MS. ESTEVAO: Can we pull up defense exhibit 1409.
THE COURT: Ms. Estevao, if this is a good place, why don't we take our lunch break.
MS. ESTEVAO: This is my last exhibit and -- okay. Ms. Geragos is telling me that we can take a break at this point and return to it.
THE COURT: Thank you, members of the jury, for your attention this morning. We'll come back at 1:10. All rise.
(Continued on next page)
(Jury not present)
THE COURT: All right. 1:00 and no discussions with the government.
CASANDRA VENTURA: Thank you.
(Witness not present)
THE COURT: Ms. Estevao, are you still planning to use exhibit 1373?
MS. ESTEVAO: I'm sorry. I missed that, your Honor.
THE COURT: Exhibit 1373, the one with the very long message that there was a dispute about, but there were going to be redactions to see if it would address the government's objection.
MS. ESTEVAO: Yes, we would still --
THE COURT: Do we have the redaction ready?
MS. GERAGOS: You're talking about 1373, right, your Honor?
THE COURT: Yes, 1373.
MS. GERAGOS: We are still planning on using that. If we can discuss appropriate redactions, we have several to discuss with the government over the break. I also sent the proposed 412 redactions to chambers, copying the government. If those are acceptable to the Court, we would admit those after the break.
THE COURT: If there's no objection, they will be acceptable. If there is an objection, then we'll address the objection.
MS. JOHNSON: Just with respect to the materials that were just submitted, we need to consult with Ms. Ventura's counsel, as well.
THE COURT: Understood.
MS. GERAGOS: I think those are the ones that we conferred about with them. They responded multiple times.
THE COURT: You will work it out. I will be here at 1:00. I could be here for the entirety of the lunch break, but I will be back at 1:00. I really thought that we could have a couple minutes here because I know that everyone needs to take a little break and then come back. What other issues are there? We have 1373, we have the 412 issue, which maybe is not an issue. Any other issues?
MS. JOHNSON: I think we just need to confer with defense on those issues. I just wanted to note two other administrative issues that we anticipate this afternoon. As Ms. Geragos flagged during the government's direct examination, we have additional documents to admit on redirect because we were still conferring on 106 issues, so we plan to do that when redirect occurs. Based on the cross-examination that occurred today, we anticipate marking one additional exhibit, which we'll share with defense as soon as possible.
THE COURT: Ms. Estevao, how are we looking on time? It looks like we resolved most of the evidentiary issues.
MS. ESTEVAO: Yes. Given the exhibits that were admitted on mass, which are consistent with a number of themes that I already covered yesterday and I don't believe we need to go through each of them, I think we are going to end sooner than expected.
THE COURT: Very good. I'll be here at 1:00, so if we need to address anything, we can do it and get the jury back.
(Luncheon recess)
(Continued on next page)
AFTERNOON SESSION 1:00 p.m.
THE COURT: Ms. Geragos, can you round up everybody, or Mr. Steel. Anyone.
MS. GERAGOS: I will do my best.
THE COURT: Ms. Slavik, have we actually worked out anything?
MS. SLAVIK: Yes, your Honor, we actually have.
THE COURT: Ms. Geragos, maybe we can start with 1373.
MS. GERAGOS: In reading it more and more this morning, I think one of Ms. Johnson's concerns with it this morning was that she thought that it was talking about ketamine. And after reading it again, that is not what I understand this text message to mean. I think she is talking about --
THE COURT: I understand. Yes.
MS. GERAGOS: I think that lends more credence to my argument, which is a state of mind. This should come in under state of mind. It's about Kerry, not about ketamine. We still think it's appropriate for this entire message to come in.
MS. JOHNSON: Your Honor, I think we will still have that same issue with the intermixed factual assertions with phrases like, if it's OK, I'd like to reconnect. But the paragraph above seems --
THE COURT: Above what?
MS. JOHNSON: The second full paragraph seems to have a fair amount of like, I've been trying to deal with this case shit. Even if this is Kerry, I don't think that goes to her state of mind. This is also at least six full paragraphs. I am not sure what state of mind this is being offered for.
MS. GERAGOS: Ms. Ventura's.
THE COURT: There are portions of this message that are properly admissible under 803(3). But as the government points out, there are portions of this message that do not go to any of the permissible purposes in that rule. This needs to be redacted if it's going to be admitted into evidence, which -- let me put it this way. If redactions are done, if the only remaining objection was on relevance or any 403 issue, I would overrule that objection. So that being said, if you can redact this message to remove the content that does not come in under 803(3), then it would be admissible. But the entire paragraph-long, multi-paragraph message has material that would not be admissible under that rule, and I'm not hearing any other basis for admission. To give just some example --
MS. GERAGOS: That's what I was just going to ask. If you can just tell me what your Honor is ruling as not state of mind, I will redact it right now and make this very easy.
THE COURT: It's not the Court's job to go through this sentence by sentence, but I'll give you some examples. For instance, in the fifth paragraph, I've been getting my life together, that's an example of something -- that's not going to the declarant's state of mind. It's talking about what she is in fact doing.
MS. GERAGOS: That's fine with us. There are several of the exhibits, frankly, that say that. I think what we would -- understanding what your Honor is saying --
THE COURT: They might be light redactions and can -- you might be able to do it right now.
MS. GERAGOS: I will do it right now, your Honor.
THE COURT: Look through it. You have got to think, is this content that is going to historical events that happened, what the declarant is doing, things of that nature, which would be hearsay and would not fall into an exception, or are they the kinds of messages that there have been no objection to that go to state of mind and feeling and the things that are covered by 803(3). I hear you that most of this is probably admissible under 803(3) and it may take light redactions. As it's stated, it is mixed in with a lot of other material. If it was going to come in in this form, then I would give the jury a limiting instruction as to the purposes for which they should consider this message. You have two routes. You can either redact this maybe lightly to remove the material that is factual in nature and not talking about emotional state of mind, or I can give the jury a limiting instruction before this is introduced.
MS. GERAGOS: Could we do the limiting instruction, your Honor.
THE COURT: We can do a limiting instruction. So there should not be questions, for instance, about when you said, I've been getting my life together, what did you mean by that. Right. Because that would be probing into the actual substance of the statements. If you're actually trying to admit this, you understand --
MS. GERAGOS: I understand. Can I take it the other way and ask your Honor, can there be questions about paragraph -- the paragraph number 2 and paragraph number 3, which I believe -- for example, I want nothing more than for us to be good. It just felt like I can't do things I've ever done before because of my weakness for you.
THE COURT: That's fine.
MS. GERAGOS: In the past you haven't respected me and things haven't changed. Real talk. That's my heart. But at the same time, you are my heart.
THE COURT: That's fine.
MS. GERAGOS: I've been trying to deal with this case shit, which is being really uncool. I think that goes to her testimony about Kerry and this situation that happened with Kerry, who I expect to take the stand very soon. And I'm feeling betrayed in a lot of directions, been trying to handle how I feel about you and all of the hopes I did have for us. Is that fine under --
THE COURT: Let me ask a different question. What is it that you're planning to do with this exhibit? Because as a redacted exhibit I've already told you what my ruling would be so you could get it into evidence. But what are you planning to actually do with this message? It's unclear to me.
MS. GERAGOS: Your Honor, we will just -- to make this much easier and quicker, because we are under a time crunch, we will just submit a redacted version. We don't have to ask about it today. Then we can admit it and it's in evidence.
THE COURT: I'm not telling you what to do. I'm trying to understand.
MS. GERAGOS: I'm just asking if that's a pathway forward so that we can get this witness on and off the stand.
THE COURT: If you choose to do that, this is an acceptable way to proceed. I think the government would agree, yes, Ms. Johnson?
MS. JOHNSON: Yes. Except I do note that it's the government's position that I've been trying to deal with this case shit should be redacted. That's not a state of mind but rather something factual.
THE COURT: Ms. Geragos, it's your case to try, so if you want to ask questions about this message, you're free to do so with a limiting instruction, and you may draw objections from the government as to questions that go to material that is outside of scope bounds. What I'm hearing you say is you're comfortable putting in a redacted version of this message, and Ms. Johnson has indicated that at least one of the things that she believes would not fall into the exception, and I tend to agree with her, is the statement about dealing with this case shit. So you understand that. Those are the two things you can do. You can also use this to refresh the witness' recollection and then just ask her questions, which is another thing that you can do. I'll leave it up to you to decide. Really, I won't leave it up to you. I'll leave it up to Ms. Estevao.
MS. ESTEVAO: I've already indicated I did not need to cross-examine on this.
MS. GERAGOS: Has the Court had an opportunity to look at the 412 redactions?
THE COURT: They are agreed upon, right?
MS. GERAGOS: They are agreed upon with the government, yes.
MS. SLAVIK: Your Honor, just to add to the 412 pile, the government, defense, and counsel for Ms. Ventura have conferred and defense proposed a redaction to 1307. I believe the witness was shown the first four pages of that. The redactions are acceptable to all parties. I think that has been admitted and we will just make sure --
MS. GERAGOS: It has not been. We will offer the redacted versions when the witness takes the stand.
THE COURT: Understood.
MS. GERAGOS: I'm sorry.
THE COURT: 1307 was admitted in full. The first four pages were shown to the jury.
MS. GERAGOS: Yes.
THE COURT: So there is nothing to be done there. The version of 1307 that is in evidence will have the redaction that the parties have agreed on. That's out of the way. Then we have the other exhibits. I'm hearing no objection from anyone. So since there is no objection, then those can come in in the redacted form that the parties have agreed on.
MS. GERAGOS: OK.
THE COURT: Anything further?
MS. GERAGOS: We just have one more.
MS. SLAVIK: One more. That's Defense Exhibit 1016. The version that was sent to the government is 12 pages. Defense just handed over a one-page version. The government would insist on the entire 12 pages coming in, if any of it is to come in.
MS. GERAGOS: That's fine with us, your Honor. We were just trying to shorten things. We will do the full exhibit.
MS. SLAVIK: There will be no objection.
THE COURT: We are clearing out objections.
MS. GERAGOS: We have the other one.
THE COURT: Ms. Estevao, I'm sorry. You weren't here when we started. I should have been directing the questions to you.
MS. ESTEVAO: That's fine. Ms. Geragos is the master of evidence around here.
THE COURT: Again, your choice how you use 1373. I laid out some options. But it is up to you how to do it. My understanding is, based on what we have discussed, you're electing to do some redactions and, assuming there is no objection on hearsay grounds, that can be put into evidence.
MS. ESTEVAO: Wonderful. Thank you. Just as an update, I'm expecting to finish much sooner than I earlier indicated, just so the government knows that they should plan to redirect probably before the next break.
THE COURT: Good. Then we will have our next witness.
MS. GERAGOS: The only thing we wanted to flag for your Honor is, I don't expect that we will go through, given the time constraints, and we heard your Honor loud and clear yesterday, the videos with Ms. Ventura, the BX series. But we would ask that we be allowed instead to do that through the government's video expert that they are going to call, just so that we could speed things up to make sure she is off the stand today. We would just propose that we be able to do that through the expert who enhanced them.
THE COURT: Is there an objection to that?
MS. JOHNSON: No, I don't think so. We can certainly play them through him because he modified the videos to enhance their quality of audio and visual quality. But he certainly just can't comment on anything that's occurring in the videos because he's not a participant.
THE COURT: I am not hearing any objection or disagreement. So, again --
MS. GERAGOS: I'm just putting it on the record.
THE COURT: Each side is fully allowed to try the case the way they are going to try the case.
MS. GERAGOS: Absolutely. The only reason I put it on the record is because Mr. Agnifilo had said that the cross of him would be 10 minutes. It will be a little bit longer now.
THE COURT: Understood.
MR. AGNIFILO: I appreciate that.
THE COURT: That is fine.
MS. GERAGOS: We have one last exhibit, and then I think --
MS. SLAVIK: I think everything else is resolved.
MR. AGNIFILO: Can I speak with the government for two minutes? One minute.
MS. SLAVIK: Your Honor, I think we can address issues.
THE COURT: Hold on, everybody. What's the remaining objection?
MS. SLAVIK: There is disagreement about Government Exhibit B-426. We can pull that up on the screen, if that's helpful. Can you go to page 2. Maybe put 2 and 3 up together. Your Honor, this is a May 2017 exchange between Ms. Ventura and the defendant. It's clearly a very short exchange. I think the nature of the defense objection is with respect to the first message.
MS. GERAGOS: That's correct, under 403. We have a 403 objection to this message, to the first part of the message.
THE COURT: This is the message, I want to be with you, etc.?
MS. GERAGOS: Correct.
THE COURT: Which part of the message is there an objection to?
MS. GERAGOS: The problem that we have with it is, I can't get pregnant is the problem we have with that portion of the message. It implies -- I would feel comfortable if we did this at a sealed sidebar, your Honor, I think to protect --
THE COURT: This is going to come up in redirect, if ever?
MS. GERAGOS: This was an exhibit that we had agreed we would keep conferring about. So to come up -- we agreed they could put it up in redirect even though it wouldn't be -- it would be beyond the scope, probably, but that they could --
THE COURT: First of all, there is a side conversation that's happening while we are trying to resolve this. Second, because this is happening in real time and hasn't been discussed in advance, there is a conversation happening while we are trying to resolve this. Please, we have to have one person speaking at a given time. Now, Ms. Geragos, is this coming in in your cross-examination?
MS. GERAGOS: No.
MS. SLAVIK: Your Honor, the exhibit is -- we intend to move for its admission in redirect. To be clear, we do not intend to show this message to the witness. We are simply seeking its admission.
THE COURT: Is there an objection to that message going into evidence so that it can be reviewed by the jury when they are deliberating?
MS. GERAGOS: Yes.
THE COURT: What is the basis for admission of the message from Ms. Ventura?
MS. SLAVIK: Prior consistent statement, your Honor.
THE COURT: In what way has that issue been -- has Ms. Ventura's credibility as to the portion of the message at issue been attacked, directly or indirectly?
MS. SLAVIK: Your Honor, the cross-examination, particularly yesterday, focused extensively on Ms. Ventura's interest and desire to be more a part of the defendant's life, her consternation and regret at not spending time with him and his family at Christmas, her interest in being more serious in their relationship, her interest in being monogamous with the defendant, things of this nature. And I think this message shows that she is thinking about the future but has this very specific concern about the physical abuse and the violence and how that would affect her future with the defendant.
MS. GERAGOS: I really want to respond to that point, but I ask that I be able to do it the way we have been handling these specific types of issues thus far, under a protective order at a sealed sidebar, to explain to your Honor why I think that this is a 403 objection and should have been briefed when we were briefing that medical issue.
THE COURT: Just to be clear, the objection is to the entire message, everything after, I want to be with you. Right?
MS. GERAGOS: Yes. We understand that drag down the hall would be admissible.
THE COURT: I'm not understanding the prior consistent statement issue. I am not understanding how this comes into evidence. One last word on this, Ms. Slavik, and then we can pick it up. It's not going to come in during cross-examination. You only have an objection to five words of this. As to that issue, I have not heard anything relating to that topic in this cross-examination or in opening statements.
MS. SLAVIK: Your Honor, for the reasons I just mentioned, our position is that it is a prior consistent statement. But, in addition, I think that this is a state of mind. This statement gets directly at what she is thinking and how she is feeling. And for the reasons that several messages throughout the course of direct and cross-examination have come in for state of mind, I think that this can come in under those grounds as well.
THE COURT: That is not state of mind. The objection is sustained as to this message, but I don't know how -- the objection is sustained as to that portion of the message. So if you want to introduce it, you're going to have to redact this message.
MS. GERAGOS: I think we can solve the problem, your Honor, by redacting pregnant and just redacting that. It still gets what the government needs.
MS. SLAVIK: We are fine with that, your Honor.
THE COURT: That is resolved. Let's have Ms. Ventura back.
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THE COURT: Welcome back.
CASANDRA VENTURA: Thank you.
(Jury present)
THE COURT: Ms. Ventura, you understand you're still under oath?
CASANDRA VENTURA: Yes.
THE COURT: Ms. Estevao.
BY MS. ESTEVAO: