Lonnie Franklin, Jr., verdict 5/5/16
(Barbara Davidson/Los Angeles Times via AP, Pool)
NOTE: Day Two, Part I of Closing Arguments can be found HERE.
NOTE: Day One, Part III of Closing Arguments can be found HERE.
Prior post on this case can be found HERE.
T&T case coverage and media links HERE.
Wednesday, May 11, 2016
I arrive on the 9th floor about 9:05 and quickly enter Dept. 109. Terri Keith from City News is here.
There are motions that have been filed that need to be ruled on before the jury comes back tomorrow. These are probably motions on what evidence the defense and or the prosecution can present in the penalty phase of the case. Besides the family members testifying about the murder of their loved ones, the prosecution has five, 1101b victims they want to present that are linked to Franklin by either DNA, ballistics or other evidence. They also have one, possibly two witnesses flying in from Germany. Back in the 1970's Franklin was stationed in Germany while serving in the Army. He was charged with rape, and possibly other crimes. He was convicted and served time in prison, in Germany.
The defense and prosecution team for Albert Harutyunyan case are in the well, chatting away. Defense counsel Gregory Apt, Pete Waimrin, and for the people, Jonathan Chung.
For Franklin, defense counsel Amster is here. Not long after I get situated, the prosecution team arrives.
I hear Judge Kennedy's clerk call down to another court on behalf of one of Harutyunyan's defense counsel. He has a matter in another courtroom, a closing argument he needs to deliver. Dept. 109 has been waiting for an Armenian interpreter for 45 minutes and he hasn't shown up yet, and that's why the defense counsel is held up. So it's the debate on whether Franklin will go first and be interrupted, or they wait for the interpreter in the other case.
Jane Robison from the DA's media division arrives. She chats with the DA's team and then leaves. Nothing has been decided on who is going first.
The Armenian interpreter arrives. The clerk swears her in. The Franklin defense and prosecution leave their respective tables.
Harutyunyan is brought out. The interpreter quickly gets the defendant up to speed.
People v. Harutyunyan. State appearances. Interpreter sworn in again on the record. Jonathan Chung for the people.
Yesterday the APD filed a brief. The clerk who took it told me that whomever filed it said, don't worry about it because we're going to put it over.
Judge Kennedy is not sure how long the Franklin matter is going to be. Judge Kennedy asks them to figure out a day to come back. Counsel confer and May 27 is chosen. The interpreter tells the defendant.
This defendant's hearing is over, counsel exit and counsel in the Franklin case take to their tables.
On the record with Franklin.
Child Pornography issue
The defense filed a protective order for images of child pornography. Judge Kennedy wants to start with this issue first. Amster tells the court the images have only been disseminated to the defense team. Not beyond that. They need parameters. They need to destroy all of that on hard drives they created. Amster assumes they have an original CD. Mr. [Arenson?] was in charge. Amster tells the court he never monitored them [the pornography?] thereafter. Amster's concern at the moment is what does he do in regards to appellate issues, since they are going to ask for the entire file. If the defense is under order not to destroy. So, Amster doesn't know the parameters.
DDA Sliverman tells the court that the law dictates it has to be returned to the court and the file sealed. The court asks if there's some easy way to delineate what is in the material so it [child pornography] can be removed/erased.
From the beginning, it's not clear to me who discovered this evidence. It doesn't sound like the people discovered this, if Amster states he has an original CD.
Under more questioning back and forth between defense and prosecution it appears to be a single video tape that contains multiple women. At some point DDA Silverman states the underage individual was interviewed and she told the interviewer her age. That's how they know the material concerning her was illegal to possess.
Amster tells the court that he is not an expert on how to deal with discs and video tapes. He also does not have the capability or resources to delete out the illegal material. He wants a protective order.
DDA Silverman proposes the defense turn the material over to them and they will redact the illegal portion. The prosecution will delete the portion of that one child that they are aware of. Under the law, DDA Silverman states the people can't have the material either.
Amster still argues that the appellate filing may still want it and could make an issue on it. The court responds that the prosecution will still have it. Just you won't have it and disseminate it. DDA Silverman adds that they will give the court an unredacted copy that's under seal. "There's a record of it. You'll know what it is, we'll know what it is," DDA Silverman states.
Judge Kennedy tells the defense that evidently, the prosecution is not going to present this evidence in the penalty phase of the case. There's no reason, really, for any appellate review. However, if they need to see it, a copy will be with the court.
Amster still wants a court order that the defense doesn't disseminate it. That's not good enough for the prosecution. Amster wants a better order. DDA Silverman states that they are not going to spend time on this. "The law says they can't possess it."
The court wants to know the time on the tape and then adds, "I think the things is, we're not going to prevent appellate counsel from seeing it if they need to. ... I find it difficult to see how they need it because it's not being received as evidence in this case, and won't be received as evidence. It's just going to be separated and maintained."
Amster still wants to consult with some legal board. Judge Kennedy tells Amster that's fine, but her rulings stand. The court states that the appellate court will identify it by the time they need it and take up the issue then.
Factor A - Victim Impact Statements [California Death Penalty Factors]
Amster tells the court that he's not in disagreement with the people. The defense doesn't know what the witnesses are going to say on the stand. He would like the court to keep this in abeyance until they know who the victim impact witnesses are. The defense has had a lot of discussion and it's a tricky situation with the defense. "Going into all these areas the people raised in their motion, and it's not going to work well for the jury. ... So, if the court will make a ruling, an we'll do our best to abide by the ruling. And if we get close, we'll go to sidebar."
The court asks, "For example, on the victim's lifestyles. You don't intend to go into that?" Amster replies. "It would be counter productive. It's a strategical decision." The court asks, So you don't have any objection to what they propose at this point, and if your position changes you would let us know?" Amster answers, "Exactly."
Amster asks that any testimony from the victim impact statements, the witnesses address the court or the jury, and not the defendant. The court agrees. The court tells the parties, "One of the things that is not permissible is to ask a witness as to what their view is [on whether the defendant should be put to death]." The defense states they will not open that door. The people tell the court that they've spoken to their witnesses and they have been warned about that.
Judge Kennedy rules. "At this point, then, tentatively, this motion, the people's motion is granted. And if there is any issue we will take up at side bar before any question is asked."
At some point in the proceedings, the Associated Press reporter enters and takes a seat in the back row.
Before they move onto another issue, the court asks the defense what is happening. She asks if Mr. Atherton will be presenting the penalty phase of their case, or if it will be like it was done in the guilt phase of the case where, Atherton made objections for Mr. Amster. Amster tells the court that, there will be times when Mr. Amster cannot be here, and Mr. Atherton can handle the representation. Amster has something that he cannot miss tomorrow, and he asks for when the morning break will be called. He doesn't want to walk in and interrupt the people's opening statement. The defense is not going to put on an opening statement.
DDA Silverman states her opening statement will be over an hour and under two hours. Judge Kennedy predicts that if they are able to start on time at 9:00 am, DDA Silverman will be done by 10:30 or 10:45 am at the latest. Amster states that they would be appreciative if they could get the witness order. DDA Silverman tells the court that they have not received from the defense on who they will be calling. "We'd like that today," she adds.
The court asks, "How long is your defense case going to be?" Amster replies, "Not more than a week." Judge Kennedy asks again, "Less than a week?" Amster concedes, "Most likely. A lot has to do with what is put on by the people."
Factor A - Impact Statements
The court asks the people, "How many victim type witnesses do you anticipate?" DDA Silverman replies, "Some have nobody, some have one, some have four." Judge Kennedy asks, "Do you know just how many in total we're talking about?" DDA Silverman replies, "Approximately 30. ... That includes the victim impact of other crimes."
The 30 victim impact witnesses are for the whole penalty phase.
DDA Silverman tells the court, "I think there are a total of 15 dead, two or three surviving. Surviving victims, it would just be them." The court asks, "You're referring to the German incident?" The people respond, "Germany and Enietra Washington."
The court asks if they have video tapes. "We have a video tape that was provided by one of the families and it will be severely redacted. It will be under four minutes. It's solely pictures of the victims," the people reply. Amster requests to review it before it's shown to the jury. Judge Kennedy agrees and so rules.
Amster argues that the defense disagrees that the people are calling four people giving impact statements for any particular victim. DDA Silverman responds, that she has some court cases where there were rulings that thirteen impact statements [for a single victim] is appropriate.
Amster goes to the emotional aspect and "when does it get to be too much?" He adds that 30 is a lot. The court responds, "Thirty is a lot if there were one murder." Amster still insists that it is a lot.
Amster continues to argue that even more than one per victim, it's a question of cumulative. It's a question of what more can be added by each family member that wasn't already added. What does one family member add that the other family member hasn't.
DDA Silverman counters that the law doesn't ever mention the word cumulative. It's the scope of the impact. Not what one person adds than another. It's what the law speaks to under Factor A. Just because it's emotion is not relevant. Unless counsel can point to some reason, to point to only two, rather than emotion, what is the point.
Judge Kennedy adds her reflection on when the family members were on the stand, identifying their loved ones. "There was a distinct absence of emotion." [When the family members identified the bodies.] "I do think it related to the passage of time and because of passage of time, the emotions are not at the surface. People come to..."
The court is interrupted to sign some documents. Counsel wait for the court to finish. After working with the document for a bit, I believe I hear Judge Kennedy tell counsel, "This is team court business."
Amster then has his nervous laughter laugh, and thanks the court for bringing that up.
The court continues, "It's not that family member's haven't been impacted, it's the passage of time. The raw emotions are not as evident because they have come to accept and come to deal with the fact over 10 years, 20 years. I don't think that four is excessive numbers." The court then ask the people, "The amount of testimony is not going to be lengthy, is that correct?" "Correct,' DDA Silverman replies.
The court doesn't believe they are going to be dealing with emotions that are over the top. Amster still objects for the record, and how the people are going to use the sheer number of 30 witnesses and use that in their closing statement.
Judge Kennedy over rules the objection. The people will be putting on 30 victim impact witnesses.
Factor B - Other Criminal Activity
Amster is objecting to two cases the people are asking to present. These victims, their bodies were never found. He feels the prosecution needs to first prove before these victims come in, that the individuals haven't been seen for over a period of time, that they are dead. Amster states the ID's found in the defendant's residence are "hearsay" and they don't go to the truth of the matter. He adds that they must have foundation first before they can say that these are connected victims.
These are two victims where the bodies have never been found. Their last names are Marshall and Morris.
DDA Silverman responds, "I have no idea what defense has just said. ... [Regarding the ID's.] One was a driver's license an the other was a high school ID card. ... I don't know what the defense says it's hearsay. It's their property."
The court asks if the ID's contain photos. The people respond, "Absolutely." She adds that there is a photo of one of the victims, Ms. Morris, found at the defendant's residence. "Morris is posed and photographed in the same way as Janecia Peters." Her breast was exposed in the same way. DDA Silverman mentions the trophy cabinet and the photos that were in there.
The court asks, "Morris's pictures were found in his refrigerator, sexually explicit [photos]?"
Amster argues that they could be false identification. Amster argues they are government issued ID's and they need foundation. The court responds, "I'm sure there is someone from the families that can say this person was going to that school."
The court continues, "Let me ask another question in regards to these young women, I assume, that family members, up to a certain point, they were in contact or they lived with them?" DDA Silverman confirms, "It's exactly that. And each of them had children. They lived with them and were caring for their children." The court asks further, "So the ID's were found in Franklin's garage during that search?" DDA Silverman confirms that it would be the same type of evidence they would present in a typical no body murder case. Detectives attempted to collect and locate evidence.
Amster continues with his argument not to present these cases. "There no evidence of violent crime. No evidence who did it." He adds about the time frame of these victims. He states that any number of things could have happened to these individuals. "It's speculation as to what happened to these women."
The court gives her opinion on this evidence the people wish to present. "It seems you would have limited latitude as to what you want to argue on this point. It's a different circumstance, the difference for penalty and guilt phase. All the jury is required to rely on is proof beyond a reasonable doubt."
The court goes over with the parties the fact that the evidence is arguably weaker as to these two victims. "I think it relates to a potential appellate issue." Addressing the people, "I think there is a bit of a risk to you, going in that direction because we don't have jurors coming back, with findings, special findings that they relied upon, but excluded in their own mind. ... I think it creates an issue. ... Maybe [if I were?] in your position I'd take the conservative route and not create that issue. But if you create that issue, I'm not going to preclude you from doing so. I'm not going to limit the defense in their argument. ... I think you might want to think about it."
DDA Silverman responds to the courts concern. "We have thought about it. ... And we've presented no body murders before." She adds that the prosecution is balancing that with the family members who want their day in court. DDA Silverman closes with, "I understand the courts concern and we will revisit it."
The defense still stands by their objections. The next issue that Amster brings up is the "trophy" remark. "We're not bringing in psychological evidence. We have an issue with the people bringing up the trophy position during the trial in testimony as well as closing argument." Amster wants to know if the people are going to bring this up again in this part of the case. The people tell the defense they are not going to present such "trophy evidence" testimony from an expert.
Factor C, The German Incident
Judge Kennedy now moves onto the "German incident." The court tells the defense that, their argument that they should not be allowed to testify because "...they are not American citizens, is an offensive argument.
[From what I've heard in conversations last week, it appears that in the 1970's Franklin was in the Army serving in Germany. While there, he was charged, along with other servicemen with rape of two German women. He was convicted by a German court and spent time in prison or jail there.]
Amster replies that they are "Just laying out the appellate evidence." The court replies, "It doesn't make any logical sense." Amster tries to defend his argument. "We looked at this as, an analysis of there was never an American court that made a factual determination on this. What we had, ah, clearly a conviction by a German court. And based on that, a court marshal was done ... not determining factual or not. ... Then we did a comprehensive research on Factor D, and could not find anything that stated you could bring in a crime, the facts, in a foreign jurisdiction on a foreign individual that California doesn't have jurisdiction over. ... No state or court in the US has jurisdiction over this. They didn't make a factor of determination. ... I understand the court's argument."
Judge Kennedy responds. "It would seem to me that [ it is] the jury that will make factual determination. The conduct must have constituted some kind of crime. If it is rape or attempted kidnapping, the court has to instruct on these offenses, and the conduct has to meet what the elements are."
Amster tells the court, "If the testimony is what happened in Germany, we not not saying that the element factor hasn't been reached." The court over rules the defense objection. But Amster isn't done arguing.
"What we have is this. There were multiple individuals who were involved in this in Germany. It's been a long period of time, when they suffered the crime until now. We are concerned about identification. We had in the past, a single show of ID that we don't feel is proper and so, one, are the people going to give us access to these victims when they arrive? ... We ask for all statements that have been obtained. ... Not [just] the transcripts, everything else. Our concern is the identification. ... We have three individuals involved and the extent of culpability and the actions of the defendant will be of extreme importance to the jury."
Amster asks if these witnesses have been interviewed and if they will be interviewed. The people respond that access to the victims will be what the witnesses want. The court asks if they are English speaking. DDA Silverman answers, "No. ... When they come into the US they will probably be interviewed by a forensic examiner. And what evidence is generated by that will be turned over."
Amster asks how much time will they have. "There's been a lot of time that has gone by in this case." The defense claims that the prosecution had the ability to go over to Germany to interview these witnesses. Then adds something about not getting this information until the middle of trial.
DDA Sliverman replies that the people have not been given the funds to go over to Germany to do that. "I don't know what the defense is talking about." Judge Kennedy states "Once they are here you will, obviously, will have the right to request and interview. Whether they want to be interviewed by you or your investigator or not is their choice. They don't have to speak to anybody."
Next is discussion about a witness, a Frank [Pyle?]. This individual was the [Army?] officer that watched the entire trial, including all three defendants [in the German case]. He will be testifying as to someone from the military with respect to the records. There's also more discussion as to whether or not the people will hand a single photo of the defendant to these German witnesses to identify. DDA Silverman states they are not planning to do that, at this time.
The discussion and arguments keep going as to this Mr. Pyle and whether or not the two German witnesses will be able to identify the defendant. The event happened in 1974. But the court reasons, this doesn't preclude the prosecution from determining that Mr. Franklin is that same person from other means. The court states, "She's [people] saying that there was a JAG officer who attended the proceeding in German court, in lighted conditions for days or weeks. ... There may be some kind of fingerprint way to identify the defendant. I don't know. "
Amster wants an offer of proof that the JAG officer was there. The people state he was also present when identifications were made.
It appears that issue is settled.
The next uncharged victim is Inez Warren. Amster argues that all of the evidence associated with this victim was destroyed by law enforcement on February 11, 2000. The people counter that the ballistics evidence was not destroyed. Only the sexual assault evidence. The defense states this puts them in a quandary. Amster mentions that there were statements where there were three people in a car and this victim was thrown out of a car. They tried to find these witnesses. They can't find them. The defense is at an extreme disadvantage on Inez Warren. They don't have a sexual assault kit. They are asking the court to completely exclude. This is penalty; this is not guilt phase. They are at an extreme disadvantage.
DDA Silverman states the people are also at a disadvantage because the defendant dumped these bodies in locations where they were not murdered. She continues, "This victim followed the same patterns." She was shot left to right front to back and the trajectory was downward. She had cocaine in her body. Her body was dumped in the same period, where all the victims were shot in the same location.
The court asks how the evidence was destroyed and the people respond that they don't know the answer to that. DDA Silverman continues, "This is all the evidence that is the same. The defendant made anonymous phone calls that he saw people dumping [bodies]."
Amster insists this case was not a body dump, claiming that this victim was thrown out of the car alive. The people claim there is no testimony to that. Amster counters there is no evidence, no eye witness. The court replies, "There's no eye witness that anyone is going to testify about anyone." Amster's next contention is that when she was left, she was still alive. DDA Silverman interrupts Amster a second time to tell the court, "She wasn't able to speak, by the time she got to the hospital."
Amster now complains about DDA Silverman continuing to interrupt him. DDA Silverman responds, "The allegations that counsel is making are false. ... The fact that he chose to move them to a different location makes this a body dump. ... It's circumstantial."
The court offers her counsel to the people. "I would make the same comment with regard to Marshall and Morris, and that is I think it creates an additional appellate issue that, do you really need? You have ten convictions and it just might make more sense to be conservative and take away that issue. ... I'm not going to preclude you from presenting this."
DDA Silverman tells the court, "I understand this. We've debated these issues over the years and we have family members that have wanted to [testify]." The court advises, "The big coin, is how it's going to affect your case." DDA Silverman tells the court, "I know."
Amster then goes back to the number of victims, and victim impact statements and that the Morris and Marshall victims increases the number of victim impact statements in front of the jury. He goes on for quite a bit about this.
DDA Silverman, almost painfully asks the court, "Do I need to respond to that?" The court answers, "We're making a record." DDA Silverman states, "There is no case law to respond to that." Judge Kennedy rules, "I don't think there is any legal grounds to exclude this testimony."
There are a few more points back and forth about the parameters and if the people will be using a PowerPoint presentation. It will be shown to the defense. The defense asks who will be testifying tomorrow after the people's opening. The Porter family, then Princess's family, then Henrietta Wright's family. There are two more, but I miss getting their names. DDA Silverman mentioned the name of a detective, who will be giving an impact statement.
Amster questions why this detective will be put on the stand. He could not be allowed to testify in the guilt phase. The people reply that previously, they said at sidebar that they would be putting on this witness. Amster states that there needs to be a connection to the vulnerability of the victim.
DDA Silverman states that is not case law. That they have a wealth of case law on this issue. She adds that the victim the detective would testify to, "She had a mental capacity that was much lower than her age of 15." The court rules, "He will not be able to testify to that. He can't say what her mental age was." DDA Silverman continues to lay out what the detective will testify to. "He's one of tomorrow's witnesses. He would testify as to how she was when she interacted with him. She was like a small child." Amster wants a 402 hearing on that. The court wants a list of cases that the people are relying on, that this is acceptable. The court is asking that this list be emailed to her clerk.
Amster then brings up the issue that they were given discovery this morning. It has something to do with latent prints. DDA Silverman counters that these are portions of the lab files, something that counsel already has, that the defendant's prints were found on the magazines that were used to murder Georgia Thomas." Amster complains that he can't tell by this report, who the fingerprint expert is. DDA Silverman tells the court they were included in the original discovery. She then names them for the court. The defense wants to know which one they will call.
DDA Silverman answers, "As counsel knows, there are people who process, there are people who match and there are people who verify." The people reply that counsel already has everything turned over to him throughout the file. The prints were matched from the prints they had on file from a prior conviction.
There is discussion about the fact that Franklin will be printed again in custody. Amster wants his expert to be there when it's done. The court asks if it can be done today. DDA Silverman states that it requires a subpoena and it has to be done on the same day as the subpoena. It won't be today. The court states Amster is allowed to have their expert and the subpoena will probably happen in lock-up here.
There's nothing else, and we are done for today. The court tells counsel to be here at 8:45 am tomorrow. It's a little after 11:00 am. I'll have the rest of the day to finish some projects at home, and get these notes up.
Outside in the hallway, DDA Silverman answered some questions from the accredited press. From those questions, more information on the victims was obtained.
There are a total of five uncharged victims. Two victims have never been found, their ID's were found in Franklin's residence, inside a refrigerator in the garage area. One victim was photographed by Franklin in a similar manner as Janecia Peters. This refrigerator was called a "trophy case" by the people during the guilt phase. DDA Silverman stated that one gunshot victim was a "through and through," meaning there is no bullet. I don't know if this is the same victim where the sexual assault kit evidence was destroyed.
One victim was shot in 1984. This is before the first victim in the guilt phase [Debra Jackson, August 10, 1985], was identified and linked to the other victims. This victim was shot with the same weapon, the Titan 25 that killed Janecia Peters. So the same weapon that killed the first known victim in 1984, also killed the last known victim in 2007.
Another victim was shot with a different Titan 25 that was found in a search of the defendant's residence. I believe this is victim Georgia Thomas.
With these additional victims, the people believe Franklin is connected to a total of 16 victims. There was a male, Thomas Steele, shot August 14, 1985. This was two days after the second victim, Henrietta Wright was murdered. However, the ballistics evidence was inconclusive. The bullets were too damaged to compare.
I'm still working on getting the last of the closing arguments from Tuesday afternoon completed. As soon as I have those done, I'll post a link in the daily as well as on the Quick Links Page.
Note: AP reporter Brian Melley's post on Wednesday's proceedings.
The next post on this case can be found HERE.