James Fayed Penalty Phase Closing Arguments

Update 8:16 pm: Minor spelling and grammar edit on afternoon session. Sprocket.

Early this morning my husband and I watched the first part of opening statements in the Casey Anthony murder trial. At first, we couldn't understand why Linda Drane Burdick was speaking so slow. Just listening to her monologue by itself, it felt like paint drying. It wasn't until much later that my trial watching buds in chat told me that Ms. Drane Burdick was using a power-point presentation along with her statement, we just were not able to see the visual aid on TV. It explained a lot. Drane Burdick went through Casey Anthony's daily activities in excruciating detail for those 31 days that her daughter Caylee was missing, yet her mother, Casey, never contacted authorities or told a soul. I didn't get to hear it all since we had to leave for the North Hollywood (N.H.) Red Line station.

When I got to the station, I had this absolutely lovely conversation with a woman on the train this morning,

It started right on the platform when both of us were waiting in front of the train for the doors to open and we could see another train coming down the track. She immediately spoke up and told me she thinks it’s going to be the second train leaving from the other track. “I’ve been taking the train for 15 years, long enough to know.” A man standing behind us didn’t believe that the subway was in operation this long. I chime in that yes, it has. Maybe not from the N.H. location, but I remember when they were building the extension and the construction workers who died....one man being decapitated while working on the last section of track laid in the valley.

Once the train car doors opened, she took the handicapped seat and I took my favorite seat, a front facing seat right beside the handicapped seat and we continued talking.

I mentioned that I haven’t been taking the train that long and I then I did something that I rarely do, and that’s talk about myself and my adventures blogging about high-profile criminal trials. Her face lit up and she said, “How interesting!” And then she immediately told me that she has been a paralegal for 35 years.

I then began to tell her about the Fayed case and she remembered reading about Pamela’s violent death in that Century City parking garage. This led to a conversation about how when a woman files for divorce, she puts herself at a higher risk of being killed than at any other time. My traveling companion then shared a bit about her own difficult divorce and how domestic violence cases need to be moved out of family court and into criminal court. I so agree with this. I know my friend in San Diego, Bonnie Russell is trying to do just that.

I didn’t even have time to open up my laptop to write on the train; our conversation just flowed. I’m not that good at determining someone’s heritage background, but by her dark skin I’m guessing she was of Latin descent. I couldn’t believe it when she told me she had a 40-year-old son, an attorney and also a consultant on high-profile corporate litigation, because she looked so young!

We talked a bit about the 9th floor judges where I’ve covered cases and how it just depends on the judge whether or not I can use my laptop in the courtroom. I had to ask because I was curious, how fast she typed. I about fell off my chair when she said she typed 125 words a minute. She said, “I don’t even know where the letters are anymore; I just go.” Laughing she added, “And I failed typing in school.” I told her that using my computer had the advantage for me because I didn’t have to write my notes twice, but I feel I did better writing hand notes. I told her that my typing was so slow, barely 50 words a minute, and that my readers have asked that I not put up my notes that are in draft form, because no one can read them. We both laughed about that.

Before she got off at the 7th Street Metro stop, she introduced herself as Susan. I told her my name really is Betsy Ross, like the famous name and how to find my blog. She promised to check it out.

9:25 am: When I get into 109, the courtroom is almost empty. The cameramen have setup their video camera and counsel are still hammering out how to modify CALJIC jury instructions to fit this case. By 9:45 am they are done.

9:57 am: Pamela Fayed’s relatives enter the court. Scott and his wife Renee and Dawn.

Since Judge Kennedy is off the bench, I’m trying to get up the courage to ask the court clerk (she’s not at her desk right now) if I can get an up close look at the figurines on the Judge’s bench.

A DATELINE producer enters and shakes hands with Scott and Dawn. Right after the producer leaves, Dawn’s phone goes off and she looks over at me and smiles in embarrassment.

10:03 am: I get up from my seat with my notepad and go over by the bailiff’s desk to ask if I could get an up close look at Judge Kennedy’s collection of figurines on the left side of her bench. Sean shakes his head, purses his lips together and says in a soft but firm voice, “No.” I have to look as best I can from the edge of the gallery next to the little door entrance to the well. From this position I count about fifteen, maybe seventeen different items, mostly animals in all different shapes and design styles.

I go back to my seat and think about maybe going to the restroom before court gets started in a little over 20 minutes.

10:08 am: Pamela’s half-sister, Greta enters 109. She’s whispering with her relatives but I can’t hear what she’s saying. I’m thinking a bathroom break is in order.

Returning from the restroom, I walk down to 109 with Pat Kelly and Arlene from the Public Information Office. Desire is here with her family and there are several more people in the courtroom. There are a slew of defense attorneys Deborah Barzil is here looking as lovely as ever. A few younger DDA staff are with here. There are people from the court and the Public Defender's office in the back row. The DATELINE producer is back along with Terri Keith of City News. Desiree steps out to speak with Mark Werksman. That's interesting.

More people come in to hear closing arguments. Some faces are familiar but I don't have a name to go with them. I ask Pat Kelly if she's seen Pat Dixon, but no. We are close to being ready. I'm going to switch to Apple Works in a moment. Desiree comes back in. She has her hair pulled back in a ponytail and clips to keep her bangs off her face. White scoop neck top and a gray cardigan.

*****Rough draft notes below.

Put on the record before bring the jury in.

JK: Mr. Meister you had metioned that you were going to call Nancy Kaiser Boyd (sp?), you made a tactical decision not to present that witness.

SM: Yes. as a matter of strategy decided not to call.

Greg Fisher comes in at the last moment.

The courtroom is almost full, but there are plenty of seats left behind the bailiff’s desk. The jury files in at 10:38 am.

JK: On the record. You have another packet of jury instructions. (snip) I'm going to read 95% of them then sumations then after that, will read them the final instruction. Then they will commence their final deliberations.

JK: The defendant in this case has been found guilty of first degree murder and special circumstances. (snip) Penalty is either death, or life without parole.

I don’t type any more of the jury instructions.

There are two young men in the gallery that earlier, Steve Meister greeted and told what floors they could get something to eat on. He told them the food was wonderful. I smiled when he said this and the two guys looked a little perplexed. I added, “Sarcasm,” to help them understand Meister’s comment.

I’m wondering who the male attorney is sitting next to Ms. Brazil. He’s interesting looking with short black hair. He’s got a tiny touch of gray hair beside his ears and just the very faint beginnings of a balding spot in back. All I can see of his suit is that it’s light gray. There is a much younger woman attorney to Brazil’s left with blondish-brown hair close to her head in a small conservative bun.

10:56 am: Still reading jury instructions.

10:58 am: I wonder who is going to give the prosecution closing. Jackson or Harmon. Judge Kennedy was firm that each side would only be able to give a single argument. I don’t know if they will both speak, or only one. I'll know in a few more minutes.

12:38 pm: Eric Harmon gave the prosecutions closing argument and I have to say it was a very moving, heart wrenching argument for the jurors to decide on the penalty of death. In summary, Harmon started off by comparing what really was of value, the kilo bar of gold the jurors got to hold in their hands, or the real gold sitting in the second row. Harmon said that gold bar was "...fools gold compared to the other gold we have in this case, and they're seated in the second row. (snip) I submit to you that they are the real gold."

Harmon told the jurors, "I want to read to you something." And with that Harmon went directly to reminding the jurors of the brutality of James Fayed's actions by reading witness Edwin Rivera's testimony to the jury. It was difficult to hear it again where Rivera testified about finding Pamela on the ground, not realizing what at first looked to him to be a pile of clothing until it dawned on him it was a person; the horror of the injuries he saw on Pamela's body and describing in painful detail, those long few minutes where her life slowly ebbed out of her in that parking garage. Up on the overhead screen at the end of that reading was a photo of the large, huge pool of blood on the dirty garage floor.

Again and again, Harmon used Fayed's own words to show the jury what Fayed thought about his wife and if given the chance to do things over, he would absolutely make the same decision again. That even when Fayed was in custody, he showed us what his true character was. That he had a total disregard for the law and the legal system because while in jail he planned more murders. That for Fayed, the legal system doesn't solve his problems, killing does.

Harmon reminded the jurors what their job was not. That it was not their job to debate the usefulness of the death penalty, and that difficult decisions, the hard important decisions are not comfortable.

Harmon described the pain this family was experiencing even to this day three years later by quoting various witness who testified in the penalty phase. That their lives have been forever shattered, changed by Fayed's actions.

Harmon argued that you can't give justice to the family and at the same time, have mercy on James Fayed.

"What kind of jury do you want to be, to give mercy to a man when he gave (no mercy to Pam)? You can do that. You can give mercy for him. But you can't give justice for them, (pointing over at the family) (at the same time). He's had a trial, a judge, jury of his peers, mitigation evidence, and he's going to ask you for mercy? When Pamela Fayed had none of those. Pamela Fayed didn't have a trial. He was her judge, jury and executioner."

Towards the end of his closing, Harmon compared what Fayed did in those instances where he had time to think... at the ranch he plotted Pamela's murder, in custody when he planned further murders, compared to what Pamela did; she thought about her girls and wrote them a letter in the event of her death. Harmon read the letter to the jurors.

In his closing words Harmon told the jury,

"Now's the time. Nows the time I'm going to sit down in a few minutes and Mr. Meister will have the chance to address you. I want you to think not from here (hand over his heart) but from here (pointing to his head) and think about what kind of man he is. What he's done to these people, and whether this is an ordinary crime or and extraordinary crime.. Whether he deserves the minimum punishment or the maximum. You're the only ones that can deliver this verdict in this case. You are the only ones."

As I walked out of Dept 109, Alan Jackson is speaking to the family who are all still sitting in the second bench row. "It's almost over," he tells them. "It's almost over."

Afterwards, out in the hallway, I told Mr. Jackson I thought it was a powerful closing; well done. Jackson asked me to tell Mr. Harmon that, directly, and I did.

1:13 pm: I've got to head back upstairs.

2:55 pm: The closings are all over and the jurors have the penalty phase of the case now.

Steve Meister in a very loud, passionate voice gave a very rousing, almost angry at times plea that this murderer, James Fayed is not the worst of the worst in the pyramid of murderer's in our society, and therefore does not rise to the level of deserving the punishment of death. That there were no other aggravating factors that the people presented, except the family's grief that would make this murderer rise to the top of all murderers. Mesiter argued that Fayed didn't kidnap, rape and murder children. He spoke four about the same amount of time that Harmon did. I am so tired right now, I apologize for not putting up more examples of his arguments right now.

I'm all alone in the gallery. The court reporters are discussing what they are going to do, but Lori tells them they can't go; that the jury may have a question or request a read back. One of the court reporter's is talking about how she remembered the phonetically sounding long "i."

3:04 pm: I'm debating on indulging in getting a candy bar from the vending machines.

3:05 pm: Two Buzzes. Sean goes into the jury room with a big binder. Sean comes out of the jury room.

One of the court reporters asks if they had a question, but it doesn't look like Sean came out with a note. He's back sitting in his bailiffs desk. Lori hasn't gone back to the Judge or made a phone call. Maybe this is was supposed to be their first buzz, starting deliberations?

3:09 pm: Lori asks Sean, "Do they have everything?" And Sean replies, "Uh hum." (Yes.)

The court reporters continue to discuss their work and give each other shortcuts on converting their reporting machine's output to their computer files/discs. I think that's what their talking about.

3:16 pm: It's interesting what the L.A. County Superior Court's free WiFi blocks access to. I can't get to Facebook or read any one's Twitter posts. It also doesn't let me view any video, regardless if it's on an accredited news web site or not. It also will block me from reading the comments on some of the web pages I like to visit, like the truth wizard, Eyes For Lies.

To pass the time, I'm trying to patiently wait on ritanita's recap of opening statements in the Anthony Case. There is a stark contrast in the amount of media attention this death penalty case has received verses that case. I've been told there are over 500 reporters camped out in a specially built "Anthony Village" stage across the street from the Orange County courthouse.

3:26 pm: BUZZ! BUZZ! Sean gets up to check on the jurors.

Sean comes out with a note and goes into Judge Kennedy's chambers.

3:29 pm: Sean came back out from Judge Kennedy's chambers.

3:30 pm: I believe Lori is on the phone.

I hear Lori say that the jury has a question and please call me back. I hear a voice back in the back rooms say they don't have (to have) a read (a read back of testimony with this question).

Now Lori says they have a question regarding .... the Judge wants everyone back as soon as he can.

It's a question regarding 6.35 (I think I have that number right.) I believe that's what Lori said on the phone in her last phone call.

3:38 pm: Werksman comes in to read the jurors question. I think I hear Mr. Werksman say,

"This is the Phillips problem. These are smart people. These jurors went straight to the heart of the problem."

3:50: Meister comes in and Werksman tells him the same thing I just heard him say to himself, out loud.

The Dateline reporter, Jessica is back and so are the cameramen.

3:51 pm: I hear Werksman say, "It's an interesting legal question."

One of the cameramen calls for the other guy to come over so he can whisper to him about something. I can't hear what he said.

3:53 pm: Jackson arrives, reads the paper. Jackson says something that I miss then reads the jury question. The foreman is still #3.

I believe Jackson says, "The instruction we're going to have to give them is the one I suggested this morning."

So the counsel are going over off the record what they are going to do.

JK: Lets' see. (snip) For purposes of instruction, 6.35 only, the witness may include anyone who's voice is heard on the tape? May include the statements?

They are trying to craft a defining instruction on jury instruction 6.35.

JK: We have to define witnesses.

They are trying to decide. This is why jury instructions are very important.

JK: It has (to be?) limited to the solicitation.

They are trying to define what a witness may be in regards to this instruction.

JK: Yeah. They want to know....

JK: If they determine that's his voice on the tape....

So I'm just getting pieces of what they are trying to hammer out in this additional jury instruction. It will all go on the record when they all agree on the language.

4:01 pm: The pretty Dateline producer and the two cameramen chat at the other end of the long benches. Counsel and the judge continue to work out the language of what they are going to instruct the jury.

4:06 pm: JK: I think my cold will go away when this trial ends. She asks that the jurors be brought out.

Sean gets the defendant.

JK: On record. (snip) We are in receipt of a question from the jury and it reads as follows.

Your honor. We request clarification on 6.635.

Guilt on convicting of, or a testimony of (I miss the rest of Judge Kennedy's reading).

Does Detective Abdul count (as a witness)?

Could Shawn Smith be considered a witness even though he was not sworn in (to testify?) in court?

Judge Kennedy states for the record that the court and counsel informally discussed about the best way to respond and what they said.

JK: For purposes of (instruction) 6.35 only the phrase direct testimony of a witness may include the defendant if you determine one of the people on the tape, (people's exhibit #) is the defendant. For this instruction only, Abdul Salaam and Shawn Smith are not witnesses under this instruction.

JK: People agree appropriate response?

AJ: We do your honor.

Judge Kennedy asks if the defense now agrees (after some other text was added). I believe they agree with no objection.

AJ: For the record, how is that answer to the jurors included in the record?

I will respond to them in written form and it's part of the court record.

Judge Kennedy addresses the dateline reporters and states that the jurors will be leaving soon, and nothing else will happen today.

So that's it for today. I'm packing up. It's my best guess that they will be back here around 9:00 am tomorrow.

I'm going to wait to see them leave. The cameramen start to pack up their equipment.

4:17 pm: The jurors emerge.

I forgot to mention that yesterday morning, I saw famous defense attorney Tom Mesereau going through security on the first floor. I wonder what case he was appearing on.