She wasn’t allowed to get into the substance of the statements about the prior incident. Hum would hope that the court would at least allow the people to relay the same information in this trial.
Judge Lomeli states that he hopes there is not going to be any more delay in this matter. He understands that there shouldn’t be any future delay in this case. Mr. Laub apologizes to the court to the tardiness in the motions he filed. He didn’t think there would be any surprises today. He then states he wishes to comment. He talks about DDA Hum going on the record at length that the people are being placed at a disadvantage, and referring to things said in chambers. Mr. Laub states that the late filing of the motions was not done to be a tactic to delay things. Mr. Hum is well aware that he has tried this case twice before. He has unlimited resources. I’m a sole practitioner with no staff. Mr. Laub states he raised this issue in chambers of the imbalance in resources. Mr. Laub states Mr. Hum's response in chambers was, “While Mr. Brown has a right to a fair trial, it doesn’t have to be a fair fight. ... Now this volley is trying to open the door to play to the court and people in the audience.”
I believe it’s Mr. Laub who adds that he doesn’t want to see this trial proceed with that type of aggressiveness. He would be happy in the future to drop any combative manner that is [displayed?] between the defense and prosecution. Mr. Laub doesn’t want to have to stand up and address those type of comments again.
Judge Lomeli addresses counsel. “I don’t think that is going to happen again. I did not interpret the statement or glean that it received a late motion in limine before the cut off date. ... I don’t see it as a tactical move and I didn’t see it as such. You are both professional and I expect things to move along. ... I’m the judge that is usually hands off. ... However, if I see a witness that is questioned over and over I’m going to intervene. ... I don’t think there will be problems in this case. ... I only get that from attorney’s that are newer. ... I don’t think you [Mr. Laub] should take it personally.”
Number 1, on the defense’s motion is regarding a Paul Dusay (sp?). The defense objects to his testimony on relevancy grounds.
The prosecution does not plan on calling this witness.
Number 2, the medical condition of Ms. Key-Marer. The defense objects to any testimony regarding her being a cancer survivor.
The prosecution agrees with the defense the testimony is irrelevant. The court rules that if the issue becomes relevant in some way as evidence is developed in trial it will be revisited.
Number 3, testimony (by Ms. Key-Marer?) about the defendant’s relationship with his mother. He allegedly hated her. According to the prosecution, this issue is a relevant fact that fueled the anger and conflict, and hatred of the victim’s mother. It’s one of the motives of the crime. Prosecution alleges Brown was angry at Ms. Key-Marer having established a relationship with his [Brown's] mother. Allegedly told Ms. Key-Marer that he didn’t want that and that she [Brown’s mother] was evil. The court is inclined to allow this evidence. His anger toward the vicitm, not her, for developing a relationship with his own mother. This would not constitute character evidence.
Number 4, Defense contends the jury should know this current trial is the third trial. The defense points to [individuals?] who did not testify in two prior trials.
At this point, I believe there is some oral argument on point number 3. The court rules that Ms. Key-Mar may present more statements that have not been heard before. The court is not persuaded by arguments put forth by the defense.
The court rules that, testimony will be referred to as been given in a prior proceeding, and not a prior trial. The jury will not be told there have been two prior trials.
DDA Hum states he will admonish the people’s witnesses that to refer to a prior proceeding and not a trial.
Number 5, Mr. Laub adds more oral argument in response to DDA Hums opposition on this issue. Mr. Laub argues that, although this was admitted at a prior trial not as hearsay, but was limited to its affect on Ms. Key-Mar’s state of mind. In closing argument the DA did refer to it as if it had been offered for the truth of the matter, by stringing it with other acts and common plan in arguing to the jury. The fact that someone, as wise and experienced as Mr. Hum would inadvertently make that mistake in his closing argument, how difficult is it to differentiate between the limited admissibility of state of mind, and the actual truth of what it is the people are hearing.
The court quickly leaves the bench. Judge Lomeli received a phone call on the bench earlier and this time he steps off the bench to answer another phone call.
Back on the record.
Mr. Laub continues. There is the part of the sentence where the defendant tried to have Ms. Key-Marer fired from her job. Although argued in the last trial, there’s no evidence in what Ms. Key-Marer was told or what was presented that M. Brown...
The court receives another call.
Mr. Laube continues. Assuming for the sake of argument that Mr. Brown made this phone call, [there’s no evidence] that he said anything about health insurance or anything.
DDA Hum responds. Only with regards to... Ms. Key-Marer did testify that she received this information that the defendant tried to have her [fired] which would have caused her to leave the country. There’s more about health insurance.
It’s Ms. Key-Marer’s state of mind as to what would have occurred if she had been fired from her job. The fact that it’s offered for Ms. Key-Marer’s state of mind.
Number 6, Mr. Laub addresses statements in the peoples response to this issue. DDA Hum states he understands that this ruling could go either way.
The court responds on issue number 5, regarding getting termination of her (Ms. Key-Marer) employment If it is indeed that the [defendant did this?] then the issue of her state of mind becomes relevant. Her fear of the defendant [seeking?] to have her terminated from her job. (My notes are not clear on this but I believe the court ruled this testimony can come in as long as a foundation is laid.)
It’s not clear from my notes, which issue the court ruled on next, but it has to do with a a defense issue of potential breach of attorney client relationship. I believe the court stated that the people do not intend to introduce it.
The court rules on number 7, which I believe is a prior violent event by the defendant, that was told to Ms. Key-Marer by the defendant’s parents. The defense contends that a vehicle was damaged out of jealousy. The [prosecution?] does not intend to introduce evidence of the defendant’s drug use. The prosecution does intend to introduce incident with the defendant’s brother and victim’s state of mind of allowed visitation. Provided the prosecution can establish [foundation?] the court is inclined to permit inquiry as to victim’s state of mind. Harassing his (defendant’s) mother by playing the TV at full volume is not admissible.
1101b evidence. With regard to the defendant’s behavior towards his mother, that this evidence could be revisited, if defendant’s mother testifies (about the loving relationship). Mr. Hum mentions that in the previous trial the defendant’s mother testified she had a good loving relationship with Brown. So if that happens then this evidence becomes relevant and could come in.
Brown leans in to speak to Mr. Laub. Mr. Laub asks for a moment. Judge Lomeli leaves the bench. When he comes back, he informs the court that his cat got run over and this accident opened the cat's spine. He apologies to the parties for these interruptions.
Mr. Laub expresses condolences since he has three cats and dogs.
I believe Mr. Laub adds more argument regarding testimony of one of the 1101b witnesses. This is regarding the belongings of the former girlfriend that were thrown off a cliff. Laub argues that it was speculation on her part that it was Mr. Brown who got rid of her belongings. Laub argues the use of the word “cliff” in describing where it took place, where the belongings were thrown. Laub states the cabin where the girlfriend lived was on the edge of an embankment. That’s what’s being referred to here. If, for argument, if in fact he dumped them over the edge of the embankment, that’s completely different than what’s being alleged in the death of Lauren.
Another issue that Mr. Laub addresses is the word, “baggage handler” and that it came up during the trial repeatedly. The prosecution referred to Mr. Brown as a baggage handler, that he would throw luggage. What we have here is the attempted us of this alleged incident involving Ms. Doe and her belongings off a cliff, and we have later, Mr. Brown throwing his daughter in this horrendous murder off of Inspiration Point. And the repetitive, the repetition of this image of Mr. Brown throwing things maliciously.
The court responds, “That’s kind of a stretch, counselor.” The court asks if Mr. Laub’s objection is to the word “throwing.” Mr. Laub states his objection is that there is no similarities as to what allegedly happened at the alleged murder of Lauren and the attempt [by the prosecution] to line the two with the supposed existence, is not only a miss-characterization as to the facts that existed, it’s an enormous stretch to say these are similar incidents.
I believe it’s DDA Hum that states, “They don’t need to be similar in order to establish common plan ... [except?] to 1101a.”
I believe the court responds, “I think the similarity the people are arguing is the retaliatory behavior.” DDA Hum states he doesn’t need to reiterate. This is a motion on the admissibility.
The court reads from his ruling, mentioning the people’s points in their motion and the defense response.
The court is not convinced that the acts Stacy Gutherie would testify to would qualify under 1101b. Ms. Stacy incident will not be admissible. However if the door should be opened in some manner ... then all prior acts may be fair game.
Regarding Ms. Doe, the court approves everything but the breaking into her home and writing in her journal.
If either side believes there’s something that comes up in the evidence that warrants a change in the ruling that will be first presented to court and counsel first.
The parties then discuss the jury questionnaire. The people paired the questions down from the original 91 questions to 20 questions. The people also provided copies of CALJIC, which were used in the prior proceedings.
The people have provided Mr. Laub with arguable prior acts of misconduct by certain witnesses on the people’s witness list. I believe DDA Hum adds that he doesn’t know if Mr. Laub intends to use any of these, or have a ruling on these issues.
Mr. Laub states that he was presented by Mr. Hum a packet of discovery today and another packet three weeks ago. Mr. Laub hasn’t had a chance to review the additional discovery today.
Mr. Laub asks for a modification of the factual summary that will be read to the jury.
Line 2, Mr. Laub wants after the word “cliff”, “overlooking the ocean."
Change the word “plunge” to “fell”
Line 5, Change the word “defendant” to Mr. Brown
Delete the phrase “taking her on a dangerous hike”
Change words, “were no known” to “there are no known”
Final sentence, according to defense I would [say] he loved her and put a period.
The people argue against changing the word plunge to fell. That’s the defense position that she fell. That’s not the prosecution’s. The court rules the word plunge puts no fault on either side. Mr. Laub argues that the word plunged has motion invested in it. The court rules to leave it at plunged. The phrase, “overlooking the ocean” is added.
The court asks about “taking her on a dangerous hike. DDA Hum asks that it be kept in. Mr. Laub argues the essence of the case. Brief actual summary and argument. DDA Hum states it’s no more argument that she was thrown or that she slipped and fell. The court doesn’t have a problem with it so I believe it stays.
Change one word to “are” Change “defendant” to “Mr. Brown.”
There is one other alteration to the summary but I miss the details.
Counsel then discuss the prosecution’s questionnaire. There are a few questions that are gone over. One question is removed and I believe a couple changes but nothing significant.
The court then informs the parties about what will happen on March 18, the first day of jury selection. The court will receive a large panel about 10:15 am or so. They will swear in these jurors. They will not sit anyone in the box. A statement will be read to them. Will tell them about how long the trial will last, that it will require a hike and so forth. That they will try to move the case along and that they think it will take 8 weeks and there will be a week off, the week of April 6th.
Mr. Laub interrupts the court to ask for April 30, and May 1 off to go with his family to a wedding out of state. The court responds, “I think we can accommodate you.”
The court continues. After the jurors have been told about the case, they will proceed with asking them to fill out the questionnaire and to leave it in the box for counsel. They will then be advised to come back on Monday. The court will hear financial hardship excuses on this day.
The same exact thing will happen on Thursday. This gives counsel an opportunity to get familiar with responses and the questionnaire. For voir dire, each side will get 25 minutes a piece. [This is after the initial 24 is seated in the jury box and the row in front of the box.]
Mr. Laub asks how much time they get after the initial 24 pack has been seated. The court states that after the new 12, they get 10 minutes each. DDA Hum asks if the court will be asking standard voir dire questions about law enforcement contact, etc. I believe the court states he will go through the witness list on Monday with the jurors. DDA Hum tells the court that he had intended to attach the witness list to the questionnaire, because he has a question in there, “Do you know any people...” DDA Hum asks, if they can take excuses for hardship first, that way those individuals do not have to fill out the questionnaire. The court agrees.
Jury instructions are brought up and the court indicates that they have plenty of time to get to that. The court indicates that he does not do any jury instructions before trial. Never has.
And that’s it. Trial starts Wednesday, March 18.