(In open court; jury not present)
THE COURT: Investigator Jiminez, we will be back in ten minutes. I think you have a room.
LANCE JIMENEZ: Thank you, Judge.
THE COURT: Please be seated.
(Pause)
THE COURT: Now that we are not in side bar.
MR. AGNIFILO: Can we --
THE COURT: Oh, okay.
MR. AGNIFILO: Bring him back out, Judge.
THE COURT: If you would like this issue to be addressed --
MR. AGNIFILO: Yes. Yes.
THE COURT: Or I suppose if it's appropriate to proceed in his absence, we can do it that way too.
MR. AGNIFILO: Let me get him, Judge.
He's present, Judge. Thank you.
THE COURT: All right. Ms. Slavik, what was the purpose of eliciting testimony concerning these fingerprint cards?
MS. SLAVIK: Your Honor, the defense clearly intends to attack the credibility of this investigation. They've already elicited certain details in the testimony of Mr. Mescudi that, you know, certain aspects of the investigation, the fact that no charges were brought, the fact that this investigation kind of went nowhere.
So I think we're entitled to establish what steps were taken and what steps were not taken and why those steps were or were not taken through Investigator Jiminez. So I think that this testimony regarding the fingerprint analysis falls squarely within that testimony of the investigative steps that were and were not taken and why.
THE COURT: What does the destruction of the fingerprint cards have to do with what you just said?
MS. SLAVIK: Because the outcome of the destruction of the fingerprint cards is that no fingerprints were obtained. There was nothing connecting anyone to the scene of this crime. And I think there's an important reason as to why, which is that these fingerprint cards were destroyed.
THE COURT: And what is the defense's proposal as to the instruction to be given to the jury?
MR. AGNIFILO: I would like the Court to -- we're not having live feed.
THE COURT: Let me take a step back.
MR. AGNIFILO: Yes.
THE COURT: When I heard the questions, I assume that there was a different reason why that line of inquiry was coming up. My assumption -- and there was no objection for I think some of the initial questioning -- was that there was going to be a line of cross-examination directed to the fingerprint cards, much in the same way that we anticipate there was a line of cross-examination going to the DNA evidence. That does not appear to be the case from the defense's perspective. That also is not the case from the government's perspective, because I've raised that issue and that isn't the reason why that testimony was brought up.
It appears to have been brought up precisely for the reason that the defense suggests. However, at the present time, there's no inference one way or the other based on this particular testimony. That being said, I'm not -- the defense's point about at the very least at this juncture a lack of any relevance to the issues that are in this case is -- I think we'll take it. I don't think that there's any prejudice from the line of questioning that we've had so far.
So my proposal would be to tell the jury to disregard the testimony concerning the fingerprint cards that they just heard and move on from there.
MR. AGNIFILO: So, if I may, I think there's actually quite -- there is prejudice. And I think -- and I have to just say it the way I think I see it. I think what the government has done is outrageous. And I haven't used that had word all trial, but I'm using it now. And they know what they were doing. They knew exactly what they were doing. They were suggesting to this jury that someone in this courtroom had something to do with the improper and suspicious destruction of these fingerprint cards and that's outrageous. And, quite frankly, we are having discussions and I need a few more minutes before we hit ground on what, if any, other remedies we are going to ask for in light of that line of questioning.
So before I do that, let me speak with my colleagues for a second. And I will, if it's okay with the Court, I know we're trying to get back to the jury back in the box, if I could have a few minutes, two minutes, three minutes just to discuss with my colleagues.
THE COURT: Well, let me hear from the government before we take a break, and then we'll come back at 11:00.
MS. SLAVIK: Your Honor, I think that inference is absolutely unwarranted here. I think it is very clear that the defense intended to attack the integrity of this investigation. And, specifically, to attack the credibility of Investigator Jimenez.
I think that the reason for eliciting the fact that this was unusual, an unusual way to destroy evidence is related to the fact that Investigator Jimenez did not personally authorize the destruction of this evidence. He did not have anything to do with it. Which otherwise could be, could be the inference that the jury draws, that Investigator Jimenez did not do an adequate investigation, which I think is exactly what the defense intended to elicit.
The relevance of the fingerprint cards being destroyed shortly after the incident itself is absolutely relevant because it relates to the reason that there was no -- there was no ability to conduct a fingerprint comparison. If the fingerprint cards from the trespass were destroyed, there's no way to compare those fingerprints against any other fingerprints that were obtained from the arson, such as those retrieved from the Porsche.
This is I think an important fact for the jury to consider as it assesses whether the trespass and the arson are connected, which I expect the defense to argue strongly against.
I think this is relevant, I don't think there's prejudice. I'm happy to move on from this line of questioning, but I do think that it's absolutely relevant that the fingerprint cards that Investigator Jimenez obtained were destroyed shortly after the investigation.
THE COURT: All right. Thank you. We'll take a recess. We'll come back at 11:00, and then that will give you time, Mr. Agnifilo to discuss.
MR. AGNIFILO: Thank you.
(Recess)
(Continued on next page)
THE COURT: All right. So my having reviewed the transcript, my intent is to strike from the record any testimony regarding the fingerprint cards and the destruction of them, and to instruct the jury not to consider that testimony in this case.
I will note that after the only questions that were asked as to which answers were given concerned the actual facts of what the witness knew about the destruction.
Mr. Agnifilo, you objected solely to the question: Did this strike you as unusual? And I sustained that objection. No answer was given. Then there was a followup question about the 15 years of experience, at which point you objected, and we had the sidebar and there was no further testimony.
As I'm reviewing the record, the appropriate remedy for the testimony that was given would be to strike the testimony concerning the fingerprint evidence, since there was no suggestion from the witness of any kind as to whether it was usual or unusual or what happened in his 15 years of experience since the objections were raised and either were sustained or not ruled upon because of a sidebar. There was no further questioning after that.
So with that, Mr. Agnifilo.
MR. AGNIFILO: I'll turn it over.
MS. SHAPIRO: Your Honor, respectfully we are going to move for a mistrial at this time based on the prosecutorial misconduct that went into this.
I think it's clear that, first of all, just to take a step back, as the court will recall during jury selection, there were issues raised by some prospective jurors about, you know, the idea that Mr. Combs could buy his way out of this, this type of conspiracy theory is out there, and the type of implication that we believe these questions were designed to create plays right into that.
I think the first few set of questions seem perfectly fine, but --
I apologize, I need to use the technology here. Can you go -- yes, so go back up a little bit.
So we start with a few questions about what happened to the fingerprints, when were they destroyed. They were destroyed in August. You know, that all seems fine, right. And it should have ended there, if the only purpose of it was the one described by the government in the sidebar.
But instead, you know, they start going on and they start asking more questions. Did he authorize the prints being destroyed? And then he goes on, they go on to ask, in particular --
This is going the wrong way. I'm sorry. I apologize. The technology is not working.
THE COURT: I have the questions in front of me.
MS. SHAPIRO: So then they get to the question, you know, was this unusual.
THE COURT: Right.
MS. SHAPIRO: And then the last question was --
THE COURT: Wait. You got to that question and then that's the first time there was an objection --
MS. SHAPIRO: Well --
THE COURT: -- which I sustained.
MS. SHAPIRO: -- your Honor, I understand that.
But my point is that it was becoming clearer and clearer that this inference is what the government was doing this for, and the jury is going to be left with the impression, even if your Honor strikes the testimony, including not only those two questions, where the objections have been sustained, but strikes the previous questions and answers and gives an instruction, there is no way to unring this bell, particularly those last two questions.
You know, first of all, it's clear from the last two questions that, respectfully, what the government was doing here, there's just no reasonable way to interpret their motivation, other than they were trying to plant an idea in these jurors that Mr. Combs was responsible for the destruction of these fingerprints. And there is no other reason.
Otherwise, they would have just stopped at the point to elicit the testimony that the fingerprints are gone, you know, that they don't exist anymore, and that that would have been the end of it. So we, respectfully, submit that the only proper remedy to cure the outrageous prejudice caused by this is a mistrial.
THE COURT: All right. Let's hear from the government.
MS. SLAVIK: Your Honor, respectfully, a mistrial is absolutely unwarranted here. There was a good-faith basis for the questions asked by the government. I've been over those good faith reasons, and I simply think that there is no prejudice here, much less incurable prejudice that would require a mistrial.
I think, going back to our discussion yesterday about the DNA evidence, Mr. Agnifilo made very clear that the reason that the DNA results were relevant here was because Investigator Jimenez was the lead investigator and, therefore, it was appropriate to explore why certain steps were taken in the investigation and why certain steps weren't taken in the investigation.
As I flagged for the court yesterday, given the court's ruling that Mr. Agnifilo could pursue such questions on cross-examination, that the government would elicit certain information about the testing in this case from Investigator Jimenez. That includes the DNA testing, the gas testing, and the fingerprint testing.
I think here, with respect to the fingerprints, I think that a curative instruction that the jury should not draw any inference from the destruction of the fingerprints, I think that sufficiently cures any possible prejudice in this case.
And that is the government's view of how this should be resolved.
THE COURT: The application for a mistrial is denied for the reasons stated by the government.
In addition, I'll just offer the following, which is, as I said, there were no objections to the questions that were asked up to the last two. As to those questions, the objections were sustained, so there was no testimony from the witness pertaining to those questions.
The jury has been instructed and will be instructed that they are not to consider questions from attorneys or statements from attorneys as evidence, and they are presumed to follow those instructions, which we will give again. So there is no absolutely no testimony from the witness that was prejudicial in any way, shape, or form, as the court sustained the objections that were raised.
As to the inference to be drawn here, as I noted at sidebar, the inference that is the most available and plausible inference is that the government raised the issue concerning destruction of the fingerprint cards because the defense on cross-examination was intending to address that and to undermine the credibility of the investigation concerning the arson incident by showing that critical evidence was destroyed and could not be used by the defense to defend against the suggestion from the government that Mr. Combs was responsible for the arson that occurred.
That is the inference that the court drew -- excuse me -- from the questions that were asked by the government, and it was not until we had the colloquy at sidebar that it became apparent that there may have been a different reason for the line of questioning.
So I don't think that there is a problem of the jury being left with an improper inference or a bell that's been rung and can't be unrung. And as the government points out, to the extent there was any prejudice -- I don't believe that there is any -- that could be cured by striking the testimony and giving an appropriate instruction to the jury.
So, for those reasons, the motion for a mistrial is denied.
As to now, given that, Ms. Shapiro, what do you want me to tell the jury?
MS. SHAPIRO: Yes, your Honor.
We would request that the court instruct the jury that the questions regarding the destruction of the fingerprint cards were improper and the answers given were irrelevant to this case and this defendant and are not to be considered by you.
MS. SLAVIK: Your Honor, the government would consider that prejudicial to the government and an overcorrection of any possible --
THE COURT: What's the difference between what you said, Ms. Slavik, and what Ms. Shapiro just offered?
I think, phrased differently, I think it's the same thing.
MS. SLAVIK: Your Honor, I've been calling the government's question improper is absolutely unwarranted.
MS. SHAPIRO: Your Honor, they were improper, and the court has so found.
MS. SLAVIK: Your Honor, Ms. Shapiro just said that those questions were not improper and her objection was to questions that, in her mind, suggested the inference that Mr. Combs had anything to do with the inference.
I don't think questions simply related to the destruction of the fingerprint cards were improper. Frankly, I don't believe that these should be struck from the record. I think that the best way to correct, to the extent there is a correction required, is to inform the jury that they are not to infer anything from the fact that the fingerprint cards were destroyed.
THE COURT: I think the issue from the defense's perspective is, just saying the last part, that the answers are not to be considered, might leave an impression, although I don't think it would, that the questions were appropriate and were getting to something, but that there was some other legal reason why the answers should not be -- the testimony should not be considered.
And so there needs to be that extra step, but I hear the government's argument. In any event, the motion for a mistrial is denied.
Let's have the witness back.
MS. COMEY: Your Honor, if I may, it would be deeply prejudicial and unfair to tell the jury that the government did something improper. Perhaps your Honor could instead instruct the jury that they are to disregard both the questions and the answers and that they are irrelevant to this case, instead of impugning the government counsel by calling our questions improper in front of the jury, your Honor.
THE COURT: That's fair.
MS. SHAPIRO: Your Honor, I think the problem that I have with not doing that is that --
Look, we don't want a curative instruction that says, You are not to draw any inference, you know, that Mr. Combs had anything to do with the destruction of the fingerprints, obviously, because that would just make things worse, right.
But we need to find a way to subtly get that issue, if the court is really intending, that the instruction is going to cure the unfair prejudice from this line of questions and the implication that they were clearly directed at. I think --
THE COURT: I don't think there was that implication from the questions, as I explained at length, but I'm still giving a curative instruction.
I think the government's point is, if you're suggesting that there was an improper -- that there was improper conduct, that is too far in the other direction. Your point is, you have to at least point out that the questions should not be considered because that's really what you're -- what the objection is directed to, since I sustained the objection to the questions that were asked.
MS. SHAPIRO: So what --
THE COURT: That's the reason why I think the government is making the point, that there is a different way to do it, that would address your concern, which, again, I think it's highly questionable that there is any inference that the jury would draw along those lines.
So I do agree that you wouldn't want to address it specifically. I don't think that's the inference the jury would draw. For present purposes, the point is, the jury shouldn't consider the questions, although we have already instructed them about that. And we will instruct them about it again and they shouldn't consider the answers.
So that's what we'll do.
MS. SHAPIRO: Will the court also include that the answers are irrelevant to this case and this defendant and not to be considered by you?
THE COURT: Yes, I will.
The instruction I'll give is that the jury should disregard --
Sorry. So, I'll instruct the jury that the questions regarding the destruction of the fingerprint cards and the answers given are irrelevant to this case and this defendant and are not to be considered by them.
MS. SHAPIRO: Thank you, your Honor.
THE COURT: All right. Let's have our witness back. Then we will continue with the examination.
Welcome back.
LANCE JIMENEZ: Yes.
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