Thursday, January 7, 2016

Lonnie Franklin, Jr., Pretrial Hearing 13

Lonnie Franklin, Jr., 2/6/15
Photo credit: Nick Ut, Associated Press

The previous post on this case can be found HERE.

January 5, 2016

9:11 AM
I arrive to the hearing late. I did not leave the house in time. Los Angeles is in the middle of a rain storm and I took the train to avoid the often panicked Southern California drivers who have no experience driving on slick streets. I'm originally from Ohio, where I rode my '68 BMW R60/2 on snow covered streets for years before I ever owned a car, so I'm not concerned about my own driving skills.

When I arrive, the hearing is well underway.  I quickly take a seat in the last bench row beside Arlene from the Public Information Office. Usually, I try to sit close, in the second row but since I'm late, I don't want to make a lot of noise while the court is speaking. I catch the eye of Judge Kennedy's bailiff, who is kind enough to give me a smile.

At the defense table from left to right is defendant Franklin, new bar attorney Kristen Gozawa, lead defense attorney Seymour Amster, and new second chair, defense attorney Dale Atherton. I don't know the exact date Altherton was appointed by the 987.9 Judge. It's my understanding this is his first appearance in Judge Kennedy's court.

Over at the prosecution table are DDA Marguerite Rizzo and DDA Beth Silverman. Sitting in chairs behind or beside the people's table are LAPD Detective Daryn Dupree as well as two other deputy DA's, Paul and Jamie, who are assisting with the case.

In the gallery are two journalists, one is People Magazine investigative reporter Christine Pelisek. The other young woman I've seen before, but I don't know her name. Also in the gallery are several young law clerks with the DA's office that have been on the case for some time.

As I open my laptop and try to get my cold fingers moving, it appears Amster is giving some preliminary argument to the people's opposition to his ballistics expert being allowed to testify in the defense case.

The people have filed motions opposing several defense witnesses from testifying. They were successful in blocking the defense DNA expert Dr. Lawrence Sowers from testifying. The court ruled that Dr. Sowers was not an expert in DNA analysis and his theories and analysis that he did would not be presented to the jury. That pretrial hearing took seven days. Besides their opposition the the defense ballistics expert, the people have filed motions objecting to a metallurgy expert as well as a former LAPD officer, who the defense wants to testify about police practices.

As I start taking notes, it's clear Amster has yet to formally respond to the people's opposition to his ballistics expert. It's why the case has not had a hearing to argue those points. I come in in the middle of this argument. Amster tells the court "The tactics that the people are utilizing are going on across the nation."

Judge Kennedy, with a slightly puzzled expression on her face responds, "I don't quite understand you." Amster tells the court, "Ballistic testing is being challenged in federal court and [the testimony] thrown out." Amster adds that the people are taking just bits and pieces of what the scientific community says and not the entirety of the information.

Amster argues that the defense doesn't have to present anything until the time when the defense puts on its case. I believe one of Amster's issues is, he hasn't yet obtained copies of transcripts from other cases, where his ballistics expert testified. The people have paid the fee to the various court reporters to obtain these transcripts, but from my understanding, Amster has not. Supposedly, the defense ballistics expert was barred from testifying in other cases as an expert. At the same time, Amster argues he doesn't know if the people will even use the transcript material to impeach his expert.

Jurors are not set to return for voir dire until January 25. Amster asks the court for a return date of January 11. By that time he will have filed his opposition to the people's motion.

Judge Kennedy asks Amster to clarify. "You are in [the] process of preparing a written opposition that you feel will be completed by Friday ... assuming we will go forward next week ... assuming [the expert] is available to testify?"

Amster tells the court that he is assuming his expert is available. "I haven't asked that question. I have no reason to believe he is not and certainly I will make an inquiry when we leave."

Judge Kennedy states, "Last month, the [prior pretrial hearing] took seven days of court time." Judge Kennedy goes onto explain that she never expected that hearing to take that long. "I don't want to have to be in the middle of a trial and send a jury home in the middle of trial. .... So I do prefer to handle motions that have the potential of being lengthy before we get in trial."

Judge Kennedy then goes to great length to explain how the jurors are a big part of her concern. Stopping a trial for an out of jury hearing completely disrupts a jurors life and possible work schedule, if they are in the middle of a trial and suddenly they are sent back to work for several days or a week.

The court adds, "When they don't come in for two or three days, it moves the end [of the case] further out. They don't get paid for those days and they have to go back to work. ... It creates havoc to their plans and [their] employer's plans, when all of a sudden, they show up and they [the employer] don't know in advance they go back to work. We don't pay jurors if they do not appear. ... It's [also] an issue with regards to jurors that work a graveyard shift where it's hard to go back and forth." The court states that they have had this happen in the past.

Amster replies that he is empathetic. "We have our position and we'll state our position and we'll make our ruling and go forward."

They anticipate arguing this motion next week. Amster reminds the court that they don't have copies of the [other cases] transcripts.

DDA Silverman informs the court that they still have two other motions that were filed two months ago and those need to be heard also.  Amster tells the court that in regard to the two other motions, those two witnesses are "... pure rebuttal.  [Whether those witnesses testify or not] will be based on cross examination in the people's case. ... So any ruling the court makes, it's against the defense. We are going to ask to revisit it based on the testimony presented by the people's witnesses. ... If the people's witnesses don't go in a certain direction, we're not going to go in that direction. ... I believe those other two motions are an exercise in futility..."

Judge Kennedy asks, "Other than those motions and the pending review of the jury questionnaires, there are no additional motions, correct?" Amster responds, "Not that I can think of post [sic] verdict."

DDA Rizzo informs the court that the people have a couple of motions that are going to be filed. One will be filed before penalty phase and one filed after penalty phase. The motion related to guilt will be filed by the end of the week.

Amster tells the court, "Depending on what's in those motions, we may be filing a continuance." The court responds, "We'll, we'll get to that point." Amster brings up another motion, that he may bring up before the penalty phase.

DDA Silverman tells the court that they've already identified multiple jurors that should be excused for cause, or an inability to speak and comprehend and read. The people also have a draft of their exhibits by the end of the week.

DDA Silverman tells the court, "The people are prepared to offer stipulations if the defense is."

Judge Kennedy adds, "There's a deputy DA in the panel. He should be excused. ... There are some people who are [not] illiterate, ... but they [don't have] sufficient knowledge of English language and a few people, through their comments, are so strident one way or the other ... and to remove some of them as well."

Amster states the defense will agree to stipulations, but they haven't gotten to that point yet. The court asks the people if they've sent their [jurors to excuse] list to the defense yet. DDA Silverman responds, "I sent him an email and we've identified multiple people..." I believe the people tell the court that they haven't received any response yet.

DDA Silverman comments that it doesn't look like this issue will move along outside of the court's time. The court reprimands DDA Silverman that her comments "...doesn't help move the case along." DDA Sliverman responds, "I tried."

The court makes a comment about a positive attitude. Smiling, almost joking, Amster interjects, "It's always good to remain positive."

Judge Kennedy then asks the parties for a sidebar. After a few minutes, the court states that the parties will return on January 12 regarding the pretrial motion.

And that was it for today's hearing.

The next post on the case can be found HERE.