| Post Preliminary Hearing Arguments |
DUSEK: Ask that People 1 - 6 be admitted into evidence.
JUDGE: Any objections?
FELDMAN: We need to address that Your Honor, yes
JUDGE: OK. Address. Well one is the flier for the missing person.
FELDMAN: NO OBJECTION
JUDGE: Received. Two is a picture of the scene where the body was found
FELDMAN: NO OBJECTION
JUDGE: Received. Three, that's what I said the scratches, ....scratches. Received. Four are the....You have objections? Well let's take them one at a time. I don't mean one picture at a time. I meant one group at a time. Six is received. All right so we want to talk about 4 and we want to talk about 5 correct?
FELDMAN: Yes
JUDGE: 4 are the photos and 5 ....
FELDMAN: Your Honor I'm sorry can we get the camera off us while we do this. Can we ask at least to ....
JUDGE: Are you talking about the pictures
FELDMAN: I'm talking about counsel's discussions at this moment concerning what objections need to be made with regard to People's Exhibits 4 and 5
JUDGE: Yes I think you're entitled to that privacy. So do you want to just go off the record for a few minutes without leaving
FELDMAN: (garbled)
JUDGE: OK we're off the record.
FELDMAN: (garbled)
JUDGE: You want to respond?
PROSECUTOR: I believe they do. Court can certainly make that determination when they look at them. They also are relevant to show motive on this case.
FELDMAN: Your Honor on the issue of motive I think counsel's suggestion is that if anybody has a picture of a naked woman they then have a motive to kill somebody? That really does push the logic a bit.
JUDGE: That's his argument. And I'm sure his argument isn't as simple as that. The objections are over ruled. 4 and 5 will be received however they will be sealed pursuant to 1417.8 pursuant to the stipulation of the parties but they're received
People rest.
JUDGE: Counsel?
FELDMAN: Your Honor frankly we didn't know what time we were going to finish and we don't have any witnesses here
JUDGE: That's not my real question. My real question is are there going to be witnesses
FELDMAN: We intend to call witnesses your honor
JUDGE: I didn't hear you
FELDMAN: I'm sorry we intend to call witnesses
JUDGE: And how many witnesses do we intend to call
FELDMAN: At least several and we'll analyze tonight how many more based upon the testimony of the witnesses today
JUDGE: Do you understand that there are severe restrictions...
FELDMAN: I'd be happy to make an offer of proof Your Honor so perhaps you could tell us whether it's appropriate or not
JUDGE: I think it's a good idea
PROSECUTOR: Perhaps we could do that at sidebar
FELDMAN: Your Honor if we're being compelled to make an offer of proof on the prosecution's motion I think it should be made, I mean what are we hiding
JUDGE: We're not going to make it at sidebar. If we're going to do it we're going to do it. Now just briefly go ahead.
FELDMAN: My first question is before I do this Your Honor I want to be sure witnesses are excluded. I just don't know whether they are cause I haven't looked behind me.
JUDGE: I assume that all of the witnesses have been excluded and admonished pursuant to my previous orders am I correct Counsel?
PROSECUTOR: Yes
JUDGE: All right
FELDMAN: Your Honor. It's the defense position as follows. And this is what we propose to demonstrate in our case in chief at prelim hearing only. The issue in the case in our view is alibi and 3d party access to the Van Dam residence. It's apparent in our view that anybody who entered that residence on the evening and removed Danielle had to have been familiar with the upstairs of the residence, with the family and with the dog.
PROSECUTOR: It's not an offer of proof. We need to know who's going to testify to what
JUDGE: That's what we want to know
FELDMAN: I'm getting there
JUDGE: Well let's get there directly. And then we'll... I want to know who's coming in, what's the offer of proof. and what does it relate to. This isn't an opening or closing argument.
FELDMAN: I understand. I also understand that given it's a prelim hearing there are substantial restrictions on our ability to present evidence.
JUDGE: certainly
FELDMAN: We intend to call Det parga (sp?) to the stand to testify to certain aspects of the search of Mr Westerfield's residence.
PROSECUTOR: She's not in the country
FELDMAN: She's under subpoena. I think. She is. She's under subpoena. We have her
JUDGE: Well she's not in the country so we're gonna have to figure out what to do about that. All right let's skip over Det Parga and try the next one.
FELDMAN: We intend to call Barbara Easton to impeach the testimony of Brenda Van Dam. Specifically with regard to the fact that there was dancing at the bar that Brenda Van Dam was dancing with David Westerfield and we intend to call 2 or 3 witnesses including the bartender at Dads restaurant or by way of 115 officer, I think his first name is Frank Gurback (spell?) he too I believe is under subpoena to the defense, yes he is, and we propose to 115 the testimony of Miss, I think it's Kamel. She will testify...
JUDGE: Let's just start first with Barbara Easton. one at a time. What is your representation as to what her testimony is going to be. Not what questions you're going to ask her. But what her testimony is going to be.
FELDMAN: Your Honor we have a transcript that was provided to us in discovery. It is pages 396-445. And I'd be happy to provide the transcript to the court. Counsel gave it to us.
JUDGE: Let me see it. And before we make a speech let me see it. and somehow direct me to the highlighted portion yes. All right let me take a look at it. Well counsel there are a lot of highlighted portions where is the specific reference to what you just told me about her dancing with Mr Westerfield. What page is that on
FELDMAN: I can't, you have my copy I'm sorry. But I can tell you that if you start at the top you see the word "toasted" that is a place we want to go because it's impeachment of what's previously been testified to by the witness.
JUDGE: Counsel the toasted that you want to talk about is on page 9 only
FELDMAN: I'm sorry my memory.. I thought it was on the first page.
JUDGE: I didn't say the word toasted wasn't on the first page. I said what you just talked about is on page 9. Hold on a second. All right I don't know how we're going to do this but let me tell you in the few minutes that I've had to review this I'm going to give this document back to you and ask you to take a few minutes and refer me specifically to the page where this woman says that there was dancing going on between your client and Mrs Van Dam.
FELDMAN: Your Honor I apologize I think I called the witness wrong we have two other witnesses
JUDGE: Counsel all I know is you gave me a document and said you'll find it in here. It isn't. At least I can't find it.
FELDMAN: Well I apologize to the court. I'm proposing that we have 2 other witnesses to the same fact
JUDGE: Hold on a second. Let me just stop. We were talking about why are you going to be calling Brenda Easton. You told me because she would impeach the previous testimony and she would testify a certain way about who was dancing with whom
FELDMAN: And we disagree with the manner in which Mrs Van Dam described the events that occurred as articulated by Mr Van Dam. And so we see her..... I'm specifically at page 9...
JUDGE: Counsel according to 866 of the penal code you have to either establish an affirmative defense, negate an element of the crime or impeach the testimony of a prosecution witness. I understand what you're telling me. you're telling me that she has a different view of how toasted they were. I understand. But I don't see anything in there...and it was quick reading I'll give you that...that for the purposes of the prelim hearing that I would allow you to go in to with respect to impeachment. I just don't see it. Now let's talk about a witness if you have one who is about to testify to what you represented miss Easton was going to testify to and I understand you made a mistake we all make mistakes.
FELDMAN: Your Honor specifically Discovery page 732 and Discovery 468 reflects the testimony of Cherokee Young's
JUDGE: Let me see it please
FELDMAN: and another woman ...
JUDGE: Cherokee Young is the first one and the second one?
FELDMAN: Patricia LaPage.
JUDGE: Thank you.
FELDMAN: And you'll see a reference to Barbara Easton. Those are short reports Your Honor
JUDGE: Hold On. All right. Counsel I see Cherokee Young's. I see Patricia Lapage. That's not what she said. So I don't see that Patricia Lapage or Brenda Easton are particularly relevant to this hearing. I understand why you want Cherokee Young's and I would ask the DA why I shouldn't allow Cherokee Youngs to testify for impeachment purposes only
PROSECUTOR: I believe she's not under subpoena. I don't know if she is or not.
FELDMAN: She's under subpoena for us
PROSECUTOR: And I do not see that the impeachment area is relevant to the hearing here today
JUDGE: I do
PROSECUTOR: all right
JUDGE: You may call Cherokee Youngs for the limited purpose of impeachment testimony with respect to what is stated within the .........within the paragraph. The indented paragraph.
FELDMAN: Your Honor we have the page that indicates that Barbara Easton..
JUDGE: I have page 732, is what I have
FELDMAN: And in that page it should state that Barbara Easton at Dads bar invited other people back to the house..
JUDGE: Counsel hold on a second. I said....OK?.... that with respect to Cherokee Youngs you can call her to testify for impeachment purposes only with regard to what is stated within the indented paragraph. That covers what you want. All right so right now Cherokee Youngs I'm going to allow you to call for impeachment purposes. All right? If we're doing it let's do it now.
FELDMAN: We don't have her now
JUDGE: No no...I apologize. Let's proceed with this process.
FELDMAN: Your honor we would next propose by way of 115 to call an officer named Frank Gurback (sp?) this is discovery now 458 at sec (?) which reflects an interview with Denise Kamel.
JUDGE: Let me see it please
FELDMAN: Coming right up. 458-461. Your Honor there's an additional page I wish to provide to the court. Actually 2 additional, 463 and 464. It's the same witness just additional discovery that I didn't give you
JUDGE: All right. Where specifically. Oh I have it and you don't. I'm gonna give it back to you and I want you to in some manner indicate what specifically you believe is impeachment. not cumulative because some of the witnesses have not testified exactly the same.
FELDMAN: Your Honor.
JUDGE: Yes
FELDMAN: I'm going to try to put ink circles around the specific areas. Just so counsel is aware it's discovery 459 about two quarters of the way down the page. 461 first several lines.
JUDGE: not at the prelim hearing counsel. #1 I don't think it is anything new. I think it's cumulative and I'm gonna exercise my discretion under 352.
FELDMAN: Very well. Next. Glennie Nasland.
JUDGE: I apologize. How do you spell that?
FELDMAN: I said it wrong. N-a-s-l-a-n-d. Counsel it's 525 and 526.
JUDGE: OK let me take a look. You've circled or highlighted it or something?
FELDMAN: Yes I put a circle around it.
JUDGE: Thank you
FELDMAN: May I please provide you 527 as well
JUDGE: Yes you may. This is the testimony of a police officer who's going to come in and testify. You have the actual person?
FELDMAN: we have the witness. I think I circled the wrong spot I'm sorry I didn't realize you were going to ask me to do it this specifically with regard to the paper. So I...
JUDGE: I did that as an accommodation counsel
FELDMAN: If you have 526 up there Your Honor?
JUDGE: I see what you want. You want this person to come in specifically to testify about who was dancing with whom, correct?
FELDMAN: Correct. And intoxication as an affirmative defense --our client's intoxication and potentially as an alibi.
JUDGE: No. She can come in she can testify with respect to who was dancing with whom and that's all. I'm using my discretion under 352. We're not going to turn this into a mini trial. I apologize. How do you spell that last name.
FELDMAN: N-a-s-l-a-n-d
JUDGE: Thank you.
FELDMAN: Your Honor
JUDGE: I'm listening
FELDMAN: We propose to call Sandra Engotti (sp) to testify that there were between 34 and 76 sex registrants within a very short area around the residence of the van dams to show access and 3d party culpability.
JUDGE: Counsel ?
PROSECUTOR: 3d party culpability is not an affirmative defense. An affirmative defense is "I did it". But this is the reason for -the fact there are 290 registrants anywhere is of no relevance and it certainly does not lead to a 3d party culpability
JUDGE: Sustained
FELDMAN: Your Honor.
JUDGE: Sustained I don't want to hear it
FELDMAN: People vs Hall
JUDGE: You're telling me there is a case that specifically says that in this type of a case that the issue of how many sex registrants, 290 registrants, in the area is relevant?
FELDMAN: No I'm saying that counsel misspoke when he claimed that an affirmative defense was limited to that which he articulated and I was citing People vs Hall for the proposition that 3d party culpability is an affirmative defense.
JUDGE: I'm going to allow you a 3d party culpability. That's not the reason I sustained the objection. I sustained the objection because I think the Number of registrants, 290 Registrants, in the area is irrelevant.
FELDMAN: There's two witnesses that we talked to Counsel about and Sgt Holmes is being very gracious indicating he will accommodate us because we don't have two of the officers under subpoena. I will provide you with the discovery this relates to. And Dylan and Derrick Van Dam I don't want to call them Your honor they are children. If you decide it's relevant I want to do a 115
JUDGE: I'm sure that if I decide it's relevant that we can do it a way in a fashion so we don't have to call the children. I didn't say it was relevant I said "If".
FELDMAN: Your Honor
JUDGE: Let me see what you have please
FELDMAN: I was just going to for the record... 605 discovery 606. I've got it highlighted. And also 60.....I guess 602 and 604 on top of that
JUDGE: All right let me see it
Counsel with respect to the interview with Derrick I see one sentence.
FELDMAN: Yep
JUDGE: That sentence counsel is on page 603. I don't know what Mr Dusek is looking at but it starts "when asked if his sister." You see that? Bout middle of the page. In fact it's right next to the middle hole. You see that?
PROSECUTOR: yes
JUDGE: that's the only sentence in this 3 page document counsel
PROSECUTOR: then submit it right now. Stipulate that that's what he would say
FELDMAN: Well then I propose to accept the stipulation but I'd like be able to state it. If you'll agree
JUDGE: Hold on. You're reading my mind as I've tried to read your mind throughout this. we may be able to work out these stipulations with these other people. I don't know. Let me take a look at the other child. This is Dylan?
FELDMAN: He says the same thing Your honor
JUDGE: Ok. This is the 5yo? yes. All Right. He says the same thing. You're correct. So do you want to come to sidebar to see if we can propose a stipulation and come back out and try to do it?
FELDMAN: yes Your Honor
JUDGE: And take care of this is that all right with you counsel?
PROSECUTOR: Sure
JUDGE: All right let's do this quickly..................
All right we're back on record. I'm advised that there will be a stipulation with respect to the two children. We're gonna have that posed in a minute on that limited area about the gate. I understand there cannot or there will not be a stipulation with respect to Miss Young's and Miss Nasland's testimony although once again to caution it's going to be extremely limited. you know what my goal was today. All right. What else do we have. And I don't even know....I'm not casting any aspersions. What else do we have?
FELDMAN: Your Honor with regard to Det Parga.
JUDGE: Hold on I know about Det parga. You know how I operate. I try to get as much as I can get and I want to know whether or not there's anybody other than Det Parga
FELDMAN: The court will recall that an objection on scope was sustained when I was trying to ask Miss Savage(sp?) certain questions concerning her behaviors at Mr Westerfield's residence so miss Savage would be another one of the witnesses we would ask to be recalled because an argument was made that my cross examination exceeded the scope of the direct. This would be an affirmative defense relating to transference of evidence.
JUDGE: Counsel?
PROSECUTOR: It is the discovery question. He simply wants to discover the case. He has the reports that indicate what was found where and when it was found.
JUDGE: What specifically she's going to testify to that's what you need to do under 866.
FELDMAN: she's going to testify she went from the crime scene at Mountain View and walked to Mr Westerfield's house and walked through Mr Westerfield's house without having changed her shoes, tracking in or contaminating evidence. That does relate to what weight the court gives to the prosecution's physical evidence that's been produced at this hearing.
PROSECUTOR: What evidence has been produced at this hearing as to any hair, fiber, blood, fingerprint evidence coming from Mr Westerfield's house?
JUDGE: I didn't remember any..
FELDMAN: The inference on the jacket is that it came from, and that's how I understood the testimony and those are inferences that I was drawing on their direct testimony concerning Mr Westerfield's jacket which they've alleged had blood on it.
JUDGE: I think Mr Dusek's recollection of the testimony is correct. I don't find that such testimony falls within 866 of the penal code so that's denied.
FELDMAN: there's one other issue Your Honor and that is this. The court is aware that the lawyers have been moving as quickly as possible. At least the defense team has. Late yesterday I received a call after court...no we didn't have court yesterday...at some point yesterday I received a phone call I can't recall whether it was from the DA' office or from a photo company but I'm told that there is I don't know how many 100s of photographs that we have yet to see of the crime scene that will be available to the defense at some point tomorrow morning. Yesterday we called we have a runner whose move position is to pick them up as soon as they're ready. But I think my request would be it's not unreasonable to say we want 6 or 8hrs tomorrow morning to pick up evidence that in our view could have been produced earlier and has not.
JUDGE: What about Det parga. And I have not responded to your last statement nor have I asked the DA for his position. I just want to do things my way and I don't mean that in a dictatorial manner.
FELDMAN: Whatever the court wants
JUDGE: That's what I want. I want to talk about Det Parga
FELDMAN: We can if you'll give us a second with Mr Dusek may be stipulate a way Det Parga...
JUDGE: That'll be good...... go talk.
FELDMAN: We might want a ruling....if it's not unreasonable to request an indicating on relevance to see whether we need to stipulate to anything.
JUDGE: Well that's fair. It wouldn't be an indicating it would be a ruling.
FELDMAN: OK Counsel has given me his 919 and I'm asking to please give it to you.
JUDGE: All right. you have something circled?
FELDMAN: Yes. It's the paragraph that's in yellow.
JUDGE: This is all you want? Or you want the whole paragraph?
FELDMAN: No we want...no we don't want the whole paragraph.
JUDGE: Just the one sentence?
FELDMAN: Yes because our view is that...
JUDGE: I understand
FELDMAN: But they want the whole paragraph
JUDGE: Now I understand what the dispute is. Counsel this is offered for what purpose? Which one of the 3 purposes? Which one...
FELDMAN: The first sentence is relevant to impeach the witness.
JUDGE: I understand.
FELDMAN: That's all we want.
JUDGE: And the 2d few sentences is consistent with what the witness had testified to before am I correct?
PROSECUTOR: I believe all of them are consistent.
FELDMAN: But our position is that it's cumulative after the 1st sentence and we're not offering any
JUDGE: I appreciate that but I've been fairly liberal with my cumulative rulings. If it comes in I'll find it as relevant. if it comes in the whole paragraph comes in. Do you want it in or not?
FELDMAN: Yes.
JUDGE: now let me see if I understand what issues I have left. I have your request with respect to the giving you the opportunity to review the crime scene evidence that's coming in some time tomorrow am I correct?
FELDMAN: That's correct your Honor.
JUDGE: Do I have anything else. Knowing that I still have two witnesses who I have ruled irrelevant.
FELDMAN: At this point again it's been... I can only tell you our habit and custom is to go back and analyze the evidence and make tactical decisions every night constantly
JUDGE: I understand. You know what I don't want to see. I don't want 15 more witnesses or 3 more witnesses tomorrow morning.
FELDMAN: I'm getting that from counsel too.
JUDGE: I'm sorry?
FELDMAN: I was getting that from counsel to my left as well Your Honor
JUDGE: Well I would do the same thing with him. Now.
FELDMAN: But I'm really not sure what Your Honor...you're indicating you don't want surprise witnesses of course I understand that.
JUDGE: Right. I'm asking you now to tell me whether there're any other witnesses based upon what you have now not based upon some more crime scene evidence that you're going to receive that you wish to put on for any purpose under 866. And my understanding is the answer is no.
FELDMAN: Correct. Except that which we've told you about.
JUDGE: the two witnesses
FELDMAN: Well all of our offers. Yes.
JUDGE: But the two witnesses that I've ruled are relevant and they can come in and they're going to testify about who was dancing with whom.
FELDMAN: Yes Your Honor
JUDGE: I want to see counsel at side bar and I want the court reporter
(SIDEBAR)
JUDGE: Ok it's not only attorneys who can be persuasive. I'm pleased to announce that we're going to have some stipulations. Go ahead.
(male voice): Your Honor we have reached a stipulation as to the testimony of Officer Bojorquez. That's spelled B-o-j-o-r-q-u-e-z. If he was called to testify he would testify that on Feb 2 2002 he interviewed Dylan Van Dam and the officer asked him if his sister has ever walked away from the house and opened the gate in the backyard. He said yes his sister can climb up and open the gate. She's gotten in trouble before. He said she and my brother got in trouble with my mom for opening the gate and going out front. The same officer will testify...
JUDGE: Hold on these are stipulations for the purpose of the prelim hearing only am I correct? Correct counsel?
PROSECUTOR: yes
JUDGE: So stipulated with respect to the first recitation. Next.
(male voice): the officer would also testify that on Feb 2 2002 he interviewed Derrick Van Dam . And that Derrick Van Dam when asked if his sister knows how to open the gate he said yes she does. He said One time she got in trouble for climbing on the gate and opening it and going out front.
JUDGE: So stipulated for the same purposes.
PROSECUTOR: yes
JUDGE: Thank you. we've got some more.
(male voice): We have a stipulation that Det Parga if called to testify would testify that on Feb 3 2002 he checked
PROSECUTOR: she
(male voice): on Feb 3 2002 she checked 11995 Mountain pass road at 11:45 hrs. Dave Westerfield was not home. I looked into the window of Westerfield's house and noticed it was very clean and neat. I noticed the front yard hose was lying on the grass and it is a disarray. I assume she means in a disarray. This indicated to me he was in a hurry to leave after using the hose. it was completely unrolled in (garbled).. yard
JUDGE: So stipulated.
PROSECUTOR: yes
JUDGE: OK. There are two more. Have I missed something. Weren't there 2 more?
(male voice): Your Honor I don't believe that the DA will stipulate to the testimony....
JUDGE: Did I misunderstand what happened at sidebar?
PROSECUTOR: No you didn't.
JUDGE: You are willing to testify...uh to stipulate correct?
PROSECUTOR: Yes.
JUDGE: Thank you:
PROSECUTOR: For the purposes of the prelim hearing only?
JUDGE: Correct. It's a very limited area.
FELDMAN: Your Honor that would be
JUDGE: About dancing.
(male voice): We also have a stipulation that if Glennie Nasland that's N-a-s-l-a-n-d were called to testify.
JUDGE: You want to spell the first name too Please.
(male voice): Glennie that's G-l-e-n-n-i-e would testify that she was at Dads cafe on Feb, on the evening of Feb 1st and that Westerfield danced with, that Brenda danced alone with Westerfield.
JUDGE: So stipulated for the limited purposes of the prelim hearing
PROSECUTOR: May I see that for a moment Your Honor
JUDGE: Certainly.
PROSECUTOR: For the purposes of the prelim hearing only your honor
JUDGE: All of these stipulations have been received for that purpose. There's another one. Cherokee Youngs.
(male voice): We have a stipulation Your Honor, that Cherokee Youngs, that's Y-o-u-n-g-s, first name C-h-e-r-o-k-e-e, if called to testify would testify that on Feb 1st at Dads bar she saw Brenda dancing with Dave Westerfield.
JUDGE: So stipulated for the same purposes.
PROSECUTOR: Yes
JUDGE: Stipulation is received. It's my understanding that with the exception of a discussion that we need to have about the anticipated receipt of crime scene evidence discovery tomorrow that we are finished and terminated with this prelim hearing but for argument. Am I correct?
PROSECUTOR: Yes
FELDMAN: How about for the motion that i made Your Honor.
JUDGE: Yes
FELDMAN: if you're asking if we have any further witnesses that answer is no with the exception of what we don't know about yet.
JUDGE: I understand. I'm now listening to you about what you want me to do and why
FELDMAN: The purpose of the prelim hearing is to weed out groundless charges. And I recognize that the standard of proof is extraordinarily slight. However it does statutorily and as a matter of constitutional right provide and permit that a potentially capital accused defendant be at least given the opportunity to review the photographs that law enforcement has already taken and which are at least on order and should be available to us in certainly less than 24hrs. All I'm asking the court is to permit us the opportunity to review evidence which has been communicated to us and provided to us I believe in due course to review the evidence so that we can make an informed decisions to whether or not we believe it's relevant and appropriate for us under the 6th amendment to advance further affirmative defense testimony.
JUDGE: What is it that you expect to receive.
FELDMAN: I expect to receive 100s of photographs. All I've been told is the price judge. I don't even know how many 100s. But I think one of the gentleman at counsel table I thought told me, but I could be wrong I don't rely on my memory too greatly, that there might be several 100 photographs.
JUDGE: Of?
FELDMAN: Of every scene that has been testified to that would include but not be limited to, Your Honor, the scene at which the body was found, Mr Westerfield's residence, Mr Westerfield's motor home, Mr Westerfield's 4x4 motor home, and the Van Dam residence. And I may be forgetting if there's more but at least that.
JUDGE: Thank you. Counsel?
PROSECUTOR: Photographs have been available for pick up for 1 or 2 days. Defense counsel answered ready when the prelim hearing was scheduled. We certainly were not in a rush to judgment. He appears to be. Photographs already have been provided to him before this. This is not the first set of photographs . The current set of photographs that I believe have already been provided show the Van Dam home and the Westerfield home. Perhaps not the recovery site. Those were the latest ones that were done. These are probably duplications or additional photographs from the other sites that we have.
FELDMAN: If somebody had let my office know that in the past 48 hrs there were photographs available you can bet that I would have had them (snaps fingers) this instant and we would have been ready to proceed. There hasn't been a single communication to my office that I'm aware of that indicated to us that there was additional discovery made. Because every single time this whole week and for that matter ever since the case arose that I received any kind of phone call from Mr Clark or any rep of the DA's office I've immediately gone over. I know the names of the clerks by now I've been over so many items because any time discovery has been made available I've been there to get it right now. This is not an unreasonable request. I'm very surprised to hear that photographs existed since this is the first time I've known of it. It's true we've received perhaps a dozen or so of the digital crime, of the digital photos that were taken at the recovery scene. It's true that we received some Xerox copies and some photos that were taken from the autopsy but not scene photographs your honor
JUDGE: You are certainly entitled to all of those photographs and to examine those photographs. There's no question bout that. I think that's part of the discovery process. The purpose of the prelim hearing as you pointed out was to weed out groundless charges. And I can't imagine that the photographs could contain sufficient evidence for me to decide that these charges are totally groundless so I'm going to exercise my discretion not to grant the continuance and this is the end of the prelim hearing. All right do you wish to argue counsel or what?
PROSECUTOR: there are some defense exhibits too I believe
JUDGE: Yes
PROSECUTOR: yes the court may recall.
JUDGE: thank you for pointing that out.
PROSECUTOR: The court may recall the court released to our custody Def exhibits F through J yesterday that were I believe exclusively notes and reports of various San Diego police dept experts. I yesterday, actually I'm sorry night before last, had those copied, provided a copy of them to counsel, and also seek the court's permission to substitute one set of those copies for the original notes that the Police Dept needs because they are actively testing material in this case.
JUDGE: You don't have any objection to that do you ?
FELDMAN: No Your Honor
JUDGE: Is it necessary that I actually receive in evidence those notes? I thought we really marked them for housekeeping purposes.
FELDMAN: Essentially for housekeeping purposes but at least this way now the court has a complete set of the notes
JUDGE: But you're not offering them in evidence I should just keep them
FELDMAN: Not at this time
PROSECUTOR: And I've provide a full copy of those to the court your Honor
JUDGE: Well Mr Clark reminded me that there were other Def exhibits which Def didn't' mention so before I assume that you don't wish me to receive them i should ask you. If you have something else to say I'm certainly willing to listen.
PROSECUTOR: Just back to those notes. First of all...they are not a complete set of notes because they are actively being worked on back at the laboratory..... But did I in fact, I can't remember, get the court's permission that the original's can be released.
JUDGE: Yes counsel had no objection you have my permission.
PROSECUTOR: Thank you
FELDMAN: Your Honor.
JUDGE: Do you want to go off record while you discuss this with counsel?
(they go off record)
JUDGE: What do you want to say counsel
FELDMAN: Your honor With regard to Def exhibit A
JUDGE: I know what A is
FELDMAN: Ok we'll submit it but ask that they be sealed. I'm not, I don't want to offer them into evidence but I do want them to be sealed. And i don't think counsel has an objection to the sealing. I apologize counsel I didn't speak directly about...
PROSECUTOR: should be sealed
JUDGE: OK "A" is sealed not offered. And they're sealed once again pursuant to 1417.8 of the penal code
FELDMAN: Thank you your honor. As to "B", "C", "D", and "E" just ask that they be marked. We're not...
JUDGE: You're not offering them.
FELDMAN: Correct. With regard to all of the remaining exhibits Your Honor I just ask to have them marked. We're not moving them.
JUDGE: Any objections?
PROSECUTOR: No your honor.
JUDGE: OK. That's fine. They're all marked. We have them all. "A" will be sealed and the rest have not been offered and as I understand it with the exception of argument we have nothing else in this prelim hearing.
PROSECUTOR: ...reserve the right to respond
JUDGE: Counsel
FELDMAN: Submit
JUDGE: I think everyone knows what the burden of proof is in a prelim hearing and it appears to this court and to me that the crimes alleged in the complaint have been committed, there's no question about that. I have reasonable cause to believe that Mr Westerfield is guilty of them. He will be held to answer and the arraignment will be held on Mar 28 at 2PM in Dept 11.
Nothing further to do?
PROSECUTOR: The allegation also Your Honor?
JUDGE: All of the allegations yes
FELDMAN: Mar 28 at 2PM?
JUDGE: That's correct in Dept 11. That's within the statutory time.
FELDMAN: Thank you
JUDGE: Thank you for your professionalism. We are adjourned.