CR 13-991 IN THE ARKANSAS SUPREME COURT DANIEL PEDRAZA V. APPELLANT CR 13-991 STATE OF ARKANSAS APPELLEE ___________________________ APPEAL FROM CIRCUIT COURT OF DREW COUNTY HON. BYNUM GIBSON, Circuit Judge ___________________________ ABSTRACT BOUND SEPARATELY UNDER AUTHORITY OF RULE 4-2(a)(5)(C) OF THE RULES OF THE SUPREME COURT AND COURT OF APPEALS ___________________________ JEFF ROSENZWEIG Ark. Bar No. 77115 300 Spring St. Suite 310 Little Rock, AR 72201 (501) 372-5247 jrosenzweig@att.net Attorney for Appellant TABLE OF CONTENTS OF ABSTRACT PRETRIAL HEARING, APRIL 8, 2013 . . . . . . . . . . . . . . . . . ABSTRACT 1 PRETRIAL HEARING, MAY 21, 2013. . . . . . . . . . . . . . . . ABSTRACT 44 ANTOLIN M. LLORENTE, PhD.. . . . . . . . . . . . . . . . ABSTRACT 49 DIRECT EXAMINATION BY MR. ROSENZWEIG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 49 CROSS-EXAMINATION BY MR. DEEN. . . ABSTRACT 117 REDIRECT EXAMINATION BY MR. ROSENZWEIG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 145 DR. JOAO RAMOS. . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 150 DIRECT EXAMINATION BY MR. DEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 150 CROSS-EXAMINATION BY MR. ROSENZWEIG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 170 FINDINGS AND COMMENTS BY THE COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 194 PRETRIAL HEARING, MAY 28, 2013. . . . . . . . . . . . . . . ABSTRACT 211 VIDEO DEPOSITION OF MELISSA SAPP.. . . . . . ABSTRACT 218 DIRECT EXAMINATION BY MR. MORLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 218 CROSS-EXAMINATION BY MR. DEEN. . . ABSTRACT 222 INVOCATION OF RECUSAL/DISQUALIFICATION MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 250 JURY SELECTION PROCEEDINGS, MAY 30 2013. . . . ABSTRACT 251 DISCUSSION IN CHAMBERS.. . . . . . . . . . . . . . . . ABSTRACT 251 ENTIRE VENIRE IN OPEN COURT. . . . . . . . . . . . ABSTRACT 260 FIRST PANEL OF TWO IN CHAMBERS. . . . . . . . ABSTRACT 276 COURT ANNOUNCES DECISION TO DO PANELS OF SIX IN COURTROOM. . . . . . . . . . . . . . . . . ABSTRACT 315 COURT ANNOUNCES REQUIREMENT FOR ONLY WRITTEN QUESTIONS ON THE DEATH PENALTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 316 VOIR DIRE OF FIRST PANEL OF SIX (GROUP 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 320 COURT REFUSES TO PERMIT LEAD COUNSEL ROSENZWEIG TO APPROACH. . . . . ABSTRACT 330 i COURT REAFFIRMS PROHIBITION ON COUNSEL ASKING DEATH PENALTY QUESTIONS. . . . ABSTRACT 348 OBJECTION TO DEFENSE HANDICAPS IN MAKING A RECORD AND MAKING CHALLENGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 360 COURT REAFFIRMS ITS HOLDING THAT ONLY IT WILL ASK DEATH PENALTY QUESTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 372 COURT RESTRICTS EACH SIDE TO THREE-TO-FOUR -TO FIVE MINUTES PER PANEL OF SIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 373 VOIR DIRE OF SECOND PANEL OF SIX (GROUP 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 373 COURT THREATENS TO REMOVE ROSENZWEIG FROM COURTROOM. . . . . . . . . . . . . . . . . . . ABSTRACT 398 COURT ANNOUNCES IT WILL ASK ALL QUESTIONS ON ELEMENTS OF THE OFFENSE. . . . . ABSTRACT 399 VOIR DIRE OF THIRD PANEL OF SIX (GROUP 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 400 VOIR DIRE OF FOURTH PANEL OF SIX (GROUP 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 419 COURT THREATENS TO REMOVE ROSENZWEIG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 425 COURT REFUSES TO GIVE 30 SECONDS FOR DEFENSE CONSULTATION. . . . . . . . . . . . . . . . . ABSTRACT 436 COURT CRITICIZES ROSENZWEIG FOR OBTAINING INPUT FROM OTHER MEMBERS OF DEFENSE TEAM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 438 COURT REFUSES TO ENTERTAIN MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 440 VOIR DIRE OF FIRST PANEL OF EIGHT (GROUP 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 441 RENEWAL OF RECUSAL MOTION DUE TO INABILITY TO VOIR DIRE. . . . . . . . . . . . . . . . . . . . . . ABSTRACT 464 VOIR DIRE OF SECOND PANEL OF EIGHT (GROUP 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 465 ii VOIR DIRE OF THIRD PANEL OF EIGHT (GROUP 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 480 COURT CONCEDES IT IS SOMETIMES HARD TO HEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 501 COURT RESTRICTS DEFENSE TEAM CONSULTATION TO ONE MINUTE. . . . . . . . . . . . . . . . . . . . ABSTRACT 502 VOIR DIRE OF PANEL OF PROSPECTIVE ALTERNATE JURORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 508 PROCEEDINGS MAY 31, 2013. . . . . . . . . . . . . . . . . . . . . ABSTRACT 542 PLEA OF GUILTY, JUNE 1, 2013. . . . . . . . . . . . . . . . . . . ABSTRACT 557 SENTENCING TRIAL, JUNE 3, 2013. . . . . . . . . . . . . . . . ABSTRACT 574 DENIAL OF ADDITIONAL JURY QUESTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 574 DISCUSSION OF VARIOUS ISSUES. . . . . . . . . . . ABSTRACT 577 SWEARING OF THE JURY. . . . . . . . . . . . . . . . . . . ABSTRACT 588 PROSECUTION OPENING STATEMENT. . . . . . . ABSTRACT 590 OPENING STATEMENT BY DEFENSE. . . . . . . . . ABSTRACT 598 VICTORIA PEDRAZA. . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 603 DIRECT EXAMINATION BY MR. DEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 603 CROSS-EXAMINATION BY MR. ROSENZWEIG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 623 BRENDA EARNEST. . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 631 DIRECT EXAMINATION BY MR. PURYEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 631 CROSS-EXAMINATION BY MR. LEONARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 634 CELITA BROOKS. . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 634 DIRECT EXAMINATION BY MR. PURYEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 635 CAROLYN STUARD. . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 636 DIRECT EXAMINATION BY MR. DEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 636 ROBERT JACOB. . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 640 DIRECT EXAMINATION BY MR. PURYEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 640 CLAYTON MOSS .. . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 641 iii DIRECT EXAMINATION BY MR. DEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 641 CROSS-EXAMINATION BY MR. LEONARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 646 REDIRECT EXAMINATION BY MR. DEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 649 BRENDA WALLACE .. . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 650 DIRECT EXAMINATION BY MR. PURYEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 650 STEPHEN ERICKSON, M.D. .. . . . . . . . . . . . . . . . . ABSTRACT 651 DIRECT EXAMINATION BY MR. PURYEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 651 CROSS-EXAMINATION BY MR. ROSENZWEIG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 665 EXAMINATION BY THE COURT. . . . . . . . ABSTRACT 669 RECROSS-EXAMINATION BY MR. ROSENZWEIG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 670 WILLIAM J. DYE. . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 671 DIRECT EXAMINATION BY MR. MORLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 671 MICHAEL ARMOUR. . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 681 DIRECT EXAMINATION BY MR. MORLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 681 CROSS-EXAMINATION BY MR. DEEN. . . ABSTRACT 683 LEE NIMMER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 684 DIRECT EXAMINATION BY MR. MORLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 684 CROSS-EXAMINATION BY MR. DEEN. . . ABSTRACT 686 VICTORIA PEDRAZA. . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 691 EXAMINATION BY MR. ROSENZWEIG. . ABSTRACT 691 ETHAN JOHNSON. . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 698 DIRECT EXAMINATION BY MR. LEONARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 698 CROSS-EXAMINATION BY MR. DEEN. . . ABSTRACT 699 LUIS MONDRAGON. . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 699 DIRECT EXAMINATION BY MR. MORLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 699 iv VIC SUBB. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 700 DIRECT EXAMINATION BY MR. MORLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 700 MICHAEL ARMOUR. . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 703 DIRECT EXAMINATION BY MR. MORLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 703 CROSS-EXAMINATION BY MR. DEEN. . . ABSTRACT 704 JOANA MONDRAGON. . . . . . . . . . . . . . . . . . . . . . ABSTRACT 705 DIRECT EXAMINATION BY MR. MORLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 705 CROSS-EXAMINATION BY MR. DEEN. . . ABSTRACT 714 LILIANA FRISBY. . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 715 DIRECT EXAMINATION BY MR. MORLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 715 JURY INSTRUCTIONS.. . . . . . . . . . . . . . . . . . . . . . ABSTRACT 722 CLOSING ARGUMENT BY PROSECUTING ATTORNEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 726 CLOSING ARGUMENT BY DEFENSE COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 738 FURTHER CLOSING ARGUMENT BY PROSECUTING ATTORNEY.. . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 747 VERDICT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 751 FIRST APPEARANCE, MARCH 2, 2012.. . . . . . . . . . . . . ABSTRACT 755 HEARING, APRIL 2, 2012. . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 764 HEARING, MAY 7, 2012.. . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 778 HEARING, JUNE 11, 2012. . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 791 HEARING, SEPTEMBER 10, 2012.. . . . . . . . . . . . . . . . . . ABSTRACT 867 TYLER GREEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT 924 EXAMINATION BY THE COURT. . . . . . . . ABSTRACT 924 HEARING, OCTOBER 1, 2012. . . . . . . . . . . . . . . . . . . . . . ABSTRACT 935 v PRETRIAL HEARING, APRIL 8, 2013 THE COURT: We’re on the record in Case No.2012-37, State vs. Daniel Pedraza. Let’s get the appearances beginning with the state. MR. DEEN: Thomas Deen for the state. MR. PURYEAR: Crews Puryear for the state. MR. BEST: Andrew Best for the state. MR. ROSENZWEIG: Jeff Rosenzweig for Daniel Pedraza. MR. MORLEDGE: Birc Morledge for Daniel Pedraza. MR. LEONARD: Tim Leonard. (T 933) THE COURT: And let the record reflect that Mr. Pedraza is also here. It seems like I saw counsel from –- my eyes aren’t that good –- that also represent Victoria Pedraza here. Why don’t –- I know you-all still have a case pending on the sentencing phase, why don’t you-all come inside the rail so you can hear better. MR. PARRISH: For the record, Your Honor, Gregg Parrish. I represent Victoria Pedraza. MR. TOBLER: Joe Tobler for Victoria Pedraza. THE COURT: Very good. One motion that I have received since I received the mandate -- and I want to get right to that -- and that is a motion to discover, a defense motion, to discover certain mental health records apparently accumulated –ABSTRACT 1 mental health records belonging to Victoria Pedraza –- accumulated over a period of time; and the motion speaks for itself. The state may have filed a response. You did? MR. DEEN: Yes, sir. THE COURT: Let’s see if I have it. (T 934) MR. DEEN: I have an extra copy if you don’t. THE COURT: Is it in this stack of stuff? MRS. ROSEGRANT: No, sir. It’s right there. THE COURT: Was it this motion where you made several –MR. DEEN: No, sir. THE COURT: I didn’t think so. MR. DEEN: Here’s a copy. THE COURT: The Court notes that Mrs. Pedraza is not present. The gist of the motion is that the defense believes that certain mental health records have been generated as a result of mental health treatment for an unspecified condition and asserts Brady as a basis with the anticipation that certain matters contained in those records would be exculpatory to this defendanTth.e –MR. PARRISH: Your Honor, if I may. THE COURT: One second –- Let me –- I’m going to read Paragraph 5 again ABSTRACT 2 of the defendant’s motion. Well, at this point, if you don’t have them, have you seen them? MR. DEEN: No, sir, Your Honor, not aware of their existence and I still don’t know that they exist. I assume they’ll have to be required to show they exist. (T 935) THE COURT: Before I hear from the defendant on the motion, counsel for Mrs. Pedraza in her absence may certainly assert any claim that she may have, privileged or otherwise. Come on up if you’d like to, counsel. MR. PARRISH: Your Honor, I’m not prepared at this moment to argue the motion because I received a copy via e-mail on my phone this weekend from Mr. Rosenzweig – I received a file-marked copy in the last thirty to forty-five minutes. I received the state’s response. I can tell the Court that I’ll have a response filed to it within the next 72 hours. We will be objecting to the release of those records. As this Court is aware, she is still set for a sentencing; and not knowing what may -- if those records exist and what are in those records -- to divulge them to the state may be detrimental to her case at some future point as well. But in this case, I agree with the state, I don’t think they are discoverable by the defense; and we’ll file our response and ask for a hearing on that. THE COURT: So you believe that it’s premature because you haven’t had an opportunity to file a response? (T 936) ABSTRACT 3 MR. PARRISH: That’s correct, Your Honor. I’ll have one done forthwith, I’ve just got to get back to the office and do my research. THE COURT: Well, I agree. And by all means, certainly discuss the matter with Mrs. Pedraza. Sometimes things can be mooted if the person says, “I don’t care.” You may not anticipate that answer from your client, but I don’t assume anything. I don’t assume that she has an objection. If she does then I should hear it. And until that time –- And I’ll give you until Friday and the –- Certainly, as her counsel, you have a right to request from her that you take a look at them; and after you look at them, you may say this is a lot to do over nothing. MR. PARRISH: May very well, Your Honor. THE COURT: The Court has made every attempt –- And to give the example: Mrs. Pedraza gave a deposition, which she was not obliged to do, nor the Court obliged to order it, nor –- it’s strictly discretionary -- and Mr. Deen rolled over on it, and you filed an objection. Quite frankly, you were correct in your legal objection. I didn’t have the authority, in a sense, but with all the waivers that were going on –- and you didn’t fight the thing hard –- since this was a capital case, since a great deal of the case depended upon her testimony, I thought it would be fairer if the defense had an opportunity to examine her. But I was ever mindful of the fact that you were probably dead on about the Court’s authority to –- (T 937) ABSTRACT 4 MR. PARRISH: And, Your Honor, on furtherance on that, Your Honor, I’ve discussed that with Mr. Deen in his office. They said they had no objection, they desired to do so; and in the spirit of her cooperation, we agreed to cooperate and that took place over a period of several hours. THE COURT: If I were defending Mrs. Pedraza, I would certainly want to look at everything; and I can certainly see that every stone should be unturned given the necessity in a sense of the –- given the plea bargain that has been reached, and given their responsibility to challenge her testimony with any relevant stuff. But if I did order its production, it would be one of the few cases in which my preliminary feeling is is that I would look at the records, if any, in chambers, in camera -- I would rarely do that without counsel -- and at least make some preliminary determination because unlike with a party, both the availability and the use of those records with a witness is more limited than it is (inaudible) and it’d be easier for the Court to make that determination. But, in any event, just like with the deposition, I always lean toward discovery and I will rule on the defense’s motion. One thing –- Thank you. You have until Friday. (T 938) Mr. Deen, you wanted some threshold showing by the defense that there are such records –MR. DEEN: And then the time frame in which they were created, that they ABSTRACT 5 were in fact created while she was in custody (talking over) -THE COURT: Mr. Rosenzweig, you’re recognized to make your threshold showing. MR. ROSENZWEIG: I’ll show it to Mr. Deen. I wanted to show it to Mr. Deen, first, Your Honor. For the record, we came into possession last week from a person who had received correspondence for Mrs. Victoria Pedraza in which she referred to –- and I’ll quote the –MR. DEEN: Your Honor, if I may, (inaudible) showing me an exhibit (inaudible) witness to review –MR. ROSENZWEIG: No, I don’t have a witness. I was simply –- The Court inquired whether I had a basis for making the claim. THE COURT: Right. MR. ROSENZWEIG: That’s my basis. (T 939) THE COURT: What I’m sure Mr. Deen had in mind, what certainly this Court is used to seeing, and the only thing I know to ask for in a threshold showing, is either a document that is self-authenticating, one, that doesn’t need a witness; or a witness –- But, you know, we can’t let lawyers testify. MR. ROSENZWEIG: I understand, Your Honor. Your Honor, again, if I may ABSTRACT 6 respond, we came into this information Friday afternoon. It was too late to subpoena anyone. I understand Mrs. Pedraza is in town and is available to be brought and I would ask that she be brought over. THE COURT: Well, what I’m going to do is –MR. ROSENZWEIG: She’s in custody. THE COURT: I will have a hearing on this or you-all can submit affidavits. You need to make a threshold showing. If you’re not prepared today –-you just gave him the information on Friday -- I will give you until the end of the week to make your threshold showing by affidavit. And if I need to go further than that and Mr. Deen needs an opportunity to cross-examine whoever the affiant is, both as to the time frame in which these records may have been generated, whether or not -- their possible relevancy. In other words, what reason do you have to believe that anything in them would be exculpatory, and not only exculpatory, but would –- I use that in the broad sense –- would allow you a better opportunity to challenge the truth and veracity of her –- (T 940) MR. ROSENZWEIG: Should I respond now or wait til later? THE COURT: I’d wait til I had the proof –MR. ROSENZWEIG: Your Honor –THE COURT: –- and you have until Friday to get it. ABSTRACT 7 MR. ROSENZWEIG: Your Honor, with regard to the threshold showing, Mrs. Pedraza was the author of the letter of which I have a copy; and we sought from the recipient of that letter and that’s who we got it from. And Mrs. Pedraza is here. If the Court will order the bailiff to bring her over, we can make the threshold showing today, if you wish. THE COURT: Threshold showing with respect to what, that she –MR. ROSENZWEIG: The existence of the records. As I say, we have a letter which refers to them, refers to the mental health issues; and we can put her on the stand and ask, “Did you write this letter? Are the statements in the letter true?” and follow it on from there, and get that done right now. (T 941) THE COURT: If that’s the limited purpose of calling her then, certainly, I’ll let you visit with her attorney and Mr. Deen at the conclusion of this hearing; and they may very well agree that that is her letter and come in to evidence. But I wouldn’t allow her to be examined regarding any of her conversations with a mental health provider –MR. ROSENZWEIG: I –THE COURT: –- without them having an opportunity to consult with her. MR. ROSENZWEIG: Of course they have –- Should have and do have a right to assert whatever privileges and litigate that issue. There’s no question about ABSTRACT 8 that, Your Honor. If I were in their position, I would probably assert the same privilege. You had asked for whether –THE COURT: Well, then it must be a good defense if you would assert it yourself. In any event, what I simply suggest is is that you visit with counsel when we take a recess, or following this hearing. I’m going to give you-all until Friday to work out a record on this without any testimony from Mrs. Pedraza. If there’s a difference of opinion as to whether or not the record can be developed or the threshold showing attempted without her then I’ll make a decision on her testimony. Very good. But I’m going to give you-all until Friday. I’m not going to rush into it. Thank you. (T 942) All right, are there –- What I would like to do just to move this along -- All right, the next motion –- I’m just going to tell you the ones that I have and then if I’ve missed any, please bring them to my attention. Today, state’s motion for forensic evaluation. The motion simply states that should Daniel Pedraza be convicted of capital murder, his counsel has indicated that it’s anticipated his alleged mental illness and diminished mental capacity will be asserted as a mitigating circumstance. Particular code provision authorizes a mental exam if there is reason to believe the mental disease or defect will or has become an issue; and further stating that it’s not unreasonable for the Court to order the exam in ABSTRACT 9 anticipation of that being an issue. That while Pedraza won’t take this strategy in the guilt phase, the state believes he’ll do so in the penalty phase and so the state wants its own forensic exam. Do you wish to make a response now or do you –- If so –MR. ROSENZWEIG: Maybe I can give you something of a response. (T 943) THE COURT: Well, my point is, I want to get it all at one time. Do you want time to file a written response? MR. ROSENZWEIG: Yes, sir. And if I could give the Court just a little bit of response. THE COURT: What I don’t want to do is get part of the response today and part of it later. MR. ROSENZWEIG: You do not want that? THE COURT: I do not want it in that form. I want it in writing. MR. ROSENZWEIG: Okay. THE COURT: And I’ll give you until Friday. MR. ROSENZWEIG: That’ll be fine, Your Honor. THE COURT: Good deal. That takes care of that one. You said there were three motions? ABSTRACT 10 MR. ROSENZWEIG: Your Honor, there were –- This may assist the Court a little bit: back when we were here last October -- September and October -- there were a number of motions. THE COURT: I have a list of those. MR. ROSENZWEIG: Yes. THE COURT: But Mrs. Rosegrant said she had three motions. (T 944) MRS. ROSEGRANT: That the state filed –-Excuse me, one motion. THE COURT: Okay, I’ve disposed of the motions that were just filed. Very good. I’ve got a list of the others. If you’ll have a seat, I’m going to go down my own list. I was going over it and had made my notes on it. I thought I had put it in this little book here. They were the motions that were filed initially; and until the case went to supreme court, it had to do with the constitutionality of the death penalty, sequestration of jurors, et cetera, et cetera, and what the –- She’s going to go get that list off my desk, but if you would like to come to the podium, Mr. Rosenzweig, and bring the Court’s attention to any of those motions at this time, the Court will be happy to rule upon it, if it can. MR. ROSENZWEIG: Your Honor, if the Court recalls back in September and October -- I don’t remember exactly which session -- you indicated that you understood the motions to state our position, et cetera, and would rule on them in ABSTRACT 11 writing and, of course, then the supreme court litigation intervened. And, obviously, we have not obtained a ruling and, obviously, we need a ruling. I’m prepared to discuss any of them that you feel need further discussion. I don’t want to belabor you if you feel you -– (T 945) THE COURT: I have enough in the motions themselves and the state’s response –- The state –- I’m looking at the response that the state has filed with respect to the death qualification of jurors, so on and so forth. The motions that stood out –- and I can either rule upon them -– Thank you. Here’s my list. I don’t need any further argument on them. If you’ll have a seat, I’m going to tell you –- I’m going to go over my list for the record. It will save me from entering a written order since it’s done on the record. The first motion that the defense filed was a motion to prohibit introduction of victim impact testimony and to declare unconstitutional statute purporting to permit it. The Court is denying that motion because in Arkansas that type of testimony, within limits, is permitted. And I will certainly before, and if it becomes necessary to consider victim impact evidence of any type, I would certainly require the state to disclose it to the defense and the Court would preview it. (T 946) Motion to declare –- So at this time, it’s premature. The motion to declare unconstitutional the formulation of the capital murder under which Pedraza is charged, that is denied. The ABSTRACT 12 motion to hold the sentencing provisions of the death penalty statute unconstitutional, that is also denied. Motion for individual sequestration on voir dire, granted to the extent that this Court intends to take no more than three jurors at a time. The only –I picked this up –- I think the only state that requires by law, simply one at a time, Pennsylvania or one of those states, otherwise, it’s discretionary with the Court. I have voir dired larger panels before. In this case, I don’t want to go with any more than two, and I may drop -- with any more than three –- and I may drop down to two. And I’ll go over with you about jury selection here in a minute. Motion for disclosure of specific impeachment and exculpatory information. The state specifically –- Well, the state simply said –- The state is under an obligation, as it is aware of, to always provide exculpatory evidence. That’s a continuing obligation and it is not something that necessarily requires an order from this Court; and if I found that the state did not, consequences would be the same whether or not I had entered an order on that or not. (T 947) Motion for discovery, inspection, examination, testing of physical evidence. I believe that everything has been turned over. In fact, this Court entered its own order with respect to turning over the notes of any of the forensic experts that the state used from the crime lab. Does the defense take the position here today that they do not have any of those –- any and all of those notes? ABSTRACT 13 MR. ROSENZWEIG: Your Honor, we believe that we have everything. I have no reason to think that we do not. THE COURT: Moving to the next motion. Motion to declare the work of experts protected. Depends upon if you want to use them. The normal practice is is that when you use, or contact an expert, and ask for the opinion, you normally –- I always did –- said, Simply tell me orally what you found. Because once it’s put in writing, normally, and furnished to counsel, oftentimes, it is discoverable, so I waited to hear to see if I got what I wanted to hear. And with respect to experts, let me ask you now: Do you intend to call at the trial of this matter, at either one phase or two phases, any witnesses that you wish to identify as having specialized knowledge, skill, or training in the subject matter? (T 948) MR. ROSENZWEIG: That’s the decision that we were going to report to you by Friday, Your Honor. THE COURT: Very well. I’ll give you until Friday to do it because the state has to know; the Court has to know; and the state’s entitled to, you know, put on contrary evidence if it wants to and an opportunity to do so. You have until Friday –- Make a note of that, Mrs. Rosegrant. I’ll enter an order saying that defense has until Friday, both on Mrs. –MR. ROSENZWEIG: Your Honor, if I could clarify something, I assume ABSTRACT 14 when we say Friday, we’re talking about the close of business Friday -– THE COURT: Well –MR. ROSENZWEIG: –- and not some earlier time. THE COURT: –- if you have that information tomorrow, or any time in between, I wouldn’t wait until the deadline. MR. ROSENZWEIG: No, sir, I’m not -- I just wanted to make sure that –THE COURT: Close of business -- “Friday” means “Friday.” MR. ROSENZWEIG: Okay. THE COURT: Motion for severance of the defendants. Well, in a de facto sense that has already been granted. (T 949) Motion to require investigative officers to retain rough notes. Is that any longer an issue? Do you have any and all of, at least what the state tells you, are the rough notes? MR. ROSENZWEIG: Your Honor, again, we believe we have those. THE COURT: That’s all I need to know. If you come up with different information later then that’s a matter for the Court to discuss. I’m not sure what formal notice of intent to cross-examine is. That was just simply my shorthand notes on my cheat sheet of what that is. MR. ROSENZWEIG: Your Honor, I believe that’s the crime lab people that ABSTRACT 15 –- I don’t think we need to make this under (inaudible) and related cases, but just as a matter of (talking over) –THE COURT: I understand. Well, you know, I doubt that there will be any problem with that. Motion to prohibit prosecution from informing witnesses to what other witnesses may have said. Well, I mean, once the trial begins, the rule will be on; and I instruct the defense also to not convey to one witness what another witness has said, so that’s taken care of by the invocation of the rule. MR. ROSENZWEIG: Your Honor, may I add something to this? (T 950) THE COURT: Sure. MR. ROSENZWEIG: Okay, Your Honor, the second part of the title includes what another witness may have said or preparing the witnesses together. There’s a case about thirty years ago, Cook vs. State, that involved essentially a practice trial with all the witnesses hearing each other a couple of days before the real trial and –THE COURT: I’ve never seen Mr. Deen go to that trouble and I don’t anticipate that he will here, but –MR. ROSENZWEIG: We would ask that that practice be prohibited in case he decided to go through that trouble. THE COURT: I would certainly hope that Mr. Deen in preparation of this ABSTRACT 16 case, and you also, will go over with each witness beforehand what you expect to prove and what the other witnesses have said, prepare them for cross-examination, and tell them what, if any, conflicts exist between their testimony and what you expect to be the testimony of any other. All of that is fair and –- So that’s that. (T 951) MR. DEEN: Well, let me say, I mean, I do sometimes meet with the investigators together –THE COURT: Well, certainly. MR. DEEN: –- and sometimes also with family in preparation for victim impact together, but I don’t conduct any sort of a mock proceeding with everybody listening in on what the others may say. THE COURT: It certainly is proper, and I encouraged one lawyer I’m particularly close to, on a big case to put his client on the stand and film it and let another lawyer beat him up and then critique because everybody’s nervous on the stand. And in your big cases, you’re derelict if you don’t go through a mock proceeding at least with your client and hire outside counsel to come in and shred them if they can and then play it back to them. It helps them with their poise. And whatever you-all need to do in that direction is fine. Motion to forbid extrajudicial exclusion. Any juror –- That’s my abbreviated ABSTRACT 17 deal. Basically, are you getting to the fact that the Court should not excuse jurors without checking –MR. ROSENZWEIG: Without us having an opportunity to be heard on it, yes. (T 952) THE COURT: I’ve discussed this with the clerk this morning and I told her that I was not going to church between now and this trial because I’ve been hit up already several times at church to be excused, not because of this trial -- because no one knows about it or anticipates it -- but simply out of the routine of always getting hit up to get off -- And I simply told them, I’ll have to take it up with lawyers that are involved in the case that are before us. To that end, today, Mr. Rosenzweig and Mr. Deen, I’ve had the clerk already prepare an extra copy of all the written excuses. I’m going to share them with you. You may take them home. I will impose a default rule. If I do not hear from you by Friday on those that we just accumulated, I will in my discretion probably excuse those jurors. I’ve made it clear to the clerk and to my case coordinator, if they call, if the reason is a medical excuse then I want a doctor’s statement attached to it. The only ones that I will excuse without consulting you-all are those that are legally -- I legally can excuse -- that is not a resident. Sometimes you get driver’s license –- The other is if they’ve served within the last two years. Otherwise, I wouldn’t excuse one juror in a capital case or any case of any ABSTRACT 18 consequence, without first letting the lawyers take a look at the list, nor would I indicate to the jury which, if any, lawyer objected to their being excused, so let’s move on. You will pick up your list. (To the clerk) In fact, you have them here? A copy of the excuses? (T 953) THE CLERK: I can get that. Should I go down and tell the girls to finish them? THE COURT: Go ahead. Tell them to finish copying them. I want them to have them. Now, this is an ongoing process. I will also get some in between now and trial date, what I will do is, I will mail you, both, the excuses that I get in. If I don’t hear anything within, say, three days then I’ll assume you have no objection. It will give you a chance to look over the documentation with the excuses and sign off on them. And then I can let that juror know. We get (inaudible) of phone calls of irate people who say, Don’t you understand, my mother’s in a nursing home? Well, we’ll settle that. But we will only submit to you those in writing. Those jurors that were summoned that the –- Or that were sent a summons but came back with no address, no good address or driver’s license, they’ve already been taken off the list. There is –- Those summons are down there returned if you want to look at them. Motion for (inaudible) death qualification: denied to the extent that you may ABSTRACT 19 always ask the jury certain questions. (T 954) Motion to disclose relationships between the prosecuting attorneys. What did you say about that one, Mr. Deen? MR. DEEN: The way it’s described there, it’s terribly over broad. Half the people that show up, I’ll have –THE COURT: I understand. I didn’t know if you had a more specific response. At this time, without (inaudible), denied with respect to either the state or the defense. 404(b), the only 404(b) evidence that I’ve seen referred to in this case is when I tried to get it brought to a hearing, before the supreme court took it up, and that had to do with an incident maybe six months before the defendants were charged, that had to do with an incident at a nightclub or honky-tonk someplace else. I never could get, from counsel, the police report. I gave up. In a 404(b) deal where there is an incident report, that’s kind of the -- It’s an article of faith. That’s where you start and then you can elaborate beyond that, but that gives the Court a thumbnail sketch of really what it is the event that you’re trying to exclude, the more distant in time, the more unrelated to what’s going on, the more likely it is to exclude. And I don’t like 404(b) evidence anyway. I think it’s (inaudible) ground for reversal. If the state has a good case, they don’t need that kind of stuff. But if you-all want me to exclude some events that happened at about that time then at least begin, when you file your ABSTRACT 20 motion, attach the incident report. That gives me a quick idea. And then if you want to introduce other evidence supporting your motion, that’s fine, but I want to start with that and that gives me a way to go. (T 955) Motion to suppress any given statement. There are no statements in this case, as I appreciate it, given by this defendant; is that correct? MR. DEEN: There are no inculpatory –THE COURT: That’s what I’m talking about. There are no incriminating statements that have been given? MR. DEEN: He provided a statement, but it purported to be an excuse as to why (talking over) -THE COURT: It can be admissible, if you want to, on cross, or something like that. I understand that. Do you have any –- To give the Court some idea, do you have any statements that your client has given that this Court should exclude? (T 956) MR. ROSENZWEIG: Your Honor, Mr. Pedraza talked to the police, but he was not in custody for Miranda purposes at that certain time. At the time of his arrest, he exercised his constitutional –THE COURT: Then the answer is, no, you don’t have any statements you wish the Court to exclude; right? MR. ROSENZWEIG: That’s correct. I just wanted –ABSTRACT 21 THE COURT: Then we’ll move on. MR. ROSENZWEIG: –- to check with my co-counsel to make sure I was stating everything properly. THE COURT: I think it would have come up probably before now if there were. MR. ROSENZWEIG: It would have. I just wanted to –THE COURT: All right. MR. ROSENZWEIG: Your Honor? And Mr. Leonard points out that actually the motion talks also about excluding references to the failure to –THE COURT: Well, I think everyone knows that you don’t bring that up at trial. MR. ROSENZWEIG: Well, I would hope that everyone does, but I think it would be appropriate just to get an order to that effect as well. (T 957) THE COURT: It goes without saying. Motion for a –- It’s kind of like commenting on someone’s –- A defendant’s failure to testify. It’s mistrial material whether or not the Court enters an order on that or not. Pretrial judicial review of all victim impact evidence. When do you think you will have –- The trial begins on, what, May 29th? MR. ROSENZWEIG: May 30th, I believe, Your Honor. ABSTRACT 22 THE COURT: May 30th? When will you have that? MR. DEEN: I’ll decide –- It would be limited to family and be limited to, I expect, two or three at the most. We’ll identify them by the week before that, that would that be –THE COURT: I’ll give you until a week before trial. How’s that? MR. DEEN: Very good. THE COURT: All right. Put a particular date on it though, back it up seven days, and tell them to put in the order that victim impact evidence will be available in Mr. Deen’s office to be reviewed no later than seven days before trial. If you have it before then share it with them before then. (T 958) MR. DEEN: Yes, sir. THE COURT: Certainly, any victim impact testimony, I am virtually required to screen and so I’m obligated to do that on my own; and furnish the Court –- If it’s testimony that’s going to be given then summarize -- The testimony, you know, in many cases, you know, I’ve had people get up and read letters. Well, I have to see the letter first and we all know this. MR. DEEN: I would like to cross –THE COURT: Exactly. Exactly. MR. DEEN: –- with any exhibits. ABSTRACT 23 THE COURT: That way I’ve done my due diligence. Motion for supplemental discovery. I’m –- I think –- Let’s get to the point: Has everybody gotten everything? MR. ROSENZWEIG: We believe so other than the matters regarding Victoria Pedraza which we just talked about. THE COURT: I understand. Well, I’ll make a decision on that after Friday. Mr. Deen, have you gotten everything? (T 959) MR. DEEN: No, sir, I’ve not. THE COURT: Have you gotten anything? MR. DEEN: No, sir. THE COURT: Well, you’ve got until this Friday, as you say “close of business,” to submit to the state your list of witnesses, your list of exhibits, and broken out as far as which stage of the proceeding. And the witness list will need to have addresses and contact information so if Mr. Deen has not interviewed that witness or wants to go back and do it again, he may do so. MR. DEEN: Your Honor, could you add -- and I suspect Mr. Rosenzweig would provide this -- any written report that’s been produced by any experts that he decides to call. I understand they are to decide amongst themselves Wednesday ABSTRACT 24 evening who that’s going to be. THE COURT: Right. Certainly, any written reports because you would have to have your people look at the report. MR. DEEN: Also, I anticipate that there might be a request for a videotaped deposition for people who cannot travel inside this country, for whatever reason, who live in Mexico –MR. ROSENZWEIG: Yes. I can address that right now if the Court –THE COURT: Go ahead. (T 960) MR. ROSENZWEIG: Your Honor, as the Court is aware, we have obtained and managed to get a hold of, fortunately, a Spanish-speaking mitigation specialist who has done extensive work with us on the case. One thing we have not yet tied down is whether or not we are going to want to call certain of his relatives who are residents in Mexico, grandparents, that type of thing. We should have that tied down within a couple of weeks. THE COURT: Why haven’t you tied it down? MR. ROSENZWEIG: Because, Your Honor, because –- Let’s start with the fact that he has other cases as well. We don’t speak Spanish. We need to rely on a Spanish speaker for this purpose, also, to get other information. Let me -- If I could finish talking, Your Honor. We are in the process of doing that and we hopefully will ABSTRACT 25 have that tied down within a couple of weeks. I anticipate that there are going to be all sorts of problems getting these people here through the immigration laws. We are going to try to do that. (T 961) My feeling is is we’re not going to be successful in doing that. I will move for a continuance to do that; I expect the Court will deny the continuance; and so our Plan B in that regard, if we decide we are going to use these people, is to go to Mexico and videotape them and invite Mr. Deen, or whoever he wants to send to meet us there or accompany us there, where we can take their testimony by videotape and bring it back here for trial. That is our plan. I am not in a position yet to formally move for a continuance because I cannot, at this point, assert, properly assert, to the Court that we will use these people. I anticipate that that decision will be made within the next couple of weeks; and then we will go down to Mexico at some point before May 30th and take their testimony. THE COURT: Couple of questions –MR. ROSENZWEIG: Yes, sir. THE COURT: Who is your Spanish-speaking mitigation expert? MR. ROSENZWEIG: His name is –- First name is David, last name is Lida, L-I-d-a. THE COURT: And where is he –- What’s his address, physical address? MR. ROSENZWEIG: I’ll have to provide that to you. He actually -– He’s ABSTRACT 26 an American citizen who actually lives in Mexico. THE COURT: But in Mexico, you also have a physical address –- (T 962) MR. ROSENZWEIG: That’s correct. THE COURT: –- and at this present time, is he in the United States or Mexico? MR. ROSENZWEIG: As of –- He was actually heading to the airport in Little Rock as we were talking with him earlier today. My guess is, I think, he’s probably left already. THE COURT: All right. And would he have been available today then had you wished to put him on as a –- let me finish –- as a witness for Mr. Deen to vet him with respect to what he had thus far learned, instead of taking the plane out, before this hearing? MR. ROSENZWEIG: The answer to that is we would –- Mr. Lida is covered under the attorney-client privilege; and I would resist him being on the stand for anything substantive as to what he has learned. THE COURT: I’m just asking: Would he have been available had he not taken the plane out? MR. ROSENZWEIG: Your Honor, his travel –THE COURT: Physically available? ABSTRACT 27 MR. ROSENZWEIG: Okay, his travel schedule was made before you set this hearing. THE COURT: Okay. Now, has he provided you with the names of these relatives? (T 963) MR. ROSENZWEIG: We have the names of the relatives through various other sources as well. I don’t have –- I can’t recite them from memory right now. THE COURT: Has he talked to these relatives yet? MR. ROSENZWEIG: My understanding is he’s been in some contact with them. THE COURT: But you cannot assure the Court at this time that he has interviewed these relatives? MR. ROSENZWEIG: I personally cannot assure the Court that we’ve had substantive interviews. THE COURT: All right. Therefore, has he submitted to you any written summaries of any interviews that he has had with anyone in Mexico? MR. ROSENZWEIG: Your Honor –THE COURT: I’m just wanting to know what the progress is. MR. ROSENZWEIG: Okay, we’ve had numerous –-We’ve had numerous memoranda from Mr. Lida, numerous talks with Mr. Lida, all of which are privileged. ABSTRACT 28 THE COURT: I just wanted to know: Has he submitted to you –- I’m not asking you what they contained -- I’m asking you: Has he submitted to you a summary of any interviews that he has conducted with any of these relatives in Mexico? (T 964) MR. ROSENZWEIG: Let me ask Mr. Morledge. We’re not in possession of any written summary from Mexican people at this time, but we –THE COURT: From your expert –MR. ROSENZWEIG: (No response.) THE COURT: –- summarizing any interviews at this time? True or not? MR. ROSENZWEIG: That’s what I said. We are not in possession at this time. I wanted to check with counsel before I answered the Court because I wanted to make sure I was accurate. THE COURT: Do you know if any exist? MR. ROSENZWEIG: My understanding is that there would not be any written summaries yet in existence at this point. We would anticipate we’re going to get this tied down soon; and if we decide we’re going to use them then we will –We’re going to make our travel plans and take care of it. THE COURT: Last question: When was this expert engaged by defense? MR. ROSENZWEIG: He was engaged shortly after –- And I say “shortly ABSTRACT 29 after,” I don’t remember the exact date. Number one, he is not an expert, quote, per se –- (T 965) THE COURT: Investigator. MR. ROSENZWEIG: Mitigation –- (talking over) investigative-type person. We were able to engage him at the end of last fall, but because of his –THE COURT: What’s “the end of last fall”? MR. ROSENZWEIG: I would say November, December, Your Honor. THE COURT: Well, that’s up in the winter. MR. ROSENZWEIG: Well –THE COURT: Well, there will be documentation –- You will have documentation of –- The public defender commission will have documentation as to when he got on the case; right? MR. ROSENZWEIG: Yes, sir, we will, but let me finish what I’m saying. Because of his caseload –-and he has a very substantial caseload -- he was not able to –- He’s had –- He was not able to immediately, come immediately, upon being engaged. He came –- I think it’s –- I would say –- I’m speaking off the top of my head -- as early as mid-January, if I’m not mistaken, and has been here several times since. (T 966) THE COURT: I see. Well, of course neither the Court nor the state is ABSTRACT 30 responsible for your selection of experts; I’m not responsible for selection of attorneys and their workload; and I’m not responsible for any delay that occurred between the time you came on the case and the time that this particular individual was brought on the case. And right now there’s no reason for the Court to be concerned about it at all and no reason for me to anticipate any problem with it. The issue of what’s in your possession, when he was engaged, all of that will only become important in the event certain things happen. And should you not decide to use him or call any of these people, we’ve been just talking through our hat, but I wanted to get out those basic dates just for the Court’s edification. MR. ROSENZWEIG: Well, I was trying to be responsive to what Mr. Deen was saying, and I wanted –And as long as we’re talking about scheduling here, Your Honor, may I bring up an issue? THE COURT: Sure. MR. ROSENZWEIG: Okay. Your Honor, when we got the notice of scheduling, your form notice indicated that we’re supposed to let the Court know about any conflicts, I immediately sent to the Court a conflict I have with Thursday, June 6th, I believe it is, and I wanted to get the Court’s guidance, or if the Court could tell us what the Court plans on doing about that. (T 967) ABSTRACT 31 THE COURT: Well, right now I’m not planning on doing anything about it. I’m going to try this case. Borrowing something that I don’t see at this time -Certainly, the moon could fall, but I gave my reasons in that letter for needing to try it when I did: other judges, Mrs. Pedraza, so on, and so forth. Now, the point being is that I will not address the –- You mentioned in a letter an omnibus hearing before Judge Sims –MR. ROSENZWEIG: That’s correct. That’s my conflict. THE COURT: I certainly don’t doubt that you do but, naturally, that’s not grounds for a continuance; and there’s been no motion filed for a continuance yet anyway. And I know that before you even bothered to write or to say anything about it, you would have contacted Judge Sims and seen what could be worked out; and I have no suggestions to make other than you’ve got two lawyers on this case. Judge Sims is a reasonable man, and certainly if the roles were reversed, I’d work that omnibus hearing some other time; and I think that Judge Sims will too. But that’s between –MR. ROSENZWEIG: Your Honor, you asked us to report any conflicts. THE COURT: Right. (T 968) MR. ROSENZWEIG: I reported the conflicts. I did exactly what you told me to do. ABSTRACT 32 THE COURT: I know. It was a form order that Mrs. Rosegrant sent out, that she does even in civil cases and, you know –MR. ROSENZWEIG: (Talking over) THE COURT: I think my other letter –- And while I’m on the subject, it is important to the Court that all communication be in the form of written motion; and that way I know I’m expected to act upon it and that way a good record can be made. MR. ROSENZWEIG: Your Honor, may I respond? THE COURT: Nothing to respond to. MR. ROSENZWEIG: I believe there is, Your Honor, and that is this: I let the Court know. What I was going to do was ask –- and that’s why I brought this up –to ask the Court’s guidance on how the Court intended, or if the Court had any reaction, to determine whether I needed to move for a continuance, what I needed to say to Judge Sims about his preexisting scheduling order, et cetera. And so I figured I would bring it up here without the necessity of a formal motion. And if I have to file a formal motion, I will, but I wanted to know exactly what –- (T 969) THE COURT: I can’t give you any advice. It seems like, from what I see, a very, very small matter, which could easily –- you could bring to the attention of Judge Sims -- and it would –- There would be a way to resolve it either with use of other counsel at an omnibus hearing or the many, many ways. But I wouldn’t ABSTRACT 33 presume to advise you on how to approach another judge or anything else. So let’s go on to some other things here that I can rule on. MR. ROSENZWEIG: I believe Mr. Morledge has an issue –MR. MORLEDGE: Your Honor, if I might, just very briefly. THE COURT: Uh-huh (yes). MR. MORLEDGE: I’m sorry. Just so the Court knows, I do have a conflict on June 4th. It’s a jury trial in front of Judge Harper. It’s a three-strike defendant. I think I can get that cleared up and taken care of. And if it becomes a problem, at that point, I will ask –- (T 970) THE COURT: I bet you can. MR. MORLEDGE: Thank you, Your Honor. THE COURT: You bet. MR. DEEN: I’m sorry to interrupt, but I don’t think I should be silent while he talks about going down and taking depositions unilaterally in Mexico. I think an evidentiary deposition (inaudible), number one; and, number two, as (inaudible) pointed out that an interpreter approved by the Arkansas Administrative Office of the Courts would be required, I believe, for that purpose. MR. ROSENZWEIG: Your Honor, if I may respond to that –THE COURT: He’s not through talking. ABSTRACT 34 MR. DEEN: I do intend to have someone from my office attend. We don’t have any Spanish-speaking attorneys, unfortunately, that work with us. THE COURT: Do you have any English-speaking ones? MR. DEEN: We have plenty of English-speaking, but we have none that speak Spanish. And I might end up getting someone from another district who does speak Spanish. I’m going to make some inquiries, see if we have anybody like that who works in Arkansas. MR. ROSENZWEIG: Your Honor, the –- If I could have a second, Your Honor. (T 971) THE COURT: We don’t even know yet if you want to do this. MR. ROSENZWEIG: Your Honor, if I may respond to what Mr. Deen said. And I refer, at this point, to Arkansas Code Ann. § 5-4-602(3), capital B, small (I), “Evidence as to any mitigating circumstance may be presented by either the state or the defendant regardless of the evidence’s admissibility under the rules governing admission of evidence in a trial of a criminal matter.” So we are not restricted -- I am going to do everything I can to comply with the rules of evidence, but we are not required to (inaudible) presentation of mitigating circumstances should we decide to do –THE COURT: We all know that. ABSTRACT 35 MR. ROSENZWEIG: Well, I just wanted –- I’m not sure that Mr. Deen –THE COURT: And I’m not here for faculty lounge talk. If this gets to the point beyond academics as to what is theoretically possible, that is, if you in fact want to get on a plane and go to Mexico, as has been suggested since the first of June –and, apparently, there’s been no trip yet, and we’re virtually a year later -- So how serious do you think any judge would take it? Almost twelve months has passed since this issue was raised about going to Mexico and I have yet to see a pair of plane tickets, so forgive me, if somehow or another I don’t need to hear the law about what can come in as mitigation. Thank you. (T 972) Now, with respect to –- We covered victim impact, motion in limine, to exclude evidence. When and if I see a 404 deal, 404(b) motion, that is accompanied with at least a –- I don’t even know if the state intends -– Do you intend to use anything –MR. DEEN: I do, but (inaudible) for 404(b) purposes. It’s part and parcel of Victoria Pedraza’s subsequent actions. THE COURT: In other words, it’s going to come in because she’s going to say that she was fearful of him and yadda, yadda, yadda. Well, let me –- If you need to still pursue the 404(b) motion, I’ll take it up prior to trial. But I have no clue right now because no one has furnished me the incident report of what we’re talking about ABSTRACT 36 other than yadda, yadda, yadda, outside a nightclub in some town. MR. ROSENZWEIG: Your Honor, I thought that the Court -- I believe the state gave you a copy of their entire file and –- (T 973) THE COURT: Well, forgive me, the file’s pretty thick. If you want your motion granted, you give me the incident report. Enough on that. Now, what else is there? Oh, with respect to –-I’m going to do juror orientation sometime –- Judge Pope’s going to be in this courtroom for a while with a jury case beginning April 30th, I think, and he’s going to be using the whole panel, naturally; and I’m going to do jury orientation sometime shortly after that for both panels. That’s my custom and practice. I will not be excusing anybody. I won’t wait forever on y’all’s okay, but you will pick up who gets -- Put in requests thus far and we will –- We’ll just have a three-day default. After you get it, you’ll have three days to look it over and notify the Court if you have any objection and exactly what that objection is. MR. ROSENZWEIG: Your Honor, will these be sent to all three of us, one of us, or how will the notifications –THE COURT: I’m going to give you, defense, a set. I assume that y’all can make copies and share them, but you should notify the Court in writing by motion not to exclude –- Not to excuse any particular juror. I say “motion” -- It’s just easier for ABSTRACT 37 the clerk to keep up with it in the file. I am going to contact the Administrative Office of the Courts tomorrow and ask that there be an interpreter here. Will you need one in your case in chief? (T 974) MR. DEEN: No, sir. THE COURT: All right. Then that tells me –- How many days do you think you will need? MR. DEEN: Two and a half. THE COURT: Then what I will do is, I will have – At this particular point, do you see the need in your case -- Well, let me do this. I’m simply going to have that interpreter on standby beginning the third day. MR. ROSENZWEIG: Your Honor, I think it would be appropriate to have an interpreter here, not just on standby, but here. I think it is –THE COURT: No, I meant on –- If I said “standby,” I meant available here at the courthouse beginning the third day. All right –MR. ROSENZWEIG: Your Honor? THE COURT: Uh-huh (yes). MR. ROSENZWEIG: With regard to jurors, if I could bring up the motion to make sure -– (T 975) ABSTRACT 38 THE COURT: What motion is it? MR. ROSENZWEIG: The motion for the supplemental jury questionnaire. THE COURT: What about it? MR. ROSENZWEIG: We filed a motion and I put the -– this is back last fall –- proposed jury questionnaire –- I have copies here. THE COURT: Oh, I have the motion. MR. ROSENZWEIG: Okay. I need a ruling on it. THE COURT: At this time, I’m denying it. I don’t see the –- Before I asked for –- It’s in the record –- I reviewed it the other day. I asked for the proposed questions on the jury questionnaire from both defense and the state by July 1st, and I never received any. MR. ROSENZWEIG: Your Honor, we gave the Court a questionnaire. I have another copy here. THE COURT: When did you file it with the clerk? MR. ROSENZWEIG: I don’t know if we filed it with the clerk. I remember giving the Court a copy. THE COURT: Well, I don’t. MR. ROSENZWEIG: No, I remember giving the Court a copy. Now, I’ve ABSTRACT 39 got a copy here and I’d like to mark it then. THE COURT: That’s fine. MR. ROSENZWEIG: May I approach? (T 976) (WHEREUPON, Defense Exhibit 1 was introduced into evidence.) THE COURT: And that’s the problem with doing things except by motion and with the clerk: the Court can have a different recollection and then you get into an honest disagreement, but –MR. ROSENZWEIG: And, for the record, that would be Defense 1, for this hearing, I guess – THE COURT: Fine. MR. ROSENZWEIG: -- and that’s a copy of the questionnaire. THE COURT: You provided it to Mr. Deen? Mr. Deen –MR. DEEN: I’m looking for it now. THE COURT: Well, you can just make a copy of this. -- if you wish to respond to his motion –- At this time, the Court is not going to submit supplemental questions. I think by taking two jurors, three at the most, at a time in voir dire that that is the best way to get a good jury. And besides, remember, answers on questionnaires are not submitted under oath and they don’t preclude questions on any ABSTRACT 40 of those same points later on voir dire, so they’re of questionable value insofar as exercising peremptory challenges or for cause. (T 977) One last question: With respect to alternates, do you have a recommendation as to the number? MR. DEEN: I’ve never used more than two in my experience. MR. ROSENZWEIG: I’m sorry, I did not hear Mr. Deen’s answer. (Talking over) THE COURT: Do you have a recommendation –- He said two. Do you have a recommendation regardless of what he said? MR. ROSENZWEIG: I would say at least three; and four would be more prudent, Your Honor. THE COURT: I’m going to at least do three. You know you get one strike apiece extra for each one. MR. ROSENZWEIG: Yes, sir. THE COURT: All right, thank you-all. I’m through. MR. ROSENZWEIG: Your Honor, I don’t think we have rulings on all of our –THE COURT: That’s fine. Everyone have a seat. What motions –- If you made notes when I was ruling, what motions did I not rule on? (T 978) ABSTRACT 41 MR. ROSENZWEIG: Your Honor, Mr. Morledge was making notes. I did not –- It at least appears we did not get a ruling on the motion of introduction of aggravating circumstance under § 5-4-604(8), that is the cruel or depraved; and I believe we’ve made arguments in our motion. THE COURT: I think you did and I denied it. MR. ROSENZWEIG: Okay. We didn’t catch that. THE COURT: Oh, I didn’t. And I’m saying I’m now denying it. MR. ROSENZWEIG: You’re now denying it? Okay. There was a separate motion for discovery in victim impact evidence, but if I heard correctly, you said a week beforehand? THE COURT: Right. MR. ROSENZWEIG: So I assume that’s granted no later than May the 23rd; is that correct? THE COURT: That’s right. MR. ROSENZWEIG: And we have a –THE COURT: Counsel for Mrs. Pedraza, visit with the Court and Mrs. Rosegrant after we get through here just talking about, hopefully, a trial date sometime that y’all can do. MR. PARRISH: Yes, Your Honor. ABSTRACT 42 MR. ROSENZWEIG: Your Honor, may I –- I assume the case file is up here. (T 979) THE COURT: Uh-huh (yes). MR. ROSENZWEIG: May I look at the file, I want to check and see what –THE COURT: But you can do it after we recess. MR. ROSENZWEIG: Okay. THE COURT: I’ve got a list of all the motions and I think I did it –- If I missed one, it certainly could not be one that has to be ruled on at this particular instance. And in order to get people on their way, I want that done. MR. ROSENZWEIG: Your Honor, if I could bring up another scheduling issue. Depending on how we respond by Friday to the material we’re going to submit no later than Friday, it may be appropriate to have a hearing in which we deal with ground rules, or what we say should be the ground rules, for any examination by Mr. Deen’s people; and I believe we would need an actual hearing on that for it to be heard. (T 980) I wanted to let the Court know that I am under subpoena to testify next Wednesday and/or Thursday in federal court in El Dorado; and I was going to suggest Monday, Tuesday, or Friday of next week as the date, but I did not want to leave without putting on the record that, number one, I think there’s a good chance we’re ABSTRACT 43 going to need such a hearing, that I can’t be there Wednesday or Thursday because of the subpoena. And, furthermore, that we will waive, for purposes of such a hearing -- We have no problem waiving venue and going to wherever you happen to be THE COURT: Well, all of that’s premature at this point. I’ll certainly –The ground rules are laid out in the Arkansas Rules of Evidence. I intend to follow those in this case. Secondly, before you bring any real or imagined problem to the Court’s attention, certainly visit with Mr. Deen. If you see some lurking issue out there with respect to direct or cross-examination, give him an opportunity to see if y’all can reach an agreement. If it needs to be memorialized, I’m sure he will. MR. ROSENZWEIG: Your Honor, part of the problem is the rules of evidence aren’t that clear and they refer to –- and the statutes aren’t that clear --and that’s why we need –- You know, we need to be –THE COURT: I’ve given you my argument. I’m not obliged to give you, as the man says, an understanding. This Court is in recess. (T 981) PRETRIAL HEARING, MAY 21, 2013 (Abstracter’s Note: Although this hearing contains testimony which normally ABSTRACT 44 would be abstracted in the first person, the issue for which it is included—the prospective disqualification of Judge Gibson from a resentencing trial— requires that it be quoted directly.) THE COURT: Good morning. We’re on the record in State vs. Pedraza; and the purpose of the hearing today is to determine Mr. Pedraza’s fitness – you may have a seat, Mr. Rosenzweig –- his fitness to proceed following examinations by both mental health specialists for the defense, first, and then for the state. Let me get the appearances. Counsel are here. If you-all would, identify yourselves. Mr. Pedraza is here also. MR. DEEN: Thomas Deen for the state. MR. PURYEAR: Crews Puryear for the state. MR. ROSENZWEIG: Jeff Rosenzweig for Mr. Pedraza. MR. MORLEDGE: Birc Morledge for Mr. Pedraza. MR. LEONARD: Tim Leonard for Mr. Pedraza. THE COURT: Very good. MR. ROSENZWEIG: Your Honor –THE COURT: Yes, sir. MR. ROSENZWEIG: –- may I address one issue before we start this ABSTRACT 45 proceeding? (T 982) THE COURT: Sure. MR. ROSENZWEIG: As the Court is aware, we had moved for either a continuance of the hearing or the accommodation of taking Mr. Pablo Stewart’s testimony by telephone. Yesterday afternoon we received a fax denying that. I wanted to, first, for the record, renew that motion and also respond very briefly to a couple of remarks that were made in that, to make sure the record’s clear. THE COURT: Go ahead. MR. ROSENZWEIG: First thing, Your Honor, is we notified –THE COURT: Are you re-arguing the motion? Is that what you’re doing? MR. ROSENZWEIG: No, sir, I’m not. I just wanted to –- I needed to get a copy of it -- I wanted to make sure I was accurate in my recitation. THE COURT: All right. MR. ROSENZWEIG: On May the 3rd, we notified you, the Court, on May the 3rd, filed the May 3rd, that Dr. Stewart was unavailable for the May 21st date. The second thing, which I’d like to respond, is you had indicated that the –We could have done a video deposition of him at some other time. The problem with that is in order to sensibly do one, we could not do –- He could not do it until after the state examination had occurred because the various experts would want to ABSTRACT 46 comment on each other’s work and observations; and that was not received until last Thursday, which would have been the 16th. (T 983) Anyway, so I will, for the record, renew that motion and I would like to proffer, if I might, this is the letter from Dr. Stewart dated April the 10th, of which you’ve already seen because it was part of the notification of belief of unfitness to proceed. And if I could make this Defense 1 for purposes of this hearing –- Actually, let me make this Defense 1 for purposes of this hearing; and Defense 2 would be the letter which is filed, the May 3rd letter, if I might, for purposes of this hearing. (WHEREUPON, Defense Exhibits 1 and 2 were introduced into evidence.) MR. ROSENZWEIG: Dr. Stewart’s CV is actually already in the record because he was an affiant on the motion to continue the case back last fall. I can get another copy and can specifically introduce it into the record. I assume that the Court will continue to deny our motion for a continuance or to take Dr. Stewart’s testimony by telephone; would that be correct? THE COURT: I have no reason to change my order. (T 984) MR. ROSENZWEIG: We haven’t obtained a ruling, so I –THE COURT: Mr. Deen –- Here, you may take this with you, Penny. Mr. Deen – ABSTRACT 47 MR. DEEN: Yes? THE COURT: –- it’s not necessary, but if you wish to make some type of response to the business about sending the Court letters or about needing to wait until –- You may have a seat, Mr. Rosenzweig. Normally, when one attorney stands and is recognized, the other one keeps their seat. If you wish to respond to the business about notifying the Court -- was it Stewart’s unavailability on the May 3rd letter -- or about needing to wait until he got the state hospital report before he could take a deposition? MR. DEEN: Of course, he had already formulated his opinions long before the state hospital, before it was even an issue, so I’m not –- I don’t know where he is or why he is supposedly physically unavailable. That has never been disclosed. (T 985) And the motion to continuance this case did not come on May 3rd, it came either yesterday or Friday. THE COURT: Now, all I asked him to do was respond. He just said the motion came here recently; and I believe you-all already have my position with regard to sending the Court letters, calling the Court, trying to communicate with the Court other than by motion. I’ve advised counsel, following the remand, that the Court ABSTRACT 48 would only act upon written motions. We are a motion state. And that is not to make it difficult on anyone. It’s an order to protect the record; and the most important thing in a case is to make a record. With that said, defense may proceed. MR. ROSENZWEIG: Our first witness is Dr. Antolin Llorente. ANTOLIN M. LLORENTE, PhD DIRECT EXAMINATION BY MR. ROSENZWEIG: Q. State your name, please, sir. A. Antolin, A-n-t-o-l-I-n, Llorente, L-l-o-r-e-n-t-e. Q. Dr. Llorente, where, if you could, tell us what your, first, what your occupation is and tell us also your various certifications, licensures, academic affiliations, and sort of generally update, or tell the Court what you do. (986) A. Yes. Well, first of all, until May 3rd, I was an associate professor in the department of pediatrics at the University of Maryland School of Medicine in Baltimore, Maryland, as well as the director of neuropsychology in Mt. Washington Pediatric Hospital, and University of Maryland, and Johns Hopkins University School of Medicine (inaudible). I was also the director of the fellowship program there. My education, first of all, starting with my bachelors degree in electrical engineering from the University of Texas in Arlington, followed by my masters and PhD in clinical psychology from Oklahoma State. My internship at Johns Hopkins UniversityABSTRACT 49 Kennedy Krieger Institute in Baltimore, Maryland; and then fellowship in neuropsychology at the Neuropsychiatric Institute and Hospital at the University of California-Los Angeles, Los Angeles, California. I’m a licensed psychologist in the state of California with an inactive license, and an active license in the state of Maryland. I’m a board certified neuropsychologist by the American Board of Pediatric Neuropsychology. I am the author of over, I don’t know how many, peer review publications. I am the author of a textbook on the assessment, neuropsychological assessment, of Hispanics, as well as on the editorial review board of the flagship journal of the American Psychological Association for Psychological Assessment entitled Psychological Assessment as well as the Journal of Clinical and Experimental Neuropsychology. I’m the associate editor for Applied Neuropsychology and I’m on the editorial board of all the journals as well as shown in my CV. I think that will give you some kind of an idea. (T 987) MR. ROSENZWEIG: And I –MR. DEEN: No objection to the CV, Your Honor. MR. ROSENZWEIG: Okay, Your Honor, I’m going to mark for -- and move to introduce -- as Defendant’s 3 for purposes of this hearing. MR. ROSENZWEIG: (Continuing) Q. Doctor, if you could identify this document. ABSTRACT 50 A. Yes, it seems to be a copy of my CV. MR. ROSENZWEIG: And I move for its introduction, Your Honor. THE COURT: It’s in. (WHEREUPON, Defendant’s Exhibit 3 was introduced into evidence, was marked by the reporter, and is attached hereto.) MR. ROSENZWEIG: (Continuing) Q. Doctor –MR. ROSENZWEIG: Your Honor, I move that he be permitted to testify as an expert on –- (T 988) THE COURT: I’ll permit him to testify. You know that you don’t call them anything -MR. ROSENZWEIG: (Continuing) Q. Doctor –THE COURT: Go ahead. MR. ROSENZWEIG: I’m sorry, sir –THE COURT: I recognize that you have specialized knowledge and skill. Go ahead. THE WITNESS: Thank you, Your Honor. ABSTRACT 51 MR. ROSENZWEIG: Thank you. MR. ROSENZWEIG: (Continuing) Q. Doctor, I show you –- Do you have a copy of your report? MR. ROSENZWEIG: Thomas, do you have any objection? MR. DEEN: No objection to the doctor’s report, Your Honor. MR. ROSENZWEIG: And I’d move for the introduction of -- MR. ROSENZWEIG: (Continuing) Q. Doctor, let me just say –- Is this your report you’ve done with regard to your examination of Mr. Pedraza? A. Yes. THE COURT: The only report? The only report? THE WITNESS: Yes, sir. (T 989) MR. ROSENZWEIG: (Continuing) Q. Well, you did that very short -- A. Well, I wrote a letter for the Court -- Q. –- beforehand -- A. –- before that on competency to proceed. THE COURT: Right, but you don’t call that a report? THE WITNESS: No, of course not, sir. ABSTRACT 52 THE COURT: Very good. It’s in. (WHEREUPON, Defendant’s Exhibit 4 was introduced into evidence, was marked by the reporter, and is attached hereto.) MR. ROSENZWEIG CONTINUING: Q. Doctor, what I would like to do is go over the observations and conclusions you made in your report, first. You saw Mr. Pedraza on –- according to the report –- on April 4th and 5th of 2013; is that correct? A. That is correct, counselor, as shown here in my report on page 1 on the “Dates of Evaluation.” Q. Okay. First, if you could briefly summarize your observations with regard to Mr. Pedraza in terms of his age, his abilities in English, Spanish –A. Sure. Q. –- et cetera, et cetera. In other words, the type of thing that you dealt with in the introductory portions of your report – (T 990) A. Well, first of all, it is very important when we are assessing these types of individuals that a good assessment be conducted about their language dominance as well as issues of acculturation and so on because patterns of American immigration ABSTRACT 53 and working neuropsychology have shown over time that many people can be in this country and yet not master a language even though they may be able to speak it. In his particular case, my assessment in that area showed that he was most dominant in English, believe it or not, even though he is a bilingual individual; and that makes him a very different individual in the sense that he has somewhat command of the Spanish language, not as much as he does of English, even though he’s able to speak it, and he speaks it with his family and with me on several occasions during the assessment. So in that regard, we could feel comfortable in proceeding with the fact that he could be assessing English even though he comes from a Hispanic background. His education was also here in the United States of America and he concluded high school here in the United States, graduating from high school. (T 991) However, as it is shown in his data and my assessment, even though he graduated from high school, even in English, he doesn’t have a twelfth-grade level of performance and his levels of performance are a little bit lower than what would be expected, even the fact that he had graduated from high school. But that is quite common in our country, particularly, in certain areas of the country, so that’s, in that regard, what was discovered with regard to this individual. So there’s been a certain view about acculturation in this individual in American society yet he still remains an individual who is Hispanic by nature; and so that should be important, particularly, ABSTRACT 54 when we look at the tests that are administered to this individual over time. I guess we will be discussing that in more detail as we proceed. Q. I’m sorry, I didn’t catch that last part. A. I said, “I guess that we will be discussing that in more detail as we proceed.” Q. Yes, that’s correct, sir. Now, would the fact that his parents basically only speak Spanish and thus he speaks Spanish at home, does that have an affect on linguistic issues? A. Yes, Counselor, absolutely, and that’s part of the issue of assimilation to American society and issues of acculturation and assimilation. So his parents –- Not only do his parents essentially have –- it’s limited –- (Inaudible) –- For example, according to his own mother, as you saw in my report in the historical information that I obtained from her, his father only went to the second grade in a rural school in Mexico; and his mother remains to this day, according to herself, literate. So, yes, that has a lot to do because it has to do with issues again of acculturation and assimilation to American society. (T 992) Q. Now, Doctor, and the next portion of your report deals with –- You’ve titled it “Relevant History/Background Information and Review of Records.” A. Yes. Q. If we could discuss your observations and conclusions in that regard. You, ABSTRACT 55 personally, you had access to –- In addition to talking to Mr. Pedraza, did you talk to –- You had access to the prosecution file in the case? A. Absolutely. All their records that were provided and many of them were reported in my report between pages 2, 3, and so on until about page 9. Q. And in addition, of course, we sent you and of course Mr. Deen –- We sent to Mr. Deen and to the state hospital everything that we had provided to you fairly early on –A. Yes. (T 993) Q. –- and then as you made reference in your report, you also had access to the –- eventually had access to the DHS records involving Joana Pedraza; is that correct? A. That is correct. And, also, if you notice, in being fair to show the entire record as accurately as possible, many times part of these records were actually verbatim and recorded into my report; and so they were reviewed in great detail so that there cannot be any misunderstanding as to what those records were actually showing so, yes. Q. Okay. Doctor, let’s see, you indicate that Mr. Pedraza was able to correctly recall portions of his own developmental family history and a portion had to be obtained from other family members? A. That is correct. I would like to point out here for this Court, as I feel that my role here is just an educational role, is that this psychological data and these ABSTRACT 56 psychiatric assessments and so on can be perceived as the paintings in a canvas in a great picture. The canvas is the historical record that is already existing for this individual long before any mental health professional begins to work with him; and so these records are very critical and very important because they establish a background to which we go to to interpret this data that is coming in from these assessments, regardless of who is the professional who is conducting the assessment. Q. And so, in that regard, you looked at the school records, and the military records –- (T 994) A. Yes. Q. Is that correct? A. That is correct, Counselor. Q. And, also, what did you –- In summary, what did you conclude, or what did you observe, or conclude, or draw upon from those records? A. Well, there are many important findings from these records. Again, these are factual information, that’s separate from interviews that were conducted with his family. For example, there are records showing that this individual had DWI’s or a history of alcohol use. There’s a record showing, for example, that this individual has some serious difficulties in the past, enough to be diagnosed when he was a youngster, after a breaking-and-entering, with an adjustment disorder, even though ABSTRACT 57 it’s not, say, a psychotic process or something like that. By definition, it’s still considered a psychological disorder, starting very early in childhood when he broke and entered into the school to look up pornography in the school, as well as use the computer to look at other web sites, for example. The only important thing that these records reveal is that indeed this individual did serve our great military and that he was actually -- Went to war. He tried to minimize, as he did for Dr. Walker -- who again is –THE COURT: I couldn’t –- I couldn’t understand. You said something about he served in our great military, and then I lost you. (T 995) THE WITNESS: Yes. MR. ROSENZWEIG: (Continuing) A. Consistent with –- And he tried to minimize the effect that war had on him, like he had with Dr. Walker, who was a psychologist, who had seen him before I saw him as well. Continuing with this data and review of this important history, a lot of records began to appear inconsistent even with some of his family members’ report, that there’d been a significant history of child abuse in this family. When DHS takes a child out of a home, it is because there is significant abuse that can be documented. (Inaudible) of child maltreatment allegation and subsequent removal of his sister ABSTRACT 58 show even pictures depicting how this child had been abused physically very severely. Q. For the record, the child we’re talking about is Joana Pedraza, his older sister; is that correct? A. That is correct. That is correct. And this is a record from 10/21/1996, Arkansas Department of Human Services, Division of Children & Family Services. And what was very telling from this record is that, for example, the abuse of this child was so severe, not only that she was removed by DHS from her home, but also, as I said, that this child had damage to her left eye, that she had carpet burns, that she had scratches on her hairlines, that she had burns on her left arm and the left knee, and also that she had the presence of red-and-white spot in the square, the white portions of her eyes. When something like that happens, we suspect that very severe abuse has occurred in a human being enough to cause damage like that, so really, this information that was coming from factual records, not from what the family was saying, and really not from him because he was diminishing the impact of that abuse that occurred in his family. Really, also, he was part of that because he was living in the same household. (T 996) I would like to point out that during the clinical interview with his father, when I confronted with the father with the fact that he really abused his daughter, he ABSTRACT 59 admitted that he had abused his daughter, as well as the other siblings as well on some occasions; and, furthermore, he even said with regard to Joana he could not even tell DHS how many times he had hit her and beaten her, but in addition to that he admitted in Spanish, he says, “Y perdido limites.” “I lost my limits when I was abusing that child,” and that’s what he said to DHS. And that came directly from his own father during my clinical interview which was very consistent with these records. Q. For the record, his father is Enrique Pedraza; is that correct? A. That is correct. (T 997) Q. Going on further, you examined his military records. Well, you saw his DWI and DUI issues -A. Yes. Q. –- and you saw his military records? A. Yes. That was also very interesting because as I wrote in my report during my clinical interview, he tried to diminish the impact that attending the war had on him. And yet when you look at the information, he even reported, even to the state psychiatrist, he reported that there were some fire and that he used to have to run to these bunkers and so on, that the Hummer in front of him had been hit, even though his own Hummer was never hit, and so on. So, yes, so the records show that, number one, he had actually been to a war zone, that it was not something that he was saying ABSTRACT 60 or somebody else was saying. Q. You also determined what his employment history was; is that correct? A. That is correct. Q. And that’s reflected in your report? A. Yes. Q. And his marital history as well? (T 998) A. That is correct. That’s also very important, I think, when it is put in the context of all the stressors that this fine, young man –- or this individual –- has experienced in his lifetime, particularly, as he was growing up. One of the issues that occurred with this defendant is that not only was there a history of abuse in his family of which he was a part of, not only he was exposed to war -- which, fine, we can say that there’s nothing there -- but in addition to that, there’s a history of immigration of his family from a very early life, which in and of itself -THE WITNESS: I recommend that the Court read the literature on patterns of American immigration and Post Traumatic Stress Disorder and Depression that has shown through international research that immigration itself is a stressful event. MR. ROSENZWEIG: (Continuing) A. But, furthermore, he comes to the United States after he serves in the military and so he remains unemployed for a –ABSTRACT 61 THE COURT: “He comes to” –- I –- Slow down just a little. I’m trying to hear you clearly. “He comes to the United States” -MR. ROSENZWEIG: (Continuing) A. And then remains unemployed for almost a year then he –THE COURT: Well, when he came to the United States, you said he was three or four years old in your report; right? THE WITNESS: Oh, yes, sir, as a small child, yes. (T 999) THE COURT: So he would be unemployed for a few years? THE WITNESS: No, sir. When he come to the United States as a small child when he’s being drug by his mother as an immigrant to this country -- which by the way, apparently they get picked up by ICE and sent back to Mexico, okay? -- that is occurring as a child. I’m talking, also, when he came from the war back to the United States –THE COURT: Okay. THE WITNESS: –- then he remains unemployed for a year, Your Honor. THE COURT: Okay. THE WITNESS: Yes, sir. MR. ROSENZWEIG: (Continuing) A. So then he marries, Ms. Torres, which is one of the highest levels of stress that ABSTRACT 62 a human being –- The research literature supports this -– THE COURT: He married, what? THE WITNESS: Ms. Torres, Kenia Torres, his first wife. THE COURT: His first wife –THE WITNESS: Yes. THE COURT: –- which is a stressor? (T 1000) THE WITNESS: Yes, sir. By definition, if we look at the Post Traumatic Stress literature, marriage in a human being can be one of the largest stressors that a human being can experience in life. It’s a big change in life. Then that person leaves him. She leaves him shortly after that marriage and there is a divorce, another large stressor; then he marries again for the second time, Ms. Victoria Stuard, another stressor, and so on and so on. So it is not that this individual has experienced a single episode of stress or that he has had this single factor that we can hang on, it’s this entire picture of stress that has led this individual to be who he is today. MR. ROSENZWEIG: (Continuing) Q. Doctor, you also examined the records involving what I think we’ve described in previous hearings, as the incident at Ft. Chaffee, and then subsequent cuttings, and that type of thing; is that correct? A. Yes. And that’s again in my history -ABSTRACT 63 Q. Okay. (T 1001) A. –- showing that there have been episodes –- Again, people try to diminish the fact that he was cutting himself. That is absurd. People exhibit those kinds of behaviors within the entire context of this history that I’m reading, particularly, a documented history of difficulties that he had which required treatment when he was a young man. Q. Okay. And you’ve talked both with his mother and his father? A. That is correct. And that is also in my report, the interview with both of the parents. Q. With regard to the mother, you’ve indicated that there was –- You had ascertained from her about the poverty situation that they were in in Mexico when Daniel was a small child? A. Yes. Q. And, obviously, poverty is often associated with malnutrition and that type of thing, if you could elucidate further on that. (T 1002) A. Sure. Well, let me state that I spent time with the mother; and the mother agreed that there were times when it was very difficult, the malnutrition was a problem for the family, including for this young man. As I have shared with –- For example, when I teach about these factors in medical school. “If malnutrition occurs ABSTRACT 64 to me, who cares, I’m already an adult. If malnutrition occurs at critical stages to a human’s development during the period of brain development then it has greater significance because it’s not taking place when the brain is already developed, but it’s taking place when the brain is at a critical stage of development. So that took place. The mother indicated that there was a great deal of poverty, particularly, because there were periods of time when her husband was here working in the United States and the family was left in Mexico by themselves. In addition to that, the families themselves came from incredible poverty. For example, the clinical interview with the mother revealed that she had went to work as a youngster of nine years of age, cleaning houses, sometimes large numbers of houses, which is partially one of the reasons, perhaps, maybe why she didn’t go to school, but that she had to work at a very early age because of the amount of poverty that the family came from. Let me also say that in my experience, I have traveled to these areas and I’ve seen some of these places where these families live and it’s true, according to the work from the mitigation specialist, Mr. Lida here, is that these families sometimes come from backgrounds which are unheard of for us in the United States, thank goodness. These people sometimes don’t have electricity; they don’t have water –MR. DEEN: I’m going to object to –- This is a hypothetical exposition. THE COURT: The objection is relevancy. The objection is sustained. ABSTRACT 65 Confine the testimony and the questions, naturally, to –MR. ROSENZWEIG: Sure. (T 1003) THE COURT: –- Mr. Pedraza. If you can certainly testify from firsthand knowledge that Mr. Pedraza lived in abject poverty and was malnourished then I want to hear it. If you can’t and you’re just generalizing with respect to parts of Mexico then it would be irrelevant. MR. ROSENZWEIG: Your Honor, may I respond? THE COURT: To the objection? MR. ROSENZWEIG: Yes, sir. THE COURT: Sure. MR. ROSENZWEIG: Your Honor, first, this is a person with special skill, judgment, and experience – He’s already recognized as an expert. Secondly, he can talk about how his observations of Mr. Pedraza fit in with other observations that people have made, peer review journals, and other –THE COURT: But that’s not what he was testifying to, that’s the reason I sustained the objection. (T 1004) Certainly experts, if you wish to call them that, may rely upon hearsay. Let me say at the outset: I do not have your specialized knowledge and skill. This is not my first hearing in this matter. In general, with regard to psychiatry and ABSTRACT 66 psychology, it is of some interest to me, not in this case just, but in previous ones. I am aware of the standards of the American Psychiatric Society with respect to the preparation of forensic reports on mental conditions and the requirement, when hearsay is used to be very specific, whether it be with respect to statements, in other words, direct quotes, from a defendant; whether it be with respect to journals that are cited, as opposed to non-forensic reports. The point being, I wish you to be –- I’m asking that when you refer to an outside source to support your professional opinion that you identify specifically, not generally by simply referring to military records, but the document itself; or if it has to do with a quote from the defendant, you must be able to quote it specifically because this is a forensic report, not one to determine whether or not a child should be placed, for instance, in Special Ed. And rules are different and I’m not unfamiliar with them. (T 1005) I know this is an educational experience for me, from your perspective, but I may be further along than you give me credit for. So with respect to your future testimony, if you refer to abject poverty, identify exactly the basis of the foundation upon which you conclude that factually that this defendant existed in abject poverty and at what period of time in his life, same with malnutrition. Anything like that. Be as specific as possible. It will at least give your testimony greater weight with this Court. ABSTRACT 67 Go ahead. MR. ROSENZWEIG: (Continuing) Q. Doctor, let me ask you this, following up on Judge Gibson’s question –- You talked with the mother? A. That is correct. Q. And the mother informed you about various issues, and about the poverty, and malnutrition in terms of the inability to get sufficient food? A. Yes. Q. And I believe you observed –THE COURT: I’d like to hear this from him not from you, Mr. Rosenzweig. MR. ROSENZWEIG: Well, I’m trying to summarize so we can get –- (T 1006) THE COURT: I know. You know, he seems to be very willing to testify. I don’t think you’re going to need to lead him. And so I’m clear for the last time, when you say the mother told you something, what –- If you conducted an interview of her then you had to make quotes, you had to write down quotes from her so the Court is in a position to judge whether or not you drew the correct inference whether it be poverty, or whatever. MR. ROSENZWEIG: Your Honor -ABSTRACT 68 THE COURT: So if he can give me quotes, I’m asking for them; if he can’t just tell me you can’t do it. THE WITNESS: No, Your Honor, starting on page 5 and page 6, there are quotes. THE COURT: Good. Just hold your horses. MR. ROSENZWEIG: Your Honor, I will also point out Rule 703, I think is a little broader than what the Court has stated with regard to it. Rule 703 states: The facts or data in the particular case upon which an expert based an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible into evidence. THE COURT: I could quote that rule backwards. The point is is that when it comes to forensic reports that reach the issue of mental status, it’s an entirely different playing game. (T 1007) And, furthermore, the rule you cite may make those admissible, they don’t –It doesn’t necessarily make it admissible. It’s in the discretion of the Court. And I want to be able to give his opinions as much credence as I can, but only to the extent that he can support them with specific quotes or facts. Now, what page are you talking about? ABSTRACT 69 THE WITNESS: I’m talking about the bottom of page 4, sir, and the first paragraph on page 5. THE COURT: All right. All right. Give me a chance to read it. THE WITNESS: Yes, Your Honor. THE COURT: All right, with respect to malnutrition, I find no direct quotes. I find your summary of what she told you. THE WITNESS: Yes. (T 1008) THE COURT: “In addition” -- beginning on the second line. In addition, comma, she did not deny that maternal malnutrition may have been an issue –“Maternal malnutrition may have been an issue as a result of financial strife and poverty when she remained in Mexico after her husband left the United States. She also admitted that there were periods of time in Mexico when her children may not have had the best nutrition including the defendant at a critical period of development before they came to the United States when he was approximately three or four years old. According to Mrs. Pedraza, her son, the defendant, reportedly walked independently at the age of thirteen months and developed language without difficulty. She indicated that he did well academically but admitted he had minor behavioral problems and reported that once he became involved in a fight (she failed to mention the breaking and entering charges or the DUI, or other negative factors ABSTRACT 70 associated with her son).” So I’ve covered the malnutrition business, have I not –THE WITNESS: Yes, Your Honor. THE COURT: –- with respect to your supporting factual analysis? Thank you. Go ahead, Mr. -MR. ROSENZWEIG: (Continuing) Q. And, of course, we previously talked about having talked with the father; is that correct? (T 1009) A. Yes, sir. Q. Now, did you arrive based upon your conversations with her any conclusions with regard to the effect of maternal malnutrition, or make any observations with regard to the effect of malnutrition –- And is it the type of thing that at a person in your field would reasonably rely on in forming a conclusion? A. No, this is –- If you go –- First of all, I must use my knowledge as a professional. We do know what malnutrition does to the human brain. It’s in every textbook in our field. Q. And it’s, in fact, reasonably relied on by people in your field? A. Yes. ABSTRACT 71 Q. And you obviously were aware of conditions in Mexico in certain areas? A. Well – And I don’t have to rely on the conditions in Mexico, I can just rely on the verbal reports from the mother –THE COURT: Very good. MR. ROSENZWEIG: (Continuing) A. –- which is what I think, Your Honor, wants. And that’s what I’m trying to do. Q. Did you also talk with Mr. Pedraza’s sisters, Joana and Liliana? (T 1010) A. Yes. Q. And what did you –- Excuse me. Before I get to that, you indicated that you had talked with Enrique Pedraza, the defendant’s father –A. Yes. Q. –- and did he in fact admit to you abuse of any children in the household? A. Yes. Particularly, as I wrote on page 5, and it can be seen there, where he reported to me that he admitted that he had lost his limits with Joana at that time; and that when DHS asked him, he could not remember how many times he had hit her. And those are partially in the records of DHS as well. Q. And then you talked with Joana Pedraza, who was the specific recipient of this abuse -A. Yes. ABSTRACT 72 Q. Is that correct? A. Absolutely. Q. And if you could outline briefly what she told you. A. Well, essentially, she told me what was extremely consistent with the records, that her father would hit her, particularly when he drank excessively; and that he would hit the other children. She admitted all the children were so fearful that they would hide under the bed; and Liliana also admitted to that, the other sister, so her report, her verbal report, was very consistent with the fact that the father would kick them and hit them with the belt, so clearly, that she was abused; and there was no question about that. (T 1011) Q. And you also had phone calls with the –- You talked to the mitigation specialist, Mr. Lida; is that correct? A. That’s correct. Q. And then you looked at the records coming from the incident in the juvenile court with regard to the breaking and entering of the administration building –A. Yes. Q. –- of the high school and the counseling -- A. Yes. That’s also reported in the historical records showing that he and his sister broke into the administration building of their high school. ABSTRACT 73 Q. And the counseling that resulted therefrom? A. Not only counseling, but he was put on probation; and the records show that, the records from the State of Arkansas. He was also, not only put on probation, but he was required to receive some types of treatments to address some of those issues. Q. And you also had access to the records done by –-Or results obtained by Dr. James Walker; is that correct? A. That is correct. (T 1012) Q. And did Dr. Walker’s records show a –- And, you’ve subsequently, also talked with Dr. Walker? A. Absolutely. I did not depend on his records alone; I actually called him and he called me back and we had a conversation related to the assessment that he conducted of the defendant. Q. Okay. And, in fact -- Did you –- How did your --Let me ask you this: Is it appropriate for one mental health professional to talk with another mental health professional about their various observations? A. It should be conducted. As part of a comprehensive assessment, a professional should try to seek to speak to other professionals on both sides of the equation, the defense and the others, so that you can gather a better picture, not just of what it says on paper, but what the progressions of the conditions were, as well as other factors ABSTRACT 74 associated with the evaluations. Q. Did Dr. Walker’s results tend to mirror your results as far as Dr. Walker got in his testing? A. Yes. For example, the intellectual scores obtained for this defendant from Dr. Walker and mine were almost identical or very, very similar. (T 1013) He showed a profile of normal intellect, average intellect, but with a lower score on areas of working memory which is part of executive functioning component. The other thing –- and I’m quoting from a conversation that I had with Dr. Walker and I can provide the Court with my notes, if the Court so desires –- is that when I was actually speaking with Dr. Walker, one of the things that came across was that Dr. Walker indicated that he did not give a diagnosis of PTSD to the defendant because the defendant had minimized and had appeared defensive, or distressful, and so on and so -- But he said that he would consider such a diagnosis if we would provide the records, which he did not have, related to DHS showing that the family, that the abuse that had occurred in the family as well as other records from the military and so on, that he was willing –- and I’m going to quote the word that he used –- He would be willing to contemplate a diagnosis of PTSD. And that is in my report on page 8. Again, that comes into this evaluation long before I even saw this defendant. That is existing information from another mental health professional. ABSTRACT 75 Q. And with regard to –- And then, of course, you also spent a couple of days talking with Mr. Pedraza himself; is that correct? A. Not just talking, but conducting a clinical interview, as well as evaluating Mr. Pedraza, yes, Counselor. Q. And we’re at the section of your report that refers to behavioral observations? A. Yes. Q. And if you could summarize what you observed there –- A. Sure. (T 1014) Q. –- and then we’ll proceed on after that to the procedure and tests administered, talk about what all those are and then the results. First, your behavioral observation. A. Sure. First of all, as I noted on page 9 of my report under “Behavioral Observations,” I spent a total of approximately ten hours with this defendant. That is the largest and longest amount of time that any health professional has spent with him, be it from the state or any other individual from the defense. Q. And you interviewed him in the office of the Crossett Police Department? A. Yes. Q. Was the office adequate for your purposes? A. Yes, it was. Very quiet. Yes, the police department there was quite helpful in assigning a room to me, in getting rid of the telephone systems so there would be no ABSTRACT 76 interruptions. The room was quiet. And this is very important because we want to assess if there’s any threats to the validity of the assessment that is being conducted. And so the assessment area was very appropriate and very conducive towards developing rapport with him. Q. And in the conversations in the assessment with Mr. Pedraza, you refer to –- You had some observations with his demeanor and he also made some comments –A. Yes. Q. Could you go over those –- (T 1015) A. Yes. Q. –- and your observations? A. Sure. Sure, Counselor. Well, what is very telling about the behavioral observation with this defendant is that you could see the amount of distress that Dr. Walker spoke about and the defensiveness that he showed. For example, I noticed that -- Hinted to the presence of paranoia. For example, he said that he did not have any “real” defense attorney and he did not trust the first psychologist or the psychiatrist who evaluated him –And of course –THE COURT: I can’t –- Let me scoot over. I think you’re talking loud enough, if you’d just talk a little more slowly. Now, begin again. ABSTRACT 77 MR. ROSENZWEIG: (Continuing) A. Well, on page 10 of my report, which is part of Behavioral Observations in the clinical interview that I conducted with him, he reports to me that, for example, that he doesn’t have any “real” defense attorneys. THE COURT: Is this a direct quote? THE WITNESS: Yes. And you can see it here on page 10. THE COURT: What? THE WITNESS: On page 10, Your Honor, says in the third paragraph there, Although he initially appeared to be somewhat apprehensive as noted above, and he noted that he could trust, quote, no one –- (T 1016) THE COURT: Let me –- Okay. THE WITNESS: –- and he did not have any, quote, real, closed quote, defense attorneys and he did not trust the first psychologist or the psychiatrist –- he said “doctors” –- who had evaluated him. THE COURT: All right, I see where you’re reading. THE WITNESS: So there are the quotes, Your Honor. MR. ROSENZWEIG: (Continuing) Q. You made an observation about hinting to the presence of paranoia? A. Yes. ABSTRACT 78 Q. And could you describe why you came to that -- A. Yes. Q. –- was it because of what you just previously quoted? A. Yes. Part of that, yes. And, also, because of the defensiveness that he has exhibited and because actually -- He indeed has not made rational decisions in terms of assisting his own counsel. Q. I’m sorry, could you say that again, sir? A. Because he has not made –- Q. “Has not made”? (T 1017) A. –- made rational decisions in terms of assisting his own counsel. THE COURT: Would you care to lay a foundation to that opinion –MR. ROSENZWEIG: I will, sir. THE COURT: –- by example? THE WITNESS: Well, for example –THE COURT: Yeah. THE WITNESS: –- he doesn’t want to talk to his attorneys anymore because he feels that they’re not really helping him, so he told me he doesn’t want to talk to them. THE COURT: “Anymore,” what does that mean? ABSTRACT 79 THE WITNESS: He doesn’t talk to them. THE COURT: Since when? THE WITNESS: Well, even back then when I saw him –- If you look at the letter before I saw him when Dr. Stewart came to see him, even back then, as Stewart noted in that letter, which he sent to the Court, that in the interactions between his attorneys and him, he was not even assisting or even interacting with his attorneys. (T 1018) THE COURT: All right, just a minute. Slow down. I have a copy of that letter. Hand it to the good doctor. Where in there does Dr. Stewart say he’s not communicating with his lawyers? MR. ROSENZWEIG: Your Honor, he refers on the second paragraph –THE COURT: I’m asking the witness, not you. MR. ROSENZWEIG: Oh, I’m sorry, I thought you were asking me. THE COURT: No. You can’t testify. I’m asking the witness. He can –MR. ROSENZWEIG: I was just making sure he had the same document. THE COURT: I hope there’s only one letter. MR. ROSENZWEIG: Well, there is, Your Honor, I just wanted to make sure –THE WITNESS: Actually, what I’m referring to is where he says, “During ABSTRACT 80 the same two-day period I was also able to observe Mr. Pedraza’s interaction with counsel.” THE COURT: All right. So where does he say he’s not communicating? THE WITNESS: Well, I’m not sure that this particular letter said that he’s not communicating. (T 1019) THE COURT: Well, please tell me if there’s another letter. THE WITNESS: No, there’s not another letter, Your Honor. MR. ROSENZWEIG: (Continuing) Q. You have talked with Dr. Stewart? A. Of course. Q. And so you’re –THE COURT: I’m glad I know –- I know now that –- Mr. Rosenzweig has now resumed, so I will stop. I simply mentioned that –- You mentioned that the basis for your opinion was that Dr. Stewart had put it in his letter. I had the letter. It’s a short letter. I wanted to find out where it was. THE WITNESS: My own interaction with him and watching his own interaction with his attorneys. THE COURT: All right. I must have misunderstood what you said. MR. ROSENZWEIG: (Continuing) ABSTRACT 81 Q. Anyway. Doctor, did he also deny issues of abuse that his own family members had said happened which were also corroborated by the records? A. Yes. Q. And did he also downplay the issue of service in the combat zone? A. Yes, like he did with Dr. Walker, the previous psychologist who saw him before I saw him. He never shared with Dr. Walker that abuse had occurred in his family; and he diminished the impact that the war may have had on him. (T 1020) Q. Now, you also administered a number of tests; is that correct? A. That is correct, Counselor. Q. And let’s go over each one of these and what they show. THE COURT: It would help me if I simply got –- Wait a minute, let me get to a document. And it would make it easier and I think it’ll make it easier for everybody in making a record if we do it this way. I think I’ve got a list of all the possible tests. THE WITNESS: On page 11, Your Honor. It starts on page 11 of my report. THE COURT: Okay. I’m looking at what the Department of Behavioral Health Services uses as a chart for all the tests, what’s recommended, what’s not; and so I want to be able to check those off against your list of those that you –ABSTRACT 82 MR. ROSENZWEIG: Your Honor, do you have a copy of that for us -- I’m not sure what document we’re referring to –- so I could follow along as well? THE COURT: I don’t. Now, go ahead with the list of your tests. (T 1021) MR. ROSENZWEIG: I would ask permission to look at that if we could take a very brief recess so a copy could be made for both Mr. Deen and I. THE COURT: I just want to go on and hear his testimony. MR. ROSENZWEIG: Your Honor, I’ll renew that request at the appropriate time. MR. ROSENZWEIG: (Continuing) A. So starting on page 11 -- Q. Starting with the Beck Anxiety Inventory, (BAI)-English version, what does that –- What sort of –A. It’s an instrument that allows for the defendant to report symptoms associated with anxiety. It is not a diagnostic test for anxiety disorder. It allows us to assess symptomatology associated with anxiety. The next one: the Beck Depression Inventory. If you notice I give it to him both in English and Spanish versions. It’s an inventory that allows the defendant to report on his own symptomatology associated with depressive phenomena. The Boston Naming Test is a procedure of confrontational expressive language. It’s a test ABSTRACT 83 that allows to look at the expressive language of an individual. (T 1022) The California Auditory Verbal Learning Test-Second Edition (CVLT-II) is a test that allows to study both verbal and auditory memory, as well as learning skills. The Clinical Interview that was conducted with him. Clinical Interview with Family Members. The Color Trails Test 1 & 2 is a test of attention as well as executive skills. It’s a test that tries to look at not just superficial attention, but also more complex factors such as inhibition-disinhibition, and other executive controlled measures. The Delis-Kaplan Executive Function System, (D-KEFS), also a test of executive function. I administered Selected Subtests (inaudible) test to look, for example, information- processing skills, problem-solving skills, and other executive skills. Edinburgh Handedness Inventory-Modified is a test to try to determine what is the handedness of the individual in a formal fashion, so we don’t depend on observational or verbal report as to the handedness. MR. ROSENZWEIG: (Continuing) Q. You mean like left-handed or right-handed? A. That is correct. Degree of left-handedness or right-handedness is not a difficult phenomena, it’s a variable phenomena. There are certain degrees of humans of lefthanded and right-handed, an issue (inaudible) might tell us something about ABSTRACT 84 executive brain functions such as linguistic ability dealing with the human brain. (T 1023) The Finger Tapping Test is a test of gross motor skills. Let me also point out, based on the literature, and on footnote, and the peer review literature, that some of these tests –- Like, if you look at Footnote No. 11 -THE COURT: What page? THE WITNESS: My report on page 13. MR. ROSENZWEIG: (Continuing) A. –- the Finger Tapping Test –THE COURT: Give me a chance to get to the page. All right, Footnote 11. THE WITNESS: Uh-huh (yes). MR. ROSENZWEIG: (Continuing) A. So the Finger Tapping Test, if you look at the reference of that footnote, you can see that some of these tests can also be used to detect whether an individual is trying to present himself in a good or a bad light, or what some clinicians may claim, say, malingering. He doesn’t know that, but the test allows for that because very low performances or poor performances on some of these tests may tell you that there’s a lack of effort being provided by the defendant. Q. Well, while we’re on that did you determine any lack of effort or malingering ABSTRACT 85 from Mr. Pedraza? A. No, Mr. Pedraza has never appeared as that type of individual, not even in the report provided by the state where they said that he came across as a straight-forward individual. (T 1024) Q. Go on with the Grooved Pegboard. A. The Grooved Pegboard Test is a test of fine motor skills. Again, it tries to look at index finger motor skills. The Judgment of Line Orientation Test, it’s a test that allows us to study visual perceptive skills without a motor component. The Reitan-Klove Sensory Perceptual Examination is a test that essentially looks at one test, sensory perception. So an individual is asked, for example, certain fingers when his hands are touching, he must be able to detect which one is being touched and so on to (inaudible) on a human being. An extensive review was made of the DSM-IV Axis I Criteria. Review of Records, of course, is self-explanatory. The Rey 15-Item Memorization Test is a simple test, again, that tries to look at effort. It’s specific (inaudible) individual. Again, as I said, he passed that test with flying colors where he got a score of 15 over 15. The Rey-Osterrieth Complex Figure, that’s a test of visual perception with a ABSTRACT 86 motor component. And most critical, it also has an executive component. (T 1025) THE WITNESS: And that is in page 15, Your Honor, of my report. And that’s actually based on raw data obtained from the defendant where you see on page 15 of my report, which is Appendix-A, I think –- Yes, it’s Appendix-A in the report. You can see the figure (inaudible) far to the right that he’s drawn the figure almost out of the page. And that shows lack of planning skills. These things have actually –- The literature shows it has psychological validity in terms of the difficulties (inaudible) executive functions. THE COURT: And what test was this? THE WITNESS: The Rey-Osterrieth Complex Figure, the last test on Page 11 in my list of tests, Your Honor. THE COURT: Is that a drawing test? THE WITNESS: It is a drawing test you can look at visual perception and visual motor faculties, but because you also have to plan as you do that test, then it is also looking at executive components, which I’m sure, as Your Honor said, that psychology is very interesting and important to you, that you realize the importance of a test of executive skills in this individual. The latest functions known to the human brain to be critical in planning and in doing all kinds of other long-term skills. (T 1026) ABSTRACT 87 MR. ROSENZWEIG: (Continuing) A. The next –- Continuing on page 12 on the top is the Ruff Figural Fluency Test, that is the test, again, of executive skills looking at figural fluency, how many sides can he produce in a certain amount of time that’s constricted by the presentation of his stimulus. So we can assess, for example, planning skills, inhibition, disinhibition, and all these different kinds of factors. The next test is the Test of Memory Malingering, the TOMM. That is a far more difficult test to (inaudible) because it’s a (inaudible) measure unlike the Rey 15Item Memorization Test, which is not (inaudible). He was given the Wechsler Adult Intelligence Scale-Fourth Edition. He was administered the Woodcock-Johnson, Tests of Achievement, the Third Edition in English, to assess linguistic dominance as well as his reading skills and his reading comprehension because it was going to be used during the assessment. The Woodcock Language Proficiency Battery Test in Spanish to assess his ability to –- Dominance in Spanish and his reading skills in that language as well. Q. And then, of course, the next section deals with your results of these tests, if you could go over –A. Sure. Q. –- what you found in each of these. (T 1027) ABSTRACT 88 A. Well, first of all, as I indicated and as I was asked earlier, this is from his actual raw data at his performance (inaudible) examples that are most appropriate to him; and I’ll speak about that in a minute. The TOMM, he passed that test 50 out of 50 trials on Trial 1 and 2. The Rey-15 Item, he obtained 50 out of 59. And on the Finger Tapping Test, he exhibited more than 40 taps per 10-second-interval average which means that he gave good effort while he was performing that test. So there was no question to me that this individual was trying to do his best while he was taking these tests which has been the case for Dr. Walker when I spoke to him; and when you look at his data, as well, as not to mention, from the government, or from the State of Arkansas, the mental health department, indicating that this individual did not present himself in that kind of light. The next one has to deal with something we’ve already covered which is academic functioning and you can see that his levels of functioning in English are a seventh-grade level; in Spanish about a sixth-grade level in terms of reading comprehension and reading skills. (T 1028) The next one is very important and it should not be left on speculation like it was done in the evaluation by the doctor from the state; and that is we must study this individual’s intellectual skills because they tell us something about his level of ABSTRACT 89 functioning, and the profile may also tell us something about -- For example, what is it that could be impacting this individual? So, for example, the Wechsler, starting on page 14, he obtained an overall IQ score of 98. Ninety-five times out of a hundred that score could range between 94 and 102, so that’s the range of the test score, which makes (inaudible) in the average range which would be consistent with somebody who graduated from high school, somebody who served in the military, and so on. So, in that way, he appears to be straightforward in terms of my testimony, there’s no concerns because this was an issue that was raised by defense counsel; and that is, What is his level of intellect? So his level of intellect is within normal limits. So, really, this is not an individual who suffers from mental retardation. And I noted that in my report. THE COURT: I’m not tracking you. You didn’t raise the issue of mental retardation –MR. ROSENZWEIG: No, no, it’s something we talked about. We wanted to ensure that he wasn’t mentally retarded. You know, something we obviously need to check on just to make sure because, obviously, that has ramifications with regard to –- (T 1029) THE COURT: He graduated from high school –MR. ROSENZWEIG: That’s correct. ABSTRACT 90 THE COURT: –- and he served in the military –THE WITNESS: Yes. THE COURT: –- and so you wanted to eliminate the possibility he was mentally retarded? THE WITNESS: May I point something for the Court, Your Honor? THE COURT: Please. THE WITNESS: There are individuals who graduate from high school who over the years are passed from grade to grade in our great nation, unfortunately it occurs in many school districts, particularly in large school districts. For example, (inaudible) almost a decade in Baltimore, and it is not unusual sometimes to find some individuals who have graduated from high school suffer from mental retardation. THE COURT: And probably law school too. That’s just a joke. But in any event, please take it as a little levity, an otherwise very serious proceeding, but I would like to focus, as much as possible, on the fitness-to-proceed issue –- T H E WITNESS: I’m sorry, go ahead, Your Honor. (T 1030) THE COURT: I won’t finish. I would like to focus on the fitness-to-proceed issue, the issue as the Court appreciates it, Counsel, is that Mr. Pedraza is not fit to proceed because he suffers from PTSD. ABSTRACT 91 MR. ROSENZWEIG: And we’re getting there. THE COURT: And with respect to the intellectual functioning, I relate that to the PTSD. THE WITNESS: The working memory score that he shows for Dr. Walker before me and myself. THE COURT: Yeah. Because, I mean, I may be just too conventional, but, you know, I go by the DSM-IV -- I’m kind of supposed to do that -- with respect to stressors, and the method of diagnosis, and that type of thing; and so I wanted to alert you as to that so that if you wanted to educate me on what the DSM-IV requires respecting stressors and –- Maybe the DSM-IV says something about intellect. I’m not sure it does, but –THE WITNESS: Well, one of the things that we want to rule out (inaudible) intellectual skills in an individual and, again, just because he has a record –- For example, he graduated from high school may not mean that he has some difficulties. Something could also happen to him afterwards; or, in addition, this is an individual, for example, who was drinking alcohol heavily enough to have DUI’s. It’s possible that he was drinking enough to also impact his intellectual skills which will have a direct bearing sometimes on competence. (T 1031) MR. ROSENZWEIG: And, Your Honor, we’re trying to –- You know, we ABSTRACT 92 just don’t want to –THE COURT: I’ll leave it to you to –MR. ROSENZWEIG: Thank you. THE COURT: Go ahead. MR. ROSENZWEIG: Okay. MR. ROSENZWEIG: (Continuing) Q. So we were at the intellectual level and you determined that he was not or is not mentally retarded? A. That’s correct. And that he enjoys normal intellect. Q. The next provision you talked about is the area of concentration? A. The next area is attention and concentration. (Inaudible) factor from here is (inaudible) was within normal limits, but more complex visual concentration and executive skills including sequencing on the Color Trails Test-2, fell within the fifth percentile, which is in the borderline range. (T 1032) The next area is language. Here he performed in first percentile. I interpreted that not to be a great deal because of his bilingualism (inaudible) test. Particularly, in his Verbal Fluency, as I noted on page 15, was within normal limits. His speech is within normal limits and so on. The next area is visual perceptual skills; and here, if you notice, the obtained ABSTRACT 93 score on the Copy portion, particularly, as a result of poor process, the way he went about doing it, fell in the 5th percentile when compared to 20 to 29 year olds. (Inaudible) report, but the visual perception functioning is very good. In fact, that is one of his strongest strengths as an individual. The next area is learning and memory where he obtained scores that were within normal limits, so I’ll skip it in an effort to save time for the Court. Motor skill functioning varied, but overall was considered to be within normal limits varying from the very superior range through the average range. In the area where the most difficulties occurred which is very consistent with the literature, particularly in Post Traumatic Stress and other psychiatric conditions, was executive. THE COURT: Was what? MR. ROSENZWEIG: Executive, Your Honor. (T 1033) THE WITNESS: Yes, Your Honor, executive. THE COURT: I didn’t understand the “executive.” THE WITNESS: I apologize, Your Honor. THE COURT: No problem. MR. ROSENZWEIG: (Continuing) Q. For the record, so we’re all clear on this, when you refer to “executive functioning,” what do you mean? ABSTRACT 94 A. Executive functions are higher-order functions that are served by the human brain, particularly, the frontal lobes. We’re talking about long-term planning, inhibition, disinhibition, the ability to extract to high levels, working memory, and so on. So it is the concert effort of the human frontal lobes, the largest portion of the human brain, to take the actions and functions of all the other areas of the brain and synchronize them as a conductor will synchronize a symphony, to produce high-order skills in the human being. That’s what we mean by “executive skills.” Q. And what did you observe at the conclusion of those -- A. Well, these areas where he exhibited the greatest level of difficulties, which is very evident from a psychiatric standpoint because there is no specific profile, say, for PTSD or other areas –- the literature shows that –- what you do find –- And I have a footnote from this scientific literature to that, incidentally, for the Court. You can find several references under Wilson, Keane, on Footnote No. 19 of my report, as well as other references. Uddo, et al. U-d-d-o et al. In the Journal of Psychopathology Behavioral Assessment showing that these individuals may have a profile that shows slow deficits. And you can see that, for example, on the ReyOsterrieth, I included that on Appendix A. (T 1034) On the Color Trails-2, he obtained a score in the 5th percentile, even though this is an individual who obtains, for example, average intellect as well on most ABSTRACT 95 intellectual portions in other areas. You can also see it, for example, on the Ruff Figural Fluency Test. This is a very poor score for him for multiple reasons, his youth, as well as other factors. He obtained a score in the 10.6 percentile when compared to 16 to 24 year olds with a high school education. So that is the area where we see some of the greatest difficulty in his profile. Then, finally, the Behavioral/Emotional area of functioning. Q. And in that you refer to the –- In there you’re referring to –- Looking at the DSM-IV criteria –A. Yes, for the definitions. Yes. Which we’ll get to that in a moment. Q. Okay. Anyway, proceed on, Doctor. (T 1035) A. Well, the other area which is important to assess the areas, that even though the defendant is indicating that he’s not depressed, that he’s not anxious, that there are no problems existing at all, whatsoever, like he did with Dr. Walker and myself, when he’s actually given an actual objective measure that would have symptoms or problems such as the Beck Depression Inventory looking at symptoms of insomnia and aggression. You get to see the first elevations in those (inaudible). And this is also common in patients sometimes. Patients can tell you that they have no problems ABSTRACT 96 when indeed you look at objective indicia and they do show that there are problems just like a person for the first time that are given glasses, may realize that they were not able to see well until those glasses are put in their face and they can see then well. So the other area that was assessed –THE WITNESS: And I may add, one thing that took me aback, Your Honor, in this case which has never happened in my fifteen years of practicing in over forty cases, including federal and state court, is that the government never asked to look at my raw data. THE COURT: Didn’t ask, what? THE WITNESS: The government never asked to look at my raw data. COURT REPORTER: To look at his raw data. THE COURT: Raw data. Raw data. Raw data from, where? THE WITNESS: From my evaluation. MR. ROSENZWEIG: His evaluation. THE COURT: Okay. Well, if you’ve got it here –- (T 1036) THE WITNESS: Well, they (inaudible) request it, but now is not the point to do that. The point to do that is before they give their opinion as to whether -- in terms of competency for this defendant. THE COURT: Well, did you bring your raw data? ABSTRACT 97 THE WITNESS: I have a copy of my raw data here, sir, for them to inspect if they so desire. THE COURT: Very good. Maybe they didn’t need it, I don’t know. I have no idea what goes on there. Go ahead. (T 1037) THE WITNESS: (Inaudible) extensive evaluation that was done looking at all the different Axis I, DSM-IV criteria to come to the conclusion that his emotional profile (inaudible) most likely met the criteria for Post Traumatic Stress Disorder, and that was based on multiple factors, including the fact that, unquestionably, the factual record, whether he admits to it or his family admits to it or not, the factual record shows that this is a family where severe abuse occurred to such an extent that the sister was removed from their home by the State of Arkansas long before we find ourselves in this courtroom today and long before Dr. Llorente testified in this court. That’s a factual record. So I have a history of abuse; I have an individual who was exposed to war; I have an individual who came through a migrational process. And I recommend that the Court looks at the literature on Post Traumatic Stress Disorder and Migrational Processes as well as International Spectrum. I have written about it myself in my textbook when assessing Hispanics. We look and see that the migration process is capable of creating Post Traumatic Stress as well as depression across the entire historical record. For example, these factors affected Irish immigrants coming ABSTRACT 98 to the United States at the turn of the last century during the potato famines. It occurs, for example, large migrations going from the Middle East to Australia, as well as migration coming to the United States from abroad, including Mexico migrations, which is the largest migrations of any transit to this country. So I don’t want to insult the Court’s intelligence, but you can see all these different stressors that this individual had led me to believe that he did meet the criteria for Post Traumatic Stress. (T 1038) Finally, Your Honor, I think it’s around page 463, if I remember correctly and my memory serves me right. THE COURT: It may be 464. THE WITNESS: Thank you, Your Honor. And, actually, I would like to go to the actual diagnostic criteria –THE COURT: By all means. THE WITNESS: –- because I jotted down this in my report, Your Honor. On page 468, the fact that this defendant has diminished and avoided indicating that there was no trauma in his background, inconsistent with the documented record, is not uncommon in these individuals who suffer from Post Traumatic Stress Disorder. And you can see on Criteria-C on page 468, C says, “Persistent avoidance” -ABSTRACT 99 THE COURT: Let me get to my DSM. THE WITNESS: Yes, Your Honor, page 468. THE COURT: You may proceed. THE WITNESS: The criterion states that persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more. One: Efforts to avoid thoughts, feelings, and conversations associated with the trauma. Efforts to avoid activities, places, or people that arouse recollections of the trauma. (T 1039) So it is not uncommon for these individuals to minimize, to diminish. I remember when I was a fellow at UCLA seeing a lot of these patients who have PTSD –MR. DEEN: Excuse me, Your Honor, I’d like to object to relevancy. This is a competency-to-stand-trial hearing, as I understand it, and this witness has been on the stand for ninety minutes and has not reached that point yet. MR. ROSENZWEIG: Well, we’re getting there because we wanted to lay a proper foundation as opposed to us pulling –THE COURT: I’m going to give you another, you know, five minutes. You’ve traveled a long way and we’re finally, after an hour and a half, on the DSM, so I’m going to let you proceed and tell me -- Let’s say you believe that the stressors ABSTRACT 100 listed by the DSM are present here and that this defendant suffers from PTSD. THE WITNESS: I do, Your Honor. (T 1040) THE COURT: And then the next -- Counsel, then you need, naturally, to be able to establish a causal relationship between the degree of PTSD that he has and his ability to rationally understand the nature of the proceedings against him and to communicate with counsel. Go ahead. Let’s make that causal connection –MR. ROSENZWEIG: That’s where I was headed. THE COURT: –- assuming you’ve made the diagnosis. Go ahead. MR. ROSENZWEIG: Just a second, Your Honor. MR. DEEN: May I approach? [Bench conference] MR. DEEN: If he’s going to be on the stand much longer, I need a break. MR. ROSENZWEIG: I’m sorry, what did you say? MR. DEEN: If he’s going to be on the stand much longer, I’m going to need –THE COURT: Wrap it up with the causation and we’ll break so Mr. Deen can cross. MR. ROSENZWEIG: Well, we’ve got awhile to go on our testimony. THE COURT: Is this your only live witness? ABSTRACT 101 MR. ROSENZWEIG: This is our only live witness. We’ve still got a ways to go on direct, at least probably fifteen or twenty more minutes. THE COURT: Fifteen or twenty more minutes –- (T 1041) MR. ROSENZWEIG: Yes. THE COURT: –- in order to establish the causal relationship? MR. ROSENZWEIG: Well, also to comment on the state’s report. THE COURT: You wouldn’t save that for rebuttal after you listen to –MR. ROSENZWEIG: He may want to rebut, too, but he wants to reserve –- THE COURT: That’s fine. Absolutely. If you’ve got the burden why should I substitute my judgment. We’ll take a break now, Mr. Deen. [Open court] THE COURT: We’ll break for fifteen minutes and come back. I think everybody will get done what they want to in that period of time. This Court stands in recess. (Break) THE COURT: You may resume, Mr. Rosenzweig. (T 1042) MR. ROSENZWEIG: Thank you, Your Honor. MR. ROSENZWEIG: (Continuing) ABSTRACT 102 Q. Before we left, you had –- Doctor, you had described the various factors that led you to conclude that Mr. Pedraza suffered from PTSD, Post Traumatic Stress Disorder; is that correct? A. Yes. Q. Were there any other factors that you wish to add in that regard? I believe in your report you referred to some, I guess, differential diagnoses and that type of thing as well. A. Yes, because it’s very difficult when we see a defendant for such a short, brief period of time -- and I’m talking about ten hours only -- it is very difficult sometimes to get a complete picture; and there may be other diagnoses, as I mentioned, in my report, that may be applicable but they require far more investigation than what we were able to do. Q. But you feel that he suffers from Post Traumatic Stress Disorder as described in the DSM-IV; is that correct? A. Absolutely. As is described in this diagnostic criteria and starting on page 467 and going to page 468. Q. And you also believe that he appears to meet the criteria for depression in the DSM-IV; is that correct? A. Yes. It was my opinion that he met the criteria for that and actually that he also ABSTRACT 103 has met that diagnosis in the past as well. Q. Now, with regard to your –- (T 1043) THE COURT: Is this a current diagnosis of depression or is it –THE WITNESS: Both, Your Honor. Current, I believe it, as well as past that’s why I said “as well as past.” MR. ROSENZWEIG: (Continuing) Q. In your report you go on for several pages about your summary and clinical impressions; and we can incorporate that by reference in your testimony here. I do want to ask you then your opinion that he is not competent or not fit to proceed at this time? A. That is correct. Q. And that is your opinion? A. Yes, that is my opinion that he is not fit to proceed at this time. Q. And you have also consulted with Dr. Stewart about that as well; is that correct? A. That is correct. Q. And his input also confirms your position; is that correct? A. That is correct. (T 1044) Q. Now, for the record, the Arkansas State Statutory Standard of Fitness to ABSTRACT 104 Proceed, which is Ark. Code Ann. § 5-2-302(a) states as follows, “No person who lacks the capacity to understand a proceeding against him or her or to assist effectively in his or her own defense as a result of mental disease or defect shall be tried, convicted, or sentenced for the commission of an offense so long as the incapacity endures.” A. That is correct, Counsel. Q. And then you also, in some of your documents, refer to the federal standard of -- the Constitutional standard –- of Dusky –A. Yes. Q. –- is that correct? A. Absolutely. Dusky v. United States, U.S. (1960). Q. Tests must be whether he has suffered sufficient present ability to consult with a lawyer with a reasonable degree of rational understanding and whether he has a rational, as well as a factual understanding, of the proceedings against him. A. That is correct. So there’s a two-prong condition here. One is: Do you understand the proceedings in a rational way? And the second one is whether you are able, have sufficient ability to consult with the lawyer within a reasonable degree of ration and understanding. Q. And what is your opinion with regard to Mr. Pedraza’s fitness to proceed under ABSTRACT 105 these circumstances, and the basis for your opinion? (T 1045) A. Yes, well, first of all, I am in agreement with the government’s opinion that at somewhat rudimentary level he does understand his charges against himself; he understands these proceedings; he understands what the different parties’ roles are in this regard. However –- And as I said, as I indicated in my letter dated 4/11/2013, which has been given to the Court already. However, in regard to –- This is where I come to the conclusion that this individual has not fully assisted counsel because of his mental defect, because of the Post Traumatic Stress Disorder, in that he has not made rational decisions in that regard to a certain extent, as I mentioned, that he has even told counsel that he’s not even talking to them anymore as of May 13th, I think, of this year. So that would definitely, as far as I’m concerned, does not meet Prong No. 2 under the Arkansas Code. THE COURT: Did he give you a reason why he didn’t, so the Court can determine whether or not his reason is rational? MR. ROSENZWEIG: I’m sorry, could you repeat that question, sir? THE COURT: Did he give you a reason why he’s not talking to his lawyers? MR. ROSENZWEIG: Your Honor, while he’s doing that, if I could just correct something in the record. (T 1046) THE COURT: No, I want him –- I’m not as good as the rest of y’all, I have ABSTRACT 106 a one-track mind and I need him –- He says he hasn’t been talking to his lawyers since May 13th –MR. ROSENZWEIG: That’s what I wanted to –THE COURT: And I just want him to tell me if Mr. Pedraza said why. MR. ROSENZWEIG: Your Honor –THE COURT: Just –- Don’t say anything for a minute. I’m giving him that chance. It’s a legitimate question that goes to the heart of this case, or this hearing. MR. ROSENZWEIG: Your Honor, may I say something? THE COURT: No, not until –- I’m giving him time. THE WITNESS: Your Honor, I’m looking in my report for his quotes, so out of respect for the Court, I would actually like to produce a quote where he talks about his attorney; and I’ve already actually provided in the testimony here already, but I want to find that quote for you, Your Honor. THE COURT: And I’m giving you all the time you need. THE WITNESS: And I appreciate that very much –THE COURT: You bet. (T 1047) THE WITNESS: –- and I apologize for having such a poor memory that I cannot remember –THE COURT: My memory’s not good either. Go ahead. Take all the time ABSTRACT 107 you need. THE WITNESS: Okay, Your Honor, I found it. THE COURT: Good. THE WITNESS: I apologize for taking the Court’s time. THE COURT: No, please don’t. THE WITNESS: This comes from the clinical interview if you go to page 9 under “Behavioral Observations.” THE COURT: Yes, sir. I don’t see –THE WITNESS: Hold on a minute, Your Honor, I think I may have lost it. Okay. Here, I found it. On page 10, on paragraph 3 –THE COURT: What now? THE WITNESS: Paragraph 3, Your Honor. THE COURT: Gotcha. (T 1048) THE WITNESS: Although he initially appeared to be somewhat apprehensive as noted above, and he noted that he could trust no one, quote, and he did not appear to have any, quote, real defense attorneys. That’s the mainstay of why he doesn’t want to talk to his attorneys because he doesn’t trust them. He cannot trust no one. THE COURT: What I’m asking is, did he say why or did you ask him why? ABSTRACT 108 THE WITNESS: I do not recall whether I asked him why or not because on –- First of all, let me state that the report from the government reports some of the same thing that he noted to them that he could not trust people, or something to that nature. So, no, I do not think that I did ask him why. THE COURT: Because my experience, sometimes clients don’t trust their lawyers either initially or later, you know, and that’s not uncommon and I -- But I just wanted to know why he’s not –THE WITNESS: Well, Your Honor, again, I would like to step back and point out where I pointed out earlier today that, yes, let’s pretend he didn’t have the history that he has, I may have interpreted his reluctance to talk to his attorneys in a different fashion. And you and I may choose not to talk to our attorneys for certain reasons, but my parents never abused me at my house. And the beauty of this, Your Honor, is that on the DSM-IV, the definition for Post Traumatic Stress Disorder, I don’t even have to experience the abuse myself directly; I only have to be a witness to it, if you look at the definition. (T 1049) THE COURT: You would or wouldn’t have to be a witness? THE WITNESS: You have to be a witness to it, but you don’t have to experience it yourself. In other words, the physical abuse doesn’t have to occur to you directly. ABSTRACT 109 THE COURT: You can witness a traumatic event, I understand that –THE WITNESS: Yes, Your Honor. THE COURT: –- and it can be a stressor. THE WITNESS: Yeah. THE COURT: I’m with you there. All right, go ahead, Mr. Rosenzweig. MR. ROSENZWEIG: Thank you, Your Honor. For the record, what I was trying to say earlier, is that the date of May 13th that Dr. Llorente –- it was actually May the 3rd, I just wanted to –THE COURT: Right, but he testified May 13th. MR. ROSENZWEIG: No, he was relying on a statement –- On information from us and the date was –THE COURT: Regardless, as you’ve told me, he can rely upon whatever he wants to if he’s an expert –- You know, when he said May 13th, you know, you told me to let him testify to all this hearsay, I was letting him testify to all that hearsay. (T 1050) MR. ROSENZWEIG: Yes, sir. And I was just merely trying to correct the record because he was reading from his notes; and the relevant date was May 3, not May 13. THE COURT: Right. Well, he thought the relevant date was May 13. And ABSTRACT 110 the reason it caused me a little concern is is that your interviews all preceded May 13th, didn’t they? MR. ROSENZWEIG: Well –THE COURT: I’m asking the witness. THE WITNESS: Yes, Your Honor. THE COURT: Okay. That’s all. Go ahead. MR. ROSENZWEIG: (Continuing) Q. Doctor, let me ask you this: So you do not feel that he is rationally -– able to rationally –- or is not rationally and effectively able to discuss the matter with counsel as because of his PTSD? A. That is correct. Q. And PTSD is a mental disease; correct? A. Yes, Counselor. (T 1051) Q. Now, do you also –- Let me ask you this: What would need to be taken to restore him to competency? A. Well, I wrote in my report, as we all know here, competence is a very fluid and dynamic issue; and in my letter of 4/11/13, and here, I’ve indicated, “Therefore, it is my opinion that this defendant is not competent to stand trial at this time. Competence is a fluid concept capable of changing overtime, and it is quite possible that he may ABSTRACT 111 become competent in the near future, particularly if he receives assistance to address his psychiatric symptoms noted in this report” -- for example the level of anxiety, depression, and so on. THE COURT: For example, what, now? COURT REPORTER: “The level of anxiety and depression.” THE COURT: “The level of anxiety” -THE WITNESS: –-“and depression”-THE COURT: --“and depression”? THE WITNESS: Uh-huh (yes). MR. ROSENZWEIG: (Continuing) Q. Doctor, you had an opportunity to review the report from Dr. Ramos from the Arkansas State Hospital; is that correct? A. Yes, of course, I had an opportunity to review that, but I just received that last Friday. Q. This is a copy of it. I would like to go through some of the observations that you have made with regard to this; is that correct? A. That’s correct. (T 1052) Q. Obviously, the front page is the summary and opinions, and you disagree with those –ABSTRACT 112 MR. MORLEDGE: One moment, Your Honor. (Break) MR. MORLEDGE: Thank you, Your Honor. MR. ROSENZWEIG: Can I have one second, Your Honor? (Break) MR. ROSENZWEIG: Your Honor, I recall that question and we’ll deal with this on rebuttal at the appropriate time. THE COURT: So they suggested to you what I suggested –MR. ROSENZWEIG: Your Honor –THE COURT: –- at our break, that you allow the witness to testify and then rebut. Sage advice, Co-counsel. Sage advice. MR. ROSENZWEIG: Anyway, we will tender the witness for crossexamination. THE COURT: Before you do, there’s been a Dr. Walker’s report that’s been referred to throughout your testimony and I saw it in your –- Who is Dr. Walker? (T 1053) MR. ROSENZWEIG: Your Honor, if I could answer that because –THE COURT: But he’s the one who testified about him, you didn’t –MR. ROSENZWEIG: I was just going to refer the Court to previous ABSTRACT 113 pleadings in this case. In the motion for continuance, Dr. Walker was one of the affiants and he had reported in our motion for continuance last fall that he had examined Mr. Pedraza, had not been able to deal with –- There were some issues of the Spanish-language issue, why we needed to get someone who is fluent in Spanish, et cetera. But Dr. Walker’s name has appeared earlier in these proceedings. I just wanted the record to so reflect. THE COURT: That’s right. THE WITNESS: And, Your Honor, I would like to add that Dr. Walker’s raw data is also available for review by the government -THE COURT: Is it? THE WITNESS: -- and I brought that raw data as well. THE COURT: Did Dr. Walker provide you with a written report? (T 1054) THE WITNESS: No, he did not provide me with a written report. He provided me the raw data directly; and during our meeting and conversation, we discussed what his findings were which is what I wrote in the report. THE COURT: Who is he? Tell me, what are his qualifications? THE WITNESS: He is a very qualified American neuropsychologist that practices throughout the United States and has been accepted in many jurisdictions and so on. He is a well-respected neuropsychologist, sir. ABSTRACT 114 THE COURT: Where would I find Dr. Walker? THE WITNESS: You can find him, even going to the Internet, very easily. THE COURT: I can’t go to the Internet. I have no idea how to do it. THE WITNESS: Well, for example, you can go to a national directory of psychologists and find him there. THE COURT: Where does he practice? THE WITNESS: I think Dr. Walker practices in Indiana, but don’t quote me on that. THE COURT: I see. And was he a defense expert? THE WITNESS: Yes, Your Honor. THE COURT: And no written report from Dr. Walker? (T 1055) THE WITNESS: There was no written report from Dr. Walker except -– THE COURT: What kind of raw data is there that the state could look at? THE WITNESS: All the raw data from all the tests that he administered –THE COURT: Same tests that you administered? THE WITNESS: Some of them, not all of them. THE COURT: Did he –- Only one other question before Mr. Deen takes him on cross, I want to know if he, Dr. Walker, that is, administered MMSE. THE WITNESS: May I get the data from Dr. Walker, Your Honor -ABSTRACT 115 THE COURT: By all means. THE WITNESS: –- which I have in my -- And I can answer that question precisely. THE COURT: And once he answers that, that’s all I want to know simply because that test was administered by the state. MR. ROSENZWEIG: I’m sorry, what? THE COURT: That test was administered by the state. (T 1056) THE WITNESS: Yes, he did administer the Mini-Mental Status Exam. THE COURT: And –- Well, I promised that would be my only question. I’ll hold to my promise. Thank you. THE WITNESS: And he obtained a score of 29 out of 30 with Dr. Walker. THE COURT: And –THE WITNESS: And here’s the raw data. THE COURT: Well, you can just leave it up there. You’re fixing to be crossexamined. Let me see his score. Was it 30 out of 30? Let’s see, 29 out of 30 for Dr. Walker; 30 out of 30 for the state? THE WITNESS: Uh-huh (yes). THE COURT: So they scored it the same? THE WITNESS: Very similar, yes. ABSTRACT 116 THE COURT: Is there a significance? What conclusion do you draw from that? THE WITNESS: That his mental status is good. Incidentally, under U.S. Dusky, Milton Dusky himself had good mental status examination. It does not mean that a person is not competent -– That a person is competent to stand trial simply because their mental status is acceptable. (T 1057) THE COURT: Thank you. Mr. Deen, your turn. MR. DEEN: Thank you, Your Honor. May I approach the witness? THE COURT: You may. MR. DEEN: I’ll show you what I’ve marked as State’s Exhibit A. THE WITNESS: Good morning, Mr. Deen. MR. DEEN: Good morning, sir. CROSS-EXAMINATION BY MR. DEEN: Q. Would you agree that that is Section 308.81 of the DSM-IV that’s been under discussion earlier this morning? A. 309.81. (Three-o-nine, point eight one). Q. 309.81. (Three-o-nine, point eight one). Look at all the pages –- A. It looks like it, Counselor –ABSTRACT 117 Q. –- and verify that they’re all there. I know we all have our copies that we’re reading from at our desks, but I’d move for the admission of State’s Exhibit A. MR. DEEN: This is part of the Record, Your Honor. (T 1058) THE COURT: Without objection. MR. ROSENZWEIG: No objection. THE COURT: It’s in. MR. DEEN: Thank you. (WHEREUPON, State’s Exhibit A was introduced into evidence, was marked by the reporter, and is attached hereto.) MR. DEEN: (Continuing) Q. Would you agree that the DHS records you reviewed on the removal of Daniel Pedraza’s sister do not make any reference to Daniel? A. I would have to look at those records, Counselor, to answer that question. THE COURT: Well, please do. MR. DEEN: (Continuing) Q. While we’re gathering that, Daniel would have been, what, six or seven at that time? ABSTRACT 118 A. May I wait until the record comes on, Counselor? Q. Very good. We can agree Daniel’s birthday is January 27th of 1989? A. Yes, Counselor. THE COURT: Question to the witness is: Do the records contain references to Daniel? THE WITNESS: I understand, Your Honor. Thank you. I appreciate that. THE COURT: Right. I’m repeating it really more for my benefit. THE WITNESS: I appreciate that, Your Honor. MR. DEEN: (Continuing) (T 1059) Q. I mean, you would recall if Daniel was involved in the incident of abuse against his sister, wouldn’t you? A. Yes, that is correct, Counselor –- But the problem is is that I do recall where she may have provided to one of the DHS more information that she was concerned about her family and so on, and may have included her brother. That’s what I cannot remember. THE COURT: You can’t remember that? Well, let’s just save all that and let’s just make –- Let me take those records and we’ll make them an exhibit. MR. DEEN: I’d offer them as State’s Exhibit B. MR. ROSENZWEIG: Your Honor, if we could substitute a copy. ABSTRACT 119 THE COURT: Absolutely, you’ll get to make a copy. (WHEREUPON, State’s Exhibit B was introduced into evidence, was marked by the reporter, and is attached hereto.) MR. DEEN: (Continuing) Q. You would agree with me, would you not, that although there may be a reference to Daniel somewhere, or at least to a brother who’s unnamed somewhere in these records, that he was not involved in this incident of abuse between his sister, Joana, and their father? A. In that instance, it is possible, yes, Counselor, that he may not be involved. (T 1060) Q. Okay. And don’t even know whether he witnessed it or not, do we? A. That’s –- Yes. Q. Yes, we do know or, yes, we don’t know? A. We don’t know if he witnessed it. Q. We don’t know if he witnessed it or not? A. That is – Q. We don’t even know if he was home? ABSTRACT 120 A. You are correct, Counselor. That is correct, Counselor. Q. Now, what age did you say he would have been at the time? A. I didn’t say. I said, Let me look and see. THE WITNESS: What are the dates of those records, Your Honor, if you may? THE COURT: Photographs are taken 11/12/96. MR. DEEN: (Continuing) A. So he would have been about seven years old. Q. Seven years old. And she was, I think, sixteen or seventeen, was she not? A. Yes, I think she was in adolescence around that age. (T 1061) Q. Without going much into details, her father became very upset with her because of her proposals to be with a young man whom the father disagreed with; is that right? A. I disagree with that. Q. You believe the father was upset with her for some other reason? A. I believe that the history of abuse had long predated the fact that this child wanted to leave the home unmarried. Q. What allegedly precipitated this precise event that involved the removal of her ABSTRACT 121 desire to be with someone else, to leave and marry? A. What she told me during my clinical interview which I wrote in my report is that she was leaving her home because of the abuse. Q. And that included sexual abuse against her, too, didn’t it? A. It did include some touching; and I wrote in my report “without penetration.” Q. Right. And there’s no evidence that you’re aware of that Daniel was even aware of the sexual advances that -- I believe that is actually Joana’s stepfather; is it not? A. That is correct. He’s not her biological father. Q. Joana’s stepfather, it would be Daniel’s half-sister? (T 1062) A. Yes. Q. Assuming that Enrique is Daniel’s father? A. That is correct. Q. (Inaudible) yourself? A. There was some word from Mr. David Lida that alluded to some of that information. But I, personally, Counselor, don’t have that information. Q. Now, aside from the DHS removal, which we don’t know whether Daniel knew about or was present at; aside from the sexual abuse, which we don’t know whether Daniel knew about or was present at, what evidence of severe family abuse did you ABSTRACT 122 find, aside from the fact Daniel said his father gave him whippings? A. Well, there are several. Q. Give me the first one. A. I’m going to give you a quote, Counselor, how about that? Q. If it answers the question you can do that. A. Okay. So, for example, if you go to my report -THE WITNESS: On Page 21, Your Honor -- MR. DEEN: (Continuing) A. –- you can see a quote where Daniel himself is reporting on -- From Investigator Clayton Moss and Lieutenant Nichols on page 24/40 of that interview –- and I quote –- you can look it up over there, it says, “no little whippings, there was some big ones.” So I –Q. That was the predicate of my question. That was the predicate of my question. Aside from Daniel admitting that his father gave him whippings, what other evidence did you rely on to conclude that there was severe family physical abuse against Daniel? (T 1063) A. Well, the fact that Daniel lives in the same home in which this is occurring and the verbal report from, not just Joana but Liliana, that the whippings took place, that the children used to hide under the bed because they were afraid of the beatings that ABSTRACT 123 were taking place. Q. So the fact he’s a member of the household implies that he may have received the same treatment? A. And the scientific literature, Counselor, you know, I must not come here and say, I forget everything I have learned with regard to child abuse. We do know abuse exists in the home. It’s not that his father chooses one child and abuses only that child, and the other children in the home don’t experience and witness this abuse and so on. Q. As long as we understand that’s your assumption; and I’m not challenging your assumptions, or your right to make an assumption, as long as the record is clear that you were assuming these things. A. Counselor, I think if you changed the word “assumption” for “educated inferences,” I would agree with you. Q. Also called “educated guess,” right? A. (No response.) (T 1064) THE COURT: Well, in this case, the Court is in as good a position as anybody to make a –- draw inferences –- which we call circumstantial evidence –draw inferences from other facts in the case. (Phone ringing) One thing I would like to get cleared up, I glanced at these records (phone ringing) -ABSTRACT 124 THE WITNESS: I apologize. THE COURT: Don’t. It’s happened to everybody. The word “removal” has been used for a couple of hours today. THE WITNESS: Yes. THE COURT: I glanced at that. It’s not a juvenile division case; it’s a report of child maltreatment. I didn’t see a removal order in there, is there one? MR. ROSENZWEIG: Yes, sir, there is and it was provided to Mr. Deen. We got the judicial records first before we got the –THE COURT: Are the judicial records included –MR. ROSENZWEIG: No –- I have them here if –THE COURT: Good. Well, let’s get them, I want to see them. I assumed that you gave him everything. (T 1065) MR. ROSENZWEIG: Well, we did give them everything. You asked –THE COURT: Just bring them up, Mr. Rosenzweig. Don’t worry about whether we’re talking past each other. Go ahead with your question while he’s pulling those up. MR. DEEN: Thank you, sir. MR. DEEN: (Continuing) Q. Now, you have stated that, in your opinion, Daniel Pedraza minimized his ABSTRACT 125 experiences while he was overseas in Iraq; is that right? A. Yes. Q. And you have also stated that he only reported that one of the other Humvees in a convoy he was in was struck by sniper fire; is that right? A. That’s correct. Q. There’s no evidence anyone was injured in that –THE COURT: Let –- I’m sorry to interrupt you. Let’s go on and get those –MR. ROSENZWEIG: This is the judicial record, Your Honor. THE COURT: Make it all one exhibit and we’ll make –COURT REPORTER: Okay. THE COURT: –- him copies. Go on and get it marked. If you want to mark it as part of that exhibit. (T 1066) COURT REPORTER: Okay, this one’s already marked DHS. MR. DEEN: Do you want to make it State’s C, or how do you want it? THE COURT: Yeah, State’s C. MR. DEEN: Okay. That will be the next one in order. THE COURT: I’ll look through them. It’ll give me something to do while you’re asking. ABSTRACT 126 (WHEREUPON, State’s Exhibit C was introduced into evidence, was marked by the reporter, and is attached hereto.) MR. DEEN: (Continuing) Q. That other humvee in a convoy he was in was hit by sniper fire; is that right? A. That is correct. Q. No indication that anyone else was injured in that? A. No. Q. No indication that it put his own life in any danger? A. No, Counselor. Q. And he gave no indication that it was a stressor to him in any way? (T 1067) A. That’s right. Q. He said that it was part of his training to deal with that sort of thing? A. Yes. Q. The other thing he mentioned was that there would be either mortar or rocket fire that the insurgents would fire into the camp he was in? A. Yes. And I think they’d run to bunkers or something every time the fire came over -– Q. Presumably an air raid warning, or something to that –ABSTRACT 127 A. Yes. Q. But he didn’t indicate that anyone was injured in those attacks, did he? A. No. Q. He didn’t indicate that this was a stressor to him because he felt it was something he was trained to handle as a soldier; is that right? A. Yes. Q. Do you know what camp he was stationed at? MR. ROSENZWEIG: I’m sorry, I did not make out that question. MR. DEEN: (Continuing) Q. Do you know what camp he was stationed at? A. I’m not sure that I know the specific camp. I read in the records, and I quote –THE WITNESS: On page 3, Your Honor. (T 1068) MR. DEEN: (Continuing) Q. The records? Military records or page 3 of your report? A. Well, I’m now quoting from the military records that he was assigned to the 1st battalion 153rd in support of the Multi National Division Baghdad, but I do not know the specific camp to answer your specific question. Q. You gather it would be in the area of Baghdad based on ABSTRACT 128 the name of the group? A. Absolutely. Q. Now, you state on page 11 of your report, just as you said a moment ago, “He similarly downplayed any history of significant stressors in his life and minimized the effect of his experiences while serving in the military during the war in spite the fact he was there at a time when his encampment was being bombarded with projectiles on a daily basis from enemy fortifications.” Did I read that correctly? A. That is correct. Q. Where did you obtain information that the Iraqis –- A. From what he was sharing. That was something that was constant and so on. Q. Let me finish my question. Where did you obtain information that the Iraqi insurgents in 2008 had established fortifications? (T 1069) A. I think I interpreted what he was telling me. Q. What words did he say that made you believe that? A. That it was enemy fire that was coming into his camp. Q. All right. And what words did he say that made you believe it was almost on a daily basis? A. That it was constant and they were having to run constantly to the bunkers. Q. So Daniel Pedraza told you in your interview that on an almost daily basis ABSTRACT 129 they’re being shelled by insurgents, that’s what he told you? A. Yes. Q. Okay. Do you have that in your notes? A. It should be in my notes. Q. Because that could make somebody go stark-raving mad, to be shelled every single day for nine months, wouldn’t it? A. It might. PTSD is a very interesting disorder, Counselor. Some people can go to a war and come back and become a U.S. senator; and others can live in Westwood, LA outside of a VA hospital, in which I saw many of them –THE COURT: Let’s keep this, with all due respect, to Mr. Pedraza, and not worry about the U.S. senators. (T 1070) MR. DEEN: (Continuing) Q. Now, in downplaying the effect, but apparently if your recollection is correct, he did not downplay the occurrences, if you’re saying that it happened on an almostdaily basis. Do you have any idea why he wouldn’t have supplied that same information to Dr. Ramos? A. No, I do not know that. Q. You have a footnote about finding your report, No. 4 on page 2, which you observed a number of individuals from Hispanic backgrounds practice voodoo or ABSTRACT 130 Santeria –A. Yes. Q. –- in which controlled substances are sometimes used? A. Yes. And other substances. Q. Did you have any reason to believe that the practice of Santeria or voodoo had anything, whatsoever, to do with this case? A. No, Counselor, I have always been asked that question. I ask that question of individuals who come from cultural backgrounds in which those practices may occur. It was not unique to him at all, whatsoever, Counselor. Q. In reviewing the records in this case did you note that Daniel Pedraza was alleged to have tried to use tomato, onions, and an egg on the child’s body, Aubriana’s body, in order –- in an attempt to heal her? A. I think –- Yes, I remember something, either him or his family relating to that experience. But that’s more medical, that’s not, you know, at the spiritual end of Santeria and so on. (T 1071) Q. So those particular acts that I’ve described of the vain acts of using vegetables or eggs to try to heal a fatally-injured child would not be something that would be incorporated into Santeria or voodoo? A. That is correct. And, in fact, Counselor, again, I cannot, you know, say I close ABSTRACT 131 my eyes to all my experiences as a professional. This occurs very common in areas, in rural areas, of Mexico and so these families practice this kind of alternative medicine practices with their children all the time for centuries now. Q. Well, I mean, this goes way beyond alternative medicine. I mean, that’s just superstitious mumbo-jumbo, is it not? A. Counselor, I agree with you 100 percent. Q. You stated –- and I lost the page at this time –- that you believe that Daniel Pedraza had instances of deja vu and deep personalization that you attributed to what you diagnosed to be PTSD. A. One of the many symptoms, yes –- And, actually, that is verbatim in my notes. And I think in my report it’s also, I think, highlighted –- It’s not quoted, but it is noted in my report on page 4. So he admitted to experiencing those –Q. How did he describe these? (T 1072) A. I’ll give you one perfect example: He mentioned that when his grandfather died that there was a period of time in which he felt as if he was looking outside of himself. That is sometimes seen in deep personalization in an individual, plus, to mention that there was deja vu as well, that he felt that he had been there experiencing it. So that’s a perfect example and that’s in my notes as well. Q. And that could be a situational factor, the loss of someone close to you? ABSTRACT 132 Would not be unexpected, would it? A. Again, PTSD –- I am not going to shy away from educating this Court about the range of experiences that a human being can have with PTSD -Q. But my question wasn’t directed there. My question was directed to –- Isn’t it true that the loss of someone close to you, a close relative, a father, a grandfather, can be expected to produce those kinds of experiences by themselves in perfectly sane individuals? A. Yeah, you’re talking about base rates. Q. Now, you declined to utilize certain instruments in evaluating PTSD competency to stand trial because of your observation that they were flawed when used with Hispanic subjects; is that right? A. Yes. (T 1073) THE COURT: With Hispanic, what? THE WITNESS: Subjects. MR. DEEN: Hispanic individuals. THE COURT: Yeah. I always wondered: How do you define “Hispanic” as opposed to “Latino”? THE WITNESS: That’s very complex, Your Honor. For example, when you look at the literature, some Hispanics are referred to include people from Spain -ABSTRACT 133 THE COURT: And Portugal. THE WITNESS: In some cases, yes, and Portugal and Brasil. THE COURT: Yes, that’s the classical definition. Now, let’s get to your definition of “Hispanic,” so I know when Mr. Deen talks to you and you talk to him that we’re all on the same page. With regard to the inappropriateness of this particular diagnostic test, what is “Hispanic”? THE WITNESS: Well, for example, in this particular case, it’s an individual who was born in a Hispanic culture; he was born in Mexico, not in the United States, who comes to the United States and is partially acculturated; who speaks both languages, Spanish and English; whose parents don’t master English, so they speak Spanish in the home and so does he with them; and so on and so on. THE COURT: So that’s your definition of “Hispanic”? (T 1074) THE WITNESS: That is the definition that is accepted in the literature in my field, yes, to which I have contributed myself. THE COURT: You may proceed. MR. DEEN: (Continuing) Q. Do persons who have parents or grandparents who are Hispanic necessarily themselves Hispanic? Let’s say that my grandparents immigrated a hundred years ago and I have never had no contact with their native land and I speak absolutely not ABSTRACT 134 a word of their language, although, ethnically, I might be considered Hispanic, would I be so? A. No, not necessarily. It depends on your own perception of yourself. And, in fact, what you’re talking about now are issues of acculturation and assimilation. You have individuals, for example, who are third-generation Italians and don’t even speak Italian nor consider themselves Italians; they consider themselves American, okay, and so those individuals would not be considered, say, Italians. And the same thing goes for Hispanic. It’s an individualized factor –- What is the perception of the individual whether he perceives himself to be Hispanic or not. Q. I understand. (T 1075) A. However, if you say that you’re not Hispanic and you have not received any degree of acculturation, for example, it could very well be that you’re negating your own cultural meaning; and that also happens among clients and patients sometimes. Q. In this case it’s undisputed in your view that Daniel Pedraza would be qualified as a Hispanic, as you use that term? A. I would. Q. He immigrated here at approximately the age of 3? A. Three or four, yes, Counselor. Q. But his family continues, for the most part, at least at home, to speak their ABSTRACT 135 native language? A. That is correct. And, furthermore, he also speaks the language. Q. He’s superficially fluent, would you say, in Spanish? A. That is correct. In fact, I put a footnote in my report again citing the scientific literature and the work of Cummins (1979) who talks about the degrees of dominance and language in acculturation and how that affects language development and so on. Q. Now, back to the point a moment ago where you said that you declined to utilize a certain competency to stand trial instruments or assessments that would otherwise be used because of your view of their invalidity in assessing a person of Hispanic ethnicity? (T 1076) A. Sure. Let’s start, for example, with the FIT-R used by the government. That test was developed in Canada, originally, not even in the United States; and it doesn’t contain a single individual with a standardization sample of an individual like him. So that would be very concerning to me as a clinician –Q. What other –- A. May I finish, Counselor? Q. Please do. A. I appreciate that very kindly of you to do for me. So I’m not saying that it is not an instrument that should not have been used at all; I am saying that you don’t ABSTRACT 136 want to depend on a single instrument if the instrument that you’ve given to assess fitness to proceed without obtaining other collateral information to argue the case so that you allow other pieces of information to come in so you see how that test is responding to that. So, for example, if he wanted to use that test, why didn’t he use other measures? Why did he take that approach? The approach with using a measure that was developed in Canada. Yes, it’s used in the United States, does that make it right from a psychometric, statistical, and scientific process? Not necessarily, even though it’s practiced sometimes. Okay? But he could have used them apart, or in addition, or other measures to try to gather more information because he has concern about the validity and (inaudible) of using a single measure such as the FIT-R. (T 1077) Let me finally say that if you look at the textbooks on neuropsychology, on forensic neurological assessment, the FIT-R doesn’t even appear, for example, in some of the landmark textbooks, as a test that you want to use because Grisso, G-r-Is-s-o, very earlier spoke about some of the difficulties of using the FIT-R. Q. What other evaluations that would typically be –- Let’s say I’m a tenth- generation Caucasian in this country -- would be performed on me -A. For example –- Q. –- that would not be performed on Daniel Pedraza? ABSTRACT 137 A. –- you could use the MacArthur, okay. There’s other measures as well that you could have used. Q. And which ones did you utilize that you felt were appropriate for someone of his Hispanic ethnicity? A. None, and that’s why I chose not to use that process, Counselor. Q. Because none of them on the planet earth, of which you’re aware, would operate to help you evaluate Daniel Pedraza’s capacity to stand trial? A. Particularly because we’re on a hearing of competence to proceed, yes. THE COURT: He used the drawing. (T 1078) THE WITNESS: Well, I used many other neuropsychological procedures and used inferences about it, Your Honor. What Counselor is trying to say is that I did not use a test that’s specifically designed to assess fitness to proceed; and I am agreeing with him, I did not take that approach because I feel that the instruments that are in existence are unreliable and not valid for this individual relative to what they are trying to do. THE COURT: I think he’s just told you that he used none of the tests that are routinely used to determine fitness to proceed. MR. DEEN: (Continuing) Q. You’ve taken the same position with respect to the tests that are totally ABSTRACT 138 unrelated to competency to stand trial, have you not? A. Not necessarily because if you are assessing a specific –- Let’s say you are testing for perceptual abilities and you administer multiple tests of perceptual abilities, some of which do have no reliability and validity, versus others that have higher or greater, then you can look at the confluence of what has been done and come to a (inaudible) conclusion. Let’s face it, in the final analysis, it’s the clinician’s opinion and the clinician’s judgment that is going to take part in that opinion. (T 1079) Q. But you remember the example you gave in your textbook in which you declined to use the Wechsler for a Hispanic woman who lived in the Great Lakes region, but you said would have been appropriate for that same woman had she lived in the Texas region; is that right? A. Met the criteria. Yes, I do. Q. So because she lived in the Great Lakes region, the Hispanic woman was not demographically represented as the same woman who lived in the Texas region? A. If you read my literature, you’re taking it out of context –- Q. I did -- A. I think there’s more characteristics that make that woman be eligible to be even one test versus another test. It’s not just that she lives in that region, but her level of ABSTRACT 139 acculturation to American society, her level of language dominance, and so on. For example, you would ask, Why did I give him the Wechsler IV? Because he’s dominant in English, it’s the best dominance that we could get so the estimate of intellect is the best. Let me also say to you, Mr. Deen, that had my score, the Wechsler Scale Intelligence in English had been very different than his score obtained, say, by Dr. Walker, I would have administered another test of intellect. Just like when I was assessing depression, I gave him the Beck Depression Inventory in English and Spanish to look at the congruence of that data that’s coming in to see if it speaks to the same level of performance. (T 1080) THE COURT: Mr. Deen, I’m going to give you another three or four minutes. I know that you’ve made your points and I know that we have to put other witnesses on the road. And there’s just so much of this that I can absorb and be educated on here today. MR. DEEN: Your Honor, I have a couple of more –THE COURT: Sure. Go ahead. MR. DEEN: (Continuing) Q. How much time did you spend, if any, with Daniel in the presence of his attorneys? A. Less than five minutes. ABSTRACT 140 Q. So you did not watch for any appreciable length of time Daniel communicate, or not communicate, with his lawyers? A. When they went there, Mr. Leonard took me and then I did observe about, as I said, for three minutes his interaction with him and Mr. Leonard. (T 1081) Q. Now, you said that he declined to speak with them after either May 3rd or 13th, depending on whether it’s you or Mr. Rosenzweig’s doing the talking, but did you notice when this hearing first began, Daniel talking with Mr. Leonard and –A. Excuse me. I’m sorry, can I hear the question again? Q. Did you not notice when this hearing first began Daniel Pedraza talking with Mr. Leonard, them conversing back and forth, and him telling him to make notes and Daniel Pedraza taking notes from him? Did you notice that? A. I noticed that. Q. And that would be an example of communication between Daniel Pedraza and his lawyer, would it not? A. Yes, but that doesn’t tell you anything about the content of that communication. Q. What about his decisions in this case have been less than rational, irrational? A. Well, for example, the fact that he doesn’t want to share with his attorney important information such as the abuse that took place, which everybody in his ABSTRACT 141 family is saying that it took place, and he’s saying that it didn’t exist. Q. So since he denies the traumatic events necessary for the diagnosis of PTSD, he must be incompetent? A. That’s not what I’m saying, Counselor. In fact, in Dusky v. United States, a person can deny something. But the question is: Does that –- Part of a mental disorder which I am saying that he does have PTSD, okay; and, number two, does it affect the relationship that he has with his counsel? What is really interesting to me is that, okay, fine, if I was doing this evaluation for the government, the first thing I would have done is call his attorneys and say, Is he communicating in terms of legal matters that can help his case with you? (T 1082) Q. And when you asked those lawyers that question, what did they tell you? A. That he doesn’t. Q. Give me the words. Which one? Let’s start with Mr. Rosenzweig -- A. Well, let’s start with Mr. Rosenzweig. Q. Okay. THE COURT: Mr. Who? Start with whom? THE WITNESS: Mr. Rosenzweig? THE COURT: Okay. I understand what you’re saying. Go ahead. THE WITNESS: Thank you, Your Honor. ABSTRACT 142 MR. DEEN: (Continuing) A. So he told me that he’s not forthcoming with information that needs to be determined and that he doesn’t want to talk to me, that he doesn’t trust anybody including his attorneys and previous doctors. Q. And as the judge has pointed out and as anybody that’s practiced law for very long, criminal law, for very long knows, that is not uncommon. Were you aware of that? (T 1083) A. I am aware of that, but you also have to look at the context whether those people also have Post Traumatic Stress Disorder or not. So you have to take it within the context in which it is taking place, not in an absolute way. Q. What about a client who decides that his lawyers’ course of action is not prudent in the client’s opinion, even though the client might be wrong -- A hundred lawyers will say the client is wrong, but the client wants to choose a certain course of action, can he do so? A. Yes, he can do so. THE COURT: What if he doesn’t want to pursue a course of action? The same answer? THE WITNESS: Yes. THE COURT: So if he doesn’t want to pursue this petition, or motion, to ABSTRACT 143 have him declared unfit to proceed, that’s his call? MR. ROSENZWEIG: I’m sorry, I did not hear that question, Your Honor. THE COURT: So you’re saying that if Mr. Pedraza did not want his lawyer to file a notice that he’s unfit to proceed that’s Mr. Pedraza’s decision? THE WITNESS: Your Honor, the question –MR. ROSENZWEIG: Your Honor, I think that calls for a legal conclusion. (T 1084) THE WITNESS: Yes, that’s exactly what I’m going to say. That’s not a psychological. I’m not meaning to go there. MR. ROSENZWEIG: That calls for –THE COURT: She can’t take down two at one time. Mr. Deen asked the question in a positive vein; I asked it in the negative vein. That’s all. You know –THE WITNESS: I’m not sure I would like to answer that question out of respect for the Court, Your Honor. That sounds to me like an ultimate question that’s for the legal stakeholders to make. THE COURT: Well, you know, the ultimate question here is: Is he fit to proceed? And you’ve given your opinion on the ultimate question already, so –Well, let’s –- I’ve got the motion or notice before me. I’ve got to have the hearing and I’m having the hearing, so let’s go from there. ABSTRACT 144 MR. DEEN: Pass the witness, Your Honor. MR. ROSENZWEIG: Your Honor, could I have about two minutes to consult with counsel? THE COURT: Sure. (T 1085) (Break) REDIRECT EXAMINATION BY MR. ROSENZWEIG: Q. Doctor, I just want to -- You have your notes in your briefcase, or whatever? A. I’m not sure I have my notes; I have my raw data. MR. ROSENZWEIG: Your Honor, just to clarify something -- MR. ROSENZWEIG: (Continuing) Q. Would it not be correct that Mr. Pedraza told you he was shelled for the first several weeks that he was in Iraq? A. I would have to look at my notes to answer that as specifically, Counsel. Q. Okay. And not necessarily for the entire year he was there, but for the first interval –A. Yes, it is possible. Q. Thank you. MR. DEEN: No further questions, Your Honor. THE COURT: Fine. You may stand down. ABSTRACT 145 THE WITNESS: Thank you, Your Honor. Thank you for allowing me to be here. THE COURT: Thank you for coming. And I did look at the –- Doctor? THE WITNESS: Oh, I’m sorry, Your Honor. THE COURT: That’s all right. THE WITNESS: I apologize. (T 1086) THE COURT: Don’t worry. I did look at the DHS legal file –THE WITNESS: Yes. THE COURT: –- and about the removal from the home? THE WITNESS: Yes. THE COURT: It does not –- The affidavit filed by the social worker, DHS social worker, simply said that Mrs. Pedraza, the mother, basically, she and the father, or stepfather, basically gave the child to the state –- she was about seventeen at the time –- and there was no allegation by the social worker that there was any abuse. I’ve looked at the affidavit and the order was entered by Judge Mazzanti was not –And I used to do some of that work; I used to have that division. There were no allegations of mistreatment, or sexual abuse, or anything with the girl, as I recall -Well, I know there weren’t in the affidavit. The reason the case was closed was that shortly thereafter she was pregnant and asked permission to marry; and the mother ABSTRACT 146 didn’t want her to. So Judge Mazzanti said, Well, if she wants to marry, fine, and once she gets married she’s out of custody. And that’s how the case was closed in 2007. It was opened only briefly. There was no need for any reunification efforts; there was no need for any protective care, or anything like that. (T 1087) THE WITNESS: I think the DHS file regarding the pictures –THE COURT: That’s a different –THE WITNESS: Yeah. THE COURT: That had nothing to do with the juvenile division case –THE WITNESS: Right, I understand. THE COURT: –- and I wanted to look at that because I’ve handled that before and I know the types of reports that are filed, and I know that these child maltreatment reports are pretty much unilateral deals; and they’re not subject to an adjudicatory process. The only removal of a child from the home was due to the fact that the mother went to DHS and says, Here, here’s the child. They didn’t go in pursuant to any -- and that’s what the affidavit shows –- to any allegation of maltreatment. So there’s been no court adjudication that this child/daughter was maltreated. They just wouldn’t let her back in the house and the mother said, Somebody’s got to take her, and so the state did; and she apparently was pregnant and married later, and Judge Mazzanti released her. That was the long and the short of ABSTRACT 147 it. I just wanted to clear that matter up. It’s not decisive to this case, what happened there, to my decision today –- (T 1088) THE WITNESS: I never intended, Your Honor –THE COURT: Oh, you didn’t. THE WITNESS: (Speaking over) to –THE COURT: You didn’t. And I appreciate your testimony here today. I wanted, for your benefit, that’s all. THE WITNESS: I appreciate that. THE COURT: I wasn’t cross-examining you. I just wanted you to know what that court file showed as a courtesy to you. MR. ROSENZWEIG: Your Honor, may I be heard? There are two separate things we’ve got, two septairm atees. One is the investigative file and the other was the judicial file. Since you were expressing certain conclusions as a result of your examination of it, I wanted to point out that what DHS chooses to put in an affidavit on something that maybe (inaudible) by the investigative file. The investigative file is clearly an authentic investigative file if DHS didn’t want to pursue a particular line of allegation of (talking over) – (T 1089) THE COURT: Well, you don’t have a window to the investigator’s soul or their motives. There are many times there’s child maltreatment reports filed such as ABSTRACT 148 the one here about the injury to the daughter. That may not have a thing to do with the later, or prior, adjudication. The social worker said the mother simply gave her the child and they wouldn’t let her back in the house. And I know the judge later released her. She got married. She was pregnant and wanted to get married. I understand that. So for whatever that’s worth in this proceeding, which is marginal, I just wanted to let the doctor know; I wasn’t minimizing the child maltreatment report. Thank you, Doctor. THE WITNESS: Thank you, Your Honor. THE COURT: Call your next witness, Mr. Rosenzweig. MR. ROSENZWEIG: That’s it, Your Honor. Other than we renew our motion to allow Dr. Stewart to testify by telephone, which I assume you denied. THE COURT: I am. Mr. Deen? MR. DEEN: Dr. Ramos is going to fairly long. I don’t know what the Court’s wanting to do about lunch. (T 1090) THE COURT: I’ve got some crackers up here. Well, why don’t we do this -- How long is it going to take you? I’d like to be done by around 2:30. I don’t see why we couldn’t. I doubt Dr. Ramos –- I’ve done those before –- He’s not going to take you over thirty minutes and –ABSTRACT 149 Now, I can’t guarantee you the cross-examination or the rebuttal, but I know what it would take to do the direct, if not fifteen. We’ll adjourn until 12:30. Everybody go get a hamburger and be back here at 12:30. (Lunch Recess) THE COURT: The state may proceed. MR. DEEN: The state calls Dr. Ramos. (Witness Sworn) DR. JOAO RAMOS DIRECT EXAMINATION BY MR. DEEN: Q. Doctor, would you state your name. A. First name, Joao, J-o-a-o; last name Ramos, R-a-m-o-s. Q. And what is your profession, sir? A. I’m a physician. I’m a psychiatrist by training. I graduated from medical school in Brazil in 2001 and did my training St. Louis University in the United States in psychiatry. Q. Are you board certified in that field? (T 1091) A. Yes, I am. Q. Where is your employment currently? ABSTRACT 150 A. Currently, I am a fellow in forensic psychiatry at the University of Arkansas for Medical Sciences. I work at the Arkansas State Hospital. Q. How long have you worked at that institution? A. At the Arkansas State Hospital since June of –- Actually, July 1st of 2012. Q. And you are employed there currently? A. Yes. Q. Is what I’ll mark as State’s Exhibit D, a copy of your CV, sir? A. Yes, it is. MR. DEEN: This will be State’s Exhibit D. MR. ROSENZWEIG: The CV? MR. DEEN: Your Honor, may Dr. Ramos give his opinion in the field of forensics psychiatry? THE COURT: He may. MR. ROSENZWEIG: Your Honor, may I voir dire briefly for a minute? THE COURT: You can save it for cross-examination. MR. ROSENZWEIG: Your Honor, I would like to renew my request, just voir dire one or two questions. (T 1092) THE COURT: On the issue of competency? MR. ROSENZWEIG: No, sir, on the issue of the CV. ABSTRACT 151 THE COURT: You cannot voir dire except on the issue of competency. The rest of it is left –MR. ROSENZWEIG: I’m sorry, Your Honor, his competency? THE COURT: Yes. MR. ROSENZWEIG: I would like to ask a question or two, yes, sir. I’m sorry, I thought you were talking about the defendant’s competence? THE COURT: No. What would your questions be? MR. ROSENZWEIG: I will tell you, my question is –- I just want to see whether he meets the qualifications set forth in 5-2-301(7)? THE COURT: Well, Mr. Deen can do that. All you’ve got to do is object to lack of foundation. MR. ROSENZWEIG: Sure. THE COURT: Mr. Deen, ask him if –- Have a seat. Ask him if he meets those qualifications. MR. DEEN: (Continuing) (T 1093) Q. Sir, are you a licensed physician and have successfully completed either the post-residency fellowship in forensic psychiatry accredited by the American Board of Psychiatry and Neurology; or a forensic certification course approved by the department that is currently approved to administer a forensic examination as defined ABSTRACT 152 in Sub-chapter 3? A. Yes. I did the certification course. I haven’t finished my fellowship yet, but I did the certification course, approved by the Department of Human Services. THE COURT: Go ahead. MR. ROSENZWEIG: May I follow up with one question? THE COURT: No, not at this time. You can take him on cross. MR. DEEN: (Continuing) Q. Did you perform a forensic evaluation of Daniel Pedraza, the defendant, in this case? A. Yes, I did. Q. And what was the purpose of that particular forensic evaluation? A. Pursuant to an order from this Court, it was a mental evaluation to evaluate Mr. Pedraza for his fitness to stand trial. Q. Competency to stand trial –- (T 1094) A. Yes. Q. –- as opposed to other potential issues? A. Yes. Q. Did you prepare a written report of that evaluation? A. Yes, I did. ABSTRACT 153 Q. And I believe it was filed with the Court on May the 17th and submitted by you on May the 15th. Is what I’ve marked as State’s Exhibit E, a correct copy of that report? A. Yes. MR. DEEN: All right, I move to admit State’s Exhibit E; and I’d also previously moved for the admission of D. MR. ROSENZWEIG: I have no objection, Your Honor. THE COURT: It’s in. (WHEREUPON, State’s Exhibit D and E were introduced into evidence, was marked by the reporter, and is attached hereto.) MR. DEEN: (Continuing) Q. Where did you conduct the evaluations? A. At the Arkansas State Hospital Forensic Services. Q. And over what date or dates? A. I conducted the evaluation as I marked in my report on May 13th of 2013. Q. And Mr. Pedraza was transported to your facility in Little Rock? (T 1095) A. Yes. Q. And did a clinical interview take place between you and Mr. Pedraza? ABSTRACT 154 A. Yes. Q. Did you also submit some other testing instruments that we’re going to talk about in a moment as to Mr. Pedraza? A. Two tests, yes: the Mini-Mental Status Examination and the Fitness Interview Test-Revised. Q. And did you draw a conclusion or an opinion as to whether or not Mr. Pedraza suffered from mental illness based upon your evaluations? A. I did make an opinion. Q. And what is that opinion? A. He does not have a mental disease or defect. Q. Did you draw a conclusion or render an opinion as to whether or not Mr. Pedraza is competent to stand trial? A. I did. Q. And what was that opinion? A. He is competent to stand trial. Q. Did you review any records other than the state’s case file in evaluating Mr. Pedraza? A. I received a CD –- I received actually several disks, one –- most of them ABSTRACT 155 contained a criminal case file with all the evidence -- and there was one disk –- I think it was either a CD or a DVD –- that had documents provided by his defense counsel. (T 1096) Q. And would that include the records of his military service? A. It would. Q. Would that include the materials provided by Dr. Llorente? A. Most of it. I read Dr. Llorente’s report and he mentions the records from DHS. I never got those records regarding his sister Joana, but everything else that he mentioned in his report, I had access to. Q. Now, you heard Dr. Llorente testify earlier today, did you not? A. Yes, uh-huh (yes). Q. And you heard Dr. Llorente testify that the first time in his professional career, the government, the psychiatrist, did not request his raw data that he relied on in conducting his evaluation? A. Uh-huh (yes). Q. Is that correct, not about his professional career, but about whether or not you requested the raw data? A. I did not request his raw data. Q. Did you find it necessary to have his raw data –ABSTRACT 156 A. No. Q. –- in order to conduct your evaluation? (T 1097) A. No. Q. Why or why not? A. It was not necessary because he actually did a good evaluation. He reported the results of all of his tests. I do not have particular expertise in neuropsychological testing. I am a psychiatrist by training, not a psychologist. And, usually, when we need psychological testing, we request the help of our colleagues at the Arkansas State Hospital. He marked all of his results. His results seemed reasonable. They did not indicate any degree of impairment in –- except a mild impairment in executive functioning -– so there was really no need to request that raw data especially since the neuropsychological testing was irrelevant to my diagnosis and opinions. Q. He reported the results of all the tests he administered in his report, is that the thing –A. It’s my recollection, yes. Q. Now, you had mentioned that you administered two instruments -- A. Uh-huh (yes). Q. -- to Mr. Pedraza, and those were, which two? A. The Mini-Mental Status Examination-Second Edition: Standard Version and ABSTRACT 157 the Fitness Interview Test-Revised. Q. Now, let me ask you about the validity and use of those instruments with persons who are of Hispanic ethnicity, can you explain why or why not that has any bearing on the use of them in persons of ethnic ancestry of Hispanic, that is, Mr. Pedraza? (T 1098) A. I cannot speak in terms of the general, but I can speak in terms of Mr. Pedraza, specifically. Mr. Pedraza, his English is very good. He has been living in this country for twenty years. He attended school here. It never occurred to me that the testing would not be valid in that he had no questions about any of the words that are used or the meanings of any words actually throughout the interview. He understood everything I was saying perfectly clear. So even if, in some Hispanic people, those tests may not be valid, I don’t think that’s the case with Mr. Pedraza. As Dr. Llorente pointed out, his primary language is English. Q. The FIT-R, for instance, Dr. Llorente said was originally devised in Canada. A. That’s true. Q. There are two languages spoken in Canada. I don’t know if it was in Quebec or if it was an English-speaking portion from Canada -- presuming the Englishspeaking portion – (T 1099) A. Yes. ABSTRACT 158 Q. –- do you find that that has any bearing on the use or validity of the FIT-R? A. Actually, no, it has no bearing, essentially, because the FIT, the original FIT, the Fitness Interview Test, was developed for use exclusively in Canada, but since then in ‘98, they revised the FIT and they extended it and recommend specifically in the most recent edition of the manual that it can be used in any jurisdictions that have a tradition of common law similar to Canada; and they specifically mention the United States and the United Kingdom. Q. And is the FIT-R, the Fitness Interview Test-Revised commonly used by qualified psychiatrists in your field of forensic psychiatry to assess competence to stand trial? A. Yes. It’s not the most-commonly used but, yeah, it’s widely accepted. Q. And the same questions as to the Mini-Mental State Exam-2, Standard Version –A. The Mini-Mental State has been around since the ‘70s. It’s a well-studied –- The Second Edition, I don’t remember when the Second Edition came out, which is the one that I used, but it has similar properties to the original edition of the MiniMental State Examination, so it’s been widely used, widely accepted as a screening test for cognitive deficits. (T 1100) Q. I noted that there was testimony that Dr. Walker, who is a psychologist who ABSTRACT 159 previously examined Mr. Pedraza, in utilizing that instrument, achieved almost identical to the results that you achieved –A. Yes. Q. Were you previously aware of that? A. I was not. I did not see a report by Dr. Walker; and the results of that test was not there, but it’s not surprising. Q. Would you expect such consistency, assuming someone was making a fair effort -- not malingering -- would you expect such consistency on the administration of that test? A. In the absence of any intervening factors that might impair somebody’s cognition, yeah, it should be stable over time. The scores don’t start to decline unless you have, say, traumatic brain injury –- or with old age, they start declining –- but absent that, in a 24 year old, they should be stable over time. Q. Briefly describe what that examination is, for the record, if you would. What does it consist of? A. The MMSE, as I described in my report, it’s a screening test for cognitive problems. It’s more –- It’s not really a diagnostic test. It’s more useful for tracking cognition over time and it’s used also for excluding the presence of a cognitive problem. Somebody like Mr. Pedraza scores 30 out of 30, you don’t need to worry ABSTRACT 160 about the possibility of him having cognitive problems. If he had scored, say, you know, 21, 19, that wouldn’t be diagnostic and would have to get further testing, but it would raise the possibility. And that’s really the reason why –- The test consists of, you know, several questions and you can have –- Most study points and, you know, higher scores indicate the higher degree of cognitive abilities. (T 1101) Q. Had his score been significantly lower would that have triggered you to employ other instruments? A. Definitely because it would be unusual for somebody who’s 24 years old who has, you know, no history of, like I said, traumatic brain injury or some other injury to the brain. If he had scored very low, I would have asked for further testing to clarify why his scores were like that. Q. You were made aware in the social history that he was a graduate of high school in Arkansas? A. Uh-huh (yes). Q. That he immigrated to the United States somewhere around age 3 from Mexico? A. Uh-huh (yes). Q. That he had served honorably, as far as is known, in the United States Army? A. Uh-huh (yes). ABSTRACT 161 Q. The second test, the one we discussed earlier that was originally developed in Canada, the FIT-Revised, describe briefly how that differs from the first. A. Well, it’s actually –- They have nothing in common in –- (T 1102) Q. No. A. –- terms of –- You mean in terms of what they assess? Q. When I say “the first,” I’m talking about the Mini-Mental State, not the original FIT. A. Yeah, yeah, that’s what I’m saying. Q. Okay. A. The FIT-R has –MR. ROSENZWEIG: Excuse me, if Mr. Deen can repeat the question, I’m having a problem –THE COURT: Just ask him to repeat the question. Very good. Repeat the question. MR. DEEN: (Continuing) Q. How does the FIT-Revised differ from the Mini-Mental State? A. They assess completely different domains of psychological functioning. The Mini-Mental State assesses a person’s cognition, cognitive abilities while the FIT-R is specifically designed to assess a person’s fitness to stand trial. So it really explores ABSTRACT 162 -- There are sixteen sections and they explore abilities that a person is supposed to possess in order to be deemed fit to stand trial. Q. And these would include, what? (T 1103) A. Well, it’s divided in three sections. The first section is about an understanding of the procedures and it’s matched as a practical understanding of the procedures where it includes questions about the arrest, Why were you arrested? you know, What is the police accusing you of doing? What are your charges? What is the job of different court participants? It assesses what the person knows about the proceedings. The second section is about the person’s rational understanding in terms of, you know, What are these proceedings about? What are the consequences? What can happen as a result of these proceedings? Q. Did Mr. Pedraza evidence an understanding on those two parts –- A. Oh, yeah, definitely. He actually -– He scored –- The score –- There is no cutoff for the FIT-R, but it allows scores from 0 to 32, and Mr. Pedraza only scored one point. Higher scores indicate a greater degree of impairment. He only scored one point; and the point he scored was on the third one which is his ability to relate to counsel. Q. Ability to relate to counsel? (T 1104) ABSTRACT 163 A. Exactly. Q. Did he express any dissatisfaction with his counsel? A. He did. Q. Did he provide a reason why? A. I asked him and he did, yes. He told me –- There were two primary reasons: one, he told me –- And I can quote from my notes just to make sure I am being accurate. He told me when I asked him about his relationship and the reason –Because I saw on Dr. Llorente’s report that he raised the issue that he may not be fit because he’s unable to relate to his counsel, so I asked him and what he told me was, “I don’t like talking to him. They keep saying I have PTSD but I told them I don’t have it. The first psychologist said I didn’t have it so they got another doctor to see me.” And then I asked him for further details and what he told me, according to Mr. Pedraza, was, “They told me we need to find a reason why you did it,” and that made him very upset because his impression was that his attorneys believed that he did what he’s being accused of doing, but he has maintained since his arrest that he did not do it, that he had nothing to do with the death of his stepdaughter. And that’s why he was upset and that’s why he didn’t want to talk to his attorneys. Q. In fact, I think he said something to the effect that if they believe Victoria, they can go represent her? (T 1105) ABSTRACT 164 A. That’s the one that I quoted in my report. And he said, “I told them that if they believe my wife they should go represent her. I don’t need them to represent me if they doubt me.” Q. Whether he is strategically wrong or right in his choice, did he appear to be rational to you –A. Yes. Q. –- in making his choice? A. It’s a very reasonable choice. You know, there was no indication that his motive for not wanting to talk to his attorneys was psychotic in any respect, or not rational. Q. He has the ability to do so if he wanted, do you think? A. Oh, yes. Yes. And I think that’s a critical point because a person can decide out of their own freewill not to talk to their counsel, but it really only interferes with their ability to be fit to stand trial if it’s due to a mental disease or defect. And there was really no indication that, you know, even if –- And I’m not prepared to, you know, concede that he does have PTSD, but how would the PTSD make him, you know, unable to speak to his counsel just because his counsel doesn’t believe that he’s not guilty? So it doesn’t translate. It wouldn’t be a causal relationship. (T 1106) Q. Well, you may have heard Dr. Llorente say that denying the traumatic event, ABSTRACT 165 or events, that precipitate the PTSD is a form of avoidance, that in itself is a symptom of PTSD, if I understood him correctly. A. That’s a bit of circular thinking because you are saying, you know, They have PTSD because they have avoidance and so you’re kind of going in circles there in that argument that you’re using the denial. I mean, the alternative explanation would be that the trauma never took place, you know. One explanation would be, yeah, it took place and he’s denying it and that because he’s denying it, he’s got PTSD. The other alternative would be, you know, it never took place. I actually asked Mr. Pedraza about these allegations of abuse, and like he has been doing, he denied that any of that happened. In his perception, the whippings that he received were not outside of the cultural bounds of the Mexican culture. He said, you know, “In Mexico, if you do something wrong you get whipped,” you know; and in his perception what he told me, you know, it was expected, it was not out of proportion for, you know, what other Mexican kids might experience. Q. The experiences described at war when he was in the Iraqi Freedom Operation –A. Uh-huh (yes). (T 1107) Q. –- there’s some question about whether this is right or wrong, but it’s stated in Dr. Llorente’s report that he endured almost daily shelling from enemy insurgent ABSTRACT 166 fortifications while he was in that country, and military, did he recount any such events to you? A. He didn’t mention anything about enemy fortifications. He said that from time to time the insurgents would fire mortar shells, but he didn’t say “rockets,” he said “mortar shells.” But they would always go over the camp; no shell actually hit his camp. And he said that whenever the mortar shells were flying, he would just run and, you know, wait in the bunker until it was over. He did not relate that experience to me as traumatic. He actually said that his training, his military training, prepared him to endure things like that, so he did not perceive them as traumatic at all. Q. And how would you react or how would you respond to the suggestion from his counsel and Dr. Llorente that he is just either constantly, or otherwise, just completely minimizing the trauma he may have endured in the war and that actually he does suffer from this and just doesn’t know? Again, the same circular reason you described with respect to the whippings? (T 1108) A. Yeah, it’s like you’re using the denial to justify the thing that you’re trying to prove. I can accept that as a symptom of avoidance if he had other symptoms of PTSD, but he doesn’t –- You know, PTSD is unlike other psychiatric –- Many disorders are a laundry list of symptoms. You know, the symptoms are not necessarily related to each other, but when you take them altogether, you know, they ABSTRACT 167 form a syndrome that we call a certain label or a certain diagnosis. That’s not the case with PTSD. PTSD, all the symptoms are given coherence by the traumatic memory. That’s why the re-experiencing of the traumatic memory is critical. And Mr. Pedraza doesn’t have any re-experiencing symptoms. I mean, he doesn’t report any nightmares, intrusive memories; he doesn’t report any kind of symptoms to suggest that, you know, those memories are still gnawing at him inside, you know. And all of the other symptoms are understood as a response to that traumatic memory. You know, everything else that they experience –- I mean, how can you avoid something if it doesn’t bother you, you know? Why would you avoid something? And so, it doesn’t really make sense that just because he’s denying that the trauma happened that it automatically means that it must have happened and he just doesn’t want to deal with it. In the absence of other symptoms to justify the diagnosis, it makes no sense. Q. You considered though, and you say it in your report, you considered the diagnosis because Dr. Llorente had made that diagnosis, did you not? A. I did. Q. And you concluded, what? (T 1109) A. I concluded that under DSM-IV, trauma is defined as, first, you know, an event that leads to risk of death or serious injury that you either experience, or you witness, ABSTRACT 168 or you hear about it; and then the second criteria I gave, too, is that your response to that traumatic event is with horror, fear, helplessness, or if you’re a child with agitated or disorganized behavior. Q. So even if you acknowledge some traumatic event you don’t (inaudible)? A. Exactly. It’s all about how you react to it. So even if something bad happened to you, if you don’t react in a certain way, it doesn’t qualify as trauma. And that’s really, you know –- And even if you do have the trauma, only about 25 percent of people who experience trauma go on to develop PTSD. So having trauma is just a prerequisite; it doesn’t guarantee the diagnosis. What really matters for the diagnosis is symptoms. You know, the traumatic event is not enough. You have to have current symptoms of PTSD, which that’s the second point of why I did not give him –- You know, the first one is that I don’t believe -- You know, the record did not convince me that Mr. Pedraza experienced traumatic events. That’s one. Second is that he doesn’t have any symptoms of PTSD currently. He doesn’t have any reexperiences. There was one thing that he had that could be considered a symptom of PTSD and that’s anger problems. But he actually denied to me that he has anger problems. It’s recorded on his notes from Delta Counseling when he was –- with the breaking and entering, and all that –- They report some anger problems. But he denied to me that he has anger ABSTRACT 169 problems. (T 1110) Q. That’s when he was a teenager; is that right? A. Yeah, as a teenager. So long before any war or anything like that. That’s the only symptom because that’s a symptom of PTSD is anger problems. But other than that, he just doesn’t have symptoms of PTSD. The final criteria for PTSD is CriteriaF, which is –- It’s kind of a general criteria for mental illness. It’s not enough just to have symptoms, even if he had, it has to either cause distress. And he doesn’t have distress because he told me, you know, he’s not distressed by any of this; or two, functional impairment, you know. I mean, he graduated from high school; he joined the military; he told me that the National Guard had told him that shortly before his arrest he was about to be promoted to sergeant in the National Guard. So it’s, like, where is the functional impairment, you know? So based on all that, he doesn’t have PTSD. Q. Thank you, sir. MR. DEEN: Pass the witness. (T 1111) MR. ROSENZWEIG: Your Honor, may I have about five, three minutes? THE COURT: Absolutely. But will remain seated. CROSS-EXAMINATION BY MR. ROSENZWEIG: Q. Dr. Ramos, first a little housekeeping matter, you were asked what the forensic ABSTRACT 170 -- You said you had completed the forensic certification course that was approved by the Arkansas Department of Human Services. I did not see that on your CV, is it on there? A. No. Q. Okay. What was that forensic certification course? A. At the beginning of the fellowship so we could do this kind of forensic evaluations, the Department of Human Services administered that course. It was over a week, which is actually longer than, I think, the other evaluators do, but over a week. We were instructed on, you know, the law and the standards for forensic evaluations; and then at the end of that, we got a test and, you know, when you pass the test, you’re certified. Q. Does this course have a name or were you made aware of the name if it has one? A. I’m not sure if it has a specific name, but actually, I think anybody in the State of Arkansas, either a psychologist or a psychiatrist, can take that course and become certified and be able to do the exam for forensic evaluations. (T 1112) Q. Did you receive any diploma or certificate as a result of the attendance? A. They didn’t give it to me. They put it in -- I think –- I’m assuming they put it in my file, but I don’t know. They didn’t give me a certificate, no. ABSTRACT 171 Q. Okay. And was there any reason why it would not appear on your CV? A. I can’t think of a good reason now. I guess I’m assuming, you know, that once I graduated from forensic fellowship that that’s going to supercede that certification. But as to why it’s not there right now, I have no explanation. Q. Are you in fact doing other forensic evaluations at the Arkansas State Hospital? A. Uh-huh (yes). Q. I noticed there was no co-signatory on this one. A. No. Q. You did this one by yourself; right? A. Uh-huh (yes). Q. And on your other ones, are there co-signatories on those? A. No. Q. Okay. Doctor, looking at your report, talking about the MMSE and the FIT-R, if I heard you correctly, you agree that the MMSE is a screening device, is that right -A. Uh-huh (yes). Q. –- to determine whether essentially someone’s oriented in time and place, and such as that; right? (T 1113) A. Yes. ABSTRACT 172 Q. In other words, to determine whether –- To make sure someone’s not suffering from gross delusions or hallucinations, would that be another way of saying it? A. No. Q. It’s not? A. It has nothing to do with cognitive problems. The MMSE does not assess for delusions, hallucinations, or anything like that. Q. So it’s assessing for whether someone realizes this is 2013 and we’re in America -A. That’s memory, concentration, yes, but nothing –- No psychiatric symptoms, no, just cognitive abilities. Q. And it is a screening device –- A. Yes. Q. –- not a diagnostic test? A. No. Q. Okay. Now, with the –- Would it be correct that the MM –- Let me ask you this: You’re familiar with the Compendium of Neuropsychological Tests? Are you familiar with that? A. I’ve never read it, no. I’m not a neuropsychologist, so that’s outside of my area of expertise. ABSTRACT 173 Q. Let me ask you this to see whether – (T 1114) A. Sure. Q. –- you agree, disagree, or, you know, some other –- A. Sure. Q. “Most studies report that the MMSE summary score is sensitive to the presence of dementia, particularly in those with moderate-to-severe forms of cognitive impairments. However, the MMSE appears less than ideal when those with mild cognitive impairment are evaluated, when focal neurological deficits are present (e.g. post stroke) or when psychiatric patients are included.” Do you agree, disagree, or have no opinion? A. Like I said, I’m not a neuropsychologist, so I have no opinion on that. Q. Okay. Now, you indicate –- You agree that the original FIT test was a Canadian test; is that right? A. Uh-huh (yes). Q. And your testimony is that the FIT-R expands it to other common law jurisdictions? A. Uh-huh (yes). Q. That’s your –- A. That’s what the manual reports, yes. ABSTRACT 174 Q. Now – Have you read or have you reviewed any studies of the FIT-R as it relates to persons of a Hispanic cultural background? (T 1115) A. There are none to my knowledge. Q. Okay. Now, you –- Turning to page 3 of your report, I’m quoting your report about line 6 or 7: “I asked Mr. Pedraza about a report from his older sister contained in his records that the defendant and his siblings experienced physical abuse at the hands of his father.” A. That was Liliana, not Joana. His records contained because they were, I guess, charged together with the breaking and entering and the criminal burglary, so his records actually contained notes about the treatment Liliana received at Delta Counseling, but not Joana. I had no records about Joana. Q. Now, so your testimony is you did not receive from Mr. Deen the DHS records? A. From anybody, no. Q. Have you had a chance to look at them there –- I believe they’re in front of you now, do you want to take a minute to look at them? MR. ROSENZWEIG: This is it here. This is the DHS -MR. ROSENZWEIG: (Continuing) A. Could you be more specific? ABSTRACT 175 Q. Sure. A. What am I looking for? (T 1116) MR. ROSENZWEIG: If I could have a second, Your Honor, I can locate it for you. MR. ROSENZWEIG: (Continuing) Q. You would agree that those excerpts I showed you do reflect that back in ‘96, ‘97, Joana Pedraza did refer to alleged abuse by the father? A. Uh-huh (yes). Q. And, in fact, Dr. Llorente in his report made reference to it? A. Uh-huh (yes). Q. And you would agree that the sister was in fact removed from the home, is that –A. Depends on your definition of “removed” -- Q. Well, they went to court -- A. Sure. Q. –- and her parents said, “We don’t want her here” -- A. Sure. Q. –- and the state took her over and put her in foster care? A. Sure. ABSTRACT 176 Q. And that is a definition of “removed”? A. Sure. Q. Did you read the prosecutor’s file? A. Not all of it. It was a fitness-only evaluation so it was not relevant. (T 1117) Q. Now, you would agree that if a child is in a home where another sibling is being abused that that can have a negative effect on the child that watches the abuse of the other sibling? A. Potentially. Q. And, in fact, there’s plenty of psychiatric, psychological evidence to support that proposition; correct? A. Potentially, yes. Q. In other words, the definition of PTSD includes observing various traumatic events even if they don’t actually happen directly to you? A. And reacting (inaudible), yes. Q. And, also, conforming –- Attempting to conform one’s behaviors so that one does not draw the same wrath, the same punishment; correct? A. That falls outside the definition of PTSD. Q. But that does fall within the definition of human behavior, does it not? A. I think human behavior is broad enough that it could fall into it, yeah, but there ABSTRACT 177 are other ways of reacting. Q. Now, it is –- Mr. Pedraza in fact told you that in fact he did join the National Guard at age 18 and right after training was in fact deployed to Iraq? A. Uh-huh (yes). Q. And he told you about Iraq? (T 1118) A. Uh-huh (yes). Q. And, in fact, whether you call them rockets, or mortars, or whatever, he did tell you that his encampment, or his base, or whatever you want to call it, was in fact shelled? A. Not the camp, that the shells flew over. He quoted specifically no shell hit his camp. Q. But there were shells in his direction? A. Around. Q. If they flew over him, that means it was in his direction -- A. Sure. Q. –- correct? And had to run to the bunker whenever the enemy started firing –- A. Uh-huh (yes). Q. And then his convoy was in fact attacked by a sniper; is that correct? ABSTRACT 178 A. Uh-huh (yes). Yes. Q. I mean, he told you that? A. He did. Q. Now, you didn’t talk to any other people in his unit; is that correct? A. Yes. Q. You did not? A. I did not. (T 1119) Q. In fact, you didn’t talk to any collateral witnesses; correct? A. No, I did not talk to anybody other than –- I reviewed records, but I did not talk to anybody else. Q. You did not attempt to talk to his sister, Liliana, or sister, Joana – A. No. Q. -- or either of his parents, for that matter, did you? A. No. Q. Now, you were aware, of course -- and you refer to it –- that he got married and then almost immediately divorced; correct? A. Yes. You’re talking about the first marriage or the second? Q. First marriage. ABSTRACT 179 A. Uh-huh (yes). Q. And then he married Victoria, the mother of the child at issue here, in February of 2012; is that right? A. Uh-huh (yes). Q. On page 4, you refer to his occupational history -- A. Uh-huh (yes). Q. –- and you quote him as saying he guessed he was being lazy, he was getting unemployment, but no jobs were available; correct? (T 1120) A. Uh-huh (yes). Q. Is that not also somewhat evocative of depression if one doesn’t feel like looking for a job? A. He told me he was looking for jobs, but no jobs were available. Q. Now –THE COURT: Was he also drawing unemployment? THE WITNESS: That’s what he told me, yeah. He told me, “I guess I was being lazy. I was getting unemployment,” and then he later added that he looked for jobs but no jobs were available. THE COURT: I thought I read that someplace. MR. ROSENZWEIG: (Continuing) ABSTRACT 180 Q. He did report to you his father had a history of excessive drinking; correct? A. Uh-huh (yes). Q. He reported to you, and you otherwise were able to establish from the record, that he’s had two arrests for DUI or DWI; correct? A. Uh-huh (yes). Q. And, in fact, that’s indicative of alcohol abuse, is it not? (T 1121) A. I diagnosed him with alcohol abuse. Q. Okay. And that in fact is a –- Is in fact in the DSM; correct? A. Yes. Q. In other words, that is a disorder in the DSM? A. Uh-huh (yes). Q. Okay. You say Mr. Pedraza reported no history of anger problems? A. That’s what he told me, yes. Q. But you were aware of the Ft. Chaffee, the incident involving the then- girlfriend, now wife, that later became his wife; correct? A. Not only that, but the records from Delta Counseling, yes, mention also anger problems. Q. You do not regard the Ft. Chaffee incident as something of an anger issue? A. Yes. Although, it was in the context of alcohol. He told me he was drinking ABSTRACT 181 that day. Q. But it also shows anger, does it not? A. Yes. Definitely. Q. And you refer to the Delta Counseling matters and refers to the diagnoses in which you saw an adjustment disorder with mixed disturbance of emotions and conduct, apparently the interim and then the final diagnosis; is that correct? A. Uh-huh (yes). Q. And, in fact, those in fact are also in the DSM as mental diseases; is that correct? (T 1122) A. No, disorders. Q. Disorders? Mental disorders? A. Yes. Q. And, in fact, that disorder is fairly common with kids, children who are abused at home; is that correct? Have you read literature in that regard? A. I wouldn’t say that. There is a difference –- Adjustment disorders are in response to a stressor, not necessarily to a traumatic event. There is a difference between a stressor and a trauma. Q. Okay, what is that difference? A. The difference is that the trauma, by definition, has to lay outside of the ABSTRACT 182 ordinary human experience; and a stressor is something, when Dr. Llorente mentioned that, you know, getting married can be stressful, yes, that’s a stressor but could never be considered traumatic. A trauma falls outside of the normal human experience. Adjustment disorder is, by definition, a response to a stressor, not to a trauma. Q. Okay. Would you classify going to a war zone as being outside the normal human experience? (T 1123) A. Yes. Q. Would you classify watching a sibling being physically abused as outside the normal human experience? A. I would. Q. So let me try and understand what your testimony is, the adjustment disorder with mixed disturbance that we’re talking about is common with children who suffer trauma –A. No. Q. –- people who suffer trauma –- suffer stressors? A. Trauma would lead to something more serious. Q. So what would you expect with someone who had had trauma as opposed to stressors? ABSTRACT 183 A. Most people, actually I wouldn’t expect nothing. Like I said, only 25 percent of people who were exposed to trauma develop any kind of emotional problems. Of the ones that do, most of them develop what’s called Acute Stress Disorder, which is a time-limited disorder that resolves within a month; and a minority of the people who develop Acute Distress Disorder go on to develop full-blown PTSD. Q. And there’s really no way to tell who’s going to have what; is that correct? A. Before then, no. After the fact, yeah, you can ask them about their symptoms. Q. But, in other words, there’s no way of knowing why not, for instance, the people in his unit find out what sort of family they came from and determine that there was 1, 3, and 5 were going to get PTSD and 2, 4, and 6 –A. There are risk factors. The risk factors increase your risk, but they are not, by no means, they do not determine that you will have PTSD. They increase your risk. (T 1124) Q. Now, he had –- Okay, the only treatment he had from the substance abuse he reflected was a drunk-driving class after his first driving arrest; is that correct? A. After the first DUI, yes. Q. The first DUI? And, in fact, that may be evocative of undiagnosed problems, is that correct, that he did not get additional substance abuse treatment –- Here you have a guy who has two DWI arrests, he has an incident at Ft. Chaffee, which by your ABSTRACT 184 testimony involves alcohol as well as anger, but essentially had no treatment for, you know, the alcohol issues; correct? A. That’s true, he had no treatment other than that drunk-driving class. Q. And you referred to the “OFFICIAL ACCOUNT OF THE OFFENSES”? A. Uh-huh (yes). Q. You obtained that from the file or -- A. The prosecutor’s -- Q. Was it something you were given? (Talking over) (T 1125) A. No, that was from the criminal file. I actually quote there which document I used so, “Affidavit for Warrant of Arrest by Special Agent Clayton Moss” and then later the “Case Summary by Special Agent Clayton Moss.” Both of those documents were present in the prosecution’s criminal case file. Q. Did you read any statements from Victoria Stuard Pedraza, the wife, the mother of the child? A. The statements from Victoria? Q. Yes. A. I saw the notes where –- I watched the video of her second statement and I saw the summaries of those statements that were written by, I think, Special Agent Moss. ABSTRACT 185 Q. Did you see the part where she opined that she thought he had PTSD? A. That’s actually something that he told me himself, I didn’t have to look at that. He told me that his wife diagnosed him with PTSD -- “but she’s not a doctor” -- that’s what he told me. Q. Did you verify that from reading the file? Did you see that -- A. I don’t remember reading that from the file; I remember that from him telling me. But I don’t remember reading it from the file. (T 1126) Q. Okay. Looking at page 9, you quote him saying “he was unsure he could trust his attorney with confidential information” -- Got along well early in the relationship but he no longer liked talking to the attorneys at the time of the evaluation. A. Uh-huh (yes). Q. So he verified to you that he didn’t want to talk to us? A. Yes. Q. And he explained he had a disagreement with the attorneys over the diagnosis of PTSD? A. Uh-huh (yes). Q. And did you discuss with him about the attorney’s obligation to investigate all aspects of the case? A. No. ABSTRACT 186 Q. Now, you’re familiar, obviously with the diagnostic criteria for Post Traumatic Stress Disorder -A. I don’t have it memorized, but yeah, I’m familiar with that. Q. Okay, do you need a copy? A. If you can give me one, yeah, I would appreciate that. Q. I believe it’s been made an exhibit, if I’m not mistaken. A. Okay. (T 1127) Q. Okay, C, which is “Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by at least three or more of the following: Efforts to avoid thoughts, feelings, or conversations associated with the trauma. Inability to recall an important aspect of the trauma, or sense of foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span),” -- et cetera -- “Feeling of detachment or estrangement from others.” And, in fact, wouldn’t you agree that minimization –These are essentially synonymous with the idea can often –- Back up for a second –Can often be expressed as a form of minimization, Well, you know, it really wasn’t that serious, I didn’t really see it, et cetera, et cetera, to try to avoid discussing it? A. I wouldn’t agree with that, no. Q. You would not agree with that? ABSTRACT 187 A. No. Q. Okay. Let’s say a person had been abused as a child or had witnessed serious physical abuse as a child and then that person –- and let’s say that it’s verified by numerous witnesses, et cetera, et cetera –- but then this person comes in and just denies ever seeing it, denies it ever happening, et cetera, but assuming it did happen, that would be a form of minimization, would it not? (T 1128) A. I’m not sure I would agree with that. I wouldn’t expect -– If they truly are avoiding the issue, I wouldn’t expect them to say, I don’t want to talk about it. But just actually denying that it happened, no, I wouldn’t agree with that. That’s not -Not wanting to talk about something and denying that it happened in the face of, you know, it was supposed to happen, they said it did happen, that’s not the same thing. Q. Well, let’s say if the person really wants to shut you off and he denies that it happened as opposed to sort of negative (inaudible) saying, I don’t want to talk about it –- I mean, if you don’t want to talk about it that is a implicit concession in some form that something did happen, they just don’t want to talk about it. But if the person just denies that it happened, if in fact there’s evidence that it did happen, or significant evidence it did happen, that’s –- You know, that is a form of avoiding it, wouldn’t you agree? A. I’m still not sure if what you’re saying is accurate. I think, you know, denial ABSTRACT 188 is one thing, but -THE COURT: Let me stop –- Interrupt you here. Let’s not go into faculty lounge talk, as I’ve used that phrase before. I’m speaking primarily, Mr. Rosenzweig, your point is is that –- he’s addressed it in the direct examination –- just because you deny something happened, or perhaps disagree with someone’s characterization of what happens, is neither here nor there with respect to the purpose of this hearing. It’s a very minimal, minimal part. And make your questions such that –- I mean, he’s not –- Obviously, he doesn’t agree with your position here; his written report shows that and his direct examination does, and you’re not going to get him to agree. Point out something significant via question, get him to admit to something significant that would cause the Court to give less weight to his professional opinion, something of some moment or some importance instead of what “denial” is and, Is it minimalization? so on and so forth. (T 1129) In other words, if you’ve got something to hit him with, hit him with it. Go for it. MR. ROSENZWEIG: Well, Your Honor, that’s what I’m trying to do. THE COURT: I mean, I’ve let you examine him now for twenty minutes which is longer than I let Mr. Deen, or longer than he examined your witness. If you’ve got a good point to make to the Court about why I should discount his –ABSTRACT 189 significantly discount –- his professional opinion here, I mean, hit him with it now. MR. ROSENZWEIG: (Continuing) Q. Well, let me make sure I understand a couple of things. You did not talk to any collateral witnesses? (T 1130) A. I did not. Q. And you did not talk to us? When I say “us,” I mean defense counsel -- A. Uh-huh (yes). Q. –- about issues we were having –- A. I did not. Q. Mr. Pedraza indicated that he did not trust us -- A. Uh-huh (yes). Q. –- and did not want to talk with us; correct? A. Uh-huh (yes). Q. You would agree one of your bases for your opinion appear to be -- No. 5 -- when you say “Mr. Pedraza was able to engage with this evaluator, indicating the capacity to work with counsel.” Now, you would agree that in talking to you about his mental status is different than talking with a lawyer about his case; is that correct? A. Yes. Q. And you would agree that one can discuss something, discuss a matter without ABSTRACT 190 necessarily being able to discuss it rationally; correct? A. What? I -- Q. You and I could have a discussion in which we talk about certain subjects, or things, and topics, but being able to discuss it does not necessarily mean that –- Does not mean that it is a rational discussion –- Being able to discuss does not necessarily require that the person discussing it is rational? (T 1131) A. I think talking to somebody doesn’t imply rationality, but discussion by definition is a back and forth. It presumes that you understand what’s being said; and you’re saying something in response to what’s being said. Yes, they can yammer, yammer, yammer and make no sense, that wouldn’t be rational. Q. You regard not cooperating with counsel as a rational decision to make? THE COURT: Define “cooperating with counsel.” MR. ROSENZWEIG: (Continuing) Q. Agreeing to meet with counsel, agreeing to discuss the case with counsel? A. I regard it as a reasonable decision from where he’s coming from. Q. And where he’s coming from is, what? A. What he told me that, you know, he thinks that his counsel believes he is guilty even though he’s maintained that he isn’t. Q. And his basis for us believing that he’s guilty, did he tell you what that was? ABSTRACT 191 A. He did. Like I said in my –- Do you want me to read it again? “They told me we need to find a reason why you did it.” That’s what he told me. (T 1132) Q. Did he quote any specific person saying that? A. His lawyers. Q. Okay, he didn’t quote any specific lawyer? A. No. Q. And you didn’t inquire further as to –- A. It’s a thorny issue, you know, there was no evidence of mental disease or defect so, obviously, whatever he was telling me it was not coming from a psychopathological place, so I decided not to go into it. Q. So you rejected the idea of PTSD because Mr. Pedraza told you he had no history or experiences as a child or an adult, that he responded to with intense fear, helplessness, or horror; is that right? A. In part. And also because he has no current symptoms of PTSD. Q. Let’s talk about that. You relied on his reporting about “No history of experiences” -- “that he responded to with intense fear, helplessness, or horror”? A. Uh-huh (yes). Q. You relied just on his reporting to you and did not talk to any collateral witness who might tell you something different than Mr. Pedraza; is that correct? ABSTRACT 192 A. True. (T 1133) Q. And you say that he had no history of experiences in childhood he responded to with disorganized or agitated behaviors -A. Uh-huh (yes). Q. –- but you did not talk to any people who knew him as a child? A. No. Q. Okay. And you said, “He had no clinically significant psychiatric systems” -- A. Symptoms. Q. –- “symptoms that were consistent with a diagnosis of PTSD.” And referring to the diagnosis of PTSD, you are discounting the –- according to this -- asserting you did not find the “persistent avoidance of stimuli like associated with trauma” that we’ve discussed earlier; is that correct? A. You mean I did not consider that he had those symptoms? Q. In other words, you say in your report, “He had no clinically significant psychiatric symptoms” -A. Yes. Q. –- “consistent with PTSD”? (T 1134) A. Yes. Q. And using the DSM-IV criteria, 309.81, Post Traumatic Stress Disorder, one ABSTRACT 193 of the ways that one can –- One of the symptoms, or some of these symptoms, are “Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness” -- “as indicated by three or more of the following” and then they list three points -A. Uh-huh (yes). Q. And you claim not to have seen any of this; is that correct? A. I did not. MR. ROSENZWEIG: I pass the witness, Your Honor. I pass the witness, Your Honor. MR. DEEN: No further questions of this witness, Your Honor. THE COURT: You may stand down. Thank you. MR. DEEN: The state rests. MR. ROSENZWEIG: May I have a second to -THE COURT: You may. MR. ROSENZWEIG: No rebuttal. THE COURT: Very good. If you-all would take a seat, please, and I’ll give you my decision. Where’s my little book? (T 1135) FINDINGS AND COMMENTS BY THE COURT THE COURT: Alright, the question before the Court is whether or not the ABSTRACT 194 defendant has met its burden by a preponderance of the evidence to demonstrate to this Court that the defendant, due to mental disease or defect -- or in this case, PTSD, however you want to categorize it -- lacks the capacity to rationally understand what’s going on in this proceeding; and, secondly, whether or not –- and the charges against him, and so on and so forth -- and, secondly, whether or not as a result of that defect he is unable to assist counsel in his defense. The Court has listened to the testimony of Dr. Llorente, a neuropsychologist, and has carefully reviewed his report, as well as the report recently submitted pursuant to order of this Court by the State, in this case, Dr. Ramos, a psychiatrist. The Court, in looking at both of these reports, as well as looking at the report of Dr. Pablo Stewart –- Let me comment first on Dr. Stewart’s report. It is a given that any forensic report, which gives an opinion to the ultimate issue –- And there are those academic that say, No witness should ever give an opinion as to the ultimate issue, that’s for the Court. Laying that aside, Dr. Stewart furnishes absolutely no basis in his one-page letter for this Court to attach any reliability to his opinion. In other words, he does not –- After he says he conducts ten hours’ worth of interviews with the defendant, he does not provide a single quotation, direct quotation, from this defendant, which would support either a finding of PTSD, or that he has some mental defect that would prevent him from rationally communicating with his counsel and ABSTRACT 195 cooperating with them. (T 1136) And it is taken as a given that when a psychologist or psychiatrist finds, as a result of their examination and testing, that a defendant is unfit to proceed, given the fact that there is a presumption that the defendant is, that they should –- the psychiatrist/ psychologist –- should supply in their report and their testimony even more direct quotations than the psychiatrist or psychologist that opines that they are fit to proceed. Because they’re overcoming their presumption and because they must convince a Court that they themselves have some rational basis backed up by direct quotes from the defendant’s interview; and, here, Pablo Stewart had ten hour’s worth. I would expect to receive at least one, two, or three direct quotes, even if he found him fit to proceed; I have none. I wouldn’t have called him as a witness either, whether he had a conflict or not. (T 1137) Moves me now to Dr. Llorente’s report, second and final. This Court is impressed with one thing about Dr. Llorente: I believe he is a sincere individual after observing him on the witness stand. He more than wanted to volunteer information. I know at times he probably gave defense counsel heartburn when he did. That happens sometimes when you get a witness who likes to testify and expound. However that may be, Dr. Llorente provides very few quotes from this particular defendant, direct quotes, and this Court will not, in assessing the weight to give his report, will not go into any of the materials out there that describe the effectiveness ABSTRACT 196 and the acceptability of using, for instance, drawings, to assess a defendant’s competency to proceed. I won’t do that, not only because I don’t swing at soft pitches –- I couldn’t take any credit for hitting them –- but out of respect for him and what I perceive to be his sincerity, to take the report apart would be too easy. References to things in Mexico such as voodoo and stuff, having absolutely no factual basis in the record, is inexplicable. The troubling part of the position of Dr. Llorente is this: you have to assume that the defendant, whose interest he is presumably here to protect on a motion that would have no possibility of succeeding under these facts, basically says things about the defendant that, at least from the history of Army records, DHS records, school records, whatever, is simply not true. (T 1138) Dr. Llorente tries to put a square peg in a round hole, for what strategic reason, I’m at a loss. The DHS record –- there’s two sets –- one about a child maltreatment report –those are out there by the millions. No adjudication. The only juvenile proceeding record involves the removal of the 17-year-old young lady from the home because the parents don’t want her back in, and she shortly married thereafter, and that’s the reason –- And all of a sudden, people start talking about “removed from the home.” Simply taken into DHS custody because the parents didn’t want her back in. According to the report filed by the State, Mr. Pedraza explained that she wouldn’t obey the father. Maybe he went too far with the whippings, may not. But there’s ABSTRACT 197 absolutely no record, a court record or maltreatment record, that this young man was treated other than as he told the State hospital psychiatrist that he had a pretty good childhood. Why must we make more of it than that. Whether or not his father whipped him too hard, one time or another, that may be a common experience of many people. Point being is this, Dr. Llorente’s report contains none of the tests normally given that supply any objectivity to his findings. Rather his findings are based upon a selective interpretation of non-existent, non-testimonial evidence. Going to the State’s report. First of all, it is extremely well written and summarized. (T 1139) “SOCIAL HISTORY: Mr. Pedraza was born in a suburb of Mexico City, Mexico, to his mother, Alejandra, and his father, Enrique. His family moved to Los Angeles, California, when the defendant was three or four years old. They moved again one year later. Mr. Pedraza grew up in Hamburg, Arkansas. His parents remained married throughout his childhood and raised the defendant together,” period. That’s the first few sentences. I haven’t gotten a report written like an English major who can string words together like that in a long time, even from the State. In other words, he tells the reader in four sentences what most lawyers, including this judge, would probably struggle to get out in a page and you already have a picture. “Good relationship with his parents” -- “had enough food, clothing, and necessities growing up” –- “did not experience any physical or sexual abuse.” ABSTRACT 198 Indeed there is no objective evidence of physical or sexual abuse in this record offered by the defendant. Whether he witnesses his sister getting whipped or not does not rise to the level of -- For instance, the DSM uses a woman getting raped in an elevator, may very well have symptoms of being afraid or starting to break out in a sweat, excessive heartbeat, if she gets back in the elevator. (T 1140) There’s a difference between rape and seeing your sister get whipped. The factors that are listed in the DSM witnessing someone being killed, death, near-loss-of-life experiences are certainly not in this record, nor are they in Dr. Llorente’s report that would support any finding. Neither is there any suggestion –- neither doctor has gone into it –- it’s unnecessary for the State to –- as to whether it’s severe or acute; how long lasting the symptoms were; when was the onset; what prompts their reoccurrence; and what, if anything, does it have to do with talking to his lawyers, which brings me to the last point. Until this juncture, this Court had no idea whether or not Mr. Pedraza was getting along with his lawyers or not. It was really none of my business. The reasons that he gave to the state’s psychiatrist are not only rational, but I should say comport, to some extent, with the facts of this case. He summed it up. And I said this last summer: This is going to come down to the jury weighing the credibility of Victoria Pedraza against the credibility of Mr. Pedraza. He’s dead on. (T 1141) And if he ABSTRACT 199 believes that counsel does not fully recognize that, he may be perfectly rational. He is on trial for his life; and I’m not saying it’s the total state’s case, but the state has made a plea bargain, whether this Court agreed with it or not. You have no idea what my beliefs are about this case and I’m to stay out of it. The state made a plea bargain with Mrs. Pedraza to testify against Mr. Pedraza. Mrs. Pedraza, it’s undisputed, was the one when the police came to the house that offered a reason for the child’s injury, or death, that did not turn out to be true, not Mr. Pedraza. They were only together, as I recall, for about six months, only recently married. Look at the autopsy report. The most that she can receive is twenty years. Now, she must testify against him. Why would anyone, a trial lawyer, do anything to call into question his credibility? Why would any expert suggest in a written report that he lied? (Inaudible) it seems, at least insofar as his account of his life’s history is consistent entirely with what’s out there, that he was in fact truthful with the state’s psychiatrist. (T 1142) And as far as Victoria Pedraza’s opinion as to whether or not he has PTSD -I hope I never hear that again -- why wouldn’t she say it. True or not, she has every reason to assign to Mr. Pedraza every defect known to man. It’s in her interest to say that. When it comes to her word against yours, what better thing for her to say? I have no idea whether she believes it, whether she said it. I certainly wouldn’t allow her opinion into evidence. She may say some other things about him, why not? I ABSTRACT 200 would say it about someone if I was testifying against them. That’s my point. You’ve backed into –- Most trials in capital murder -- Mr. Rosenzweig is right on this –- and I’ve been to three schools. My first capital murder case was in this courtroom when I was about 27. I prosecuted it illegally, thank goodness it was reversed. Psychiatric conditions were involved there –MR. ROSENZWEIG: Your Honor, I’m sorry, I couldn’t hear –THE COURT: I said my first –- You want to know deja vu, my first one was here, a man with schizophrenia. I understand how people’s attitudes are about mental conditions and the prejudices, the prejudices against them, and I am very sensitive to whether or not someone suffers from something bonafide; and if I thought in any way, shape, or form that you suffered from any –- that he suffered from any mental disease or defect that inhibited you from being able to communicate with counsel, I would so find. Neither the professional opinions here today, nor the history, including no applications for disability benefits from the VA, nothing, would support such a finding. (T 1143) I want you and your lawyers to communicate, but if you have a bonafide reason for -- as a layperson by yourself in this thing -- to register your rational concerns about having pursued this, I can certainly not use that as PTSD. Many times a case is open and shut, as everyone knows, on a capital murder ABSTRACT 201 as far as who done it, so on and so forth, and the whole trial is about punishment. This is not one of those cases. And what has troubled the Court in having to make these findings -- and I’ve been restrained in the findings that I’ve made -- is that I want a fair trial for both sides. And this case needs to be tried; it’s time to be tried. It wouldn’t have been tried in October anyway -- state would have filed a motion for continuance -- and you needed this time to prepare. But I hope that you and counsel can come to a consensus –- it’s not too late –- as to the defense of this case. (T 1144) This Court denies this petition, or this motion, for the reasons I’ve given and the tests that were administered by the state and the lack thereof by the defense. I understand that this other doctor who was referred to by Dr. Llorente apparently found that you did not have PTSD and you were competent to stand trial, administering the tests that he did. Once that was known, it should give anyone pause to proceed further. Once, the state was criticized in a recent supreme court case for shopping for doctors -- And the defense raised it on appeal. The state was able to get around it by saying, Oh, well, the first psychiatrist, state hospital, was too incomplete in his evaluation, and that allowed the judge to appoint someone else. They skated on that. When you get an opinion you don’t want to go with –- and, apparently, it’s consistent with what you, Mr. Pedraza, believe –- I would think twice before I would go looking for another one, especially, when it’s the other man’s life that’s on the line ABSTRACT 202 and he has some right to say –- And when it ain’t open and shut –- That’s the real issue here. This Court stands in recess. MR. ROSENZWEIG: Your Honor? THE COURT: Yes. MR. ROSENZWEIG: Can we go on the record on a couple of other matters? (T 1145) THE COURT: As long as they’re short because I’ve got a pretrial in this case. MR. ROSENZWEIG: I understand. THE COURT: What do you want to go on the record about? MR. ROSENZWEIG: First, Your Honor, I want to make sure so the record is clear, so we don’t end up (inaudible) stuff the same week as the trial –THE COURT: Right. MR. ROSENZWEIG: Okay. One, as the Court is aware, we had filed a motion for continuance based upon what we thought was going to be Dr. Llorente’s unavailability during the trial week. His new employer, Penn State University Medical Facility, it has authorized him to be here on Friday, June 2nd, which would be the Friday of the week of trial; and Dr. Stewart can also be here at that time. Assuming –- And I wanted to let the Court know because that would moot the ABSTRACT 203 continuance motion based upon Dr. Ramos –THE COURT: Just say, I’ve got good news, Your Honor. I withdraw my motion. MR. ROSENZWEIG: Well, I wanted to make sure the record was clear as to why –- as to what –- (T 1146) THE COURT: Gotcha. Good deal. MR. ROSENZWEIG: Secondly, Your Honor, with regard to the Mexican relatives. THE COURT: Mexican, what? MR. ROSENZWEIG: The Mexican relatives. THE COURT: Gotcha. Go ahead. MR. ROSENZWEIG: We have not obtained an answer from you yet. We have sought from you to execute the certificates, which we’ll need to present to the Department of Homeland Security in order to authorize us to bring these people into the United States. Anyway, so that’s where we are. We had also communicated to you the fact that we have a law enforcement officer -- Mr. Reeves, I believe is his name -- who will be available to represent the Department of Homeland Security -would be their escort officer, for lack of a better term. I don’t think that’s the formal term. But we still need paperwork from you; and we ask that you execute it. ABSTRACT 204 THE COURT: The reason I have not -- I believe I stated in a letter -- I have no earthly idea what you’re talking about –- (T 1147) MR. ROSENZWEIG: We’re trying to make –THE COURT: -– in this respect. The Homeland Security, nor any official agency –- The Agency of Homeland Security -- Department of Homeland Security -nor any official government agency has been in touch with me stating that an order from me is necessary for someone from Mexico to attend this trial. What I have been presented so far, in my recollection, is simply letters and a motion from you and counsel stating that it’s y’all’s belief that it would help matters if I did. And I’m certainly not going to appoint someone in some law enforcement position. But that’s the reason I’ve not executed it at this time. MR. ROSENZWEIG: Okay. May I approach, Your Honor? THE COURT: You may. MR. ROSENZWEIG: Your Honor, I have an affidavit from Joseph Flood who’s a lawyer associated ostensibly with the MCLAP, Mexican Capital Legal Assistance Program, which he prepared –THE COURT: Homeland –- Can you get something from Homeland Security? MR. ROSENZWEIG: Your Honor, this is part of the problem. We’re talking ABSTRACT 205 about a huge bureaucracy and we’re trying to –- Anyway, he, Mr. Flood, explains the situation. I have spent –- I can tell the Court, I have spent hours, and hours, and hours, and hours on the phone being bounced around to various Homeland Security places; and the problem is trying to get a straight answer out of the bureaucracy. That’s why we obtained this from Mr. Flood. (T 1148) THE COURT: And these people are from Mexico and would be able to testify to, what? MR. ROSENZWEIG: Okay, I will tell you. THE COURT: Short and sweet though. I know –MR. ROSENZWEIG: I will give you a one-or-two sentence summary of each one. THE COURT: I’m going to give this to the clerk to file. MR. ROSENZWEIG: Thank you. Bernardo Pedraza, Mr. Pedraza’s uncle -the defendant, Mr. Pedraza’s uncle -- who would be able to testify as to the extreme poverty that the Pedraza family lived in in Mexico. Also lived with the Enrique Pedraza family in Hamburg for a period of time, a number of years ago, and could testify as to issues involving the home life, et cetera, et cetera. THE COURT: Well, you’ve got the mother here in the United States, right? MR. ROSENZWEIG: Excuse me? ABSTRACT 206 THE COURT: You have his mother here in the United States? MR. ROSENZWEIG: Well, his mother is here, but, I mean, there are issues –- (T 1149) THE COURT: And his mother could testify to the same thing. MR. ROSENZWEIG: Well, Your Honor –- But his mother, you know, there are issues –- It would be good to have, shall we say, a corroborative witness who is not the defendant’s mother –THE COURT: On the issue of poverty? MR. ROSENZWEIG: Well, Your Honor, that’s number one. Regina -- or Regina, depending on how you pronounce it -- Pedraza, who is the defendant’s aunt, essentially the same –THE COURT: Other than on the issue of poverty, are any of these witnesses going to testify other than they were very poor? MR. ROSENZWEIG: Your Honor, the poverty is unlike anything you would see in the United States. I’ve been there myself and seen it. THE COURT: You have no idea how much time I’ve spent in Mexico or where and, in fact, in Mexico City. MR. ROSENZWEIG: I don’t have any idea. THE COURT: I understand the abject poverty. I’m asking you: Is there any ABSTRACT 207 issue in which these three witnesses would testify other than the poverty issue? (T 1150) MR. ROSENZWEIG: Yes, sir. THE COURT: What? MR. ROSENZWEIG: Your Honor, if I could –-You asked me for three, so let me go through the third. Let me mention the third then I’ll talk about that. The third one is Leopauldo Moran, who is Mrs. Pedraza’s first cousin, and who also lived here with the Pedrazas. He can testify about issues involving the family –THE COURT: What? MR. ROSENZWEIG: The family dynamics under which Alejandra Pedraza Moran -- Moran Pedraza –- grew up and essentially lay interpretation of mental illness in that family; and, furthermore, he also lived with the Pedrazas in America for sometime shortly around the time that -– or a little after –THE COURT: Is he going to testify as a layman that your client, Mr. Daniel Pedraza, has a mental illness? MR. ROSENZWEIG: No, no, not Daniel Pedraza, some of his ancestors. THE COURT: Well –- (T 1151) MR. ROSENZWEIG: Okay, Your Honor, in that regard, I will point out that the AVA standards for investigation and mitigation include a family history of ABSTRACT 208 generations; and that’s what we have done and –THE COURT: And –MR. ROSENZWEIG: –- furthermore, Your Honor (Talking over the Court) -THE COURT: -- the issue for me, too, is also this, whether or not this is the only place this proof can come from. Now –MR. ROSENZWEIG: Your Honor, I haven’t finished talking yet. May I finish? THE COURT: If you wrap it up. MR. ROSENZWEIG: I will. And Mr. Leopauldo Moran also lived with the Pedrazas and will be able to testify about the strictness and threatening nature by which Enrique Pedraza ruled that household and, essentially, he could corroborate that as well. Your Honor, Mr. Deen, apparently, is not going to stipulate to our mitigating circumstances, so I think we’re going to have –- We have to be able to prove them as best we can with witnesses; and these are family witnesses who can –- (T 1152) THE COURT: Well, the issue –- I’m doing nothing to prevent you from getting them here. And this is the first time I’ve seen this affidavit from this lawyer. I do not think it is too much to ask, since there is no –- Under the Arkansas Rules of ABSTRACT 209 Criminal Procedure, there is no –- nor any case law in this state –- there is no authority for me to start signing improvised orders that some state agency or government may take for something I don’t know, or have no idea they’ll take it for, and bring somebody into this country and this Court have any responsibility for it, or be responsible for anybody I appoint. The only people I ever appoint are process servers and –- You’re asking the Court to go into an area, without really giving the Court much assurance –- and I wrote the director –- and you –- of the Public Defender Commission and I said, Come with a rule or regulation, come with a law that authorizes this. I’m not going to do this by the seat of my pants. The rest of this trial I can, but I can’t go some place, Mr. Rosenzweig –- I have no problem with you bringing those witnesses to testify, whether it was duplicative, or cumulative, or not. And, virtually, every motion you filed, or every request, including taking the deposition of Victoria Pedraza, which by the way her counsel objected to -- knowing that Mr. Pedraza was correct, that it comes down to a he-said-she-said deal -- I allowed that deposition and probably pushed the law a good bit because there’s really no authority for it. (T 1153) I wanted you-all to have what I thought was the most important part of the case, not what I heard here today, and that is a complete deposition of her. And I also ordered that the mental health records of Victoria Pedraza, over her counsel’s objection and the state, be turned over to me for an inABSTRACT 210 camera review. In fact, I speculated as to whether it may be out at Delta Counseling. Turns out they have none. Every time I’ve been able to give you information, I have done so. The problem is you’re asking me to go someplace now that I’m very, very uncomfortable with –MR. ROSENZWEIG: Your Honor –THE COURT: –- and I’m going to leave it at that. I will review your affidavit. And that is that. Now, I have concluded the purpose of the hearing today. If there are other matters that you wish to bring up: motions, so on, and so forth, do so. I’ll remind you, I entered an order that said I will not accept letters or phone calls from anybody asking this Court to take any action. You put it in the form of a motion, that way I know it’s filed with the clerk; it is therefore subject to sanctions, as any motion would be, letters or not; and it keeps the record straight for the benefit of everyone. (T 1154) MR. ROSENZWEIG: Your Honor, if I could respond to that very briefly –THE COURT: No, you can’t. I am through with the hearing. And if I don’t stop now, we’ll be here all day. Thank you very much. PRETRIAL HEARING, MAY 28, 2013 ABSTRACT 211 THE COURT: We are on the record in the Pedraza case and the case is set to commence with jury selection –- sorry -- the case is set to commence with jury selection on Thursday at 9:00. Let the record reflect that Mr. Pedraza’s here, along with his counsel along with the prosecutor. Mr. Rosenzweig just presented me with a motion for in camera examination of DHS records, and I see in the first sentence –I didn’t see it at first –- motion is filed under seal because of the privacy interest of the person. Why don’t you-all approach? I just now saw that. Oh, okay, now I see it. All right, I’ve read the whole motion now. (R 1155) MR. ROSENZWEIG: There was some of a misnomer there –- I actually prepared this and when I sent Mr. Deen a copy, it was then that I realized we had actually talked about these records in open court so there wasn’t any –THE COURT: I don’t think there’s a thing wrong with just going ahead and taking care of it in open court. Counsel, I was willing to look at –- As you know, I entered an order willing to look at any mental health records of Victoria Pedraza, and figuring there probably wouldn’t be that many pages and stuff. On me, taking it upon myself, to look at the investigative file on Joana Pedraza, which has been furnished to counsel but with redactions, what I think would be better, because I’m not prosecuting or defending this case. You may have a theory of the case with which the Court may not be totally ABSTRACT 212 familiar. It would be simply better that counsel look at it first un-redacted and then under a, certainly, an order from the Court that you’re not to disclose the redacted contents of it until you’ve cleared it with the Court, and then you meet with the Court on the record and say, Your Honor, I need this, this, and this, and the other side either agrees or doesn’t, and I make a ruling on it. But you-all are trying this case, it would be better –- because these aren’t mental health records; these are simply DHS (R 1156) investigative files –- it would be better if counsel looked at the un-redacted deal away from the Court; and then if you-all can reach an agreement on what can come in, or out, or who can use what, fine, submit that agreement to the Court. If you can’t reach an agreement then the Court will make a decision and will look at it, along with counsel -- defendant present, of course -- and make a ruling. MR. ROSENZWEIG: Your Honor, I agree with you, but DHS does not. THE COURT: Well –MR. ROSENZWEIG: Your Honor, here’s the thing –THE COURT: You mean they won’t do that? (R 1157) MR. ROSENZWEIG: That’s correct. Here’s what happened: When we got –- I dealt with the Office of Chief Counsel with regard to this and they’re the ones who shepherded this thing through, and they provided us the redacted version. I called my contact at the Office of Chief Counsel who’s the No. 2 or 3 person there; ABSTRACT 213 and it was explained to me the way they interpret the statute, their statute, they could only provide a redacted copy, but if I could obtain a court order then they would provide an un-redacted copy to the Court. THE COURT: Give me a court order. MR. ROSENZWEIG: Okay. THE COURT: But what I’m going to do is, when we examine it in chambers, you’ll look at it, along with me -- or I may let you look at it first –MR. ROSENZWEIG: Okay. THE COURT: –- but I want the benefit of counsel’s perspective. MR. ROSENZWEIG: That’ll be great, sir. I’m happy to have that. THE COURT: Then prepare the order. MR. ROSENZWEIG: Okay. THE COURT: It can be one sentence: DHS is ordered to provide forthwith -if they wish -- under seal directly to Judge Gibson un-redacted –- How many pages was it? MR. ROSENZWEIG: It was about forty or fifty, but some of them were duplicate pages. I think there was probably about twenty of the actual, original –THE COURT: I didn’t know there was still a file out there outstanding that had not been uncovered. But in any event -- And what I would suggest is that on the ABSTRACT 214 morning of trial that we simply meet early or either during the noon hour and lunch be brought –- Probably meet during the noon hour and lunch be brought in, instead of trying to back it up and affect jury selection.(R 1158) MR. ROSENZWEIG: Your Honor? THE COURT: Go ahead. MR. ROSENZWEIG: You also referred to the Victoria Pedraza records. It is my understanding –- If I recall correctly, you had sent an order to Delta Counseling and they responded back they didn’t have anything. We understand that the records, if there are any, will be kept at the office of Decision Point in Fayetteville, is where these records would be. Is that correct? MR. MORLEDGE: That’s correct. THE COURT: Is that the –- Are they an offshoot of Delta? (R 1159) MR. ROSENZWEIG: Apparently, they are the holding company, I think, for Delta Counseling. THE COURT: Well, they’re playing a little fast and loose with me then because a discovery order applies to not only the party but those records that are within its control. A lot of people park –- have third-party servers -- and park their e-mails and stuff –- they outsource it -– and we’ve all come to understand that and we know –- And so, the way I took the response by Pat Haney was that she had not been ABSTRACT 215 there. MR. ROSENZWEIG: Your Honor, what we can do is prepare an order to Decision Point asking them to send immediately to –THE COURT: Include Delta –- What’s their relationship? Are they a thirdparty outsource? MR. ROSENZWEIG: Mr. Morledge, I think, hasthe exact –MR. MORLEDGE: Thank you. Your Honor, it’s my understanding that Decision Point is currently in the process of trying to buy out Delta Counseling or at least move into this territory down here; and the jail is kind of just, for lack of a better word, subleasing -– THE COURT: But, still, Delta would have had to have had some record –MR. MORLEDGE: I think they should know. (R 1160) THE COURT: -- of appointments, an appointment book then –- It may not –- That would at least have told me to look elsewhere. Some type of indication that she had been in their doors or that they had come out here to the jail facility. I would go ahead and include Delta and that outfit –- people up there –MR. MORLEDGE: Yes, Your Honor. THE COURT: –- and make it a court order that they are to –- that the Court’s been advised by counsel that they have these records in custody and that they’re to ABSTRACT 216 provide them forthwith to the Court. MR. ROSENZWEIG: Your Honor, are you going to be here in the morning? THE COURT: Uh-huh (yes). MR. ROSENZWEIG: So we can just send that –THE COURT: If not, Mrs. Rosegrant can stamp my name. MR. ROSENZWEIG: Very good. THE COURT: And I will notify Mr. Haney that that’s my information and belief, and to get it done. Has counsel visited with you about that, Mr. Deen, about these records or –- (R 1161) MR. DEEN: Yes, and I have no objection to that method of handling it. I’ve also visited with Mrs. Pedraza’s attorney and been advised that these are grief counseling types of records. THE COURT: Well, the reason I thought it important at the time they objected was that one-in-fifty chance that perhaps something was said that was exculpatory to the defendant -- Wouldn’t it be a heck of a note for that to be out there and not available. I understand about going to get help. Did she start going after counsel was hired? MR. DEEN: I’m not for sure when it began, Your Honor. THE COURT: All right, this is for a witness? ABSTRACT 217 MR. MORLEDGE: Yes, Your Honor. THE COURT: Is this the jail person? MR. MORLEDGE: Yes, Your Honor. THE COURT: I don’t know why I had in my mind that y’all were going to do this on your own, like you did with the deposition I ordered of Victoria Pedraza, but you’re right, I need to be here. That’s the reason I wanted it put in the order about form of the questions. MR. MORLEDGE: Yes, Your Honor. THE COURT: How long will this witness take? MR. MORLEDGE: I think ten minutes, tops. I’m guessing more like five. THE COURT: It doesn’t matter; I’m here. (R 1162) (Break) THE COURT: All right, call her. MR. MORLEDGE: Melissa Sapp. THE COURT: Raise your right hand. (Witness Sworn) VIDEO DEPOSITION OF MELISSA SAPP WITNESS MELISSA SAPP; DIRECT EXAMINATION BY MR. MORLEDGE: Q. Would you please state your name for the Court. ABSTRACT 218 A. Melissa Sapp. Q. Okay, Melissa, I’m Birc Morledge, I’m one of the attorneys for Daniel. Okay? Melissa, what do you do for a living? A. I’m a dispatcher for the Crossett Police Department. Q. Okay. So you’re employed by Crossett Police Department? A. Yes, sir. Q. Do you have any other jobs that come along with dispatching over there? A. I take care of female inmates and sometimes have to help with the male inmates if it requires it. (R 1163) Q. Okay. Tell me a little bit about the Crossett jail, the size of it. A. We are a 24-bed facility and that’s the most we can house. Most of the time we house anywhere from fifteen to twenty inmates at a time. Q. Gotcha. And you said that you mainly take care of the women, but you do have crossover with the men; correct? A. Yes, sir. Q. Okay. How often do you work? A. I work –- I work shift work, so I work seven days in a row. Q. Okay. Gotcha. How long have you been employed there, Melissa? A. Fifteen years. ABSTRACT 219 Q. Okay. Gotcha. Have you had any contact with Daniel Pedraza? A. Yes, sir. Q. Okay. Do you have daily contact with him when you’re working? A. When I’m working, yes, sir. Q. Okay. Gotcha. Tell me a little bit about that. A. If he gets out to take a shower or –- At that time, he was a trustee in our jail, so when he was out trustee’g, he would speak, I would speak. And under one instance, I had to serve him his food when he was in with his lawyers. Q. Sure. Has he always been polite? (R 1164) A. Yes, sir. Q. Okay. Had any trouble with him? A. No, sir. Q. Okay. Let me ask you this: In the fifteen years of working there, where does he rank amongst the male inmates that you’ve had? A. He would have to be one of the best inmates I’ve ever had to be around. He’s very polite; he’s always yes, ma’am, yes, sir; he never gave us any problems. Q. Does he get along well with other inmates? A. Yes, sir, as far as I know. ABSTRACT 220 Q. Okay. Now, Melissa, has Daniel ever given you anything? A. Yes, sir. Q. Okay. Describe that for me. A. He’s a very detailed artist. He had drew some pictures and the jailer was showing them off; and he showed me a particular picture of an angel he had drew, a baby angel, and I told the jailer, I said, “I really like that. Would you see if he would draw me one?” and he did. Q. And it was –- Do you still have that? A. Yes, sir, I do. Q. Okay. Gotcha. Did you ever go back and talk to him about that? A. I just told him thank you – (R 1165) Q. Sure. A. –- and I asked him if he would put a particular date on it for me. Q. Okay. Tell me the significance of that date. A. The significance of that date is the day that my –- I gave birth to my baby girl and she passed away. Q. Okay. Tell me where that picture is currently. A. It’s in her baby book at home. Q. All right. And you’re aware of Daniel’s charges? ABSTRACT 221 A. Yes, sir, I am. Q. Okay. Let me ask you one other question: Have youever felt threatened by Daniel? A. No, sir, I have not. Q. Okay. In any way? A. No, sir. Q. Okay. That’s all I have. MR. MORLEDGE: Pass the witness, Your Honor. CROSS-EXAMINATION BY MR. DEEN: Q. Good afternoon, ma’am. A. Good afternoon. Q. So when Daniel Pedraza wants to, he has the ability to control his anger and his emotions; isn’t that right? A. Yes, sir. Q. Thank you. A. Yes, sir. MR. DEEN: Pass the witness. (R 1166) MR. MORLEDGE: No further questions, Your Honor. THE COURT: You may stand down. Thank you. ABSTRACT 222 MS. SAPP: May I be dismissed? (Whereupon, said video deposition concluded at 5:47 p.m.) * * * MR. MORLEDGE: And, Your Honor, just briefly for the record, it’s our intention that we’ll be playing that if we get to the punishment phase. THE COURT: Well, you know, they get –- Testimony like that’s admissible even in a Class D felony, so –- And I suspect that this case may be submitted on –may -- I have no idea –- on lesser includeds, too, so –- It’s kind of a generic deal. Thank you. MR. MORLEDGE: Thank you, sir. THE COURT: All right. Now, do I have either, first, from the state –- if I have it and have overlooked it just tell me -- a witness list? MR. DEEN: One has been provided to the clerk’s office. I cannot tell you for certain whether you were copied that list or not. THE COURT: If you don’t mind, send me one tomorrow because while I’m going to allow you-all to do most of the voir dire, as I do in any case, the Court will go over, as I should, the witness list with those that we’ve got sequestered to see if they have any close ties with them; and without that list, I cannot conduct my basic voir dire. (R 1167) ABSTRACT 223 Mr. Rosenzweig, what about you, have you prepared a witness list? MR. ROSENZWEIG: There’s a witness list and supplemental list that has been given to Mr. Deen and –- (Talking over) Mr. Morledge’s signature. MR. MORLEDGE: Your Honor, it’s been filed under seal. THE COURT: The witness list? MR. MORLEDGE: Yes, Your Honor. I’ll (inaudible) the same copies to your office as well. And if you would like, Your Honor, I could just put together a consolidated list and make it easier for the Court. THE COURT: We’re stacked up with Banker’s boxes of this file in there, so –MR. MORLEDGE: I understand. THE COURT: –- and I’m not the best organized on that, so if you would, if you want to, tomorrow afternoon just as long as I have it when voir dire begins. (R 1168) Now, let me tell you where we are on the jury. I’ve not excused anyone –- I made a record on each one. I told them all -- and it’s worn Mrs. Rosegrant out -- that they had to bring doctor’s excuses if they wanted off for medical reasons. All of those have been, I believe, filed with the clerk. I’ve let off some for vacations that they had already planned and prepaid. What I’ve got left, there should be a firm list ABSTRACT 224 I call Panel A -- Ninety-three was what was left after the medical excuses and all of that -- around 93 -- and they are ordered to appear at nine o’clock that morning. The Panel B, I ordered to appear on Friday morning at nine o’clock. We should know by late, oh, Thursday evening where we stand and how many, if any, we need of Panel B to complete. If we’re able to pick a jury from Panel A, fine; if not, I have Panel B coming as a backup. Now, while I’m on that subject, as you know in civil cases, the law’s two alternates. Glancing at my benchbook Criminal Judge’s Discretion, how many do you recommend as far as alternates, Mr. Deen? We’ve got in the jury, not that this is -- We’ve got, what, thirteen? I can get –- I don’t want to put a juror down on floor level, if possible. How many? MR. DEEN: I’ve never lost more than two jurors in a trial. (R 1169) THE COURT: I’ve lost three in a civil, but –- So your recommendation is two? MR. DEEN: Yes, sir. MR. ROSENZWEIG: Your Honor, Mr. Morledge and I lost three in a murder case once, so I would say at least three; and we had four alternates in that case. I was –THE COURT: I’ll go with three. It’s kind of like in a civil case -- I lost three ABSTRACT 225 in a day over in Desha County recently. The thing about it is, in a civil case, you can –- Plaintiff’s still got to get nine. Works to the defendant’s advantage, the fewer the jurors. In a criminal case, if you get less than twelve: mistrial. I’m going to select three. My normal procedure of late –- I’m not sure it’s in cases -- is never identify the alternates. I’m not sure that Arkansas law permits that in the selection process. I still do the separate panel, I just don’t tell them they’re an alternate panel. And the reason is is that -- Better judges that I’ve learned from and my observation is that alternates tend to go to sleep on you; and they consider themselves to be second-rate jurors; and they don’t pay as close of attention; and they get there late. And so, at least to make sure that they all need to stay on their toes, I’ve not done that. But this is a capital case; I would be more comfortable going by the book and identifying the alternates. And, of course, if for some reason one regular juror, for some reason, cannot serve, or is disqualified during the trial, then you know it’s the first alternate that is selected. And we’ll see what we can do about the chairs. I have done as many as six at one time. All cases are different. With this case, I’ll either do two or three. (R 1170) I know you want one. I know you have said it can be a larger number. It’s normally within the discretion of the Court. I’m going to see how –- I will do this: I will start with two and I will see how it goes. In the best of worlds, one, because ABSTRACT 226 then they can’t hear the other’s answer. But I’m going to go with two; and when they appear and there’s a –- The way it will happen is this, I think the best way –- We do have enough room up here. The voir dire will occur in the jury room. I will swear the panel. I will not ask any of the witness questions, who the witnesses are, any questions until we have no more than two in there. Naturally, you-all go through the process. They’re not told that they’re selected until they’re excused from the room; and they are not sworn as jurors or anything -- jeopardy doesn’t attach – you have to get them all back. And I told the sheriff that whoever is selected along the way periodically, I want the sheriff to know where they live so we can go get them if it’s at all necessary if somebody doesn’t show up. (R 1171) Go ahead. MR. ROSENZWEIG: I believe, Your Honor, there’s a motion that we have filed with regard to jury selection that, as far as I can tell, you have not ruled on yet. THE COURT: Let me see it. MR. ROSENZWEIG: It’s the motion regarding the jury selection process and the -THE COURT: Was that filed back before the removal or before –MR. ROSENZWEIG: No, this was filed a month ago or so. THE COURT: Let me take a look at it. Give me a chance. ABSTRACT 227 MR. ROSENZWEIG: I’m sorry, sir. MR. MORLEDGE: He’s going to take a look at it. THE COURT: I did read it before and basically –- I’ve not done it this way before. Basically, you want to preview most of them before you exercise either of your challenges? (R 1172) MR. ROSENZWEIG: Yes, sir. Well then, of course Mr. Deen would also have that same prerogative. Our position –- We can make our cause challenges at the time, but in order –- Our position is: In order to make an intelligent usage of our peremptory challenges –THE COURT: A more intelligent? You want to see who all you’re picking from because it’s a comparative deal. MR. ROSENZWEIG: That’s why you have peremptory challenges, Your Honor, one reason you have peremptory challenges. That’s our position. And if you do not allow that, an alternative, although I don’t think it would be as good an alternative, would be allow us to back strike, in other words, to go back and –THE COURT: The only problem is is projecting how many you need to go through before you exercise –- And you don’t say in here exercise all of them at one time or –- (R 1173) ABSTRACT 228 MR. ROSENZWEIG: Your Honor, I don’t mean to interrupt you, but once we –- Once you qualify a certain number of people, in other words, people for whom either cause challenges are not made, or for whom cause challenges are denied then, in other words, after a certain quantum of people are qualified, and taking into account fifteen jurors, you know, twelve, plus three, plus Mr. Deen’s ten alternates, or ten peremptories, and our twelve, which which we get up to that, whatever, fifteen, twelve and ten are. That’s –THE COURT: You had one perempt per alternate –MR. ROSENZWEIG: Plus, the peremptories on the alternate, so that –THE COURT: So you’d get fifteen if I did three? MR. ROSENZWEIG: So about 43 people, if you had that, once you qualified them, maybe an extra spare in case someone says something and we can do our peremptories at that point. THE COURT: The problem is –- I’m being devil’s advocate –- it’s good for them to know that they’re a juror before they leave the courthouse because you’re not going to hold them here until all of them are done and –- Then you’ve got to go find them and tell them they’re going to serve. Let me –- (R 1174) Here, Mr. Deen, step –- I agree it’s always better to have hindsight when you’re doing your perempts. I would have loved to have had that before. Go ahead. ABSTRACT 229 MR. DEEN: I don’t know if the statute requires it. THE COURT: It doesn’t and it’s within the discretion of the Court. MR. DEEN: And it’d be so cumbersome. You’d have two separate pools waiting here in the building somewhere: those who have been examined, those who have not –THE COURT: Oh, I wouldn’t. I’d have to release them and then go hunt them up –MR. DEEN: I –THE COURT: -- and say, You won, you’re on the jury. I wouldn’t hold –This is my feeling: In order to have a jury with the right attitude, I would not attempt to hold two different groups. MR. ROSENZWEIG: Your Honor, if I could respond. I don’t think you need to hunt them down, you just tell them, Okay, we thank you for visiting with us and you need to check back with us at 10:00 a.m. Friday, or 2:00 p.m. Friday, or some other target time. (R 1175) THE COURT: The problem is it’s easier to keep up with twelve to fourteen to fifteen out there in the public than it is with, say –- Do the math. Fifteen for you, thirteen for you. That’s twenty- five. I’m doing the math. I can do it faster than anybody. That’s seventeen. I’m trying to keep up then with about forty people out ABSTRACT 230 there and letting them know then at that time that they’ve been selected. And if one of them has absconded, or whatever –MR. ROSENZWEIG: Well, Your Honor, that’s why we’ve got a couple of more than the minimum, the 45, 46, or so. But I think you can impress everyone on Thursday morning with the gravity of the situation and –THE COURT: I’ve been doing that for three weeks and at times it’s not gone over well. That’s fine. I take the heat on that, and Mrs. Rosegrant. But I’m not –I could be inviting trouble. I’d rather give somebody an extra strike than have to keep up with –- I’d rather give each side an extra one strike, or whatever, rather than –let you hold that –- rather than keep up with all those people out there because it’s going to be something to handle with the personnel that we have. MR. ROSENZWEIG: Your Honor, so –THE COURT: I’m not ruling it out. Let me think about it. MR. ROSENZWEIG: Okay. (R 1176) THE COURT: Do I disagree that it makes it a fairer and better process without preferring either side? Sure. Sure it does. To me, that’s self-evident. If you were buying a cow, you’d want to see them cull the herd and so -- I’m sure you’ve –- I see the motion in limine on the –- I’ll call it the history of the couple in particularly with respect to one event earlier. ABSTRACT 231 As I appreciate the state’s case, it’s basically going to be that –- to oversimplify it –- that Mrs. Pedraza was fearful of Mr. Pedraza. The state’s entitled to every opportunity to make that case. I’ve never been one to let in, as Mr. Deen can tell you, much of anything in the way of past bad acts. I think it’s a great way to commit error. And when you’ve got a good case, you really don’t need them anyway. But, here, this has nothing to do with prior bad acts. What he’s going to have to show –- and I’ve not seen his proof. I don’t know –- I’ve not read Mr. Pedraza’s deposition. I don’t know anything about, or what the contentions are there, but I’m going to let him make his case on that. Obviously, reports, any law enforcement reports, (R 1177)just like an accident report in a civil case, very inadmissible as hearsay, but that doesn’t mean the person can’t describe what happened, and that if the law was called, the law was called. If the law wasn’t called, the law wasn’t called. But they are entitled to relay that to the jury on the stand because the state’s entitled to take its best shot at it. It, in a sense, has a burden there that they’ve got the facts, let them put them on. It’s up to defense counsel, if they go into those matters, or when they do, is to be prepared on cross-examination. And if I didn’t allow him to put on his very best case on his direct examination, and said, Oh, you’ve got to wait until defense counsel challenges you on cross and then you can bring it up to defend yourself –- I keep saying, “If I were defendant; If I were prosecutor” –- If I were defending, I would simply say, “At ABSTRACT 232 this time, no questions.” I would not cross-examine her and I would get a transcript of her testimony from the reporter that night, and I would have that to prepare both my client, and then I would put a subpoena on her and call her as my own witness. See, my point is: I would put the prosecution in a trap. No, he is entitled to give his best shot on the first go-around; and it’s y’all’s job to cross-examine. (R 1178) If I change my mind on the number of jurors, I’ll start out with two. I think the issues here can be too sensitive. It’s not like some capital murder cases I’ve had, or cases, where I thought that the issues were more pedestrian and more –- I think, all things considered, that for counsel and the Court to do its best work, we need to go with two. If it becomes unworkable, or not producing any better results than three, then I reserve the right to change that and bring in three later, or however many. I’m going to play it by ear and see how it goes. I will tell you on voir dire, I know that the courts are very deferential to the Court limiting questions. I’ll cover the witness stuff. I understand the deal on the death penalty; I understand your motion on –- I’ve overruled on the death-qualified juries. That’s the law. If you use your time, either side, on what I call to be questions that have nothing to do with actual implied bias -- implied bias being like on challenging on death penalty -- and go into more of their attitudes towards stuff, it can in a sense count against your time; and right now I’m not limiting your time. I’m ABSTRACT 233 going to wait and see how wisely you use it, how well your questions -- How short, brief, to the point they are on bias. And if you get with a juror that you need to spend more time, or pursue, then I want to be flexible. But I’ll get mine said in about two minutes with a juror. (R 1179) I would like for you-all to visit before voir dire and describe to the other side the types of questions you may ask because the fewer objections there are in there, the better, to how the other side is asking a question because that potential juror can say, Oh, he’s trying to protect me, or, She’s trying to protect me from the bad, the other side. So I prefer not to have to sustain objections in the –- or overrule them –- in the voir dire process. I learned that from a guide a long time ago. It’s not a good idea. MR. DEEN: Do you anticipate doing any general voir dire of the panel as a whole? THE COURT: Do you recommend it? MR. DEEN: I do. THE COURT: What do you want me to ask them? MR. DEEN: I think of the panel as a whole you can run through witnesses; panel as a whole, you know, brother-in-laws and sister-in-laws, you know, people no need to spend half a day around here, just qualified out and –- I know you have ABSTRACT 234 already probably vetted pretty thoroughly the medical excuses, so you’re not going to find as many as those – (R 1180) THE COURT: I hope not. MR. DEEN: –- as you typically would. THE COURT: And paid vacations at the end of school. MR. DEEN: Right. But you’re still, nonetheless, I anticipate, going to –THE COURT: If you have some other questions –- I’m not going to do witnesses, Mr. Deen. I’ll tell you why, if we’ve got 93 to show up, and the reporter –- I haven’t looked at y’all’s witness list. Are you going to have law –- You’re going to have some law enforcement people on your list. We all know this is a small county. Half the county is an auxiliary deputy -- I won’t say half –- or they’ve got somebody in the auxiliary. I’ll have a show of hands about law enforcement, probably of thirty people; and once I’ve asked the question and if there are any followup questions from the Court and I start making excuses then it’s going to send a signal to the rest of them. It’s going to be a massive –- Because when I say sevenday trial, they’re going to be looking for reasons. And if I do it in chambers that question won’t take too long. (R 1181) MR. DEEN: There’s something else that I don’t think the Court has done before and you might consider a little late me asking you to do this. It has been in ABSTRACT 235 other capital cases that I’ve tried in which the trial judge was able to ask the unequivocal death penalty question to the group as a whole, those who are for always and evermore going to oppose the death penalty. Regardless of what the circumstances are, regardless of what the facts show, they will vote for it every single time; and, likewise, those, who under no circumstances, whatsoever, would ever, under any set of circumstances imposed -- And that way, you –- It’s been my experience, you exclude –- You leave those in the middle who are either way. It saves times in the small groups. MR. ROSENZWEIG: Your Honor, I don’t think that’s workable because you get a lot of people who are going to have to –- You cannot take the original answer, first, you’re going to have to search into it and find that they understand the question properly; they do not understand the question properly. It’s precisely the type of thing we need to do, you know, in the small groups. And we can ask the question, and we anticipate asking the question early, expeditiously, in the small group, but we need to know –- (R 1182) THE COURT: I’ve already decided on that one. I’m not. And for a reason different. If this courtroom perhaps were Ashley County or –- This courtroom is very bad for jury selection when the jury is that far away from my reporter. And when she has to pick up a voice –- And we all know that when these cases are ABSTRACT 236 reviewed, that are, then jury selection is as important as anything. And out of fairness to my reporter, what I end up having to do in a routine case is, the lawyer or somebody will say, They said so and so. Well, you know, we can’t take that and repeat what the juror said. So those questions –- Now, what I will ask, come to think about it, and if you-all have any other questions that will help me vet this jury on a general deal, I’m going to get clear on the front end questions to all of them, if any of them have plans that cannot be changed, to be someplace else, within the next seven days. That question is not –- That’s one of those up-or-down questions. (R 1183) So because the thing –- And you-all probably run into it. The thing I find that happens more often than not in these cases –- and I’ve taken more time than I need to put on the record because it’s a capital case is this -- once you pick a jury, there will still be one or two that come up and say, Well, I didn’t know it was going to take so long. I’ve got to be in such and such. Will we be through with this trial? and you’ve already sworn them. And so, I’m going to tell them, Speak now or forever hold your peace, on that; and that way, whoever we get back there, you-all will not have to ask the question: Will it be -- a question I hate –- Will it be too inconvenient on you or Will you be able to give this case your full attention for seven days? Whoa, hold on a minute. Point being is that once they’ve said they can be here for seven days that eliminates that kind of question from counsel -- Or: Are there things going ABSTRACT 237 on in your life -- I’m sorry -- that will not allow you to give this case attention? I’m getting that out of the way on the general voir dire. Beyond that, if you-all have any other ideas, I’ll be glad to entertain them because I don’t intend to –- If I can make it better by adopting your idea, I will do so without attribution. (R 1184) Sequestration. Once this case goes to the jury –- I’ll tell the county this, and I’ll tell the jurors: Once this case –- And I’ll tell them this in chambers. Once it goes to the jury, there will be sequestration until the case is over with completely, all stages; and if that means a room someplace –- no cell phones, no nothing, no contact -- then that’s what it needs to be because in this day of media –- and I can’t even email, but everybody else seems to be able to, and they communicate –- You-all know what happened to one case. So once the case is submitted to them at the first stage of the proceeding, all cell phones will be taken up and all communication cut off until the case is finally concluded. MR. ROSENZWEIG: So, Your Honor, if I am hearing you correctly, so if the penalty phase lasts a day or two, they’re going to be in some hotel somewhere, is that –THE COURT: Absolutely. MR. ROSENZWEIG: Okay. All right. I assume you’re going to tell them at some point they’re going to need to pack or something. ABSTRACT 238 THE COURT: I will toward the end, but I’m not going to borrow trouble. I’m not going to tell them anything, I’ll just say that you will have to stay together. It’s not that people are up to bad, it’s that –- It’s too big a risk for the minor inconvenience that complete sequestration provides. It provides –- It’s an insurance policy for both sides and for the Court. So that’s what I’m going to do. Defense counsel, if you’ll send me in the morning, or fax me a witness list, I’ll –- (R 1185) Penny, look in the clerk’s office on the –MR. MORLEDGE: Yes, Your Honor. THE COURT: And you-all do want the rule? MR. ROSENZWEIG: Yes, sir. One thing that occurs to me, also, in regard to making this expeditious, what we did in another case is that we took the entire witness list and blew it up so the jurors could see the names of all the witnesses. THE COURT: I won’t need that in the jury room. And when it comes to the witness list, let’s –-If you-all want to –- But at least divide it first stage, second stage. MR. MORLEDGE: Yes, Your Honor. THE COURT: Because the first stage is what –- Not that you’re not concerned about the second stage, it’s just that when it comes to knowing the witnesses and stuff then that is that. ABSTRACT 239 There are no -- You don’t have to ask to approach a witness. I know you’re not going to camp out up there. And just refer to your witnesses as “Mr.” and “Mrs.,” even if you know them well, because the other side can’t. And that’s my laundry list of rules. And please stand if you wish to make an objection. I can pay attention to you better and you get my attention. (R 1186) All right, on the general voir dire, if y’all have got anything on that that morning, I’ll be here at eight o’clock. I’ll ask that counsel be in chambers at 8:30. I’ve already told the sheriff about the manner in which the defendant is to be transported and so on. I’ve already told him about the manner in which –- I’m being general in my deal –- the manner in which the defendant is to be brought over. In other words, with –- But you have to remind them every day. Enough said of that. MR. MORLEDGE: Your Honor, if I may –- I’m sorry to interrupt -- we were concerned, you didn’t want the potential jury panel to know which witnesses were in which phase. You just want me to submit it to you broken up in two phases? THE COURT: For my purposes. That’s why I wouldn’t –- Yeah. I know how much more emphasis to put on any possible connection. (R 1187) On your deal, your Delta Counseling deal, I think Clifford Gibson over there represents them still. I’d go across over there in the morning once you get my ABSTRACT 240 stamped signature and let him know how quickly you need it. I’m not talking about on retainer or something, but I think he does advise them. And that saves me from having to communicate directly with Mr. Haney, with whom I get along fine, but it takes me out of the personal contact because you have to get it as quickly as possible -- and he understands that -- just to save time. And they can overnight it, certify it. We’re in recess. MR. ROSENZWEIG: Are we adjourned –THE COURT: Yeah. MR. ROSENZWEIG: –- because there’s a number of issues that we still don’t have rulings on. THE COURT: Okay. Go ahead. MR. ROSENZWEIG: Your Honor, we started out with the consolidated motion in limine, two issues -- You made reference, really, on a couple -– THE COURT: Certainly, I will not allow –- And I may be assuming I know Mr. Deen better than I do, but I know his trial tactics. I don’t believe there would ever be a reference. And the reason I didn’t specifically use the words you used is because I didn’t want it reported out. And so, visit with Mr. Deen. I believe he will agree not to use inflammatory language. (R 1188) MR. DEEN: Sometimes -- and I’ve noticed in some of the statements -- the ABSTRACT 241 child will be referred to, sometimes as the youngest of a group of children are. For instance, I might refer to my youngest son as the baby, even though he is not a baby. THE COURT: We know there is a big difference. MR. DEEN: Okay. THE COURT: And you know it when you see it or hear it. I’ve been through a couple of capital cases with him. I’ve never heard him use that. But visit with him and see, without bantering it out here, all these inflammatory terms. See if there’s –But, certainly, as you present it, no, he wouldn’t be allowed to use that but neither would I anticipate him to. MR. ROSENZWEIG: Your Honor, if I could go through the rest of the –THE COURT: Go ahead. MR. ROSENZWEIG: First, you are going to allow the Ft. Chaffee incident in; is that correct? THE COURT: I don’t know –- You know, we’ve brought this up before. I don’t know enough about it because I don’t have the incident report. The incident report won’t be in, but if Mr. Deen’s theory of the case is is that she had fear of him and she can describe that incident as one where she got the short end of the stick, you bet. (R 1189) MR. ROSENZWEIG: And the other allegations of domestic abuse, you are ABSTRACT 242 allowing in? THE COURT: If there are –- I don’t know that there are any. MR. DEEN: Yes. There will be extensive testimony that after Ft. Chaffee that she began to receive regular beatings to the extent she couldn’t sit down on her naked bottom, (inaudible) by this man (inaudible) on her and the baby. It is part and parcel of the entire case. MR. ROSENZWEIG: Your Honor, again, if I could inquire of Mr. Deen –(Inaudible) 404(b)? THE COURT: No, it’s 401. MR. DEEN: It’s relevant evidence. THE COURT: It’s not a prior bad act. It’s not –- What he’s doing is the same thing that you, or anybody else, would do: He has entered into a plea bargain and she has entered a plea of guilty to a particular offense. It is his position that that is justified by his course of treatment of her, allegedly, from whenever he wants to start it at until the conclusion at the time. He’s entitled to put –-404 doesn’t even come in to play. And if it goes to his argument to the jury, Believe her, Believe what I did was the right thing, I needed the testimony, and she was fearful. (R 1190) MR. ROSENZWEIG: Your Honor, it’s our –- Of course, I think our position’s clear that we don’t think it’s relevant or –- 401 or 402 -- that it’s more ABSTRACT 243 prejudicial than probative under 403. And without waiving those –- (Talking over) THE COURT: If I said 401 –- Go ahead. MR. ROSENZWEIG: Without waiving those, Your Honor, if it has any theory of admissibility at all, which we think would be erroneous, and be under 404(b), what I would do, and for the record purposes, we would ask for a limiting instruction at the time and which hopefully you’ll grant, but it’ll be in the record, you know, where it was granted. THE COURT: That’s a matter of strategy on the limiting instruction. I would have to see –- I can’t right now picture a limiting instruction on that because the reason that I’m admitting it is not on the issue of character or anything like that, it’s just plain, old, outright relevant. And prejudicial, sure, it’s prejudicial, if the jury believes it. But all evidence, the evidence that you put in, will be prejudicial to the state; and the evidence the state puts in will be prejudicial. It’s whether it’s unfairly prejudicial, whether it takes the jury in a direction down a rabbit hole that really has not much to do with the case; and it’s the tail wagging the dog. Here, that is the state’s case. Go ahead. (R 1191) MR. ROSENZWEIG: Your Honor, there’s an issue in our motion concerning the medical examiner. And, particularly, we have referred –- You have a copy of that motion? ABSTRACT 244 THE COURT: I’ve read it. MR. ROSENZWEIG: There were a couple of issues involving -- We anticipate Dr. Erickson is going to be the medical examiner -- he was the one certainly we interviewed -- and he had some language in there which –THE COURT: In the report he filed? MR. ROSENZWEIG: No, in our interview with him. THE COURT: Your interview with him? MR. ROSENZWEIG: In the interview with him, essentially, where he uses some language which we quote in the motion. THE COURT: Why would you think he would use it at trial? (R 1192) MR. ROSENZWEIG: I hope he would not, but that’s why I filed the motion in limine to head that off at the pass. THE COURT: Again, I didn’t know you had –- I may have missed that in the motion. I didn’t know where the –- I know it didn’t come from the autopsy. MR. ROSENZWEIG: No, it did not. THE COURT: And the autopsy is coming in. Beyond that, I would simply direct Mr. Deen to direct the witness –- I’m sure he’s testified a hundred times before –- not to use any language that is anything other than clinical and medical. MR. DEEN: Well, he might be asked the question, Your Honor: Would the ABSTRACT 245 dissected valve be consistent with a blow administered manually –THE COURT: Well, that’s not, I guess what he’s referring to. MR. ROSENZWEIG: No, sir. No, what I was referring to was -- Dr. Erickson told us it was his opinion that the child, quote, started dying, unquote. THE COURT: Of course that doesn’t come in. But show that to Mr. Deen between now and then, or this evening. And I doubt that -- Mr. Deen is pretty conservative in a trial –- He’s not going to risk error on that. But certainly tell the doctor, Stick with the autopsy report and the questions such as Mr. Deen asks. Go ahead. (R 1193) MR. ROSENZWEIG: And you are going to allow him to use terms such as “beating” or “punching” and not just merely “blunt force,” am I hearing correctly on that, Your Honor? THE COURT: And not confine it to “blunt force”? What do you say, Mr. Deen? MR. DEEN: Well, just what I said a moment ago, the way we typically try to characterize that with the doctor is say, Would this injury that you have just described –THE COURT: Be consistent with a beating –MR. DEEN: Yes. ABSTRACT 246 THE COURT: –- as opposed to, in other words, a fall -MR. DEEN: Yes, sir. THE COURT: –- which can be blunt force, if you fall on the wrong object, a brick, or something. Yes, he’s allowed to ask those questions. MR. ROSENZWEIG: Your Honor, there’s an issue on the hospital, the autopsy photographs, and of course we have dozens and dozens of photographs that have been provided to us; and we would ask if Mr. Deen be instructed to identify –THE COURT: To narrow it down –- ( R 1194) MR. ROSENZWEIG: –- which ones. And we may seek (inaudible) to show those photographs that have been identified in the voir dire process to make sure we have people who are not so adversely affected by them that they could not be fair jurors. THE COURT: Have you thought about –- When are you putting the medical man on? MR. DEEN: Probably the first day, Your Honor. THE COURT: Well, in any event, you can ask and Mr. Deen can ask. I’ve not had anyone –- that doesn’t mean it can’t be done –- show the photographs on voir dire. You can say, Will the language offend you in this case? Will the gruesome photographs offend you, or whatever -- and that generally –- so that you would shut ABSTRACT 247 your mind off? I’m not going to grant the motion for that reason. I would ask that Mr. Deen –- How many do you plan on using probably? Ten? Fifteen? MR. DEEN: We’ve narrowed it down below that. THE COURT: Okay. MR. DEEN: There will be two sets: some from the hospital when she arrived dead on arrival and some from the autopsy report. But, certainly, we’ll, as a custom, get with counsel. Those that can be agreed on, be agreed on. Those that can’t, we would ask the Court to review prior to calling Dr. Erickson as a witness. THE COURT: That’s what I’m required to do, and that’s when you’ll have to produce them. Show them to Mr. Rosenzweig as soon as possible, but certainly show them to me before y’all get testimony. Go ahead. (R 1195) MR. ROSENZWEIG: The last part of the consolidated motion in limine deals with a juvenile matter; and if I hear Mr. Deen correctly, he is not –MR. DEEN: I don’t intend to offer that. There’s no –THE COURT: There’s no way it could come in. MR. ROSENZWEIG: Well, I just wanted to make sure. THE COURT: Right. It’s been referred to in certain other reports, but it certainly is not admissible for anything, much less the reasons why. ABSTRACT 248 No. (R 1196) MR. ROSENZWEIG: Your Honor, we’ve got two other issues: one, the last time we were here, you had reserved ruling with regard to the certificates for the Mexican witnesses; and we have not obtained a ruling from you. We made a proffer –- I made a proffer, having traveled to Mexico and actually talked with the witnesses myself, and made a proffer what I anticipated they would say. We have not received anything from you. And I think as a practical matter, it’s probably too late at this point to call these people up from Mexico without the authorizations –THE COURT: And I’ve not changed my mind. Those are unchartered waters. I haven’t seen any case or any law on it in Arkansas. I mean, you did the best you could because you were showing me what you had. I’m not saying that. I’m saying that I just never encountered where a judge’s signature was necessary. And I’ve had some contact with judges, not in this case, that have tried cases where there were witnesses from Mexico; and that was –- They said they just showed up and we moved on in the discussion of those things. MR. ROSENZWEIG: I don’t know –- I can’t speak to those, but -THE COURT: No, I don’t expect –- I’m just saying in my –- I’ve been to three of those schools, some of them in Arizona, and that subject, many have about Mexico –- That one never has come up, so I have nothing to draw upon. (R 1197) ABSTRACT 249 MR. ROSENZWEIG: And, Your Honor, it’s the first time I’ve had to deal with it myself. And, of course, the rules of criminal procedure don’t deal with it. I mean, they just don’t, so there wasn’t anything I could cite in the rules of criminal procedure because they don’t deal with it, but we do have the constitution, federal and state constitution rights of compulsory process; and Mr. Pedraza can’t help it that these witnesses happen to live and be citizens of another country. And so, we were trying to, as best we can –THE COURT: You gave it your best shot, and I’m just saying I wasn’t comfortable with signing any orders designating somebody as a special marshal, anything like that, without something more, something official from the United States Government. INVOCATION OF RECUSAL/DISQUALIFICATION MOTION: MR. ROSENZWEIG: Well, Your Honor –- Anyway, then the other issue is the matter filed under seal the other day dealing with your continuing participation in the case. THE COURT: And I’ll give Mr. Deen a chance to respond to that in writing. MR. DEEN: I did. THE COURT: You have? MR. DEEN: Yes. ABSTRACT 250 THE COURT: Well, I’m not going to read it right now because I’ll issue a ruling on that probably tomorrow evening. (R 1198) MR. DEEN: I can give you a copy. MR. ROSENZWEIG: Thank you. THE COURT: Very good. All right, anythingelse from either side? MR. DEEN: Not from the state, Your Honor. MR. ROSENZWEIG: What time do you need us here Thursday morning? Eight-thirty? THE COURT: I would say in chambers with your client at 8:30. Thank you. JURY SELECTION PROCEEDINGS, MAY 30 2013 DISCUSSION IN CHAMBERS THE COURT: State vs. Daniel Pedraza, 2012, preliminary to jury selection to begin at nine o’clock. The attorneys are here, along with Mr. Pedraza. And I received from the defense their list of witnesses and I received one from the state. With respect to the first page from the –- Let’s see, there’s one local witness. If either the defense or state want to, they can go over with the jurors whether or not they have any relationship with the -- in the event they’re needed -- sentencing phase potential witnesses. It’s a rather lengthy list of perhaps 25 or 30, and the Court’s not going to do that unless there are some –- There’s a maternal grandmother, maternal ABSTRACT 251 uncle, so on and so forth – and some of them are from far away. I’m not going to do that unnecessarily prolong -– Are there any on there that you-all think there’s a potential -- a juror may have some knowledge -- then feel free to certainly to do that yourself. (R 1199) I certainly will go over both the state’s first phase witness, Stage 1 witness. Since the witness list is so short on Stage 2 -– Who is Timothy Coke? MR. DEEN: He’s Aubriana’s natural father. THE COURT: I guessed as much, but I wanted to be sure. Is he from around here? MR. DEEN: No, sir. Paragould, I believe, that vicinity. THE COURT: Are there any –- in the event we get to it –- any defense’s potential witnesses in Stage 2 that counsel believes that I need to pay any particular attention to in voir dire? MR. DEEN: They’re from Warren -THE COURT: All right. MR. DEEN: –- so they may very well be known in Drew County. (R 1200) THE COURT: I’ll let you-all cover those if you want. I received two faxes: the defense witness list and amended witness list. I assume you want me to go with the –ABSTRACT 252 MR. ROSENZWEIG: Yes, sir, that’s correct. What happened was there were one or two inadvertently omitted and then –THE COURT: Well, I see a DHS caseworker –MR. MORLEDGE: Yes, Your Honor. THE COURT: All right. As I indicated to you-all yesterday, we’ll go out there, I’ll swear the jury panel. We will –- I’ll ask them only about any commitments that they cannot reschedule were they selected through next Saturday. I’m going to leave it at that insofar as the Court’s questions to the entire panel then we will draw the names out of the hat –- the clerk will. And you-all will have somebody, I know you will, at your table write down the names of the jurors as they’re called with the number; and I’ll call them out. The clerk will write them down and I will hold probably about the first 25; tell the next 25 to come back at probably around one o’clock; and then the next group at, say, three o’clock. I’m going to start out with two, subject to change. We’ll see how it goes. Then we’ll come in here. I will ask them questions about the witnesses or any knowledge they have of the case that they can’t set aside, as well as –- I’m going to leave the –- Does the state have a preference as to whether the Court asks them about whether or not their views on the death penalty would affect their ability to impartially serve? MR. DEEN: I do. Perhaps not phrased like that, but I do. I think that –- (R ABSTRACT 253 1201) THE COURT: How would you like it asked? MR. DEEN: I think that eliminates –THE COURT: I understand, but I didn’t –- I’ve learned to always ask counsel how they want the question asked. MR. DEEN: I think substantially impaired is probably a better way to phrase it. And, of course, going both ways, you’ll invariably encounter people who announce that if someone’s guilty of capital murder then there’s no consideration of any mitigation, it’s death all the time; and they’re just as disqualified as those who would refuse to consider death. MR. ROSENZWEIG: Your Honor, the whole issue is going to be the subject of the search in voir dire by both sides -- at least by us, and I presume by Mr. Deen -and I would prefer that we just get into it with voir dire in process, as opposed to you asking questions because, ultimately, it’s going to be a decision by you whether there’s a substantial impairment. But just trying to elicit something on he front end by you, I think, might get some false positives, I think –- (R 1202) MR. DEEN: And I think it should only be those people who are unequivocal in their statements to you. Anyone who equivocates should be retained to be individually voir dired, but there’s some people that there’s just no sense wasting ABSTRACT 254 time on. They’re just unequivocally, no way –THE COURT: Well, you know it when you see it. And we have plenty of jurors. That doesn’t change the law, but the -- The point is is that the Court will ask whether it would impair or affect their ability to make an impartial decision, that is, the Witherspoon case that is what is drummed in our heads. And if they say it would, that’s the end of the –MR. DEEN: I assume you’re going to have them come forward individually, and first identify them by hand, and then have them –THE COURT: We’ll have them in the jury room. This is in the jury room. (R 1203) MR. DEEN: Oh, okay. You’re not talking about –THE COURT: Oh, no, no, no. I indicated to you-all I wasn’t opening that can of worms out there because one of the advantages of -- One of the many advantages of sequestered voir dire is so that there’s not copycat responses to get off the jury. That purpose would hardly be served if I got into that out there. I’ll have enough copycat responses when the first one says they’ve got a doctor’s appointment next Thursday, so I’m not going to go there. MR. DEEN: Well –THE COURT: In the event –ABSTRACT 255 MR. DEEN: –- having them come forward eliminates that problem, but I understand –THE COURT: I know, but then I get that line. And I think that that kind of answer is my preference, the way I’ve been taught, is best done in sequestration, so I don’t want someone’s –- First of all, it’s easier to get –- if they come forward up to the bench and my reporter has to get –- and I have to get you-all up to the bench, and then the thing, the logistical problems can be kind of bad. But it’s easier to get the answers and to get them down in the record here. All right –- (R 1204) MR. ROSENZWEIG: Your Honor, I have a couple of questions. I don’t know if this is the proper time. THE COURT: Sure. MR. ROSENZWEIG: First, there are a couple of issues that were pending before the Court. If you have ruled, we’re not aware of it. One, first, if I could –The recusal motion, we have not received any sort of –THE COURT: You’ve not gotten a written one. I’m going to deny the motion, but I’m preparing a written order. MR. ROSENZWEIG: Your Honor, the other issue –- and you may be getting to it, but I’m –- let me make sure –- our motion to allow us to defer the exercise of peremptories until after a sufficient number of persons have been qualified. ABSTRACT 256 THE COURT: That’s denied. I agree it’s a preferable process, really, for both sides. It’s not the process that the law contemplates. And I do acknowledge that Mr. Deen has the better argument on the unworkability of it, logistically, so for that reason, it’s denied. (R 1205) MR. ROSENZWEIG: Your Honor, if I could make my record on that very briefly. As we said in the motion, the law specifically contemplates giving the discretion to the Court to allow the deferral -- So it is contemplated. Now, we respectfully submit that under the circumstances of this case, it being a capital case, et cetera, et cetera, (inaudible) the state, in order to use the intelligently-exercised peremptories that it would be an abuse of -- It is an abuse of discretion to deny this motion. And we posit that on the federal and state constitutional rights to a fair jury and protection against cruel and unusual punishment, as well as the statute. THE COURT: Did you get the last of what he said? MR. ROSENZWEIG: “As well as the statute.” COURT REPORTER: Yes. THE COURT: I couldn’t hear it. You trailed off at “federal and state constitution,” but I get the import of your argument. It’s denied. Now, that’s that. It’s about seven minutes til, counsel, and –- What? MR. ROSENZWEIG: I’m sorry, we have one other thing. You had asked ABSTRACT 257 Mr. Deen and the defense to get together to see about whether we had objections to any questions that –- (R 1206) THE COURT: I did. MR. ROSENZWEIG: And so Mr. Deen has favored me with a question, or a set of questions, that he is proposing to ask –- If I could borrow your –MR. DEEN: And the defense has not likewise favored me, but so be it. THE COURT: Did you –MR. ROSENZWEIG: We’re going to ask about their views on the death penalty, but I think all of our questions, I think, will be amply supported by constitutional law and whatever. Mr. Deen, in the Jackson -- cites in the Jackson case, Stanley Jackson, which was from this district –- Tried in Desha County, but –THE COURT: What difference does it make if it’s a case that’s precedent? MR. ROSENZWEIG: Well, I was just commenting that this was the case he tried. THE COURT: And I’m just reminding you, it’s six minutes til 9:00 –MR. ROSENZWEIG: Yes, sir. The argument will be very brief. THE COURT: Do what? (R 1207) MR. ROSENZWEIG: I’m going to be very brief. Your Honor, he calls it the A or B questions; and the questions were: “(A), I believe, the death penalty is ABSTRACT 258 appropriate in some capital cases, and I could return a verdict resulting in death in a proper case.” Or: “(B): Although I don’t think the death penalty should be imposed, as long as the law provides for it, I could assess the death penalty in the proper set of circumstances.” We, for the record, object to those formulations of the question because it implies that there is a, quote, proper case for the death penalty. All that is required is that the juror be able to consider it and –- Consider it. But this asks –This asks for a commitment to impose it under some circumstances and also implies that there is a case where it is called for or even mandated. And we think those questions go too far; and we would object to the formulation. MR. DEEN: And just like –THE COURT: Thank you for your brief remarks. MR. DEEN: And just like defense counsel objected in Jackson and it was upheld, these are not cause questions; these are questions to help me with peremptories. “(A) or (B): Which of these most closely follows your views?” and not, would you, but could you. In any event -- (R 1208) THE COURT: The point is it’s precedent. MR. ROSENZWEIG: Your Honor –THE COURT: We’re going to start this thing. I start at nine o’clock. MR. ROSENZWEIG: If I could respond very briefly. The way I read ABSTRACT 259 Jackson, it was –THE COURT: We’re not here to argue Jackson. I’ve read Jackson. I have my opinion of Jackson. My opinion of Jackson is it is the law of the case. Now, this deal’s –- If Mr. Deen wants to ask those questions in order to do that, that’s fine. Your objection is noted –MR. ROSENZWEIG: Yes, sir, if I could make one remark for the record because I need to make a record. THE COURT: Go ahead. MR. ROSENZWEIG: Thank you. The way I read Jackson, it was upheld at least in part because Jackson received a life sentence and thus was mooted. THE COURT: That’s your interpretation. MR. ROSENZWEIG: That’s –THE COURT: It’s the law of the case. We’re adjourned. (R 1209) ENTIRE VENIRE IN OPEN COURT THE COURT: The case set for trial today is State vs. Daniel Pedraza. Is the state ready and is the defense ready? MR. DEEN: The state’s ready for trial, Your Honor. MR. ROSENZWEIG: Subject to the record already made, yes. THE COURT: Very good. All right. ABSTRACT 260 If you-all would, please stand and raise your right hand. (Veniremen Sworn) THE COURT: Counsel, approach, just one of you, for one second. [Bench Conference] THE COURT: Normally, in these cases, I advise on the front end, the entire panel, as to what the defendant is charged with and they simply entered a plea of not guilty, and identify or have you-all identify counsel and your defendant. Beyond that, I’m not going into anything. And your plea is simply not guilty; correct? MR. ROSENZWEIG: That’s correct. Yes, sir. I notice on your –- I believe where your arm is sitting -- you have the felony information, but there was an amended –- (R 1210) THE COURT: I’m very well aware of that. She just couldn’t reach it at that time. I know he’s dropped the second count. MR. ROSENZWEIG: Very well. THE COURT: All right, after I do that and tell them this case may go on through next week, and do they have any commitments, it’s at that point in time, gentlemen, that I will jumble the names up and draw them out randomly. MR. DEEN: Do you want the attorneys to introduce themselves or do you –THE COURT: I would rather you-all introduce yourselves. And I would ABSTRACT 261 prefer that you introduce Mr. Pedraza. Very well. [Open Court] STATEMENT OF THE CASE THE COURT: Ladies and gentlemen of the jury panel, the case today, State vs. Daniel Pedraza, is what we refer to as a capital murder case. Mr. Pedraza is charged by means of an information filed by the prosecuting attorney with one felony count. The allegation is this: that on or about February the 26-27, 2012, that Mr. Pedraza did knowingly cause the death of Aubriana Coke, a child less than fourteen years of age, under circumstances manifesting extreme indifference to the value of human life, which offense is punishable by death or life imprisonment without parole; against the peace and dignity of the State of Arkansas. To this charge Mr. Pedraza has entered a plea of not guilty. You don’t have me up at all. (R 1211) UNIDENTIFIED PANEL MEMBER: I can’t hear you. THE COURT: I know it. Is it on? Do I need to repeat the charge? UNIDENTIFIED PANEL MEMBER: Yes. THE COURT: Very good. Sorry, they should have had it on. Mr. Pedraza is charged with capital murder by means of an information filed by the State of Arkansas, one felony count. It is alleged that on or about February the ABSTRACT 262 26-27, 2012, that Mr. Pedraza did knowingly cause the death of Aubriana Coke, a child less than fourteen years of age, under circumstances manifesting extreme indifference to the value of human life, which offense is punishable by death, or by life imprisonment without parole; against the peace and dignity against the State of Arkansas. To this charge Mr. Pedraza has entered a plea of not guilty. (R 1212) As I have told you before and as I told you in jury orientation, an information is simply a charge; it is proof of nothing. And it is the state’s responsibility to prove any defendant guilty beyond a reasonable doubt based upon the state’s own proof. Now, I’m going to ask prosecution to stand and identify who’s prosecuting this case; and then I’ll turn to the defense table and they will introduce Mr. Pedraza and counsel. Beginning with Mr. Deen. MR. DEEN: Thomas Deen. I’m the prosecuting attorney and I have two deputies with me. MR. CASON: David Cason. MR. PURYEAR: Crews Puryear. THE COURT: Mr. Rosenzweig, begin with you. MR. ROSENZWEIG: I am Jeff Rosenzweig from Little Rock and this is Daniel Pedraza. MR. MORLEDGE: I am Birc Morledge. ABSTRACT 263 MR. LEONARD: Timothy Leonard, office in Hamburg, Arkansas. I practice with James and Herman Hamilton. (R 1213) THE COURT: Very well. Now you know who the lawyers are. Mr. Pedraza has been identified. In these cases, what those of you have served before when you go through the voir dire process where the Court asks certain questions of you to determine your ability to serve in a particular case; and the lawyers are normally afforded an opportunity to ask some questions. In these cases, that process must occur –- a big word -- sequestered. In other words, it must occur in chambers with only a few jurors. And I’m going to start out with two, so there will be many questions asked of you out here in open court. Voir Dire by the Court THE COURT: The only question that I’ll ask in open court that needs to be asked before we draw all the names out of the hat is this: This case I have allowed –I’ll put it this way, I have allowed seven days on this case: today, tomorrow, and all of next week, or Friday. That’s not to say it’ll take that amount of time, but I have allowed it for both sides, in the event it’s needed, for both sides to present their case. Now, are there any of you here that have a commitment that cannot be rescheduled in the event you were chosen as a juror, in the event you were chosen as a juror? I’ve ABSTRACT 264 gone through the orientation process and I’ve excused those who have medical excuses, have paid-for vacations, and all of that in anticipation for this; and I’m hoping and expecting that those that remain, that I didn’t take care of orientation, can give this case, if you were selected, your undivided attention –- So I need to know –- And my reporter has to pick it up. I see one hand. (R 1214) Ma’am, if you would –- You’re not a juror, are you? UNIDENTIFIED PERSON: (Nodding head up and down.) THE COURT: You shouldn’t be on that side. Bailiff, we should put all jurors on this side. That’s all right. We always do this -- Yesterday. We go through a process where, you know –- And that’s the reason the rest of you were on this side. In any event, in the back, stand up and give me your name. KELLI TUMLISON: Kelli Tumlison. THE COURT: I can’t hear you, so you’ll have to come up to the front. My reporter has to pick up every word. You can stand right there. KELLI TUMLISON: My name is Kelli Tumlison. I’m nine month’s pregnant and my mornings are not very good. THE COURT: What is not very good? (R 1215) KELLI TUMLISON: My mornings. I’m pregnant and if I’m not over a trash ABSTRACT 265 can, I’m usually in bed. THE COURT: I think we can excuse you without even asking counsel. KELLI TUMLISON: I appreciate it. THE COURT: No problem. You’re free to go now. KELLI TUMLISON: Thank you. THE COURT: All right. Now, let me try to –- Let me begin at the front. Stand. Your name? HALEY SCOTT: Haley Scott. My nephew was in the car wreck Monday morning and he’s in ICU at UAMS. THE COURT: You go take care of your nephew. Thank you very much. I’m sorry. Yes, ma’am? ELIZABETH EDWARDS: My name is Elizabeth Edwards and I have already-paid vacation starting Sunday of next week. THE COURT: You take it. Thank you. THE CLERK: What’s her last name? THE COURT: Edwards. On the front row. Sir? HOMER SHIREY: My name is Homer Shirey. THE COURT: Did you -ABSTRACT 266 COURT REPORTER: Shirey. (R 1216) THE COURT: Go ahead. HOMER SHIREY: I have an appointment at the VA hospital in Little Rock the 6th and the 7th of June. THE COURT: Those VA appointments are hard to reschedule. HOMER SHIREY: Yes, they are. THE COURT: I understand that. I know counsel doesn’t have an objection. Please, you tend to yourself. Thank you. You’re free to go. Now, let’s go -- Yes, ma’am? Your name? DAUPHINA RIDGELL: My name Dauphina Ridgell. And next Thursday I paid for my daughter to (inaudible) test in Black Springs, Arkansas. I’ve already paid for it. I have to be there Thursday morning. THE COURT: You’re the only one that can carry her? DAUPHINA RIDGELL: My husband works at Potlatch, so he’s not able to take her. THE COURT: Counsel, have you got any problem? MR. DEEN: No objection. MR. ROSENZWEIG: No objection. THE COURT: Thank you, Mrs. Ridgell. All right –ABSTRACT 267 KATRINA BARROW: My name is Katrina Barrow. I have been placed on bed rest for complications with my pregnancy. (R 1217) THE COURT: Then you need to be in bed. Thank you for coming. CLAUDE VAULNER: My name’s Claude Vaulner. I was off for six weeks from a car accident; and this is just my third week back to work and, actually, I need to be working. THE COURT: Whereabouts do you work? CLAUDE VAULNER: TCP Reliable, here in Monticello. THE COURT: What do you do for them? CLAUDE VAULNER: I work the production line. THE COURT: And you missed three weeks of work? CLAUDE VAULNER: No, sir. I was off six weeks –THE COURT: Okay, off six weeks –CLAUDE VAULNER: –- and this is my third week back at work. THE COURT: Were you paid for that six weeks? CLAUDE VAULNER: Yes, sir. I was paid for the six weeks –- Well, for five of the six weeks -- The last week I wasn’t paid, and we still have the, you know, my attorneys and everything working on the case. (R 1218) THE COURT: And your reason is is that you need to be excused solely for ABSTRACT 268 the work? CLAUDE VAULNER: Yes, sir, for finances. Yes, sir. THE COURT: I may very well can excuse you for that. I can’t do it as quickly as for medical reasons. What I would ask is that when we –- If your name is called to come into the room later for voir dire, let’s go into that then -CLAUDE VAULNER: Yes, sir. THE COURT: –- and let’s see what we can do about that situation. I understand the financial hardship. I can’t excuse people legally just for work, but we can take into consideration whether or not they are behind at work, that kind of thing. So hang around. In the blue shirt? STANLEY GOOD: Stanley Good. THE COURT: (To the reporter) Did you get it? (R 1219) COURT REPORTER: Stanley something. THE COURT: Just a minute. (To the reporter) Did you get the name? COURT REPORTER: What’s the last name? THE COURT: Come up to the rail so I can hear you better. Your name again? STANLEY GOOD: Stanley Good. I just have a hard time breathing. ABSTRACT 269 THE COURT: I noticed that when you were walking up and I’m going to excuse you right now. Thank you very much. ANITA SKINNER: Anita Skinner. THE COURT: Yes, ma’am. ANITA SKINNER: I’m a teacher with Monticello Schools, we have four days of state-mandated professional development next week that, to the best of my knowledge, can’t be rescheduled. THE COURT: Well, like the other fellow, I’m going to have to hold you until and if you come in chambers; and then we can go into it there and develop it better. Thank you, Ms. Skinner. And on the very back row back there? AMY BOOKER: Yes, Amy Booker. My child has qualified for the national finals rodeo in Gallup, New Mexico. We leave in seven days. THE COURT: You leave in seven days? You’re going to leave anyway, aren’t you? And you’re going to go out to New Mexico? AMY BOOKER: Yes, sir. (R 1220) THE COURT: All right, it’s in seven days. How old is your child? AMY BOOKER: Thirteen. ABSTRACT 270 THE COURT: He’ll need you. Or is it a “she”? AMY BOOKER: She. THE COURT: She. All right, I wouldn’t interfere with that opportunity. Thank you. You’re free to go. Give the clerk the opportunity to pull the names of those jurors that I have thus far excused out of the hat then the next step is this: All your names are put in a hat, because otherwise, they’re in alphabetical order, I’ll draw them out. We’ll make a list. Draw the names out. I will hold the first 25 here to be brought into the jury room where everyone will be set up and where the questions will be asked concerning this case and your qualifications two at a time, initially. I may increase it to three later. And the other, next 25 -- we’ll name those off -- will report back at a particular time today; and the final 25 will –- even later today. That’s because I don’t want to hold everyone here as we take two at a time. But it is extremely important that if you are in the second or third 25, that you show back up at the time that I appoint because, otherwise, we’ve got problems. But I’d rather you come back at that time and not hold you in here in the courthouse because I’m sure there’s other things you could do. (R 1221) Mr. Bailiff, let’s do this, I think as I call the first 25, I want to go on and segregate them from the rest at this time; and let’s do it by taking the –- We can about ABSTRACT 271 get them on the –Penny, if you-all would, let’s take that first bench –- y’all get the next bench behind –- I’m going to use that first bench as well as –- First, second, and third benches. And the first juror I call –- It’s going to be like we would in a –- Put them right there. You’ve got it. No. 42, Heather Lacy; 50, Melinda McDaniel; 11, Justin Claville; 16, Eddie Curry; 68, Christopher Strickland; 57, Willie Owen; 9, Patricia Carson Williams; 8, Lisa Brown; 56, Joseph Nowlen; 62, Anthony Rodriguez;37, Natasha Jackson; 1, Kenneth Adair; 71, Claude Vaulner; 26, Bettye Gragg; 5, E.J. Barnett. It looks like we’re going to need that row behind there, too, you –30, Susan Harris; 12, Melodie Cole –- Or is it Colwell? (R 1222) MELODIE COLWELL: Colwell. THE COURT: 59, Matthew Pace; 27, Tesheena Graham; 2, Sabrina Anderson; 66, John W. Smith;51, Sandra McManus; 55, Kimberly Nickolson; 23, Kimberly Fletcher; 69, Gary Tucker. That’s your first 25, counsel. Now, second 25 –- We’re not going to separate those at this time, but when I do call your name, so I have a double-check, if you would stand up and sit back down; and that lets me know that I’ve got a name with a face. 18, Kimberly Densmore. Ms. Densmore, thank you. 45, Teresa Longing. Thank you. 52, Debbie ABSTRACT 272 Meggs. Thank you. 67, Justin Stell. Mr. Stell. 3, Eathan Banks. Mr. Banks, thank you. 13, Laura Connard. Thank you, Ms. Connard. 58, Joel Pace. Mr. Pace. 21, Brandy Ferrell. Thank you, Ms. Ferrell. 32, Diane Hartness. Ms. Hartness, thank you. 14, Crystal Cundiff. Thank you. 48, James McCorkle. Mr. McCorkle, thank you. 65, Anita Skinner. Thank you, Ms. Skinner. 60, Michael Reeves. Mr. Reeves. 72, Amy Ward. Ms. Ward. 31, Randall Harrison. Mr. Harrison. 46, Bobby Martin. Ms. Martin. 38, Henry James. Mr. James. 39, Freda Johnson. Ms. Johnson, thank you. 75, John White. Mr. White. 24, Mary Foster. Ms. Foster. 19, Linda Dodrill. Ms. Dodrill. 77, Kyle Young. Mr. Young. 47, Michael Masters. Mr. Masters. 28, Craig Grantham. Mr. Grantham. (R 1223) This will be the 25th of this bunch. 29, Mia Haney. Mia or Mia? MIA HANEY: Mia. (MEE-uh). THE COURT: Mia. That’s the second 25. I’m going to release you in a few minutes to return at a particular time today. This is the third group that will return even later: 33, Roy Harton. Mr. Harton. 35, Carolyn Hogue. Ms. Hogue. 74, Veronica Wells. Ms. Wells. 40, Nathaniel Jones. Mr. Jones. 41, Jane Jordan. Ms. Jordan. 44, Faye Lewis. Ms. Lewis. 34, Shannon Hindsley. Did I pronounce that right? SHANNON HINDSLEY: Hindsley. (Haindz-li). ABSTRACT 273 THE COURT: Hindsley. Thank you. 10, Montsewat Castillo. How did I do? MONTSEWAT CASTILLO: Mon-su-wa. THE COURT: Ma’am? MONTSEWAT CASTILLO: Mon-su-wa. (R 1224) THE COURT: Montsewat? Thank you. I’m sorry. I knew I didn’t do well. 22, Fern Fincher. Thank you, Ms. Fincher. 36, Orlan Holland. Mr. Holland. 15, Sandra Cunningham. Ms. Cunningham. 54, Mary Minor. Ms. Minor. Very well. The first 25 remain here. We will call you back two at a time in the order which you were called, so we’ll begin over here on my far left. I can’t predict exactly how long it will take per two. We may increase it to three later. I’ll play that by ear. The second 25 -- And so everyone is clear, the last of those 25 that -– (To the clerk) Let me see your second 25 list. That’s it? THE CLERK: Yes. THE COURT: The last names: Densmore, Longing, Meggs, Stell, Banks, Connard, Pace, Ferrell, Hartness, Crystal Cundiff, James McCorkle, Skinner, Reeves, Ward, Harrison, Martin, James –- There’s more than one. That’s Henry. -- Johnson. That’s Freda Johnson. -- John White, Foster, Dodrill, Kyle Young, Masters, Grantham, and Haney. Those are your second 25. If you-all would come back at one ABSTRACT 274 o’clock. And the remaining –- it’s not but twelve –- the remaining twelve, we’ll call it, the final twelve: Harton; Hogue; Wells; Nathaniel Jones; Jordan, Jane Jordan; Faye Lewis; Hindsley; Castillo; Fincher; Holland; Cunningham; and Minor, if you would be here at 3:30. (R 1225) When you leave this courtroom, the first 25 –Mr. Bailiff, as they go out, you get their names and you get their phone numbers. This has to go a certain way. In case, for some reason, we don’t have to have you, you’d prefer us call you, I know. So in any event, with that said –Now, with respect to the initial 25, you don’t have to sit right where you’re sitting until we call you except for the first two. The rest of you, as long as you’re on the bottom floor, or up here on this top floor, I don’t care. And while none of you have been selected yet; and so the admonition that the Court always gives once a jury is selected not to talk about the case among yourselves or with others, technically, I don’t give it now, but I am going to request that you not discuss the case among yourselves or with others even though you haven’t been selected. It’s a somewhat sensitive process in these cases in particular and I know I’m speaking not only on behalf of the Court but also counsel. With that said, if you would, leave your last name, cell number in case we need ABSTRACT 275 to reach you since some of you don’t report back until 3:30 or 1:00. And with that said, this Court stands in recess. We’re going straight to chambers, counsel. (R 1226) THE BAILIFF: All rise while the judge leaves the courtroom. [In chambers] FIRST PANEL OF TWO IN CHAMBERS THE COURT: All right, we’re on the record. You are recognized, Mr. Rosenzweig. MR. ROSENZWEIG: Thank you, Your Honor. Two things: one, we had discussed in here what the, for lack of a better term, substantial impairment question you were going to ask the jurors. Could I get from the Court the phraseology of exactly what you’re going to ask them? THE COURT: I’m going to ask the jurors whether or not their views on the death penalty would impair their ability to be an impartial juror in this case. MR. ROSENZWEIG: Your Honor, respectfully, we would suggest that that question would be erroneous under Morgan v. Illinois. And I have a copy for the Court. HE COURT: Very good. You may give it to me. (R 1227) MR. ROSENZWEIG: And, Your Honor, if I could point it out to you, it’s the ABSTRACT 276 highlighted part. It essentially –- The proposition we’re propounding this for, or the objection for, is that the juror –- Morgan recognizes that the juror is highly unlikely to be able to ascertain whether he or she is impaired and that this is a judicial decision to be made after a search in voir dire. THE COURT: Very good. MR. ROSENZWEIG: Your Honor, that’s the first one. Secondly, Your Honor, anticipating that there might be an issue about an imbalance in the cross-section of the community based upon the jury panel. When we got the jury panel, we had people analyze the jury panel; and I would ask permission to file this motion to quash this jury panel, et cetera, with the Court, if you could designate it as filed with –THE COURT: And filed with the clerk? MR. ROSENZWEIG: Yes, sir. And, specifically, it appears from a visual inspection of the group that African-Americans are significantly under-represented. Out of the first seventy, there are twelve. That’s about 17 percent and that’s about a 38 percent under-representation. One would expect about 27, 28 percent, I think, in the panel there or in the population as a whole. So for the record, Your Honor, we will move to quash the jury panel as being not a proper cross-section of the community and thus in violation of federal and state ABSTRACT 277 constitutional guarantees requiring a cross-section. (R 1228) THE COURT: Okay, you may have a seat. Mr. Deen, do you care to respond? MR. DEEN: Well, the defendant is not entitled to an exact reflection of the demographic of the jurisdiction on this randomly-drawn jury panel. THE COURT: Motion denied based upon the Miller case. Bring the first two in. MR. ROSENZWEIG: Your Honor, Mr. Morledge is going to voir dire the first panel. THE CLERK: Do you want me to go tell them? THE COURT: Tell them to bring in the first two. Note that they’ve already been sworn. MR. ROSENZWEIG: Well, Your Honor, you have denied our objection on the Morgan issue; is that correct? THE COURT: Yes. Have I got a list of the –- (R 1229) [Heather Lacy and Melinda McDaniel enter the jury room.] THE COURT: You-all have a seat. All right, let’s begin with –- Juror No. 1 is Heather Lacy. Ms. Lacy, if you’d raise your hand, identify yourself so the lawyers will know. (Raised hand.) Very good. ABSTRACT 278 And the second juror is Melinda McDaniel. Ms. McDaniel, will you do the same thing? (Raised hand.) Trusting that they had figured that out already, I –Voir Dire by the Court THE COURT: All right, the Court is going to ask you some general questions, one in particular, about the death penalty. I’m not going to ask you your views on the death penalty, but simply whether or not -- when I come to it –- whether or not your views on the death penalty would affect your ability to sit impartially in this case. That would be the only question I ask regarding that. But I’d like to begin, first, by asking each of you together whether or not you have read or heard anything about the facts of this case that you could not set aside if you were selected as a juror that has caused you to make up your mind in any way and affect your impartiality. (R 1230) Have either of you? Both jurors indicate, or prospective jurors, indicate no. With respect to the possible witnesses in this case, I want to ask you if you are personally acquainted with any of these witnesses. And I’ll begin with the state’s witness list first. Inevitably, you may know somebody, but unless your relationship is such that you couldn’t set it aside and consider their testimony like anyone else’s, you may still be qualified, but I simply want to begin and find out if, in your opinion, ABSTRACT 279 you are close personal friends or associates of a Joey Earnest. (No response.) And either one of you stop me if you are, otherwise, I’ll proceed on. Brenda Earnest? (No response.) Celita Brooks? (No response.) Robert Jacobs? (No response.) Carolyn Stuard? (No response.) Clayton Moss? (No response.) Scott Woodward? (No response.) Lisa Channell? (No response.) Mary Simonson? (No response.) Would that be right, you think, Mr. Deen? MR. DEEN: Yes, sir. THE COURT: Mary Simonson? (No response.) Stephen Erickson? (No response.) Victoria Pedraza? (No response.) Tim Nichols? (No response.) Jeff Martin? (No response.) Scott Carson? (No response.) Mark Gober? (No response.) And the last is Dr. Joao Ramos, a Dr. Ramos? (No response.) Any of those people close enough to you to cause anybody any concern about you being able to hear their testimony like anyone else? (R 1231) MELINDA McDANIEL: No, sir. THE COURT: Now, I’ll go now to the defense witness list. Corey Atkins? (No response.) Sgt. Mike Reynolds; he’s from Warren. (No response.) Mark Shull from El Dorado? (No response.) A Coretta Bridges Walker? That’s a DHS caseworker from Ashley County. (No response.) Tim Cook or Coke? (No response.) Ladell Wright? (No response.) Or Brenda Stuard? (No response.) Very well. ABSTRACT 280 Are you close personal friends with any of the lawyers? MELINDA McDANIEL: No, sir. HEATHER LACY: No, sir. THE COURT: Very good. Now, my question regarding the –- This is a capital case and without asking you what your views are on the death penalty, I’m simply asking you whatever those views may be, are they such, or so strongly held, that it would affect your ability to impartially consider the evidence in this case? And in this event, I want an individual answer. Ms. Lacy, would it? HEATHER LACY: No, sir. (R 1232) THE COURT: Ms. McDaniel, would it? MELINDA McDANIEL: No, sir. THE COURT: Unless counsel invites the Court to ask additional questions, those are the questions I have told you that I intended to cover. If not, then I will allow the state to go first. Voir Dire By Counsel for Plaintiff MR. DEEN: Thank you, Your Honor. I introduced myself earlier. My name is Thomas Deen. I’m the prosecuting attorney for this district. Crews Puryear is helping me try this case, deputy prosecutor; and David Cason, deputy prosecutor. Inevitably in picking juries, you run across people who, either themselves ABSTRACT 281 sometimes, or more often family and friends, close friends, have been the subject of prosecutions in the past. And those persons may think they were treated unfairly or too harshly, or perhaps, the other way around, maybe not treated harshly enough; treated too lightly. In other words, you have maybe an issue with law enforcement. Law enforcement didn’t treat your loved one or your family right, or someone on my staff, or I didn’t treat them right. And I want to know that now if that’s out there because I think both sides want folks to come in here with an open mind, who don’t start out –- I don’t want to start out with a strike against me, you know what I mean, because I was mean to Junior, or whatever, back in the day. (R 1233) So either one of you, Ms. Lacy and Ms. McDaniel, have any of that going on with friends or family? MELINDA McDANIEL: No, sir. HEATHER LACY: No, sir. MR. DEEN: Have either one of you served on a criminal case before? MELINDA McDANIEL: I have. MR. DEEN: How long ago was that, Ms. McDaniel? MELINDA McDANIEL: I think it was in 1995, ‘94 or ‘95. MR. DEEN: Do you remember what kind of criminal case it was? MELINDA McDANIEL: It was capital murder. ABSTRACT 282 MR. DEEN: Capital murder case? MELINDA McDANIEL: Yes, sir. MR. DEEN: Do you recall what the name of the person accused was in the case? MELINDA McDANIEL: I am so sorry, but, no, sir, I do not. (R 1234) MR. DEEN: Do you remember the name of the prosecutor or the defense attorney in the case? MELINDA McDANIEL: I’m sorry, I don’t. MR. DEEN: Was his name Rodney Weston? MELINDA McDANIEL: I honestly don’t remember. I remember that he was given life without parole. MR. DEEN: Do you remember the name of the victim in the case? MELINDA McDANIEL: No, sir. MR. DEEN: But it was ‘94 or ‘95, in Drew County? MELINDA McDANIEL: Uh-huh (yes). MR. DEEN: So you have not served on a criminal case at all. Besides that capital murder case, did you serve on other cases? MELINDA McDANIEL: One. It was a drug-related –MR. DEEN: Drug case? ABSTRACT 283 MELINDA McDANIEL: Yes, sir. MR. DEEN: Prior to that time? Prior to the murder case? MELINDA McDANIEL: No, sir. MR. DEEN: Since that case? MELINDA McDANIEL: Yes, sir. MR. DEEN: So you’ve served on two –MELINDA McDANIEL: Yes, sir. MR. DEEN: –- in the last, I guess, fifteen years or –- (R 1235) MELINDA McDANIEL: Yes, sir. MR. DEEN: –- longer than that. Closer to 20 years? MELINDA McDANIEL: Yes, sir. MR. DEEN: I don’t know what the circumstances were in the capital murder case that you served on because I don’t know yet which one it was. In time, I’ll figure out which one it was in ‘94, ‘95. Right now, I can’t pin down what it was. I took office in 2000, so it was before I was prosecuting attorney. I think in ‘94 or ‘95, that would have been Joe Wray probably. MELINDA McDANIEL: Yes. MR. DEEN: Joe Wray? MELINDA McDANIEL: Yes. ABSTRACT 284 MR. DEEN: Prosecuted that case? MELINDA McDANIEL: Yes. Yes. (R 1236) MR. DEEN: In any event, oftentimes in capital murder cases you may have heard, whether you read it in the newspaper or just heard it in talk “premeditation and deliberation.” And I don’t know –-That’s not always the case in capital murder cases, but oftentimes, you do hear that term “premeditation and deliberation,” that the person that premeditated and deliberated caused the death of someone else. And that’s probably the most common variety of capital murder that you hear about, or see about, or experience. But there are other kinds, too, one of which you heard the judge read this case when he read the charge. He read it twice. He stated –- Premeditation and deliberation was not a part of what he said. He said that the defendant is accused of knowingly causing the death of Aubriana Coke under circumstances manifesting extreme indifference to the value of human life. Later, at the conclusion of all the evidence, if you’re chosen, the judge will give you –- Will read the instructions to you, the instructions of law, to you; and later you’ll be provided those instructions in writing and it’ll contain a definition of “knowingly” which is a lesser standard than “premeditation.” Premeditation requires, you know, advance planning or fault; whereas, “knowingly” is knowing that you’re engaging in the conduct, you’re practically certain that the result will occur, in this case, the death of Aubriana Coke. ABSTRACT 285 (R 1237)I say all of that to ask the question: If you’re instructed on “knowingly,” as Judge Gibson said the charge was beginning this morning, will you follow that instruction or will you require something different of me? In other words, Ms. McDaniels, will you say, Well, he didn’t set out to kill Aubriana Coke. He didn’t premeditate. He didn’t make a plan to go kill Aubriana Coke; and, therefore, I’m not going to vote guilty even though I find that he knowingly did it. Do you follow what I’m saying, Ms. McDaniel? MELINDA McDANIEL: Yes, sir, I do. MR. DEEN: You follow what I’m saying? Because I don’t want to start out again with a strike against me because I’m not required to prove premeditation. Would you make me do it anyway? MELINDA McDANIEL: No. MR. DEEN: Good enough then. Let me ask you: Did you notice that he said Aubriana Coke, a child less than fourteen years of age? That is a distinction our law draws that in the capital murder statute if someone murders a child less than fourteen years of age, that this lesser standard is required, this “knowingly” standard, as opposed what we require as an adult, if an adult is murdered, it’d be typically premeditation. Does that make sense to either one of you? Can either one of you see why that would be the law? (R 1238) ABSTRACT 286 MELINDA McDANIEL: Yes. MR. DEEN: Give me a shot at it, Ms. McDaniels. The law has special concern for children, would you think? MELINDA McDANIEL: Well, yeah –MR. DEEN: Right. MELINDA McDANIEL: –- the law would have. MR. DEEN: A special regard for –- That children are protected at a much higher level –MELINDA McDANIEL: Right. MR. DEEN: –- than an adult? MELINDA McDANIEL: Right. MR. DEEN: Does that make sense? MELINDA McDANIEL: Yes. MR. DEEN: Okay. Because, you know, you’re not required necessarily to agree with the law. Now, if you disagree with it, you may not be qualified to serve, but then you might say to yourself, Well, that’s a bunch of hooey. A guy can get capital murder and potentially get the death sentence for not premeditating murder just because it’s a child under fourteen. I don’t think it’s a bunch of hooey. I think it makes perfect sense to me. Does ABSTRACT 287 it make perfect sense to you? MELINDA McDANIEL: Yes, sir. (R 1239) MR. DEEN: Okay. Right off the bat, you should know that Aubriana Coke’s mother, the deceased child’s mother, she was –- Aubriana was a little over two years old. I think she was 27 months old when she was killed. Aubriana Coke’s mother, Victoria Pedraza -- Victoria Stuard was her maiden name, S-t-u-a-r-d. Her family is from Warren. She married, I believe, the defendant, Daniel Pedraza, about two weeks before the murder of the child. I think she married him February the 14; the child was killed February 26th and 27th -- is going to be a witness in this case. She is going to testify, I anticipate -- You know, when any of the lawyers say, So and so will testify to this. So and So will testify to that. That’s what we anticipate they’re going to do. You don’t know what they’re going to do until they get up there and get on the witness stand and say what they say. We know what they’ve said in the past, so, you know, sometimes lawyers get surprises. I anticipate she’s going to testify against the defendant, Daniel Pedraza, because the proof’s going to show there was only two people present besides little Aubriana; and it was Daniel and Victoria. She is sometimes what’s called a state’s witness, a cooperating witness. She is someone who herself has pled guilty to a felony in this case; she’s pled guilty to a crime called permitting abuse. Have either one of you ever heard of that offense before? You ABSTRACT 288 probably have an idea what it means just by me saying it. (R 1240) MELINDA McDANIEL: Yes. Right. MR. DEEN: When a parent or a guardian who allow that to go on and it results in serious injury or death: permitting abuse. It’s a felony in and of itself. It carries a penalty of five to twenty years. Now, much may be made of the fact that she is a cooperating state’s witness and she has pled guilty. Do you think that creates something that would cause you to maybe secondguess her testimony, that in itself? You say, Hey, this lady’s got a whole lot to lose here, you know. MELINDA McDANIEL: No. (R 1241) MR. DEEN: That in itself –- Of course there’s more; right? You’ll learn from her, if not from other witnesses, sooner that what she gets –-that is, does she get five years in the penitentiary? Does she get ten, fifteen, twenty years in the penitentiary? It will be determined down the road by an entire -- another jury. We’ll call an entire different jury. They’ll hear what happened and they’ll decide how long she stays in the penitentiary. Let me play devil’s advocate. Let me pretend that I’m on the other side of this. Say, Hey, this girl’s going to say what she needs to say. This girl’s going to play ball because she doesn’t want to be sitting over there in that chair over there looking at ABSTRACT 289 a potential death sentence. You can see how that might shade somebody. Nothing brings clarity to a man’s mind, or a woman’s mind, as impending death, do you think? MELINDA McDANIEL: Right. MR. DEEN: What about that? THE COURT: Are these just of this particular juror, Mr. Deen? Are you asking both jurors? MR. DEEN: I’m asking both of them. THE COURT: That’s what I thought. Okay. MR. DEEN: Do you want me to go through one at a time? THE COURT: No, no. In fact, I’m right now thinking I’m going to go to three on the next deal. Go ahead. MR. DEEN: I thought you might. THE COURT: Go ahead. MR. DEEN: What about that –- Sir? (R 1242) THE COURT: Go ahead. MR. DEEN: Would that change your answer? MELINDA McDANIEL: No. MR. DEEN: You’re going to judge their credibility. Obviously, that’s your chore; right? ABSTRACT 290 MELINDA McDANIEL: Right. MR. DEEN: Decide whether she’s saying something that’s untrue? Let me move on about something else that relates to her. Under our law, more than one person can commit the same crime. It’s something called “accomplices.” Two people, three people, four people, any number of people can commit the same offense, if they join together to commit it. Would you agree that if one person, Victoria Pedraza, is not charged with capital murder, and you find after considering all the evidence that Daniel Pedraza is guilty of capital murder and knowingly causing Aubriana Coke’s death, that you would find him guilty even though someone you think was involved is not charged: Victoria? HEATHER LACY: If she wasn’t involved? (R 1243) MR. DEEN: Right. Let’s say, That’s the most naive prosecutor I’ve ever seen in my entire life. He gave this woman this deal. Well, I’m not going to find Daniel Pedraza guilty, even though I think he’s guilty, even though I think it’s been proved beyond a reasonable doubt. That’s not right. Deen’s a fool. Or are you going to vote based on the evidence? MELINDA McDANIEL: Based on the evidence. HEATHER LACY: Based on the evidence. MR. DEEN: And then pitch me out of office next year for being a naive fool, ABSTRACT 291 which is fine, if that’s what you want to do. Do you follow what I’m saying? I mean, if I made the mistake, will you put it on me –MELINDA McDANIEL: Yes. MR. DEEN: –- and not on my case? HEATHER LACY: Yes. MR. DEEN: There’s going to be some photographs in this case that to any normal human are going to be very disturbing. It is inherent in a murder case and it is manifestly so in this one. Now, there have been cases in the past where jurors have just flat -– just couldn’t –- just can’t go on. They have been selected to serve; and when it comes time to go over these aspects of the case, you have to show the manner and circumstances of death, and you have a photograph, particularly here, of a toddler who’s beaten severely, that they just shut down. And we’ve had cases where jurors actually had to be removed and had to be replaced by an alternate. (R 1244) Now, I’m not going to show those photographs here today. I don’t know if defense counsel will or not. That will happen in due course. Do either one of you feel like you would be of such a sensitive nature –- I think I have a fairly tough skin, but they cause me a lot of problem too. What about you, Ms. McDaniel? MELINDA McDANIEL: I don’t think that I’ll have a problem with it, but I ABSTRACT 292 haven’t walked in those shoes yet. But I don’t think that I’ll have a problem with it. MR. DEEN: Would your answer be different? HEATHER LACY: No. (R 1245) MR. DEEN: Okay. In a death penalty case –- And you may not have reached this point in the one that you served on because it may have been life without parole off the bat, I don’t know. Death might have even been waived in that case that Mr. Wray prosecuted; I don’t know that either. I don’t know what the circumstances are, but you’ll have to determine –- Assuming he’s found guilty of capital murder, of course. That’s the first step, first phase. If he’s found guilty of capital murder then we go into a second phase called the penalty phase. And it’s not just a freewheeling thing where the jury is sent back into the courtroom, I mean, back in the jury room after hearing the evidence and they just sort of debate it among themselves. Your judgment in the matter is very structured on how you must proceed. And, essentially, life is a default penalty unless you find certain things to be true beyond a reasonable doubt. Life is not termed “default” in the instruction, but that’s pretty much the way it’s set up, unless you find certain things to be true beyond a reasonable doubt. One of which is an aggravating circumstance. The law sets out certain aggravating circumstances. There are nine or ten of them. You’re never going to have a case in which all nine or ten apply, I can’t imagine. But, commonly, you’ll have a case in ABSTRACT 293 which -– There has to be at least one by law. There must be at least one, sometimes two, sometimes three. Those must be proven beyond a reasonable doubt. I’m going to give you some aggravating circumstances that potentially could be applied in this case. (R 1246) Now, again, it’s not up to me or defense counsel. After the proof comes in, it’s up to Judge Gibson whether or not to submit 1, 2, 3, or no aggravating circumstances, if he finds that there’s been insufficient proof on those. I don’t anticipate that that will be the case, but again, that is his call, not mine. I’m not asking you to look at these and say, Well, I would do that. I’m asking you to look at these and say, Is this something I find to be reasonable? I mean, is this a rational basis? These are devised by the legislature. Did the legislature make a rational decision in making these aggravating circumstances? I’m going to read the first one: “A capital murder is committed in an especially depraved manner where the defendant relishes the murder evidencing debasement or perversion, or shows an indifference to the suffering of the victim and evidences a sense of pleasure in committing the murder.” Do either one of you think this is simply irrational, that this doesn’t make good sense to you, period? Again, like the question about the “knowing” and mental state, you don’t have to agree with the law, but if you disagree with it, you perhaps might not be qualified to serve. We talked about the “under fourteen” a little while ago. For the ABSTRACT 294 death penalty phase, it’s under twelve; the age is lowered down. Either one of you find anything rationally –- I mean, irrational about that, that is an aggravating circumstance, a murder of a child less than twelve? Does that make good sense to you, Ms. Lacy? (R 1247) HEATHER LACY: Yes, sir. MR. DEEN: Can you think of a reason why this has been established this way? HEATHER LACY: Probably for self-defense reasons. MR. DEEN: A child under twelve is not in any position to defend herself, is she, not against a grown man? HEATHER LACY: No. MR. DEEN: The third one: “Capital murder is committed in an especially manner, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted.” And then these things are defined. “Mental anguish” means the victim’s uncertainty as to her ultimate fate. You know, if someone is killed instantly, there’s no uncertainty. The person drops dead before they realized what happened to them. But can you see “uncertainty,” someone over the course of, in this case, hours and hours. “Serious physical abuse,” I guess that’s ABSTRACT 295 self-evident. And “torture,” the infliction of pain over a prolonged period of time. Does anybody find anything irrational about that? Does that makes sense? (R 1248) MELINDA McDANIEL: Yes, sir. MR. DEEN: The next thing is mitigators. You’re required to consider mitigators. Those are aggravating circumstances; they’re limited by law. Those are the three that I think will apply; he will decide. Mitigating circumstances are not limited by law. They can be anything on this earth that is supported by some evidence that tends to mitigate the punishment. For instance, let’s say someone is not a natural-born citizen of the United States, that someone immigrated here from another country, like, all of our ancestors did at one point, or unless you’re Native American, or, like, Mr. Pedraza did. That might be proffered as a mitigating circumstance. And these do not have to be proven beyond a reasonable doubt. Aggravators have to be proved beyond a reasonable doubt; mitigating circumstances merely have to be shown to probably exist. (R 1249)Mitigating circumstances don’t have to be unanimously approved like an aggravating circumstance does. Any one of you can find the existence, probable existence, of a mitigation circumstance? Now, you’ll be asked whether you can consider those things by these defense attorneys perhaps. Can you consider them? And you might say to yourself, Well, the fact that he was born in another country, I ABSTRACT 296 don’t see that has anything to do with this case at all. He might have been born in China for all it matters, I don’t care. But that’s after you have already considered it; right? So you say, Yes, I would consider those things. You might consider it very briefly; and then after a few seconds consideration, you might decide that I don’t think that’s mitigating. But that’s different than just not considering it. Do you agree? Would you both affirm to me that whatever mitigating circumstances are offered, that may have some proof behind them, whether it’s the example I gave of being born in another country, or being poor when you’re young, or not having enough food when you’re a child, whatever may be proffered, but to at least consider those things? HEATHER LACY: Yes. MELINDA McDANIEL: Yes, sir. ( R 1250) MR. DEEN: And you may choose to reject them on down the road after you and your colleagues debate them. Then you weigh those. That’s when the decision -That’s when the rubber hits the road as far as the death penalty. Has he shown an aggravating circumstance beyond a reasonable doubt? Have mitigating circumstances been shown to probably exist? And then you do the weighing. Do you think –- Let’s say they submit 99 mitigating circumstances: born in another country, all the rest, good student, ran track in high school, good artist, never did talk back to his teachers, ABSTRACT 297 minded his mama, whatever 99 you come up with, would the 99 outweigh the three automatically because there’s 99 of one side and three on the other? MELINDA McDANIEL: No, sir. MR. DEEN: Depends on their relative weight, does it not? MELINDA McDANIEL: Right. MR. DEEN: Then, ultimately, ultimately, the decision is this: Assume you found that aggravators exist beyond a reasonable doubt; assume you find they outweigh the mitigating circumstances, ultimately, the aggravating circumstances, do they justify beyond a reasonable doubt the sentence of death? If you’re called on to make that decision, can you do so? HEATHER LACY: Yes, sir. MELINDA McDANIEL: Yes, sir. (R 1251) MR. DEEN: I’m going to read to you two propositions and I’m going to ask you which of the two most closely resemble your views about the death penalty? Two propositions. Which is most close for you? “A: I believe the death penalty is appropriate in some capital cases and I can return a verdict resulting in death in a proper case?” or “B:Although I don’t believe the death penalty should be imposed, as long as the law provides for it, I could assess the death penalty in the proper set of circumstances”? “A,” again, “I believe the death penalty is appropriate in some ABSTRACT 298 capital cases. I could return a verdict of death in the proper case.” “B. I don’t believe the death penalty should be imposed, but as long as the law provides for it, I could assess the death penalty in the proper set of circumstances.” MELINDA McDANIEL: “A.” MR. DEEN: “A.” Ms. Lacy? HEATHER LACY: Yes, sir. MR. DEEN: “A” for you as well? HEATHER LACY: Yes. (R 1252) MR. DEEN: Unlike in any other criminal case, in a capital case in which a jury returns a verdict of death, all twelve jurors must sign the verdict form; and a typical case only the foreperson signs the form. There have been cases, similar to the bad photograph case I mentioned, where a juror has gotten through the entire process and even voted to impose death in the case, but then could not put their name, could not sign their name to that piece of paper, because them signing their name to that piece of paper assigns someone to death. It’s not entirely logical since you’ve gone through the whole process and you voted for it, why not sign it? But there are some people who think, Well, I can’t attest to that. Would either one of you have that reservation, assuming you found all those things to be true down the line? MELINDA McDANIEL: No. ABSTRACT 299 HEATHER LACY: No. MR. DEEN: Thank you, sir. Thank you, Your Honor. Voir Dire by Counsel for Defense MR. MORLEDGE: All right, Ms. McDaniel, Morledge. Ms. Lacy, I’m Birc Thank you for being here and thank you for your service. Jeff Rosenzweig. And we also have Tim Leonard back there as well. We represent Daniel in this case. You guys met Daniel. Ms. McDaniel, let me, starting with you, let me ask. You said that you had sat on a previous capital trial; correct? MELINDA McDANIEL: Yes. (R 1253) MR. MORLEDGE: Was death waived in that case? MELINDA McDANIEL: No. MR. MORLEDGE: Okay, so death was on the table. Let me ask you: Did all twelve jurors vote for life without –MELINDA McDANIEL: Yes. MR. MORLEDGE: Gotcha. Were you satisfied with the outcome? MELINDA McDANIEL: I’m sorry? MR. MORLEDGE: Were you satisfied with the outcome? MELINDA McDANIEL: Yes. ABSTRACT 300 MR. MORLEDGE: And why was that? MELINDA McDANIEL: Because of the circumstances that were presented; and I think that each person viewed what was presented, and we discussed it, and we all agreed. MR. MORLEDGE: Okay. MELINDA McDANIEL: So, you know, I was satisfied and I believe everyone else was; otherwise, it wouldn’t have went through, I don’t think. MR. MORLEDGE: Understandable. What did you think about the experience? (R 1254) MELINDA McDANIEL: Well, that was my first time to serve as a juror, and it was interesting and it made me stop and think a whole lot, you know. I put a lot of thought into it. I didn’t just sit there and make up my mind from the beginning. I listened to everything from the beginning to the end; and I based it on what was presented. That’s what I did. MR. MORLEDGE: That’s great. That’s what you need to do. That’s a very serious situation, so that’s very good. MELINDA McDANIEL: Yes, it is. MR. MORLEDGE: Yes, ma’am. Now, what I want to do, this is the only opportunity that we as attorneys get to talk to y’all and y’all get to answer us back. ABSTRACT 301 Okay? MELINDA McDANIEL: Okay. MR. MORLEDGE: So I just want to get your values, your feelings, your core beliefs, about how to punish a guilty murderer. And what I mean by that is –- I mean, someone who killed an innocent victim.Okay? Someone who did it, not in self-defense. Okay? Someone who did it –- Who wasn’t so intoxicated, or so drunk, or so high on drugs that they didn’t know what they were doing. All right? Someone who’s not insane; someone who’s not under duress, meaning, no one held a gun to their head and said, You have to kill this person, or I’m going to kill you. Okay? Nothing like that, whatsoever. (R 1255) Now, Ms. Lacy, let me ask you this question: What is your feeling about the death penalty as being the only appropriate punishment for that guilty murderer and that set of circumstances? Completely innocent victim. And let me add this, too: He did it knowingly. Okay? He did it with disregard with any value for human life. All right? That type of guilty murderer. That’s what I’m talking about. Okay? Did it, knew he was doing it -- All right. Now, with that being said, Ms. Lacy, what is your opinion, what is your feelings about the death penalty as being the only appropriate punishment? MR. DEEN: Objection. Can’t know the answer without knowing what the ABSTRACT 302 mitigation and aggravation are. He simply states that’s merely a guilt issue, knowingly committing the offense under extreme circumstances, well, that’s just guilty, not guilty. That does not remotely address the factors that should be considered in setting a punishment. (R 1256) MR. ROSENZWEIG: He’s asking –- Your Honor, he’s asking a hypothetical question, a hypothetical set of circumstances, to try to find out what this person’s attitude is toward the death penalty. This is specifically permitted by Morgan v. Illinois and a number of other cases. THE COURT: I’m going to let him ask the question. But as far as procedure goes, when a lawyer is handling a particular part of the case, doing a particular witness, then they’re the only ones –- It’s helpful for the court reporter and anybody else just to keep up with one lawyer. In other words, if Mr. Deen asked a question that you-all had an objection to, Mr. Deen will have to respond, not Mr. Cason, or Mr. Puryear. I wouldn’t allow them to speak for him. I’m going to allow the question, but only to develop thus far in the record what my decision will be later as far as –- what I’m going to do as far as voir dire is simply to place in the record the type and nature of the questions being asked. So you may proceed with the question. (R 1257) MR. MORLEDGE: Thank you, Your Honor. Ms. Lacy, let me get back to ABSTRACT 303 the question. What is your feeling about the death penalty as being the only appropriate punishment for that type of guilty murder? (R 1257) HEATHER LACY: I agree with it. MR. MORLEDGE: Agree with it? HEATHER LACY: Uh-huh (yes). MR. MORLEDGE: Okay. You feel an eye for an eye? Okay. Kill someone, you forfeit your life; correct? HEATHER LACY: Well, I mean, if that is the only option, yes, I agree. MR. MORLEDGE: Well, I don’t want to put words in your mouth. What I’m asking for that particular type of guilty murderer, is the death penalty, in your opinion, the only appropriate punishment? HEATHER LACY: No, I don’t think it’s the death penalty. I think life or death depending on the circumstances that we’re talking about. MR. MORLEDGE: Okay. What do you mean by “the circumstances”? HEATHER LACY: The information that we receive, like, the proof or –You know. (R 1258) MR. MORLEDGE: Okay. In this hypothetical situation I’m talking about, you guys have already decided this person’s guilty beyond a reasonable doubt. Okay? We’ve moved past that. Doesn’t have any legal excuse, no legal justifications for ABSTRACT 304 what this hypothetical defendant did. Okay? Killed an innocent victim. Now, in those circumstances, what are your feelings about the death penalty as being the only appropriate punishment? HEATHER LACY: I would say yes. MR. MORLEDGE: Okay. Now, and I see you feel that strongly; correct? HEATHER LACY: Yes. MR. MORLEDGE: I mean, like we said, this comes from your core values, your beliefs; correct? HEATHER LACY: Correct. MR. MORLEDGE: Life without parole would not be an appropriate punishment for that type of guilty murderer; correct? HEATHER LACY: Correct. MR. MORLEDGE: Okay. Ms. McDaniel, let me ask you this: Do you feel the same way that Ms. Lacy feels? MELINDA McDANIEL: Repeat your question. MR. MORLEDGE: Sure. Absolutely. Guilty murderer, killed an innocent victim. Okay? MELINDA McDANIEL: Uh-huh (yes). MR. MORLEDGE: No legal excuse, no legal justification, whatsoever, for ABSTRACT 305 doing it. (R 1259) MELINDA McDANIEL: Right. MR. MORLEDGE: Did it; knew he did it. Okay? MELINDA McDANIEL: Uh-huh (yes). MR. MORLEDGE: Did it with extreme indifference to the value of human life. Okay? MELINDA McDANIEL: Right. MR. MORLEDGE: All right. Now, do you feel, like Ms. Lacy feels, that unequivocally the death penalty is the only appropriate punishment for that type of guilty murderer? MELINDA McDANIEL: Yes. MR. MORLEDGE: Thank you. Life without parole, not an appropriate punishment; correct? MELINDA McDANIEL: No. MR. MORLEDGE: Ms. Lacy, thank you for your honest answers –- Ms. McDaniel, thank you for your honest answers and beliefs; and that’s exactly what we’re doing here. And you know what, I can tell, those are your core values and -And you agree with me, Ms. McDaniel, those are your core values and beliefs; right? ABSTRACT 306 MELINDA McDANIEL: Yes. MR. MORLEDGE: And those aren’t going to change if some lawyer tells you, Hey, listen, you’ve got to be something different; right? This is who you are; correct? (R 1260) MELINDA McDANIEL: Right. MR. MORLEDGE: Right, Ms. Lacy? I see you nodding your head. HEATHER LACY: Yes. MR. MORLEDGE: Okay. Gotcha. And I assume, okay, but I need y’all’s answers on this, that if there is, you know, a child under the age of fourteen, your answers wouldn’t change; correct? MELINDA McDANIEL: No. HEATHER LACY: No. MR. MORLEDGE: Thank you, Your Honor. That’s all I have. THE COURT: Thank you-all for your time. If you-all would wait outside there, I’ll visit with counsel and we’ll let you know if either of the two of you have been selected. Just somewhere out there in the hallway will be fine. [Melinda McDaniel and Heather Lacy exit the jury room.] THE COURT: All right, what says the state? MR. DEEN: Well, both are good for the state, Your Honor. ABSTRACT 307 MR. MORLEDGE: Your Honor, the defense would make cause challenges for both –- (R 1261) MR. DEEN: Given the (talking over), I don’t have any objection. No objection. And if the Court’s going to allow the question to be posed like that every time then there’s no sense in death qualifying this jury. MR. MORLEDGE: Your Honor –THE COURT: Mr. Deen, you need to –- The Court was allowing the questions knowing that they were loaded questions. I overruled the objection, not because the questions were unobjectionable. Now, Mr. Morledge, complete your –MR. MORLEDGE: Thank you, Your Honor, I appreciate that. And, Your Honor, Morgan specifically states that we’re allowed to ask the question about their feelings of the death penalty upon the punishment phase, upon conviction –THE COURT: I’ve already –- I’ve already excused both. It moots your argument. MR. MORLEDGE: Thank you, Your Honor. THE COURT: Now, that brings us to the point which I thought I might be -I need to –- The idea about doing this voir dire in this room, I will make rulings addressing the state’s concerns about the questions. I agree, certain of them were –ABSTRACT 308 They were certainly leading and buzzwords like “core values” and stuff thrown in. I understood what the defense was doing: you were trying to get these jurors excused for cause. (R 1262) And the Court was allowing you to ask the questions in the manner in which you did, overruling the state’s objections, so the Court could make a record as to how this would proceed in the event I did not place reasonable limitations vis-a-vis Miller. Also, the logistics here are not good. Generally, when you allow counsel to sit around a table, they tend to get long-winded and you don’t have the structure of the courtroom and the podium, so we are going to adjourn to the courtroom. We will do this, as I normally do in these cases, and counsel will go to the podium and the jurors will be in the box. And I’m going to go now to four. Now, with respect to the voir dire on the death penalty, the Court has that one question that I am asking; that doesn’t prevent the state or the defense, at this point, from asking additional questions. However, the only questions that I am going to allow will have to do with –They can’t be leading. “Core values” doesn’t have a common meaning; and what may be core values to you, may not be core values to someone else. That’s just political, but good try. MR. DEEN: May I be heard again on that particular foundation? (R 1263) ABSTRACT 309 THE COURT: Uh-huh (yes), you may. MR. DEEN: It is disingenuous of this lawyer to ask those potential jurors whether they consider death as the only possible punishment when he only gets to the guilt phase; that’s all the question got to. If you found that he knowingly caused the death of the child under fourteen in a circumstance manifesting extreme indifference to the value of human life, with no consideration of aggravators or mitigators, as if they don’t exist, as if that whole phase doesn’t exist. I think the question is disingenuous; and I’d ask that you not allow it in the future when I object again on the same basis –THE COURT: Well, I will, but I only had two jurors then. It only cost two jurors. And sometimes you let, be it, the state or the defense, you let them go on the first round so that the Court has a basis upon which to rule. MR. DEEN: I understand. THE COURT: If I cut it off –- and I do this in all trials –- I let everybody have a free bite at the apple –- when the cost is not that great. Here the cost was just two jurors. MR. DEEN: Well, I don’t know if you think I’m taking –- I gathered you thought I was taking too long. I took 25 minutes. (R 1264) THE COURT: I didn’t think –- Normally, in any voir dire, especially in this ABSTRACT 310 type situation when you’re around a table, just like too long a deposition, normally, early in the day, first jurors, everybody’s primed; and I’m not second-guessing either side, it’s an adversary proceeding. I’m just saying it’s my responsibility, eventually, and this is my way of building a record is to overrule that objection, let defense -- If they would have objected to yours, I would have overruled in order to get a preview of really where you were going; then I can always point to that as a basis for the next ruling. In any event, the most important thing is, I want my court reporter to set back up. And also setting back up out there allowed me, perhaps, to free up somebody sometimes, as far as an extra bailiff -- and they’re short-handed today -- that way I can probably work with two bailiffs and the other jurors can have this and that type of thing. I’m going to go now –I’ve done as many as six in a capital case. I’m going to go to the magic number of five. And the questions in the future, to both counsel, have to –Cannot, to any degree, misrepresent the process, or either I will ask the questions, all the questions on voir dire, which I have authority to; and now have a justification to, now that we see the questions that are asked. I wouldn’t necessarily have that much discretion if I had cut counsel off. (R 1265) MR. DEEN: Well, I apologize for my intemperate remark, but I was angry. ABSTRACT 311 THE COURT: Look, look, look, everybody –-Let’s move on. MR. ROSENZWEIG: Your Honor, can I –- A couple of things. I just need to clarify exactly what you are allowing versus forbidding us to do. We have taken the liberty of preparing a memorandum of law that I’d like to present to the Court for its consideration. (Inaudible) file with the clerk. Here’s a copy for Mr. Deen. Your Honor, it’s our position that under Morgan, Wainwright, Dewitt, et cetera, we have a right to ask the juror’s attitude toward in favor of the death penalty and we have to do this by nature of leading questions to some extent. This is specifically ordained by the cases that we have cited in here: Morgan, Wainwright, Witt. And we’d point out, for instance, that what we have are people who we’re trying to get their, you know –- We’re trying to get their core beliefs, which is exactly what Morgan says –Turner v. Murray and other cases say –- we’re entitled to do. (R 1266) THE COURT: Mr. Deen says that that is a disingenuous argument and a disingenuous position to take with respect to that. I don’t have to –- I don’t have –MR. ROSENZWEIG: I’m sorry –THE COURT: Don’t interrupt me. I don’t have a window to anyone’s soul. I’m not going to say someone was disingenuous or anything like that. I don’t have to. I’m simply saying we’re going to do it in the courtroom and there will be no leading questions from either side; and I’ll decide by the time I get to the bench ABSTRACT 312 whether I will allow any questions or whether I will do them all on the death penalty aspect because I have that authority under the Miller case. We’re adjourned. [Bench conference] MR. ROSENZWEIG: Are we on? THE COURT: Yeah. ( R 1267) MR. ROSENZWEIG: Your Honor, I just want to make sure the record is clear with regard to our objections as to what we understand to be your rule. And, Your Honor, first, I’d like to point out that, although Mr. Deen took approximately 25 minutes to do his portion of voir dire, Mr. Morledge took approximately ten minutes; and in that ten minutes, efficiently disclosed disqualifying prejudices by those two jurors. Your Honor, the questions that he asked were explicitly authorized by Morgan v. Illinois, which we provided, Your Honor, to you. And, specifically, as is highlighted in the Morgan decision, “It may be that a juror could, in good conscience, swear to uphold the law yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so. A defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under such misconception.” The misconceptors may have been empaneled in this case, et cetera, et cetera. In other words -- Now, what Mr. ABSTRACT 313 Morledge ascertained in here, in a very efficient manner, is that these two people were in fact operating under the assumption, or under their core beliefs, that in fact they were going to vote for death, you know, under the circumstances of this case even before they got to the penalty phase. (R 1268) And then that was emphasized more so in the fact that it was a child which was in fact, another guilt phase element, and didn’t even have to get to the aggravating circumstances, which may have also affected them. The whole purpose in voir dire in Morgan is to expose the bias that needs to be exposed; and it is our position, Your Honor, to forbid the questioning which gets at these biases under Morgan and other cases, violates Mr. Pedraza’s rights to due process and to obtain a fair jury. Also, because of the death penalty, the 8th Amendment, and the state constitutional provisions are involved. And, furthermore, would prevent us from rendering effective counsel to him or, you know, because we would not be able to (inaudible) the biases and, therefore, we want to object on the federal and state constitutional grounds as I stated; and, furthermore, ask the Court to reconsider its decision forbidding this type of questioning. THE COURT: Mr. Deen, do you have a response? MR. DEEN: The Court did not forbid this type of questioning on that issue. The issue is whether or not the question will be allowed in a leading and a misleading fashion, not (inaudible) forbidden, so the premise of the objection is false. (R 1269) ABSTRACT 314 MR. ROSENZWEIG: Your Honor, they were not misleading questions; they were very succinct questions. And the point is, Your Honor, if the person is –- if the person says they are for the death penalty –- they are only for the death penalty upon conviction, that is a –- These people were -– They knew exactly what they were talking about, what they were saying. MR. MORLEDGE: And may I add one thing, Your Honor? THE COURT: Yes. MR. MORLEDGE: Thank you, sir. As Mr. Rosenzweig is pointing out, those people are substantially impaired under Morgan; and, also, I’m not asking a leading question, I’m asking them what their feelings are. Mr. Deen was asking them leading questions as well. COURT ANNOUNCES DECISION TO DO PANELS OF SIX IN COURTROOM THE COURT: Well, I don’t disagree with that part about some of the state’s questions may have been leading. The decision that the Court is going to make is this: First of all, we’re going to do this here in the courtroom, as we are. Instead of five, we’re going to take six. We’ll put them in the front box (inaudible) will go first. I’m less interested in the time it takes to do something and how it’s done. And, for the record, the Court, the only thing about –- that I would ask either side to do -- Mr. Deen is the one that went into the part about this crime was charged as a homicide in ABSTRACT 315 which the death was caused knowingly instead of premeditatedly. I would simply ask that if you wish to ask a question about “knowingly,” that you go ahead and get it –That’s the reason I went and got the model instruction book –- that you use it as it is written. (R 1270)And regardless of how many cases you’ve tried, there’s going to be a word or two left out, and I don’t want to get into that. And the business about –You mentioned about how you asked the question. The point being is that they were asked in a way to –- a loaded fashion, a leading manner: Don’t-you-agree-type thing, and the jurors didn’t know where you were coming with that. And the point is is that the Court is going to be governed by the Miller case –MR. ROSENZWEIG: When you say “Miller case,” which Miller case are we talking about, Your Honor? THE COURT: It’s the case of James Aaron Miller. MR. MORLEDGE: I’m sorry, Your Honor? THE COURT: James Aaron Miller. MR. MORLEDGE: Thank you, sir. (R 1271) COURT ANNOUNCES REQUIREMENT FOR ONLY WRITTEN QUESTIONS ON THE DEATH PENALTY THE COURT: And the court in that case says, “In capital cases, no less than ABSTRACT 316 non-capital cases, the constitution does not dictate a particular voir dire process; it demands only that the process be adequate to identify qualified jurors.” And further it says that it is the trial court rather than the counsel or the defense that has the right to ask questions of the venire persons, and it is the manner within the trial court’s discretion whether to allow counsel to ask additional questions as the Court deems reasonable and proper. One reason that I allowed both sides to go without any admonition from the Court was in order to give you-all an opportunity to demonstrate the questions that you would ask if this Court did not impose any limitations. If I had stopped you, I wouldn’t have the benefit of knowing what you would do; now I do. So what the Court is going to do is simply ask the questions respecting the death penalty. After I get through with my questions, if you have additional questions, submit them in writing and I will take a look at them. MR. ROSENZWEIG: Will you give us time to do so? THE COURT: You already have them, don’t you? (R 1272) MR. ROSENZWEIG: Well, it depends on what the answers are going to be to the questions –THE COURT: I understand. But you have your basic questions. And that will be your proffer. And I can then have an opportunity to decide, after either side has a chance to respond, whether or not those additional questions should be asked. ABSTRACT 317 MR. DEEN: Well, my notes are decipherable by no one but myself –THE COURT: I’m talking about your additional questions, just shouldn’t be too many. So in any event, that’s the Court’s decision. You-all have a seat. Let’s get on with this. MR. ROSENZWEIG: Your Honor, I have one more question –THE COURT: What? MR. ROSENZWEIG: And that is this. I don’t want to be in the position of being discourteously interruptive to the Court. If we determine that a question that you ask is something that we need to object to –THE COURT: You already know the rule on that and that is the contemporaneous objection doesn’t apply in that instance. It’s as soon as the Court thereafter gives you an opportunity to object. (R 1273) MR. ROSENZWEIG: I just want to make sure the record’s clear, Your Honor. Thank you. THE COURT: The law is not a matter of the record; the law is the law. The Court is aware of the law and I’m aware of the contemporaneous objection rule. In other words, there’s no need to state the obvious. MR. ROSENZWEIG: Your Honor –THE COURT: That’s all. The Miller case covers that too. Certainly, you ABSTRACT 318 don’t have to be in a position of interrupting the Court to your disadvantage at that point in time; the law has always recognized that –MR. ROSENZWEIG: I –THE COURT: -- so there’s no need to even put that on the record. MR. ROSENZWEIG: Well, Your Honor, I wish that were so, but I’m glad you’ve recognized it because the supreme court hasn’t at times. MR. MORLEDGE: Your Honor, I do have one question. Thomas, one second. Procedurally, you’re only going to be asking about the death penalty and then it’s open to whatever else after that, is that it, or is the Court –THE COURT: We’ll wait and see. MR. MORLEDGE: Okay. THE COURT: Thank you. MR. MORLEDGE: Thank you, Your Honor. (R 1274) [Open court] THE COURT: In order to make this work better with the Court and hopefully in the interest of some, time is not of paramount consideration, but to make it work better, I’m going to take six at a time; and the next six, we will call their names out and they’ll have a seat in the jury box on that front row. The rest of you then have the run of the courthouse until we call you because taking two at a time, I’ve determined, ABSTRACT 319 is going to unnecessarily delay. And with that said, let’s get the next six. Can I have their names? COURT REPORTER: They’re right here. THE COURT: Number 11: Justin Claville. Come up, Mr. Claville. First chair over here on the left. Eddie Curry: 16; Christopher Strickland; Willie Owen; Patricia Carson Williams; and Lisa Brown. All right, the rest of you are excused and hang around the courthouse here and we’ll call you when we get ready. (R 1275) [Group 2 enters the courtroom.] VOIR DIRE OF FIRST PANEL OF SIX (GROUP 2) Voir Dire by the Court THE COURT: All right, ladies and gentlemen of the jury, the Court is going to ask you a few questions on the front end. I may permit counsel to ask you additional questions respecting this case. The first question I’m going to ask you has to do with your familiarity, or knowledge, or closeness to any of the potential witnesses for either side. And that’s normal. And so the question I’m going to ask you is –- And, ultimately, the issue is, if you do know someone, are you so close to them that this is not the case for you to sit on, that it might affect how you weigh their testimony. Let me give you the names ABSTRACT 320 of the state’s witnesses, and if any of you know any of these witnesses, personally –I’m not talking about know of them, but know them personally, then just raise your hand and I’ll stop and ask you what your relationship is with them. First, Joey Earnest? (No response.) Brenda Earnest? (No response.) Celita Brooks? (No response.) Robert Jacobs? (No response.) Carolyn Stuard? (No response.) Clayton Moss? (No response.) Scott Woodward? (No response.) Lisa Channell? (No response.) Mary Simonson? (No response.) Stephen Erickson? (No response.) Victoria Pedraza? (R 1276) (No response.) Tim Nichols? (No response.) Jeff Martin? (No response.) Scott Carson? (No response.) Mark Gober? (No response.) And Dr. Ramos, Joao? (No response.) I did the best I could with that. All right, no hands. Now, for the defense: Corey Atkins? He’s from White Hall it’s noted. (No response.) Sgt. Mike Reynolds from Warren? (No response.) Mark Shull from El Dorado? (No response.) Tim Coke from Marmaduke? (No response.) Ladell Wright from Monticello? (No response.) And Dr. Pablo Stewart from San Francisco? (No response.) Any of you close personal friends or related to any of those witnesses? All right, with respect to the attorneys in this case -- they identified themselves earlier -- are any of you close personal friends with them, or related to them by blood or marriage? (No response.) Very well. (R 1277) With respect to this case, it is what the defendant here is charged with capital ABSTRACT 321 felony murder. As I’ve told you earlier, the burden is upon the state to prove any defendant guilty beyond a reasonable doubt. That is the state’s responsibility based upon their own proof. The defendant is not required to prove anything. Any one of you in your heart have any hesitation in holding the state to that burden, following the law, requiring that the state prove the defendant guilty of any offense, first, based on its own proof, any of you have any problem with that? (No response.) Very good. This is what we commonly refer to as a death penalty case. That simply means he is charged by means of an information with an offense, that if convicted of, could possibly carry the penalty of death if convicted of capital murder. The jury after hearing additional evidence will retire and consider two possibilities: first, life without parole; secondly, the death penalty. The Court, following that portion of the trial, if we ever got to that point, would give you instructions as to how you are to arrive at your decision. Now, my question to you is this: I know you don’t know what those instructions would be as to how you -- the guidelines in reaching that decision -- and you don’t know if you’ll even get to that point anyway, but –- I’m not asking you what your views on the death penalty are; I’m asking you do any of you have a view of the death penalty that you could not set aside and that would affect your ability to impartially consider the evidence in this case on guilt? ABSTRACT 322 LISA BROWN: I do. THE COURT: All right. And let me get your name. LISA BROWN: Lisa Brown. THE COURT: Ms. Brown, explain. (R 1278) LISA BROWN: I just don’t feel that I have a right to be the giver nor the taker of life. THE COURT: So is that view such that it would affect your ability to impartially consider the evidence in this case on the issue of guilty or not guilty? LISA BROWN: Yes, sir, I believe it would. THE COURT: Very well. Any others, while we’re on that subject? (No response.) The process by which, if you reached that point, a jury is to attempt to reach that decision is of course governed by the jury instructions, that you have no reason to be familiar with, but it is a decision reached –- must be reached unanimously -- after a full hearing where you hear all relevant evidence on the issue of sentencing. Any of you, any of the remaining five, have anything that would prevent you from following the law? And by that I mean, it’s the responsibility of the Court to give you the law that’s to govern your decision; and I will always instruct you that you should not consider any rule of law to which you think you may be familiar unless it’s included in the instructions. In other words, set aside any notions ABSTRACT 323 you have of what the law should be, or anything else. Do any of you have any strong ideas about your notions of what the law should be that you don’t believe you could always remit the Court to tell you what that law is and you abide by it in your decision? Any of you have those kind of strong beliefs that your personal beliefs would have to prevail despite the fact that I instruct you to apply the law? (No response.) (R 1279) With respect to –- To keep the state from having to ask this question, and if you wish, either one of you wish to approach the bench and tell me up here in private with counsel, you may say, I’d like to approach the bench. Are any members, close personal friends, or members of your family, have any –- been prosecuted or charged by a prosecuting attorney or district attorney? Anything currently pending or in the past that might affect your decision in this case? Mr. Deen is the prosecuting attorney for this district. He has deputies that serve under him. Whether it be he in the past, or some other prosecuting attorney, if you, or any of your kin, or close friends have been on opposite sides that’s left a bad taste in your mouth? (No response.) Let me ask you this: Is there any –- I’ve asked certain questions, but I can’t read your minds. Is there something that I have not asked you that you would like to approach the bench on or speak out loud if you want? Anything that this Court should know, or the lawyers should know, that in ABSTRACT 324 your heart you know we should know, and that might affect your ability to serve impartially on this case? Let me get your name. (R 1280) WILLIE OWEN: Willie Owen. THE COURT: Ms. Owen, would you prefer to tell me up here? Come on up, counsel. It’s too crowded –- One lawyer on each side. [Bench conference] THE COURT: All right, let the record reflect Ms. Owen is up here. Tell me what’s on your mind. WILLIE OWEN: Well, the problem is I’m almost eighty years old and I don’t have –- My memory’s not as well as it used to be, and my concentration is not, but the main problem is –- Can I give you an example? THE COURT: Yes, sure. WILLIE OWEN: I teach a Sunday school class here in Monticello and have been teaching for years, but, like, on a Saturday night when I’m going to teach the next day, I don’t sleep all night many times. Once in a while I get three or four hours in, but most of the time, you know, I struggle with it, but I do it because I think that’s what the Lord wants me to do. And I’m thinking if I had to do this for seven days, I don’t know how –- (R 1281) THE COURT: You might sleep less? ABSTRACT 325 WILLIE OWEN: That’s my problem. I don’t know that. Let’s put it in the Lord’s hands, if He wants me to do it. I know how my mind –- I can’t shut things off at night, I just can’t. THE COURT: Counsel, I don’t think –-Number one, this would be a lengthy trial. If it was a one-day trial or a two-day trial, I can see holding her. But if she expresses reservations about her physical abilities to do this then I think that it would be wise for the Court to excuse you. If you’ll just have a seat back over there. WILLIE OWEN: Okay. THE COURT: Now, while you-all are up here, gentlemen, I want, with respect to Ms. Brown on the end, from the state. MR. DEEN: I move she be struck for cause. She couldn’t even get past the guilty verdict. THE COURT: And –MR. MORLEDGE: Your Honor, obviously, we would be inclined to question her and see exactly what her opinions are. (R 1282) THE COURT: What would be your questions? MR. MORLEDGE: We would go through the process with her, walk her through it: This is what you have to do; You never have to give death at any point; Life is always okay by the State of Arkansas and their laws –ABSTRACT 326 THE COURT: But she said it would affect her decision on the guilt phase –MR. MORLEDGE: Right. Excuse me. THE COURT: That’s why –- She can’t change that. It is within the discretion of the Court whether or not to allow, as we call it, rehabilitation –- that’s also in the Miller case –- and she was unequivocal. And if two and two makes four, I’m going to find that it makes four, so I will excuse her and -Ms. Owen. Now, with respect to additional questions, Mr. Deen, on the issue of –- Any other questions from the state that you would –MR. DEEN: I’ve written out the A and B questions that I’ve asked in every capital case –THE COURT: I will let you ask those questions. Now, you write out yours –MR. MORLEDGE: Yes, Your Honor. THE COURT: When Mr. Deen is through, you clear them with the Court. (R 1283) MR. DEEN: Do you want me to give you the A and B, and you ask it? Or do you want me to ask it? THE COURT: I’ll let you ask them. Very good. Thank you. Any others? ABSTRACT 327 MR. DEEN: I’ll discuss the aggravators in the process, but not other questions related to death penalty views. THE COURT: What I want to find out is –- I don’t know it all. What is the -- It’s discretionary with the Court when you –- You know how lengthy the instructions are on aggravators; and it’s hard to summarize them –MR. DEEN: Those are word for word from AMCI. Those aren’t summarized. THE COURT: And it’s the Court’s job to instruct the jury –- Are you trying to find out if they can do, what? MR. DEEN: To follow the instructions. If the Court instructs you that this circumstance that the legislature has said is a potential aggravator is proven beyond a reasonable doubt, can you follow that instruction? Or instead, do you think, no, the fact that a child is under twelve is irrelevant? I’m not going to follow that. Or, no, (inaudible) is something that I will not consider. (R 1284) THE COURT: And when trying to do that, you (inaudible) it with the question of: Regardless of your emotion of the law –- you know that’s what I was trying to do, generically, in order to avoid too much of the other. I do agree with the other two questions. I’ll let you –- I’ll decide later how we get into it. MR. DEEN: I mean, I know what you were trying to do, but you asked it broadly, Your Honor –ABSTRACT 328 THE COURT: I understand it. There is no perfect way. You write yours out and when we get to that point –MR. MORLEDGE: Yes, Your Honor. Obviously, the state’s going to try to death qualify the jury; and we’re obviously going to be trying to life qualify the jury as well because we’re entitled to that. I know the judge –THE COURT: I know that. MR. MORLEDGE: But in regards to Ms. Brown, I know the Court has already made its –THE COURT: You’ve made your objection. (Inaudible). (R 1285) MR. MORLEDGE: Yes, Your Honor. I would like to state that Morgan says general questions are not good enough to get to the actual root, someone’s actual feelings on the death penalty (talking over). THE COURT: Right. And I know it’s also in my discretion –MR. MORLEDGE: Yes, Your Honor. THE COURT: –- to some extent. Go ahead. [Open court] THE COURT: Mr. Deen. MR. DEEN: Thank you, Your Honor. THE COURT: With respect to Ms. Brown and Ms. Owen, I’m going to go ABSTRACT 329 ahead and excuse you at this time. Thank you for coming. And the rest of the questions by counsel will be directed to the remaining four. You’re recognized, Mr. Deen. COURT REFUSES TO PERMIT LEAD COUNSEL ROSENZWEIG TO APPROACH BENCH MR. ROSENZWEIG: Your Honor, may we approach? THE COURT: No. I’ve covered all of that with your counsel up here. I’m –MR. ROSENZWEIG: Your Honor, that’s what I wanted to discuss. May I approach? THE COURT: No. We’ve gone through that. Let’s go. (R 1286) Voir Dire by Counsel for Plaintiff MR. DEEN: Thank you, Your Honor. May it please the Court, ladies and gentlemen. My name is Thomas Deen. I’m a prosecuting attorney with Crews Puryear and David Cason. We represent the state in this case. The judge asked a death penalty view question and there was one response to that. And I’d like to follow up with something that is a little more specific, so I’m going to read, if I could, two statements to you and ask you to listen to these two statements and tell me which ABSTRACT 330 of the two your views most closely resemble, which of these two most closely resemble your ideas on the death penalty. In general, (A): I believe the death penalty is appropriate in some capital cases and I could return a verdict resulting in death in the proper case, or (B): Although I do not believe the death penalty should be imposed, as long as the law allows it, I could assess the death penalty in the proper set of circumstances. (A), that the death penalty is appropriate in some capital cases, return a verdict resulting in death in the proper case? (B): I do not believe the death penalty should be imposed, so long as the law provides for it, I could assess it in the proper case? Mr. Claville, would you say “A”? JUSTIN CLAVILLE: Yes. (R 1287) MR. DEEN: Mr. Curry? EDDIE CURRY: A. MR. DEEN: A. Mr. Strickland? CHRISTOPHER STRICKLAND: A. MR. DEEN: A. And is it, Ms. Williams? PATRICIA CARSON WILLIAMS: B. MR. DEEN: B. Thank you. You’ve heard, the first thing this morning, the judge read to you what the charge was in this case of capital murder. There’s more ABSTRACT 331 than one variety of capital murder, maybe oftentimes you may have heard premeditated, deliberated, you may have heard that term before, or read it with respect to some other case. That term is not used in this case. The charge was that he read to you that Daniel Pedraza is accused of knowingly causing the death of Aubriana Coke, a child less than fourteen years of age, under circumstances manifesting extreme indifference to the value of human life. “Knowingly” as opposed to “premeditation.” (R 1288)And I want to, again, indulge you and read that definition and ask you whether or not you could follow that –- Or would you instead hold me to a higher burden of premeditation? Do you follow what I mean? No, there’s no premeditation there, the state loses –- The state hasn’t proved premeditation –- I think the judge, at the conclusion of the case, is going to instruct you on what he said earlier which is “knowingly” caused the death of a child. A person acts knowingly with respect to his conduct of circumstances that exist at the time of this act when he is aware that his conduct is of that nature, or that such circumstances exist. A person acts knowingly with respect to: a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result, in this case, state alleges death of Aubriana Coke, a child approximately two years of age. Would each of you be able to follow that instruction with respect to the charge of capital murder, or would you instead hold me to some higher burden that he ABSTRACT 332 planned it, premeditated it, that sort of thing –- Do you follow what I’m saying? Could all of you follow this instruction? Would any of you have an opinion why maybe that the law only requires that the defendant’s conduct be knowingly done when it involved the murder of a child? Anybody have any thoughts on why our law would make that provision? You think maybe the law considers itself more protective of children than adults? Does anyone disagree with that? (R 1289)You think maybe the law is of the view that children are in a very poor position to defend themselves against grown people? Does anyone disagree with that? Both of those sound reasonable to you? You will learn in the testimony of this case that the wife of Daniel Pedraza, who he married about two weeks before the death of Aubriana, her name is Victoria, has pled guilty in this courtroom to a charge called “permitting abuse.” “Permitting abuse” is a felony punishable by from five to twenty years in the penitentiary, when a parent or guardian permits someone, allows someone else, to seriously injure or kill their child. That’s a felony in itself. A parent is expected to intervene regardless. Also, you’ll learn that when she testifies here in this case, as she’s expected to, she’ll testify as a witness, not for the defense, but for the state. She’s what’s sometimes called a cooperating witness. Have any of you ever heard that term before, “a cooperating witness”? What does that mean to any of you? Sir? A cooperating witness? ABSTRACT 333 JUSTIN CLAVILLE: Cooperating with y’all. ( R 1290) MR. DEEN: Cooperating with the state in exchange for –- In exchange for something else; right? In this case, in exchange for whatever the jury gives her. Another jury will be selected weeks or months from now; and that jury will decide how long she serves in the penitentiary, whether it’s five, ten, fifteen, or twenty. The most she can get is twenty years; the least she can get is five. Would that by itself, that alone, cause you to pitch her testimony out, just totally disregard what she has to say about what happened that day, or those days? You’re shaking your head no. Anybody disagree –- Would you agree you need to judge her credibility based on her demeanor, based on the sensibleness of her statement, based on other corroborating evidence? Would you agree her testimony is evidence? Let’s say that you decide that I’m a naive prosecutor; she had more to do with this than what she’s letting on; here she is getting off on permitting abuse, five to twenty, while he’s looking at life or death, if he’s convicted. Let’s say that you wanted to come to that conclusion, that I made a mistake, me, recommending that this is what happens to her, would you take that out on me or would you take it out on my case? In other words, if I made that mistake, that she had more to do with it than what she lets on, does that make him any less guilty if you find him guilty beyond a reasonable doubt? Do you see what I’m saying? Two people can commit a crime, ABSTRACT 334 can they not? (R 1291) There’s going to be some photographs in this case that will be introduced, or be offered to be introduced, that are going to be very disturbing. In any murder case, inherently, there are photos that are very unpleasant to look at. It will be particularly so in this case. There’s a young child that’s been beat to death. There have been occasions when jurors have been selected to sit in the case, have been unable to go forward at that point. They just shut down. They have to be removed and an alternate had to be substituted for them because of -- I’m not saying that I don’t blame them really because it’s tough. It’s tough. Can you do it? Ma’am, can you do it? PATRICIA CARSON WILLIAMS: Yes. MR. DEEN: All of you are nodding yes. The judge asked you generically about the death penalty; I asked you the A-or-B questions to sort of narrow it down –- Three of you: A; one of you: B. The death penalty is not imposed in just a random-type fashion where, let’s say, he’s found guilty and you retire back to the jury room and you just give (inaudible). Your judgment on it is very structured by law. The first thing you’ve got to find exists is one or more aggravating circumstances that are specified by law. If you don’t find beyond a reasonable doubt that one of those exist, it’s over. (R 1292)Life without parole automatic if you don’t find they exist, ABSTRACT 335 so that’s Step No. 1. There are three that are suggested that will be applicable to this case. That depends on what the proof is and it depends on how the judge allows them to go forward. It’s not up to me or defense counsel; it’s up to Judge Gibson, which of these aggravators, if any, are submitted. This is what word-for-word, if they are submitted to you, they will be from our instructions. “Capital murder is committed in an especially depraved manner when the person relishes the murder, evidencing debasement or perversion, or shows an indifferent to the suffering of the victim and evidences a sense of pleasure in committing the murder.” This is the statutory aggravating circumstance. If this is given to you, is this something that, if proved, if shown by the evidence, that you could apply? And it doesn’t make sense that if this is proven, it’s something that qualifies someone for a potential death sentence. (R 1293) The other one is also age related under our law, except it’s a younger age, be it, capital murder less than fourteen. We’ve talked about that. That’s knowingly and causing the death. Assume he’s not guilty, when you get to the penalty phase, the age goes to twelve. “Capital murder was committed against the victim whom the defendant knew or reasonably should have known was especially vulnerable to the attack because: The victim was twelve years of age or younger.” And I assume your answer will be the same about the “less than fourteen” or “someone under twelve is ABSTRACT 336 in no position to defend themselves against a grown man.” Finally, “Capital murder was committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted.” Here are definitions which are self-evident: “Torture” means the infliction of pain for a prolonged period of time. Would your answer be the same, likewise, if this is proven to your satisfaction beyond a reasonable doubt, all twelve of you, if you could apply this? (R 1294) On the other hand, the second step: mitigating evidence. As aggravating evidence is limited by law; mitigating evidence is not limited by law. It could be anything that’s proven probably exists that would tend to lessen the punishment. You might have –- It’s not alleged in this case, but you might have a defendant who was somewhat mentally retarded. (Inaudible) that as mitigating as someone who’s not quite –- They’re competent, but they’re not really operating at full capacity, someone like that. You might have someone who just had something remarkable in their past, that could be considered as a mitigator, someone who -- I don’t know, you fill in the blank. Someone that just had something remarkable in their past or something more mundane; or someone who was poor as a child; or someone which didn’t receive adequate food; or someone’s whose parents just beats them –ABSTRACT 337 MR. MORLEDGE: Objection, Your Honor. May we approach? THE COURT: You may. [Bench conference] MR. MORLEDGE: Your Honor, it’s not our duty to present any mitigation -We really don’t have to. Mr. Deen is putting that burden on us to do -- And that’s objectionable; and I ask that he not be allowed to do that, Your Honor. MR. DEEN: (Inaudible) saying that, it’s the second step to considering mitigation –MR. MORLEDGE: Yeah, you said it was the second step to considering mitigation –MR. DEEN: It is. (R 1295) MR. MORLEDGE: -- now you’re going through a list –MR. DEEN: It is. It is the second step to consider mitigation. MR. DEEN: I’m giving examples of mitigating evidence. MR. MORLEDGE: Your Honor –- I’m sorry. Thank you, Your Honor. He’s putting the onus on us to do it; and we don’t have to present any mitigation defense, whatsoever. THE COURT: Well, I’m going to allow him to ask –- The next set, we won’t go into this anyway. I’ve already decided while I’ve been sitting here. Thank you, ABSTRACT 338 gentlemen. MR. MORLEDGE: Thank you, Your Honor. [Open court] MR. DEEN: You understand that the defense does not have to present any mitigation, whatsoever, or any evidence of any kind, do you agree with that proposition? The defense doesn’t have to prove anything. If someone were to ask you this question: Upon a conviction of capital murder of a child, without legal justification, knowingly committing under extreme circumstances, should the penalty always be death, would your answer be, yes, it should always be death? Or should it be depending on the circumstances? Depends on the circumstances? What’s your answer? (R 1296) EDDIE CURRY: Depends on the circumstances. From what I hear and what I know, I’d say death. MR. DEEN: But you haven’t heard anything yet. EDDIE CURRY: Well, from what I’ve heard here. MR. DEEN: Well, all you’ve heard here is the lawyers talking. EDDIE CURRY: I haven’t heard it all. MR. DEEN: You would certainly lean that way? EDDIE CURRY: Yes, sir. ABSTRACT 339 MR. DEEN: But would you consider both penalties depending on what the circumstances are? Because you don’t know –- You don’t know what might be presented at trial. Now, again, they have no obligation to present mitigation and may not. They may not present one bit of mitigation evidence –- Would your answer be the same, sir, that it depends –JUSTIN CLAVILLE: Depends on the circumstances. MR. DEEN: Sir? (R 1297) JUSTIN CLAVILLE: Depends on the circumstances. MR. DEEN: Thank you, Your Honor. THE COURT: Before you -- Do you have any non -- what I call -- death penalty questions? MR. MORLEDGE: Yes, Your Honor. THE COURT: Okay. MR. MORLEDGE: We have life qualification –THE COURT: No, that’s not what I mean. What I mean, non-penalty questions, I should say –MR. MORLEDGE: I’m sorry, I don’t understand the question, Your Honor. THE COURT: Right. What I mean is this: Y’all have spent a fair amount of ABSTRACT 340 time talking about –- and a lot of times you do –- about the possibility of the death penalty and how someone might lean. Non-penalty questions are those that go to –For instance, I’ve asked them do they know the witnesses; I’ve asked them do they know the lawyers –MR. MORLEDGE: You’re asking about publicity, and race, and that sort of thing? Is that what you’re asking, Judge? (R 1298) THE COURT: Anything having to do with, that you think –- Any experiences in their life that might cause them to not be a good juror on this case, what I call non-death-penalty-type questions. That’s all I wanted to know. Let me see what you have here. Mr. Deen, come up. [Bench conference] MR. MORLEDGE: And, Your Honor, this is over our objection. THE COURT: I understand that. MR. MORLEDGE: Okay. I just want to make sure. We’d like you to read –- And after you read those, I would like to add one other thing, Your Honor. THE COURT: Thank you. Let me give you the questions. Okay, the questions are as follows –- And I’ll give Mr. Deen’s -MR. MORLEDGE: Go ahead, Your Honor. THE COURT: Let me give you the questions. I’ve already wrote out my ABSTRACT 341 rulings, but one of you may convince me otherwise. “Do you understand the law in Arkansas never requires a death verdict in any case?” MR. DEEN: Perfectly true statement. (R 1299) THE COURT: I gave the same answer. “Do you understand that under the law, any one juror can choose the penalty of life in prison without parole, and that will be the final verdict?” Response? It’s not whether it’s a true statement or false, the reason that I will disallow this is it invites a hung jury. In other words, you have the right to hang the jury. You may express that opinion in your closing argument in the sense that you can always emphasize that it takes all twelve to agree. But as far as -- This is not true –MR. MORLEDGE: You would agree with me that it is a fair statement of law, Your Honor? I believe those were your words. THE COURT: Oh, absolutely. I mean, yes --A hung jury means –MR. MORLEDGE: And, Your Honor, that question isn’t to elicit a hung jury, that’s just to let the jurors know what their rights are. THE COURT: I know -- Y’all are both saying what your questions are designed to do, but as you stated earlier –- And we all know you’re trying to get a life jury; he’s trying to get a death-qualified jury –- “Do you understand that how” –“Do you understand that how that works is called mitigation, and that each individual ABSTRACT 342 juror determines for him or herself what is mitigation, and how much weight to give it?” (R 1300) MR. DEEN: It’s a true statement. He needs to put a caveat that he’s not under an obligation to present mitigation, like he said a moment ago. THE COURT: In any event –MR. MORLEDGE: I don’t have to do –THE COURT: “Do you understand that if any one juror determines any one mitigating factor or factors carry the weight of life, then that juror has the duty and obligation under the law to vote for a life sentence?” MR. DEEN: That’s not accurate –THE COURT: “Duty and obligation” is what flaws that. Bad question. MR. DEEN: That can (talking over) -MR. MORLEDGE: Well, it puts your own moral and personal judgment –It’s each individual’s moral or personal judgment –THE COURT: Now, these are the other two, which I can’t fault you for. The state has gone into similar things. “Based upon your own reasoned moral judgment, what is your view of the death penalty for a person convicted of knowingly killing a child under the age of fourteen under circumstances manifesting extreme indifference to the value of human life?” And then the same question with respect to life in ABSTRACT 343 prison. The reason I’m not accepting these is that it says, “Based upon your own reasoned moral judgment,” they are to follow instructions and –- (R 1301) MR. MORLEDGE: Your Honor –- I’m sorry, I’ll let you finish first. THE COURT: They are to follow instructions; and this invites them to be God and hopefully that’s not the case. Now –MR. MORLEDGE: May I respond? THE COURT: Go ahead. MR. MORLEDGE: Penry v. Lynaugh; also Mills v. Maryland; Franklin v. Lynaugh; California v. Brown, all succinctly state that it is their own moral and personal judgment in whether or not they give the death penalty or choose life without, Your Honor. THE COURT: Would it be –- The thing that also is faulty in this is, you don’t know the circumstances. This doesn’t give them the circumstances of the case and they won’t know that until they hear the case. MR. MORLEDGE: And, Your Honor, that goes to our point even more. If they’re so inclined to give death without even knowing the circumstances of the case then they’re substantially impaired -- (Talking over) (R 1302) THE COURT: All right, I’m going to ask the question: “Do you understand it never requires death penalty?” and “Do you understand each individual juror ABSTRACT 344 determines for him or herself what is mitigation?” I’m going to ask those two questions and those are the only two. And following that, I’ll ask you-all to exercise your strikes or not. And before we get to the next six, I’ll make a ruling on any further, without anybody present, any jurors present, I’ll make a ruling on what can be asked about the death penalty. And it should significantly change this. MR. MORLEDGE: Your Honor, I’d also like to voir dire the jury about possible race bias, possible immigration issues that we have, any type of publicity. I know you touched on those very briefly, but I’d like to go into several of those. THE COURT: I’ll certainly allow you to do that. MR. MORLEDGE: Thank you, Your Honor. And respect to those two questions, the life-qualifying question and the death-qualifying question, obviously, we would –- You’re not going to read it; I know you mentioned that –- (R 1303) THE COURT: No. And you objected (talking over). You’ve made your record. MR. MORLEDGE: We’d just ask, if you were to read it, to pause, elicit responses, and then allow me to go in to ask why. Thank you, Your Honor. [Open court] THE COURT: I’m going to ask two questions, further questions, regarding the death penalty process and then I’m going to allow counsel for the defense to ask ABSTRACT 345 you some questions unrelated to it. Do you understand that the law in Arkansas never requires a death verdict in any case? You understand that? Do you understand it, sir? EDDIE CURRY: No. I mean –THE COURT: Your name –- I’m sorry? EDDIE CURRY: If someone’s up for capital murder, you don’t –- I mean, that’s what I’m understanding. COURT REPORTER: I can barely hear him. THE COURT: All right. She can barely hear you. And your name is? EDDIE CURRY: Eddie Curry. THE COURT: That’s right, Mr. Curry, I should have remembered. So it’s your belief that if you convict then the death penalty is –- What should happen? (R 1304) EDDIE CURRY: Well, I think if a person is convicted for capital murder then, yes, death penalty is (inaudible). THE COURT: Could you consider life without parole? EDDIE CURRY: I suppose it would depend on the crime, how it was committed. THE COURT: Well, Mr. Curry, when you give me your answer –- I don’t ABSTRACT 346 doubt your answer –- I’m also –- I need to put on the record you hesitated. And, ultimately, it’s my responsibility -- The lawyers are advocates for either side -- I call balls and strikes. And in the Court’s judgment –- And I had that feeling to some extent after the prosecutor in voir dire, but now confirmed and I need to move this process along. I’m not going to belabor, I’m going to start making decisions. I know that this is probably not the case for you because the law in Arkansas never requires the death –- And if you lean heavily, one way or the other, then these are not the types of cases –- Other types of cases perhaps are, but this one is not. And so, I’m going to go ahead and excuse you at this time. And let me move on to the second question. I don’t want you to have to sit here if you’re not going to be chosen, so let me go ahead and excuse you -- you’re free to go -- and we will work with the remaining three. [Eddie Curry is excused by the Court.] (R 1305) THE COURT: Do you understand that how –-“how that works” is what you wrote here –- how the process works? It’s called mitigation. In other words, that the state is obliged to put on aggravating circumstances; the defense, if it can, put on mitigating circumstances. You know what “mitigating” is. It means things that aren’t a total excuse but that should be considered by you in your deliberations as to whether or not somebody deserves the death penalty, and that are favorable to them; ABSTRACT 347 and that each individual juror determines for him or herself what those circumstances are and how much weight to give it. You understand that that’s an individual decision that you make as jurors? And the nod is yes. Now, you may ask any of the other questions that you described up here, as long as they’re not related to this. MR. MORLEDGE: Okay. And, Your Honor, just to be clear –THE COURT: I’ll make this an exhibit in the case. MR. MORLEDGE: Thomas? (WHEREUPON, Court’s Exhibit 1 was introduced.) (R 1306) THE COURT: I can’t –- No more bench. MR. MORLEDGE: Okay. Just to be clear –THE COURT: You ask non-related death penalty questions and then we’ll go from there. Go ahead. COURT REAFFIRMS PROHIBITION ON COUNSEL ASKING DEATH PENALTY QUESTIONS MR. MORLEDGE: And, Your Honor, just so I’m perfectly clear, I’m not allowed to ask any life-or-death qualification questions? ABSTRACT 348 THE COURT: Absolutely. I’ve asked them for you, in my opinion –MR. MORLEDGE: Okay. THE COURT: –- and I’ve rejected the ones you wanted me to ask that I didn’t ask. Go ahead. MR. MORLEDGE: Thank you. Voir Dire by Counsel for Defense MR. MORLEDGE: Now, Mr. Claville -JUSTIN CLAVILLE: Claville. MR. MORLEDGE: Mr. Claville? Mr. Strickland; correct? CHRISTOPHER STRICKLAND: Yes. (R 1307) MR. MORLEDGE: And, Ms. Williams? Okay, let me ask you guys: Has anyone here been a part of -- a family member -- happened to personally -- any type of domestic violence? (No hands.) No? Okay. No close personal friend? Anything like that? (No hands.) Okay, the judge touched on just very briefly, publicity. I know this is, you know –JUSTIN CLAVILLE: I just moved here last August, so –MR. MORLEDGE: That’s perfect. Yes, sir? Mr. Strickland? CHRISTOPHER STRICKLAND: Haven’t heard anything. ABSTRACT 349 MR. MORLEDGE: Haven’t heard anything about it? Haven’t read anything about it in the newspaper? Haven’t seen anything online? CHRISTOPHER STRICKLAND: (Nodding head.) MR. MORLEDGE: Okay. Ms. Williams, I’ll ask you the same question. PATRICIA CARSON WILLIAMS: I’ve just seen the headlines in the paper, but I’ve not read –MR. MORLEDGE: Okay, just in the headlines. Let me ask you this: Has that influenced you in any way? Have you made a decision? PATRICIA CARSON WILLIAMS: No. MR. MORLEDGE: Okay. Have you spoken to anyone about the case? PATRICIA CARSON WILLIAMS: No. MR. MORLEDGE: Okay. No, you know, coffee room gossip, or anything like that, about this case? (R 1308) PATRICIA CARSON WILLIAMS: No. MR. MORLEDGE: Okay. The prosecutor alluded to some pictures that you might be seeing. Now, they are horrible pictures. Okay? I’ve been doing this for a while and they are really bad. All right? Now, with that being said, Ms. Williams, is that going to, in any way, shape, or form preclude you from participating, serving on this jury? ABSTRACT 350 PATRICIA CARSON WILLIAMS: I think I can deal with it. THE COURT: I can’t –- She can’t hear you. What? PATRICIA CARSON WILLIAMS: I think I can deal with it. MR. MORLEDGE: And even if they were of a small child? PATRICIA CARSON WILLIAMS: Yes. MR. MORLEDGE: Mr. Strickland? Mr. Claville? (R 1309) JUSTIN CLAVILLE: (Nodding.) CHRISTOPHER STRICKLAND: (Nodding.) MR. MORLEDGE: Now, I want to talk just for a moment about your feelings about illegal immigrants. Okay? Mr. Claville, let me start with you. JUSTIN CLAVILLE: I’ve lived down in Florida all my life and we had immigrants working on the berry farms. They worked good. I mean, I don’t have no problem with them -- I know they’re not supposed to be here, but they worked (inaudible) went home when it was time to go. MR. MORLEDGE: But your experience is –- You’ve had good experiences with anyone like that? JUSTIN CLAVILLE: Yes. ABSTRACT 351 MR. MORLEDGE: Mr. Strickland, let me ask you: What are your feelings? CHRISTOPHER STRICKLAND: I have no issue with any (inaudible). MR. MORLEDGE: Okay. Ms. Williams? PATRICIA CARSON WILLIAMS: I have no issues with that. MR. MORLEDGE: Okay. Wonderful. And do you guys know the difference between an illegal immigrant and a legal permanent resident? I see Mr. Claville nodding his head; Ms. Williams nodding head; Mr. Strickland –- Okay, Mr. Strickland, tell me what that would be. (R 1310) THE COURT: Where are you going with that? I thought they already told you –MR. MORLEDGE: Well, I just want to make sure they understand what it is. In fact, I’ll tell them, how about that? THE COURT: Is (talking over) the case, or something? MR. MORLEDGE: Well, Your Honor, I’m just trying to check for biases. THE COURT: I think they said they didn’t have any bias. I don’t even know the difference almost –MR. MORLEDGE: For one, you’re illegally here; the other one, the United States of America has let you be here. THE COURT: Okay. Go ahead. ABSTRACT 352 MR. MORLEDGE: Now, with that being said, you’re fine with that. Let’s say someone comes over here illegally and then later on down the road, gets legal permanent status. Tell me your feelings about that, Ms. Williams. (R 1311) PATRICIA CARSON WILLIAMS: (Inaudible). THE COURT: Your voice is low. Their voice is low. He wants to know if they’re here illegallyand later got legitimate status, do you have any problem with that? PATRICIA CARSON WILLIAMS: No. CHRISTOPHER STRICKLAND: No. JUSTIN CLAVILLE: No. MR. MORLEDGE: Okay. Thank you. Now, let me ask you this, Mr. Strickland, I see on your jury bio that you have a case pending. Let me ask: What’s that case that’s currently pending? CHRISTOPHER STRICKLAND: It’s between my ex-girlfriend. Credit card fraud. I mean, it has nothing to do with –MR. MORLEDGE: Are you the victim in that case? CHRISTOPHER STRICKLAND: Yes. Yes. MR. MORLEDGE: So you brought charges against your ex-girlfriend for using your credit cards illegally? ABSTRACT 353 CHRISTOPHER STRICKLAND: Correct. MR. MORLEDGE: Is Thomas Deen prosecuting that charge -- prosecuting that case here? CHRISTOPHER STRICKLAND: I’m not sure if he is or not. (R 1312) MR. MORLEDGE: Is it in this town? CHRISTOPHER STRICKLAND: Yes. MR. MORLEDGE: Gotcha. All right. And, Mr. Claville, did you fill out a jury bio? You said you just recently moved here? JUSTIN CLAVILLE: I got it in the mail, filled it out, but I never got it put in the mail, then I got a letter in the mail saying I needed to come up here. MR. MORLEDGE: So we don’t have it? JUSTIN CLAVILLE: Actually, I think it’s in my truck, to be honest with you. MR. MORLEDGE: Okay. Let me ask you this. These are just a couple of questions that were on the jury bio: What’s your occupation? JUSTIN CLAVILLE: ADC, Arkansas Department of Corrections. Work at the prison. MR. MORLEDGE: Okay. Gotcha. What’s your education? JUSTIN CLAVILLE: High school diploma. ABSTRACT 354 MR. MORLEDGE: Do you have any children? JUSTIN CLAVILLE: No children. I’m single. MR. MORLEDGE: You’re single, not married? Obviously. Prior jury experience? Do you have any? (R 1313) JUSTIN CLAVILLE: First time. I lived down in Florida for 25 years and never got selected; Icome up here, three months later, here I am. MR. MORLEDGE: Just lucky you, huh? JUSTIN CLAVILLE: Yeah, just lucky. MR. MORLEDGE: Gotcha. How long have you been working for the Arkansas Department of Corrections? JUSTIN CLAVILLE: Since August 23rd, I think. MR. MORLEDGE: Let me ask you this: Would the victim in this case being a two-year-old child have any bearing on your decision at the end of this? THE COURT: “Bearing”? MR. MORLEDGE: Okay. Let me clear it up. THE COURT: Obviously, that’s an element that has to be shown –MR. MORLEDGE: Absolutely. THE COURT: –- so “bearing” of course, but –MR. MORLEDGE: Gotcha. ABSTRACT 355 THE COURT: You’re trying to elicit implied or actual bias. Make your question fit that. MR. MORLEDGE: Okay. In fact, let me ask this question of you, Mr. Strickland: A two-year-old child is involved in this case. Okay? And I know that you have a two-year-old child. Okay? How is that going to affect you? (R 1314) CHRISTOPHER STRICKLAND: Well, depending on the evidence. MR. MORLEDGE: Tell me –CHRISTOPHER STRICKLAND: As far as swaying any decision, I mean, it’s strictly the evidence. MR. MORLEDGE: Give me a little bit more. What do you mean it depends on the evidence? THE COURT: Be more specific. What I mean to say is, it’s an element of the offense here that the child was of a certain age, so, naturally, it has a bearing, so that question -- Asked and answered. You want to know would it affect his impartiality. I assume that’s what you want to know. MR. MORLEDGE: Sure. THE COURT: Ask it in a way that gets that answer –MR. MORLEDGE: Okay. ABSTRACT 356 THE COURT: –- that he would not be a fair juror because the victim was two. CHRISTOPHER STRICKLAND: Absolutely not. MR. MORLEDGE: Okay. Do you have a little girl? Little boy? CHRISTOPHER STRICKLAND: I’ve got an about-to-be-three-year-old boy. (R 1315) MR. MORLEDGE: A little boy. Okay. You don’t think that would affect your decision-making process that you have a child close in age to this –CHRISTOPHER STRICKLAND: No. MR. MORLEDGE: All right, everyone here understands that the defense does not have the burden, whatsoever? Does everyone understand that? We don’t have to prove anything; we don’t have to put on any witnesses; we don’t have to get up and say a thing. The prosecution has the burden. That’s why they go first in the opening and that’s why they go last in closing because they’re the ones that have to prove it. Okay? Everyone’s nodding their head yes. Okay. So I’m asking you, presume Daniel innocent. Okay? That’s the law. Does everyone realize that? Who here –- Let me -- By a show of hands, who here thinks Daniel might have done something, had to have done something or he wouldn’t be sitting at that table right now? Anyone? ABSTRACT 357 JUSTIN CLAVILLE: Somebody had to do something –MR. MORLEDGE: I see Mr. Claville raised his hand that you think my client possibly, might have, probably did something –- (R 1316) THE COURT: Not what he said. MR. MORLEDGE: Okay. Tell me what you said –THE COURT: You can’t testify for the juror. MR. MORLEDGE: Your Honor, I was just trying to get my head around what he said. THE COURT: I understand. But, remember, my admonishment. And I’m not jumping on either -- What I’m saying is, if I’m going to let you-all ask questions, you’re going to have to respect that privilege or I’m going to cut it off next time. MR. MORLEDGE: Okay. Mr. Claville, you said, Well, he was charged with something; right? JUSTIN CLAVILLE: I’m saying obviously. He’s being charged with something. MR. MORLEDGE: And you understand he’s still innocent? JUSTIN CLAVILLE: Yes. MR. MORLEDGE: And he might have not have done a thing wrong? JUSTIN CLAVILLE: That’s true. ABSTRACT 358 MR. MORLEDGE: He could be improperly charged; right? JUSTIN CLAVILLE: Yes. (R 1317) MR. MORLEDGE: Okay, what I’m going to ask y’all to do is just keep in mind that Daniel is innocent until proven guilty. Okay? You promise me to hold the prosecution to their burden? You promise Daniel that you’ll hold the prosecution to their burden? Okay. Hold off making any decisions until the law has been given in this case? I see everyone nodding their head. And can y’all look at Daniel and promise him that you’ll give him a fair trial? Okay. That’s all I have, Your Honor. THE COURT: Very good. If you-all would stand outside the courtroom, and I’ll let you know in about two minutes if any of you are selected. [Group 2 exits the courtroom.] MR. MORLEDGE: And, Your Honor –THE COURT: You-all remain at your desks. It’s easier for me to hear you-all and deal with it at that point in time. MR. MORLEDGE: And, Your Honor, I do believe that the defense has some objections. THE COURT: I’ve got you, but this process has to go a certain way according to law. ABSTRACT 359 Mr. Deen, any strikes? First, with respect to –- I’m sorry, let me go down the list. With respect to Justin Claville, Mr. Deen? (R 1318) MR. DEEN: Good to the state. THE COURT: Defense? OBJECTION TO DEFENSE HANDICAPS IN MAKING A RECORD AND MAKING CHALLENGES MR. ROSENZWEIG: Your Honor, we would ask the Court to give us time so we can confer. THE COURT: No. MR. ROSENZWEIG: We have some objections to the panel and we need to make a record. You indicated to preserve our objections, not to contemporaneously interrupt you, and we need to make our record to the panel –THE COURT: Make it from standing right there. To what panel? MR. ROSENZWEIG: To this panel here, Your Honor. THE COURT: All right. MR. ROSENZWEIG: Your Honor, first, from a procedural standpoint because I’m operating at a handicap, because earlier when you called counsel up to the bench, I asked for permission to approach. You specifically said, no, only the ABSTRACT 360 counsel doing it; therefore, neither Mr. Leonard nor I were able to hear your rulings. We don’t know what your rulings were. And Mr. Morledge was having to conduct voir dire and listen, so he hasn’t been able to brief us as to exactly what your rulings were. And I would ask that you permit -- First, permit us to –- even if we’re not doing the voir dire –- to approach so we know what is going on in the case because I don’t have any idea what you –- (R 1319) THE COURT: Well, I’ll take that under advisement. Go to your next –MR. ROSENZWEIG: Your Honor, we move to quash this entire panel on several grounds. Your Honor, one, you, by calling it a death penalty trial -- And you asked the questions concerning whether they could give the death penalty, but you did not ask them any questions as to whether they could give life. And those are the type of questions that we asked in chambers; and we asked to consider them proffered for purposes of this and all succeeding panels as well, Your Honor; and, therefore, we do not know whether, for instance –- There was no question as to whether someone’s reasoned moral judgment would preclude them from considering a sentence of life without parole for the knowingly killing a child under the age of fourteen under circumstances –THE COURT: I know, but I ruled on it and explained my reasons. And the record was made up here –ABSTRACT 361 MR. ROSENZWEIG: Your Honor –THE COURT: –- so I’ve gone through all of this. (R 1320) MR. ROSENZWEIG: Your Honor, the general questions you asked just did nothing or were completely insufficient to obtain those rulings –THE COURT: That’s an appellate decision. You’re not going to persuade me of that now and I’m not going to change my ruling. MR. ROSENZWEIG: Your Honor -- Your Honor, I understand, but for the record, I’ve got to state it again. This is what Morgan requires, Your Honor. THE COURT: You don’t have to say it ten times. MR. ROSENZWEIG: Well, I think I do for the supreme court or they’ll accuse me of waiving it. THE COURT: Say it ten times? MR. ROSENZWEIG: Yes, sir. THE COURT: I was hoping you would say that. MR. ROSENZWEIG: Anyway. Your Honor, I mean, I’m just trying to –I’m trying to make a record and make sure that -THE COURT: And I’ve never had a problem with that. The Court has some control or has control over the proceeding, and how we proceed, and whether a witness or a lawyer is simply being repetitious and filerbustering. And in this case, ABSTRACT 362 you’ve mentioned more than several times, and I’ve made the decisions that I’ve made, and there’s no point in beating a dead horse. These questions that you-all posed, I accepted a couple of them. I rejected the rest. (R 1321) The next panel, the state will not be asking many of the questions that they asked before. MR. ROSENZWEIG: Okay. THE COURT: And so, right now, this Court has the right –- and should –to ask how you are on Justin Claville. And you’re either going to have to say “good” or you’re going to have use a perempt. MR. ROSENZWEIG: Your Honor, I haven’t finished my objections yet. THE COURT: Your objections have already been taken care of –MR. ROSENZWEIG: No, I’ve still got more coming to quash the whole panel THE COURT: I’ll give you a couple of minutes. MR. ROSENZWEIG: Thank you, Your Honor. THE COURT: But you’ll have to get it done in that amount of time. (R 1322) MR. ROSENZWEIG: Well, I can speak fast. Your Honor, with regard to this –- Well, you say you’re relying on the Miller case. The Miller case, however, is distinguishable and -- They said it wasn’t an abuse of discretion there because they ABSTRACT 363 had a ten-page questionnaire. We have no such questionnaire. You denied us the questionnaire; therefore, we need the voir dire process to ascertain the beliefs. On this panel, the state was allowed to do the life-death voir dire; and the defense was not. Your Honor, in addition, the prosecutor made references to mental retardation as mitigation. It’s not; it’s a preclusive issue. The other question had the effect of denigrating all mitigation. He was always misstating the rule of credibility, where he was trying to elicit a position from them that they would not consider the fact that she pled guilty to a felony, as to her credibility, which the jury instructions and the law specifically permit consideration. Of that –THE COURT: I’m already in agreement with that. And I’m way down the road from where you. I’ve already made the decision that he can’t do that anymore. He misstated the rule on credibility and –- I understand all of that. I’m way down the road. MR. ROSENZWEIG: Well, I’m glad you put that on the record. (R 1323) THE COURT: Just go ahead because I’ve –- I’ll give you about another one minute. MR. ROSENZWEIG: Okay. Your Honor, I hope –- Anyway, I think we’ve stated our record under Morgan. May we be excused from having to repeat Morgan ABSTRACT 364 at every opportunity then? Did I hear that? And then we have a situation here where this panel was death qualified, so it was not life qualified. And we also object to the Court’s use of the terminology “this is a death penalty case” because it implies –- By the way the Court’s saying it, it implies that the death penalty is inevitably going to be at issue in the case. It may or may not, depending on where the jury gets. And, again, this shows, again, why we need the –- Do the type of voir dire questions we had. And, again, I reiterate our request that all counsel who will be participating in voir dire have the opportunity to come up so we can hear, at the very least, hear what your rules are. THE COURT: All right, your time is up. Now, your decision with respect to Justin Claville? MR. ROSENZWEIG: Okay, you denied all of our cause challenges –- Our motion to quash; correct? THE COURT: I denied that, yes. MR. ROSENZWEIG: Okay. I just want to make sure the record’s clear. You denied that. (R 1324) MR. MORLEDGE: Your Honor, obviously, the whole panel –- We would challenge for cause, but I know you denied that –- (talking over) ABSTRACT 365 THE COURT: Gentlemen, let me stop you there –- Let me stop you there and –MR. MORLEDGE: Your Honor –THE COURT: Don’t interrupt me. I have let you go because I wanted to, to some extent, demonstrate for appellate purposes how repetitious you are. I didn’t let you go because (inaudible). And I think I was wise in doing that because I revealed on the cold record just how much filibustering and repeating that I’ve had in this case. And the appellate courts read many of these transcripts; they can make their own judgment as to people’s motives because you define yourself by what you say and how often you say it. Now, I will tell you not to repeat yourself anymore. That will be the only warning I give. With respect to Justin Claville, you will either say “good to the defense” or you will use a perempt. Justin Claville? MR. MORLEDGE: He’s good to the defense, Your Honor. (R 1325) THE COURT: All right. Then let’s go to Christopher Strickland. MR. DEEN: Good to the state. MR. MORLEDGE: We’d ask to strike, Your Honor. THE COURT: All right. Mr. Strickland is stricken. Patricia Williams? MR. DEEN: The state exercises a peremptory as to Ms. Williams. THE COURT: All right. Let the record reflect, this process began at 9:00; ABSTRACT 366 it’s 12:30. We have our first juror. That needs to be in the record. Now, you will notify –- Tell the other two they’ve been excused. You may bring Mr. Claville back in the courtroom. [Justin Claville returns to the courtroom.] THE COURT: Come on up, Mr. Claville. Mr. Claville, you have been selected as a juror in this case. If you will be sure and leave your –- Do you live here in town? JUSTIN CLAVILLE: Yes, sir, outside. THE COURT: Write his address down. JUSTIN CLAVILLE: I can get it wrote down –- Do you want me to write it on down? THE COURT: What is it? (R 1326) JUSTIN CLAVILLE: 146 James Brown Lane, Monticello, Arkansas. THE COURT: And what’s your phone number? JUSTIN CLAVILLE: (870)224-3750. THE COURT: Very good. If you-all, if you would, be back here in the morning at a quarter til nine. JUSTIN CLAVILLE: Can I have a note? I work at the prison. I’m supposed to be at work tonight. They let me off early last night to make it up here in the ABSTRACT 367 morning. Is there any way I can get a note that I can fax to them to let them know I won’t be there tonight –THE COURT: Sure. JUSTIN CLAVILLE: –- because I’ve got to be here first thing in the morning? THE COURT: You bet. You go –- She’s going to -THE CLERK: (Inaudible) THE COURT: Yeah, go down and get him a note. In fact, you ought to have some notes done up where you can sign up here. And I’ll see you at 8:15 in the morning. We’ll see if we can get this trial started then. JUSTIN CLAVILLE: 8:15 or 9:00? 8:00? THE COURT: I’m glad you got selected. JUSTIN CLAVILLE: I can be here at 8:15. THE COURT: I know. I can too. Okay, quarter til nine. (R 1327) All right, the Court is going to be in recess for, oh, let’s say until –- I’m going to be in recess until one o’clock. This is what the Court’s –- I’ll reflect on it over the noon hour, but both sides want to argue their case to the jury, indirectly, through voir dire. And as I’ve said, I’ve let you do it in order to establish the fact that that really in effect is what you’re wanting to do. It can come under the guise of getting ABSTRACT 368 information to do peremptory challenges, but that’s really not it. The point being is that one point of the defense is well taken, out of the several, and that is that Mr. Deen was basically arguing, as he did initially, that –- Put it on me if you think she did as much as he did; or Put it on me if you think that she’s getting off too light. While comparative punishment, that is, using what one person gets in punishment as a mitigator has been rejected in most jurisdictions; and that’s the reason there’s no pattern instruction on it. It is, to some extent -- First of all, the jury is not effected by it. They can put down whatever mitigator they want to. (R 1328)They don’t have to be instructed on it. And whether or not, the, a witness, any witness, she is credible, or he is credible, is best summarized by the instruction, which means -- also includes -- Do they have an interest in the outcome? And certainly with a punishment stage trial still coming up, defense counsel can claim whether the jury accepts it or not that she has an interest in the outcome of her testimony or the case. So the point being is that I’m going to have to –- If we’re going to get a jury in this case -- I will let you know when you come back at one o’clock -- I’ll use the questions that I have approved up here that the defense has submitted. I will ask non-death penalty questions. I will allow the state only to ask those two that it had approved in that other deal; it will be cutoff then. There will be no questions further than that from the state’s standpoint nor anything about needing to scapegoat the prosecutor if things ABSTRACT 369 don’t –- If it appears to the jury that she’s getting off too light, to put it bluntly, because they’re entitled to consider it for any reason. They can consider it, if they wish, as a mitigator, though there’s no instruction on it; and defense can argue it. And that’s the deal. And I’ll be back in about thirty minutes and you-all be in the courtroom ready to go. Thank you. MR. ROSENZWEIG: Your Honor -- (R 1329) THE COURT: We’re in recess. MR. ROSENZWEIG: I have one other thing. May I be heard? THE COURT: You can say it when I get back. We’re in recess. (Noon recess) [Open court, jury not present.] THE COURT: All right, we’re back on the record after a brief recess. Mr. Rosenzweig, you may speak –MR. ROSENZWEIG: Yes, sir –THE COURT: –- from the table. MR. ROSENZWEIG: Yes, sir. THE COURT: From the table. MR. ROSENZWEIG: Okay, Your Honor, a couple of things: one, is you took ABSTRACT 370 –- Before the recess, you took under advisement the issue of whether all counsel who were going to participate in voir dire may be able to hear the rulings when you’re making them from the bench. (R 1330) THE COURT: Whenever practical, I will, but there won’t be any more sidebars anyway because we have the ability to excuse people from the courtroom, so go ahead. MR. ROSENZWEIG: The second thing, Your Honor, you made a statement of announcing that comparative sentencing was not an issue with penalty; and I want to put on the record we have other two cases that say something different. One is (inaudible) -- Late ‘70s, early ‘80s. One is State vs. –THE COURT: I didn’t say that -MR. ROSENZWEIG: (Talking over) THE COURT: I didn’t say that. I said that it can be a mitigator. I said there wasn’t a pattern instruction on it in this state. And I’ve always believed that that would be argued throughout the trial; and that’s another reason why I’m not going to allow Mr. Deen to tell the jury to scapegoat him if the jury finds that she is getting off too light. That has been the consistent position of this Court throughout, so the issue is whether or not at the conclusion –- I haven’t decided –- whether or not there’s evidence where there would be some type of a prudent pattern instruction, but we’re ABSTRACT 371 not there at that point. But I specifically said that the jury can put down any mitigators it wants to. And, obviously, if it put that down as a mitigator following your argument to the jury and they accepted that based upon the proof –- we don’t know what that will be –- then any court would count it. (R 1331) Now, anything else because I’m going to bring these jurors in. COURT REAFFIRMS ITS HOLDING THAT ONLY IT WILL ASK DEATH PENALTY QUESTIONS. MR. ROSENZWEIG: Do I understand that you’re going to ask all of the death-penalty-type questions? THE COURT: I’m going to ask those that have been submitted by the defense, the two that were submitted. I will ask the two that Mr. Deen wishes to ask in each case. Beyond that, I will ask them all. MR. ROSENZWEIG: And the other questions that we may ask in voir dire are so-called non-death –THE COURT: Non-death questions such as: Will you hold it against him if he’s an illegal immigrant, et cetera? Those, you’re permitted to ask, yourself. As long as counsel –- The record will reflect how many questions there were about that; and also questions about presuming the defendant innocent –- I have already covered ABSTRACT 372 those with the jury in the initial voir dire; and they will not be recovered. In other words, I’m not going to allow either side to get the jury to go into matters that have already been covered. (R 1332) Now, I’m calling in the next six, and those six are: Joseph Nowlen, Anthony Rodriguez, Natasha Jackson, Kenneth Adair, Claude Vaulner, and Bettye Gragg. COURT RESTRICTS EACH SIDE TO THREE-TO-FOUR -TO FIVE MINUTES PER PANEL OF SIX And I’m going to allow each side approximately three to four minutes on their voir dire. Use it as you see fit. Following mine on the –May I have your questions on the two questions on that –MR. DEEN: The (A) and the (B) are attached from that page. MR. ROSENZWEIG: Your Honor, did I hear something that you said had a time limit on it? THE COURT: I said –- Go ahead and have a seat. Yeah, you can return to your seat to hear it. I said I’ll allow you-all approximately five minutes. Use it as you see fit. [Group 3 enters the courtroom.] VOIR DIRE OF SECOND PANEL OF SIX (GROUP 3) ABSTRACT 373 Voir Dire by the Court (R 1333) THE COURT: Very well. You-all have already heard my initial questions to the entire panel about the presumption of innocence and that the defendant is presumed innocent until proven guilty beyond a reasonable doubt based upon the state’s case. And I believe all you said that you did. That will not be revisited. The first question I have for you has to do with possible witnesses called by either side. I have a list of those witnesses beginning with the state’s witnesses then the defense witnesses. Listen to the names as I call them. If any of you are personally acquainted, know them well, such that it would affect your, you know, judgment, it shouldn’t be the case that you’re on, then I want you to raise your hand and I’ll ask you to identify yourself. If you don’t recognize the names and you’re not close then no need to raise your hand. Joey Earnest, Brenda Earnest, Celita Brooks, Robert Jacobs, Carolyn Stuard, Clayton Moss, Scott Woodward, Lisa Channell, Mary Simonson, Stephen Erickson, Victoria Pedraza, Tim Nichols, Jeff Martin, Scott Carson, Mark Gober, Dr. Joao Ramos. (No hands.) I see no hands. ANTHONY RODRIGUEZ: I know Mark Gober. THE COURT: Your name? ANTHONY RODRIGUEZ: Anthony Rodriguez. ABSTRACT 374 THE COURT: Mr. Rodriguez, are you a close personal friend of his? ANTHONY RODRIGUEZ: I mean, he knows who I am and I know who he is, but as far as hanging out with him, no. (R 1334) THE COURT: Very well. I don’t know what Mr. Gober would be testifying to, but that certainly –- Would you, just because you know him, give greater weight to his testimony than you would any other witness, or would he be subject to the same rules in your mind? ANTHONY RODRIGUEZ: Can you repeat it? I mean, I don’t know –THE COURT: Would that bias you either for or against him –ANTHONY RODRIGUEZ: No. THE COURT: –- on what he had to say? In other words, would you have a bias to believe him if he were contradicting, or would you treat his testimony like any other witness? ANTHONY RODRIGUEZ: I’d treat it like anybody else. THE COURT: All right. That’s all I needed to know. (R 1335) The issue is not whether you know somebody; it’s whether or not, through your association –- And I never ask: Can you disbelieve them because you know them? or Do you tend to believe them because you know them? What difference does it ABSTRACT 375 make if you couldn’t consider them like you would anybody else? Because I don’t ask that question because I don’t want the other jurors to hear, you know, know how you stand. All right. Now, with respect to the defense witnesses: Corey Atkins; Sgt. Mike Reynolds, he’s from Warren; Mark Shull from El Dorado; Tim Coke from Marmaduke; Ladell White from Monticello; and Dr. Pablo Stewart, he’s from out of state. (No hands.) I see no hands on that. Very well. Are any of you close personal friends with any of the lawyers in this case? Any of the defendant? (No hands.) Very well. Sorry. Too many pages up here. Mr. Deen, those two questions you said attached that you brought up here with a cover sheet? MR. DEEN: There’s a photocopy of that page –- It’s right there, Judge: (A) and (B). THE COURT: Okay. I didn’t –MR. ROSENZWEIG: Your Honor, may I see the questions that he’s brought up there? THE COURT: They’re the ones that he asked before. MR. ROSENZWEIG: And you have ours? You have ours up there? (R 1336) ABSTRACT 376 THE COURT: Yes. I think that’s what I asked for. Let me ask you, first, this question. This is a case that’s referred to as a capital murder case. That simply means that the defendant is charged with capital murder. It’s a way of describing it. It means, simply, that, if convicted –- and you know you must find guilt, first, beyond a reasonable doubt –- if convicted, one of the possibilities under the law, along with life without prison [sic], is death. Do any of you have any strong views about the death penalty that would prevent you, if that were a possibility, from impartially considering all the evidence in this case? CLAUDE VAULNER: (Raised hand.) THE COURT: Your name? CLAUDE VAULNER: Claude Vaulner. THE COURT: You’re –CLAUDE VAULNER: Claude Vaulner. THE COURT: Mr. Vaulner. All right. You believe that if death were even a possibility that that would affect your ability to impartially consider all the evidence? CLAUDE VAULNER: Yes, sir. THE COURT: Thank you. You are free to go. (R 1337) ABSTRACT 377 [Claude Vaulner exits the courtroom.] MR. ROSENZWEIG: Your Honor? Your Honor, I would object that that’s not a sufficient question and that we be allowed to further inquire at the appropriate time, so I ask that he be reinstated back on the panel. THE COURT: I believe I’m absolutely correct. Thank you very much. All right, any others? Very good. BETTYE GRAGG: Judge? THE COURT: Yes, ma’am? BETTYE GRAGG: I have mixed feelings. THE COURT: Explain that. I know you, Ms. Gragg. Let the record reflect, Ms. Gragg is the one speaking. Go ahead. BETTYE GRAGG: I would like to think that I knew exactly what happened before I made that decision, and I know that couldn’t be possible. THE COURT: What do you mean “couldn’t be possible”? BETTYE GRAGG: I mean, I know the evidence will be presented, but I didn’t see it –- I feel that it would be a little difficult for me to make that decision. THE COURT: All right. You’re not saying that you couldn’t, is that due to your –- First of all, is that due to your beliefs about the death penalty? (R 1338) BETTYE GRAGG: Possibly, yes. ABSTRACT 378 THE COURT: All right, let me ask you this: Are you saying it might affect or it likely would affect your impartially considering all the evidence in the case, the fact that the death penalty was a possibility? BETTYE GRAGG: Possibly. THE COURT: “Possibly.” I think “possibly” is a sufficient reason for me to excuse you. Any others? And when I say “viewing all the evidence in the case,” I’m talking about the evidence at the guilt phase where you decide whether someone’s guilty or innocent. Would your views on the death penalty affect your ability to impartially consider that, Ms. Gragg? BETTYE GRAGG: I think I could consider that part. MR. ROSENZWEIG: I’m sorry, Your Honor, I –THE COURT: She said –- Did you hear her? MR. ROSENZWEIG: I did not hear her. THE COURT: She said she thought she could sit at that part, therefore, I’m not going to excuse her. (R 1339) Yes, ma’am, your name? NATASHA JACKSON: Natasha Jackson. THE COURT: Ms. Jackson, same question to you: If Mr. Pedraza is found ABSTRACT 379 guilty of capital murder, if the two possibilities are life in prison without parole and the death penalty, would the fact that the death penalty would be a possibility, would that affect your ability to impartially consider the evidence at the previous stage of the guilt phase where you decide whether or not someone’s guilty or not? NATASHA JACKSON: Yes, sir. I don’t believe in the death penalty. THE COURT: Very well. Any others? (No response.) Then, Ms. Jackson, I will go ahead and excuse you. MR. ROSENZWEIG: Your Honor, I make the same motion as I did –THE COURT: I know that. And let the record reflect, Mr. Rosenzweig had requested that the Court allow him to ask questions, further questions, before the excuse is made; and the Court denies it. All right, Ms. Jackson, you’re free to go. [Natasha Jackson was excused by the Court and exited the courtroom.] (R 1340) THE COURT: Four more questions and then I’ll likely be through. Do you understand that the law in Arkansas never requires a death verdict in any case? Do you understand that that is the law? You are not required in any case to return a guilty verdict. Do any of you have any problem with that, understanding that, and knowing it? (No response.) Okay, no hands. Do you understand that there are certain things that –- I said, “Do you ABSTRACT 380 understand” –- Do you understand how the penalty phase works, if you get to that point, that there are mitigators, meaning things that may operate in favor of the defendant and that would cause you not to assess the death penalty, and that each individual juror determines, individually, for him or herself, what is mitigation –- that means things favorable to the defendant –- and how much weight to give it in your decision? Do you understand that each individual juror must make that decision? The Court, for these remaining four jurors, is not going to ask the questions (A) and (B) after reading the entire deal. The Court will certainly hear from the state following the process on this panel as to why the Court should, based upon this particular case, and I’ll put my reasons on the record then. But for the purposes of this panel, I’m going to withhold those questions. Now, does the state have any questions? MR. DEEN: No, sir. (R 1341) THE COURT: Defense? MR. ROSENZWEIG: On the death penalty issues? THE COURT: I’ve already given my ruling on that. I’ve asked all the questions on that. MR. ROSENZWEIG: Well, I have a number of other questions to ask. THE COURT: Then go ahead. ABSTRACT 381 Voir Dire by Counsel for Defense MR. ROSENZWEIG: Ms. Gragg, let me ask you –- We apparently can’t find –- Don’t have a jury biography –- At least we don’t have one of the biography sheets on you –- Can I ask what you do? BETTYE GRAGG: Yes. MR. ROSENZWEIG: Yes, ma’am, what do you do? BETTYE GRAGG: (Inaudible) test scores. MR. ROSENZWEIG: For the Monticello Schools? BETTYE GRAGG: Yes. MR. ROSENZWEIG: (Inaudible), if they’re married or not. Are you married? (R 1342) BETTYE GRAGG: Yes. MR. ROSENZWEIG: And what does your husband do? BETTYE GRAGG: Right now he’s retired. MR. ROSENZWEIG: What did he do? BETTYE GRAGG: He was with Clearwater –-Potlatch. MR. ROSENZWEIG: Thank you. During the trial, witnesses will get up on the witness stand and they will answer questions. Before anyone gets up on the witness stand, they’re going to raise their right hand. They take an oath. I think you ABSTRACT 382 guys took an oath earlier today. Do any of you believe –And let me ask you this, Mr. Rodriguez, just to pick on your for a second: Do you believe that taking the oath automatically creates some sort of a truth dust or truth halo on people that are automatically going to tell the truth? ANTHONY RODRIGUEZ: No. MR. ROSENZWEIG: And can you think of reasons why someone wouldn’t tell the truth? ANTHONY RODRIGUEZ: Fear. MR. RODRIGUEZ: Excuse me? ANTHONY RODRIGUEZ: Fear. MR. ROSENZWEIG: Fear? Okay. Any other reasons? (R 1343) ANTHONY RODRIGUEZ: (Inaudible). MR. ROSENZWEIG: Mr. Nowlen, can you think of a reason other than fear why someone may not tell the truth? JOSEPH NOWLEN: Might affect them. MR. ROSENZWEIG: Okay. And, Mr. Adair? KENNETH ADAIR: To protect somebody else. MR. ROSENZWEIG: And, Ms. Gragg? BETTYE GRAGG: Fear, protection. ABSTRACT 383 MR. ROSENZWEIG: Okay. Anyway, you understand that if you’re selected on a jury, you and the other members of the jury, determine the credibility of the witness. You decide. The judge doesn’t decide who to believe. We don’t decide who to believe. You decide who to believe. Any problem with that? Does anyone have a problem with the idea that you, if you’re selected on the jury, will be required to decide who’s telling the truth or not? Do you think –- Ms. Gragg, I’ll just pick on you. Do you have any feeling –- Would that put you in a little discomfort trying to decide who’s telling the truth or not? BETTYE GRAGG: It could bring some discomfort. I think any (inaudible) situation may do that. (R 1344) MR. ROSENZWEIG: And you would look at the motivations of people. Do you have any problems looking at the motivations and deciding whether someone’s telling the truth? BETTYE GRAGG: No. MR. ROSENZWEIG: And the judge will give you an instruction that you can consider anything, any interest that he or she has in anything about the case. Do you have a problem with that, Mr. Rodriguez? ANTHONY RODRIGUEZ: No. MR. ROSENZWEIG: Now, there’s a jury room back there and if you’re ABSTRACT 384 selected on the jury, you and the other members of the jury, go back there and you deliberate. You don’t vote out here like the figure-skating judges in the Olympics, when you press a little button or something like that; you go back there and deliberate. Now, if you are in there listening to the other members of the jury and you just can’t go along on the question of whether someone is guilty or not, and you just can’t go along with the majority, whatever that might be, would you feel any inability to stick to your convictions, stick to your conscience, Mr. Nowlen? JOSEPH NOWLEN: Can you repeat that? (R 1345) MR. ROSENZWEIG: Okay. In the guilt phase of a trial when you’re deciding whether someone is guilty of a crime or not –- either guilty or not guilty –any verdict must be unanimous. That means all twelve of you must agree. Anyone have any problem with that as the law? (No hands.) Have any of you served on a jury before? Mr. Adair, have you served on a jury before? KENNETH ADAIR: Back years ago. MR. ROSENZWEIG: Was it a civil or a criminal case? KENNETH ADAIR: I think it was a criminal case. MR. ROSENZWEIG: Okay, on a criminal case, the jury verdict must be ABSTRACT 385 unanimous. That’s not necessarily so in a civil case; that’s about money. But when we’re dealing with someone’s life or liberty, the verdict must be unanimous. All twelve must vote to convict; or all twelve must vote to acquit, if the state hasn’t proved its case. Do you have any problem with that? Now, let’s say the vote is nine, or one away, and you’ve sat there and you’ve listened to everyone, and you just can’t go along with the majority, whatever that might be, would you be able to stick to your convictions and say, No, I just can’t go along with that? Is that right? They have to take it down orally. She can’t take down a nod. KENNETH ADAIR: Oh, I’m sorry. Yeah, I can stick to it. (R 1346) MR. ROSENZWEIG: Ms. Gragg, Mr. Rodriguez, and Mr. Nowlen? BETTYE GRAGG: Yes. ANTHONY RODRIGUEZ: Yes. JOSEPH NOWLEN: Yes. MR. ROSENZWEIG: Now, all twelve of you must, you know, have to agree. Now, what are you agreeing on? Well, the judge read to you, at the beginning of this trial, what the charge was that Daniel Pedraza knowingly with extreme indifference to the value –- under circumstances manifesting extreme indifference to the value of human life –- caused the death of Aubriana Coke, a child under a certain age. Okay, each of those things are what are called elements. “Knowingly” is an ABSTRACT 386 element; “under circumstances manifesting extreme indifference” is an element; the age of the child –- “Cause” is an element. The age of the child is an element. Now, Mr. Deen and his associates are going to have to prove to you, all twelve of you, every element of the case, not three out of four, four out of five, or five out of seven, or however many elements there are. (R 1347) Now, Mr. Adair, let me pick on you again. If Mr. Deen doesn’t prove all of the elements of the case, what is your vote going to be? KENNETH ADAIR: That’s going to be kind of hard for me to say because my belief is if a child is hurt, somebody has got to be held responsible for it. MR. ROSENZWEIG: Okay. And that’s a fairly, deeply held belief? KENNETH ADAIR: Yes. MR. ROSENZWEIG: So am I hearing you that if a child was hurt, you’re going to have to convict someone because a child was hurt? KENNETH ADAIR: Somebody’s got to be held responsible for that child. MR. ROSENZWEIG: So if Mr. Deen picked out Mr. Pedraza as the person to hold responsible, do I hear you saying you’re going to –- That’s who you’d pick out too? KENNETH ADAIR: If he was in charge of that child at the time that this happened. (R 1348) ABSTRACT 387 MR. ROSENZWEIG: That means he’s guilty? That means you’re going to find him guilty? KENNETH ADAIR: Yes, I imagine so. MR. ROSENZWEIG: Okay. Ms. Gragg, let me ask you this: What’s your feeling with regard to the remarks that Mr. Adair just made about children, about a child? BETTYE GRAGG: The evidence would have to be there for me to say yes. MR. ROSENZWEIG: But if the person was there –- Let’s just say the person was there, am I hearing you, that you were going to find him guilty just because he’s there? BETTYE GRAGG: No. MR. ROSENZWEIG: And, Mr. Rodriguez, what’s your feeling with regard to what Mr. Adair said? ANTHONY RODRIGUEZ: Need evidence. MR. ROSENZWEIG: Now, if you feel that the child was, you know, hurt, someone’s got to pay for it? Is that –ANTHONY RODRIGUEZ: How old was it? MR. ROSENZWEIG: Excuse me? ANTHONY RODRIGUEZ: He just said it was under fourteen. ABSTRACT 388 MR. ROSENZWEIG: Well, we’re going to find out the child was a very young child about two years old. ANTHONY RODRIGUEZ: Well, somebody did. A two year old just doesn’t die. (R 1349) MR. ROSENZWEIG: I’m sorry? ANTHONY RODRIGUEZ: A two year old just doesn’t die. MR. ROSENZWEIG: I understand –- (talking over.) ANTHONY RODRIGUEZ: So somebody’s responsible. MR. ROSENZWEIG: I understand what you’re saying. Now, the point is, are you going to say, you know, If that child died and you were in the same house with that child, you are guilty? ANTHONY RODRIGUEZ: You’re saying he’s the only person in there? I don’t have the evidence. MR. ROSENZWEIG: Well, I understand that and that’s why I’m asking –Before you’ve heard the evidence is what I’m saying. Do you feel that deciding that the responsibility for the death of the child requires a lower standard of proof than if the same happened to an adult? That may be a legalese question. ANTHONY RODRIGUEZ: I mean, I understand what you’re saying. (R 1350) ABSTRACT 389 MR. ROSENZWEIG: Okay. What’s your feeling? ANTHONY RODRIGUEZ: Possibly, yes. MR. ROSENZWEIG: Okay, Mr. Nowlen, what’s your feeling on what we’re –JOSEPH NOWLEN: I’m a parent of a two-year-old kid –MR. ROSENZWEIG: I’m sorry, sir? JOSEPH NOWLEN: I’m a parent of a two-year-old kid, so I know what goes on. And there won’t have to be a whole lot of evidence for me to make a decision. MR. ROSENZWEIG: Okay. I don’t want to put words in your mouth, but what I’m hearing from you is that you’re not going to hold Mr. Deen to the same burden of proof you would if this was an adult? JOSEPH NOWLEN: It’s a whole lot different when you’ve got a two-yearold kid that can’t fend for himself. The evidence has to be there. I’m not just going to make a decision without evidence. MR. ROSENZWEIG: Well, I understand, but we also have what are called burdens of proof; and you can have a burden, you know, a bar this high (indicating) or a bar this high (indicating). And, for the record, I’m raising my hand above my head. If the bar is this high, in a regular case, involving, say, an adult, are you saying that the bar which is about my waist level would be lower if it’s a child? (R 1351) ABSTRACT 390 JOSEPH NOWLEN: (Inaudible). MR. ROSENZWEIG: Now, you’ve heard my questions about the elements of the case. Now, you know, these different things are elements and the judge will give you definitions, for instance, on –- “Knowingly” means practically certain that conduct will cause such a result. I think that’s close to what the legal phraseology is. The state has to prove every element. In this case, there’s probably four or five. Now, I had asked Mr. Adair whether he would hold the state to making sure every element was proven beyond a reasonable doubt. Let me ask you this, Mr. Nowlen: If the state didn’t prove one of those elements beyond a reasonable doubt, what would your verdict have to be? JOSEPH NOWLEN: It would depend on which one it was, I guess. MR. ROSENZWEIG: Okay. Okay, Mr. Rodriguez? ANTHONY RODRIGUEZ: The same. MR. ROSENZWEIG: The same. Depends on which one it was? In other words –- Okay. Now, if –- And I think I asked you –- Ms. Gragg, did I ask you that question? I’m not sure whether I did or not. (R 1352) BETTYE GRAGG: Which question? MR. ROSENZWEIG: About the elements –- Did you hear these gentlemen here? ABSTRACT 391 BETTYE GRAGG: Yes. MR. ROSENZWEIG: Okay. Now, I expect that during this trial, the prosecuting attorneys will display some photographs of a dead child, that they’re probably going to be fairly distressing –- They’d probably be distressing to anyone. Now –- And if you’re selected as a juror, that’s going to cause you to have to look at those photographs. Now, is that going to cause you concern about your ability to be fair just by looking at the photographs? Do any of you –- What’s your feeling on that, Mr. Rodriguez? ANTHONY RODRIGUEZ: I mean, I work as a nurse in the emergency room so I see a lot. I don’t think –- Are you saying, if I looked at those would it cause me to have anger, or something like that, or –MR. ROSENZWEIG: Just what would your feelings be? I mean, that’s what we’re trying to find out. This is the only chance you have to talk back to us, and so –- There’s no such thing as a wrong answer. All we’re looking for is truthful -Whatever –- That’s what we need from you. Let me just ask it this way: What, just by seeing a body of a dead child –- (R 1353) ANTHONY RODRIGUEZ: That’s what I’m saying, I work in the emergency room, so I see it often. MR. ROSENZWEIG: Are you saying that would not cause you any special ABSTRACT 392 distress? Is that –ANTHONY RODRIGUEZ: No. MR. ROSENZWEIG: How about you, Mr. Nowlen? JOSEPH NOWLEN: It probably would. MR. ROSENZWEIG: It probably would? And, Ms. Gragg? BETTYE GRAGG: It probably would. MR. ROSENZWEIG: And, Mr. Adair, I assume it would from your earlier comments. KENNETH ADAIR: Yes, it would. MR. ROSENZWEIG: Now, let me ask you this: Do any of you –- Are any of you in, yourself, or have family members, or close friends, who are in the Army or the National Guard? Do any of you –THE COURT: I’m going to give you another minute and then –MR. ROSENZWEIG: Do any of you know anyone who went and fought in Iraq? ANTHONY RODRIGUEZ: I know a couple of people that went. MR. ROSENZWEIG: You do? (R 1354) ANTHONY RODRIGUEZ: (Inaudible). MR. ROSENZWEIG: Have any of you, Ms. Gragg, or, Mr. Adair? ABSTRACT 393 BETTYE GRAGG: I knew someone. MR. ROSENZWEIG: Have any of you had discussions with persons over their experiences in Iraq? (No hands.) Now, as you can tell from our client’s name and, I believe, probably from his appearance, too, he is a Mexican descendant. Now, the issue of Mexican, Mexico, immigration, and all the other things associated with that are often hot topics. I want to ask you very briefly about that. Now, Mr. Adair, would the fact that Mr. Pedraza is a Mexican descendant cause you any problem in being fair? KENNETH ADAIR: No, sir. MR. ROSENZWEIG: How about you, Ms. Gragg? BETTYE GRAGG: No. MR. ROSENZWEIG: How about you, Mr. Rodriguez? ANTHONY RODRIGUEZ: No. MR. ROSENZWEIG: And, Mr. Nowlen? JOSEPH NOWLEN: No. THE COURT: All right, that’s your time. Let me do this -- (R 1355) Voir Dire by the Court THE COURT: I don’t think it’s going to change your mind. Let me ask you ABSTRACT 394 this. He asked you-all about whether you would hold the state to the burden that the law requires; and that is proof beyond a reasonable doubt that –MR. ROSENZWEIG: Your Honor, I’m sorry, I cannot hear you. THE COURT: I’m sorry. I’ll put it in front of me. He asked you whether or not you would hold the state to its burden of proof that the law requires beyond a reasonable doubt on this charge, that on or about February the 26-27 of 2009, that Mr. Pedraza knowingly caused the death of Aubriana Coke, a child less than fourteen years of age, under circumstances manifesting extreme indifference to the value of human life. And what I heard several of you say, in so many words, is –- One juror said, Well, he was there or he had custody. But you don’t know at this point. Another said, Somebody had to do it. Another said, I have a two year old. They don’t die for no reason. And if you’re Mr. Pedraza and you hear that, would you think that juror could give him a fair trial? The answer’s no. And that’s not criticism. With the next panel, I’ll conduct voir dire on it. (R 1356) The state has charged a man with knowingly causing the death of a child less than fourteen, in this case, as defense counsel said, two years old; and in so many words, each of you said that he might fudge a little on the truth because somebody’s got to pay. And so this may not be the case for those of you who think that. We all ABSTRACT 395 have compassion for children; however, that does not mean that the state can get by with proving less than the law requires. That’s what they’re asking for you to do. And rather than make other jurors wait because I’m going to cut down on the amount of time I need to cover this probably in voir dire with the jurors before defense counsel does in the future, because as difficult as it may be to separate the fact that this is a two-year-old child from your thought process, it must be done. And a juror must be able to hold the state to its level of proof on all elements that he was the one. And so, with the exception of Ms. Gragg, the state –- or the Court on its own will excuse –- Okay, that would be Nowlen, Rodriguez, and Adair. Ms. Gragg will remain as a possibility. And, if you-all would, walk outside in the hallway and I’ll ask counsel. (R 1357) [Remaining jurors exited the courtroom.] THE COURT: State on Gragg? MR. DEEN: The state exercises a peremptory as to Gragg. MR. ROSENZWEIG: Your Honor, we make a Batson objection. THE COURT: Very well. Premature. MR. ROSENZWEIG: Well, Your Honor, I mean, they took a peremptory; that’s not premature. THE COURT: It is if what you want to do is a show a pattern. ABSTRACT 396 MR. ROSENZWEIG: Your Honor, unless we make our first objection right now then we don’t want to be accused of waiving the issue –THE COURT: There is –- I’m so familiar with Batson. You do not ever exercise it until there is a pattern and can show it. And so I note the fact that you’ve made your objection, prematurely, and that’s fine. Let’s move to the next six. What I wanted to cover with the state –MR. ROSENZWEIG: And, Your Honor, I’m sorry, if I could make a second Batson objection. We now have a pattern of two peremptories by women by Mr. Deen. (R 1358) THE COURT: All right. MR. ROSENZWEIG: In addition to race involving Ms. Gragg, who is African-American, we have two women. THE COURT: Okay. Very well. Let’s --Mr. Deen, I may very well ask these questions on the –- The two questions you submitted on the next panel, but what I wanted to ask you is: Do you have any –- I’m not saying they shouldn’t be asked, but they didn’t address that, did they really in this case, the propriety of those questions, because the defendant got life? MR. DEEN: I don’t recall, Your Honor. I’ve asked the questions in every capital case I’ve tried. I don’t recall in that decision you have in front of you –ABSTRACT 397 THE COURT: I do. It says –- And that’s what I wanted was the case –- It said okay –- I believe they’re okay –MR. DEEN: I believe the defense counsel was arguing they were a proxy. (R 1359) THE COURT: No. To the extent Jackson objects to the death qualification of the jury, his argument is moot because he was sentenced to life; and therefore, he lacked standing to raise the issue. I think that –- Not “I think.” I know, previously, one of the counsel up here, defense counsel, said, you know, “He’s trying to get a death-qualified jury; we’re trying to get a life-qualified jury.” The reason –- I should -- Need to put on the record. The reason that both sides try that is that –- the theory being –- there’s probably no great amount of empirical proof –- the theory being that a life-qualified jury is liable to be more prone to find a defendant not guilty and hold the state to a strict burden or higher burden. COURT THREATENS TO REMOVE ROSENZWEIG FROM COURTROOM MR. ROSENZWEIG: Your Honor, I –THE COURT: I am talking. And if you talk again and interrupt me, I will have you excused by the bailiff. MR. ROSENZWEIG: Your Honor, I apologize. I thought you were finished. THE COURT: You didn’t think I was finished. That’s what you say every ABSTRACT 398 time when you interrupt me. That is not true; and you know it. And if you do again, there will be one –- You’ll have your co-counsel here doing the rest of this. (R 1360) COURT ANNOUNCES IT WILL ASK ALL QUESTIONS ON ELEMENTS OF THE OFFENSE Now, death-qualified juries being more prone to convict –- This Court is not interested in the strategic value of that; and that’s the reason I’m not likely to ask any questions that tip the juror’s hand one way or the other. If we do, we’ll never get a jury. The issue in this case, the primary thing that this Court has to deal with, is when you have the death of a child, how does that bleed over to the defendant unfairly from the standpoint of someone wanting to return a verdict to vindicate, and letting that prejudice the deliberation process, and holding the state to its burden just as they would do in a case of petty larceny. That reason –- That’s the reason, on my own motion, I excused the last three. And as this process evolves, I’ll handle the questions on the elements. And I’m not at all disinclined to excuse a juror who hesitates on that. I think I’ve demonstrated that already. Now, let’s –- We may be going to eight the next time, but we’re going to try six and see how it goes. I will ask your –- I’m not going to ask the questions –- Not going to get into the life and death questions, other than on the types of beliefs that ABSTRACT 399 would prevent you from impartially considering the evidence at any stage. If you will bring in the next six, they are: E.J. Barnett; Susan Harris; Melodie Colwell; Matthew Pace; Tasheena Graham; and Sabrina Anderson. (R 1361) MR. ROSENZWEIG: Your Honor, may I speak now? THE COURT: No. The jury –- The panel is coming in. This Court is mindful of the fact that I’ve had jurors sitting out here; they’re volunteering their time; and some of the time, that has been consumed by the parties, has been unnecessary. MR. ROSENZWEIG: Your Honor, may I be allowed to (talking over) -THE COURT: No. VOIR DIRE OF THIRD PANEL OF SIX (GROUP 4) [Group 4 enters the courtroom.] THE COURT: Come on in. Let me get you in order. So let’s go with E.J. Barnett, first; Susan Harris; Melodie Colwell. I’ve got Ms. Colwell. Matthew Pace. Let me get you-all in order. And the next six: Smith, McManus, Nickolson, Fincher, and Tucker. Tell them we’ll need them in about fifteen minutes. Let me get you-all in order here. I have Barnett on the end; then I have Harris; Melodie Colwell. Then let me get Matthew Pace in there. Tasheena Graham. All ABSTRACT 400 right. And Sabrina Anderson. Thank you very much. Very good. (R 1362) Voir Dire by the Court THE COURT: Now, the Court’s going to ask you certain questions. The first questions are going to be these. The state has submitted the Court a witness list and so has the defense; and I’m going to read, first, the state’s witness list and ask you if you are personally acquainted -- I don’t mean know their name –- closely personally acquainted with any of these possible witnesses. If you are, raise your hand, and I’ll stop and identify you. Joey Earnest, Brenda Earnest, Celita Brooks, Robert Jacobs, Carolyn Stuard, Clayton Moss, Scott Woodward, Lisa Channell, Mary Simonson, Stephen Erickson, Victoria Pedraza, Tim Nichols, Jeff Martin, Scott Carson, Mark Gober, Dr. Ramos. Any of you closely acquainted with any of those witnesses? (No hands.) All right. For the defense: Corey Atkins; Mike Reynolds from Warren; Mike Shull; Tim Coke; Ladell Wright; Pablo Stewart, he’s from out of state. (No hands.) No hands. Any of you related to, or closely acquainted with, friends, with the prosecuting attorney or any of the defense counsel? (No hands.) No. Any of you –- If you want to approach on this, this is fine. Any of you, your immediate family members, close friends, on opposite side ABSTRACT 401 from the prosecutor’s office? Some charge has been brought or something like that, that would affect you, you know, that might affect your opinions in this case? (No hands.) Very well. (R 1363) Now, let me get to what the defendant is charged with. Earlier today in general voir dire, I asked you -- As in any criminal case, the presumption is of the defendant’s innocence; and it is the responsibility of the state, regardless of the charges, to prove that defendant’s guilt beyond a reasonable doubt based upon the state’s own case. The defendant is not required to prove anything. That is the law; and it is for a reason and no point going into it. Now, the defendant in this case has entered a plea of not guilty and the charge that has been made against him is this –- you’ve heard me read it once –- that on or about February the 26-27, 2012, that the defendant knowingly caused the death of Aubriana Coke, a child less than fourteen years of age, under circumstances manifesting extreme indifference to the value of human life, which offense is punishable by death or life imprisonment without parole. (R 1364) Now, as counsel (inaudible), Aubriana Coke, at the time of her death, was a little more than two years old. This charge is very simple. It charges Mr. Pedraza with knowingly causing her death. Now, the fact that this alleged victim –ABSTRACT 402 MR. LEONARD: Your Honor, excuse me, you left an element out: “under circumstances.” THE COURT: Under circumstances manifesting extreme indifference to the value –- I’ve already read it. I read it too fast. “Did cause the death of Aubriana Coke, a child less than fourteen years of age, under circumstances manifesting extreme indifference to the value of human life.” The fact that she’s two years old, will you hold the state to its burden, as you would in any other case, that they must prove that Mr. Pedraza did knowingly cause her death under circumstances manifesting extreme indifference to the value of human life? And I’m going to give you a second to think about it because any juror that can’t hold the state to its burden, the same as it would in any other case, simply because the alleged victim is less than two, this is simply not the case for them to sit on. Does the fact that the victim was less than two affect your impartial consideration of the evidence in holding the state to its burden? And I’m going to ask for an individual answer on that question because of its importance. Barnett? E.J. BARNETT: Yes, I would. (R 1365) THE COURT: You would hold the state to its burden? E.J. BARNETT: Yes. THE COURT: Harris? ABSTRACT 403 SUSAN HARRIS: Yes. THE COURT: Melodie Colwell? MELODIE COLWELL: Yes. THE COURT: Matthew Pace? MATTHEW PACE: Yes. THE COURT: Tasheena Graham? TASHEENA GRAHAM: Yes. THE COURT: Sabrina Anderson? SABRINA ANDERSON: Yes. THE COURT: Cases are sometimes referred to by their short name. This is referred to as a capital murder case. It’s only called that because if the state met its burden and a verdict of guilt was returned on the charge of capital murder, there would be two possibilities as far as punishment: one, life imprisonment without parole; one, the death sentence. (R 1366) Do any of you hold any views –- I don’t want to know what they are –- I want to know if any of you hold any views, strong views, about the death penalty that would interfere or prevent you from impartially considering the evidence, either at the guilt or the punishment stage, if it came to that in the punishment stage? Whatever those views may be, moral, whatever, any of your views so strong that it would affect ABSTRACT 404 your impartiality in this case? And this is the only other question I’ll ask you individually on. Barnett, are your views on the death penalty, have any, so strong that it would affect your impartiality in this case? E.J. BARNETT: No. THE COURT: Harris? SUSAN HARRIS: No. THE COURT: Colwell? MELODIE COLWELL: No. THE COURT: Pace? MATTHEW PACE: No. THE COURT: Graham? TASHEENA GRAHAM: No. THE COURT: Anderson? SABRINA ANDERSON: No. (R 1367) THE COURT: I have a couple of more questions to ask you with respect to the penalty if it reaches that point. Do you understand that the law in Arkansas never requires a death verdict in any case? Never requires it. If you’re not aware of that, are you willing that that is ABSTRACT 405 in fact the law –- Do you have any problem following that? Any of you? (No hands.) If that point were ever reached, there are what we call “mitigating circumstances” that can affect a decision with respect to whether the death sentence should be imposed; and those circumstances are called “mitigating factors,” factors that work in the defendant’s favor. Do you understand or will you –- If I direct you in my instructions, if it ever reached that point, that each individual juror determines for him or herself what is mitigation -- you know, you’re free to determine that –- and how much weight you give it. If I so instruct you to that effect that it is your individual responsibility, do you have any problem following that instruction? Any of you? (No hands.) I see no hands. There will be some photographs that will be shown in this case presumably of the alleged victim. What photographs you do see will be within the discretion of the Court. But photographs themselves, if you look at them, I want to know from each of you if you can look at the photographs, and will they prejudice you in any way in this case against this defendant. In other words, can you look at those types of photographs and hold the state to its burden? Can all of you do that? MELODIE COLWELL: Maybe. (R 1368) THE COURT: What do you mean “maybe”? And this juror is? MELODIE COLWELL: I don’t know. Without seeing them, I don’t know. ABSTRACT 406 (Inaudible). THE COURT: If you were selected as a juror –- And, understand, that the state must meet its burden and you’re not to be influenced by the fact that something, like, a picture, unless it has evidentiary value, do you believe that you could honor your oath as a juror in final analysis in the jury room, and not be overwhelmed by that and it compromise you? MELODIE COLWELL: I just think it would be difficult to separate myself from the photo. It’s one thing to talk about a person, but to see a picture –- I think it would be hard for me to separate myself and just maybe keep it (inaudible). As a parent, to separate that (inaudible). (R 1369) THE COURT: But the photographs themselves, if you believe they have no evidentiary value as far as this defendant goes, would you feel compelled to, as we say, compromise the law and not hold the state to its burden based on that evidence? MELODIE COLWELL: I would try very hard. THE COURT: That’s fair enough. That’s good enough. But from the standpoint of knowing what you would need to do –- And it may not be the case for you; and that’s why I asked the questions. Now, the –- Mr. Deen, any questions? MR. DEEN: No, sir. ABSTRACT 407 Voir Dire by Defense MR. LEONARD: May it please the Court, counsel, ladies and gentlemen of the jury. As I introduced myself earlier, my name is Tim Leonard. I live in Hamburg; and I, along with Birc Morledge and Jeff Rosenzweig, represent Mr. Daniel Pedraza in this charge today. What we’re here for right now is what we call voir dire: seeking the truth and honest answers. What we want, what the state wants, is for Mr. Pedraza to have a fair trial; and that fair trial is something entrusted to the jury. THE COURT: I’m not going to –- If you’ve got a question, Mr. Leonard, ask it. There’ll be no speeches. (R 1370) MR. LEONARD: Very well, Your Honor. THE COURT: They know why they’re here. I’m going to give you a couple of minutes because I’ve covered –MR. LEONARD: Anybody seen any publicity about this case? THE COURT: Do what? MR. LEONARD: Publicity. Your Honor, that’s something that hasn’t been covered. This case has been covered in newspapers in Drew County, online. Anybody? Without saying what you’ve seen, but has anybody seen anything about this case? I see hands. Ms. Barnett, you have seen something? E.J. BARNETT: In the paper. ABSTRACT 408 MR. LEONARD: In the paper? Is that the Monticello paper? E.J. BARNETT: Uh-huh (yes). Okay. Ms. Harris? SUSAN HARRIS: Yes. MR. LEONARD: In the paper? SUSAN HARRIS: On the Internet. MR. LEONARD: On the Internet? That was, Ms. Colwell? (R 1371) MELODIE COLWELL: Yes. MR. LEONARD: What about you, Mr. Pace, have you seen anything? MATTHEW PACE: Just heard about it. MR. LEONARD: Heard about it. When you say “heard about it,” who have you heard about it from? MATTHEW PACE: (Inaudible) It wasn’t nothing just –MR. LEONARD: I mean, was it somebody that had knowledge of the case or was it just talk on the street? MATTHEW PACE: Yeah. MR. LEONARD: Ms. Graham, have you seen any publicity about the case in the newspaper, online? ABSTRACT 409 TASHEENA GRAHAM: Just on the news. MR. LEONARD: When you say “the news,” what are you talking about? TASHEENA GRAHAM: Channel 7 News. MR. LEONARD: What about you, Ms. Anderson? SABRINA ANDERSON: I’ve seen it in the paper and stuff and on TV. MR. LEONARD: Okay. Now, I want to go back to what you’ve read or seen. Has anybody formed an opinion on the case based on that knowledge? And, again, fair trial. We just want to know -– You’d want to know if you were sitting over there. So that’s just what we want to know. Have you formed an opinion based on what you’ve read online or heard from other people? (R 1372) E.J. BARNETT: I have not. MR. LEONARD: You have not? E.J. BARNETT: No, sir. MR. LEONARD: That’s Ms. Barnett. What about you, Ms. Harris? SUSAN HARRIS: No. MR. LEONARD: You haven’t? SUSAN HARRIS: No. MR. LEONARD: Has anybody formed an –- Again, it’s okay. Nobody’s ABSTRACT 410 formed an opinion? (No hands.) Okay, can everybody agree with me sometimes things in the paper, and online, and Facebook, and stuff like that, sometimes they’ve got it wrong? THE COURT: You’re not testifying here. You got an answer to your question. I’ve told you-all we have other jurors out there waiting. Be aware of that. Do not repeat yourself under any circumstances, and no speeches. Now, move on from the publicity deal. They gave you their answer. (R 1373) MR. LEONARD: Actually, Your Honor, I need to get into a little more. They said they haven’t formed an opinion. I need to know if whether or not, they can set that aside –- If what they have read –THE COURT: Have any of them told you they formed an opinion based on it? MR. LEONARD: No, but they may be comparing it. THE COURT: If they told you they haven’t formed an opinion then there’s no opinion to set aside. Move to your next question. MR. LEONARD: They may be comparing evidence to what they’ve read, Your Honor. I need to make sure that they don’t –THE COURT: If I’ve given you an order. If you want to stay in here, you’ll obey the order. ABSTRACT 411 MR. LEONARD: Very well, Your Honor. This case, I suspect, that you may hear allegations of domestic violence. Okay? Allegations, again. Is there anybody that has something in their life, that when there’s allegations of domestic violence, this may not be the right case for you to sit on to be fair? Is there anybody that has that? Anybody? (No hands.) Your Honor covered the elements, and you would hold the state to its burden of proof. I want to ask you about the specific elements of the crime charged. THE COURT: I’ve gone through the crime. (R 1374) MR. LEONARD: Your Honor –THE COURT: I have gone through the crime. Now, in the Court’s discretion, I can limit the question. MR. LEONARD: Your Honor, I would like to clarify to this jury and explain to them the two elements of the crime. THE COURT: I have done that. MR. LEONARD: Your Honor, I –THE COURT: The point being you’re overruled. I’ve let you ask the questions about the publicity. I’ve covered the business about the age of the alleged victim. You’ve got about another thirty seconds. Have you got something else to ask? ABSTRACT 412 MR. LEONARD: Yes. When the judge was talking about the photos of the young child, I don’t mean to pick on you, Ms. Harris, but when Ms. Colwell was talking about it was hard to set aside, I saw that you were nodding your head –THE COURT: Melodie Colwell. You know I’m going to likely excuse Ms. Colwell. MR. LEONARD: Yes, sir. THE COURT: Anything else? MR. LEONARD: I was asking Ms. Harris a question, Judge. (R 1375) THE COURT: But I’ve gone down the jury panel on the question of the photographs. Ms. Colwell is the one that had reservations about her ability to separate that and her impartiality. The rest of them were okay with it. MR. LEONARD: Your Honor, that is –- I disagree with that statement. I would like to clarify that with them. THE COURT: Denied. MR. LEONARD: So you’re denying me going any further on that issue? THE COURT: I am. MR. LEONARD: Does everybody believe in the Constitution? Yes? Anybody not? ABSTRACT 413 THE COURT: Where are you going with the Constitution? MR. LEONARD: A fair and impartial trial with my client. And I would like to get the jury to look my client in the eyes and tell me they can give him a fair trial. THE COURT: Oh, oh, oh. Have a seat. MR. LEONARD: Your Honor –THE COURT: That’s not a proper question on voir dire. (R 1376) MR. LEONARD: Okay. Well, Your Honor, I would like to note for the record my objection that my client is not being granted an effective voir dire. THE COURT: You’ve got it on the record. All right. I will –- Ms. Colwell, thank you, and I’ll excuse you. The rest may walk out -- But Ms. Colwell –- I’m going to let you know in about thirty seconds which one of you, if any, have been accepted. [Group 4 exits the courtroom.] THE COURT: All right. The state: E.J. Barnett? MR. DEEN: Good to the state. THE COURT: Defense? MR. ROSENZWEIG: Your Honor, with regard to this juror –- and I will say the same thing with regard to each of the other jurors -- we move to strike the entire panel, individually and collectively, because we simply were not able to ask the ABSTRACT 414 sufficient questions, both with regard to the issue of life -- And under the questions we’ve submitted, and have made a record on, we’re entitled to ask, to make search and inquiry, as to life. But, also, the Court shutting off Mr. Leonard in questions having to deal with other matters as well. THE COURT: Very well. (R 1377) With respect to E.J. Barnett, accept or reject? MR. ROSENZWEIG: Use a peremptory, Your Honor. THE COURT: Pardon? MR. ROSENZWEIG: We’ll use a peremptory. THE COURT: Susan Harris. State? MR. DEEN: Good to the state. THE COURT: Defense? MR. ROSENZWEIG: One second, Your Honor. Your Honor, we renew the cause challenge with -– THE COURT: You’re not going to say anything except “accept” or “reject” -MR. ROSENZWEIG: Well, I –THE COURT: -– or I will accept her as a juror. MR. ROSENZWEIG: Well, Your Honor, I just need to make sure you understand what I’m saying. ABSTRACT 415 THE COURT: I understand. Accept or reject? MR. ROSENZWEIG: First, have you denied the cause challenge? THE COURT: Obviously. Accept or reject? MR. ROSENZWEIG: Use a peremptory, Your Honor. THE COURT: Matthew Pace? MR. DEEN: Good to the state. THE COURT: Defense? MR. ROSENZWEIG: Assuming you’ve denied our cause challenge. (R 1378) THE COURT: Accept or reject? MR. ROSENZWEIG: (No response.) THE COURT: Accept or –MR. ROSENZWEIG: Good. THE COURT: –- or reject? MR. ROSENZWEIG: We accept. THE COURT: Tasheena Graham? MR. DEEN: Good to the state. THE COURT: Come on with it. MR. ROSENZWEIG: Just a second, Your Honor. We have a team here and ABSTRACT 416 we’re trying to make sure –THE COURT: Taking a vote? MR. ROSENZWEIG: Yes, sir, we are. Your Honor, since you’ve denied our cause challenge –THE COURT: Accept or reject? MR. ROSENZWEIG: Accept. THE COURT: Sabrina Anderson to the state? MR. DEEN: Good to the state. THE COURT: Accept or reject? MR. ROSENZWEIG: Accept. THE COURT: All right. Now, you will notify –- Let me bring them back in to tell those that have been accepted. (R 1379) THE BAILIFF: Pace, Graham, and Anderson. THE COURT: I’m sorry? THE BAILIFF: Pace, Graham, and Anderson, you want me to bring them back in? THE COURT: Right. MR. ROSENZWEIG: Your Honor, we want to make sure the record’s clear. You excused Melodie Colwell on cause challenge; is that right? ABSTRACT 417 THE COURT: It only happened a few minutes ago; you know I did. MR. ROSENZWEIG: Well, I just wanted to make sure that we’ve got the record clear on that. THE COURT: The record was clear before you spoke. [Group 4 returns to the courtroom.] THE COURT: All right, I have -- Let me see the names. I have Matthew Pace, Tasheena Graham, Sabrina Anderson. You have been accepted to serve on this jury. I’m going to release you. You’ve not been sworn in as jurors yet. That will not happen until the trial commences; and it may not happen until in the morning. I would ask you to report back here in the morning at a quarter til nine in the jury room. I need your cell phone numbers, in case something happens, to be able to reach you. I cannot emphasize to you enough the importance of being here on time. This case will begin at 9:00; and we will start on time. (R 1380) Normally, until a jury is sworn in and impaneled, I do not admonish the jury not to discuss this case with other people, or that type of thing. I’m going to go ahead and tell you that though now because I’m releasing you; and I won’t get a jury picked until later today. Very important to this case, be decided only upon what happens in the courtroom and not on (inaudible) or anything else. Both sides are counting on that. So let me begin with you –- Give me your cell phone number and your address. ABSTRACT 418 TASHEENA GRAHAM: (870) 501-4082. THE COURT: And your address. TASHEENA GRAHAM: 476 Winchester Road. And that’s Monticello, Arkansas. THE COURT: Monticello? TASHEENA GRAHAM: Yes, sir. SABRINA ANDERSON: My phone number is (870) 269-4086; and my address is 1210 East Railroad Street, Monticello. MATTHEW PACE: (870) 723-6620; and 1278 South Wilmar Road. THE COURT: South Wilmar Road? (R 1381) MATTHEW PACE: Yes, sir. THE COURT: Quarter til nine in the morning. Thank you. [Group 4 exits the courtroom.] THE COURT: The next one is: John Smith; Sandra McManus, Kimberly Nickolson; Kimberly Fletcher; Gary Tucker; Kimberly Densmore. VOIR DIRE OF FOURTH PANEL OF SIX (GROUP 5) [Group 5 enters the courtroom.] THE COURT: Let’s get them in order. All right, let me get you-all rearranged -- it’s going to make it go a lot faster -ABSTRACT 419 so we know exactly who we’re talking to when we do. Mr. Smith, if you would, come down to this –- You can walk around or do whatever. It’s going to be Smith, McManus, then Nickolson, Fletcher, Tucker, and Densmore. THE CLERK: She’s not supposed to be back until three o’clock. THE COURT: Who? THE CLERK: Densmore. THE COURT: That’s fine. So we end up with Tucker. We’ve got five. Good deal. (R 1382) Voir Dire by the Court THE COURT: All right, I’m going to ask you some questions; and thefirst questions are going to have to do with whether or not you know closely –-I’m not talking about whether or not you recognize the name, but whether or not you know these witnesses close enough that it might –- that you shouldn’t sit on the case because it might affect your opinion to hear their testimony, one way or the other. And I’m going to begin with the state’s witnesses. I’m going to read them off. If you are close enough to them or know them well enough that you think the Court and parties probably should know then raise your hand, I’ll recognize you at that time. Joey Earnest, Brenda Earnest, Celita Brooks, Robert Jacobs, Carolyn Stuard, ABSTRACT 420 Clayton Moss, Scott Woodward, Lisa Channell, Mary Simonson, Stephen Erickson, Victoria Pedraza, Tim Nichols, Jeff Martin, Scott Carson, Mark Gober, and Dr. Ramos. Any of you so closely related to them that you couldn’t -- (No hands.) Defense witnesses, at this point will be: Corey Atkins; Mike Reynolds, he’s from Warren; Mike Shull from El Dorado; Tim Coke; Ladell Wright; Dr. Stewart, he’s from out of state. Any of you so closely acquainted with any of those names or people? (No hands.) Good. (R 1383) What about the lawyers on the case –- they’ve identified themselves to you –and for that matter, Mr. Pedraza, he was identified to you when we began earlier this morning -- any of you related to any of those, or so closely acquainted with any of those individuals, that this isn’t the case for you? KIMBERLY FLETCHER: I’ll just mention that I work for the City of Monticello, so I do know Scott Woodward; Clayton Moss, the investigator; and I’ve worked with David Cason through commissions. THE COURT: And let me get your name on the record. KIMBERLY FLETCHER: Kimberly Fletcher. THE COURT: In what capacity do you work for the City of Monticello? KIMBERLY FLETCHER: I’m the finance director. THE COURT: And you’re not involved in law enforcement? ABSTRACT 421 KIMBERLY FLETCHER: No. I sign their paychecks. That’s it. THE COURT: Sign the paychecks? KIMBERLY FLETCHER: That’s it. THE COURT: And the witnesses that you mentioned are –KIMBERLY FLETCHER: The state police, Scott Woodward; Clayton Moss; and David Cason, one of the attorneys, I know him. I do commissions with him. (R 1384) THE COURT: Do what? KIMBERLY FLETCHER: The park committee. Commissions with the city. He’s on that commission. And I’ve worked with him on that. THE COURT: All right. Well, let’s go to the signing the paychecks. Do you have any personal relationship or business relationship with the two state policemen other than signing their checks? KIMBERLY FLETCHER: No. THE COURT: Okay. With respect to Mr. Cason and working with him on the park commission, how many are on the park commission? KIMBERLY FLETCHER: Eleven. THE COURT: How often does it meet? KIMBERLY FLETCHER: Sir? ABSTRACT 422 THE COURT: How often does it meet? KIMBERLY FLETCHER: Once a month. THE COURT: The fact that he’s deputy prosecutor and sitting at the table -I don’t know what involvement that he’s going to have in the case -- would you tend to lean more in favor of the state simply because of that and y’all’s connection on the park committee? (R 1385) KIMBERLY FLETCHER: Not because of the commission, no. No. THE COURT: Well, you say “not because of the park commission,” if I didn’t guess right, then forgive me, but would there be any other reason that the Court -KIMBERLY FLETCHER: No, sir. THE COURT: –- should be concerned with anything or that the defense should be concerned? In other words, would the –- If you’re accepted as a juror, should the defense be as satisfied with you as a juror as the state? KIMBERLY FLETCHER: I would be open-minded and consider the case, and make my decision based on what I hear. THE COURT: Very well. Now, let me move to what the case is about. It can be referred to in short term as a capital murder case. That simply means that that is what the defendant is charged with. And it only means that if he were convicted that ABSTRACT 423 there would be -– That that particular offense –- The jury would have two options as far as punishment: life imprisonment without parole or the death penalty. Before I get to that, let me ask you another question. The charge reads as follows that on or about February the 26-27, 2012, Daniel Pedraza knowingly caused the death of Aubriana Coke, a child less than fourteen years of age, under circumstances manifesting extreme indifference to the value of human life. (R 1386) Now, the proof in this case will be that the alleged victim was between two and three. I’ve asked each individual juror in this case because the state has a burden of proving what is charged here; and that is that Mr. Pedraza knowingly caused the death of Aubriana Coke, under circumstances manifesting extreme indifference to the value of human life. I want to know if the fact that the alleged victim is between two and three years old would cause you in any way to not hold the state to its burden of proving their case, each one of the things they’ve stated in this charge, that he did it, it was knowing, and it was under circumstances indicating extreme indifference to the value of human life. The fact that the victim is between two and three, is that going to affect your impartiality in holding the state to its burden of proof and Mr. Pedraza –Does Mr. Pedraza have anything to worry about from you, the fact that he’s charged with doing this to, in this case, a two year old –- Does he have anything to worry about from any of you-all? I’m going to ask each of you, individually, that because ABSTRACT 424 it is a very important question. Mr. Smith -JOHN SMITH: Yes. (R 1387) THE COURT: –- would the fact that the alleged victim was between two and three, would it affect, in your mind, Mr. Pedraza’s ability to get a fair trial out of you, an impartial consideration? JOHN SMITH: It wouldn’t affect me. THE COURT: Ms. McManus, would you hold thestate to its burden? SANDRA McMANUS: Yes, I would. THE COURT: Nickolson? KIMBERLY NICKOLSON: That’s a baby. THE COURT: But would -- May be. KIMBERLY NICKOLSON: In my mind, that’s an innocent child. I’m just saying –THE COURT: I understand that –MR. ROSENZWEIG: (Talking over) Your Honor –COURT THREATENS TO REMOVE ROSENZWEIG THE COURT: Do not interrupt my questions, if you want to stay in this courtroom. If you interrupt me again, I’m telling you now, I’m having the bailiff take you outside. (R 1388) ABSTRACT 425 What I want to know is –- I’m not being critical one way or another –- Mr. Pedraza is entitled to a fair trial; and he is entitled by law, regardless of what he’s charged with in the case, he’s entitled for a jury to hold the state to its burden of proof beyond a reasonable doubt. Now, the fact that it was said by the state that the victim was between two and three, would that affect your impartiality in giving him that –KIMBERLY NICKOLSON: Yes, sir, it would. THE COURT: Then that’s all I need to know. Then this is simply not the case for you. That’s all. And without any more said, let me get you on your way. All right. And that is Ms. -KIMBERLY NICKOLSON: Nickolson. THE COURT: –- Nickolson. All right. [Kimberly Nickolson is excused by the Court and exited the courtroom.] THE COURT: Same question of you, Ms. McManus. SANDRA McMANUS: It would not affect me. THE COURT: You could? Mr. Pedraza would not have to have any concern that you could hold the state to its burden? SANDRA McMANUS: No, sir. (R 1389) THE COURT: Mr. Tucker, has Mr. Pedraza got anything to worry about from you by the fact that the alleged victim is between two and three years old? Would you ABSTRACT 426 hold the state to its burden to prove every element, what I’ve named you what he’s charged with, beyond a reasonable doubt? GARY TUCKER: I would have to decide the facts beyond a reasonable doubt before I could –THE COURT: Do what? GARY TUCKER: I would have to be assured beyond a reasonable doubt that he was guilty before I could go to the death –THE COURT: Well, I’m asking somewhat the same question, but I’m asking if -- In particular with respect to the fact that the allegation is is that a young girl between the ages of two and three is the alleged victim, is that going to so affect -the fact that that’s the allegation -- is that going to so affect you that you cannot hold the state to its burden of proof beyond a reasonable doubt? GARY TUCKER: No. (R 1390) THE COURT: Okay. I’m going to come to the death penalty in a minute, but I wanted to get that –- Eliminate anybody (inaudible). All right. Now, the law in Arkansas is is that no jury is ever required to render a death verdict in any case. In other words, that is discretionary with the jury after hearing all the proof and listening to the law. But I want you to be clear. If you understand the law different, that’s not the law; and I want you to understand that if ABSTRACT 427 one of you has a problem with the fact that a death verdict is never required, speak now and tell me. If that is in fact the law -- and it is -- then will you agree to abide by it, if I tell you that? All right. Now, if it ever reached the punishment phase –- and we’re not there and don’t know if it will –- the trial hasn’t started –- Do you understand that when you –- that there are factors we call “mitigating circumstances.” “Mitigating” means they’re slightly in favor of the defendant that may work in his favor as far as not imposing the death sentence, if it ever reached that point, and that each individual juror’s responsibility is to find whether or not -- what that mitigation is -- and how much weight to assign. In other words, that’s an individual responsibility in the jury room to make that decision, personally. Do you-all agree, if you’re chosen, to personally decide whether or not, if it ever came to that, what the mitigating circumstances are and how much weight to give them? Would you agree to make that personal decision? Each of you? (Unanimous: yes) All of them answered and said yes. (R 1391) With respect to pretrial publicity -- I’ve not kept up with it and don’t know much about it. I just want to ask each of you if you have read, or heard anything through the media, or for that matter, on the street, about this case that has so prejudiced you that you can’t set it aside and render your verdict upon the law and the evidence, as it’s presented in this courtroom? Any of you seen, or anything in the ABSTRACT 428 paper, or the Internet, or anything like that, that you can’t put out of your mind if you’re chosen as a juror? And begin with you, Mr. Smith. Anything? JOHN SMITH: No, sir. THE COURT: All right. Ms. McManus? SANDRA McMANUS: No, sir. THE COURT: Ms. Fletcher? KIMBERLY FLETCHER: No, sir. THE COURT: And Mr. Tucker? GARY TUCKER: No. (R 1392) THE COURT: Do any of you have any strong views about the death penalty? And I don’t need to know whether they’re for, or against, or –- Do any of you have such strong personal views about the death sentence that it would interfere, or impair, affect, your ability to impartially consider all the evidence in this case, at any stage of the decision? Let me begin first with you, Mr. Smith, do you have any strongly-held belief about the death penalty -- I don’t need to know what it is –- that would bleed over or affect your ability to decide in impartially considering the evidence in this case? JOHN SMITH: No, sir. THE COURT: Ms. McManus? ABSTRACT 429 SANDRA McMANUS: No, sir. THE COURT: Ms. Fletcher? KIMBERLY FLETCHER: No, sir. THE COURT: Mr. Tucker? GARY TUCKER: No. THE COURT: Mr. Deen, do you have any questions? MR. DEEN: No questions, Your Honor. THE COURT: Defense? Voir Dire by Counsel for Defense MR. ROSENZWEIG: How many of you have served as a juror before? Ma’am, you are Ms. McManus? SANDRA McMANUS: Yes. MR. ROSENZWEIG: Was it here or some other county? (R 1393) SANDRA McMANUS: It was here. MR. ROSENZWEIG: How long ago? SANDRA McMANUS: Awhile. Four or five years. MR. ROSENZWEIG: Do you remember was it a civil case or a criminal case? SANDRA McMANUS: Civil. ABSTRACT 430 MR. ROSENZWEIG: Civil. Okay, that was a lawsuit over money. Okay, now, the burden of proof that the plaintiff has in that case is preponderance of the evidence. You probably remembered that from those lectures in here about that; right? SANDRA McMANUS: Yes. MR. ROSENZWEIG: It’s not this case, you understand? SANDRA McMANUS: I’ve got you. MR. ROSENZWEIG: Beyond a reasonable doubt. Mr. Smith -JOHN SMITH: Yes. MR. ROSENZWEIG: –- are you onboard with that? JOHN SMITH: Yes. MR. ROSENZWEIG: The burden is beyond a reasonable doubt. Ms. Fletcher and Mr. Tucker, do all of you agree that the state has the burden beyond a reasonable doubt? So every element –- Do you know what an element is, Mr. Smith? (R 1394) JOHN SMITH: Yes, sir. MR. ROSENZWEIG: Okay. Let me pick on you. What is an element? JOHN SMITH: From what you’re saying, I guess, this is a whole lot greater than civil cases, the kind –ABSTRACT 431 MR. ROSENZWEIG: Let me give you the law school definition of an element. JOHN SMITH: All right. MR. ROSENZWEIG: Part. All right, the judge read to you the charge. And as he told you, the charge -- All they need to charge –- Doesn’t have any evidentiary value. They put a typewriter and a piece of paper and they charge, sign it, and we’re here. Okay. It’s up to the jury to decide proof. Now, an element is a part of the charge. And the judge read to you “knowingly caused the death of a person under a certain age, under circumstances manifesting extreme indifference to the value of human life.” Do you remember in about fifth grade, Mr. Tucker, when you had to diagram sentences? Do you remember that? THE COURT: You better get to the point. You’re eating into your time. I’m going to bring this next panel in. (R 1395) MR. ROSENZWEIG: Okay, “knowingly” is a part; “under circumstances manifesting extreme indifference” is a part; “causing the death” is a part. The state has to prove each one of those parts, not three out of four, or four out of five. Ms. Fletcher, are you onboard with holding the state to its burden of proof? KIMBERLY FLETCHER: Yes, sir. MR. ROSENZWEIG: On all of them? ABSTRACT 432 KIMBERLY FLETCHER: Yes, sir. MR. ROSENZWEIG: And, Ms. McManus? SANDRA McMANUS: Yes, sir. MR. ROSENZWEIG: And, Mr. Smith? JOHN SMITH: Yes. MR. ROSENZWEIG: And, Mr. Tucker? GARY TUCKER: Yes, sir. MR. ROSENZWEIG: Now, you don’t vote out here. This isn’t like the Olympics where you’re voting on the figure-skaters, or whatever –THE COURT: Your time is about up. You’ve got thirty seconds. You don’t need to go into the Olympics or tell them where they’re going to vote. Get to the point. MR. ROSENZWEIG: Okay. Thank you, Your Honor. (R 1396) The verdict must be unanimous (inaudible) you’re deciding whether someone’s guilty or not. Do you have any problem with that? Would you be able to stick to your guns, so to speak, if you couldn’t go along with the majority, whatever that might be? You’ve got to say something out loud. You are all onboard? JOHN SMITH: Yes. MR. ROSENZWEIG: Now, next question: A witness is going to come in ABSTRACT 433 here and they’re going to take an oath. They’re going to sit right here –THE COURT: We’re not going to go through the halo business again. You may sit down. You’re through with your voir dire -- about whether or not an oath gives a halo –MR. ROSENZWEIG: (Talking over.) Your Honor, I was merely trying –These people -– I was merely trying to –THE COURT: I understand. MR. ROSENZWEIG: Your Honor –THE COURT: Look, this doesn’t have anything to do with bias, or implied bias: your questions about swearing a witness in. It’s simply your way of pleading your case. You may have a seat. (R 1397) And I’m going to ask you-all where are you-all on your deal. Now, I’m going to excuse you-all. If you-all would give me about two minutes outside that door, I’m going to visit with the attorneys, and I’ll let you know how many, if any, of you have been selected. All right. Thank you very much. [Group 5 exits the courtroom.] THE COURT: State? John Smith? MR. PURYEAR: Mr. Smith is good to the state, Your Honor. THE COURT: Defense? ABSTRACT 434 COLLOQUY BETWEEN COURT AND ROSENZWEIG REGARDING CHALLENGES MR. ROSENZWEIG: Your Honor, I need to make a cause challenge for the whole panel again. THE COURT: I’ll consider the other one made just the same as you did. If I ask you to accept or reject –MR. ROSENZWEIG: (Talking over) Your Honor –THE COURT: If you don’t reject, I’m going to accept for you. MR. ROSENZWEIG: (Talking over) Your Honor –THE COURT: This Court is in charge here; and if you want to continue –MR. ROSENZWEIG: Well, I know you’re in charge, Your Honor. But, Your Honor, I’m trying to represent my client and I –- Now, may I be heard for a minute, Your Honor? (R 1398) THE COURT: No, not except to say “accept” or “reject.” MR. ROSENZWEIG: Your Honor, please, let me make a motion. Would you please –THE COURT: Make the motion. You’ve got two seconds. MR. ROSENZWEIG: Thank you, Your Honor. I’d ask to strike this whole ABSTRACT 435 panel for cause for two reasons: one, (inaudible). Secondly, Your Honor, when I got up to ask –- and you asserted I interrupted you -- I was merely trying to hear the questions -- hear the answer. It was not an attempt to interrupt you. THE COURT: What has this got to do with anything now? MR. ROSENZWEIG: (Talking over.) Well, Your Honor, you threatened to throw me –- escort me from the courtroom –- and I believe it prejudiced the entire panel. And I was merely trying –- I was merely trying –- because I wasn’t able to hear the answers and I couldn’t –- (R 1399) THE COURT: Move on, Mr. Pedraza [sic]. I’m going to accept this juror if you don’t reject. COURT REFUSES TO GIVE 30 SECONDS FOR DEFENSE CONSULTATION MR. ROSENZWEIG: Okay. Your Honor, may I have one second to consult with my team, please? So I’ll be able to answer your questions in thirty seconds. Give me thirty seconds. THE COURT: I’m not going to give y’all thirty seconds. You’ve had all this time. Accept or reject? MR. ROSENZWEIG: Okay, Your Honor, without –THE COURT: Accept or -- I accept Mr. Smith. MR. ROSENZWEIG: We do not exercise a peremptory on Mr. Smith. We ABSTRACT 436 do not waive our (talking over) -THE COURT: Sandra McManus to the state? MR. PURYEAR: Good for the state, Your Honor. THE COURT: What about the defense? MR. ROSENZWEIG: Same thing, Your Honor. THE COURT: All right, we accept Ms. McManus. Kimberly Fletcher? MR. PURYEAR: Good for the state. (R 1400) MR. ROSENZWEIG: We use a peremptory. THE COURT: Gary Tucker? MR. PURYEAR: Good for the state. MR. ROSENZWEIG: Your Honor, we make a cause challenge on the basis we believe this person is an automatic death penalty juror under Morgan. THE COURT: Denied. Accept or reject? Accept or reject? MR. ROSENZWEIG: Your Honor, I need a second, please. THE COURT: No, you don’t have it. It’s so ridiculous looking at you-all here, trying to communicate with six people over there, and somebody telling you what to do. You make up your mind; you’re lead counsel. Accept or reject, or I’m going to take him. MR. ROSENZWEIG: Without waiving, we will –ABSTRACT 437 THE COURT: Without waiving. MR. ROSENZWEIG: Without waiving, this person –THE COURT: Without waiving, you what? MR. ROSENZWEIG: Your Honor –- (R 1401) COURT CRITICIZES ROSENZWEIG FOR OBTAINING INPUT FROM OTHER MEMBERS OF DEFENSE TEAM THE COURT: Let the record reflect because it’s really rather amusing that Mr. Rosenzweig is turning to counsel table where there is about six people; and someone is telling him what to say; and he’s lead counsel in the case. This is my first experience -- and I’ve had many in the courtroom -- where lead counsel is being told what to say by someone –- I don’t even know if they’re a lawyer on the case. MR. ROSENZWEIG: Your Honor, we have a team here -THE COURT: It doesn’t matter. MR. ROSENZWEIG: –- and I’m just finding out input –THE COURT: You are lead counsel. Accept or reject? MR. ROSENZWEIG: Your Honor –THE COURT: He’s accepting. MR. ROSENZWEIG: Peremptory –- I’m exercising a peremptory without waiving the cause challenge. ABSTRACT 438 THE COURT: Very good. How easy was that? He’s exercised a peremptory. Bring them in. Let me tell you who we’ve got. We’ve got McManus and Smith. THE BAILIFF: All four of them? THE COURT: No, just tell John Smith and Sandra McManus to come in; and Kimberly Fletcher and Gary Tucker are excused. (R 1402) [John Smith and Sandra McManus return to the courtroom.] THE COURT: Both of you come on in. Mr. John Smith and Sandra McManus, you’ve been accepted as jurors on this case. I would ask you to report back. We may get started –- let’s hope we do -tomorrow morning at a quarter til nine in the jury room down here at the end of the hallway. I normally don’t say this until I have a jury sworn in. In this case, I’m going to go ahead and tell you: You should not discuss this case –- You’re nodding your head. You know this, but I need to tell you. –- with anyone else. We’re all human, but this is important to decide all cases based only upon the law as the Court gives you at the conclusion of the case, and the facts, and evidence you hear in the courtroom. I do need to make sure we have your correct address and phone number. What if we needed to reach you? So, Mr. Smith, what is your address? ABSTRACT 439 JOHN SMITH: 243 Campground Loop, Monticello. THE COURT: 243 Campground Loop, Monticello. And what about a phone? JOHN SMITH: 723-2415. THE COURT: Very good. Ms. McManus? SANDRA McMANUS: 611 Ladell Road, Monticello; 723-4777. (R 1403) THE COURT: In the morning at a quarter til nine. Thank you so much. [John Smith and Sandra McManus exit the courtroom.] THE COURT: All right, we’re going to –- I know I told that other group, the second group, to be back here at 1:00; I extended that to 3:00. I’m sure they’re there. I’m going to give everybody a bathroom break for fifteen minutes. And when I walk in at 3:15, we’ll begin the next group. Court’s in recess. (Break) THE COURT: All right, you’re going to bring in Kimberly Densmore, Teresa Longing, Debbie Meggs, Justin Stell, Eathan Banks, and Laura Connard. COURT REPORTER: And there’s two more. THE COURT: Joel Pace, and Brandy Ferrell. COURT REFUSES TO ENTERTAIN MOTION MR. ROSENZWEIG: Your Honor, while we’re waiting on them, may I be heard? ABSTRACT 440 THE COURT: No. MR. ROSENZWEIG: Did I hear you say “no”? THE COURT: I said “no.” (R 1404) MR. ROSENZWEIG: Well, may we have a week to file in writing what I wanted to say? THE COURT: I’ll consider it. MR. ROSENZWEIG: Consider that we be allowed to file in writing? THE COURT: That you have –- I’ll consider it. VOIR DIRE OF FIRST PANEL OF EIGHT (GROUP 6) [Group 6 enters the courtroom.] THE COURT: Let’s do this, before you-all have a seat, let me make sure we get you lined up in order so we know who we’re talking to. The one on this end is going to be Densmore, Longing, Meggs, Stell. All right, Stell is next to Meggs. Banks, Connard, Pace, and Brandy Ferrell. Wow. That’s already perfect. Thank y’all. Have a seat. All right, we’re taking eight at a time now maybe things can go a little faster. And then we’ll try to get a jury picked today. There’s no guarantee. Voir Dire by the Court ABSTRACT 441 Let me begin, first, with reading to you the names of the witnesses that both the state and the defense may be calling in this case. I simply want to know if any of you are so closely acquainted with them that it would interfere with your impartial consideration of the evidence, whether or not (inaudible) with any other witness on the witness stand (inaudible). So I begin with -- The state’s witness list begins with: Joey Earnest, Brenda Earnest –- And if you’ve heard one of the –- Are closely acquainted with any of these then just raise your hand. I’ll stop, find out what it’s about. All right, Mr. Stell; right? (R 1405) JUSTIN STELL: Yes, sir. THE COURT: Which of those –JUSTIN STELL: That’s my best friend’s mom. THE COURT: Who is? JUSTIN STELL: Joey. THE COURT: He’s your best friend’s mom and your best friend’s brother, meaning, Joey Earnest? JUSTIN STELL: Yes, sir. THE COURT: He’s your best friend’s brother. I don’t know what they’re going to be testifying to, but it would put you on the spot with your best friend? JUSTIN STELL: It shouldn’t. ABSTRACT 442 THE COURT: Well, what I will do is when it comes time to ask the state -you can make a note of it, Mr. Deen –- and defense counsel if they want to explore that further then they may. Celita Brooks, Robert Jacobs, Carolyn Stuard, Clayton Moss, Scott Woodward, Lisa Channell, Mary Simonson, Stephen Erickson, Victoria Pedraza, Tim Nichols, Jeff Martin, Scott Carson, Mark Gober, and Dr. Ramos. That’s the state’s witness list at this point. (No hands.) The defense: Corey Atkins; Sgt. Mike Reynolds; Mike Shull; Tim Coke; Ladell Wright; and Pablo Stewart, he’s from out of state. (No hands.) (R 1406) All right, I saw no hands except Mr. Stell’s. And counsel will explore that with you. Very well. Now, I want to ask you questions about the charge; and it’s all in the context of determining whether or not any of you have such strong opinions about certain things that it would affect your ability to impartially consider all of the evidence in the case, is what it all boils down to. Now, this charge that’s been made by the state against Mr. Pedraza is entitled capital murder. That’s simply a way of describing a charge where, if convicted of that charge, of that homicide, that there’s two possible penalties: life imprisonment without parole and the death penalty. I’m going to read the charge to you and I’m going to ask you questions about the death penalty later. ABSTRACT 443 But there’s one other point I would like to cover first. The charge reads as this –And as you know from voir dire, the mere filing of a charge is not evidence of guilt; and it’s the state’s burden in any criminal case, including this one, to prove by its own proof –- defendant’s not required to prove anything –- to prove by its own case that the defendant is guilty beyond a reasonable doubt before the defendant can suffer any punishment. (R 1407) Now, this charge reads –- you heard it earlier today –- I’m going to go over it with you. It reads like this: On or about February the 26-27 of 2012, that the defendant knowingly caused the death of Aubriana Coke, a child less than fourteen years of age, under circumstances manifesting extreme indifference to the value of human life. Now, Aubriana Coke, at the time of her death, was between the age of two and three. My first question to you is this: Understanding that Mr. Pedraza, like any defendant, is entitled to a presumption of innocence, and understanding the responsibility and burden of the state to prove that he knowingly caused the death of Aubriana Coke, under circumstances manifesting extreme indifference to the value of human life, would the fact that the alleged victim was between the ages of two and three so affect you or prejudice you that you could not hold the state to its burden of proof? Mr. Pedraza and the state are entitled to a fair jury. And in this respect, if the ABSTRACT 444 fact that what the state says about him, is affected by, in your mind, the fact that the alleged victim was between two and three, and would it affect your deliberation from the standpoint of maybe not holding the state to its burden, then I need to know it now, as does Mr. Pedraza; and this is not the case for you to sit on. (R 1408) And I want you to think about that because this is simply a charge and Mr. Pedraza is entitled to a jury that has searched its soul and knows that whoever the victim is, however old, that you’re going to give him a fair trial; and that means, first and foremost, that you will hold the state to its burden of proving, before he suffers any punishment, that he knowingly caused the death of Aubriana Coke, under circumstances manifesting extreme indifference to human life. And if the simple fact that the alleged victim is under two is going to compromise his right in your mind, I need to know it now, as does the state, and as does the defense. I need to ask that question and get an answer, individually, from you-all. Will it affect your impartiality, Ms. Densmore? KIMBERLY DENSMORE: No, sir. (R 1409) THE COURT: Ms. Longing? TERESA LONGING: Yes, sir. THE COURT: Ms. Meggs? DEBBIE MEGGS: (Inaudible). ABSTRACT 445 THE COURT: I’m sorry, I can’t hear you. Let the record reflect she thinks it would. Stell? JUSTIN STELL: No, sir. THE COURT: Banks? EATHAN BANKS: No. COURT REPORTER: Did he say yes? THE COURT: “No.” You said “no”; correct? EATHAN BANKS: Correct. THE COURT: She has to pick you up way over across the room. Ms. Connard? LAURA CONNARD: No, it would not. THE COURT: Mr. Pace? JOEL PACE: No, sir. THE COURT: Ms. Ferrell had already raised her hand. BRANDY FERRELL: Yes, sir. THE COURT: It would affect you? BRANDY FERRELL: Yes. THE COURT: So I think the thing for the Court to do is to go ahead and ABSTRACT 446 excuse Ms. Longing –-Right? (R 1410) TERESA LONGING: Yes. THE COURT: –- Ms. Meggs, and Ms. Ferrell. At this time, there wouldn’t be any point in you participating further. This simply isn’t the case for you. Maybe another one down the road. She didn’t hear you, Mr. Stell. I thought you said, no, it wouldn’t -- My reporter thought you said yes. Which was it? JUSTIN STELL: It wouldn’t bother me. THE COURT: All right. Very good. So that leaves us with Ms. Densmore and Mr. Stell so far -- Eathan Banks, Laura Connard, Joel Pace. Now, it’s been brought up and perhaps I covered it to make it more clear. When I say “they must prove beyond a reasonable doubt,” that must be that they must prove that it was knowingly done -- of course who did it –- that it was knowingly done, and under circumstances manifesting the extreme indifference to the value of human life. And if it’s, as one said, two out of three, they prove then that’s not the whole thing. But all of those things that they say, the state said, must be shown -- not just part of them, all of them -- beyond a reasonable doubt. Do you-all agree to hold the state to that burden? Can you? (Unanimous: Yes) They all said yes. (R 1411) Now, let me cover one point that’s normally covered in a case such as this. I ABSTRACT 447 will not ask you your views, personal views, about the death penalty. What I should ask is: Are any –- Do any of you have such strong views, one way or another, about the death penalty, that it would affect -- those views -- would affect your ability to impartially consider the evidence in this case –- That it would make you -- It would prejudice you, in other words, if the death penalty is asked for. I don’t care what the views are. Any of you hold such views, regardless of what they are pro or con, that it would affect your ability to sit in judgment -- to impartially consider –- Just like on the question about the fact that the alleged victim is two years old, they said it would affect them. So I ask that question of each of you. Now, beginning with Ms. Densmore, would the fact that he is charged with an offense that carries such a possible penalty, if convicted of that offense, would it affect your ability to impartially consider the evidence in this case? KIMBERLY DENSMORE: No, sir. THE COURT: Stell? JUSTIN STELL: No, sir. THE COURT: Banks? EATHAN BANKS: (No response.) (R 1412) THE COURT: Banks? EATHAN BANKS: No. ABSTRACT 448 THE COURT: Connard? LAURA CONNARD: No, sir. THE COURT: Pace? JOEL PACE: No, sir. THE COURT: I want to ask you a couple of other questions. I don’t know how much, they call it “pretrial publicity,” there’s been on this case; however that may be, I need to ask you if anything that you’ve seen or read, or been imparted to you, through media, or for that matter, on the street, has caused you to form an opinion that you couldn’t put out of your mind for or against either party. Both the defendant and the state are entitled to a fair trial. And I need to know from you if there’s anything you’ve read or heard, that you could not set aside, if you were picked as a juror, and decide this case solely upon the law and facts that you hear in this courtroom. Any of you in that boat? (No hands.) I take it by your silence –- Raise your hand if you do; I’ll put it that way. I won’t go down the list. I see no hands. (R 1413) Sorry, I meant to ask: Any of you –- Nobody yet has said yes to this question, I don’t think -- Well, I think one said she signed some checks for a couple of the witnesses. Are any of you related to, or close personal friends of the lawyers that represent the state, or the lawyers that represent the defendant, or the defendant ABSTRACT 449 himself, such that you shouldn’t sit on this case? (No hands.) The law in this state is that no jury, regardless of the case, is required to return a verdict of guilt. I don’t know whether you knew that, but that is a fact. The question I need you to answer is: If you understand that that is the law, I ask you further, can you agree to abide by that law? In other words, that you are never required to; it is your option if your judgment –- it has to be a unanimous judgment after listening to the evidence and the jury instructions -- that that would be your decision, but it is never required. Do you-all understand that and will you agree to abide by that? Very good. They all nod yes. (R 1414) Now, the next question is this: If it ever reached that stage –- I don’t know that it will; I don’t know that it won’t. I don’t know anything about that. I’ve not heard the case. But at a punishment stage, the jury is free to decide that there are mitigating circumstances, circumstances that work against, with regard to this particular defendant, the death penalty and would mitigate in favor of life; and whether or not those circumstances exist, any weight, what they are, and weight they could be given in comparing to the other side, is a decision for each individual juror to make; and that individual juror must make that decision as to whether or not those mitigators, whatever they may be, without having heard the evidence. Do you agree that you will make an individual decision if selected with regard to what those mitigators are, and ABSTRACT 450 what weight they should be given, when comparing to the other side? Do each of you agree to make that individual decision yourself in the jury room? (Unanimous: Yes) With respect to Mr. Stell, or any other questions that you may have, Mr. Deen, or the prosecutor, do you want to ask any other matters –Voir Dire by Counsel for Plaintiff MR. DEEN: Mr. Stell, the gentleman you identified as your best friend’s brother and mother, you understand they’re paramedics? JUSTIN STELL: Yes, sir. (R 1415) MR. DEEN: And I anticipate their testimony in this case will be limited to their efforts to treat Aubriana, the two-year-old child, who is the victim in the case, would be limited to that. Would you feel like you would lend their testimony any greater weight or credence because they are relatives of your good friend? JUSTIN STELL: I think it would weigh more than others’. MR. DEEN: Pardon me? JUSTIN STELL: It would weigh more than others’. MR. DEEN: More than others’? Because of who they are? JUSTIN STELL: Yes, sir. MR. DEEN: Do you feel you’d have to answer to them about your verdict, regardless of what it might be, in this case, if you were chosen? ABSTRACT 451 JUSTIN STELL: No, sir. MR. DEEN: Wouldn’t feel compelled to have to explain yourself? JUSTIN STELL: No. MR. DEEN: I’m sorry, I didn’t bring my pad. Seated right next to Mr. Stell? EATHAN BANKS: Eathan Banks? MR. DEEN: I’m sorry? Sir? EATHAN BANKS: Eathan Banks. (R 1416) MR. DEEN: Mr. Banks –THE COURT: Mr. Banks, we’re having a little trouble hearing you over here. I know you’re soft-spoken, but holler at them. MR. DEEN: Mr. Banks, I noticed that when the judge posed the question about whether your views about the death penalty would impair your ability to fairly consider the proof, that at first you didn’t answer at all –- I thought at first that maybe you didn’t hear him. And then after some hesitation, you said, “No.” Do you have some reservations about your answer on that issue? EATHAN BANKS: To me, the way I see the penalty, it wouldn’t sway how I feel about it. It’s just more a –MR. ROSENZWEIG: Your Honor –ABSTRACT 452 THE COURT: You may make your objection from there if you’ve got some objection. MR. ROSENZWEIG: Your Honor, I thought we were prohibited from asking about death penalty issues. THE COURT: No. He’s following up. I noticed the hesitation. MR. ROSENZWEIG: Well, I –- (R 1417) THE COURT: I mean, he’s just following up on the hesitation that the man –- He’s not asking the general question of the panel. You may have a seat. Objection overruled. Go ahead and tell Mr. Deen –MR. DEEN: I may be misinterpreting. I noticed you hesitated quite a bit. EATHAN BANKS: It wouldn’t sway judgment, it’s just the thought of it makes me uncomfortable. But it would not make me -- If evidence was given, I would not change my answer because of that. It’s just the whole thought of it is just kind of uncomfortable. MR. DEEN: Fair enough. Would be for anyone, wouldn’t it, but fair enough. Thank you. Thank you, Your Honor. THE COURT: All right, you may ask, Mr. Rosenzweig. Voir Dire by Counsel for Defense ABSTRACT 453 MR. ROSENZWEIG: Ladies and gentlemen, how many of you have served on a jury before? Mr. Pace? JOEL PACE: Yes. MR. ROSENZWEIG: Mr. Pace, was it here? JOEL PACE: Yes, sir. MR. ROSENZWEIG: How long ago was it? JOEL PACE: Two years. (R 1418) MR. ROSENZWEIG: Two years ago. Do you remember whether it was a civil case or a criminal case? JOEL PACE: Criminal. MR. ROSENZWEIG: Criminal case. Did you actually get to serve on a jury and go back in the jury room? JOEL PACE: Yes. MR. ROSENZWEIG: How many times? JOEL PACE: Just once. MR. ROSENZWEIG: Just once. Did you render a verdict? JOEL PACE: Yes, sir. MR. ROSENZWEIG: And you understand then that a verdict must be ABSTRACT 454 unanimous, all twelve of you must agree? JOEL PACE: Correct. MR. ROSENZWEIG: Okay. Did that jury have any problem reaching a verdict? JOEL PACE: No, sir. MR. ROSENZWEIG: Now, sometimes juries have problems reaching a verdict; and that’s why they go back and deliberate. Now, if you were in a minority, one way or the other, would you have any problem in sticking to your guns, so to speak, and not going along with the majority, whatever that might be? JOEL PACE: No, sir. (R 1419) MR. ROSENZWEIG: And let me ask the same question of –- Make sure I have all the names correctly. Is it Ms. Connard? LAURA CONNARD: Yes. MR. ROSENZWEIG: Okay. You’ve never served as a juror? LAURA CONNARD: No, I haven’t. MR. ROSENZWEIG: Would you have any problem with sticking to your guns, so to speak? LAURA CONNARD: I’d not only stick to my guns, I’d have to be convinced, but if I was convinced that I was wrong then I would change my vote. ABSTRACT 455 MR. ROSENZWEIG: Does the defendant have to convince you of anything? You understand the state has the burden of proof? LAURA CONNARD: Right. MR. ROSENZWEIG: Do we, the defense, have to convince you of anything? LAURA CONNARD: No, I think they do. My understanding is I’d have to –- I would have to be shown that the proof was there. MR. ROSENZWEIG: And do you remember what standard of proof they have to show? I’m sorry to pick on you, but I’ve got to pick on someone. LAURA CONNARD: Beyond a shadow of a doubt. (R 1420) MR. ROSENZWEIG: Excuse me? LAURA CONNARD: Beyond a shadow of a doubt. MR. ROSENZWEIG: Well, that’s not the legal standard. It’s beyond a reasonable doubt. LAURA CONNARD: Beyond a reasonable doubt. MR. ROSENZWEIG: And it means if you have a reasonable doubt, you cannot find the person guilty. And I’ll ask Mr. Stell –- Excuse me. I’m sorry. Mr. Banks? Okay, Mr. Banks, you just heard it has to be beyond a reasonable doubt. Now, the state has to prove every element of a charge. Now, I assume you haven’t been to law school, but let me ABSTRACT 456 sort of pick on you and ask you: Do you know what an element is? EATHAN BANKS: As far as the law, no, sir. MR. ROSENZWEIG: Okay, it’s a part. It’s a part of the charge. The judge read to you something –- The recitation he read to you was “knowingly causing the death of Aubriana Coke, a person under a certain age, under circumstances manifesting extreme indifference to the value of human life.” Well, in this case, “knowingly” is a part. That’s an element. They have to prove “knowingly.” There’s a definition that the judge has given you of “knowingly.” “Under circumstances manifesting extreme indifference to the value of human life” is also an element. They have to prove that beyond a reasonable doubt, and everything else. “Causing the death beyond a reasonable doubt.” “Age.” There won’t be any dispute of the age of the little girl, but that’s something that, technically, has to be proved. Now, if the state only proves three out of four, four out of five, beyond a reasonable doubt, what does your vote have to be? (R 1421) EATHAN BANKS: I mean, like, they can’t just -- If they don’t prove everything they’re required (inaudible)-MR. ROSENZWEIG: If they don’t prove everything they’re required to prove then the vote has to be not guilty because the state didn’t make its burden of proof. Do you have any problem with that as the law? ABSTRACT 457 EATHAN BANKS: No, sir. MR. ROSENZWEIG: Okay, Mr. Stell? JUSTIN STELL: Yes, sir. MR. ROSENZWEIG: Do you have a problem with that as the rule? JUSTIN STELL: No, sir, I don’t. The evidence has to be there. MR. ROSENZWEIG: And the evidence has to be there beyond a reasonable doubt. (R 1422) JUSTIN STELL: Yes, sir. MR. ROSENZWEIG: Every element. THE COURT: You’ve said that several times. Let’s move on. MR. ROSENZWEIG: Okay. THE COURT: I’m going to give you about another thirty seconds. MR. ROSENZWEIG: Ms. Densmore, do you have any problem with that? KIMBERLY DENSMORE: No, sir. MR. ROSENZWEIG: Okay, Mr. Pace, on your questionnaire, you indicated that apparently a member of your family has been a victim of a crime. JOEL PACE: That’s correct. MR. ROSENZWEIG: How long ago was that? JOEL PACE: Thirteen –- Probably thirteen or fourteen years. ABSTRACT 458 MR. ROSENZWEIG: Did the person –- Was anyone ever charged? JOEL PACE: Yes. MR. ROSENZWEIG: Was the person convicted? JOEL PACE: Yes, sir. MR. ROSENZWEIG: Was it here in Monticello? JOEL PACE: Yes, sir. MR. ROSENZWEIG: Was Mr. Deen involved in that case? (R 1423) JOEL PACE: No, sir. MR. ROSENZWEIG: Did you attend the trial? JOEL PACE: One day. MR. ROSENZWEIG: Was there –- What was the charge? Do you recall? JOEL PACE: Attempted murder. MR. ROSENZWEIG: Attempted murder. Do you know if that person is still in the penitentiary? Was the person convicted? JOEL PACE: Yes, sir. MR. ROSENZWEIG: And he went to the pen? JOEL PACE: Yes, sir. MR. ROSENZWEIG: Do you know if he’s still there or not? JOEL PACE: I assume so. ABSTRACT 459 MR. ROSENZWEIG: Okay. You haven’t (inaudible)? JOEL PACE: No, sir. MR. ROSENZWEIG: Would –MR. DEEN: Your Honor, I think I need to volunteer that I did prosecute the case. JOEL PACE: Oh, did you? (R 1424) MR. DEEN: Yes. THE COURT: See, that’s the impression that you make. MR. DEEN: I’m sorry, I didn’t hear you. THE COURT: A little levity. It proves your memory is better than Mr. Pace’s, I guess. MR. DEEN: (Talking over) something different. THE COURT: I understand. I understand. Get to the point. MR. ROSENZWEIG: Okay, Mr. Banks, according to yours, you indicated that you were related to, or close personal friend, of a law enforcement officer, or attorney. I need you to specify a little bit more. EATHAN BANKS: Well, my adopted brother, Steve Young, was chief of police in Mayflower; and now he’s in Star City. MR. ROSENZWEIG: In Searcy? ABSTRACT 460 EATHAN BANKS: Star City. MR. ROSENZWEIG: Star City. So your adopted brother’s the police chief in Star City? ETHAN BANKS: I believe he’s the police chief. He was in Mayflower; I believe he’s in Star City as well. MR. ROSENZWEIG: So do you talk to him about cases? (R 1425) EATHAN BANKS: No. MR. ROSENZWEIG: Now, the jury decides the credibility of the witness –THE COURT: We’re not going there. I told you in the last one –MR. ROSENZWEIG: I was not asking –- I was just prefacing the question, Your Honor. THE COURT: Your time’s up. I gave you thirty seconds more; and you went through the credibility one time and found out that wasn’t what it was about, so I’m going to sit you down now. And you-all make up your mind on your challenges. When I turn to you again, I want a straight answer. Ladies and gentlemen, if you-all would, stand outside the door and we’ll let you know in about two minutes if anybody has been -[Group 6 exits the courtroom.] ABSTRACT 461 MR. ROSENZWEIG: Your Honor, may we have about thirty seconds or a minute to consult? THE COURT: You may have thirty seconds to consult. THE COURT: All right, I turn to the state. Ms. Densmore? MR. DEEN: Good to the state. (R 1426) MR. ROSENZWEIG: Your Honor, first, I want to renew the cause challenge. THE COURT: I’m either going to accept Ms. Densmore because you will not give me an answer. MR. ROSENZWEIG: (Talking over.) Your Honor, I just need to say the magic words, which is since –- Assuming you have denied the cause challenge based upon the inability to make the appropriate questions then we exercise a peremptory. THE COURT: Good. Stell? MR. DEEN: Good to the state. MR. ROSENZWEIG: We will accept Mr. -THE COURT: Eathan Banks? MR. DEEN: The state exercises a peremptory on Mr. Banks. THE COURT: Connard? MR. DEEN: Good to the state. MR. ROSENZWEIG: We’ll accept Ms. Connard. ABSTRACT 462 THE COURT: Pace? MR. DEEN: Good to the state. MR. ROSENZWEIG: We’ll exercise a peremptory. THE COURT: All right. Good deal. All right, bring Stell and Connard in; and tell the others on that panel they can go. Bring Stell and Connard in. And announce the next eight so they’re out there. THE BAILIFF: I’ve already given them the list, Your Honor. (R 1427) [Justin Stell and Laura Connard return to the courtroom.] THE COURT: Mr. Stell and Ms. Connard, you know I didn’t call you back in to tell you that you have been excused; I brought you back in to tell you that you’ve been accepted as jurors. I want you to report in the morning. Hopefully, the trial will start then. I can’t predict. I want you to report to the jury room at the other end of the hall no later than a quarter til nine. I start court promptly. Mr. Stell, I need a –- In case you have to be called for any reason, I need an address and phone number. Do we have it? Go on and give it to make sure we’ve got it. JUSTIN STELL: My address is: 3034 Highway 83 North. Do you need my phone number? My phone number is 1-870-460-5803. THE COURT: Neither I, nor the lawyers, are going to call you. If the lawyers ABSTRACT 463 do, you let me know. That’s a joke. Ms. Connard, the same question. LAURA CONNARD: 235 Beulah Road, Monticello, Arkansas. My phone number is (870) 308-0066. (R 1428) THE COURT: All right. I normally do not admonish the jury not to discuss this case with anybody else until they’re sworn in; I’m doing it early this time. Don’t discuss this case with anyone else. I know you’re human, but know that you can only decide this case based upon what happens in this courtroom. No one else will see it but you, from beginning to end, so their opinion wouldn’t be worth anything anyway. With that said, you’re excused until in the morning at a quarter til nine. Thank you so much. [Justin Stell and Laura Connard exit the courtroom.] THE COURT: You’ve got Hartness, Cundiff, McCorkle, Skinner, Reeves, Ward, Harrison, and Martin. MR. ROSENZWEIG: Your Honor, may I be heard for a second? THE COURT: Go ahead. (R 1429) RENEWAL OF RECUSAL MOTION DUE TO INABILITY TO VOIR DIRE MR. ROSENZWEIG: Thank you, Your Honor. I just want the record to reflect a couple of things why we are exercising –- not taking some people –- after ABSTRACT 464 making a cause challenge. And I just want the record to reflect that the reason is is because we are trying to make as an intelligent use of out peremptories as possible. The alternative is just willy-nilly exercising –- It’s our position that we’re having structural error in not being allowed to ask specific questions; and we’re not waiving that by just burning our cause challenges willy-nilly under the circumstances that the Court is imposing on us, which we have objected and we continue to object. THE COURT: Very well. MR. ROSENZWEIG: Your Honor, I will also, at this point, renew our recusal motion because of the manner in which the Court has restricted us and prevented us from, in our opinion, properly representing our client. THE COURT: Denied. Thank you. Bring in the jurors. VOIR DIRE OF SECOND PANEL OF EIGHT (GROUP 7) [Group 7 enters the courtroom.] THE COURT: Let’s see if I’m straight on the names as we set up in order to make it go smoother. Diane Hartness on the end; Crystal Cundiff in the second chair; James McCorkle; Anita Skinner; Michael Reeves; Amy Ward; Randall Harrison; and Bobby Martin. Thanks. (R 1430) Voir Dire by the Court THE COURT: All right, this is the voir dire process. The charges have ABSTRACT 465 already been read to y’all. We’ll go back over them in a minute. The Court is going to ask you most of the questions. I’ll allow very brief questions by counsel, if they wish, following my questions. First, I want to start with the witness list for the state and the defense, and determine whether or not any of you are so closely acquainted with those witnesses, any one of them, that it might affect your ability to judge their credibility, pro or con. You don’t have to say whether it would affect you good or bad; you just have to say whether or not it would affect you. You may know them, it’s just whether or not you know, or if you have any strongly-held opinions you think the Court should know. If so, raise your hand. I’ll stop and find out. First, witnesses for the state: Joey Earnest; Brenda Earnest; Celita Brooks; Robert Jacobs; Carolyn Stuard; Clayton Moss; Scott Woodward; Lisa Channell; Mary Simonson; Stephen Erickson; Victoria Pedraza; Tim Nichols; Jeff Martin; Scott Carson; Mark Gober; and Dr. Ramos, who’s not from here. (No hands.) No hands. On the defense witness list: Corey Atkins; Mike Reynolds; Mark Shull; Tim Coke; Ladell Wright; and a Dr. Stewart, he’s from out of state. (No hands.) No hands. (R 1431) Now, when you-all were gathered up earlier this morning, I read the charge that the state had filed against Mr. Pedraza; and I told you it was one count entitled capital ABSTRACT 466 murder. I read the charge. I’m going to ask you a couple of things about it. And I will need to, and counsel will need to know, the answers to a couple of questions; and depending upon your answer, naturally, it could affect your ability to serve. The charge is this: that on or about February the 26-27, 2012, Mr. Pedraza knowingly caused the death of Aubriana Coke, a child less than fourteen years of age, under circumstances manifesting extreme indifference to the value of human life. If convicted, the jury would have two options: life without parole or the death sentence. Let me begin by saying again, which cannot be said too much, that the state has the burden of proving to each juror beyond a reasonable doubt each element of the offense charged. In other words –- First of all, that it was Mr. Pedraza who in fact caused her death; and that he did so knowingly; and under circumstances manifesting the extreme indifference to human life. So if they prove that Mr. Pedraza beyond a reasonable doubt; it was done knowingly beyond a reasonable doubt, and under circumstances manifesting extreme indifference to the value of human life. If they fail to prove beyond a reasonable doubt, any one of those, then the verdict should be not guilty. Do each of you understand that and agree to abide by that instruction when I give it to you at the conclusion of this case? I need a “yes.” (Unanimous: Yes) Or I need a “no,” if that’s not the case. I hear no noes. (R 1432) Now, I want to focus on two things in particular and find out if it would affect ABSTRACT 467 you impartially considering all the evidence in the case. Both Mr. Pedraza and the state are entitled to a fair trial. Anything in your mind that affects your thought process –- And no one has a window to your soul, no one can read your mind; you have to simply speak it -- Anything that affects your impartiality, we need to know. And the first thing I’m going to ask you is this. It will be shown that Aubriana Coke –- It says “less than fourteen,” but she was between the ages of two and three at the time of her death. Now, that doesn’t change a thing about what the state has to prove. It has to prove beyond a reasonable doubt that it was Mr. Pedraza; that he in fact caused her death knowingly -- and that must be shown beyond a reasonable doubt –and that it was under circumstances manifesting extreme indifference to the value of human life. That must also be shown beyond a reasonable doubt. ( R 1433) Now, does the fact that the victim was between two and three, is that alone going to cause you to be less than impartial in your consideration of the evidence? And is it going to lean a little in favor of the state? Or are you going to hold the state to the burden that a juror is required by law to do? And if you cannot, we need to know it at this point in time. In other words, does Mr. Pedraza need to be concerned, because he’s the one on trial, that the mere fact that he is charged –- that the alleged victim is between two and three –- is going to cause you to be more inclined to convict on that alone? If it is, you don’t need to serve. Or can you hold the state to ABSTRACT 468 its burden? Because he stands before you presumed innocent. impartial, Ms. Hartness? DIANE HARTNESS: Yes. THE COURT: Ms. Cundiff. Please say it for me. (R 1434) CRYSTAL CUNDIFF: Cundiff. THE COURT: Cundiff. Ms. Cundiff? CRYSTAL CUNDIFF: Yes. THE COURT: Mr. McCorkle? JAMES McCORKLE: Yes. THE COURT: Ms. Skinner? ANITA SKINNER: Yes. THE COURT: Reeves? MICHAEL REEVES: No. THE COURT: Ms. Ward? AMY WARD: Yes. THE COURT: Mr. Harrison? RANDALL HARRISON: Yes. THE COURT: Ms. Martin? BOBBY MARTIN: No. ABSTRACT 469 Can you be THE COURT: I believe I can excuse Mr. Reeves and Ms. Martin. Mr. Reeves and Ms. Martin, you-all are free to go. Thank you. [Michael Reeves and Bobby Martin are excused by the Court and exit the courtroom.] THE COURT: The second question I’m going to need individual answers to is this. I don’t know if this case will ever reach the punishment stage. The case hasn’t been tried; I have no way of knowing. Do any of you hold such strong views, pro or con -- I don’t care, don’t need to know really -- about the death penalty such that it would affect your ability to impartially consider the evidence in this case? The state needs to know that; the defense needs to know that. The fact that if convicted of capital murder that was a possibility, along with life in prison without parole, any of you entertain such conscientious, or any type of belief about the death penalty that it would interfere with your ability to impartially consider the verdict -- or evidence -as you hear it in this case? Now, I need to hear again on this one from each of you individually. Ms. Hartness? (R 1435) DIANE HARTNESS: No. THE COURT: Ms. Cundiff? CRYSTAL CUNDIFF: No. THE COURT: Mr. McCorkle? ABSTRACT 470 JAMES McCORKLE: No. THE COURT: Skinner? ANITA SKINNER: Yes. THE COURT: Ms. Ward? AMY WARD: Yes. THE COURT: Harrison? RANDALL HARRISON: No. THE COURT: I will excuse Ms. Ward and –- I believe it was you that said “yes,” Ms. Skinner. My memory is not what it was –- You-all are –- You two ladies are excused. [Anita Skinner and Amy Ward were excused by the Court and exited the courtroom.] (R 1436) MR. ROSENZWEIG: Your Honor? Your Honor, the same objection as before on the inability to question. THE COURT: I’ll consider that a continuing objection. MR. ROSENZWEIG: Thank you. THE COURT: Now, I want to make sure –- I’ve been submitted this question by one of the parties to ask. Well, let me tell you this: In Arkansas, you are never required to return a verdict of death. No one can say to you that you are required to. ABSTRACT 471 That is a decision, if you ever reach the point of deciding between life or death, that would be governed by the jury instructions; and those instructions will not require you to do so. Any notion that –- I don’t know if you’d have any notion that you’re required, but I’m just telling you that that’s not required. And if that point was ever reached, the jury’s given instructions, and in those instructions on how to proceed in the deliberations, certain factors can be considered. Among those factors are what we call “mitigating factors,” and the jury is free to decide what those mitigating factors are; and that is an individual decision for each juror, as to whether or not they exist, and what weight to give them, as opposed to the other side. And that is an individual decision that each juror must make if selected to serve. Do each of you agree to shoulder the responsibility of that individual decision with respect to deciding what, if any, factors there are in favor of Mr. Pedraza, as far as mitigation, against the death penalty? Do each of you agree to make that decision yourself? Do you? All of you said yes. (Unanimous: Yes) (R 1437) And I’m about through. With respect to any pretrial publicity, I don’t know how much the case has gotten because I don’t pick up that much outside the courthouse. But have any of you read, or heard anything about this case, circumstances or facts, or have you heard anything on the street that you can’t put out of your mind, set aside, and decide this case solely upon the law and the evidence as ABSTRACT 472 you hear it in the courtroom? Any of you heard anything that you cannot put aside and, if sworn to decide this case just upon what you hear in the courtroom, do so? Any of you? Anything –- I haven’t said you’ve heard anything; I’m just saying is there anything such that you couldn’t give either side a fair trial if you were sworn to do so? KIMBERLY DENSMORE: No. THE COURT: Did you –KIMBERLY DENSMORE: No. (R 1438) THE COURT: I thought you shook your head no, but I couldn’t be sure. (Unanimous: No) All said no. I always forget this question –- Did I ask you-all were any of you close personal friends of anybody at the –- any of the lawyers at the state table –- tight with them –- or at the defense table, or Mr. Pedraza? (No hands.) Any of you, any members of your immediate family –- and if you wanted to approach the bench, you could on this one –- been at odds with the prosecuting attorney’s office, either because they’ve been charged with something, or something like that, that Mr. Deen and his prosecutors, would have to worry about when they presented their case, that would affect your impartiality? Any of you in that boat? (No hands.) ABSTRACT 473 Mr. Deen? MR. DEEN: No further questions from us, Your Honor. THE COURT: All right. Defense? MR. ROSENZWEIG: Your Honor, how much time do I have? THE COURT: Oh, you’ve got about three or four minutes. (R 1439) Voir Dire by Counsel for Defense MR. ROSENZWEIG: Ladies and gentlemen, how many of you have served on a jury before? Have any of you served? (No hands.) None? (Inaudible) Do all of you understand that a jury verdict in the guilt phase of a case, in deciding whether or not a person’s –- the state has proven its case –- that such a verdict must be unanimous, all twelve of you must agree whether the verdict is guilty or not guilty? I have everyone saying yes. Okay. Now, in the event you go back to that jury room and you just can’t go along with the majority, whatever that might be, can you-all promise that you would stick to your convictions? Listen to what they have to say, but in the end, not give in just so you can go home, or just to get out of there, or whatever? Can y’all promise that? Anyone feel that -- This is not a majority-rule thing; it has to be unanimous. All of you onboard with that? Anyone have a problem with that? (No hands.) Now, the judge read to you what the charge was; and each ABSTRACT 474 of those charges –- And what the judge told you “knowingly, under circumstances manifesting extreme indifference” is the charge. And each part of that charge is what’s called an “element.” It’s a fancy three syllable word for “part.” The state’s got to prove –- Mr. Deen and his people there -- have got to prove each of those elements beyond a reasonable doubt. Now, for instance, sir, one of the elements is “knowingly.” (R 1440) The state has to prove that. And another element, ma’am, is “under circumstances manifesting extreme indifference to the value of human life.” The state has to prove that. And so there’s, depending on how you divide it up, four or five elements to this charge. Now, Ms. Hartness, let me just ask you –- I’m going to pick on you for a second. If the state doesn’t prove all the elements, the state only proves four out of five beyond a reasonable doubt, what does your vote have to be under the law? DIANE HARTNESS: (Inaudible) hold to my decision. MS. ROSENZWEIG: I’m sorry, ma’am? DIANE HARTNESS: (Inaudible) hold to my decision, no matter what it is. MR. ROSENZWEIG: Well, maybe I didn’t make myself clear. But if the state doesn’t prove every element, every single element that they’re required to prove beyond a reasonable doubt –- If they’ve got four of them, and the fifth one is sort of a “sort of” and not a “reasonable doubt,” you have to vote not guilty to that charge. ABSTRACT 475 (R1441) DIANE HARTNESS: Right. MR. ROSENZWEIG: Do you have any problem with that as the law? DIANE HARTNESS: No. MR. ROSENZWEIG: Can you promise you’ll do that? DIANE HARTNESS: Yes. MR. ROSENZWEIG: And, Ms. Cundiff, the same thing? CRYSTAL CUNDIFF: Yes. MR. ROSENZWEIG: And, Mr. McCorkle and Mr. Harrison? JAMES McCORKLE: Yes. RANDALL HARRISON: Yes. MR. ROSENZWEIG: Same. Now, if you’re selected on the jury, what you will be seeing is testimony from the witness stand and evidence, and maybe documents or photographs, and that type of thing. Now, the jury is to decide the credibility of the witnesses. Okay? Now, does anyone think just because a witness takes an oath to tell the truth that means they’re automatically going to tell the truth? (R 1442) THE COURT: I’m going to stop you there. I stopped you at that point before because that’s not voir dire. ABSTRACT 476 MR. ROSENZWEIG: Your Honor, I think that’s an appropriate question. THE COURT: But you made that argument to me before and I rejected it –MR. ROSENZWEIG: No -THE COURT: –- and I pretty much put the same restriction on Mr. Deen. And they’ll be given an instruction on the credibility of witnesses. The purpose of voir dire is other than that, so with that said, you’ve had your five minutes. I’m going to go ahead and sit you down and let you-all make your decisions about these jurors. MR. ROSENZWEIG: Note my objection. THE COURT: You’ve got it. All right. If you-all would please stand outside the door and we will let you know here in about a minute. I’ll give you thirty seconds, or a minute, to confer with your team. [Group 7 exits the courtroom.] MR. ROSENZWEIG: Your Honor, before we do this, I just wanted –- I think the record should reflect my continuing objection. And I think you’ve given us the continuing objection on the inability to question. (R 1443) THE COURT: It reflects that. MR. ROSENZWEIG: And I will move to quash the entire panel based upon, again, as before. And I assume the ruling is the same. ABSTRACT 477 THE COURT: Why wouldn’t it be? All right. Diane Hartness for the state? MR. DEEN: Good to the state. MR. ROSENZWEIG: Without waiving our previous cause challenge, we will accept Ms. Hartness. THE COURT: Crystal Cundiff? MR. DEEN: Good to the state. MR. ROSENZWEIG: Same position on that: without waiving peremptory –- Excuse me. We’ll not exercise. We accepted her. THE COURT: Are you sure? MR. ROSENZWEIG: Yes, sir. We are accepting this person without waiving our previous objection. We are not exercising a peremptory on this person. THE COURT: Then “accept” is what you say. James McCorkle? MR. DEEN: Good to the state. MR. ROSENZWEIG: We exercise a peremptory on Mr. McCorkle. THE COURT: Randall Harrison? MR. DEEN: Good to the state. MR. ROSENZWEIG: And we exercise a peremptory on Mr. Harrison. (R 1444) ABSTRACT 478 THE COURT: Very good. Bring Diane Hartness and Crystal Cundiff back in. You may tell the others they are free to go. [Diane Hartness and Crystal Cundiff return to the courtroom.] THE COURT: All right, Ms. Hartness and Ms. Cundiff, you have been selected to serve on this jury. If you will be here promptly at a quarter til nine in the morning in the jury room at the end of the hall. I need to make sure I have your address and phone number in case we have to reach you. I mean, I’m not going to be calling you, and the lawyers aren’t, but just in case something happens. Ms. Hartness, your address? DIANE HARTNESS: (Inaudible) P.O. Box –THE COURT: Well, do this –- If you don’t want to announce it in the courtroom, that’s fine. Leave it with the bailiff in case somebody had to go by and say court was, whatever. That’s all we want. What about a phone number, are you going to leave that with the bailiff? DIANE HARTNESS: Yes, I can. (R 1445) THE COURT: Okay. What about you, Ms. Cundiff? CRYSTAL CUNDIFF: 2183 Highway 130, Monticello, Arkansas. THE COURT: And phone number? CRYSTAL CUNDIFF: (870)723-6259. ABSTRACT 479 THE COURT: All right. Good deal. Do not discuss this case with others. If you would not, I would appreciate it. Thank you. I’ll see you in the morning. [Diane Hartness and Crystal Cundiff exit the courtroom.] THE COURT: Let’s begin with Henry James. Have you got that list? Get me on down to Mia Haney. I believe I told y’all that Michael Masters gave us a medical excuse at the noon hour; and it’s on file with the clerk. VOIR DIRE OF THIRD PANEL OF EIGHT (GROUP 8) [Group 8 enters the courtroom.] THE COURT: Mr. Henry’s coming first? JAMES HENRY: Yes, sir. THE COURT: Good. Freda Johnson? FREDA JOHNSON: Yes, sir. THE COURT: John White? JOHN WHITE: Yes, sir. THE COURT: Mary Foster? (R 1446) MARY FOSTER: Yes. THE COURT: Linda Dodrill? LINDA DODRILL: Yes. THE COURT: Kyle Young? ABSTRACT 480 KYLE YOUNG: Yes, sir. THE COURT: Craig Grantham and Mia Haney? Y’all have a seat. Voir Dire by the Court THE COURT: All right, the Court’s going to begin, first, by giving you the names of the potential witnesses that the state may call and the defense may call; and what I need to know from you-all is: Are you-all close to, or know personally, any of these witnesses, such that it would affect whatever you thought of their testimony? You just know who they are, or something, and it wouldn’t bother you if they testified one way or another; you could consider them just like you would any other evidence, then you’re okay. I’m going to go over that list. And if you are that close to one of these witnesses, then if you’ll raise your hand, I’ll stop and find out what it’s about. State witnesses: Joey Earnest; Brenda Earnest; Celita Brooks; Roberts Jacobs; Carolyn Stuard; Clayton Moss; Scott Woodward; Lisa Channell; Mary Simonson; Stephen Erickson; Victoria Pedraza; Tim Nichols; Jeff Martin; Scott Carson; Mark Gober; and Dr. Ramos, who’s not from here. (No hands.) (R 1447) All right, for the defense: Corey Atkins; Mike Reynolds; Mark Shull; Tim Coke; Ladell White; and a Dr. Stewart, who’s not from here. (No hands.) I didn’t see any hands. All right. Now, let me –- You heard the charge being read when you-all came ABSTRACT 481 in this morning. I told you what the case was about. Now, I’m going to go over that in more detail with you now and ask you particular questions; and some of the questions you’re going to have to individually answer. Then if the state and the defense, I will allow them limited questions following what I ask, and then we will be done and decide. First of all, I’m going to read the charge again. It says on or about February the 26-27 of 2012,that the defendant knowingly caused the death of Aubriana Coke, a child less than fourteen years of age, under circumstances manifesting extreme indifference to the value of human life; and it goes on to say this offense is punishable by death or by life imprisonment without parole. (R 1448) Now, as I’ve told the others that have come in before, the mere filing of the charge is no evidence at all that anybody’s done anything. It has always been, since Jesus was little, the responsibility of the state to prove a defendant’s guilt beyond a reasonable doubt. And when I say that -- and the reason I read the charge –- is in this case, the state must prove to you, each of you, beyond a reasonable doubt that Mr. Pedraza, first, knowingly caused the death of Aubriana Coke, under circumstances manifesting extreme indifference to the value of human life. If they fail in any of those respects, with respect to –- They don’t prove beyond a reasonable doubt it was him, your verdict will be not guilty. If they don’t prove beyond a reasonable doubt ABSTRACT 482 it’s done “knowingly,” it’s not guilty. If they don’t prove any of it, meaning, any other part of it, “under circumstances manifesting extreme indifference to the value of human life” –- it doesn’t matter what else they prove -- it’s not guilty. The proof will be in this case, the parties agree, that at the time of her death, Aubriana Coke was between the ages of two and three. Now, that changes nothing with respect to the state’s responsibility to prove all of the things that they said they could prove beyond a reasonable doubt. And I need to know from each one of you-all if simply the fact that a girl between the ages of two and three is an alleged victim, is that going to bleed over or prejudice you, where you will not hold the state to its burden of proof beyond a reasonable doubt on each one of the things? First, that it was him; second, knowingly; and so on and so forth. Does that fact alone, the fact that the alleged victim was under the age of three, is that going to affect your impartiality? The state and the defendant are both entitled to an impartial jury; and that means impartial individual juror. (R 1449) Now, I’m going to ask that question of each one of you about whether or not the victim’s age would affect your ability to hold the state to its burden of proof on each element and be impartial. In other words, does Mr. Pedraza have something to worry about from you individually simply because the alleged victim is under the age of three? ABSTRACT 483 Now, I begin with you, Mr. Henry, James Henry: Does that affect you such that you couldn’t fairly judge the case? JAMES HENRY: No, sir. THE COURT: Ms. Johnson? FREDA JOHNSON: No, sir. THE COURT: Mr. White? JOHN WHITE: No, sir. THE COURT: Ms. Foster? (R 1450) MARY FOSTER: I don’t guess. THE COURT: You don’t guess? MARY FOSTER: (Inaudible) THE COURT: Well, you know, there may be another case that you would be better on than here. What I’m saying is is that I need to know, in a sense, without –That’s something I’ve got to kind of have a “yes” or a “no” on. And when the juror hesitates, it doesn’t mean they wouldn’t be a good juror on another case; it just means that this may not be the case where they can be impartial. You have some question in your mind, that’s all I’m saying, about whether or not the fact that the alleged victim was between two and three. Does the state or the defendant have anything to worry about that’s going to make you look at the case differently, in other words, that ABSTRACT 484 you couldn’t judge it impartially? MARY FOSTER: No. THE COURT: Let me go then to Linda Dodrill. LINDA DODRILL: It wouldn’t interfere. THE COURT: No? LINDA DODRILL: It wouldn’t interfere. THE COURT: All right. Kyle Young? (R 1451) KYLE YOUNG: No, sir. THE COURT: Craig Grantham? CRAIG GRANTHAM: No, sir, that would not affect me. THE COURT: Sir? CRAIG GRANTHAM: No, sir, that would not affect me. THE COURT: Mia Haney? MIA HANEY: No, sir. THE COURT: Next question that I will need an individual answer to is this: The fact that the death penalty is involved, and if –- I haven’t seen the state’s case and I haven’t heard the defense –- I have no prediction –- he is presumed innocent, if for some reason they reach the penalty phase and he’s found guilty of capital murder, will you be able to decide, make a decision, two options being life without parole or death, ABSTRACT 485 knowing that, do any of you hold such a strong opinion about the death penalty, one way or the other –- I don’t have to know what it is –- but some either moral conviction or some political conviction that would cause you to not be able to judge the evidence, all the evidence, leading up to the guilt-or-innocence stage impartially? Just because the death penalty has been requested by the state, would it affect your ability to impartially hear the evidence, and give the state and the defendant a fair trial? If you have such belief about the death penalty, you don’t have to tell me what it is –- I just need to know if it would affect your ability to hear the case. (R 1452) I begin with Mr. James. I need to know if you could hear this case impartially, all the evidence, regardless of whether the state was asking for the death penalty. JAMES HENRY: Yes, sir. THE COURT: Ms. Johnson? FREDA JOHNSON: Yes, sir. THE COURT: John White? JOHN WHITE: Yes, sir. THE COURT: Mary Foster? MARY FOSTER: Yes. THE COURT: Linda Dodrill? LINDA DODRILL: Yes. ABSTRACT 486 THE COURT: Kyle Young? KYLE YOUNG: Yes, sir. THE COURT: Craig Grantham? CRAIG GRANTHAM: Yes. THE COURT: Mia Haney? MIA HANEY: Yes, sir. (R 1453) THE COURT: One thing I want you to be clear on –- And if it ever came to that, you would hear it in the instructions anyway. But I want you to be clear that the law in Arkansas never requires a juror to determine a death sentence. No case requires it. If it ever reached that point, as I said, you’ll be given jury instructions that I’ll read you. They’re given in every case (inaudible). They’re not something I make up. And those jury instructions would give you guidelines to follow and to apply to what you had heard, to give guidance to your –- Those jury instructions will not require a death sentence. In those instructions, there will be –- You will be given the authority and opportunity to find mitigating factors that would favor a lesser punishment. What I need to know is –- In other words, things that favor, that disfavor the death penalty. I need to know if each one of you will take the personal responsibility of deciding whether or not those mitigators exist, what they are, and how much weight to give them. In other words, what mitigating circumstances exist. ABSTRACT 487 And each juror will be responsible for determining what, if any, mitigating factors are, and then weigh those factors with those opposed to it, in making the decision of life without parole and death. That is an individual decision that you must make. Do each of you agree to make that decision? Would any of you not take that individual responsibility? If so, I want to see your hand. Let me go ahead and get an answer for the record. On second thought, let me go ahead and poll the jury. Let me go ahead and get an answer for the record. (R 1454) Mr. Henry, will you agree to take whatever responsibility the law imposes upon you to find mitigators if they are present? JAMES HENRY: Yes, sir. THE COURT: Ms. Johnson? FREDA JOHNSON: Yes, sir. THE COURT: Mr. White? JOHN WHITE: Yes, sir. THE COURT: Ms. Foster? MARY FOSTER: Yes, sir. THE COURT: Linda Dodrill? LINDA DODRILL: Yes, sir. THE COURT: Kyle Young? ABSTRACT 488 KYLE YOUNG: Yes, sir. THE COURT: Craig Grantham? CRAIG GRANTHAM: Yes, sir. THE COURT: Mia Haney? MIA HANEY: Yes, sir. (R 1455) THE COURT: With respect to anything that -- some people call it pretrial publicity -- I don’t know if you’ve heard anything about the case, what source, whether it was on the street, or through the Internet, or newspapers, or what have you, but I need to know if any of you has heard something that you can’t put out of your mind –- and only you know you’ve heard it –- and you sincerely believe it might affect your ability, and you might favor one side or the other -- just can’t remove it from your mind –- because the case must be decided solely upon what you hear and see in this courtroom. If not, no point in having a trial, is it? So have any of you heard from any source, media, or otherwise, anything about this case that would cause Mr. Deen and the state to have a concern about you as a juror, or that would cause Mr. Pedraza to have some concern about your impartiality, something that you couldn’t set aside? Any of you in that boat? (No hands.) I see no hands. As you know, and I explained to you in orientation, all criminal cases, the verdict must be unanimous on guilty or not guilty; and if guilty, it must be unanimous on punishment. ABSTRACT 489 (R 1456) Now, when you deliberate -- You are required to deliberate. And “deliberate” simply means exchange views, listen, pay attention to what the other jurors have to say, and take it into account their view; however, you’re never required, nor should you surrender, a sincere belief that you have either way, guilty or not guilty. In other words, after you’ve listened to everything and whatever your decision is, you’re not required to render, under the law, simply to get a verdict and to go (inaudible). And what I need to know is: Are each of you a strong enough individual, strong in that you will listen and are just not hardheaded, strong in that you can listen to other people, take into account what they say, maybe change, maybe not, but once you’ve decided, you’re the type of person that can stand by your guns –- Anybody here that can’t do that, show your hand. (No hands.) The presumption of a defendant’s innocence is for a reason. The responsibility of being a juror is a considerable responsibility. Both sides are entitled to a fair trial. MR. ROSENZWEIG: Your Honor, I’m sorry, I cannot hear you. THE COURT: I’m sorry. I said, “Both sides are entitled to a fair trial.” And I’ve often told jurors, and it’s a good idea in anything, to hear it all before you finally conclude, but always listen to the last word, whatever –- If there’s five minutes left in the trial, it’s your job to stay with that case until the end and –- Because you never ABSTRACT 490 know what can be said or done in the last minute or two. (R 1457) Any of you close personal friends –- Let me begin with this. Keep the state from having to ask. If you want -- You don’t want to say it out loud, you could always approach the bench. Thomas Deen is the prosecuting attorney and has been for many years; and, of course, they have five counties to cover and prosecute cases. Has he or his office –I’ll put it that way –- I don’t care if they’ve charged anybody in your family, or extended family, or close friends. Has, as a result of that -– if that’s the case in anybody’s personal situation here –- Does that put a bad taste in your mouth, that he needs to worry about that, that he has offended some good friend, a family member of yours, carrying out his job, and left a bad taste in somebody’s mouth? Is anybody in that boat? (No hands.) I take it by your silence there’s not. Are any of you related or close personal friends with the lawyers at the prosecutor table? (No hands.) Same question with respect to Mr. Pedraza and the lawyers at his table, any of you close with them? (No hands.) Mr. Deen, do you have any questions? (R 1458) MR. DEEN: No further questions from us, Your Honor. MR. ROSENZWEIG: Your Honor, before I begin, I’d like to clarify something because I’m not sure I heard you correctly back there. I thought I heard ABSTRACT 491 you say –- and maybe I’m wrong –- that a penalty verdict had to be unanimous if –Didn’t you say that? And I need to –- Because, if not, I need to raise that issue. THE COURT: Well, the penalty verdict does not –- You can always have a hung jury. MR. ROSENZWEIG: Well, Your Honor, respectfully, I don’t believe that’s the law. I believe the law is: Unless they’re unanimous for death then the verdict for the jury is life. THE COURT: That is the law. MR. ROSENZWEIG: Yes, sir. THE COURT: That’s a default position. I’m talking about a jury verdict; I’m not saying a sentence. You do understand the difference? MR. ROSENZWEIG: I do, Your Honor. THE COURT: Go ahead and ask your questions. Go ahead. MR. ROSENZWEIG: May I follow up on that? (R 1459) THE COURT: That –- No, because that’s just something that is not supposed to be gone into –MR. ROSENZWEIG: Well, I –THE COURT: –- and I would make my record on that following this –- and ABSTRACT 492 I have the answer to it and the case. Go ahead. Voir Dire by Counsel for defense MR. ROSENZWEIG: Ladies and gentlemen, I’ve got a very limited amount of time and I need to ask you some questions. First, I do not appear to have –- We do not appear to have Mr. Grantham’s bio sheet. Can I get a little bit of information on what your occupation is? CRAIG GRANTHAM: For 25 years, I was a quality control engineer; and I teach English in high school. MR. ROSENZWEIG: Where? CRAIG GRANTHAM: I teach English at Rison, Arkansas; and I teach a college class at UAM. MR. ROSENZWEIG: I don’t mean to pry, but are you married? CRAIG GRANTHAM: Yes, I am. MR. ROSENZWEIG: And is your wife employed anywhere? What does she do? (R 1460) CRAIG GRANTHAM: She has retired. MR. ROSENZWEIG: She has retired. What did she do before she retired? CRAIG GRANTHAM: She worked 37 years for the state as a program ABSTRACT 493 coordinator for people with disabilities. MR. ROSENZWEIG: Thank you, sir. And, Mr. White, I may be reading too much into this, but on your educational list, you wrote “E6,” which is military language of some sort. Were you in the military? JOHN WHITE: Yes, sir. MR. ROSENZWEIG: Are you in the military now? JOHN WHITE: No. MR. ROSENZWEIG: You were in the Army, I guess. JOHN WHITE: Yes. MR. ROSENZWEIG: Did you go to Iraq? JOHN WHITE: No. MR. ROSENZWEIG: You did not? JOHN WHITE: No. MR. ROSENZWEIG: Did you serve anywhere outside the United States? JOHN WHITE: Yes. (R 1461) MR. ROSENZWEIG: Okay, in war? JOHN WHITE: No. MR. ROSENZWEIG: The judge has asked you a number of questions, but ABSTRACT 494 I need to follow up –- I need to ask you some questions. As you may guess from Mr. Pedraza’s name and, I think, probably from his appearance, he is a Mexican from Mexico. Now, oftentimes, issues of immigration and that type of thing are hot-button issues and people have various different views on it, one way or the other. And what I need to ask you is: Do you have –- Would the fact that Mr. Pedraza is of Mexican decent, is that going to cause you any problem in listening to this evidence fairly? Mr. James –JAMES HENRY: No, sir. MR. ROSENZWEIG: –- do you have –- Have you taken a public position or a position with your friends with regard to immigration, that type of thing? JAMES HENRY: No. MR. ROSENZWEIG: And, Ms. Johnson? FREDA JOHNSON: No. MR. ROSENZWEIG: Okay. And, Mr. White? JOHN WHITE: No. MR. ROSENZWEIG: Okay. Ms. Foster? MARY FOSTER: No. MR. ROSENZWEIG: Okay. And is it Dodrill? (R 1462) LINDA DODRILL: Uh-huh (yes). ABSTRACT 495 MR. ROSENZWEIG: And, Mr. Young? KYLE YOUNG: No. MR. ROSENZWEIG: And, Mr. Grantham? CRAIG GRANTHAM: Did you ask if we had strong opinions –MR. ROSENZWEIG: Yes, sir. CRAIG GRANTHAM: –- on immigration? MR. ROSENZWEIG: Yes, sir. CRAIG GRANTHAM: Well, we all immigrated. MR. ROSENZWEIG: Well, I understand that. CRAIG GRANTHAM: No, sir. MR. ROSENZWEIG: And Mr. Haney –- Ms. Haney, excuse me? MIA HANEY: No, sir. MR. ROSENZWEIG: I apologize. MIA HANEY: That’s fine. MR. ROSENZWEIG: Ms. Dodrill, it’s been pointed out that apparently you didn’t answer the question, at least I didn’t hear you. LINDA DODRILL: No. MR. ROSENZWEIG: Huh? (R 1463) LINDA DODRILL: No, I have no public views. ABSTRACT 496 MR. ROSENZWEIG: Okay. Now, the jury is going to hear evidence from witnesses; and the jury makes the decision as to the credibility of the witnesses. How many of you have served on a jury before? Okay. About half of you. Was it a civil case or criminal case? MIA HANEY: Criminal case. MR. ROSENZWEIG: Criminal case. And? MARY FOSTER: Civil. MR. ROSENZWEIG: Civil. FREDA JOHNSON: Criminal. MR. ROSENZWEIG: Were they all here in Drew County? THE COURT: I assume you know that you’re not getting the names as they answer. My reporter needs to get the names. MR. ROSENZWEIG: Okay. THE COURT: Please, when a lawyer asks you something that needs an answer, he’s supposed to say, Ms. So and So or Mr. So and So, that way my reporter picks it up. So let’s begin again. MR. ROSENZWEIG: Okay. Thank you for pointing that out, Your Honor. Okay, Mr. James, you did not answer; is that correct –HENRY JAMES: (No response.) (R 1464) ABSTRACT 497 MR. ROSENZWEIG: –- with regard to my previous question. Is that correct? HENRY JAMES: I answered. MR. ROSENZWEIG: You have not served on a jury before? HENRY JAMES: No, sir. MR. ROSENZWEIG: Ms. Johnson, you have? FREDA JOHNSON: Yes, I have. MR. ROSENZWEIG: And was it a criminal case? FREDA JOHNSON: Yes. MR. ROSENZWEIG: And did you reach a verdict in that criminal case? FREDA JOHNSON: Yes, sir. MR. ROSENZWEIG: And did the jury have a problem reaching that verdict or was it fairly quick? FREDA JOHNSON: We had one lady that –- it was an older lady –- that thought that he should not get convicted, that was wanting to know who was going to take care of his family. MR. ROSENZWEIG: But eventually –FREDA JOHNSON: But we swayed her –MR. ROSENZWEIG: You eventually –- Okay. (R 1465) ABSTRACT 498 Now, without commenting on whether that was an appropriate objection by the lady, you understand that all twelve jurors in a criminal case must be unanimous one way or the other. And can you promise that after the consideration of the evidence, if a question whether Mr. Pedraza is to be found guilty or not, you will stick to your convictions, one way or the other, you know, if you just cannot go along with the majority one way or the other? FREDA JOHNSON: I will. MR. ROSENZWEIG: Mr. White, what’s your –JOHN WHITE: I haven’t served. MR. ROSENZWEIG: You have not served. Ms. Foster, you have served –MARY FOSTER: Yes. MR. ROSENZWEIG: –- in a civil case? In a civil case, the verdict doesn’t have to be unanimous. Was that your experience? MARY FOSTER: They decided out of court. MR. ROSENZWEIG: I’m sorry? MARY FOSTER: They decided in between –MR. ROSENZWEIG: Okay, they settled it –- So you didn’t get to go back in and decide? And, Ms. Dodrill –ABSTRACT 499 LINDA DODRILL: Yes. I have served. (R 1466) MR. ROSENZWEIG: And you understand about the unanimity requirement one way or the other? LINDA DODRILL: Yes. MR. ROSENZWEIG: Can you promise that you’ll stick to your convictions -– LINDA DODRILL: Yes. MR. ROSENZWEIG: Mr. Young, you have not served? KYLE YOUNG: No. MR. ROSENZWEIG: Mr. Grantham, you have? CRAIG GRANTHAM: No, sir. MR. ROSENZWEIG: Ms. Haney, you have? MIA HANEY: Yes, sir. MR. ROSENZWEIG: Do you have any problems with what we were talking about? MIA HANEY: No. THE COURT: You’ve used your five minutes now. MR. ROSENZWEIG: I’m sorry, sir? THE COURT: You’ve used your five minutes. ABSTRACT 500 MR. ROSENZWEIG: Are you telling me to sit down? THE COURT: Yes, sir. (R 1467) I’m going to excuse you-all. Stand outside. And in about two minutes, or three, I will tell you which ones, if any, have been selected to serve. Wait outside the door. That decision will be made and you will be notified. And those that are selected will come back in briefly –[Group 8 exits the courtroom.] THE COURT: You may make your argument from the table. MR. ROSENZWEIG: Your Honor –- Your Honor, I was having a problem hearing you, so that’s why I was trying to –COURT CONCEDES IT IS SOMETIMES HARD TO HEAR THE COURT: I don’t doubt it. Sometimes my voice drops. But, if you would, stand at the table and we’ll go from there. MR. ROSENZWEIG: Your Honor, in addition to the standing objection with regard to the inability to properly question these witnesses, your position is, well, clear, because we’re so close to the seating, potential seating, of the jury and have so few peremptories left, in order to make an intelligent decision as to how to use our peremptories, we need to have a ruling from you as to whether or not you are going to mix these jurors up after all fifteen are seated or whether we’re cutting off at twelve ABSTRACT 501 and then having the three separate. Our position is we have followed the law. I think you conceded before, that the law is technically twelve and three, but you had not made a final decision on that. And in order to make our intelligent decisions on peremptories, we need to understand what we’re facing. (R 1468) THE COURT: I didn’t know I was –- I thought I was very clear on, but the law is this: We will have separate jurors come in for the alternate panel; and so you should know that, however many there were up there, that I’m fixing to ask you-all to accept, or reject, or use the rest of your challenges on them for any, all, or part; and challenges -- I decide to go with two jurors instead of three, accept the state’s recommendation, two alternates, which means we’ll bring in -- After we’re through here, we’ll bring in another jury for you-all to –- And you’ll get one strike apiece on them -- Peremptory. So you can’t borrow from one and give to the other one. MR. ROSENZWEIG: Okay. So are you saying that, for instance, that –Let’s say, hypothetically, we seated a jury from the first couple of them, nonetheless, none of the others would be alternates? THE COURT: That’s exactly right. Now –COURT RESTRICTS DEFENSE TEAM CONSULTATION TO ONE MINUTE MR. ROSENZWEIG: Your Honor, we need –-We, respectfully, ask the Court because of the momentous decisions we have to make, we need more than just ABSTRACT 502 a few seconds to –- (R 1469) THE COURT: I’m going to give you a minute. MR. ROSENZWEIG: Your Honor, we need more than a minute. THE COURT: How much time do you need, Mr. Deen? MR. DEEN: I’m prepared now. MR. ROSENZWEIG: Your Honor, we would like ten minutes. THE COURT: No. You haven’t needed that on the rest of them; you’re not –MR. ROSENZWEIG: But, Your Honor, we weren’t close to exhausting our peremptories at that time; now we are –THE COURT: It doesn’t make any difference –- I’m giving you a minute to confer with your team. You only have –- How many jurors were there? I’ve got three down. You don’t have to use any of them. (Break) THE COURT: Good deal. I’m not going to keep those jurors waiting any longer. They’ve been here all day. Let’s go to it now. All right. James Henry to the state? (R 1470) MR. DEEN: Good to the state. THE COURT: To the defense? ABSTRACT 503 MR. ROSENZWEIG: Just give us one second longer. Your Honor, we exercise a peremptory. THE COURT: Freda Johnson? MR. DEEN: Good to the state. MR. ROSENZWEIG: We exercise a peremptory. THE COURT: John White? MR. DEEN: Good to the state. MR. ROSENZWEIG: We exercise a peremptory. THE COURT: That’s it on the perempts. Okay. Mary Foster? MR. DEEN: The state exercises a peremptory as to Ms. Foster. MR. ROSENZWEIG: Your Honor, we have a Batson motion to make both on women and on African-Americans. THE COURT: All right, I’ll let you make it at the appropriate time. Linda Dodrill? MR. DEEN: Good to the state. THE COURT: Kyle Young? MR. DEEN: Good to the state. THE COURT: That gives me twelve, doesn’t it? (R 1471) ABSTRACT 504 MR. ROSENZWEIG: Your Honor, let the record reflect that had we had peremptories left, we would have exercised it on these other two jurors; and let the record further reflect that we move to quash this jury on grounds that we have not been allowed to ask the questions that are mandated by Morgan and the other cases, so we have no idea what these people actually think about the issues involving the death penalty. And I move to quash. THE COURT: All right. Thank you. MR. ROSENZWEIG: I assume you’ve denied our motion. THE COURT: No reason not to. Thank you. And let the record also reflect that the matters, that this last panel was voir dired on, regarding their ability to stick to their guns in the jury room, not to surrender their genuine beliefs, that they’ve already been asked and answered by the Court; and so the time that he was given, he simply went over plowed ground, so that’s another reason. In any event, let’s go now to the –- You’ve got how many out there? THE BAILIFF: Ones came back at 3:30. We’ve got twelve of them. THE COURT: Oh, good. Well, we’re going to do this –- Let’s take –MR. ROSENZWEIG: Your Honor? Your Honor? (R 1472) THE COURT: Right now you’re going to have to sit down. I’m trying to get ABSTRACT 505 the jurors back in here. MR. ROSENZWEIG: Okay. I wanted to add to my motion. THE COURT: I’m not going to let you add to anything. I’ve got jurors waiting out there. Their time is valuable too. Bring those two jurors back in here. THE BAILIFF: Dodrill and Young? THE COURT: Yeah, uh-huh (yes). [Linda Dodrill and Kyle Young return to the courtroom.] THE COURT: All right, Mr. Young and Ms. Dodrill, you have been selected to serve on this jury. You-all are the eleventh and twelfth jurors selected. We’re going to select a couple of alternates after this, but I wanted to tell you to be in the jury room in the morning at a quarter til nine. It’s that room right down at the end of the hall. Don’t be late. I start on time at nine o’clock. And this is a lengthy trial and it’s even more important. The other thing, if you’re willing to give it to the clerk, if not, give it to the bailiff, your address and phone number. If the moon fell or something and we needed to get a hold of you, whether by phone or address, then we would have the way to do so. Doesn’t mean anybody’s going to call you; it just means if the moon fell, or we weren’t here, or something, we’d have to come looking for you, you know. So if you would like to, just go ahead –- Do you mind giving that or would you prefer simply to give it to the bailiff? (R 1473) ABSTRACT 506 KYLE YOUNG: The bailiff. THE COURT: All right. Good deal. Give it to the bailiff outside. And bring in the other -- Bring in eight. Go ahead. [Linda Dodrill and Kyle Young exit the courtroom.] THE COURT: Go ahead. MR. ROSENZWEIG: Thank you, Your Honor. I just want to make sure my record is clear. We have previously talked about not being able to ask more questions and that has retarded our ability or completely vitiated our ability to make an effective cause challenge to these people and to the extent (inaudible) designate someone sat on a jury would be a cause challenge. The inability to so inquire has made that impossible. I wanted to make sure that was reflected. And, also, it is our position that the way the Court has handled it takes this out of the coverage of Ross vs. Oklahoma because of the way we had to use our peremptories on essentially no knowledge of what these people really thought. So I want to make sure my motion to quash this entire panel reflected those arguments. (R 1474) THE COURT: Thank you for putting that on the record. MR. ROSENZWEIG: And I assume your ruling is still the same. THE COURT: It is. I’m going to take eight. You-all know you have one apiece. I’m going to seat two alternates. Looking at this jury, I think we’re going to ABSTRACT 507 probably end up with the original twelve in the end, but I’m going to do two alternates. You’ll each have -- I’m bringing in eight -– in case there’s some for cause. I’ll tell you what I’m going to do, bring in all twelve. All twelve showed back up. There’s no point in leaving some out. You know Haney and Grantham were released from the –- they’re free to go –- from the last panel, so they’re not –- That’s what Penny just asked me. VOIR DIRE OF PANEL OF PROSPECTIVE ALTERNATE JURORS [Alternate panel entered the courtroom.] THE COURT: Let me make sure that I have you in order before we start the examination. Roy Harton, Carolyn Hogue, Veronica Wells, Nathaniel Jones, Jane Jordan, Faye Lewis, Shannon Hindsley, Montsewat Castillo, Fern Fincher, Orlan Holland, Sandra Cunningham, and Mary Minor. (R 1475) Voir Dire by the Court THE COURT: Thank you. Let me –- I will allow the attorneys to ask a certain amount of questions of a certain nature following my voir dire. And the way I start out is this: I will ask each of you if you are personally acquainted with any of the witnesses, that may be called either by the state or the defense in this case, only to determine if you’re close enough to them that it might affect your assessment as ABSTRACT 508 to their credibility and couldn’t consider them just like you would anyone else on the stand. If you’re that close to them that it would affect you pro or con then all you’ve got to do is just raise your hand, I’ll stop and find out which one it is. I’m going to begin with the state’s witnesses and give you the names: Joey Earnest; Brenda Earnest; Celita Brooks; Robert Jacobs; Carolyn Stuard; Clayton Moss; Scott Woodward; Lisa Channell; Mary Simonson; Stephen Erickson; Victoria Pedraza; Tim Nichols; Jeff Martin; Scott Carson; Mark Gober; and a Dr. Ramos, he’s not from here. (R 1476) Then on the defense witnesses I have been furnished: Corey Atkins; Mike Reynolds; Mark Shull; Tim Coke; Ladell Wright; and a Dr. Stewart, who is not from here. (No hands.) I saw no hands. Are any of you closely acquainted with any of the lawyers that were identified to you earlier in this courtroom, so closely related either by kinship or personal acquaintance, that this isn’t the case for you? (No hands.) What about this –- And we never pry in to private stuff, so if you wanted to come up to the bench and explain it –- Any of you have anybody in your family, extended family, or close personal friends that have had some charge filed against them in the past, good, bad, or indifferent. Mr. Deen is prosecuting this case. He’s the prosecuting attorney for the Tenth Judicial District, covers five counties. And he and his deputies, certainly, ABSTRACT 509 would want to know if he’s made anybody mad, or got any case going right now against somebody in a juror’s family and –- Because the state’s entitled to a fair trial too. And if that’s the case then maybe this isn’t the case for you to sit on. Any of you in that boat where you’ve crossed paths with Mr. Deen, or the prosecutor’s office, and perhaps somebody in your family got charged with something and left a bad taste or something like that? (No hands.) I take it by your silence that’s not the case. (R 1477) At the beginning this morning, I read to you the charge; and the counsel was identified, as was Mr. Pedraza. I’m going to read that charge to you again. I’m going to read it to you for a couple of reasons that are going to become apparent. It’s alleged that on or about February 26-27, 2012, that Mr. Pedraza knowingly caused the death of Aubriana Coke, a child less than fourteen years of age, under circumstances manifesting extreme indifference to the value of human life, which offense is punishable by death or life imprisonment without parole. Now, Aubriana Coke, I will tell you and can tell you now in voir dire was between the ages of two and three at the time of her death. The Court told you, as you’ve heard before if you served on a jury, that a defendant is presumed innocent -and those are not empty words, for a reason -- and it is always a requirement, the burden is the state’s to prove, before anyone can suffer any punishment, small or large, by their own case. The defendant’s not required to prove anything, not required ABSTRACT 510 to even put on a witness. The state must satisfy each individual juror beyond a reasonable doubt that the charge is true. (R 1478) Now, in this case, that means, first, what? That Aubriana Coke’s death was knowingly caused by Mr. Pedraza, and that he did so knowingly, and under circumstances manifesting extreme indifference to the value of human life. If the state fails to prove it was either he, or that it was knowingly done, or that it was under circumstances manifesting extreme indifference to the value of human life then you are required by law to find a verdict of not guilty; and that shall be your vote. Not just part of the charge. All of them. Each element. Some lawyers call them “elements.” I just call them “parts.” Part. Charge. They must prove beyond a reasonable doubt that it was he, Mr. Pedraza. Part of the charge is that he knowingly -- that whatever he did caused this death, and that it was under circumstances manifesting extreme indifference to the value of human life. Proving three out of four, or one out of four, that means not guilty. Do each of you agree to hold the state to that burden? Anybody –- Let me put it this way: Just because the victim was between two and three, does that –- Are you going to use that as an excuse to lessen the burden of proof on the state to prove everything beyond a reasonable doubt? (R 1479)I want an honest answer. And I’m going to call on you individually because Mr. Pedraza needs to know that the fact that he is charged with this offense, and that ABSTRACT 511 the state alleges the victim is less than three years old, is going to make you hold the state, or cause you to hold the state, ever so slightly, to a lesser burden of proof than beyond a reasonable doubt, the fact that the victim is between two and three, did that. I’m going to call upon Mr. Harton first. Would it, the fact that the alleged victim was between two and three, would Mr. Pedraza get the same treatment under the law, as far as you’re concerned, if the victim was alleged to be older? RAY HARTON: Yes. THE COURT: Ms. Hogue? CAROLYN HOGUE: Yes. THE COURT: Ms. Wells? VERONICA WELLS: Yes. THE COURT: The answer’s “yes.” Mr. Jones? NATHANIEL JONES: Yes. THE COURT: Ms. Jordan? JANE JORDAN: I have a problem. THE COURT: Then I think -– You don’t have to explain it further. Thank you so much for coming; and I’m going to go ahead and excuse you at this time. (R 1480) ABSTRACT 512 [Jane Jordan is excused by the Court and exited the courtroom.] THE COURT: Ms. Lewis? FAYE LEWIS: Yes. THE COURT: Would you hold the state to the burden? FAYE LEWIS: Yes. THE COURT: Ms. Hindsley? SHANNON HINDSLEY: Yes. THE COURT: Ms. Castillo? MONTSEWAT CASTILLO: Yes. THE COURT: Mr. Fincher? Ms. Fincher. Sorry, Ms. Fincher. FERN FINCHER: Yes. THE COURT: Mr. Holland? ORLAN HOLLAND, JR.: Yes. THE COURT: Cunningham? SANDRA CUNNINGHAM: Yes. THE COURT: Minor? MARY MINOR: No, I think the age would –THE COURT: Affect you? MARY MINOR: –- affect me. ABSTRACT 513 THE COURT: Then this is simple: it’s simply not the case for you. Maybe next time. All right? (R 1481) MARY MINOR: All right. THE COURT: Thank you so much for coming. MARY MINOR: Thank you. [Mary Minor was excused by the Court and exited the courtroom.] THE COURT: You haven’t heard the case and neither have I, from the state or the defense; and Mr. Pedraza and the state are both entitled to an impartial consideration of the evidence. Now, the next question is this: Do any of you have strongly-held views, pro or con, on the death penalty, conscientious objections, or in favor of it in such a strong way, any kind of view that’s so strongly held that it would taint your deliberations and cause you not to impartially consider all of the evidence as you would in any other case, that it would affect your impartial consideration of the evidence either the evidence that the state offers or that the defense offers, and would (inaudible) in the case? If you have such views, I’m not going to ask you what they are; I simply want to know if it would –- If those of you that have, would it result in a (inaudible) for either side and you would question your impartiality. ABSTRACT 514 Mr. Horton? Harton. I’m sorry. (R 1482) RAY HARTON: No. THE COURT: Hogue? CAROLYN HOGUE: No. THE COURT: Wells? VERONICA WELLS: I don’t believe in the death penalty. COURT REPORTER: I can’t hear her. VERONICA WELLS: I don’t believe in the death penalty. THE COURT: You don’t believe in the death penalty? VERONICA WELLS: No. THE COURT: Well, let me ask you this: Is your belief such that under no circumstances, could you return a verdict, under no circumstances, that involved the death penalty, regardless of proof? You could not? VERONICA WELLS: No. THE COURT: All right. Mr. Jones, what about you, do you have such strongly-held views that it would affect you impartially considering the evidence in this case? (R 1483) NATHANIEL JONES: Judge, are you asking would I –- I’m trying to understand the question. Are you saying could I say guilty or not guilty because of ABSTRACT 515 the death penalty? Is that the question? THE COURT: You probably asked it better than I did. So you tell me, would it affect you on guilty or not guilty? NATHANIEL JONES: If I was clear on guilty, it would be guilty. But as far as the death penalty, that’s a different situation. But if it’s guilty, it’s guilty. But I don’t -– I wouldn’t vote for the death penalty. THE COURT: But the fact –- Then you’re not for the death penalty, that’s basically what you’re saying? NATHANIEL JONES: Exactly. THE COURT: All right. But you’re also telling me -- so I’m clear, if no one else is –- that it would not mean that you couldn’t impartially consider the evidence on the guilt phase, the first part of the trial, both from the standpoint of the the state and the defense? NATHANIEL JONES: Right. THE COURT: It’s just that if it got past that stage, and if he were found guilty, if you went in the jury room and you had two options, would it matter what the proof would have been as to whether or not -- as to how your vote would be or –Tell me. (R 1484) NATHANIEL JONES: I’m almost confused. ABSTRACT 516 THE COURT: Sir? NATHANIEL JONES: I’m almost confused. THE COURT: Me too. NATHANIEL JONES: In other words, if he’s guilty, he’s guilty, but the death penalty would be a different situation. Do I understand –THE COURT: No, you’re answering, I think. Could you even consider it under any circumstances if he were guilty? NATHANIEL JONES: The death penalty? THE COURT: Yes. NATHANIEL JONES: No, sir. THE COURT: Let’s go with –- Ms. Lewis, same question: Do you hold such strong views, pro or con, conscientious objection, what have you, such strong moral views, that it would affect –- about the death penalty -- that it would affect your ability to impartially consider the evidence in this case? FAYE LEWIS: No. THE COURT: Ms. Hindsley, yes or no? SHANNON HINDSLEY: No, it wouldn’t. THE COURT: Ms. Castillo? MONTSEWAT CASTILLO: I have a problem. I don’t know a lot of the ABSTRACT 517 English words –- I don’t understand. (R 1485) THE COURT: I’ve got you. Very good. So how much have you understood of what I said? Not –MONTSEWAT CASTILLO: I really don’t –I understand some of the words, but some I don’t –THE COURT: Do you live here in Monticello? MONTSEWAT CASTILLO: Yes. THE COURT: Where do you work? MONTSEWAT CASTILLO: I used to work at Armstrong in Warren. THE COURT: Do you have family here? How long have you lived in Monticello? MONTSEWAT CASTILLO: About a half a year. THE COURT: About a half a year? MONTSEWAT CASTILLO: Uh-huh (yes). THE COURT: And you moved from where? MONTSEWAT CASTILLO: Warren. THE COURT: And how long have you been in the United States? MONTSEWAT CASTILLO: About six years. THE COURT: And from what country did you come? ABSTRACT 518 MONTSEWAT CASTILLO: (Inaudible) THE COURT: What part? (R 1486) MONTSEWAT CASTILLO: (Inaudible) THE COURT: Where is that? What state? It’s somewhere like in Mexico, but it’s MONTSEWAT CASTILLO: (inaudible). THE COURT: Very good. Then I’ll move on. Ms. Fincher. FERN FINCHER: No. THE COURT: No, would not affect. Mr. Holland? ORLAN HOLLAND, JR.: No. THE COURT: Cunningham? SANDRA CUNNINGHAM: No. THE COURT: Minor? MARY MINOR: (No response.) MRS. ROSEGRANT: She’s already been excused. THE COURT: That’s right. I’m sorry. I wasn’t looking over the deal. Now, I want to read a couple of questions that have been submitted by one of the parties, ABSTRACT 519 or statements, that I need to make. I need for you-all to understand that in Arkansas no case requires a jury to return a verdict of death. You’re never required to and no one can tell you that you are. It’s a decision that the jury makes, nor no instruction that I give you nor no law at the conclusion of this case, if it ever came to that, if it ever came to that, would compel you to return a verdict of death. You always have the option of life without parole. (R 1487)Now, if it ever reached that stage, the Court would allow additional evidence and the jury would be given additional instructions, guiding instructions, that they would use, or apply, to the evidence that they’ve heard that would guide them in their decision as to what the punishment should be. But those instructions will never compel you to return a verdict of death. In those instructions you will be entitled to consider any mitigating -- “lessening” if you want to call it -- factors that would weigh in favor of the defendant -- and you would be entitled to consider those as opposed to the aggravating factors. The point being is that those mitigating factors are up to you; and each individual juror must make a personal and individual decision as to whether or not those circumstances, mitigating circumstances, exist -- that’s an individual decision that must be made by each juror -- and what weight those circumstances or factors are to be given in the comparison with the other side. That’s an individual decision and an individual juror determination. Do each of you, who remain here, agree that you would make that ABSTRACT 520 your individual responsibility? Do each of you –- Anybody here that would not make that individual responsibility, raise your hand. (No hands.) I see none. (R 1488) Have any of you heard on the street, or read anything in the paper, or any place, anything about this case, something you can’t put out of your mind and would stick with you –- nobody else may know it –- but stick with you and affect your decision in this case, and your ability to impartially consider the evidence, look at the state’s evidence and the defense, and hear from them and make a decision? Anybody heard, or seen, or talked to anybody? (No hands.) Have something that we don’t know about that we should and that might affect your ability to fairly try the case? (No hands.) There are no hands. I’m going to –- With respect to –- I’ve allowed both sides, if they want to, to ask additional questions; and sometimes they have them, sometimes they don’t. With respect to Ms. Wells and Mr. Jones, I’m going to permit both sides, if they want to, to inquire further of them with respect to the death penalty issue, if you wish to. MR. DEEN: Their statements were unequivocal; I see no need to ask them further questions. (R 1489) THE COURT: All right. Do you have any –-Before you get up, Mr. Rosenzweig -- Do you have any other questions you wish to ask of this panel? ABSTRACT 521 MR. DEEN: No, Your Honor. THE COURT: Very good. All right. Now you may –- Go ahead. MR. ROSENZWEIG: First, let me make sure I understand the Court’s ruling. You’re allowing me to ask those questions of only those two jurors? THE COURT: Of those two jurors in that area –- You can ask other questions of the other panel. MR. ROSENZWEIG: I understand, but as far as the death penalty questions, only those two jurors? Voir Dire by Counsel for Defense MR. ROSENZWEIG: Okay, so with that instruction from the Court, I’m going to ask –- I need to ask both Ms. Wells and Mr. Jones these questions and so I’m going to have to pick on the two of you. First, Ms. Wells, you understand that you are in a trial, in the penalty phase of a trial, if it gets that far, and you are entitled to your beliefs and to hang on to those beliefs in the process. You understand that? (R 1490) VERONICA WELLS: Yes. MR. ROSENZWEIG: And, Mr. Jones, you understand that? NATHANIEL JONES: Yes, sir. MR. ROSENZWEIG: Now, the law does not require that you abandon your ABSTRACT 522 beliefs; you understand that? NATHANIEL JONES: Yes, sir. MR. ROSENZWEIG: Ms. Wells, you understand that? VERONICA WELLS: Understand, what? MR. ROSENZWEIG: Okay, that the law does not require that you abandon your beliefs. Okay. You’ve got a firmly-held belief and you’re not required to abandon it. Now, you understand that the law in Arkansas is that there is no such case that you are ever required to vote for the death penalty. Do you understand that? VERONICA WELLS: (Nods head.) NATHANIEL JONES: (Nods head.) MR. ROSENZWEIG: And both of you are nodding affirmatively on that; is that right? VERONICA WELLS: Yes. NATHANIEL JONES: Yes. (R 1491) MR. ROSENZWEIG: Now, what the law requires, and all the law requires, is that you be willing to listen to all the evidence and listen to the law, that the judge will give you; listen to the fellow jurors back there in the jury room -- some of whom might be for the death penalty, some might be against -- and consider everything in making your final decision. Now, Ms. Wells, can you follow that and consider, ABSTRACT 523 consider the, you know, both possible punishments? VERONICA WELLS: Yes, I could consider it. MR. ROSENZWEIG: Okay, you could consider it? VERONICA WELLS: Uh-huh (yes). MR. ROSENZWEIG: And, Mr. Jones, could you consider both possible punishments? NATHANIEL JONES: (No response.) MR. ROSENZWEIG: I’m not asking you for a promise to vote one way or the other. Could you keep an open mind and consider both possible punishments? NATHANIEL JONES: I wouldn’t consider it –MR. ROSENZWEIG: I’m sorry, sir? NATHANIEL JONES: I wouldn’t consider the death penalty. MR. ROSENZWEIG: Would not? (R 1492) NATHANIEL JONES: No, sir. MR. ROSENZWEIG: Okay. Under any circumstances? NATHANIEL JONES: No, sir. MR. ROSENZWEIG: But, Ms. Wells, you would? You could consider that? VERONICA WELLS: That still wouldn’t change. MR. ROSENZWEIG: I’m sorry? ABSTRACT 524 VERONICA WELLS: That’s still wouldn’t change because, like I said, I don’t believe. MR. ROSENZWEIG: Well, we’re not talking about what you would do if you were in the state legislature or if you were voting, you know, on a referendum, or something like that; we’re talking about in the jury room and the judge says –- If Mr. Pedraza was found guilty of capital murder, which has two potential punishments, life without parole or the death penalty, and the question is: Could you consider both possible punishments before making a final decision? VERONICA WELLS: I believe with my answer stating “I don’t believe in it,” that I didn’t consider, but I still –MR. ROSENZWEIG: I understand. VERONICA WELLS: You know, like I said, I don’t believe in it. (R 1493) MR. ROSENZWEIG: Well, I understand. There are people, for instance, who are –- If they were in the state senate, they would vote against it, if it ever came up, or -- But if they were called on a jury, because, you know, told these are the two possible punishments and that -- You know, the judge will tell you that, you know, you follow the law, whether you agree with the law or not, you follow the law; and if the law says that these are the two possible punishments, the question is whether you could consider both possible punishments? And not say on the front end, no way ABSTRACT 525 would I ever do that. That’s all that we can ask you is that: Can you consider both? THE COURT: The question is: Can you consider the death penalty given your beliefs? VERONICA WELLS: No. THE COURT: Answer’s “no.” MR. ROSENZWEIG: Your Honor, with regard to –- I have a few other questions of the entire panel. How much time do I have, Your Honor? THE COURT: I’ll give you another five. (R 1494) MR. ROSENZWEIG: Okay, you see here that Mr. Pedraza by his name and probably his appearance is Hispanic, Mexican precisely. Now, a lot of people have strong beliefs about immigration and that type of thing. Now, the question is: Do any of you have any strong beliefs one way or the other about immigration? Have you written a letter to the editor; or called in to a TV show; or posted something on Facebook about, you know, your position on immigration? Anyone? (No hands.) Okay, all of you are nodding no. None of you have taken a position on this. And if I heard you, Ms. Castillo, you were actually born in another country; right? MONTSEWAT CASTILLO: Yes. MR. ROSENZWEIG: And so you are obviously a naturalized citizen. Now, the question is –- A similar question, similar to that, the little girl is, you know, is –ABSTRACT 526 Just give me a minute. Excuse me. Let me rephrase the question. You’ve got a little girl who is not Hispanic, who is white, and –- was white –- and you have a defendant who is Hispanic. Now, the question that I need to ask you is: Do you have any feelings on, for lack of a better term, race or ethnicity? Would you be able to give –Does that cause you any problem that the alleged victim of this charge is of a different race than the defendant? Does anyone have a problem –- Or cause anyone a problem? (No hands.) No one has a problem. Now, can you –- Have any of you served on a jury before? Okay, pretty much almost all of you here. Mr. Harton, you have served on a jury before? ROY HARTON: Federal. (R 1495) MR. ROSENZWEIG: Federal jury. In Little Rock or Pine Bluff? ROY HARTON: Yes. MR. ROSENZWEIG: Was it a civil case or a criminal case? ROY HARTON: Civil. MR. ROSENZWEIG: Civil case. And you understand that generally the burden of proof on a civil case is different than that of a criminal case? ROY HARTON: Yes. MR. ROSENZWEIG: Now, was your jury able to reach a verdict in that case? ABSTRACT 527 ROY HARTON: Yes. MR. ROSENZWEIG: Now, depending on the particular federal statute, federal law, it may or may not be required to be unanimous. Was your jury required to be unanimous, if you recall? ROY HARTON: Yes, sir. (R 1496) MR. ROSENZWEIG: Now, in a criminal case, it always has to be unanimous in Arkansas. Do you have any problem with that as the law? Now, if you’re selected on this jury and you go back there and deliberate –- you just can’t go along with the majority one way or the other –- would you be able to stick to your guns and not fall in with the majority just to get out of here early or for some other reason? ROY HARTON: I always have. MR. ROSENZWEIG: I appreciate that. Now, Ms. Hogue, did you serve on a jury before? CAROLYN HOGUE: (Nods head.) MR. ROSENZWEIG: Was that civil or criminal? CAROLYN HOGUE: It was here. MR. ROSENZWEIG: Was it a civil or a criminal case? CAROLYN HOGUE: Civil. MR. ROSENZWEIG: Civil case. You understand in a civil case, the burden ABSTRACT 528 of proof is less? It’s generally the preponderance of the evidence; whereas, this is beyond a reasonable doubt. Do you have any problem with that? CAROLYN HOGUE: (Nods head.) MR. ROSENZWEIG: And the state must prove every element of that case beyond a reasonable doubt. Any problem with that? CAROLYN HOGUE: No. (R 1497) MR. ROSENZWEIG: And, Ms. Wells, I picked on you for a while, but let me just ask you: Did you serve –- Did you raise your hand? VERONICA WELLS: No. MR. ROSENZWEIG: You did not. Mr. Jones, have you served on a jury before? NATHANIEL JONES: Yes, sir. MR. ROSENZWEIG: Okay, was that here? NATHANIEL JONES: Yes, sir. MR. ROSENZWEIG: Was that civil, or criminal, or both? (R 1498) NATHANIEL JONES: Criminal. MR. ROSENZWEIG: Criminal. Okay, how long ago was that? NATHANIEL JONES: (No response.) MR. ROSENZWEIG: How long ago was that? ABSTRACT 529 NATHANIEL JONES: I’m thinking probably two or three -- At least two or three years. MR. ROSENZWEIG: Now, Ms. Lewis, have you served before? FAYE LEWIS: Yes. MR. ROSENZWEIG: Here? FAYE LEWIS: Here. MR. ROSENZWEIG: Civil, or criminal, or both? FAYE LEWIS: Criminal. MR. ROSENZWEIG: Okay. Was your jury able to reach a verdict? FAYE LEWIS: Yes. MR. ROSENZWEIG: And, Ms. Hindsley, did you serve? SHANNON HINDSLEY: Yes. Civil. MR. ROSENZWEIG: Civil. And you have no problem with the distinction between civil and criminal; is that right? SHANNON HINDSLEY: (Nods head.) MR. ROSENZWEIG: And, Ms. Castillo, have you served? MONTSEWAT CASTILLO: No. MR. ROSENZWEIG: You have not. Okay, Ms. Fincher, you have not? FERN FINCHER: No. ABSTRACT 530 MR. ROSENZWEIG: And, Mr. –- Is it Holland? ORLAN HOLLAND, JR.: Yes. MR. ROSENZWEIG: Did you serve? ORLAN HOLLAND, JR.: Yes. MR. ROSENZWEIG: Civil or criminal? ORLAN HOLLAND, JR.: Civil. MR. ROSENZWEIG: And do you have any problem with the distinction? ORLAN HOLLAND, JR.: No. (R 1499) MR. ROSENZWEIG: Okay. And, Ms. Cunningham, did you serve before? SANDRA CUNNINGHAM: Yes. Criminal. MR. ROSENZWEIG: Criminal. Do I have any time left, Judge? THE COURT: You’ve got about another minute. MR. ROSENZWEIG: Have any of you, you know, either yourselves, or know anyone who served in Iraq? ROY HARTON: (Raised hand.) MR. ROSENZWEIG: Okay, Mr. Harton, did you serve or –ROY HARTON: No, sir. MR. ROSENZWEIG: Okay, you know people that did? ROY HARTON: My brother. ABSTRACT 531 MR. ROSENZWEIG: Your brother. When did he serve? ROY HARTON: In Desert Storm, the first one. MR. ROSENZWEIG: The first one, 27 years ago? Do you know anyone who served in the one starting in ‘03? ROY HARTON: I had a cousin that served. MR. ROSENZWEIG: Are they in the Army, or Guard, or Marines? (R 1500) ROY HARTON: In the Marines and one (inaudible). I’ve got a bunch of cousins (inaudible). MR. ROSENZWEIG: Have you discussed their experiences that they had over there? ROY HARTON: Probably not, not that I remember. MR. ROSENZWEIG: Okay. Do you know of anyone who –- Have you met anyone who may have been affected by what they experienced over there? ROY HARTON: Other than my brother, no. MR. ROSENZWEIG: Anyone else? ROY HARTON: No. MR. ROSENZWEIG: Now, during the course of a trial, there may be various objections that are made by one side or the other. Now, do all of you understand those objections are not made to irritate you or hide anything from you, but it’s the ABSTRACT 532 way that we, as lawyers, have been told that we have to bring something to the attention of the judge for his consideration? Now, can all you promise if I get up, or one of my colleagues gets up and objects, and objects, and objects, not to hold it against my client? Can all of you promise that? THE COURT: They’ve promised that. And I can tell now you’ve left the area of actual –- (R 1501) MR. ROSENZWEIG: I’m sorry, sir? THE COURT: -- and implied bias. And I know they won’t hold it against them, and you, or Mr. Deen either; and it’s time for me to move on and get you-all to make up your mind about this panel. Now, take your seat. I will excuse you-all. Before I do, let me ask one question because under 16-31-102 –Voir Dire by the Court THE COURT: Ms. Castillo, you told me you didn’t understand much of what was said here; is that right? MONTSEWAT CASTILLO: Sir? THE COURT: You didn’t understand much –-Do you understand much English? Some English? Just give it to me in your own words. MONTSEWAT CASTILLO: I understand, but I don’t know –- I don’t know ABSTRACT 533 that much English. THE COURT: You don’t know that much English? All right, that’s all I need to know. Thank you. You-all are excused. You may go outside and wait. And give us a couple of minutes and we’ll notify you, who have been selected, and we’ll be done. [The alternate jury panel exits the courtroom.] (R 1502) THE COURT: Let the record reflect, I’m giving them time to look over their strikes for the alternate panel. The Court takes it that state moves to excuse –MR. DEEN: Ms. Wells and Mr. Jones for cause for their inability to consider potential imposition of the death penalty in this case. THE COURT: Is there any case -- And the others say that a member of venire will be excluded, or shall be excluded, he or she would automatically vote against the imposition of the death penalty without regard to any evidence that might be developed at trial, and then it goes on to the second deal --That is what they said, so the Court has no discretion on that. With respect to Ms. Castillo, you know, Arkansas Code 16-31-108 –- No, that’s the visually impaired. 102 and 104 lists the disqualification criterion; and first among those are people who are unable to speak or understand the English language; ABSTRACT 534 secondly, unable to read or write, but that doesn’t necessarily apply here. Then goes on about felonies and so on and so forth. And I don’t think anyone –- Any of the parties here would want someone who had trouble with the English language; and so, the Court will excuse Ms. Castillo because she, herself, has said that she doesn’t understand much English. (R 1503) I’m going to ask then that you-all –All right, with respect to Mr. Harton? MR. DEEN: Good to the state. MR. ROSENZWEIG: We –- Of course, we renew our challenge. I believe you granted us a continuing one. I assume your position is the same. We exercise a peremptory. THE COURT: Carolyn Hogue? MR. DEEN: Good to the state. MR. ROSENZWEIG: Same position with regard, we exercise a peremptory since you denied our challenges with regard to the ability to inquire. THE COURT: All right. Then unless you exercise –- Do you wish to exercise any of your peremptory -- your two -- on, first, Jane Jordan? MR. DEEN: She’s good to the state. THE COURT: And what about Faye Lewis? ABSTRACT 535 MR. DEEN: She’s good to state. THE COURT: Then they will be the two alternates. (R 1504) MR. ROSENZWEIG: I thought she was excluded, Your Honor. Ms. Jordan was excluded. THE COURT: I’m sorry. Wells and Jones were excused. MR. ROSENZWEIG: Ms. Jordan is the one who said she had a problem and you let her out early. THE COURT: Was she the one I excused? MR. ROSENZWEIG: Yes. THE COURT: You did. I’m looking right through her Magic Marker. I’m sorry. MR. DEEN: Ms. Hindsley and –THE COURT: Ms. Lewis –- Hindsley and Fincher? MR. MORLEDGE: Your Honor, I think it’s Lewis and –THE COURT: She’s got –COURT REPORTER: That’s Jane Jordan. THE COURT: She’s excluded. All right, that leads me down to -- Faye Lewis and Hindsley. Yeah, they’re the next two. MR. DEEN: Very good. (R 1505) ABSTRACT 536 MR. ROSENZWEIG: Your Honor, let the record please reflect that we are out of peremptories on the alternates; and let the record further reflect that had we had peremptories, we would use them on Ms. Lewis and Hindsley; and let the record further reflect that it is our position that because of the Court’s restrictions on the questions, that we were allowed to do, we could not make a cause challenge and, thus, we have a –- We’re unable to point out if there’s a particular –- That these two should have been excused for cause. And I assume your ruling’s the same? THE COURT: Thank you. It is. Bring them in. MR. ROSENZWEIG: Your Honor, we also have our Batson issues to deal with. THE COURT: Let me get the two alternates in, you know, and get them -So they can go home. I know you’re considering them. Did you get their names? THE CLERK: Lewis and Hindsley. THE COURT: Lewis and Hindsley. [The alternate panel returns to the courtroom.] THE COURT: Lewis. Very good. And the rest can go home; and I thank you for coming. (Speaking to Faye Lewis and Shannon Hindsley) Now, you-all have been ABSTRACT 537 chosen to serve. Be in the jury room, if you would, in the morning at a quarter til nine. I start at nine. Leave your address and phone number with the bailiff in case something happens and we need to get a hold of you; and don’t discuss this case with anyone. Thank you very much. [Faye Lewis and Shannon Hindsley exit the courtroom.] (R 1506) THE COURT: Now, you want to make a Batson. MR. ROSENZWEIG: Your Honor, first, we were impaired, seriously impaired, (inaudible) in making a Batson challenge because, simply, we were unable to do sufficient voir dire in order to elicit the circumstances to make our prima facie case, and so (inaudible). So we’re operating under limited capabilities here. However, I want to point out -- When I say Batson, I mean, Batson and J.E.B. Of course, J.E.B. deals with the gender version of Batson. I use Batson for both. The first strike was against Lisa Brown, a white female, in her fifties. And the state did not strike: Strickland, Tucker, Pace, McCorkle, and Harrison, who were similarly situated, all of whom were white males in the same general age range and apparent socioeconomic and educational level. The state then removed Ms. Gragg for the second peremptory strike. She’s a black female in her fifties. And then the fourth strike was against Foster, a black female apparently in her fifties as well. And we submit that there is an improper pattern of removal of women and minorities in ABSTRACT 538 the usage of the state’s peremptory challenges. THE COURT: Well, I’ll let the state respond. Let me say this: If they tried, they did a poor job. (R 1507) MR. DEEN: I’m going to assume that Mr. Rosenzweig has made a factual error and believes he’s acting in good faith. THE COURT: I understand, Mr. Deen. MR. DEEN: The first one was for cause that he said I exercised on a peremptory. That was not a strike that the state made. THE COURT: I knew the errors he was making, why correct him? Go ahead. MR. DEEN: But the first strike that the state made was Ms. Williams, a black female. She answered the question on –- to (B) –- or when I was allowed to ask the A-B questions, she is the one that responded “B” which, I, of course –THE COURT: I know. MR. DEEN: (Talking over) -- I’ve always found to be very effective (inaudible) guilty a lot (inaudible) Response B. The second one that I struck was Ms. Gragg. She’s a black female; she stated openly that she had mixed feelings about the death penalty. I struck her for that reason. Mr. Rosenzweig claimed that my third strike was a black female. Erroneous. It was a white male: Mr. Banks. (R 1508) ABSTRACT 539 MR. ROSENZWEIG: I didn’t mean to say “fourth strike” -- I’m sorry -- I have “fourth” written down here. If I said that, I apologize. THE COURT: Apology accepted. MR. DEEN: I’m sure it was an innocent omission. THE COURT: It was. MR. DEEN: Mr. Banks was the third on –- He stated that he was ambivalent about death; he was also the one who paused -- but he didn’t answer for a moment or two before he said anything –- then finally he said “yes” and I followed up –- I followed up with him. The fourth one was Ms. Foster. She was a black female. She was –- It wasn’t so much about death. You asked about how the child issue might affect her. Her answer was, “I don’t guess.” Again, (inaudible) was either “I guess” or “I don’t guess.” She was soft-spoken. I couldn’t figure out if it was “I guess” or “I don’t guess.” You tried to follow up with her; and, finally, she said, “Yes.” I just felt like she was wishy-washy. (R 1509) Of the first twelve: seven are female, three are black. I would emphasize four (inaudible). In the alternate group, two additional were females, so nine of the fourteen are female. How that turned into a prima facie J.E.B., I don’t know. THE COURT: Well, why are we here talking? And you’re giving me –ABSTRACT 540 Only if he shows a prima facie case are you required to give the Court your reasons. And I understand your anxiousness to get up and correct his numerical errors and stuff. They are apparent on the record. MR. DEEN: Your Honor, I think it’s prudent for me just to say now. Two years from now, I don’t know where this notebook might be and where my memory might be. THE COURT: I agree. I agree. You never know; and you’ve said very little here today, and I didn’t let you ask your questions to get a death-qualified jury because I was trying to get out of that strategic-type of thing that you get when you get into life qualified and death qualified. (R 1510) In any event, the state only used a small portion of their peremptory challenges; and they did not direct it at any race or gender. The defendant’s motion doesn’t have one scintilla, nothing. I’ve sustained Batson objections -- I don’t know how many -but I like to see a good one when it’s made. You have four white females –- No, four white males; five white females; one black male; two black females on this panel. You have seven females; you have five males; you have three blacks. And the state didn’t use half of his peremptory challenges, so --And had good reason -- could have used more –- had good reason to use the ones that they did. ABSTRACT 541 The Court really didn’t have enough to excuse those, that it used its peremptories on, for cause so there’s not even been a pattern here that requires the state to give (inaudible) reasons. But you’ve said very little today and I’m not against you standing up. And you’re right, you never know down the road, if your notes will be gone. I will see you-all in the morning at a quarter til nine out here, and I’ll bring the jury in at nine o’clock. The Court stands adjourned. PROCEEDINGS MAY 31, 2013 THE COURT: Bring the jury. We’re on the record. No pictures can be taken in the courtroom by cell phone or whatever. The jury, certainly, can never be photographed; and that applies to media, or whomever; and I wanted to get that straight. Are you bringing the jury? MR. ROSENZWEIG: While they’re bringing the jury, may I address the Court? THE COURT: They’re already coming. Go ahead. MR. ROSENZWEIG: May I –- Thank you. Your Honor, we filed this morning a renewed motion for recusal –THE COURT: And I’m denying it. ABSTRACT 542 MR. ROSENZWEIG: You are denying it? THE COURT: Yes. MR. ROSENZWEIG: Secondly, Your Honor -- I’m sorry, Your Honor, could you ask the jury to be held up? I’ve got some issues I need to bring up. THE BAILIFF: All rise as the jury enters. [Jury enters the courtroom.] THE COURT: The jury may take their seats. MR. ROSENZWEIG: May we be heard –THE COURT: Mr. Deen, if you’d come up. [Bench conference] (R 1512) MR. ROSENZWEIG: Your Honor, in addition to the various motions that have been just denied, I make two motions dealing with the scheduling that –- First is a motion for a recess until Monday. And in support of that motion, I will point out –- I will let the Court know that Mr. Deen and I, and the rest of the defense team, are in serious good-faith negotiations which would significantly shorten this trial; and we have a good chance that they would come to fruition and would definitely shorten this trial if we could have some more time. We thought that we were going to have two days for voir dire. Secondly, Your Honor, I will move for a continuance, or a recess until Monday, for –- This is the second reason: Because we renewed our motion for continuance on the understanding that we were going to –- our witnesses would be ABSTRACT 543 available the end of next week. If we start up today, we’re going to have to have a recess in mid-week next week; and I think that it is –- I think it would be certainly more efficient for the administration of justice if you would give us, if you would recess court today, and allow –- and tell the jury to come back on Monday. Swear the jury, if you want, you know, reserving our motion to quash, of course, and then come back Monday; and I think there’s a good chance we’d be able to deal with some issues that would shorten this trial –- (R 1513) THE COURT: The only comment I have, before I ask Mr. Deen to respond, is that -- I need to make now –- is you’re not saying that you haven’t thought about the law, it’s my responsibility also to think of things. Three heads are better than one. I can’t swear the jury today and recess. I could, legally, but it invites problems because once the jury is sworn, jeopardy attaches, and a whole new set of rules apply about jury contact, and so on and so forth. So if a continuance or a delay was granted, I would never swear the jury first. I don’t even (inaudible) weekends much less three days. But the thing is, I’m responsible for trying to keep error from occurring; and so that’s the reason that I’m suggesting –- Let me finish. I’m not suggesting anything else. Now, Mr. Deen, the witness deal, I would deny. I can’t –- I want his witnesses here. I want everybody’s witnesses here. That has nothing to do with it. But in ABSTRACT 544 consideration of the jury’s time, which is some consideration, it is not the paramount consideration, but I would have to know more specifics. And on something like this, given the history and the –- Also trying to ensure that –- choose my words –- I’m trying to ensure that without Mr. Pedraza up here, I would –- that when you say “shorten the trial” there was -- Because of the report from the doctor from the state hospital, the conversations about plea bargain and Pedraza’s position at that time, and without assigning blame to any impasse -- I have to ensure that if some delay was granted because of a unspecified effort to shorten the trial. Does that mean a plea to a lesser and then a sentencing –- To delay it, I would have to –- (R 1514) MR. ROSENZWEIG: (Inaudible) THE COURT: Please, Mr. Rosenzweig –MR. ROSENZWEIG: Sorry, Your Honor; I apologize. THE COURT: I would have to have that; and I would have to have Pedraza onboard as far as authorization because I don’t want to run into –- Despite what you may think, Mr. Rosenzweig, I do not relish a Rule 37; and I’m trying to protect the record, on that account, also. Now, let Mr. Deen respond to the issue of shortening the trial. I have to know something. MR. DEEN: We were in discussions last night. I told them that the only thing I would consider doing at this stage with a jury picked would be for him to plead ABSTRACT 545 guilty to first degree murder and the jury sentence him under the evidence (inaudible). (R 1515) THE COURT: Now, let me –- Indulge me, Mr. Rosenzweig. I’m not working on anyone’s behalf. I can recess this, not swear the jury, for an hour and permit -- This case has been pending for sometime. I know he’s, according to the report from the state hospital, that this has been discussed between you and Mr. Pedraza. For your benefit, there would have to be, in order to make this work, in order for me to delay it for an hour, there would have to be a written plea offer that you could actually present him to protect yourself. And I want to know if the state would be willing to do it. And I’m not asking you to do it unless Mr. Rosenzweig agrees that –- Otherwise, I start the trial –- and discuss it with his client –- you-all know what the evidence is –- Discuss it with your client for the next hour and give the Court an answer. MR. ROSENZWEIG: Your Honor, I appreciate what the Court has said. If I could respond very briefly –THE COURT: You may. (R 1516) MR. ROSENZWEIG: –- and ask for a slight modification. Okay, I’m going to be very candid with the Court. Yesterday, Mr. Pedraza started talking, in my opinion, realistically, about, you know, the issues in this case. Okay. He has ABSTRACT 546 basically told us that he has –- that he will do this that Mr. Deen has referred to -- he wants to –- I’m paraphrasing here -- clear it with his mother, who is present here in the courtroom; and they have been talking. His mother is the only possible stumbling block. In that regard, Your Honor, we have coming up from Texas –- she should arrive here in mid-morning –- a woman representing the Mexican consulate with whom the mother has no –THE COURT: You’re convinced from your standpoint, so I’m not going to quibble about the hour versus the Monday. Mr. Deen, in your opinion, is this worth pursuing? MR. DEEN: I think so. All nine attorneys met last night –THE COURT: Then I am not going to substitute my judgment for the attorneys’. What I will do then is this: I do want -- For the benefit of counsel and the state, I do want an under seal plea offer to the charge, whatever, the charge will be; and I want an agreement, naturally, that this same jury will be used. I’m not going to go through that again; and, number three, that there will be a gag order entered now comprised of the attorneys. And in that connection, I failed in one respect yesterday, Mr. Rosenzweig -- we didn’t get them on the record -- nothing more than their names and stuff -- you had, I’m sure, a jury consultant at the table and someone else. But I need -- When someone’s inside the bar, I have to –- and at the table –- I have to get ABSTRACT 547 their names on the record. (R 1517) MR. ROSENZWEIG: (Inaudible)? THE COURT: No, I’m saying, for my housekeeping purposes, I have to get them on -MR. ROSENZWEIG: (Talking over) THE COURT: And that can be done; and my point is because the gag order would apply to them. MR. ROSENZWEIG: Yes, sir. That’s fine. THE COURT: And –MR. ROSENZWEIG: I’ll be happy to give you their names, if you wish. THE COURT: Good deal. We’ll get that later. I don’t –- What I’m going to do is this: I am going to tell the jury I’m not swearing them at this time; that I am adjourning until –- I want them in the room at nine o’clock on Monday -- because if you reach an agreement their services will be required; and that there has simply been a decision made here, that all parties are in agreement with, that this trial should begin on Monday, to enable the proof to be better presented. And that’s as generic as I can do. (R 1518) Now, that is that. Now, after they are dismissed, all proceedings are open; therefore, I would admonish you about the –- I will not do anything, but you bring ABSTRACT 548 the gentlemen up here, let them put their names on the record, and I will advise them as to the gag order and that all acting on behalf including members of the family are under the same restrictions. MR. DEEN: That is a gag order on any aspect of the case or just this issue we’re talking about now? THE COURT: I don’t think it’s necessary –- Only on this issue we’re talking about now. Counsel always knows that in any pending litigation, you should not comment on it publically, so that should be sufficient. [Open court] (R 1519) THE COURT: Good morning. All parties are in agreement; the Court is in agreement that to better present evidence and conserve time that this trial should commence at nine o’clock on Monday. For that reason, I am not going to swear –Your services will be needed on Monday -- we know that for certain -- but I am informed of certain things that both sides agree; and I’m not going to substitute my judgment for theirs. In fact, I think their judgment is correct on it, that the trial should commence on Monday. And that certainly will not mean that it will last longer, okay, just because it starts that one day. Today and the weekend are necessary for the parties to further develop certain things so they can be presented on Monday. And given the nature of the trial, this Court should honor their request, and I agree with ABSTRACT 549 them; therefore, I will not swear you in today because when you swear a panel, it has certain legal significance. As I told you-all individually, or as a group, certain groups, yesterday that when a panel is sworn, I admonish the panel, as all judges do, not to discuss the case among yourselves or with others and not to discuss the case with anyone else. The reason that you cannot discuss this case, even two of you in the hallway together until the case is over with and you’re all in the jury room to hear what’s said, is that under the law, that’s considered deliberating when you swap views and stuff; and deliberations cannot occur until after all the proof is in and all jurors are in the jury room to hear what is said. And I know that makes sense. That’s the reason for it. As far as not talking to other people, that may not be deliberations, but it is foolish because they’re not here and their judgment cannot in any way be as good as yours unless they’re in the courtroom to hear what’s said. (R 1520) And with that said, I am going to let you go today. If you would, please, be in the jury room –-You know, we started at nine today. Be in the jury room shortly before nine. I get nervous when there’s just not quite enough in the jury room five minutes to nine. I shouldn’t be, but I do. And with that said, all stand while the jury departs. Let them get out of the building before –- [Jury exits the courtroom.] THE COURT: All right, we’re back on the record except we’re at sidebar. ABSTRACT 550 Bring the gentlemen up so we can just identify them. [Bench conference] THE COURT: We’re at sidebar out of the hearing of the audience. The only thing the Court –- I’m supposed to identify everybody inside the bar and I forgot to do that. There’s many reasons for it. In any event, just let me get your name and –MR. DILLINGHAM: Bret Dillingham. (R 1521) THE COURT: Are you a lawyer or a jury consultant? MR. DILLINGHAM: Jury consultant. THE COURT: I figured that. MR. DILLINGHAM: Do you need my spelling? COURT REPORTER: Uh-huh (yes). MR. FLOOD: I’m Joseph Flood. I’m an attorney who’s here on behalf of the Mexican government. THE COURT: Very good. Oftentimes –- And that’s all I need to know. What I wanted to get you-all up here to tell you is is that only with respect to the reasons for this delay –- Mr. Deen, he agreed to it (inaudible) Mr. Rosenzweig did –but the Court is going to because of the sensitive nature of it, and if the jury wrote about on it on some blog, we know -- that there will be a gag order on this issue that ABSTRACT 551 came about –- And I told Mr. Rosenzweig for his protection and everyone else’s –and the law is, there must be an offer. Initially, I was just going to give an hour to discuss it. I’m not going to substitute my judgment here for –- And there’s too much involved for me to be rigid on that. Mr. Rosenzweig wanted, you know, to visit with the defendant; it’s an important decision, and three days is not too much to sleep on something like that. Now, I will volunteer this, Mr. Rosenzweig, two heads –- (R 1522) MR. ROSENZWEIG: I’m sorry, can I get closer? THE COURT: Even if one of them (inaudible) I’ve had the mother issue before in another murder case; and if -– For your sake, because I do not relish a postconviction hearing –- and, for your sake, the mother, despite the obvious advantages to this plea agreement, should be self-evident –- persuades her son otherwise -- and I’ve seen it twice with disastrous consequences –- in that case the attorney did not make a good enough record off the record with the mother and stuff, who was running the case, to protect himself. I would encourage you, given the fitness hearing deal about you-all are at an impasse and without (inaudible) the state (inaudible) about the impasse. So make a good record off the record about any conversations for later purposes –MR. ROSENZWEIG: And, Your Honor, we plan to. ABSTRACT 552 THE COURT: I do not want to be put in the position of deciding credibility of a client when the case is over. Take me off the spot. Thank you very much. (R 1523) MR. ROSENZWEIG: I agree. [Open court] THE COURT: Mr. Deen, are there any other matters? The matters –- Let me say this on the record and you-all will know what I’m talking about. The order that I entered, the production order that I entered on certain records, up around –- you said Ft. Smith –MR. ROSENZWEIG: Northwest Arkansas. THE COURT: Where? MR. ROSENZWEIG: Have they been received by you? THE COURT: Let me finish. I signed the order, had Mrs. Rosegrant’s e-mail address –- She checked this morning –- I’m telling you this because I know we will be back here Monday. It’s minor maybe compared to the other, but they have not been received, so if you-all need the Court’s further assistance, whether it be another order, or whatever, I take it –- I’d prefer you-all deal with it -- And I told you one way you may can deal with it. I’m not certain, but I’d check it out because –- And I don’t want her checking her e-mails all the time. It’s up to you-all to make sure ABSTRACT 553 they’re sent to her. And that’s that. (R 1524) And with that said, we’re in recess. THE COURT: I thought of something. [After those in the courtroom leave, the hearing continues as follows.] [Bench conference] THE COURT: All right. We’re back on the record. I’ve brought Mr. Deen and Mr. Rosenzweig back up here, so you know –- I think what you-all are talking about is good if everybody agrees to it. Don’t put me in a position of asking to accept no contest –MR. ROSENZWEIG: We understand that. THE COURT: Good. I wanted to make sure, so if it came up at the end –MR. ROSENZWEIG: No, no, that’s not been offered by him; and from what he’s told us, it won’t be. THE COURT: And as a suggestion to you, the plea has to be taken in front of the jury. I have to get a factual basis, as you know. I say all of that to say this: If you think -- If I’m requiring a written offer, as I should, from Mr. Deen, I would suggest to you that you get a sworn statement from your client, in case it falls through, right in front of this jury. (R 1525) MR. ROSENZWEIG: Did I hear you –ABSTRACT 554 THE COURT: I said, “If I were you, I would have him sign a sworn statement or” -COURT REPORTER: I can’t –[Open court] THE COURT: Excuse me, let me get --There’s some background up here, and I’m discussing something at sidebar. [Bench conference] MR. ROSENZWEIG: Your Honor, let me make sure I understand here. Did I hear you say you would require the plea in front of the jury –THE COURT: Yes. MR. ROSENZWEIG: –- as opposed to just telling the jury he has pled guilty? THE COURT: I’ve always done that. MR. ROSENZWEIG: I don’t think it’s required. (R 1526) THE COURT: It is not required. And the point being –- My point being: you’re going to go into –- You’re going to have a sentencing hearing anyway, right, so they’re going to hear much of the same thing. If you want to concede it doesn’t need to be in front of the jury, legally, it doesn’t, no. Fine, if that gave you some hangup. My point –- That was really not my overall point. My point is this: Before ABSTRACT 555 you-all say you’ve got a deal, I would have a signed statement with sufficient facts in it, so that even without the jury, we don’t get up here --Because that will be a public proceeding; it will not be a plea in camera. And I don’t want anyone to be embarrassed or –- Even though jeopardy hasn’t attached –- I’m just thinking of things to protect everyone. MR. ROSENZWEIG: It is our intention to work out the precise wording before, you know, we –THE COURT: You can work it out. I’d get it in writing and signed. MR. DEEN: And, again, the mental state is still “knowingly,” so it’s not going to be a case in which he admits his intent to cause death in this case. MR. ROSENZWEIG: The only difference is it doesn’t have the “under circumstances manifesting” -- (R 1527) THE COURT: You-all are all good enough to draw it up right. Just get the thing in writing from your client and I will get it sworn to. I’m not borrowing trouble –- How many pleas have y’all seen fall through after they told the lawyer they’ll admit to certain things? And this is too sensitive a matter; and it has to be done in public so it wouldn’t be able to be disregarded. It’d be on some blog and the jury would see it. PLEA OF GUILTY, JUNE 1, 2013 ABSTRACT 556 THE COURT: We’re on the record in State versus Daniel Pedraza. It’s Saturday afternoon. I told the prosecutor and defense counsel I’d be available if they thought they had something worked out with respect to the guilt phase. It’s been indicated they do and so we’re on the record here to see if that goes through. By the way, let me note for the record that Mr. Pedraza is here along with Mr. Morledge and Mr. Rosenzweig and Mr. Leonard. And the State is represented by Mr. Deen. A second amended Information has been filed charging Mr. Pedraza with first degree murder, alleging that on or about February 26, 2012, that he did knowingly cause the death of Aubriana Coke, a child less than fourteen years of age, which offense is punishable by imprisonment not less than ten years nor more than forty to life. (T 898) Of course, you don’t want to amend the Information unless this goes through? MR. DEEN: It will be contingent, Your Honor, upon a successful plea. THE COURT: Contingent. Right. And he’s also provided the Court with a Judgment and Conviction and also a waiver on the issue of when sentencing may occur. Of course, we anticipate, or I anticipate that if this plea is accepted that the sentencing trial will begin on Monday. And I know that’s what counsel anticipates. MR. ROSENZWEIG: THE COURT: That is our anticipation as well, Your Honor. But as a precaution I think there may be some sixty or ABSTRACT 557 ninety day limit on sentencing between guilty plea and so on. There is a waiver here. Has that been submitted? MR. DEEN: I submitted it to counsel. I don’t know. (T 899) MR. ROSENZWEIG: MR. DEEN: Are you talking about this document here? Yes. MR. ROSENZWEIG: My client and I have both signed it, but it needs your signature I guess. MR. DEEN: Okay. THE COURT: In absence of a clerk, Mrs. Norton, would function as both and simply mark that as an exhibit. This is a way to keep up with it. Is there a guilty plea statement? MR. ROSENZWEIG: THE COURT: Yes, sir, there is. May I approach, Your Honor? You may. Also as a formality I’ll simply ask if this plea will be taken pursuant to a plea bargain or plea agreement? Is that correct, Mr. Deen? MR. DEEN: It is, Your Honor, with jury sentencing. THE COURT: Right. MR. ROSENZWEIG: And, Your Honor, I think the document read as a whole is sufficient. There are a couple of the pre-printed questions that independently might need to be modified, but since there’s the jury sentencing reference at the end ABSTRACT 558 I think as a whole it’s appropriate, appropriate for him. THE COURT: I agree. (T 900) Now, with respect to the issues, anytime, as you know, a Court takes up a plea, the Court must determine that the Defendant is at himself and so son and so forth and not under the influence of any drugs or alcohol, but also that he’s not suffering from any mental defect that would cause him not to be able to freely and voluntarily waive his constitutional rights. Now, given the notice of fitness to proceed, at this time I know Mr. Pedraza, at least according to the State Hospital report, said he was fit, so on and so forth, but I want counsel on board for purposes of this plea that in your opinion you have no reason to believe that he’s suffering from any defect, any emotional disturbance that would prevent him from understanding what we’re about to do. MR. ROSENZWEIG: All right. Your Honor, I will so assert to the Court that I believe that he is, as in your terminology, fully at himself. I along with - THE COURT: I’m not trying to pin your down. MR. ROSENZWEIG: No. I just wanted to say that we’ve, I’ve had numerous conversations with him, as well as my co-counsel, over the past several days and we are convinced that, individually and collectively we’re convinced that he is. ABSTRACT 559 THE COURT: Very good. (T 901) THE DEFENDANT: THE COURT: Yes, sir. And as you appreciate it, you’ve been here in the courtroom, the Court is here to accept, if it is your decision to do so, your plea of guilty to first degree murder. That charge is a class Y felony that carries with it a penalty from ten to forty years or life. Do you understand what the amended Information shows and what the, what the range of punishment would be - THE DEFENDANT: THE COURT: Yes, sir. - - that the jury could go by when they made this decision this next week? THE DEFENDANT: THE COURT: Yes, sir. (T 902) Now, the most important thing in a Court’s job in taking a plea of guilty is first of all to make sure that the plea is knowingly and voluntarily entered. So I have to ask you certain question to make sure that, you have had the advice of counsel, but that that decision can rest with you only. And secondly, I have to determine whether or not there is factual reason to believe that you are in fact guilty. And you have to say eventually in this proceeding here that you are pleading guilty because you believe you are in fact guilty of first degree murder. ABSTRACT 560 Now, that’s generally where I’ll be going. I’m letting you know ahead of time. Before I ask you any questions about the offense, are you at yourself right now? I can see that you’re tearful, but are you at yourself? Do you have your faculties, are you under the influence of anything? THE DEFENDANT: THE COURT: I’m not under the influence of anything. I’m having trouble understanding you and my court reporter has to get down what you say. If you would, turn that mic a little bit more toward him. As you stand here before this Court, are you in, do you have all your marbles? Do you have - - Are you thinking clearly? THE DEFENDANT: THE COURT: Yes, sir. (T 903) You’re not under the influence of any types of drugs or anything? THE DEFENDANT: THE COURT: No, sir. Not saying you are, that’s just something I have to ask. You’re not suffering in your belief from any type of emotional disturbance that would effect your ability to rationally decide whether or not to enter a plea of guilty? THE DEFENDANT: THE COURT: No, sir. Now, do you understand that you are charged with; first ABSTRACT 561 degree murder? In other words, the charge is, on the dates I mentioned that you knowingly caused the death of Aubriana Coke, a childless than fourteen years. It’s that simple, but you’re going to have to admit to it a few minutes. But understand that’s what you’re charged with? THE DEFENDANT: THE COURT: Yes, sir. And if this - - And it will go to jury sentencing. The jury will be permitted after hearing from the State’s evidence and from your evidence at that sentencing hearing, they will have the discretion to sentence you as low as ten up to forty or they can sentence you to life. Do you understand that? (T 904) THE DEFENDANT: THE COURT: Yes, sir. All right. Do you understand that if you wish to continue with your plea of guilty that this jury will begin on Monday with the trial itself as far as the guilt stage, do you understand that, and you give that up if you plead guilty? THE DEFENDANT: THE COURT: Yes, sir. You not only give up your right to a jury trial on the issue of whether you are guilty or not, but you give up your right for your lawyers to cross examine all the State’s witnesses, including your wife, to challenge their version of the events. And if you plead guilty there is no cross-examination. Do you understand that? ABSTRACT 562 THE DEFENDANT: THE COURT: Yes, sir. You also give up your right to call witnesses that may tell things in your favor at the guilt phase, your witnesses, defense witnesses. Do you understand you give up that also? THE DEFENDANT: THE COURT: Yes, sir. And after hearing all that evidence the jury would retire and in order to find you guilty of capital murder, first degree murder or any offense, lesser included offenses, they would all, all must unanimously agree. Do you understand that? THE DEFENDANT: THE COURT: Yes, sir. Have you discussed this case fully with your lawyers who are here with you today? (T 905) THE DEFENDANT: THE COURT: Yes, sir. Now I understand at some point in time, according to you and to some extent from them, you all weren’t talking very much. I want to get on the record now as to whether or not you all are talking and you are satisfied with their advise. THE DEFENDANT: I have communicated with them and I am satisfied with them. ABSTRACT 563 THE COURT: Do what now? THE DEFENDANT: I have communicated with them and I’m satisfied with what they’re doing. THE COURT: All right. Is there anything that I need to know? When you say you’ve communicated, in your opinion you’ve communicated enough to make a decision on this? THE DEFENDANT: THE COURT: Yes, sir. Has your decision to plead here today, if you do so, to first degree murder, been the result of any type of threat or influence, undue influence, undue type of pressure that you shouldn’t be under from some other person? Have you been pressured? THE DEFENDANT: THE COURT: Such that it’s affected your clear thinking? (T 906) THE DEFENDANT: THE COURT: No, sir. No, sir. Has any assurance or representation been made to you that if you plead guilty and receive a certain sentence from the jury - - I do not know what they will do - - that you will be parole eligible or will get out of prison at a particular time? THE DEFENDANT: No, sir. ABSTRACT 564 THE COURT: And this may sound a little silly to you and to everyone else here, but I’m supposed to ask it, you understand that if you enter a plea of guilty that it could result in your deportation? THE DEFENDANT: THE COURT: Is this your signature on the plea agreement? THE DEFENDANT: THE COURT: Yes, sir. And your initials? THE DEFENDANT: THE COURT: Yes, sir. Yes, sir. And before you signed this plea statement did you go over it with one or more of your attorneys? (T 907) THE DEFENDANT: THE COURT: Yes, sir. When Mr. Deen and Mr. Rosenzweig came to the Bench the other day to ask for a delay that they had discussed and thought this may could be, the guilt phase resolved by plea, at first I said I’ll delay it only an hour, knowing that lawyers only work within a deadline, by a deadline. And Mr. Rosenzweig said that he needed more time and I gave it not only for the sake of counsel, but for your sake because it is a big decision. And I simply am putting that on the record in a sense to reflect that you’ve has some opportunity to reflect on it, certainly overnight. ABSTRACT 565 Mr. Rosenzweig, just these brief questions to you. You read the allegations to your client? I mean you believe he understands what he’s charged with? MR. ROSENZWEIG: THE COURT: I do, Your Honor. All right. All facts and possible defenses discussed or disclosed to him? MR. ROSENZWEIG: Yes, sir. We have, we’ve had, we, the whole entire defense team has had numerous discussions and - THE COURT: These aren’t things I’ve made up. I’m not really probably absolutely required, but they just come out of the Bench book, so I’m going to go ahead and ask them given the history of the case for everybody’s concern. Do you believe that there’s any meritorious defense to the first degree murder charge? (T 908) MR. ROSENZWEIG: Your Honor, it is our - - We feel that the first degree murder charge is the appropriate resolution of this case, yes, sir. THE COURT: But the point is, you do not believe he has a meritorious defense? MR. ROSENZWEIG: THE COURT: It is - - That is correct. All right. All of his constitutional rights were explained? MR. ROSENZWEIG: Yes, sir, that’s correct. ABSTRACT 566 THE COURT: And the plea is in accord with what you understand the plea should be in accord with? MR. ROSENZWEIG: THE COURT: Is the plea consistent with the advice you’ve given? MR. ROSENZWEIG: THE COURT: That is correct. That is correct, yes, sir. So you do, if he does plead and give a factual basis, you do join and concur in his decision to do so? MR. ROSENZWEIG: Yes, sir. And in terms of the factual basis, Mr. Deen and I have consulted about language and we’ve taken the liberty of writing it out to make sure there won’t be any misunderstanding, I guess, is probably the best way. So it is in writing and it’s language that meets the approval of both sides, and I believe it will meet the factual basis. (T 909) THE COURT: All right. I’ll need to get the factual basis from Mr. Pedraza. Does he have that in front of him? MR. ROSENZWEIG: That’s correct. Yes, sir. That’s correct. THE COURT: Very good. And you agree, Mr. Deen, that this - - MR. DEEN: You Honor, with perhaps an explanation. The proof will be that the fatal injury inflicted on the child was the last injury, which was a sharp blow to the abdomen. As I understand it, Mr. Pedraza is going to admit he administered ABSTRACT 567 that blow without making any comments or representations as to the other non-life threatening injuries that the child also suffered. And him admitting that is not to the exclusion of the State showing those others for purposes of sentencing. MR. ROSENZWEIG: And, Your Honor, we will in that regard, we understand the State may intend to so seek and it would be our position to, that we would, you know, object and obtain a ruling from the Court at that time on the admissibility of that issue. But Mr. Deen and I understand each other on that issue. (T 910) THE COURT: Well, I thought about that once you all called me. You know, and that is one reason that I am not going to require the Defendant in order to simply to accept a plea to go into tedious and self-incriminatory detail about any or everything that may have happened to the child, just a sufficient factual basis to establish a factual basis for the plea. Because at the sentencing part of the trial, as you know, a jury is instructed you may consider what you heard at the first part along with this part. Now, if Mr. Pedraza in any way certainly got up on the stand, and I’ve had a few do it, and say, oh, well, I pled, but told the jury I’m really not guilty, et cetera, et cetera, and I was pressured and this, that and the other, that would obviously make whatever he says here admissible if he took that type of position. ABSTRACT 568 And since I am only - - Well, there would be other ways I am sure that Mr. Deen thinks he could show the other anyway at the thing. But, let’s do this. What have you - - Let me take a look at what you’ve got? MR ROSENZWEIG: THE COURT: I’m sorry, sir? (T 911) Let me take a look at what you’ve got. Make sure it’s something that I can live with. MR. ROSENZWEIG: THE COURT: I’m going to accept this. I’m not going to split hairs. MR. ROSENZWEIG: THE COURT: Yes, sir. Okay. Give it back to him. You know it’s drummed in our head to go into factual detail. I’ve reviewed that again before I came out here and actually at times you can - - The only thing that the Court must absolutely get is the business on voluntariness and so on, do they understand it. Mr. Pedraza, if you tell me - - you can look at your statement - - if you go along the lines of that statement that you have signed, then I will accept a guilty plea. If you don’t stick to the statement then I’ve been pushed in a corner and I can’t. So I ask you how you plead to the charge of first degree murder, guilty or not guilty? ABSTRACT 569 THE DEFENDANT: THE COURT: What? THE DEFENDANT: THE COURT: Guilty. Guilty. Tell me what you did that would cause the Court to believe that you did it. THE DEFENDANT: On or about February 26th through 27th, 2012, in Drew County, Arkansas, I knowingly caused injury to my step-daughter Aubriana Coke, a child less than fourteen years if age, that resulted in her death, including the fatal blow to her abdomen. (T 912) THE COURT: Very well. The Court finds a factual basis for the plea of guilty. The Court also finds as a matter of fact that it was knowingly and voluntarily entered and that the Defendant has waived his constitutional rights associated with the trial of guilt. You understand you also cannot appeal the guilty, a free appeal, do you understand that, if you plead guilty? THE DEFENDANT: THE COURT: Yes, sir. You can appeal the sentencing part if you so decide and entitled to a free appeal at that. Okay. Is there anything else that you think of? The Court, based on all of that, finds you guilty of first degree murder. And I am entering a Judgment and Conviction ABSTRACT 570 today that will take care of that. And would you just save it for the clerk? MR. DEEN: I will. And I need that Information, too. (T 913) THE COURT: Yeah. You need your Information. It will be filed. And here is the plea sentencing deal. Mr. Pedraza, you may have seat over there. I’m going to take up, but give you all something, because you’ve got tomorrow to work on it. With regard to the sentencing part of the trial - MR. ROSENZWEIG: I’m sorry, Your Honor. Could you speak a little louder. THE COURT: All right. With regard to the sentencing part of the trial, I would ask you all to prepare some instructions. I don’t know whether it will go to the jury on Monday or Tuesday or what. Don’t want to even get into that right now. But if you all would prepare some instructions for me and give them to me at 8:30 that morning. And if you wish, if you want to preview me on what, Mr. Deen, on the time involved on your side and same way with the defense, I’ll be glad to listen to that at that time. I’m not telling you anything you don’t already know. You know, that there are in the pattern instruction book, the model instruction book, there is a particular page section on the sentencing part that sets out generally what the scope is and tells you ABSTRACT 571 for instance on juvenile stuff it’s only very serious and it must outweigh prejudice. So we know we’re not going to go into the school deal. And I’m fairly lenient on believing that the responsibility of the jury is so significant that they should or hear anything. (T 914) With victim impact, I was provided - - And I assume you were. If you weren’t take a look at them. I was provided with two relatively short victim impact type statements. I didn’t see anything in there that raised alarm with me, not like happen with Judge Cox where there was a recommendation made. And I’m just saying that I would never have more than two victim impact witnesses up there anyway. I think two is fine. MR. DEEN: Well, we also have some photos. And I don’t know if those were provided to you or not, Your Honor. THE COURT: Would you mind doing it at 8:30 that morning? MR. DEEN: Okay. THE COURT: I’m not trying to hold y’all here. Really out of deference to Mrs. Norton. I thank her for coming and that type of thing. But if you would prepare some instructions. I will tell you, as you know, I will not be reading any of those introductory instructions that are contained in - - They’ve not been authorized yet. You know, about credibility witnesses, bla, bla, bla. (T 915) ABSTRACT 572 Somebody said, oh, they’re a comment on the evidence. I don’t see how, but they are not part of the patterned instruction deal. They should be, at least some of them. Why shouldn’t the credibility of witnesses be an issue in a sentencing hearing with this range of punishment? But, I mean if you all agree for me to give it, I would. It’s not been called error yet. It just didn’t make its way into the pattern instruction book. It makes perfect sense, you know, to give at least the one on credibility of the witnesses. But you know, there’s just, there’s no guidance given there and the instruction book says so and it’s a toss-up with the jury. So with that said, we’re in recess. Thank you. COURT REPORTER: Did you want me to keep this or give it to Mr. Deen to have it filed in the file? THE COURT: Give it to Thomas. MR. DEEN: I’ll file it in the clerk’s file. I’ll file these pleadings with the clerk Monday. (T 916) SENTENCING TRIAL, JUNE 3, 2013 ABSTRACT 573 DENIAL OF ADDITIONAL JURY QUESTIONS THE COURT: You may be seated. Thank you. Very well. We’re on the record in the Daniel Pedraza case. Before -- I need to know one thing so my case coordinator can make a call to the AOC. Will there be any need for an interpreter? MR. ROSENZWEIG: No, Your Honor. THE COURT: Okay. Go ahead and call back because I talked to them this morning -- And then that woman was going to be down here tomorrow anyway indistrict court. That takes care of it. What do you have, Mr. Rosenzweig? MR. ROSENZWEIG: Your Honor, because of the developments on Saturday, it is the defense’s position that some additional voir dire needs to be done; and I have –- We don’t have a problem with the Court doing it. If I may approach, I have some proposed questions. I’ve showed it to Mr. Deen. Mr. Deen –- (R 1528) THE COURT: So we have a record, let’s make –- Let me mark this as an exhibit. Mark it as an exhibit then you can give it back to me. (WHEREUPON, Court’s Exhibit 1 was introduced into evidence.) THE COURT: Very well. I read the questions. First, let me get Mr. Deen’s response. ABSTRACT 574 MR. DEEN: I think it’s unnecessary, legally. We’re in no different posture than if you had directed a verdict on capital murder down to first degree murder. Same legal situation we’d be in; and you certainly wouldn’t be voir diring the jury at that point, so I just don’t see the need. THE COURT: Well, let me just ask both sides: Is there any precedent for it? MR. ROSENZWEIG: Your Honor, I do have a –-Not particularly on point –- Not totally on point. Let me get the case here. Fauna vs. State: the case was reversed because of an insufficiency of voir dire. It’s not precisely the same factual situation, but, Your Honor, the problem is –- I’ll wait til you finish reading it. (R 1529) THE COURT: All right. I’ve read the case. Let me do this. It’s 25 til 8:00; and I want to bring the jury out at nine. Let me delay my decisions. It is doubtful I would allow additional voir dire. I’ve read the cases regarding sentencing this morning and none of them, where there was a plea of guilty, none of them involved additional voir dire. There’s some particular rules regarding alternates that are at issue here, but –- The Court’s not going to allow it. What I want to do is get –- I told you-all if you can agree on a set of instructions, I need to see them –MR. DEEN: I’ve prepared and modified the standard 9001 that you go into at the beginning of the sentencing phase; and I have modified it to suit this. ABSTRACT 575 THE COURT: Have you shown that to –MR. ROSENZWEIG: He did show it to me, Your Honor. I believe our introductory paragraph is -– for the voir dire questions –- is a better statement. And I would like to respond very briefly to what Mr. Deen said. THE COURT: Go ahead. I’m just reading. I can do that and read this instruction. (R 1530) MR. ROSENZWEIG: Your Honor, the point I am making is we had jurors who said they could consider the full range of punishment of life without parole or death. We need to ensure, specifically, that there are no jurors who cannot consider the full range for first degree. In other words, do we have jurors who are of the opinion that one has to do at least 25, or 40, or some other for homicide involving a child? And, now, what we have -- before the jury is sworn -- we have a material change of facts on the ground. This is not a situation, unlike the directed verdict, where the jury’s already been –- Where the jury’s already been sworn. We have an as-yet unsworn panel and we need to know their attitudes. And there are fourteen people, so, you know, if you lose two, you’ve still got a panel. But I think it’s essential to Mr. Pedraza’s federal and state constitutional rights to due process and fair trial, and appropriate fair jury, that we ensure that there is no one on that panel who simply cannot consider the full range of punishment. ABSTRACT 576 THE COURT: Very well. The Court has considered your arguments. I’ve denied. I find no precedent for it. And the jury is –- The jury has been qualified. Now, let me move to this point. Is this the only instruction that the state is offering, not at the conclusion of the sentencing trial, but this is what I should tell the jury –MR. DEEN: To commence –- (R 1531) THE COURT: -- to commence –MR. DEEN: –- proceedings. DISCUSSION OF VARIOUS ISSUES THE COURT: All right. This is right out of the book, so I will give it modified only to reflect that there has been a plea as opposed to their finding of guilt. Now, let me tell you-all after looking at it over the weekend since the plea and this morning, the trial that we’re about to have solely on sentencing certainly will be governed by the rules of evidence. The statute that is involved, obviously, 16-97-103 lists several things that the Court can consider in determining admissibility or relevance. The Court has also, and the statute, I believe –- I know in previous decisions –- have also referred to those factors listed in the sentencing guidelines; and I sign those routinely. I don’t have one in front of me, the sentencing guideline, as far as ABSTRACT 577 departure, that type of thing. And so if you want to be so kind as to provide me with that then that will also be a guideline as to the type of evidence I can –- (R 1532) MR. DEEN: I’d like to say also that those guidelines and that statute (inaudible) that there was a trial that preceded the sentencing. This jury isn’t going to know anything about the facts. THE COURT: Well, I understand that. We’re talking past each other. I’m just saying I know you can put on proof about how this, you know, the extent of the injury and all of that. I’m just saying it gives me a checklist, in a sense, to go by, so if you could provide that to me. Go ahead and call the AOC, Penny, and tell them that I will not need a Spanish interpreter. MRS. ROSEGRANT: I’ve already called. THE COURT: You’ve come and gone? MRS. ROSEGRANT: Uh-huh (yes). MR. ROSENZWEIG: Your Honor, one other matter that will come up in the cross-examination of Victoria Pedraza, do I understand may be their first witness, and so for purposes of efficiency we can address it now. THE COURT: Go ahead. MR. ROSENZWEIG: Your Honor -- And I have informed Mr. Deen that we ABSTRACT 578 are not going to elicit any expert testimony involving PTSD in this case. There is the fact, however, though, that Victoria Pedraza in some of her previous statements had offered the lay opinion that he had PTSD. And I am moving in limine essentially –THE COURT: To exclude that? (R 1533) MR. ROSENZWEIG: No, Your Honor. I’m moving in limine for a finding that if we were to elicit her lay opinion that Mr. Pedraza had PTSD that that would not be deemed to be opening the door to expert testimony from Dr. Ramos, for instance, that he did not. We are not going to elicit that if you find that the elicitation of the lay opinion, coupled maybe with a cautionary instruction, that she’s not an expert, obviously, that this opens the door –THE COURT: You’ve lost me a little bit. I’ve never thought that her statement –- and you know I’ve said that –- that her statement was admissible on several grounds. But are you saying that you’re asking –What’s he asking me, Mr. Deen? MR. DEEN: He says he wants to ask her that so he can get her opinion in and foreclose me from using Dr. Ramos as a (inaudible). THE COURT: Is that what you’re asking me? MR. ROSENZWEIG: Not quite. Not quite. That’s his prosecutorial spin on it. The point is is that she is not an expert. This was her lay –- (R 1534) ABSTRACT 579 THE COURT: Okay, what –MR. ROSENZWEIG: –- analysis of the behaviors or symptoms that she saw, which as a layperson, she –THE COURT: I know. You’ve made that point. MR. ROSENZWEIG: But, anyway, Your Honor –-And we are not offering it as an expert medical opinion on it. THE COURT: Are you offering –- Do you want to get it in at all? MR. ROSENZWEIG: Well, the fact that she made the statement -- and I would want to get it in –- merely as her lay –THE COURT: Relevant to, what, issue? MR. ROSENZWEIG: Of Mr. Pedraza’s behavior issues at the particular time for which is relevant. THE COURT: First of all, whether I agree or disagree with the strategy, should not be my concern -– Should not be my concern now. But I will collect myself, so I can get past that point. The opinion should not –- It’s a lay opinion; therefore, it doesn’t come in. It doesn’t matter who asks it. There is no way that a layperson can offer opinion testimony with regard to a DSM diagnosis. (R 1535)There’s simply no way they could give that foundation. If it were offered for any other purpose, it would only come from Mr. Pedraza, i.e., “I have PTSD,” as state ABSTRACT 580 of mind not for the truth of the matter asserted. So there’s no way it’s admissible, certainly, if you told the jury that you expect the proof to be that –- Or that you expect, you know, PTSD. Then that would open the door for Mr. Deen to come in and say not. Anyway, it can’t come in. Forget the strategy of either side. It’s simply inadmissible; and I’m not going to try to figure out in my mind whether it would favor one side or the other. It’s such a problematic thing in this case that, especially considering the fact that –MR. ROSENZWEIG: Your Honor, at some point today, obviously, outside the presence of the jury, I would want to proffer the questioning just so –THE COURT: Absolutely. And just what I would say is this, that in order to do it properly, it should actually come from the witness. At some point in time, we’ll just have Mrs. Pedraza available and you can ask her those questions in a way of a proffer rather than submitting it yourself. MR. ROSENZWEIG: Thank you. MR. DEEN: You wanted to preview the photographs that I have to offer –THE COURT: I did. (R 1536) MR. DEEN: I have those ready for you if you’re ready. THE COURT: I’m ready. Did you get those mitigating –MR. DEEN: He’s looking for them, Your Honor. ABSTRACT 581 THE COURT: Okay. MR. DEEN: The old ones have all of themlisted and the new ones do not. The ones that are paper-clipped are just duplicates of the ones they’re with. THE COURT: Let me just get to them. Now, these are not autopsy photographs what you’ve handed me? MR. DEEN: No, those are victim impact. Those are the ones you said you wanted to preview this morning. THE COURT: All right. Have you looked at them? MR. ROSENZWEIG: Yes, sir, I have. I think the empty chair photograph is unfairly prejudicial. THE COURT: It certainly is. That does jump out. So any others –- Oh, you’ve got copies, I see. I’ll let this –- Let the empty chair photograph be marked, as a proffer, of State’s Exhibit 1. (R 1537) (WHEREUPON, Proffered State’s Exhibit 1 was introduced into evidence.) THE COURT: Now, the rest of the photographs I have here –- Let’s do -I’ll call it “family photograph” –- State’s 1. You’ve seen that one, Mr. –- The one with four or five people in it. Any objection? MR. ROSENZWEIG: If it’s being offered for victim impact and some of the ABSTRACT 582 persons portrayed in the photograph are going to be testifying; is that right? MR. DEEN: That’s right. MR. ROSENZWEIG: I don’t have any objection to it. (WHEREUPON, State’s Exhibit 1 was introduced into evidence.) THE COURT: Then we’ll go next to the single photograph of the victim as State’s 2 -MR. ROSENZWEIG: I don’t have any objection to that. (WHEREUPON, State’s Exhibit 2 was introduced into evidence.) THE COURT: Then we’ll make 3 a picture of, I assume, Victoria Pedraza and the alleged victim. (R 1538) MR. ROSENZWEIG: Your Honor, that strikes me as repetitive from the multi-generational photograph. I mean, two of the same people –- Those people are in the other photograph. THE COURT: I’m going to go ahead and allow it. And that brings you to those three. (WHEREUPON, State’s Exhibit 3 was introduced into evidence.) MR. DEEN: And here are those (inaudible) that you were also inquiring about. MR. ROSENZWEIG: Your Honor, if I could also add one other thing with ABSTRACT 583 regard to the proposed voir dire issue in addition to considering the full range, we want to make sure that the jurors, or prospective jurors at this point, can put out of their mind that they have been voir dired on the issue of capital murder. And, again, I will also point out that as far as I can –- The precedents that I’ve found, and which I think you’ve cited, are really not on point because there was not a –- The jury had already been sworn and had heard testimony at that time, as opposed to as an as-yet unsworn –THE COURT: Very well. Thank you. MR. ROSENZWEIG: I assume your ruling’s the same. (R 1539) THE COURT: I’ve denied it. With respect, are you –- The Court is not going to need the –- Of course, evidence admissible in the first stage can be put in at this stage. Does the state intend to offer the statement, signed statement? MR. ROSENZWEIG: I’m sorry, I did not hear –THE COURT: I want to know if the state intends to offer the signed statement. MR. DEEN: I don’t believe I will, Your Honor. MR. ROSENZWEIG: What signed statement? THE COURT: The signed statement we used the other day –MR. ROSENZWEIG: Oh, okay. ABSTRACT 584 MR. DEEN: And I don’t think it was made part of the record. THE COURT: Well, it was, it was read into the record. This was simply the written version. MR. DEEN: Right. THE COURT: Let’s hope it’s part of the record. Did you file it with the clerk –MR. ROSENZWEIG: The thing that Mr. Pedraza read was not filed; and it was shown to you, and you said that –- he had signed it –- and it was shown to you, but it was not –- (R 1540) THE COURT: Yeah, I gave it back to Mr. Deen. I don’t want there to be any dispute that he signed the statement; and, you know, I read it –- He read it verbatim in court. The only thing –- What somebody says they did is obviously admissible at the sentencing stage. Normally, it’s heard already at the other stage. Obviously, we’re not going to get Margaret Norton back here and have her read what he read into the record. This was simply a verbatim –- It was memorialized. And if you’re going to offer it, I need to know it. That’s all. MR. DEEN: I don’t recall it being returned to me. I (inaudible) recall him standing at the podium reading it with his lawyer standing next to him. THE COURT: Fine. That’s good. ABSTRACT 585 MR. DEEN: Where it is now, I don’t know. THE COURT: Sorry I brought it up. It doesn’t matter to me. Now, with respect to –- Let me just ask you so I know something about the time involved and recesses. How many witnesses do you intend to have? MR. DEEN: Eight. (R 1541) THE COURT: All right. About how long? I know there may be crossexamination. How long do you think it will take you to put on your case? MR. DEEN: Dr. Erickson cannot be present until 12:30 from the crime lab, so I anticipate the first seven will occupy the morning. At that time, hopefully, we can recess for lunch, and Dr. Erickson –THE COURT: That’ll be fine. Do you think you’ll get through today, that’s all –MR. DEEN: Absolutely. THE COURT: Because I’m thinking about the final instructions and I would like those, at least given to me, by the noon hour so I can compare them to what I think they should be. Now, with respect to the defense, I know you gave me a tentative list when we were voir diring, but –MR. MORLEDGE: Yes, sir, that’s –ABSTRACT 586 THE COURT: –- I’m not going to hold you to that. MR. MORLEDGE: Yes, sir. We expect to call nine witnesses. I have three available this afternoon, and we’ll be done by, you know, lunchtime tomorrow. THE COURT: That’s fine. (R 1542) With respect to those witnesses, if you-all would please visit. If Mr. Deen is going to have any objection to any of them, I’d just like as much advance notice as possible so I don’t have to have a recess with the jury. Now, y’all haven’t mentioned it –- I’m fixing to bring them out -- but with respect to the rule in this sentencing hearing, I’m not encouraging it or discouraging it. Does either side want the rule? MR. DEEN: We’ve chosen –- We’ve already discussed it. We’ve chosen to waive it as to the victim impact family-type witnesses. THE COURT: But I don’t know who all those are. MR. DEEN: We do. THE COURT: Well, give me their names, so that if one’s in the courtroom, we’ve got that agreed on on the front end. I mean –MR. DEEN: We’ve agreed to waive that as to all witnesses. THE COURT: Very well. One less thing to do. MR. DEEN: Do you have a limitation in mind on opening? (R 1543) ABSTRACT 587 THE COURT: No. I did tell you-all –-stated the obvious –- at no time can anybody suggest to the jury that if they are unable to reach a verdict on sentencing that it defaults to the Court. I mean, that’s always been the law and everyone knows it. Don’t get close to that. Let me know when we have –THE BAILIFF: They’re all here, Your Honor. THE COURT: Bring them in. MR. DEEN: Madam reporter, where do you want my numbers to start? I know the judge started my numbers for me. THE COURT: Well, I did, but if you want to change them –COURT REPORTER: Start at State’s 4. MR. DEEN: I start at 4? COURT REPORTER: Uh-huh (yes). THE COURT: Where are y’all keeping the jury? Across the street? THE BAILIFF: All rise while the jury enters, please. [Jury enters the courtroom] SWEARING OF THE JURY THE COURT: Take your seats. I’m going to ask you-all to stand one more time and be sworn in. You have not been sworn in yet. ABSTRACT 588 Stand, if you would, and raise your right hand. [Jurors sworn] THE COURT: You may have a seat. I need my bailiffs up here to be sworn. (R 1544) [Bailiffs sworn] THE COURT: Very well. Ladies and gentlemen of the jury, if you would -there should be jury identification tags in front –- if you-all would, please, use those, that way everyone knows who you are. And if, inadvertently, somebody is talking in the hallway and you’re passing through, maybe they won’t, knowing you’re a juror, and you would overhear the conversation. You have notepads in front of you. You can take notes, not take notes. Some judges allow it, some don’t. I do. They are your personal property. All right. And, of course, always, I’ll tell you now and hopefully a few more times when we are in recess: You’re not to discuss this case among yourselves or with others, certainly, until the case is over with and you are in the jury room to hear everything that is said. (R 1545) Over the weekend there was a development and this is the development which will shorten this case or at least your participation in it: Daniel Pedraza has pled guilty to the lesser charge of first degree murder and knowingly causing the death of ABSTRACT 589 Aubriana Coke, a child less than fourteen years of age. First degree murder is punishable by imprisonment in the Arkansas Department of Corrections for not less than ten years nor more than forty years, or for life. The state and the defendant may present evidence to be considered by the jury in its deliberations on sentencing. You will now hear evidence that you may consider in arriving at the appropriate sentence. There will be brief –- There will be opening statements by each side outlining what they expect to be the evidence that you will hear at this forthcoming sentencing trial where you will hear evidence. Mr. Deen, you are recognized. MR. DEEN: Thank you, sir. PROSECUTION OPENING STATEMENT MR. DEEN: May it please the Court. Ladies and gentlemen. Victoria Stuard, her maiden name, you’ll find had an extraordinarily bad fortune to meet and strike up a romantic relationship with Daniel Pedraza in July of 2011. She had a young child: Aubriana Coke. Aubriana’s father had not been involved in their life for any appreciable extent for quite sometime. Aubriana was, at the time of her death, 27 months old, I believe, a little over two years old. (R 1546)Victoria raised her as any young mother would –- You’ll see a photograph of Aubriana in a moment. Aubriana with her young puppy, her dog. I call her “Aubriana,” as you’ve heard the judge and ABSTRACT 590 others call her “Aubriana.” The family called her “Bri” for the most part, but since I’ve learned of her –- I didn’t learn of her until after her death –- I’ve always just called her “Aubriana,” and I haven’t changed over to “Bri.” You’ll hear from Victoria, Daniel Pedraza had a different word for Bri. It started with a “B,” too, but I’ll let her tell you what that word was that he used for the child. Victoria will tell you that they were both in the National Guard. As they grew closer, they moved in to her grandmother’s house in Warren. Actually, it was, like, a camper/trailer-type thing behind the grandmother’s house, like, a bus, or camper, that had been used to turn into a hunting -- Something to keep out at the farm. They stayed in there at Ms. Stuard’s house. She’ll tell you that she first got concerned about her physical safety with Daniel at an incident when they were on a military exercise of some kind near Ft. Chaffee up in northern Arkansas near Ft. Smith -- the Guard uses that facility now –- and an incident occurred in which he laid hands on her and caused her some concern. But alcohol was also involved amongst the parties and they sort of let it go. (R 1547) (Inaudible) when her boyfriend, Daniel, began to show –- “Peculiar” isn’t the right word. I don’t know if (inaudible) is even the right word -- Incredible interest in the discipline of Aubriana, the discipline at that time of a child less than two years old. The consequences, if the child did something he disapproved of, Go stand. Chair stand, as long as you can like this, like, you’re sitting in a chair, but you’re not in the ABSTRACT 591 chair, against the wall. What most reasonable people would think would be completely and totally, absurdly ridiculous to apply to that little child. That’s how it started. That’s how it started. That is not how it ended. Victoria will tell you how it ended. She met the man in July; she married him on February 14th of 2012; her daughter was dead of internal injuries on February the 27th of 2012. You’ll find this is not a case of a guardian, or a parent, or somebody else in a supervisory position over a child, who snaps in one instance and loses it; or sometimes you’ve read, may have thrown the child, or hits the child, in an isolated incident to cause serious injury or death. We hear those cases too. This is not one of those cases. This is a systematic system of torture inflicted on this little girl until the day she died. (R 1548) The grandmother –- actually, that would be Aubriana’s great-grandmother, I think –- will tell you when they lived over at her place that, you know, she began to be concerned; she wished her husband was around because he wouldn’t have allowed it and would have taken care of the matter. It probably would have been the end of it. But her husband passed away. She began to be concerned about some of the preliminary things that she saw going on; and thought best that they live elsewhere. They lived for a time with his family in Ashley County, then they found the last ABSTRACT 592 residence they lived in, which was a trailer house –- I think it’s on the Old Monticello Highway just outside of town a couple of miles -- where they moved in with the child. This was in early 2012, January, February, along in there, perhaps earlier; but I think in that time frame, they moved in the trailer house. Now there is no one to watch. There is no grandma; there is no great-grandma; there’s no sisters; there’s no mom, just him, doing as he pleases, at his whim to his soon-to-be wife, February 14th, and that child. No check on him. (R 1549) There’s a crime in Arkansas called permitting abuse. If a parent or guardian fails to take reasonable measures to stop someone from either killing or causing serious abuse to their child, that’s a felony too. That in and of itself is a felony, Class B felony, five to twenty years in the penitentiary. To get ahead of myself slightly, Victoria Pedraza has pled guilty to that felony; and down the road, before too long a different jury, a jury besides you, will decide how long she stays in the penitentiary for not doing what she should have done to stop what I’m fixing to tell you now, to stop, by whatever means, what I’m fixing to tell you happened on those last two days. Man’s got to sleep some time, doesn’t he? Kitchen has butcher knives, doesn’t it? But it didn’t happen. Somebody else is dead. Those last two days were hell. More of the exercises, more of the things ABSTRACT 593 against the wall. Don’t do them right, get beat. Don’t do them right, stand in the corner. “Stop the crying. Stop the crying. That’s weak. Stop crying.” (R 1550) Beating on Victoria just as much. Victoria will tell you that down to her bottom, beaten with a belt so hard she couldn’t even sit down; she had to lay on her side because she couldn’t sit. Holding the little child’s face under the water in the bathtub as punishment and torture. You’ll see where she cut her lip trying to get out from under it, trying not to drown. In that last timeout she endured, her last timeout, she wet her pants. Oh, my god, she wet her pants. He couldn’t have that. He could not have that. And that was the last blow; that was the one that ripped her intestines and killed her, not just right then, though. When you have your intestines torn and all the bile and matter comes out, it takes hours, and hours, and hours, and hours to die in agony. You’ll be spared most of those photos. You will see some of them. You will see the way her body looked when one of the EMT’s, who will testify, said that –paramedics –- she got there –- Victoria finally called. She finally called. It was too late. The child was dead. Victoria to her husband: “We’ve got to call 9-1-1.” Daniel: “What are we going to tell them?” “We’ll say she fell off the dock” (inaudible). Well, of course, that fooled absolutely no one, not the paramedics, not the doctors, not the nurse, not the medical examiner, not the police; and she said she knew it wouldn’t for long. She said she wanted enough time to bury her baby. She knew it ABSTRACT 594 wasn’t going to hold up. She wanted enough time to bury her baby, she said. She didn’t get that time. (R 1551) The paramedic, on the way to bringing Aubriana to Drew Memorial, got on the phone. She knew something wasn’t right. She got the police down there. Of course, she was DOA. They may have tried some measures, but they –- They hooked her up to the –- They just wanted to try something to see if there was some brain activity –And you’ll see her little lifeless body laying on that table in the hospital with bruises from head to toe, arms, legs, belly, head, face. The nurse who took the photographs, Celita Brooks, will testify about that, about what efforts were made. The doctor, Dr. Jacobs, ER physician on duty, will be here to tell you some of the same. He’ll also be here to tell you some of what must be a doctor’s worst part of the job in the world is having to go to the parents and tell them their child is dead. He’ll tell you what their reactions were, too, Victoria’s and Daniel’s, when receiving this news. Of course, the police were called. Several were involved. Detective Tim Nichols with the Drew County Sheriff’s Department; Sheriff Gober; Sgt. Scott Woodward, Arkansas State Police; CID Agent Clayton Moss with the Arkansas State Police. Others were involved in the investigation because, again, it was plainly obvious this was not an accident of a child falling off the dock at Lake Monticello. The only officer that I expect we’ll call today will be Clayton Moss. He’s no longer with the ABSTRACT 595 state police. At the time, he was a detective for the state police, and he’ll –- He conducted a search of the house. I will tell you what he found there that’s relevant to this case. (R 1552) You’ll see photographs of some of the things he found there, some things that, again, if you thought I was done with the shocking things, I’m not. Some things that will shock you to your core. You’ll find Mr. Pedraza attempted, after the fatal wound, to use vegetables, egg, through some kind of superstitious mumbo jumbo to heal the child. You’ll find one thing curious, that the police found curious for a couple of days -- so did I –- a cord wrapped around a clothes rod in the master bedroom closet, a long cord wrapped around –- It didn’t seem to have any purpose why it would be in there. There were hardly any clothes in there, just the cord. Well, finally, Victoria Pedraza, after she was arrested a day or so later decided she wanted to tell what happened. She wanted to tell what happened. And some of what I’ve told you, I gleaned from what she told us. And we asked about the cord. “What was the cord for?” Amongst the other tortures, literally, was so that when Daniel was asleep, getting his shuteye, and the child was made to stand at attention at the foot of his bed while he slept, that cord was wrapped around her and then wrapped around him so that if she sat down or fell, it would alert him and he would know to start the tortures ABSTRACT 596 over again. You’ll see that cord. (R 1553) Finally, you will hear from Dr. Stephen Erickson. He is a pathologist, associate medical examiner with the Arkansas State Crime Lab. He will testify as to the manner and cause of death, and explain to you the mechanism that would have been necessary to cause that fatal internal injury to the child. We think rather than using photographs –- There have been maybe a couple more photographs of the -- exterior of the child’s body. But rather than use photographs that are hard to handle, hard for me to handle anyway, we’re going to use a piece of software that projects the human body in a scientific-type, like you would see in textbook, like this is an anatomy class; and this software will be reflected on this monitor here. We’ll get it up a little closer maybe. And he can, with this software, go in and make the figure’s body move; and he can draw on it, alter it, to show, to demonstrate his testimony and to demonstrate the injuries and, in particular, the fatal injuries when her bowel was ripped apart. (R 1554) You may hear from another family member who will talk to you about the hole that it left in their lives that can’t be replaced. And you’ll see additional pictures of them in happier times before Daniel Pedraza intruded himself in their lives. So here we are, unlike Aubriana, he gets to keep his life. He gets to keep it. The question for you to decide when this is over tomorrow, more likely –- It’s over ABSTRACT 597 tomorrow, perhaps, the next day. The question for you to decide is where he is going to get to spend the rest of that life that he’s been allowed to keep. Where will he get to spend it? Will it be ten or twenty years up the road, or even forty? Or will he stay in that prison until the day he draws his last breath? That’ll be for you to decide after you hear the evidence. I think you know what I’m going to be asking you to do when that time comes. Thank you. (R 1555) OPENING STATEMENT BY DEFENSE MR. ROSENZWEIG: Ladies and gentlemen, Daniel –- Daniel Pedraza, as you heard last week -- was charged with capital murder. Now, he’s entered a plea of guilty to what the judge told you is the lesser charge of -- What is called lesser included offense of murder in the first degree. What’s the difference between the two? You heard in jury selection last week that capital murder was knowingly, under circumstances manifesting extreme indifference to the value of human life. The plea that was entered, with the approval of the prosecuting attorney, to first degree murder was just “knowingly.” In other words, it does not have the element of “under circumstances manifesting extreme indifference to the value of human life.” The issue before you today and tomorrow is going to be what punishment should Daniel Pedraza serve for his role in this tragedy. We’ll ask you and we’re going to demonstrate to you that Daniel was a good person who did a bad thing. That ABSTRACT 598 after serving his sentence that you assess for what he did, you should give him that second chance. And we’ll try to show you –- We will show you why you should give him that second chance. (R 1556) Now, I should start with one word in that. That word is “Iraq.” You’ll hear that Daniel went to Iraq and served his country. Was there in 2008 in a combat zone. I’ll start before then. He was born in 1989 in Mexico into grinding poverty and hunger, the type of thing you don’t see in the United States. We’re talking about just having to forage, get leaves off the trees try to eat something because there’s no food available. They don’t have food stamps in Mexico; they don’t have the social safety net in Mexico, just grinding poverty. No indoor plumbing, no anything, just bare existence. You’ll hear about that. But his father, Enrique Pedraza, wanted a better life for his family, came over to America, came back, got his family, and they settled in Hamburg -- Daniel was around four years old when they crossed over -- and they obtained legal status, became legal permanent residents of the United States. And Daniel went to school in Hamburg and they didn’t have a lot of money. Obviously, wages are higher in America than they are in Mexico. He went to school with his –- He had sisters and an older brother. Graduated from Hamburg High School in 2007. And you’ll hear of people who knew him growing up in Hamburg, neighbors, that type of thing. ABSTRACT 599 Joined the Arkansas National Guard, went to basic training; and with his unit, was sent to Iraq, where he was the following year most of 2008. It wasn’t a cushy-back office job. He was in Bagdad. His base was shelled, mortared regularly whizzing overhead. You’ll hear that it happened for weeks and weeks. What was his job? He was a gunner on a humvee driving around Bagdad and escorting –- His particular unit generally would escort UN commissioners, or dignitaries, or other high supervisory officials. That unit obtained -- (Inaudible) sniper fire. (R 1557)They had the ever-present worry about these improvised explosive devices, the IED’s. You didn’t know if and when one of these things would explode in your path. And that stress that he was under for those months and months that he was in Iraq. He served honorably and he received commendations, the citations, the recognitions, that people and soldiers get for serving honorably in a combat zone; and you’ll see those. They’ll be introduced into evidence. But when he came home, he came home to a troubled life. He stayed in the Guard, but he developed a drinking problem. He got two DWI’s because of that drinking problem. He had trouble getting a job, had trouble holding a job. Just could not get focused and get his life back on track to the life he had before, you know, when he was at Hamburg High School. He went straight from high school into the service and into Iraq. One year from his high school graduation, he’s riding around ABSTRACT 600 as a gunner on a humvee in Bagdad being shelled. (R 1558) And then he met Victoria, and it was a difficult relationship that, and I agree, as I think Mr. Deen told you, that these two should not have gotten together. Daniel was –- He had this trouble. And their relationship was –- It was not all bad. For instance, the picture you saw of the little girl and a puppy, that’s a picture Daniel took. It’s a puppy Daniel bought for her. And they had the –- There was the incident at Ft. Chaffee and alcohol was involved. But Daniel was so upset about that incident that he had a knife out and he carved, stabbed himself with the knife thinking about suicide and regret. They got that resolved. But the circumstances of their lives were not at all conducive to fixing the problem. They’re living –- They don’t have jobs. Couldn’t get a job. Something apparently a lot of Iraq veterans have -- Still was in the Guard. They’re living in a converted school bus, an old school bus, in Grandmother’s backyard. Obviously, not the best living conditions. That doesn’t work out. They move to Hamburg and they live in his parents’ living room. That doesn’t work out. Victoria moves and then Daniel moves to Monticello; and they get married, but things –- Stress grows even more until snap. Mr. Deen talks about that weekend. Daniel was at drill all that Saturday. He was at Guard all day Saturday, the day before the fatal blow was inflicted. (R 1559) Now, you’ll hear today and tomorrow from several groups of people. You’ll ABSTRACT 601 hear from people who have served in Iraq with him. They’ll tell you that he was a good soldier; that he served honorably; that he received these commendations, these citations. You’ll hear also from people who have supervised him in jail for a year. Despite his charges, he was made a trustee in the jail, a person, an inmate, a person who is detained there, who they trusted would not –- Who could be allowed some additional freedom. You’ll meet a neighbor of his, a policeman on the auxiliary force in law enforcement, a neighbor for a long time in Hamburg, who will tell you about the Daniel he knows. You’ll hear from his priest. You’ll hear from the former employer who says Daniel was a good worker; he was a good worker, a reliable worker; there on time worked hard. You’ll also hear from his two older sisters, Joana and Liliana, and they will tell you about the Daniel know. And Joana, in particular because she’s significantly older, will tell you about the life they had in Mexico and where he came from, and what he was able to do. (R 1560) We will ask you to judge Daniel Pedraza not only on the worst thing he ever did, which was –- which is why we’re here –- but also the other things about his life, the good things he did. And we will trust that at the conclusion of this trial that you ABSTRACT 602 will agree that Daniel Pedraza, after serving the period of time that Arkansas Law mandates that you would pick from the range that the judge will give, that he is worthy of redemption, your mercy, and your consideration, in allowing him a second chance later on in his life. Thank you. VICTORIA PEDRAZA DIRECT EXAMINATION BY MR. DEEN I’m Victoria Pedraza. I’m currently in Crossett jail. I’ve been here or in jail in Drew County approximately fifteen months. State’s Exhibit No. 4 is my plea in the Circuit Court of Drew County. (R. 1561). I pled guilty to permitting abuse of a minor, my Aubriana Desha Coke. I understood that as a result of my guilty plea and if I testify truthfully in Daniel Pedraza’s trial, the charge of capital murder will be dropped and I’ll go to a jury for sentencing on that charge. I could get from five to twenty years in the Arkansas Department of Corrects and/or a $15,000 fine. (State’s Exhibit No. 4 (R. 2105) is admitted into evidence without objection.) Direct examination of Victoria Pedraza by Mr. Deen continuing: Yes, I said testify truthfully. (R. 1562). I wasn’t truthful to the police and medical personnel when they first asked me what happened to my child. I told the ABSTRACT 603 paramedic that Aubriana had fell of the dock at Lake Monticello and she had fell onto some rocks and that’s how she sustained her injuries on her stomach. Before calling 9-1-1, Daniel and I discussed what was going to be said when the paramedics arrived. He told me, “And tell them, what, Vicky?” and I was like, “I don’t know.” And he said, “And tell them, what?” and I said, “I don’t know. Just help me, please.” He wouldn’t allow me to call 9–1-1. (R. 1563). I met Daniel Pedraza through the military in the summer of 2009 at Ft. Chaffee, Arkansas. I was a signal support systems specialist. They operate and set up communications within a unit; and they work with satellites and radios and different networks. Daniel’s position was a cavalry scout. We would train together sometimes because we were in the same squadron. (R. 1564). I happened to be in a support unit that supported an all-male squadron; and we were the only unit within the 153rd Cavalry to have females. Our quarters were separated by male and female. Our showers and other facilities were separated male and female. Except one time when we were at Ft. Chaffee, males had to be on the bottom; and we were on the top floor. It was a two-story building. We became romantically involved in July of 2011. (R. 1565). Aubriana was born November 17, 2009. I was pregnant with Aubriana at the time that I met Daniel. When we started going out with Daniel in July of 2011, Aubriana would have been ABSTRACT 604 a little less than two. (R. 1566). State’s Exhibit No. 5 is my daughter, Aubriana and that is her puppy. This was taken at my grandmother’s house, so between August and December sometime, of 2011. (State’s Exhibit No. 5 (R. 2101) is admitted into evidence without objection.) Direct examination of Victoria Pedraza by Mr. Deen continuing: She was attached to the little puppy. She was a typical child in that regard. (R. 1567). As for her being taken care of as far as food and clothing, she was taken care of up until the time when Daniel would use food as a punishment. Daniel and I moved into my grandmother’s house in August of 2011. We lived out in the camper out behind her house. It was a bus my grandfather had converted for a hunting vehicle to go deer hunting. It was suitable. If Aubriana didn’t talk correctly or answer “yes” or “no,” he would use food as a punishment. (R. 1568). If he asked her, “Aubriana, are you hungry?” and she didn’t say “yes” or “no” correctly, he wouldn’t allow her to eat. An incorrect way of saying “yes” or “no” was if she used a lisp or if, you know, she wasn’t loud enough, or anything like that. Or if she said “uh-huh.” He expected her to answer “yes” or “no.” When he used food as punishment I mean not allowing her to eat at all. One morning at his parents’, we woke up and he asked her was she hungry for ABSTRACT 605 breakfast and she said “uh-huh” and he goes, “It’s either ‘yes’ or ‘no,’” and she never did say “yes” or “no,” and so he told her she wasn’t allowed to eat breakfast. (R. 1569). The same thing happened with regard to drinks that she drank, milk. At my grandmother’s house -- she loved chocolate milk -- and he wouldn’t allow her to have chocolate milk. He said she didn’t need all the sugar and it was bad for her digestive system. I thought it was odd for Daniel, who just came into my life, to be dictating these things to my daughter. I took that up with him. I would let him know she’s a kid; she would do typical-kid things. And he knew I did not like the way he disciplined her –he knew I objected to that and the way he would do it. A lot of times when I did say something, I would get beat by Daniel. (R. 1570). I’ve been hit with a belt on different occasions; I’ve been slapped; I’ve been punched; I’ve been kicked; I’ve been choked; I’ve had a knife to my throat. He hit me in the head with a bat; he’s drug me by my hair. I tried to leave with my child. We stayed with his parents in Hamburg after we left my grandmother’s. There was a reason we left in December of 2011. (R. 1571). We stayed with his parents until January of 2012. I didn’t leave Daniel because I was scared of Daniel. He had threatened my life ABSTRACT 606 many times and he would tell me he had nothing to lose by killing me. At the time, I didn’t feel like I had anyone to go to because I wasn’t allowed to talk to my family. At first, my family approved; and then when we moved into my grandmother’s house, they didn’t approve. That disapproval is part of what led us to Hamburg. I considered finding a man that would love me and take care of me and my child. (R. 1572). Daniel would tell me nobody wanted me, that I had a brat for a daughter; and I was always too fat or too ugly for anyone else to have; and that I better be thankful and glad that I’m with him. Daniel would call her “little bitch” all the time; and he would refer to her as “white trailer trash” and “brat,” but most of the time, in the last few weeks, it was always “little bitch.” He never called her by her name. There were occasions when he had her do other types of punishment routines that didn’t involve food. He would have her in a pushup position. He would have her be in a chair position. (R. 1573). She just had her legs extended and her arms extended; and he would have her hold it there. She had ot hold the position with her arms extended. She was able to do it. She was talking pretty good at this age. She never asked him, “Why am I having to do this?” or of me “Why am I having to do this?” If Daniel told her to do something, she done it. This wasn’t a routine thing. If he thought she was doing something wrong, if she was not sitting correctly, or talking ABSTRACT 607 correctly he had her to sit straight up with her hands in her lap and just sit still. She wasn’t allowed to lay back or anything like that. (R. 1574). This was anytime she was in the house –- also at my grandmother’s –- if she ran up to my grandmother or started crying because she seen Daniel come in the house, he would always tell her he’d take care of it later; and that would be after we go into the camper at night, and he’d make her do that. There was another one, the chair position. It’s where your back is against the wall and your body looks like it’s sitting in a chair; and your knees are at a 45-degree angle –- or a 90-degree angle, whatever. (R. 1575). He would have her down here like –this is her arms out. Like that. (Indicating.) It is difficult to keep that up for very long. He would make her do it for however long he felt necessary. It could be up to an hour sometimes. If she failed to do it correctly, he would make her get in the pushup position. He would alternate back and forth between the two positions. There seemed to be a change in the intensity of this treatment of Aubriana after we moved into our own place. Daniel would hit her on the top of the head with a belt, a leather belt. He would have it bent (indicating); and anytime she did something wrong, he would hit her on top of her head. (R. 1576). He would put her in the bathtub and hold her head under the faucet. He wouldn’t allow her to go to sleep sometimes at night. You know, him using food for punishment, it happened a lot ABSTRACT 608 there for both me and her. Sometimes he would make me and her eat off the floor. Said that we acted like dogs and we needed to be treated like one. He wouldn’t allow us to use silverware and we had to eat with our hands with the plate on the floor. I recognize this. This was handing around the closet rod in our bedroom in an empty closet. He wouldn’t allow Bri to go to sleep that Friday night. The last Friday night of her life. (R. 1577). He wouldn’t allow her to go to sleep and he would make her stand up; and he would wake up periodically in the night to see if she was sitting down. And that night, he seen that she was sitting down, so he made her get in the closet and he tied that rope around her waist and had it draped over the rod; and he had it tied to his wrist, so that if she fell down, he would feel the tug on his arm and wake him from his sleep. That happened and he would go get her and make her stand back up. Yes, she had to stand all night long while he was sleeping. This was his punishment for anything. From the way he thought she acted during the day, if she didn’t just look at him a certain way. That went for me too. (R. 1578). If he thought I was looking at him with a mean face, I’d get hit and –- that Friday night when that happened –-the torture wiht the cord, I was in the kitchen washing dishes and he came in there –- I don’t even know what was said, but he said I looked at him wrong, and he made me go get in the bedroom and take off my clothes and bend over the bed, and he beat me with a leather belt on my bare bottom. And on my back and anywhere else ABSTRACT 609 the belt landed. Daniel would make Aubriana stand there and watch; and he would tell her, “Bitch, this is how you’re going to turn out if you don’t do what you’re supposed to do.” After he beat me, I was in the floor and Aubriana came in there and sat beside me; and I was in the fetal position, and she was wiping my tears away, saying, “Mama, don’t cry. Please,” because she knew crying made him more angry. I was so hurt. I mean, I couldn’t even sit on my bottom. (R. 1579). I couldn’t turn a certain way because when I was bent over the bed, he hit me a few times with the belt and I jumped up on the bed and tried to run, but he grabbed me by my hair and he just started punching me with his fist. And then he got on the bed and wherever the belt landed is where –-that’s where it hit. (State’s Exhibit No. 6 (R. 2107) is admitted into evidence without objection.) Direct examination of Victoria Pedraza by Mr. Deen continuing: That was that Friday night. After I was arrested some photographs were taken that showed some of what I’ve described. I recognize State’s 7 through No. 11. They show bruises on my arm, on my leg, on my bottom. (R. 1580). Three of them are of my bottom. Those pictures were taken shortly after I was arrested. This had been going on for approximately six days after the beating Friday night. They had gone down in that six days. ABSTRACT 610 (State’s Exhibit No. 7 (R. 2109); Exhibit No. 8 (R. 2111); Exhibit No. 9 (R. 2113); Exhibit No. 10 (R. 2115); and Exhibit No. 11 (R. 2117) are admitted into evidence without objection.) Direct examination of Victoria Pedraza by Mr. Deen continuing: This is my left arm. (R. 1581). This shows a bruise on the inner side of my left leg. I got these from the belt from Daniel whipping me that Friday night. That is the photograph of my shoulder or my back. The belt whippings extended from my bottom all the way to the top of my back. This is my bottom. This is bruising across all of it. This is a different view of my bottom as well. When Aubriana had to stand and watch Daniel do this to me I was naked bent over the bed. (R. 1582). She had her clothes on. That was the Friday night. He had to go to drill the next day. That left me alone with her. I thought about picking up and going. I didn’t have a vehicle, a way to go. So I stayed. He told me before he left to not use my phone, don’t be on it and all because he would find out. I was so paranoid, I would think that he went to drill but I would think that he was down the road watching to see if I was going to leave, or somebody was going to come. I was super paranoid. He didn’t want me to have contact with no one without him being there. (R. 1583). He would check the phone when he would get back. We each had a phone. He got back sometime that afternoon. Probably about five or six. He went to Crossett ABSTRACT 611 for drill. It was customary for me to prepare the evening meal. I tried to do that that night. He appeared to be satisfied with the meal. The night went on normally at that point. The next morning his behavior picked back up. Sunday morning, we woke up and we were watching TV, watching a DVD. (R. 1584). Aubriana was sitting on the couch and I was sitting in the recliner -– well, she was on the love seat and he was on the couch. He asked her to come to him to ask her something; and, again, she didn’t answer correctly the way he wanted so he sent her to her room for timeout. In her timeout position, she was supposed to stand in the corner with her hands behind her back. She was standing straight up. She had her Pull-Up on. We were in the process of training, but she wasn’t fully. She was partially trained. She was standing in the corner with her arms behind her back while we continued to watch the DVD. (R. 1585). I wasn’t allowed to have any say-so. He would tell me that I interfered too much; and there were a lot of times when I did interfere, he would go on and beat me too. Most women would not tolerate that. Most would leave or take some type of action against the male. I didn’t do that because I was scared to death of him. Killing him crossed my mind many times. Yes, he slept. Daniel called her back in to the living room. And, again, he was asking her something and she didn’t answer correctly. He’s sitting up on the couch at this time and she’s in front of him. And he hit her in her stomach with his fist. She fell down ABSTRACT 612 and she got right back up. And he told her, said, “Bitch, just go back to timeout. (R. 1586). I don’t feel like dealing with you right now just go back in timeout,” so she went back to timeout. He went in and, I don’t know what happened, but she had done something and he whipped her with the belt. He made her take her Pull-Up off and he whipped her with the belt on her bare bottom. I don’t know what she had done or what he perceived she had done to deserve that. Sometimes Daniel would put Aubriana’s head under water in the bathtub or he would have her stand in the shower with just cold water running down on her. When her head was under the eater in the bathtub she would be facing up. And he would have his fingers in her mouth trying to pry her mouth open so the running water could go in her mouth with her facing up. (R. 1587). She kicked and everything. And that night, when he was doing that to her, she bit his finger, and he had hit her in the mouth, and then he shoved her down into the bathtub and he hit her twice as hard in her stomach while she was in the bathtub. She could have cut her lip during this. I didn’t clean any blood off her or me. I came in from the kitchen when I heard everything going on and I tried to pull him off of her. “Just go in there. Go in there.” And after he had hit her, she was still laying in the bathtub and she was gasping for air; and so, anyway, he told me, “Get the bitch out of the bathtub and dry her off and get her on some clothes.” Well, after I dried her off, I put a Pull-Up on her. (R. ABSTRACT 613 1588). He had me bring her into the kitchen. She wasn’t crying. Put her in the kitchen on the floor; and he cuts up some tomatoes and sticks them in the microwave, heats them up, and then he puts them in a towel and placed them over her stomach. He has me sitting there with her in the floor and she’s real weak. I didn’t ask him why he was heating up tomatoes and putting them on her stomach. I hadn’t ever heard of such a thing. And also he would take a raw egg and put holy water on it and rub it over her body; and he would crack the egg and put it in a cup of water. The holy water was there at the house. He told me it was something that was done to bless them and to cleanse their body, something to that nature. He got on to her for wetting her pants. That was earlier before she took a bath. (R. 1589). After he whipped her with the belt and he put her back in timeout, he came back into the living room and he went back in there. And, obviously, she had urinated on the floor because he stepped in it; and it made him very mad, so he put her in the chair position in her room. He was yelling at her and stuff and I came in there –he was saying, “You know better than to do that. Bitch, you’re so stupid,” stuff like that. And I come in –-I’m in the doorway and he was kneeling in front of her; and I asked her something, “Are you supposed to be doing that?” or something of that nature, and she didn’t answer. And he hit her in her stomach with his fist again against the wall and she fell. She was in the chair position. And when he hit her, she fell down. Her back just slid against the wall. And he had ABSTRACT 614 her get back up and then he put her in timeout again. And he came into the living room. He would have me go back and forth checking on her and stuff, to make sure she was standing correctly in timeout. (R. 1590). And then he had took a nap after that, I assume, on the couch. I don’t know how long. I don’t remember what time of day it was, but he had took a nap and he would have me go in there and check on her, while he was asleep, to make sure everything was correct. And he woke up again, and he had me to go in there to check on “the bitch” –his words. He would have me rub frozen things on her bottom, on her legs, where he had whipped her with a belt to keep them from bruising. I believe frozen chicken, ice in a dishrag. He had me go in there and do that. And as I’m doing that, she throws up there in the floor when I’m doing that; and I cleaned it up real quick. She had her green t-shirt and blue jeans in there; and when she was puking, I caught it in the shirt so he wouldn’t find out and get mad about that. And I rubbed cocoa butter lotion on her leg and bottom, and she goes back into timeout. He comes in and says she’s stinking because where she had peed and threw up; and that’s when he had her get in the bathtub. (R. 1591). That’s what takes us to the other incident in which he tried to put her face under the water and he got his hand bit. After the bath was over, that’s when he got out and went into the kitchen and he did the tomato thing. At one point in time during that, he was in the living room ABSTRACT 615 doing pushups and sit-ups, and he’s cussing me out, calling me stupid, I’m a piece-ofshit mom; and then he had me doing different exercises in the kitchen. Yes, I did them too. Aubriana was still laying in the kitchen floor. Daniel was telling me I was a piece-mom; and I’m stupid; and I need to know why she’s acting like that; and I need to be doing something about it; and if I did, he wouldn’t have to be doing like he was doing. Right, if I were a better mother, he wouldn’t have to be putting the torture and the punishments on the child. (R. 1592). State’s Exhibit No. 12 is a picture of the clothes she had on that Friday. That is what I described as the vomit and other material on State’s Exhibit 12. (State’s Exhibit No. 12 (R. 2119) is admitted into evidence without objection.) Direct examination of Victoria Pedraza by Mr. Deen continuing: It is safe to say that the egg and the tomato didn’t do any good. She was shivering so he had me go get her pajamas and some socks; and he had me get her black jacket to put on her; and he told her that the reason why she was cold was because she wasn’t walking around, her blood wasn’t circulating, so he made her get up and walk down the hallway and around the living room. And she was stumbling, and he would kick at her and push her. And she would be hunched over, obviously in pain, and he did that for a while. And after he done that, he said, “Come on and let’s go to bed.” (R. 1593). It was dark by then. We go into the bedroom, and she ABSTRACT 616 throws up right there in the floor in the bedroom and she throws up on her pajamas, and so I undress her; and he told me not to put no more clothes on her “because she’s just going to mess them up too.” So we have a bathroom in our bedroom; and she threw up in the toilet in the bathroom. I cleaned her up and then she was making –when she would breathe, it was a sound inside of her; and so when we laid down --I guess it was her chest, I guess, because she was in pain probably. And I put her in the bed with us. She was against the wall, then it was me and it was Daniel. And she was making those noises, and Daniel’s, like, “Shut that little bitch up. I’m tired of hearing that. I’ve got to go to sleep.” And so she needed to throw up again and she had started vomiting in the bed; and I took her to the bathroom and she kept vomiting. I had her blue blanket wrapped around her. And I even sat in the bathroom with her for a period of time, during the night, so she wouldn’t wake him and make him mad. Then we got back in the bed –- and I had been up with her most of the night –-it was way in the hours of the morning. (R. 1594). I dozed off to sleep and I slept with my hand on her chest. I moved to the bed. Andwe woke up around eight o’clock that morning and Daniel was, like, “How is she?” and she was real weak. I sat up in the bed and I had her wrapped in her little blue blanket cradled in my arms; and her breathing was real shallow and she was just real weak. So, anyway, he called his mom and talking to her in Spanish; and she instructed him to get a towel and –ABSTRACT 617 MR. ROSENZWEIG: Objection, Your Honor. THE COURT: Objection. Hearsay. Direct examination of Victoria Pedraza by Mr. Deen continuing: I do not understand Spanish. Daniel told me what she said. His mother was speaking to him in Spanish. Daniel said his mother said to put rubbing alcohol on a towel and to rub it in her face under her nose. (R. 1595). That is what I did. She didn’t improve. She was still (indicating) taking deep breaths like that. She wasn’t speaking. I know where to check for a pulse, but I didn’t check her vital signs. Daniel went and got his water and gave her a drink in a capful, gave her some water, and that didn’t work, so I don’t know if she swallowed it or if she held it in her mouth, or what. But I had her in my arms; and she took a deep breath and she didn’t let it out, so I shaked her, like, “Aubriana,” and I told Daniel, “Oh, my god, Daniel. She’s not breathing.” And so I laid her flat on the bed and I tried to do CPR on her. I moved from the bed to the floor because as I was doing chest compressions, it was like she was just bouncing off the bed. (R. 1596). I didn’t believe it was firm enough, and so I moved her to the floor and I continued to do CPR and rescue breaths on her. I was trying to see if her airways were clear, and I remember sticking my fingers down her throat, and she gurgled and she made a gurgling sound, so I go to the kitchen and get a medicine dropper -- I didn’t have no kind of syringe -- and I used it to see if I could ABSTRACT 618 suck anything out. She had snot coming out of her nose. And Daniel even got Q-tips and swabbed her nose with –- And I continued doing CPR and I’m telling Daniel, “We need to call 9-1-1. We need to call 9-1-1, please.” And he was, like, “And tell them, what, Vicky? And tell them, what?” I was like, “I don’t know, just, please, help me.” He goes to the kitchen and he looks for a knife; and he comes back and tells me that “if that little bitch dies, I might as well kill you too.” And I tell him, “Daniel, kill me later. Just help me, please.”And he picks up CPR while I dialed 9-1-1 and I tell them, “My two year old is not breathing, please send an ambulance.” And I hang up with 9-1-1, and I continued doing CPR on her. I tell Daniel to move her from the bedroom to her bed so they won’t have to maneuver around from the kitchen to our bedroom; and I continued doing CPR on her in her bedroom. She was not breathing at all on her own at that point. (R. 1597). She appeared to have died at that point. She was lifeless. (R. 1598). (R. 1599 is irrelevant.) The paramedics were on their way and I had done moved her. I had done moved her and we were waiting on the paramedics. I was continuing to do CPR on her in her bedroom waiting on the paramedics. She didn’t appear to have any signs of life. (R. 1600). I don’t know how long it took them to get there, but –- I don’t know the exact time. They came in and brought in a machine and they hooked her up ABSTRACT 619 to it; and it didn’t show anything and they said they were going to take her to the hospital anyway. The machine didn’t reflect anything but they took her to the hospital. Me and Daniel both followed in his truck. We went to Drew Memorial Hospital. I don’t know how long it was before the doctor came to talk to me. I just know when I got there, I gave them the insurance information, I told the nurse that I was sick, I felt nauseous, and she gave me a bag to use. Then they escorted me and him into a private room, and nurses came in and it wasn’t too much longer, the doctor came in and said it wasn’t nothing else they could do for her. And I’m just crying, hysterically, and Daniel’s trying to console me and I’m, like, shoving him off, “Get off me. (R. 1601). Get off me.” His mom was already at the hospital. She was in the room with us. I didn’t leave the hospital at that moment. I used his phone and I called my unit (inaudible) which is in Monticello and I spoke to Sgt. Prince; and Sgt. First Class (inaudible) and his wife, Miranda, came to the hospital. I called Corey Atkins. I didn’t have my phone with me at the hospital; and I had used Daniel’s phone. I called friends to be with me. I told Corey to call Fatima and let her know. Staff Sgt. Dye showed up at the hospital with his wife, Ms. Brandy Jo. My commander showed up: Captain Phillips. When we left the hospital, I can’t remember if we followed the sheriff –we went back to the house and they took pictures and stuff. The police, the sheriff, and ABSTRACT 620 some of his deputies, and a state police officer asked if they could take some photographs inside our house. (R. 1602). I believe I helped them find the things they said they wanted to take pictures of. Daniel was there at the time. We were married February 17 of 2012. He had been wanting to get married because he told me his green card was about to expire and they denied him his citizenship because he had a prior DUI on his record, and so he wanted to be married because I’m a U.S. citizen. I agreed to that. We were married here in Drew County. The police talked to me and Daniel separately when they were there taking pictures. They actually took Daniel from the hospital, took him down to the office and questioned him. (R. 1603). I didn’t offer the truth to the police officers as to what happened to my daughter that caused her to die. I gave them the false story of her falling at the lake, from the dock, onto the rocks. We had been at the dock the week prior to that. Daniel and I discussed that excuse before I gave it. That was discussed between the time I called 9-1-1 and when the ambulance arrived. I agreed to the excuse. I believe he had put away his knife at that point. I think it was back in the sink. There wasn’t any more mention made of killing me if she died. I didn’t believe that the excuse that I gave of Aubriana falling off of a dock would account for all those injuries that she had. (R. 1604). My purpose, first, I came up with the story to, you know, satisfy Daniel; and then I knew she had bruises, multiple bruises, old ABSTRACT 621 bruises, and they were going to see that, you know, the police, and they were going to, whatever. They were going to see all that. And I knew somebody was going to have to answer to that; and I had a feeling that, you know, we were going to get arrested, he was going to get arrested, whatever; and I just told him to buy enough time to see her put away; her funeral. Yes, to see my child be buried. I was arrested before that. I was arrested March 1st that night; and the next morning, I asked to speak with the sheriff and they came and got me and took me over to Clayton Moss’ office, and I told them –- I still didn’t go into great detail about what happened, but I let them know that Aubriana was punched by Daniel. (R. 1605). I told some of them the punishment positions, but I was still scared that somehow Daniel would find out that I was telling on him and he –- I had never been in trouble before and I didn’t know whether to ask for an attorney, or anything like that; and I figured that if I just gave them, you know, vague details, that they would see that I didn’t have no part in harming her. We were put in two different jails in two different counties. I was kept here in Drew County and he went down to Crossett jail. I understand I still have my own sentencing to go in front of an entirely different jury as to what’s going to happen to me. And when I gave them the statement, I believe it was my fourth statement, that was before any deal was made to me. That was before anything. (R. 1606). I’m the one who requested to speak to ABSTRACT 622 law enforcement because it was just the right thing to do at that point; and I realized being locked away, he couldn’t hurt me anymore. I felt safer in jail than I had in the past few months out in the free world. After all of that, I believe that was in June, when my attorneys and you did this other arrangement where I’m going to be sentenced by the Court’s approval by a jury. I believe that was in June. CROSS-EXAMINATION BY MR. ROSENZWEIG I pled on July 24th of 2012. I pled guilty to the offense of permitting abuse, a Class D felony. And “the sentence to be fixed by a jury in a subsequent proceeding.” That’s what Mr. Deen and I just talked about. (R. 1607). “And the court grants the State’s motion and dismisses without prejudice the charge of capital murder as to Victoria Pedraza subject to the agreement that she testify truthfully against Daniel Pedraza and cooperate in his prosecution.” I don’t exactly understand what “without prejudice” means. I was told if I didn’t follow through, the capital murder charge could come back up. And subject to the part that I testify truthfully and cooperate. I have to please Mr. Deen. In other words, he can bring up the murder charge back if he decides that I haven’t testified truthfully and hadn’t cooperated. (R. 1608). The jury in my case can sentence me between five and twenty years or a fine of up to $15,000. Or the jury could just fine me. Or a jury could sentence me to five years, or any number up to twenty. I’ve been told what my parole eligibility issues are with ABSTRACT 623 regard to that twenty years. With my good time I could do as little as one-sixth. Onesixth of twenty is three and change. Could be. I don’t know the exact. I’ve been in jail for over a year. (R. 1609). For almost all of this time, I was in the Drew County jail and Daniel was in the Crossett jail. About a week or two ago we switched places. Other than right in the very beginning of this, we haven’t been in the same jail. We’ve really never in the same county. I testified I was the one who thought up the dock story. I was with Daniel and we drove out there to the dock. (R. 1610). Yes, after post-death of the child. (Defendant’s Exhibit No. 1 (R. 2176); Exhibit No. 2 (R. 2178); Exhibit No. 3 (R.2180) and Exhibit No. 4 (R. 2182) are admitted into evidence without objection.) Cross examination of Victoria Pedraza by Mr. Rosenzweig continuing: Defense Exhibit No. 1 is the dock at Lake Monticello. I was there with Daniel. (R. 1611). Defense Exhibit 2 is Daniel standing in the background. I’m demonstrating exactly how Aubriana took her fall. I’m telling them that she was swinging along this railing and that she fell on the rocks below. Defendant’s 3 is me as well. I’m further demonstrating how the fall occurred. I was saying as she was swinging along on the railing, and she was so small, and because of that she lost her footing. (R. 1612). Defendant’s 4 is me standing on the rocks. And these are law enforcement officers ABSTRACT 624 here. I’m telling the law enforcement officers that my daughter had fallen on these particular rocks a couple of days earlier. I’m the one telling them all of this. Daniel’s not telling them. This story was just flat-out untrue. I don’t remember if they challenged me, but I kept with the story. I kept with the story until after I got arrested again. (R. 1613). I was arrested on one day and gave that dock story. March 2nd, I asked to see Sheriff Gober. The next morning. Then I told the fact, not a story, that Daniel had punched her. I didn’t make any claim that Daniel pulled a knife out. I don’t recall if I told them Daniel had been under a lot of stress. I said I talked with them about trying to get help for his anger issues. I agree anger and stress are closely related. (R. 1614). I believe I gave them a false statement about the cord already at that time. I said I had never seen that cord being use in relation to Aubriana. Right, it was just used for bracelets. No, I didn’t say anything about any knives. I don’t know if a knife was found in the house. I didn’t hide the knife. I assumed the knife was in the sink. It was just an assumption. (R. 1615). That is what I experienced. The whole dock story was false. I made it up and went with it. Daniel and I married on February 17th. (R. 1616). Daniel told me the reasons for marriage was because his citizenship application had been rejected because of his DWI. I didn’t know he had a DWI until he told me. I knew he had been to Iraq. I knew he was in the Army because I was in the Army. Yes, I found out his application ABSTRACT 625 had been rejected because of a DWI, that’s what he told me. I guess that would cause some frustration. Yes, I told them on March 2nd that Daniel had said he thought he had gone too far, that he was just trying to make Bri the best person she could. (R. 1617). I stated on March 2nd in my statement he said the day she died. Bri died February 27th. I told them that on February 27th Daniel said that he had just gone too far , that he was merely trying to make Bri the best person she could be. (R. 1618). In this statement I didn’t say Daniel said, “If the bitch dies, I might as well kill you too.” I didn’t say anything about that in my March 2nd statement. It’s the same statement where I said Daniel had in fact punched her. Neither Daniel or I had a job other than being in the Guard. I had savings and income tax money. The only income I had coming in was our Guard checks. Daniel had a truck. (R. 1619). I knew how to drive the truck. Daniel and I had cell phones. That Saturday Daniel went to drill. I knew he went to drill. I knew he had a drill scheduled. I was familiar with his drill schedule. Yes, he went to drill and I had all day where I had my phone. I could have called people and said come help me. (R. 1620).Fatima Thomas was a friend of mine. She worked for DHS. She lived in Monticello just down the road from where I was. I lived at her apartment for part of January and part of February. I didn’t call her. I have all the people in my Guard chain of command. Yes, their job is to look out for the welfare of their soldiers. (R. 1621). ABSTRACT 626 Yes, it’s part of their job. I didn’t call any of them. I listed all the people who showed up at the hospital. That’s not something made up. That’s one of the things they’re supposed to do is look out for the welfare of the soldier. I could have called them and said I don’t have a vehicle and I’m scared. I did not do that. (R. 1622). Daniel came home from drill Saturday evening. I guess it was dark since it was in February. He got home around five or six. I had fixed dinner. Sometimes he fixes his own food. We shared the cooking. He fixed dinner for me and Bri sometimes. He wasn’t just cooking for himself. We ate as a family. (R. 1623). It was Friday night Daniel did the cord. He was gone all day Saturday. He didn’t do the cord Saturday night. There was one punch during the chair position. That was late afternoon maybe. I said he hit her on several occasions. I mean with the belt and that type of stuff. The belt was earlier than the punch. (R. 1624). There was one punch in the chair position; there was one prior to that when she was in the living room. I went to Wal-Mart. I drove his truck. (R. 1625). Yes, my daughter was being hit on and belted by Daniel and I took the keys and went to Wal-Mart by myself. Daniel gave me the keys to his truck. He knew where I was going. I asked him if I could go to Wal-Mart. He handed me the keys. He instructed me to go straight there and straight back. I wasn’t allowed to take my daughter. I didn’t know where the Sheriff’s office was. I’m not from Drew County. (R. 1626). I had my phone ABSTRACT 627 with me. At the time I didn’t know where the police department was. I didn’t know specifically. I was in the Army, the Signal Corps, the Signal section. I knew where McDonald’s was. I could have asked the salesclerk at McDonald’s or Wal-Mart, “Where is the police station?”, but I didn’t. (R. 1627). (R. 1628 is irrelevant.) This is the truck pulling in right there. That is my pulling in in that dark truck. This says 6:59 p.m. and 2/26/12. That’s me walking inside. (R. 1629). I have something in my hand. W.I.C. for Aubriana. It’s like food, nutritional coupon, I’m signing some. (Defendant’s Exhibit No. 5 (R. 2184) is admitted into evidence with objection.) (R. 1630). Cross examination of Victoria Pedraza by Mr. Rosenzweig continuing Q. So you saw those salesclerks there; and, of course, you drove past all the other places, and you never stopped and said, “Where’s the police department? I need to get help”? MR. DEEN: Objection. Asked and answered multiple times. THE COURT: It has been. MR. ROSENZWEIG: Okay. Cross examination of Victoria Pedraza by Mr. Rosenzweig continuing ABSTRACT 628 Daniel didn’t come after me with a knife the morning of Aubriana’s death. (R. 1631). When Bri was taken to the hospital I was taken into a private room. Daniel’s in there with me. And his mother came up from Hamburg. When I got the news I was hysterical. Daniel was trying to console me. He was crying at that point. He was trying to console me. (R. 1632). I was trying to break away. He was trying to console me. It was before that when I came up with the dock story. That was the story I repeatedly told the police until March 2nd. Daniel went along with it. Then I changed the story on March 2nd. I went into more detail. On September 21st you took my deposition. (R. 1633). At that point I told you a number of the statements I gave at that time were in fact not true. On March 2nd I gave a statement to police. I told them some stuff where I accused Daniel of the blow, et cetera, et cetera. I have a deal at that point. In July the prosecution made a deal with me. (R. 1634). It was my understanding that if I cooperated with them and they decided I was telling the truth then they would drop the capital murder charge. If they decided I’m not telling the truth the capitol murder charge can pop back up. Then you all took my deposition in September after I cut the deal. In this statement I said a bunch of stuff that I hadn’t told anyone. There were some statements in my statement where I stated they were not true, no. Q. So when you got this deal, you’ve got to live up to it; is that right? Or you’ve ABSTRACT 629 got to have Mr. Deen believe you’re living up to it; is that right? MR. DEEN: Objection. Argumentative. THE COURT: It is. Sustained. MR. ROSENZWEIG: Your Honor -- Can I have a second, Your Honor? (R. 1635). Cross examination of Victoria Pedraza by Mr. Rosenzweig continuing I do know the order of statements were 1, 2, 3, and 4 that next week, my deposition. Yes, each one was different. [Bench conference] MR. ROSENZWEIG: I do want to make the proffer at some point –THE COURT: Right. I can bring her over any time for that. Go ahead and take her back because I’m limited in my people and I don’t want to hold her there, if they don’t have her over there. (R. 1636). MR. ROSENZWEIG: That’s fine. THE COURT: Then I’ve got more free bailiffs. So take her on back over and we’ll bring her back over for the proffer at the end of the day. That’d be better. [Open court] (State’s Exhibit No. 13 (R.2121) and Exhibit No. 14 are admitted into evidence without objection.) (R. 1637). BRENDA EARNEST ABSTRACT 630 DIRECT EXAMINATION BY MR. PURYEAR My name is Brenda Earnest. I’m employed Monticello Ambulance Service. I’ve been there for 12 years. I was employed there the morning of February 27, 2012. I remember that morning. We had come in. It was early. Our secretary was also our dispatcher, came in and gave us a piece of paper and said this address had a child not breathing. I went to that address with my paramedic: Scott Carson. (R. 1638). We had two ambulances that went. We were the second one to arrive. Not knowing which end of the road that the house was on, we both took separate directions; and we were the second ones to get there. The other ambulance had Joseph Earnest and Jeff Martin. Joseph Earnest is my son. He was actually the first on the scene. I arrived probably two minutes after my son. (R. 1639). I recognize State’s 15. It’s a photo of the house that we responded to the morning of February 27th, 2012. When I first arrived, I saw no one. When we got there, the rest of the crews had already gone inside; and I stayed behind and got the stretcher out of the ambulance; and after I got it out, I walked up to the steps into the house. There was a gentleman standing inside the door. I asked him which way and he pointed toward the bedroom. This is the gentleman I’m referring to in the courtroom. He’s sitting at counsel table wearing a gray shirt. MR. PURYEAR: Your Honor, would the record reflect she’s identified Mr. Daniel ABSTRACT 631 Pedraza? (R. 1640). THE COURT: No, the record won’t reflect that. I can’t say that. But I know that’s a habit of you and many lawyers. It’s hearsay, actually. But you’ve described a man in a gray shirt without a tie on at that table; right? THE WITNESS: Uh-huh (yes). THE COURT: The rest of them have ties on. The jury can figure the rest out. Go ahead. MR. PURYEAR: Thank you, Your Honor. Direct examination of Brenda Earnest by Mr. Puryear continuing: The person I’m referring to didn’t say anything to me. When I entered the home I went into the bedroom. (State’s Exhibit No. 15 (R. 2126) is admitted into evidence without objection.) (R. 1641). Direct examination of Brenda Earnest by Mr. Puryear continuing: State’s 16 is a photograph of the bed in which the child was laying on. This is a fair and accurate depiction of how I found it that morning. (State’s Exhibit No. 16 (R. 2128) is admitted into evidence without objection.) (R. 1642). Direct examination of Brenda Earnest by Mr. Puryear continuing: ABSTRACT 632 That’s the bed where I found Aubriana Coke that morning. The two white circles in the photograph are the plastic backings to our cardiac monitor electrodes. That was the medical device applied on Aubriana that morning. There was no cardiac activity that morning. We took her to Drew Memorial Hospital because the mother asked us to. We have a protocol to call in to the hospital to give a radio report. (R. 1643). I gave the report that we had an approximately two-year-old child that was in cardiac arrest; CPR was being performed; and then after I had given the patient report, I advised the ER nurse that I was talking to that they needed to call the investigators. That isn’t something I do every time. I did it this time because I felt it was necessary. The story didn’t fit right. When I went inside the house, I had asked the mother what had happened to the child; and she told me that they had gone fishing and come home later that evening, and that the child had fallen off of the dock and hit the rocks at the (inaudible). And, to me, it just didn’t add up. The bruising didn’t add up. I touched Aubriana that morning in the bed. (R. 1644). Her arms and legs were cold. And this is standard when you’re checking on someone that’s not breathing, you know, you check to see if you can possibly determine if they’ve been down too long. And one of the main things is if they’re cold. Her arms and legs were cold –-or really cool to touch. Her abdomen was still warm. And that kind of gives you the ABSTRACT 633 indication, okay, she’s been down for a little while. She had not been breathing. Clinically a person can go six to eight minutes and before they are dead. (R. 1645). Once you stop breathing for that extended period of time it is not typical for blood to pook in the torso or the abdomen area. When it leaves the extremities, that is before the heart stops pumping. When their extremities turn cold like that, that’s one of the first signs of shock; and when your body goes into shock, you’re not dead yet. Aubriana had a bruise on her head right here (indicating)that I noticed; she had a bruise on her leg and her abdomen. And that’s all I can remember. CROSS-EXAMINATION BY MR. LEONARD When I arrived at the scene Mr. Pedraza was standing in the doorway. The mother was in the bedroom down the hall. I went down to the bedroom where she was at. (R. 1646). I have no idea where Mr. Pedraza was at after I exited the living room into the bedroom, I have no idea. He wasn’t there in the bedroom with me and the mother though. When I got there Mrs. Pedraza told me the baby had fell from the dock and hit the rocks. She seemed scared to me. She wasn’t crying. (R. 1647). (R. 1648 is irrelevant.). CELITA BROOKS DIRECT EXAMINATION BY MR. PURYEAR ABSTRACT 634 I’m Celita Brooks. I’m employed at Memorial Hospital. I’ve been there since ‘96. (R. 1649). I’m an ER nurse. I was employed there in that position on February 27, 2012. I remember that morning. We received a call from the medical service saying that they were bringing in a code blue, two-year old child. (R. 1650). The child we’re talking about is Aubriana Coke. When they arrived in the ER, she was (inaudible). When we noticed (inaudible) then when we went to touch her, she was very cold. They were on hold, which means that there was no heartbeat going on at that time. (R. 1651). State’s Exhibit 17 is a photo I took. This is a fair and accurate depiction of how Aubriana appeared at the ER the morning of February 27th, 2012. (State’s Exhibit No. 17 (R. 2130) is admitted into evidence without objection.) Direct examination of Celita Brooks by Mr. Puryear continuing: This photo depicts bruising in the abdominal area and the chest wall. I do not typically take photographs of people deceased in the ER. (R. 1652). I took this one because as we were working on her, we noticed quite a bit of bruising around the belly right here and right here. There was so much trauma to the abdomen. Her belly appears to be very swollen. That is not typical of a two year old to appeal in the ER with a distended stomach. She had passed away at that time. When they brought her, she had already passed away. (R. 1653). (R. 1654 is irrelevant.) ABSTRACT 635 CAROLYN STUARD DIRECT EXAMINATION BY MR. DEEN I’m Carolyn Stuard. I live in Warren, Arkansas. 803 Bullerton. Aubriana is my great-granddaughter. At the end of May after they came back from basic training in California is when Victoria Stuard and Daniel Pedraza began a relationship. Daniel Pedraza is in the gray shirt between the two lawyer suits. (R. 1655). When they began their relationship I offered Vicky and Bri a place to stay because her job had played out; and she was renting from my uncle and I knew she couldn’t pay her rent, so I told her she could stay with me. They had to be outside because I just have one bedroom. It had a full bedroom in the trailer outside. It had running water. No kitchen. I cooked and everything and –- Me and Bri always ate first. Then if they wanted to eat, okay; if they didn’t, okay. I would get the child and bring her into the main house. I seen after that. I made sure her breakfast was made. (R. 1656). This would have been June of 2011, Aubriana wasn’t quite two because her birthday’s November the 17th. I recognize State’s Exhibit 18. This is a photograph that was made in my house of Victoria and Aubriana when she was small. (State’s Exhibit No. 18 (R. 2132) is admitted into evidence without objection.) Direct examination of Carolyn Stuard by Mr. Deen continuing: ABSTRACT 636 Aubriana would have been around six or eight months old. That’s made in my home. Daniel didn’t move in the first night after they moved in, but the second night, I thought he come just to visit –- And he moved in. I didn’t know in advance he was planning on moving in with Victoria. (R. 1657). He stayed there around six months. Well, around the last of May until December the 18th. He wasn’t employed. Victoria didn’t have a job either. They lived solely on what I provided them and their Guard pay. I provided some of the food because Vicky and Bri knew they had a home there. Daniel took advantage of the things that I provided to Victoria and Aubriana. (R. 1658). I never did see him spank her, but if she would have been playing with a toy or something, he would get on to her; and she was not allowed to cry at my house. I know because after (inaudible) would spank her, “Stop that crying, Bri.” I don’t know that playing with the toy was objectionable as far as he was concerned. I don’t know what was in his mind. But he had brought, like, a little weenie dog –-what I called -- for Victoria, but Bri was not allowed to get that dog. She would get the puppy in my rocker and he would go over there and get it and put it in the recliner with him. I remember the photo with Aubriana holding the dog. I didn’t know anything about that picture. I saw it today. But she loved that little dog and the dog loved her. (R. 1659). ABSTRACT 637 Daniel’s interactions with Aubriana had to do with what she could and couldn’t drink or eat. He took her chocolate milk away from her and he made up some kind of a mess for her to drink. It was milk and something in a bag, weed-looking, and some –- I call it cocoa -- and he’d boil it real good, put it in the freezer, let it cool, and put it in her sippy cup, and say, “Bri, come get your milk.” And she turned around and looked. She said, “MeMe, I don’t like it.” When they lived with me and Daniel would come in the room Aubriana was definitely scared of him. I don’t know what he had done to her, but he could open the back door and she would run, get in my lap and hide her head under my arm every day. For instance, after supper, we would take a bath, get ready, and we’d color. She loved to color. Well, let him come to the table, she’d get out of my lap. (R. 1660). Same way about eating and everything. We could be eating and everything, let him come in the door, she got down out of her chair and come got in my lap. Well, I guess I just accepted him on account he was involved with Vicky, you know. He suggested that they needed to move out because they couldn’t make Bri mind for me interfering. And the child never did get in to anything to discipline her about. You could tell her, “No, don’t do this,” she’d stop it. Yeah, the complaint was the child couldn’t be properly disciplined in my household. Well, he put her in timeout in my bathroom and he sat in there with her close to an hour; and so when I ABSTRACT 638 went back –Q. In a timeout? What was he having her do in the bathroom? A. She was –- MR. LEONARD: Your Honor –THE COURT: Objection. MR. LEONARD: Lack of personal knowledge unless she was –THE COURT: Well, lack of foundation, competency is the objection. (R. 1661). If you can lay a foundation as to how she knows what they were doing, I’ll let you ask. Direct examination of Carolyn Stuard by Mr. Deen continuing: The door to the bathroom wasn’t closed. I wasn’t able to see in the bathroom. I didn’t go back there because he was there. Vicky went in there and –THE COURT: Objection. Sustained. Direct examination of Carolyn Stuard by Mr. Deen continuing: I don’t know what he was doing with her in the bathroom. I didn’t approve of him spending an hour alone with her. Aubriana’s fate has affected my family terribly. (R. 1662). We’ve all been sick and under depression and everything. I was in the hospital one night on account of my blood pressure because we can’t get it out of our mind. We just can’t get it -– and that’s the whole family. I have nightmares, dreams because Bri was very, very, very ABSTRACT 639 important to all of us. She was a doted-upon child. She was a child that never did –like, if she did get in to anything, you could just say, “No, Bri,” and that’s it. The picture that’s on the screen is taken in much happier times. Victoria spent a lot of time at my house before she met Daniel Pedraza. She is from Warren. But she did move to Paragould for a while, with her mama. I don’t know how long, then she moved back down with me. That’s when Victoria met Aubriana’s father and moved to Paragould. (R. 1663). They both came back and lived with me for I’d say four to five months. And Timmy got a job there and that’s when she went. He was living with Aubriana when she was six months old. He hasn’t been a part of the her life since Daniel came along because he let him know he was not to come down there and see her. ROBERT JACOBS DIRECT EXAMINATION BY MR. PURYEAR My name is Robert Ross Jacobs. (r. 1664). I’m employed at Drew Memorial Hospital. I’m the ER director. I’ve been working there thirteen, fourteen years; I’ve been doing that for three. Director. I was employed there as ER director on the morning of February 27th, 2012. I recall a two-year-old Aubriana Coke being transported to the ER there. Well, the first thing you want to look at is, what are the vital signs, and there ABSTRACT 640 were none on her. There was no pulse; there was no respirations; she was cold. To me, she had been dead for at least one or two, maybe, more hours. Well, like I said, she was cold. (R. 1665). And when somebody has been dead for a while, the skin will start to mottle, which hers was doing; and I noticed bruises on her abdomen, on her legs, and on her back. That bruising caused me concern especially since the belly was as distended as it was. State’s Exhibit 17 fairly and accurately depict Aubriana’s physical appearance when I saw her that morning. Right, that’s the bruising of the abdomen depicted in that photo. (R. 1666). Every ER I’ve worked in they take photos of a deceased person such as Aubriana was that morning. As part of my job I inform relatives of the tragedy that occurred in this particular case. I did that in this case. I recall talking to Victoria and Daniel Pedraza at the chapel. We have a chapel next to the ER. Victoria was distraught. It was unbelievable. She was truly distraught. The other gentleman –- and I found out later, he wasn’t the real dad, but he was concerned about her, but the reaction wasn’t the same. He was concerned about Victoria. He seemed to be consoling her. (R. 1667). CLAYTON MOSS DIRECT EXAMINATION BY MR. DEEN I’m Clayton Moss. I live in northwest Arkansas in Springdale. I have lived ABSTRACT 641 there almost a year. About nine or ten months. I’m an asset protection manager. I work for Wal-Mart at a distribution center, the main one, I guess. Yes, in Betonville. I was formerly employed by the state police. At the time of my separation from the state police I was employed as a criminal investigator. I assisted in the investigation of the death of Aubriana Coke. At that time, I was an investigator assigned to Monticello. I lived here in the city and I was the lead agent on that case. (R. 1668). If I remember correctly, that morning I was at the Monticello Police Department and I was out front talking with one of the dispatchers, I remember her telling me that a child had been delivered to the emergency room that wasn’t breathing. I think a few minutes after she and I were talking, I got a call from either Tim Nichols with the Drew County Sheriff’s Department or Sheriff Gober requesting my assistance. That morning after we went to the hospital and talked with a few people, we went to the trailer home. I think at the time, Scott Woodward, prepared a diagram of the house, but I looked over it. I was there at the trailer home. (R. 1669). State’s Exhibit 19 is an accurate diagram of the trailer home. (State’s Exhibit No. 19 (R. 2133) is admitted into evidence without objection.) Direct examination of Clayton Moss by Mr. Deen continuing: This is located on Old Highway 13 just north of town. It’s not depicted on the diagram, but the road would be towards the top of the diagram here, Old Highway 13. ABSTRACT 642 And this was the parking area, and this would be the front door right here. (Indicating.) Here’s the stoop where you come in. The place was in order. Walking into the house, I remember, what stood out, there were –-toys were not strewn across the floor. (R. 1670). Everything appeared to be in its place more or less. The living room was relatively clean, as well as the child’s bedroom. Over here, on the side closest towards me, was Aubriana’s bedroom. There was a small bed in there along with a chest of drawers that contained child’s clothing, a small rocking chair that had her name written across the top of it. There was a bathroom –-a spare room. This was the kitchen area. This was the master bedroom closet and bathroom. Living area and couch here in the center. Yes, sir, both Daniel and Victoria were there. They accompanied me and this was with their consent. There were other officers there also, I believe. (R. 1671). State’s Exhibits 20 through 28 accurately depict items I photographed in my search of the Pedraza residence. (State’s Exhibit No. 20 (R. 2135); Exhibit No. 21 (R. 2137); Exhibit No. 22 (R. 2139); Exhibit No. 23 (R. 2141); Exhibit No. 24 (R. 2143); Exhibit No. 25 (R. 2145); Exhibit No. 26 (R. 2147); Exhibit No. 27 (R. 2149); and Exhibit No. 28 (R.2151) are admitted into evidence without objection.) Direct examination of Clayton Moss by Mr. Deen continuing: ABSTRACT 643 State’s Exhibit 20 depicts a picture of a small, blue, fleece blanket found in Aubriana’s bedroom on her bed. It appears to have a stain on it, a greenish yellowcolored stain. Some of these items were also submitted to the state crime lab. You provided me the reports that correspond to those items. (R. 1672). I have them with me. State’s Exhibit No. 21 depicts a picture of the contents of a trash can that was found in the hallway bathroom closest to Aubriana’s bedroom. It had a red cup in it and what would appear to be a baby wipe with a red stain on it. That was also sent to the crime lab. I received a comparison back from the lab on this item. It’s tough to read through the medical jargon in the report, but it was Aubriana’s blood, or DNA rather. The next one depicts a picture of the contents of the kitchen trash. During the consent search of the home, we made our way to the kitchen and pulled out the trash bag to see what was in there. (R. 1673). That was towards the middle or bottom of the trash bag. I think in that picture you can see maybe some broken eggshells. I think what I was pointing out was a paper towel that appeared to have a stain on it, along with some crushed tomatoes. The paper towel had Aubriana’s DNA on it. The next one is a similar picture. That’s the kitchen trash, just another view of it. I think you can see more clearly the crushed tomatoes and paper towel. It had been explained to me before I took these photographs what significance there might ABSTRACT 644 be about crushed tomatoes or egg. Both Daniel and Victoria described a natural healing process, so to speak, that they would heat up tomatoes in the microwave, put them in a wet paper towel, and rub them, or lay them on Aubriana’s stomach to try to ease the pain or to somehow heal her naturally. State’s Exhibit 24, is another picture of the trash that we found in the kitchen. I think I’m pointing out a piece of toilet paper or a paper towel that had a red stain on it. (R. 1674). It’s a different picture, but it’s the same trash. It looks like the crime lab analyzed two pieces of trash out of there; and this one as well had Aubriana’s DNA on it. That is my hand pointing into the garbage can. The next one is a picture of the night stand that we found in the master bedroom just to the side of the bed. What’s notable about the night stand is that, once again, we found an egg, found some rubbing alcohol, an empty bottle of water, and some Q-tips. It was notable because, once again, it ties into what Daniel and Victoria were telling me about the natural healing that they tried to perform on her. And the rubbing alcohol coincides with what they said about putting it on a towel and trying to wake Bri up. Exhibit No. 26 is a picture of the trash can in the master bathroom. What’s notable about this picture is that in the trash you can see some toilet paper with a greenish, yellow stain on it. Appeared to be bile or some kind of vomit, to me, which ABSTRACT 645 was consistent with the story that Daniel and Victoria were telling me. (R. 1675). That was consistent with what her illnesses were inside the trailer or about her abdominal problems, hurting -- her stomach was hurting and she was throwing up. State’s Exhibit 27 is a picture of the foot of the bed. This is in the master bedroom in Daniel and Victoria’s bedroom. You’re looking at the floor in that photo. This small white and yellow box is an empty box of Neosporin or antibiotic. There’s also a long cord running from the middle of the floor into the closet. And at that time, it didn’t appear to be any normal or reasonable use for that to be there. That stood out to me that’s why I photographed it. The last one we see the other end of that cord. That is in the master bedroom closet. The cord is draped over the closet rod. Once again, it’s notable because that just –- that seemed odd to me. There didn’t appear to be any legitimate reason for that cord to be hanging there. There was about a nine-inch diameter circle, or loop, tied at the end of the cord. There were no clothes, obviously, hanging in the closet. And there was a (inaudible) on the floor and that was it. (R. 1676). I collected the cord as evidence. That is State’s Exhibit No. 6. The cord still has the loop at the end of it as I found it. CROSS-EXAMINATION BY MR. LEONARD A few minutes elapsed, but went from the police department to the hospital, ABSTRACT 646 yes, sir. Both Mr. and Mrs. Pedraza were at the hospital.(R. 1677). I spent some time at the hospital talking with the nurses, medical personnel, and more or less surveying the scene, seeing what was going on. I photographed Aubriana’s body as well. Trying to decide what I was going to do next, and decided to talk to Daniel Pedraza first. I actually transported Daniel Pedraza from the hospital to my office leaving Victoria Pedraza at the hospital. (R. 1678). I interviewed Mr. Pedraza for about an hour or so. Following that Mr. Pedraza consented to a search of the home. Then I drove back to the hospital where Victoria Pedraza was at. I think they called us in our vehicle, but, yes, went from the hospital to the trailer home. I wouldn’t say Daniel led all of us through the home, but both Daniel and Victoria were present in the home, so they were free to move about. If I remember correctly, Victoria more or less clung to Doris Hill, an Arkansas State Police Crimes Against Children investigator, and pointed out things to her in the home. I recognize Defendant’s Exhibit No. 6. (R. 1679). (Defendant’s Exhibit No. 6 (R.2186); Exhibit No. 7 (R. 2188); Exhibit No. 8 (R. 2190); Exhibit No. 9 (R. 2192); Exhibit No. 10 (R. 2194); and Exhibit No. 11 (R.2196) are admitted into evidence without objection.) Cross examination of Clayton Moss by Mr. Leonard continuing: Defense Exhibit 6 is Victoria Pedraza. Well, we’re both there in the picture. ABSTRACT 647 Sure, she was leading. Yes. That’s a view of the living area and kitchen. I believe the master bedroom is down that hallway. Defense Exhibit 7 I was coming out of the bedroom. That’s a view of the living room and kitchen area. (R. 1680). That’s Victoria Pedraza with officers behind her coming out of the master bedroom. Defense Exhibit 8, that’s a photo of Victoria Pedraza pointing things out for the investigators. On Defense Exhibit 9, I wouldn’t characterize Victoria pointing things out to the investigators as “them.” Those are quite possibly pictures taken by Doris Hill. Like I said earlier, those two were together, more or less, during the search while the rest of us moved from room to room. But she is showing Doris Hill, that investigator, I suspect a medicine dropper. No, Doris Hill isn’t in the picture. (R. 1681). The blue fleece blanket that you testified earlier was found in Aubriana’s bedroom. State’s Exhibit 21 was found in Aubriana’s, or the bathroom closest to Aubriana’s room. It had a red stain; and if I remember the crime lab report correctly, it was positive for Aubriana’s DNA. Yes, that was actually, and according to my notes, that would be CM-E20. That’s identified as Q08-1B on the crime report. This came back that there was blood identified. When it was tested for DNA it says Q081B, Aubriana Coke was excluded as a contributor. (R. 1682). The crime lab did not ABSTRACT 648 say that was Aubriana’s. This, again, is a picture of another type of cord found in the home. (Defendant’s Exhibit No. 10 (R. 2194) is admitted into evidence without objection.) Cross examination of Clayton Moss by Mr. Leonard continuing: These are actually bracelets made of a similar-type cord. Some officers and I went to the dock the next day and Victoria Pedraza and Daniel Pedraza arrived. At that point, Victoria Pedraza actually reenacted the dock story for us. (R. 1683). They both spoke. Sure. I would say that she did a lot of the talking. There was an interview with Mr. Pedraza at the dock. I’ve got one documented with Daniel as well. But you’re correct in that she talked a lot. REDIRECT EXAMINATION BY MR. DEEN If Doris Hill is behind the camera taking pictures, I don’t know how she’d manage to get herself in those shots. If she was the one taking the pictures then it’s natural that she would not be in the photo. MR. DEEN: Pass the witness. THE COURT: What was the cord tested for? THE WITNESS: Tested for DNA to see if Aubriana’s DNA would be on the cord. THE COURT: It wasn’t tested for anyone else’s DNA? (R. 1684). THE WITNESS: We specifically asked for Aubriana’s. We assumed that it was in ABSTRACT 649 the household and being handled by Daniel and Victoria, that theirs would be on there, it wouldn’t be conclusive –-it wouldn’t serve a purpose, we thought, to have it tested. THE COURT: But if one was on there and the other wasn’t, would that –-well, was anyone’s DNA on there? THE WITNESS: I don’t have the crime lab return on that, not in my file anyway. BRENDA WALLACE DIRECT EXAMINATION BY MR. PURYEAR I’m Brenda Wallace. Victoria Pedraza is my daughter. (r. 1685). I have another daughter. I have one 23 and one 17. Victoria’s 23. I live at 1127 South Martin, Warren, Arkansas. In February of 2012 I lived in Paragould, Arkansas. Victoria lived with me there. She was living with me when Aubriana was born. (R.1686). Aubriana was my only granddaughter. I’ll never have any more because my oldest daughter couldn’t get pregnant. Q. I’m sorry –- A. And he took my only grandchild. (Indicating) THE COURT: Now, let me stop here. Have you, I know, explained to her –You’re permitted to testify in a limited way. Went over the written statements -- and I’m required to ahead of time -- because there’s certain things you can say –ABSTRACT 650 THE WITNESS: Oh, I’m sorry. THE COURT: –- and certain things you can’t. And I’ll permit your testimony, as long as it comports with what I’m required to follow as the law. And that excludes finger pointing. Go ahead. I assume she’s been prepared and she knows –MR. PURYEAR: Yes. THE COURT: All right. Good deal. (R. 1687). Direct examination of Brenda Wallace by Mr. Puryear continuing: My youngest daughter can’t have children. There’s a reason behind that. State’s Exhibit 29 is a photo of our five generations. (R. 1688). Aubriana was the youngest; and my mother; my grandmother; Victoria; and myself. (State’s Exhibit No. 29 (R. 2153) is admitted into evidence without objection.) Direct examination of Brenda Wallace by Mr. Puryear continuing: This photo was when Aubriana was, I’m going to say, just roughly, about two months old. That’s my grandmother holding her. (R. 1689). STEPHEN ERICKSON, M.D. DIRECT EXAMINATION BY MR. PURYEAR My name is Dr. Stephen A. Erickson. I’m deputy chief medical examiner at the Arkansas State Crime Lab in the Medical Examiners section. This summer will be a total of 16 years. I’m a forensic pathologist there. I’ve been a forensic pathologist ABSTRACT 651 after my fellowship, for 18 total years, then I have two year’s experience before I became an official forensic pathologist, training to be a forensic pathologist. Well, I went to medical school at UAMS. (R. 1690). I graduated in 1989; and my field of interest at that time was pathology, which the pathologist runs the hospital laboratory. He also diagnoses diseases under the microscopes and whatever other mechanisms he can find to do that. Another one of our responsibilities is doing the hospital autopsies. Well, when individuals die in the hospital, we do a post-mortem examination trying to summarize the extent of their illness, the accuracy of the diagnosis, complications unseen, things such as that, to help out the clinicians. So there we learn to do these post-mortem examinations. And that takes five years, but my interest was always forensic pathology, which is examinations of individuals that have died in suspicious, violent, unattended ways, or ways which would interest the civil or legal community and be able to document what exactly happened to them, to let their body tell that story, and to relate to other people. And that’s what I did. In order to do that, I had to take a fellowship, another year of training, my sixth year of training, and I did that down in San Antonio while the rest of my training was here in Arkansas. After that, I came to Arkansas at the Arkansas State Crime Lab and practiced forensic pathology for two years; went to Alaska, did the same thing for two years; and I’ve been back here for the last six years, all doing that. (R. 1691). I look ABSTRACT 652 at individuals who have died, learn as much as I can about the circumstances in which they died, look at their bodies, examine the outside and the inside, and do any other tests I can think of to let that individual’s story be told. And that’s what I try to do. Considering the light years I’ve had, which were during the first two years, you know, in Alaska we didn’t do that many. I would say an average of 200 to 250 a year for 18 years. MR. PURYEAR: Your Honor, I’d ask the Court to allow Dr. Erickson to give his opinion in the field of forensic pathology. THE COURT: Proceed. MR. PURYEAR: Thank you, Your Honor. Direct examination of Dr. Stephen Erickson by Mr. Puryear continuing: I performed the autopsy of Aubriana Coke date of birth: November 17, 2009. Well, I approach autopsies like I’m a physician. (R. 1692). I want to know the story as much as possible about what happened, the circumstances of death. And an emergency room physician like you’ve heard from today already will get a medical history; if people accompany the person, he’ll want to know how long –or take it from the patient. My patients can’t do that, so I have to get the story from the law enforcement officials, from the coroners telling me what the circumstances were as far as they know. And that can direct where my autopsy goes. A drowning is much ABSTRACT 653 different than a gunshot wound. A gunshot-wound homicide is much different from a beating homicide. The next thing I do is look at the body, the remains, as I receive them. We document the condition of the remains by, as I first see it, any medical intervention, soiling, blood, basic characteristics such as age, gender, height, weight, race, things like that. Then all those extraneous materials, clothing, medical intervention are taken away. And because so much of what I do is trauma/injuries, a large part of the external examination is dependent upon me examining the skin. Now, if I have someone who’s died from a heart attack, I go through it 1, 2, 3, hardly paying any attention to the skin. But when trauma happens, I know that that trauma has probably caused their death internally, but the story is on the outside. (R. 1693). So I look at their skin very carefully and document the kind of changes that are associated with injuries on the skin. That’s the second part of the autopsy. The first part being the clinical history. The third part is the internal examination where we make standard incisions along the head, the chest, and the abdomen, and look at the organ systems as they lay in the body. Then each of those organ systems are removed then we do a pretty routine dissection of those, looking at them from a medical aspect, making sure that everything was working right during life, looking for natural disease. In trauma cases, correlate the internal trauma with external trauma. ABSTRACT 654 Now, the fourth part is any ancillary studies. We may want to look at things under the microscope. We may take x-rays. If we get any evidence from the body such as bullets or DNA samples, we’ll take those. And then what I do is try to put everything together and come up with an opinion as to what has caused the death of the individual, categorize that opinion into four basic medical classes: homicide, suicide, accident, or natural. Then I issue a report; I make sure that the whole thing is documented along the way with photographs; and lastly, I come and testify when the courts need me to. (R. 1694). Basically four steps were followed in this particular case. I generated a written record of my findings and conclusions. MR. PURYEAR: Your Honor, I’ve marked State’s Exhibit 30. MR. PURYEAR: (Continuing) Q. I’d like you to take a look at that. MR. ROSENZWEIG: May I approach for a second, Your Honor? May I approach? THE COURT: You need to approach? Okay. [Bench conference] THE COURT: Now, I was just having an out-of-body experience. Are you asking him to identify it as the autopsy report? MR. PURYEAR: That’s correct. ABSTRACT 655 THE COURT: That’s what you’ve got? May I see it? MR. ROSENZWEIG: Your Honor, in as much as he’s going to be testifying about it, my position is the report itself does not need to be introduced into evidence. (R. 1695). MR. PURYEAR: Your Honor, 12-12-313 is pretty clear: “Records and reports of autopsies shall be received as competent evidence as to the matters contained therein.” THE COURT: I’m going to allow you to introduce it. It’s normally introduced. Thank you very much. MR. PURYEAR: Thank you. [Open court] Direct examination of Dr. Stephen Erickson by Mr. Puryear continuing:: State’s Exhibit 30 is an accurate copy of my 15-page report in this particular case. (State’s Exhibit No. 30 (R. 2154) is admitted into evidence without objection.) (R. 1696). Direct examination of Dr. Stephen Erickson by Mr. Puryear continuing: This is a very complex case. I’m not going to be able to sum up what has happened to this child in one sentence. So the first thing you have to know, she died ABSTRACT 656 of multiple blunt force injuries. She had numerous bruises; scrapes, which we call abrasions; one laceration that I would find, and these involve multiple different parts of her body: the head, the chest, and abdomen, the back, the buttocks, the extremities. Primarily, there was one major injury, but this one major injury fell within the scope of a number of other injuries. You can separate those out or you can look at them as a whole. You can be a splitter or a grouper; I’m a grouper. Aubriana Coke died within the spectrum of all these injuries, but only one single blow stopped her life and that was a blow to the abdomen. That blow to the abdomen was hard enough and narrow enough, that is, not on a big surface, but narrow enough and hard enough to compress her abdomen and all the structures below the liver, against her spine, and caused the first part of the small intestine to be ripped in half. (R. 1697). That is, the blow was hard enough for the skin to compress every other structure in her chest up against the spine and cause that tube to rip apart. When that tube ripped apart, things started going into the sterile peritoneum. Things started draining into the peritoneum: acid, bile, food, and bacteria. As a response to this injury, a huge amount of fluid was produced by the surrounding bowel and went into the peritoneum, a sterile place. It’s like when you get an infected finger, you don’t want that to go into your blood. When you get an infection, you don’t want it to be all over your abdomen. That’s what happened. ABSTRACT 657 We have a valve, right before this injury, in the stomach that lets stuff into the abdomen. It would probably close off –-it doesn’t want any more –- the body knows it doesn’t want any more of this noxious material, acid, bile, the food material, the bacteria, to go into the stomach, so one of the symptoms is they won’t be able to take water anymore. They’ll vomit it back up. But a number of other physiological changes occur: abnormalities in the salt, the bacteria start getting into the blood and causes sepsis. So the individual is going to be very, very sick, very ill. Any doctor would recognize an hour before this child died how sick she was. (R. 1698). And I can’t tell you exactly how long it took from that bowel coming apart until she died. Maybe a long process. In any event, that’s the single injury that stopped this child’s life. But it was in the context of a number of other very significant injuries to me, but injuries that wouldn’t have stopped her life. I mean, any doctor who had seen that group of injuries would have wanted that child to be isolated from the things that did that to her. That would be their responsibility but they wouldn’t have treated her with surgery, or medically, very much at all because they weren’t injuries that would stop her life, but they were very, very serious. They are injuries of chronic child abuse: bruises, multiple bruises of the whole scalp, enough scarring on her scalp that I was even surprised. I have never seen that much scarring on a child’s scalp. There was evidence in her belly where we hook up all these tubes, the liver, the stomach. We ABSTRACT 658 have to supply that with blood; we have to drain the blood; we have to supply the nerves; and it’s all done with this big complex fan-like thing we call the mesentery. That mesentery was actually lacerated by this injury, too, but that mesentery also had a bunch of scarring in it, which means that mesentery had been injured before. There’s two ways you can really, really hurt that area: you can rupture the bowel; you can get into a blood vessel and cause acute bleeding; or you can bruise it. (R. 1699). The bleeding and the ruptured bowel can cause your death. The bruising, it’s not going to cause your death, but it’s a serious injury. You’re getting very, very close to those other two. But what’s also significant in this child that something had also compressed her abdomen before this and had caused enough change of injury that I was able to see it under the microscope, that there’s a lot of scar tissue there. So there was scar tissue of the underlying scalp; there was scar tissue of the belly; plus, this child had bruises that any physician who sees child abuse, immediately raises red flags. There was one time in this case where someone said, Well, maybe the story of what was told to me could have happened to this child, I immediately said, “No, that story does not fit with how this child looks. This child could be in a textbook for” –- Do you want to train physicians, teachers, nurses, to see what an abused child looks like? Show this child’s picture. And that was before this last injury that took place. So that’s what happened to Aubriana Coke. She died in ABSTRACT 659 the confines of prolonged, repeated child abuse with the final injury being a hard blow to her abdomen, which separated that intestine and caused that physiological disarrangement that led to her death. (R. 1700). The first part of the small intestine is called the duodenum. Well, you and I talked about this, and I could explain until I’m blue in the face why that area of the bowel is so vulnerable and why it’s almost classic to forensic pathologists that have seen it, one or more times, what it looks like. But it’s hard to explain to other people how close that spine is, how much that spine sticks out like a mountain, what you showed me, I could talk for an hour and won’t be able to explain it better than that one little app, whatever you call it, on that iPad. MR. PURYEAR: Your Honor, the app that he’s referring to is a Human Anatomy Atlas that I’ve let them look at before now. Direct examination of Dr. Stephen Erickson by Mr. Puryear continuing: This app is focused in on the stomach, the digestive area. This is an accurate application that would show the digestive area of the duodenum I’m referring to. (R. 1701). If you look at the story on this child, she had bruises over here, over here, over here, and over here. (Indicating) It’s very difficult for you to bruise a child’s abdomen. To get a bruise, you have to compress the skin and the underlying soft tissue against a hard surface. So that, I mean, it’s very easy to get a bruise on this skin ABSTRACT 660 over the ribs because if you poke the ribs hard enough, you get a bruise. But the abdomen, you have nothing but intestines here, soft tissue, until you get to the spine right here. See how the spine -- actually, this tube into the abdomen has evolved and developed into standing individuals. Instead of the straight-spine back that quadrupeds have, we have to balance and get used to it so our spine curves back and then curves forward. When it curves forward, it protrudes into the abdomen. Now, here’s the large bowel; and here’s the small bowel; and here’s the liver. (R. 1702). There’s the stomach coming out; and there’s that valve to the stomach; there’s the head of the pancreas; and this blue section here, that’s our duodenum. And look where the duodenum goes: right over the spine. And all this is held together by that fan-like tissue of fat, nerves, and vessels; and in here, I found scarring. Well, right here, right at the spine -- I’m sorry. Right at that point, that’s where this tear took place. It was completely torn in half. So you take a tube, you compress it against that spine –-just look where that blue material is and look how close it is to the spine. You take that, compress it hard enough against the spine, with a punch, with a kick, with an elbow, with a knee, you’re going to cause –-that area is very vulnerable to injury; and that’s simply what happened here. That’s all I’ve got. There were photos taken during that part of the autopsy. (R. 1703). State’s Exhibit 31 is a photo that was taken during the autopsy process. It is ABSTRACT 661 a fair and accurate depiction of Aubriana’s condition at that time. There’s a bunch of red changes on her chest and her abdomen. These are bruises. This is the result of blunt trauma; and she died of multiple blunt injuries. As well as that, there are changes of the medical intervention around her lips; but there’s also distinct trauma of her lips, trauma which is not the same age as the changes of putting a tube down her. There are other changes around her face that are, while seemingly innocuous in the whole picture, they’re very unusual, multiple, small, little scrapes and abrasions. If you notice the bridge of the nose, the little red area there, that’s a small contusion. There’s bruises on her chest; there’s bruises on her left chest, the right chest -- right chest, left chest -- and there’s these very large bruises on her abdomen, which to a forensic pathologist who’s seen child abuse injuries causing death over 20 years, not just red flags, this is a very specific and important finding of why the child died. (R. 1704). It’s going to direct my remainder of the exam into, specifically, trying to document what these bruises had to do with any internal changes. (State’s Exhibit No. 31 (R. 2170) is admitted into evidence without objection.) Direct examination of Dr. Stephen Erickson by Mr. Puryear continuing State’s 32, we see children drown; we see children in car wrecks; we see children that have died from undiagnosed disease; we see one year olds; we see two year olds, three year olds. Children are forward-moving; they’re bumping; they’re ABSTRACT 662 getting head bumps, knee bumps. What we don’t see is things like, in Exhibit 32, the other kinds of bruises present on this child. If you saw a child with a three-inch bruise on the back of her left wrist at church, or at the grocery store –- it was a friend of yours -- you’d say, Oh, what happened? We’d want to know because these aren’t the bruises that children get when they bump into things; and this is not what the bruises on this child looked like either. (R. 1705). These are not innocuous; they’re not innocent when you take them as a whole. And the change on her left wrist is very typical of that. That’s not a bruise that children get innocuously, especially, in light of what else I found in this case. This is highly consistent with an inflicted injury on the back of this child’s left wrist. State’s 32 is a fair and accurate depiction of how she appeared that day on the autopsy. (State’s Exhibit No. 32 (R. 2172) is admitted into evidence without objection.) Direct examination of Dr. Stephen Erickson by Mr. Puryear continuing State’s 33, some of these abrasions on her may have weeped a little blood. You’ve seen how a scratch can sometimes weep a little blood. Some scratches don’t hardly weep blood at all. There was only one injury I found on this child that would have bled, but it was a significant injury, and it was to her upper lip. (R. 1706). And this is significant because this did not occur within an hour or two of when she died. This injury has healing changes. It’s got no hemorrhage in the base, so the bleeding ABSTRACT 663 time for this injury is over. But everyone’s seen what happens when a child busts its lip. Everyone goes into alarm mode because there’s bleeding, even though it’s an injury you can put a little ice on and the kid’s fine. But this injury would have bled. This injury would have ended up with this child having a bloody mouth. This injury wouldn’t be an injury that you would ignore. You would fix it. You would understand the history of the injury. The child fell and hit its mouth; we put ice on it; we either took it to the emergency room or we didn’t. The thing about this injury is I can’t say for sure whether this child didn’t fall and bust her lip, but what I can say is that this injury would have bled; there would have been an explanation for it; there would have been something to acknowledge where, when, and how this injury occurred. State’s 33 is a fair and accurate depiction of what I saw during my autopsy process. (R. 1707). (State’s Exhibit No. 33 (R. 2174) is admitted into evidence without objection.) Direct examination of Dr. Stephen Erickson by Mr. Puryear continuing As for what type of pain would have this caused, there’s a variety of symptomatology that could occur here. A surgeon or an ER doctor would have seen this when she was alive, as what we call an “acute abdomen”: boardlike rigidity, very painful to the touch. But, some people, as long as they stay still, it may not have been excruciatingly painful. I can’t predict that. What a physician, a surgeon, an ER doctor ABSTRACT 664 would call an “acute abdomen” with all the possible symptoms, including pain, tenderness, constant pain without manipulation, although, that may or may not be present. So, what would be obvious to any physician seeing this child when she was alive was this is a very ill child. (R. 1708). CROSS-EXAMINATION BY MR. ROSENZWEIG There were no broken bones. No evidence of any sexual abuse or trauma. We were dealing with bruises on various areas of her body. In my opinion, other than the abdominal descriptions we saw on the app, none of the other bruises were in fact, in and of themselves, life threatening. Had that one that compressed the duodenum into the spine, none of the others would have caused her death. (R. 1709). There really wouldn’t have been much surgical intervention, or anything else, and they would have just healed on their own. It would have been more social intervention, not medical. This was the immediate cause of death. (R. 1710). A child impaling themselves on a bicycle handlebar is an injury which has been described to produce an injury very similar to this. It is a small surface area. I wouldn’t call it freakish -- this is –- because I see it in a very un-freakish situation; and I don’t get to see the kids that come in with the bicycle because I’ve never seen that. Even though I’ve seen that as an explanation, it’s always turned out not to be true. So, you’ll have to ask an emergency room doctor or a pediatric surgeon how ABSTRACT 665 many times he’s seen that. No, this is not inflicted by a knife, or a gun, or a baseball bat, or anything else like that. (R. 1711). It was one fist blow that caused that compression. To cause that one rip, yes. Yes, basically speaking, anyone eleven, twelve years old would have had enough force, would have been able to muster enough force to cause that blow. I mean, two year olds are tough but the ratio between –- even an eleven or twelve year old, their strength, and especially an adult, to a two-year-old’s soft tissue in the vulnerability can overcome that type of (inaudible). This isn’t something that has to be a male of a certain size. In other words, just anyone, male or female, of a certain size would have had the ability to muster that amount of force. This child wasn’t malnourished. There are many different ways a child could possibly react to something like that. (R. 1712). It certainly could have been a wreck. They would not necessarily have been crying out in pain or anything like that. But what I said “very ill,” they could be almost obtunded: unresponsive –- I mean, their responses are diminished they’re so sick. Like, this weekend I had food poisoning. I was not as responsive as I am right now. So, there could be a wide variety of symptoms. And you have to know that I don’t treat these kids anymore. I haven’t seen them for over twenty years, what a sick kid actually looks like. I wouldn’t necessarily expect crying, for instance. (R. 1713). What I can say is: any physician ABSTRACT 666 would have seen that this child was seriously ill, but whether a layperson would or not– I don’t know. You can’t date bruises -- that’s my medical opinion as a forensic pathologist for twenty years -- by their color. The best way to date a bruise is to know when exactly they happened. As for when these other bruises were inflicted, I can only say in the most general terms. I can’t say who inflicted them. I would never do that. (R. 1714). I see lots of people give CPR and they’re already dead, and they have very little external findings. Sometimes little yellow marks instead of the red marks. What we don’t see is –-when we scratch our skin, even under blood pressure, it’ll turn red. When we get CPR, we still have blood pressure, that skin will turn red. Or if we break the ribs, they’ll bleed. It looks much, much different. So, none of these are consistent with the CPR. As for “gurgling” going on, would be evidence that the child was still alive, depends on what’s causing the gurgling. I’ve seen people dead over 24 hours gurgle because their lungs are producing fluids and it’s bubbling up so –but there could be gasping, respirations, agonal breathing, that could be defined as gurgling. In that point in time, there probably still would be some blood pressure, very little, but some. (R. 1715). We can’t tell when this was inflicted on the lip, but it does show the initial ABSTRACT 667 mucosal changes of response to injury. You know, the mucosa of our lip heals that area very, very fast, but there is some healing changes. So, in fact, there’s two. There’s this little laceration right here and laceration right here. They show granular change. So these are not within an hour or two of when this child died; these are before that. I would say it would be even more than three or four hours from when the child died. This is what a laceration would look like after 24 hours. I can’t dispute the child could have lived eight, ten, twelve hours after the abdominal injury. (R. 1716). No, we don’t know when the lip was bruised, it just has aging. You know, it’s just like bruises, it’s very difficult –-even looking under a microscope, it’s still very difficult to say anything 24 hours or less as far as (inaudible). If that was two days old, I would expect to see some response under the microscope, cells come in at a certain chronological time; the tissues start budding out little capillaries; and the healing takes a certain amount of time. But before two days, it’s very difficult to tell when that time was. Yeah, sometime in the previous two days. I can’t really tell. (R. 1717). I think the thing I associated with that lip, it would have been bleeding, there would have been blood. That’s why that injury was so important. There would have been blood at some earlier time. And it could have been cleaned up in any number of places. I don’t know about at the house. All I could say is that would have bled; and as an adult, not just as a physician, anytime a child’s mouth is full of blood, we all go ABSTRACT 668 into alarm mode until we realize that it’s not a big deal. I would expect any normal adult to address that injury, yes. Q. And sometime in the previous -- And would have been inflicted sometime in the previous two days -MR. DEEN: Asked and answered. Objection. (R. 1718). MR. ROSENZWEIG: I just wanted to summarize and make sure -THE COURT: Repetitive. I’ll sustain the objection. MR. ROSENZWEIG: Pass the witness. EXAMINATION BY THE COURT I expended a huge amount of energy on this case doing as best we could to look at each injury under the microscope, and look for the cellular processes of aging, and do a stain. When we bleed, we’ve got a cell in our body called a macrophage. It’s a vacuum cleaner and it comes in and it soaks up the blood. When it soaks up the blood –- our blood’s got iron in it –- and we have a stain that can see iron. (R. 1719). You can’t see it in the red blood cell, but when you break it down and it collects in this macrophage you can see it. So, in about 72 hours, these little macrophages have come in, gotten to that hemorrhage, and they’ve taken up that blood; and, finally, I can see something that I can say, That’s at least 72 hours old. The bad part is they’ll stay positive for days, ABSTRACT 669 and months, and months, sometimes for a really long time –- but what I saw on the scalp was evidence that that was well-healed fibrosis and a lot of it. I can’t tell you how remarkable, as a physician who looks at child abuse, that scalp looked and how much scarring there was on it. And I was able to look at the tissue around that laceration in her belly and showed that there was, what we call granulation tissue. If you were around horses it’s called “proud flesh.” It’s the response of the tissue to healing. And what happens is a bunch of little cells that become scar tissue comes in, a bunch of little cells that become capillaries come in. There was that present, as well as scarring and macrophage. So, I’m not going to -- you know, people will tell you, This is a week old. That’s just not true. (R. 1720). I did a number of stains that showed fibrosis with iron stains; granulation tissue, which is not as late a stage of healing time stains. And then a number of these bruises I looked at with iron stains that showed nothing, which means they were pretty fresh. So, yes, in a general statement –-and I took 26 different areas of injuries and looked at them under microscope and did this same thing. The fibrosis in the scalp could have been months old. Weeks to months, the fibrosis in the abdomen. (R. 1721). RECROSS-EXAMINATION BY MR. ROSENZWEIG Q. So you said weeks or months, but you don’t know how many weeks or how ABSTRACT 670 many months; is that right? A. Well -- THE COURT: To a reasonable degree of medical certainty. If you’ve got to speculate, I don’t want to hear it. I can’t admit it. Cross examination of Dr. Steven Erickson by Mr. Rosenzweig continuing: Because the fibrosis was that dense. There were areas that I thought were scarring in the abdomen, those could have been a month or two old. But there were also areas that looked like a week or two or three weeks old. I don’t really know. You have to be very circumspect about that. (R. 1722). Different bodies respond differently. It’s hard to gauge the extent of the injury after there’s been any degree of healing. Actually, you could have an injury inflicted acutely on top of an old injury, which I did see here. Well, the only thing I could say to a reasonable degree of medical certainty is that this is a chronic process of repeated blunt force injury culminating in this (inaudible) over time. (R. 1723). No, there was internal bruising to the mesentery. Unless there’s a rip or a tear of the vessel, there would be no reason to operate. WILLIAM J. DYE DIRECT EXAMINATION BY MR. MORLEDGE My name is Staff Sgt. William J. Dye. (R. 1724). I’m a Training NCO for the ABSTRACT 671 Arkansas National Guard, Crossett, Arkansas. Daniel Pedraza’s unit was Alpha Troop, 151 Cavalry. My job is to make sure once a soldier comes back from basic training, AIT, you make sure they receive the proper training to be able to do their job and any MOS that they have. Mr. Pedraza’s job is a cavalry scout. I went to Iraq with Mr. Pedraza. I recognize that photo, Sgt. Dye. It was 2008 when I went to Iraq with Mr. Pedraza. (R. 1725). (Defendant’s Exhibit No. 12 (R. 2198) is admitted into evidence without objection.) Direct examination of Staff Sgt. William Dye by Mr. Morledge continuing: That picture is what is most commonly known as the “Crossed Sabers.” It is an amphitheater. It’s just a large area. You can drive through it, fly into it. Saddam Hussein had it built. When we flew from Kuwait into Iraq, we landed at the Crossed Sabers. There’s a large area right in the middle of it, right in front of the, I guess the amphitheater, right there, yes. (R. 1726). He may have not have been on the chopper that I was on, the flight, but there were several flights to move everybody. But, yes, he came in that night. Right there, the first night when we arrived, we had enemy contact. After we had actually flown in there, we were trucked to Camp Travis where we actually lived. Within the first two or three hours, there was some very close mortar fire that had landed, not exactly in Travis, but very close. That appears to be a picture of Camp Travis, Iraq. And it’s that area where you ABSTRACT 672 saw the little h’s. Then to the right of that, that long building right on the edge, yes, right there. And then the white building to the north. (R. 1727). Yes, just slightly to the left of that last row of (inaudible), all the way down to that building that’s white, all the way down to the road in the front. That whole area is Camp Travis. This building appears to be the corner of the U.S. Embassy, what was then U.S. Embassy. That’s where we were based for the first seven months. When we first got there we were being introduced into the area by the unit that was there. They were kind of getting the lay of the land once –-and they were telling us about certain things and the C-RAM went off. A C-RAM detects the trajectory of a fired artillery shell or mortar. (R. 1728). Once it figures out where that trajectory is going to land, it calculates somewhat where it’s going to land, and it sets off an early warning siren system to let everybody know that there’s incoming fire into a vicinity or where rounds may land. I believe I see the U.S. Embassy down here. This appears to be Camp Travis. (R. 1729). This would have been when we were deployed with the U.S. Embassy –right there. This is Camp Travis right here. The first night we received mortar fire. Well, we had a few rounds that landed up in this area, maybe a little bit north of this, just enough that you can really hear them but not feel the percussion off of them –-but we did take some. The Green Zone ABSTRACT 673 took some area fire. The operation for the Iraqis at the time, they were trying to get the attention of the mortar fire. A mortar round is a tube-launched round you drop into a tube. It’s kind of like a bullet. It propels itself out of the tube. It shoots in an arcing motion, so in order for it to go very far, you have to shoot it very high. Once it reaches a certain point, it’ll actually just fall. It’s just a falling round. It has no direction. The wind can catch it and carry it. So they try to hit this. Well, they shoot from across the river. This is the Tigris River right here. They’re shooting from across the river to try to get this, where we’re in direct line of it. If they shoot from farther down here, we’re not in direct line. (R. 1730). But that wind may carry that round all the way over here, all the way down here. It may splash in the water. You really don’t know where they’re going. It’s kind of a –- if the U.S. Army were shooting those rounds, they’d be spot-on. The Iraqi Nationals shooting those rounds, you don’t know where they’re going to go. The C-RAM will go off in an area where a RAM is projected to land, but it’s set off –-it’s laid out in a grid across the whole Green Zone. Each sector, I guess we would call it, would be a grid. That RAM might land anywhere in a four-grid area. It might set off a C-RAM in those four areas. (R. 1731). As the RAM gets closer to the ground, it starts predicting a little bit more and it gets a little more accurate. But ABSTRACT 674 if that RAM is 2,000 feet in the air, it’s trying to figure out where it’s going to land at. The C-RAM may go off and the round may be in the air, and it may land in the water and you never hear it; it never goes off. Then the C-RAM’s go off and you may not hear anything. There were bunkers strategically placed all over Camp Travis that would house everybody –-to fit everybody that’s housed at Travis. So you have a bunker that was designated to you, that was closest to you. When the C-RAM went off, you just get there as fast as you possibly could and take cover for any enemy fire. There was just a couple of rounds that landed that night. Like I said, they weren’t real close, not real far away. (R. 1732). We had a few spontaneous rounds that landed –- they were just sporadic really –- landed the first month or so. We’d take maybe two or three rounds every month. There may be a couple of months that we wouldn’t see anything. There was one week that we took several around us, some very close, not actually in Travis, but throughout the whole –just a handful of times. The motor pool, that’s actually a parking area for first and third platoon; and then that white building to the north is also a motor pool where you can park vehicles. We actually took mortar rounds just to the other side, just to the right of that in that dark area. Right there between that long line and where that little man is standing there. Right there, yes, sir. Two rounds right there. It threw gravel over onto the ABSTRACT 675 vehicles. (R. 1733). When we got back we had a C-RAM –-most of us had it on our phones and we would just pull pranks on each other, we’d set it off and just watch us all go around. As we were home longer, it didn’t affect us as bad, but there for a while, it affected some, some it didn’t. It would make people scatter when they heard it. Yes, even being back in the States. I don’t know exactly what Daniel’s job was. There were three different platoons there and there were three different missions. What each platoon did –-I know what my job was in my platoon. I don’t know if he had the U.N. or the (inaudible) mission. Either one of those were guarding dignitaries, either with the U.N. or the (inaudible). (R. 1734). He was moving the United Nation officials around, either in a Green Zone or around Baghdad, guarding them in their palace, their living areas within the Green Zone, or wherever that may be. I didn’t know he was a gunner on top of a humvee. We all went outside the Green Zone. The Green Zone was an area where there were a lot of houses that were under Saddam Hussein. The United States Coalition Forces took that over and made it a secure area for people moving in and out of Baghdad where dignitaries stayed. No, nothing is really secure when you’re fighting in war. I don’t know how many missions went on over there. We were there a little ABSTRACT 676 over eight months. The whole troop came home together. (R. 1735). This is a picture from the cover of Arkansas Minuteman when we came home to Camp Shelby, Mississippi. That’s Specialist Pedraza. He is carrying the guidon. The guidon is a symbol that has an “A” on it, a “1" and a “151" that represent Alpha Troop 151 Cav. It is an honor to carry that. Usually, the commander picks who is the guidon bearer. It’s usually a Soldier appearance or characteristics of –99% of the time it was a good solider. I know that he did say he did have some drinking issues after he came back from Iraq. I am aware that he received two DWI’s. (R. 1736). Specialist Stuard called me one afternoon and said that Specialist Pedraza had been arrested for some old fines and she was trying to get him out of jail. I spoke with my wife and we actually posted the bond to get him out of jail that day with the instruction that it would be paid back in full. It was just helping him out. He certainly paid it back in full. Mr. Pedraza received some commendations from being over in Iraq and his service. That is a certificate of training saying that Private Daniel Pedraza has successfully completed 19 Delta Cavalry Scout training. Yes, everybody has to do that to be Cavalry Scout. It was in Ft. Knox, Kentucky. That’s what appears to be his basic training. The “Guardian of the IZ” is what everybody that was in Alpha Troop received from the 3-29 Task Force. (R. 1737). ABSTRACT 677 That’s who we were attached to the last month or so we were in Iraq. That’s Shoulder Sleeve Insignia Former Wartime Service allows the soldier of 39th Brigade, which is who we belong to, to wear a combat patch on your right shoulder saying that you had been to combat. It identifies you. If you’re not in combat you don’t wear anything. This is Proof of Service. Daniel Pedraza served in the 39th Infantry Brigade Combat Team into combat 2008 in Iraq and is authorized to wear the Shoulder Sleeve Insignia for Former Wartime Service. This is Award of the Iraq Campaign Medal for anybody that served 30 consecutive days or for 60 non-consecutive days in Iraq. (R. 1738). This is a memorandum stating the Specialist Pedraza is an active member of the Alpha Troop 1/151 Cav. Squadron 39th Infantry Brigade Combat Team, Arkansas National Guard. His current obligation ends May 29th, 2014. He’s still an active member of the Guard. This is: “The Army Commendation Medal for Specialist Daniel Pedraza.” It says that he received this for “meritorious performance in support of Operation Iraqi Freedom from 01 April 2008 to 02 December 2008. SPC Pedraza demonstrated superior enthusiasm, determination and leadership qualities that far supersede his current duty position.” Not everyone gets this. This is something he had to earn for ABSTRACT 678 giving something extra. (R. 1739). In the early hours of morning, I received a call from his sister, Liliana. She stated that –MR. DEEN: Objection. Hearsay, Your Honor. MR. MORLEDGE: Your Honor, may we approach? THE COURT: You may. MR. MORLEDGE: Thanks. [Bench conference] MR. MORLEDGE: Your Honor, he’s going to testify as to what Lily Pedraza told him, coming from Daniel Pedraza –THE COURT: And when was this call made? MR. MORLEDGE: This was made in, I would say, in October of 2011. THE COURT: October of 2011, and what’s he going to say? I mean, where are you going? MR. MORLEDGE: Sure. Yes, sir. That he got a call from Lily that Daniel was attempting suicide; and he had to intervene. And then I’m going to later put Lily Pedraza on the stand to (inaudible) as well. THE COURT: If I sustain the objection, it can’t come in through this witness. We’ll wait and see about Lily if she –- whatever foundation she lays –- but it certainly ABSTRACT 679 wouldn’t add anything if it came in through this witness. (R. 1740). I may let it in if you put Lily on the stand. MR. MORLEDGE: Sure. Your Honor, I would like to say I think it can come in because it’s Daniel’s then-existing mental and emotional state to Lily; and of course, he’s going to testify –-Sgt. Dye is –-that Lily basically called him as an excited utterance. THE COURT: I’m not saying that it couldn’t come in if Lily witnessed something or Daniel told her, but only if her credibility were challenged anyway would this may be offered for rehabilitation. But, otherwise, no, it doesn’t come in at this time. MR. MORLEDGE: Okay. Thank you, Your Honor. [Open court] Direct examination of Staff Sgt. William Dye by Mr. Morledge continuing: Daniel has given me a few paracord bracelets. He had given me a few. Brought them in my office one day, said that he had made some that he gave to me. They appear to be the bracelets. I don’t know if they are the exact ones, but they appear to be the same. Those appear to be bracelets of the same type. (R. 1741). When Specialist Pedraza was at drill, he appeared to carry himself in a soldier manner. If you asked him to do something, you knew it was going to get done. As far as away from drill, I wouldn’t know. I don’t hang out with soldiers like that. No, ABSTRACT 680 you don’t hang out with people below rank. As a soldier, he was always there, always on time. There may have been a few exceptions, but that’s everybody. Overall he was a good solider. (R. 1742). (Defendant’s Exhibit No. 13 (R. 2200); Exhibit No. 14 (R. 2202); Exhibit No. 15 (R. 2204); Exhibit No. 16 (R. 2221); Exhibit No. 17 (R. 2229); Exhibit No. 18 (R.2234); and Exhibit No. 19 (R. 2236) are admitted into evidence without objection.) Direct examination of Staff Sgt. William Dye by Mr. Morledge continuing: MICHAEL ARMOUR DIRECT EXAMINATION BY MR. MORLEDGE My name is Sgt. Michael Armour. I”m in the National Guard. Daniel Pedraza and I were in the military together. He’s my best friend. I went to Iraq with Daniel. (R. 1743). We were both in the same platoon. We were escorting people in the U.N. around Baghdad and out of the Green Zone. They were U.N. dignitaries. Our job was to protect them. Well, me and Pedraza, we were gunners on there. We was the ones that had protection of the whole truck. We each had our own truck. The truck is made up –-it’s a big hole in the top. And we set on top of it (inaudible). (R. 1744). We were exposed to enemy fire. It was our duty to protect the convoy. This is a picture of Specialist Pedraza when we was over in Iraq. ABSTRACT 681 (Defendant’s Exhibit No. 20 (R. 2238) is admitted into evidence without objection.) Direct examination of Staff Sgt. Michael Armour by Mr. Morledge continuing: Well, the mission we had, we had (inaudible) platoon. We had two sections. We had first section and second section. (R. 1745). The second section always ran (inaudible) the first section. Daniel Pedraza was the second section. And they went out first and scouted the area to make sure everything was clear (inaudible) areas, but when we come through (inaudible) else. They were the forward proceeding group to make sure there weren’t any enemy combatants out there. We were on Humvees. In each section, you have four trucks. They’d be in different formations depending on the size of the road. If you have, like, a narrow road, it was a line formation. If it’s like a wider road, it’s called a “diamond,” but it’s also called a “staggered” formation. (R. 1746). In the line formation, the first truck (inaudible) from this corner to this corner. The second truck, it all depends. You have this corner right here. The third truck has the opposite; and the fourth truck has the six, which is behind. A diamond, you’d have first truck right here; the second truck is off to the side just a little bit; then you have (inaudible) truck and then you have a third truck. It’s all staggered. Then you have a fourth truck behind. In the diamonds or staggered, the second truck, since he’s going to be on this side, his (inaudible) is this way. The third truck is to the nine; and the fourth truck is always at six. If you start getting shot, taking fire ABSTRACT 682 from behind you’ve got to trust your gunners. (R. 1747). If you were in the forward truck, you don’t just swing your gun around and start firing behind you. You have other (inaudible), so you don’t ever want to turn around and shoot back (inaudible) because you might hit them (inaudible). Yes, when I say you have to trust the gunners then, it’s always gunners that protect the convoy then if they’re being attacked from one direction or the other. I know Victoria. I met her in AT back in ‘09. I introduced her to Daniel. Victoria and I were friends. They met at training. (R. 1748). As long as I’ve known Daniel, he’s very dependable. Good friend. I used to hang out with Daniel and Victoria and Aubriana. I hung out with them five or six times. The last time was in December at Christmas. (R. 1749). They came in and sat beside me and my wife and my kids. My kids, automatically, just drew onto Pedraza. Every time I’d see them, she was like right there with Pedraza. The Christmas dinner before that, they came in and Bri kind of pulled away from Victoria (inaudible) to get Daniel to let her ride on his shoulders. It was a family dinner for the military. It was always fine. Victoria didn’t seem scared of Daniel. Bri wasn’t scared of him. I would go to battle with Daniel again. (R. 1750). CROSS-EXAMINATION BY MR. DEEN I wasn’t aware that Daniel Pedraza has pled guilty to murdering his ABSTRACT 683 stepdaughter, Aubriana Coke, until now. I just found out a few moments ago. My opinion of him is still the same. LEE NIMMER DIRECT EXAMINATION BY MR. MORLEDGE My name is Lee Temple Nimmer. I’m a part-time police officer for Hamburg Police Department. Daniel is my neighbor, next-door neighbor in my neighborhood. (R. 1751). I moved to the neighborhood in ‘94; and, I believe, Daniel moved there probably ‘95 or 6. I can’t remember exactly what year. He might have been around about eight or nine years old at the time. I’m 48 years old. I live directly behind Daniel’s family. Well, I like young people, young teenagers, or young kids in the neighborhood; I like to take up time with them and talk to them. I have a nice big lot that has course, four-wheelers, motorcycles, weight room. I love to play sports: football, basketball. Have a nice, little basketball slab out there. And that’s how I got to know Daniel because he used to come over there at the house and participate with me and talk with me; and I took up a lot of time with him in talking to him and stuff. I could tell very quickly he was very academically smart and intelligent, and listened real well. I just took up a lot of time around him. (R. 1752). I took a liking to Daniel. Oh, yes, he was a good kid. He listened real well. There were all kinds of kids, you know, black, white, Hispanic, ABSTRACT 684 running around my house. You know, I played basketball with them. Daniel got along with all of them. He wasn’t a problem. As a matter of fact, I had to try to make him get a little tough in basketball with them and bounce around with them, but he did real well with the kids and stuff in the neighborhood. He participated in sports and stuff. In a sense I taught him how to play basketball. In a sense, I did. In a sense, I did. Football, catching footballs. I think we even went fishing once or twice. Fishing, me, him, and another young kid. Yes, he liked to fish. (R. 1753). I have 23 years in the military in the National Guard. I’m a retired disabled veteran. I’m disable from PTSD, bad knee, bad back, sleep apnea. Daniel and I talked a lot about the military. I think he’d see me in the uniform quite a bit from guard drills and stuff over the years; and, you know, I talked about how well I loved serving my country and how much of an honor it was for me to serve my country and stuff. I think every young man should be willing to serve his country and stuff. And we also talked about education; and I think one of the reasons why we talked about that, it was, like, going to school, I said, “Well, the military will pay for that, too, if you want to go to school,” you know. So I think by me talking to him a lot influenced him a lot to get in the military. I consider myself that role model for Daniel. (R. 1754). I mean, I’ve got the utmost respect for him, the highest respect for him. Like ABSTRACT 685 I said, he was a good kid. He wasn’t mouthy; he never did talk back; he always listened; and he adapted real fast to what you were teaching him and telling him to do. I mean, he just was an outstanding kid to me. I think the world of him. Still right now, think the world of him. He’s a good, young man. CROSS-EXAMINATION BY MR. DEEN I think it was last year probably the beginning of spring when I first heard the news of it. I didn’t understand he’d pled guilty to murdering Aubriana. (R. 1755). No, sir, I didn’t know. Well, no, sir, my opinion doesn’t change. I still think he’s a fine, young man. Q. How many kids does he have to kill before it would change your opinion of him –MR. MORLEDGE: Objection, Your Honor. Argumentative. THE COURT: I’m going to allow the question. Cross examination of Lee Nimmer by Mr. Deen continuing: He wouldn’t have to murder any children before it would affect my opinion. Well, I wasn’t there. I don’t know if he murdered someone or not. No, I didn’t know he had been convicted of first degree murder. (R. 1756). MR. MORLEDGE: Your Honor, may I approach? THE COURT: You may. ABSTRACT 686 [Bench conference] MR. MORLEDGE: Your Honor, the only other thing that I have left is the deposition by Melissa Sapp that said –- I thought the state was going to take longer than they did today. THE COURT: The deposition that we took the other day in here, is that what you’re talking about? MR. MORLEDGE: Uh-huh (yes). THE COURT: All right. Because if that is it, if it’s a short one, we’ll put it on, it will be in time for recess because, while we are not doing a guilt phase, I still, before you rest, I want Mr. Pedraza up here. You don’t intend to call him? I’m not encouraging or discouraging -MR. MORLEDGE: Sure. THE COURT: I just need to know for purposes of scheduling. MR. MORLEDGE: Sure. (R. 1757). And I understand completely. Mr. Pedraza has not made that decision, Your Honor. THE COURT: Well, then you don’t know whether you have one more witness. MR. MORLEDGE: No, I have more witnesses tomorrow. They couldn’t be here today. THE COURT: That’s fine. Well, put on your deposition and you –- it goes without ABSTRACT 687 saying that you-all will have to make up –-or he will have to make up his mind sooner than later. Is that deposition ready to be shown? MR. MORLEDGE: I think it is, Your Honor. THE COURT: And that would be the last proof for the day? MR. MORLEDGE: Yes, sir. THE COURT: Very well. {Open court} THE COURT: Ladies and gentlemen of the jury, for today, at least, it will just be one more witness; and that witness will be presented by a video deposition I presided over, oh, about a week ago of a jailer from the Crossett jail where Mr. Pedraza has been. It’s only about a ten-minute deposition. The reason it’s done by deposition is she was unavailable for today, so her testimony was taken. (R. 1758). And then we will recess for the day. There will be a few more witnesses, maybe four more, put on by the defense tomorrow. We’ll see if the prosecution has any rebuttal and then the case will be submitted to you. I slipped into that jargon: “the case will go to you.” It’ll be submitted. In any event, I’ll let you-all set up your equipment and we’ll go from there. (Video Deposition of Melissa Sapp Shown to Jury) (Defendant’s Exhibit No. 21 (R. 2240) is admitted into evidence without objection.) ABSTRACT 688 THE COURT: I’m sure she’s got that. Normally, a CD is simply given to the court reporter and she can use that to transcribe from later instead of having to –COURT REPORTER: I’ve already transcribed it. THE COURT: She’s already transcribed it. Good. That’s right. All right, that’s the last witness for today. Again, I admonish you because I’m required to, not that you’d forget: Do not discuss this case among yourselves or with others until this case is finally submitted to you. (R. 1759). Their opinions would be of no value anyway; they’ve not seen or heard the witnesses from the witness stand, so in any event, with that said –-I just, inadvertently the other day, I always take the jury out through that door and then down the hallway. That way everyone avoids eye contact in the courtroom with any of the spectators or sides out there; and that’s the reason we do it that way. So this Court stands in recess until nine o’clock in the morning. I’ll see you-all a little bit before nine. THE BAILIFF: All rise. [Jury retires for the day.] THE COURT: We’re back on the record just briefly. Mr. Deen, I know the state traditionally submits a set of instructions and I would ask that you do so here. There won’t be many. And if you-all would confer with Mr. Deen --get your set. I doubt ABSTRACT 689 that there will be any dispute, but I see no need at this point to take any instructions other than the pattern instructions. But if you-all would confer about 8:15, 8:30 in the morning; and I’ll come on the bench at 8:30 and we’ll get the instructions. I’ll finalize my decision on the instructions. MR. ROSENZWEIG: Your Honor, are we going to do the proffer at some point? (R. 1760). THE COURT: Yes, we are. It’s kind of late in the day. What I’ll do is –-can you be here at 8:15 in the morning? Your proffer shouldn’t take any more than that because they’d have to go over and get her. MR. DEEN: She’s in Crossett, Your Honor. I don’t know if they plan to take her back to Crossett or not. THE COURT: Well, I’ll need to bring her back for the trial, so what I’m going to do is I’m going to prepare a transport order, just a simple, one-sentence transport order, and I’ll sign it before I leave. And if you-all would go get her in the morning in time to be here at 8:15 for the proffer to be made. I’ll make sure she’s here. I had forgotten she had gone back to Crossett or I probably would have –MR. DEEN: She may still be here now, I don’t know –THE DEPUTY: She’s at the jail now. THE COURT: She is? ABSTRACT 690 THE DEPUTY: Yes, sir. THE COURT: Had you-all planned on taking her back to –THE DEPUTY: Yes, sir. (R. 1761). We were not going to house them in the same jail. THE COURT: All right, bring her over now. Save y’all running down there in the morning. THE DEPUTY: Okay. THE COURT: We’re in recess for –- It’ll take them about ten minutes and she’ll be over here. This is simply giving the defense the ability to –- I’ve forgotten what the proffer is –-anyway, it doesn’t matter. I’ll be off the bench for about ten minutes. When she gets here, we’ll make the proffer. (Break) THE COURT: Mrs. Pedraza, let the record reflect, has already been sworn, still under oath. MR. ROSENZWEIG: Thank you. THE COURT: Go ahead. VICTORIA PEDRAZA EXAMINATION BY MR. ROSENZWEIG In my March 2nd statement I told the police that I felt that Daniel had PTSD. (R. ABSTRACT 691 1762). I’m aware it is short for Post Traumatic Stress Disorder. It was an assumption of mine, yes. No, I’m not a doctor. I assumed he had PTSD, that was my only answer for the way he had acted towards Aubriana and I. When I say, “the way he had acted,” and the abuse we suffered from him. Daniel and I had talked about getting help. He mentioned PTSD to me first. (R. 1763). Q. While I have you here, let me ask you another question or so: There are a number of bruises that the doctor saw on her. Let me back up. Did you discipline Aubriana physically at all –MR. PURYEAR: Your Honor –THE COURT: You’re out of your proffer. MR. PURYEAR: I’m sorry, that goes beyond the proffer. THE COURT: That goes beyond the proffer. Now, that doesn’t mean you can’t call her as your own witness. MR. ROSENZWEIG: Right. I understand. THE COURT: But you need to put a subpoena on her. Do you have a subpoena on her? MR. ROSENZWEIG: No, I don’t have one, but I would ask that she be retained just in case. THE COURT: Only if you tell me you’re going to subpoena her. First of all, she’s ABSTRACT 692 got to go back to Crossett; and she’s incarcerated, so really, I don’t have to say retain her. You make up your mind if you want a subpoena on her, but you’ll have to get it out and get it served and all of that. But, clearly, what you were asking her about bruises is way outside the proffer about PTSD. All right, the proffer is done. (R. 1764). And you may take her on back to Crossett. Sentencing Hearing, Cont’d, June 4, 2013 [Open court, jury not present.] THE COURT: We’re on the record. Counsel is obviously conferring over instructions. I’m going togive them an opportunity to do so. It’s just 25 til nine. We Don’t commence til nine. We’re off the record. (Break) THE COURT: All right, the agreed instructions are: 101, 103, 104, 105, 106, 202. So far, there’s only been one witness –- 203 is agreed. It’s prior conviction being used only for purposes of impeachment. MR. DEEN: That’s the only one I’m aware of. THE COURT: All right. 9101, 9404. Closing instruction. And a verdict form is blank for the sentence. All right. Now, does anyone wish to offer additional instructions that may be disputed? ABSTRACT 693 MR. DEEN: Not from the state. MR. ROSENZWEIG: No. (R. 1765). THE COURT: Then they’re all –MR. ROSENZWEIG: Your Honor, could we make an extra set of copies so we all have a set? THE COURT: Sure. You need them at the podium. MR. ROSENZWEIG: We’ll run down and make a couple of extra copies –THE COURT: Don’t worry about that. Just leave them down there and tell them to bring them up when we have a break. See, they don’t even have to bring them now; I just want to get the instructions done now, so that when we’re concluded with the proof we can go straight to instructions. Tell them to make at least three sets. Defense counsel, I know you will have some additional witnesses. Just give me some idea as to who they are. MR. MORLEDGE: Yes, sir, Your Honor, it’s going to be Luis Mondragon, Father Vic Subb. (R. 1766). Then it’s also going to be Joana Mondragon and Liliana Frisby. And, Your Honor, I’m going to recall Michael Armour just extremely briefly. He was one of the National Guardsmen who testified yesterday. Just very briefly. Just to touch something up. (R. 1767). THE COURT: All right. Now, out of the hearing of the jury, while it’s certainly ABSTRACT 694 mandated if there was a trial on guilt, but we have a plea. Certainly, the state would bring the defendant to the bench, if the jury were in the room, not in this case, and ask about the defendant’s desire to testify in his own behalf, explaining that that would be a personal decision just as is a plea of guilty. And in the rules that decision can only be made by the defendant. While the defendant may receive advice of counsel, in the end that decision is his. Now, at a sentencing phase, there is actually no direct precedent, I believe, on that point. In an abundance of caution though, given the range of punishment here, and given the state hospital report that that had been discussed, according to the defendant, about the possibility of him testifying -– I understand it was perhaps at the guilt stage –- but it would be wise for the Court to find out now if –MR. ROSENZWEIG: Your Honor, I think it’s a little premature right now. THE COURT: Fine. I just want you to know that that question will come. MR. ROSENZWEIG: I understand, Your Honor. (R. 1768). THE COURT: And I think I would wait until the end also. This is my way of alerting you, so you won’t need to take too long to figure it out when the time comes. That’s all. No, I would delay my decision. But you know that’s coming and I’ll have to make a record on it. And probably given the way the courtroom is set up and the proximity of the jury to this bench, I will excuse the jury so that we won’t be ABSTRACT 695 whispering up here and someone in the jury overhear it on such an important point. But I will certainly excuse the jury at that point and you-all make your record on it. And I’ll direct my questions to the defendant and he will have to, you know, make his remarks back to me as to whether or not he wants to do that. The Court is going to take a fifteen-minute recess. When I come back in, the jury will come in behind me and we’ll commence. THE BAILIFF: All rise. (Break) THE COURT: Counsel, I’m informed by the bailiff –- it’s slightly after nine –- that one juror or one of the regular panel is not here yet. The name of that juror -- I asked him –- had it on the list –- is Justin Stell. It is that juror that you mentioned to me yesterday that may be nodding off. (R. 1769). The bailiff also said that he works night shift. MR. DEEN: May explain that. THE COURT: Could very well. And so, I don’t know if he’s arrived in the last two minutes. We have a first alternate. I’m going to ask counsel to confer. In light of both circumstances, I’m, you know, counsel opposite, as to whether or not there is an agreement –- but, of course, I can bring the jury out now, force the issue, and replace him. He’s not here on time. It may be that both counsel, wanting a fair trial, if you ABSTRACT 696 believe that there’s reason that he’s not been able, for an understandable reason, to devote his complete attention to this matter. Do you wish the Court to replace him with the first alternate anyway? MR. DEEN: I don’t recall him saying that in voir dire. THE COURT: No, it didn’t come up in voir dire. It did with some who actually brought it up themselves, you know, and said, “I work nights. I need to be excused.” If I had known that –- I always excuse them if they work nights. I mean, I don’t ask anything else. That’s enough in and of itself. Even if they stayed awake, they may not be alert. Now, this ain’t rocket science. (R. 1770). See if you-all can –-and don’t take that wrong. This is something that your gut should tell you. MR. DEEN: We’re conferring, Your Honor. THE COURT: I understand. Well, let me do this -- may save y’all conferring –- let’s bring in -–bring the jury in and we’ll see if he’s there. THE BAILIFF: All rise. [Jury enters the courtroom.] THE COURT: Very good. You-all may take your seats. Let the record reflect, according to the clock, it’s five after. I’ve got eight after. The juror that sits on the end down there is Justin Stell. We discussed this before you-all came back out, it had been reported to the Court yesterday that he may be nodding off. Of course, if I ever ABSTRACT 697 see that -- I didn’t see it, but if I have reason to believe that, I have the discretion sometimes to replace them with the next alternate. But he’s simply not here today. And it was also explained to me by the bailiff that he works nights, so part of that may be understandable. And if I had known that on the front end, I don’t require people –-don’t want them, really, if they work nights. It’s not that they sometimes can’t stay awake; they may not be able to give their complete attention. And that’s required. (R. 1771). So in this case, who is my first alternate? THE BAILIFF: Your Honor, it’s Faye Lewis. THE COURT: Very good. Ms. Lewis. Counsel, I’m going to replace Mr. Stell with Ms. Lewis. And there you have it. Call your next witness. ETHAN JOHNSON DIRECT EXAMINATION BY MR. LEONARD My name is Ethan Johnson. I am employed at the Crossett Police Department. I’m a jailer. (R. 1772). I have been a jailer since January the 14th. I have known Daniel Pedraza. Since November of 2010. I knew him before I was a jailer. We were in the National Guard together. I am 21. Daniel is older than me. I wasn’t with him in Iraq. I didn’t have any contact with Daniel as far as the National Guard goes. (R. 1773). We went to drill together in the Nation Guard training in Crossett. Whenever I had trouble with something that I was doing, he would come over ABSTRACT 698 and explain everything to me and help me with what I was doing. We were acquaintances. (R. 1774). He helped me with the weapons. I looked up to him. I’ve had contact with him since he’s been in jail. The Crossett jail house mainly misdemeanor people. Daniel mopped the floors and washed clothes. We let him out to do the work around the jail. (R. 1775). I never felt threatened by Daniel while he was in jail. He never seemed upset or angry. I consider Daniel a friend now. I know he pled guilty to first degree murder. That hasn’t changed my opinion of him. CROSS-EXAMINATION BY MR. DEEN No, we don’t allow any little children in the jail. He wouldn’t have any opportunity to beat any children to death while he was in jail. (R. 1776). LUIS MONDRAGON DIRECT EXAMINATION BY MR. MORLEDGE I’m Luis Mondragon. I’m 24 years old. I’m a logger. I operate what’s called a (inaudible) which is a machine that goes in and picks up logs and brings them out and separates the logs, each size log, to load on the truck to make sure that it’s loaded properly (inaudible). I’m the only one doing it. I had to shut that down today. I’ve know Daniel since kindergarten. (R. 1777). Since I can remember, we’ve always been best friends. I met him when I was in kindergarten and I went back to ABSTRACT 699 Mexico and came back when I was a (inaudible). And they assigned me in fourth grade with him; and he was smarter than me because –-I mean, I couldn’t speak the language. I didn’t know how to say I needed to go to the bathroom, or anything like that. He helped me out all through junior high. He helped me with homework by coming home with me, explaining everything to me. Pretty much became my teacher. I probably wouldn’t have made it through school without Daniel. Probably not, because the teacher didn’t have time to explain it to me. It was hard because I couldn’t understand what they were saying. And he came over to my house and really, he explained how everything went, how everything was. I ran track with Daniel for a little while. I ran what is called short distance and he’s always been a distance runner. (R. 1778). Daniel came to my house in elementary and part of junior high after school and played with me. That’s when I really needed his help -- (Inaudible). We’ll always be best friends. I think we always will be. I understand he has pled guilty, I mean, I can understand somebody that makes a mistake. VIC SUBB DIRECT EXAMINATION BY MR. MORLEDGE My name is Vic Subb. (R. 1779). I know Daniel. I was his pastor, I guess, when he first came here to Arkansas back in, I believe, ‘93 until at least 2000. I knew him ABSTRACT 700 after that also. I’ve known him two decades now. Today, I’m a member of the missionary community. I’m a Catholic priest, pastor of three churches: two in Tennessee, one in Kentucky. When I was here in Arkansas, I was pastor of Crossett and Hamburg Catholic churches. When Daniel’s family lived in Crossett -- I lived in Crossett also -- the family initially went to school in Hamburg because it was more –there were more Spanish children, more –it was better there –-so I would take the four children in the morning, I would take them to school for at least the first semester from August to December and –so I got to know all four of the children. (R. 1780). Those children are Joana, Liliana, Herman, and Daniel. I took them to Hamburg because I had a car. Enrique had to work and they didn’t have a car –-they didn’t have much money. I would say that they were poor at times, so they’d asked me, so I did it. I always did –- you know, a lot of people in the area, I would do different things to kind of help them out. Daniel, I believe, was a normal child. He liked to play. I remember him and Liliana used to play a lot together because they were closest in age. He laughed a lot. He was a normal child. His family was a religious family. They came to church every Sunday either to Hamburg or Crossett. In January of 2010, I transferred to Georgia. I stayed in contact with the Pedraza family. With a lot of the families in the area. (R. 1781). The Pedraza family, ABSTRACT 701 I saw them a couple of times, but also they came to visit me in Georgia; and coming back here, I visited –-I guess when Daniel was in the National Guard, he went to Ft. Knox --I was living in Kentucky, so the family came and we went to the graduation service when he got done with his National Guard. I actually attended his basic training graduation at Ft. Knox, Kentucky. After he graduated, I believe he was very excited. He was very proud. The family was proud. It was a moment I just could see he was very much at peace and very happy to serve. He knew he was probably going to go to Iraq. That was pretty much known off the bat; and he was ready to do that. After graduation, (inaudible), one or two days in Hartford. And he was just very happy. I remember contacting Daniel a couple of times by phone call, even after he came back from Iraq, just to give them my prayers. (R. 1782). After, he seemed (inaudible) with where he was going to go and what kind of work he was going to do. He was thinking he was going to go back to either Iraq or Afghanistan. So he was kind of in between, not sure what was going to happen because, you know –-he thought he was going to be called very soon, very quickly. I recognize this picture. Well, it looks like me. It’s also Daniel and Herman. That’s probably back in about, I’d say, six years ago, five years ago.That’s in Hamburg outside their house in Hamburg. That’s after I got transferred. I came back ABSTRACT 702 to visit them. We used to travel with the youth group, and Daniel we would go to the water park and different places when I was here as a priest. Went to the place several times up in Little Rock, at the water park, and did other activities. I remember Daniel helping –-we used to have –-at Thanksgiving, we used to give out food to people in the community. I remember Daniel helping to do that with his family. (R. 1783). Daniel and his family would help out in delivering food with other people too. We’d take Meals on Wheels. It’s like an outreach program. Oh yes, his family was very generous in giving. Their time. More so with their time. Maybe other things, but they were generous with their time, yes. (Defendant’s Exhibit No. 22 (R. 2242) is admitted into evidence without objection.) Direct examination of Vic Subb by Mr. Morledge continuing: I consider Daniel a Christian. Yes, very much esteemed in the Catholic faith. (R. 1784). MICHAEL ARMOUR DIRECT EXAMINATION BY MR. MORLEDGE I’m Sgt. Michael Armour. I was here yesterday testifying. I remember Sgt. Dye’s testimony about mortar fire when we first arrived. (R. 1785). It was a scary and stressful situation. For the first time, me and Pedraza jumped off the truck, as soon as our boots hit the ground, we had rounds flying in. So as soon as we got off, we had ABSTRACT 703 to run. We kept getting shelled for the first four or five months we were there. It never got easy. (R. 1786). It’s not something I like to talk about. Together with our squadron (inaudible) over two hundred missions. A mission is when you go out and escort the U.N. dignitaries in the Green Zone and outside of the Green Zone. I took sniper fire once or twice. The first time, me and Pedraza were out on a mission, he ran (inaudible) and when we came through the U.N., we staged (inaudible). And I stood up to stretch my legs. As soon as I stood up, I heard a shot fire, so I jumped down and I scanned my area. The second time, it flew over my head and over his head about (inaudible) in front of us. It hit like a storage, what we call a (inaudible). Yes, I was a gunner on top of a humvee. (R. 1787). It’s like standing through a sunroof holding a gun. It was real scary. CROSS-EXAMINATION BY MR. DEEN In our squadron, there was about 16 to 20 people. The greater unit beyond that is the battalion. Q. Do you know any of those guys that came back from Iraq –- MR. MORLEDGE: Objection, Your Honor. It’s going to call for speculation. MR. DEEN: No, I’m asking personal knowledge. THE COURT: All right. Go ahead. MR. DEEN: I’m asking for personal knowledge. ABSTRACT 704 THE COURT: Very good. (R. 1788). Cross examination of Sgt. Michael Armour by Mr. Deen continuing: Of my personal knowledge I don’t know of any of the guys in my battalion who murdered a child when they got back to the states. I have children. Q. Did you murder any of your children since you got back to the States? A. (No response.) THE COURT: Now, that’s -- I will stop on my own, Mr. Deen. MR. DEEN: That’s what defense offered apparently. THE COURT: Okay. It’s gone okay so far. MR. DEEN: That’s the defense offered. (R. 1789). JOANA MONDRAGON DIRECT EXAMINATION BY MR. MORLEDGE My name is Joana Mondragon. Daniel is my brother. It is myself, Herman, Lily, Daniel, and Alondra. I’m the oldest. I am 33; my brother, Herman, is 30; Lily is 25; and Daniel is 24; and Alondra is 15. We immigrated from Mexico. (R. 1790). Daniel lived in Mexico for a time. Until he was about three years old probably. Two and a half, three. Living in Mexico, well, it’s a different country and it’s a whole lot different story than here. We lived in a little house outside of Mexico City. When you’re ABSTRACT 705 talking like a house, you imagine a kitchen, bathroom. We didn’t have that. We just lived in a one small room, which we had our beds, a little burner stove with two burners. We didn’t have city water. We didn’t have closets. We didn’t have no inside bathrooms to take a shower or commodes. No flushing commodes. So it’s a different story than here. There were no floors. At the beginning, it was just dirt. We had to wet it so it won’t be dusty. There was no floors, and no color, no siding on the walls. (R. 1791). Just a brick house. Well, you have to buy the water. You buy it here by the gallons when you go to the store. There, people come in with big old tank, like a car, and they would sell it by the liters. So if you have enough money to buy enough water either to cook, drink, or take a shower. We didn’t have no shower so we had to put it in a bucket. My mother would have to warm up it sometimes outside with wood and make a fire and boil the water to warm it up. So if we didn’t have enough water, we’d share a bucket (inaudible) with the kids, for two kids, how much water we had. We had to do laundry with that water. Sometimes we had to get water out of the rain. When we get rain, put the buckets to get filled up. And then at my grandma’s house, they’re still doing it. We didn’t have no city water. We had to boil the water because a lot of people would get sick with the stomach virus, I would call it. We had to boil it or sometimes just put little drops of bleach to be a little safe. As I remember Daniel got ABSTRACT 706 sick after drinking the water. We all did. (R. 1792). Like I said, we didn’t have no inside bathroom. In the back of the house, they would dig a big hole deep enough, put plywood on the top to pour concrete, and you just leave a little hole with bricks. They would stand it up and that’s where you sit. There’s no flushing to do it, you know, like here. When it gets full, you have to cover it up with dirt. Before you put the concrete, it would have like plywood, so you would be scared you would fall down because you could see the hole, so it would be pieces of boards for –-you just have to be careful. Yes, this was outside. Yeah, Daniel was potty trained which was so difficult because he would be so scared. Imagine, I was grown and I was scared. I remember he used to cry, cry, cry to be potty trained because he was scared to go in there. So I understand because I remember one time we had a little dog and she had puppies; and one of the puppies fell in the hole, which we couldn’t get it out because it was too deep. (R. 1793). And we heard the puppy crying and crying for days until she died. So I guess he heard it and he knew if you fell down, there would be no way to get up. It wasn’t safe in Mexico. I remember when Daniel and Lily got kidnaped. Lily was probably, like, four, four years old, and Daniel was younger. He was a late walker. He didn’t walk like a normal kid, you know, what I would call a normal kid because my two children walked when they were nine months old, or a year old. And ABSTRACT 707 he was a late walker, so I was doing some laundry, which we do it outside by hand in buckets on a little piece of concrete; and my door got shut with the wind. I was nine or ten. Probably ten. I was watching Lily and Daniel because my mother was gone with my brother, Herman, to take him –-when he was a kid, he was sick. He had pneumonia or cholic. Yes, the wind shut the door. And I was in charge of Lily and Daniel. (R. 1794). So I was doing the laundry, like I said, outside because I was in charge of them, so I told Lily, “Just watch Daniel and do not go outside,” which we didn’t have no air conditioner or heaters, so it was kind of hot in the house. So I had both doors open so the wind would blow in and it would be warmer inside. So the wind blowed the back door and shut it, and she was so little she couldn’t open the door. Doors in Mexico are not like these made out of wood. It was heavy metal, so there was no way –-if the kids would put the fingers and the wind blow it, it would just cut your finger. It was solid metal. Well, the wind blowed the door and shut it, so I told Lily, “Watch Daniel. Do not try to open the door. You can’t open it.” So I went around the house through the neighbor’s yard –-well, patio. It’s not a yard, grass, and everything. I went around. It didn’t take me more than two minutes just to go around the house, go to the front, which I knew the front door was open because the wind was coming from the front door. They were not there. They were not there. I kept looking and I kept looking; and my mom came up. The neighbor, she started ABSTRACT 708 helping us trying to find them, and we couldn’t find them. It was around six or seven. It was dark. We would try to look for them, but it was getting dark and we knew it would be getting pretty late and we’d never find them. (R. 1795). So my mother and everybody was calling trying to find my little brother and little sister. We ended up finding them in the city at the city hall, you know, the police department. Somebody dropped them off, a lady. I guess, she took them. But they didn’t have any questions to her, which they were just so scared and crying, so all we didn’t care about asking questions. We were happy that we found my brother and my sister. We didn’t have no vehicles and nobody around our house had any transportation either, so we had to walk to the police station. And by walking, it took us like three hours, three hours. We went there to report that they were gone. Just luckily they were there. I didn’t go see a doctor until I got married. I guess it’s a family tradition, it comes through grandmas and grandpas. First of all, we couldn’t afford to go to a doctor; second of all, we believe in home remedies, which I still do with my 15-yearold daughter and my 8-year-old son. And I do it every day. (R. 1796). When they get sick, I just take care of them. Regular cold, stomachache, throwing up, diarrhea. We’ve got several things that we do. Yes, we used tomatoes. Tomatoes, you can use it as two different ways. What we do, we use it as a hot patch, you know. You slice ABSTRACT 709 it, put it, like, in a cloth or something so it will be against your skin. Wherever you have a swell, you know, if you even get bit by a wasp, or bee, or something, and you start swelling up, you put it cold for the swelling. And when, like, your nerves are getting cramped or your muscles, I mean. You put it hot. You kind of warm it up, put it in a cloth, and you put it on. That helps to relieve. The egg, you can use it several ways, which I’ve used it myself with my kid. And myself too. I use it on me and my husband. Like, when my son was little, a lot of people thought that he was a girl because –-I guess because they thought he was so cute. I said, “Well, he’s a boy.” (R. 1797). And they would say, “Oh, he’s so cute, I can’t believe he’s a boy. He looks like a girl.” Yes, I use it because of an upset stomach. My son started throwing up, vomiting, and running fever; and his eyes were shut almost and white stuff started draining. I grab it, go around their arms, their eyes, their stomach, from top to bottom. And then you crack it in a bowl and put it in a glass of water. We believe that it helps –-and it does, to me, I mean, I don’t know other people, but we do believe in that. You crack it in the glass of water and you will see around the edge yellow part –-the yoke? Is that what you call it? You’ll see like little white stuff, like, spider webs. You know, the bad stuff from the person. And (inaudible). It helps take away some of that sickness. ABSTRACT 710 We decided to come to the United States. Well, like I said, we have a better life now, but when we were kids, it was so hard for my mother to even feed us raising us in Mexico. (R. 1798). You know, my uncle, my cousin, my mom’s cousins, and all of them, they started coming to America. We didn’t have enough to eat in Mexico. That’s one of the reasons my mom got the decision enough to come to America. Enrique is my father. He’ll come to America and be a year, two years here, send us money. But, I guess, there was not always a job for him, so he would –-hundred or two hundred dollars, maybe twice every two or three months, which wasn’t enough. So my mother, while she was taking care of us, and she was alone, she would ask from our neighbors to borrow some food, or whatever, whatever they had left. Or I would go to the town, you know, which I had to walk several hours to get there. Sometimes Daniel would go with me. But he was too young that I would rather not take him. That was the reason. I was the oldest, so I would just go by myself and get whatever I could get to eat, you know. (R. 1799). She would have a few dollars left --Mexican money -- not dollars, give it to me and just tell me what was the important things to get, but it wasn’t enough, so I would see like a market, an outside market, where they put all the vegetables and stuff on the tables. People will come and grab whatever they want to take home. And whatever –-if you grab –-and (inaudible) oranges, tomatoes on the ground, they would fall on the floor, on the ground, dirt; and ABSTRACT 711 nobody would pick them up because people wouldn’t buy them after they were kind of mushy. They won’t buy them. So, to me, not having enough money to buy enough for all the family, I would end up sometimes picking them up and I would take them home. Most of the time, my mom would ask me, “Do you have enough?” “Oh, they gave it to me.” Or I would tell her, you know, “I got them” because they were just laying on the ground, so I just picked them up and took them home. There were several nights we would go hungry. That is one of the reasons why we left. Well, it’s not like you take a plane and be here, you know. We have to take a bus and the bus would bring us to the border, to the Mexican and American border. (R. 1800). You have to find somebody –-it was three days and nights, or three nights and two days. Anyway. In a bus, which being kids, we were tired by the time we got to the border. My mom had to find somebody there. There were a lot of people who used to ask you if you wanted to cross the border. Well, she find somebody and tried to cross twice until we made it. Crossing wasn’t easy. Lily and Daniel were so little that we had to walk several hours, day and night, to try to cross the border, which is scary for us, because you see the border patrol. And we got stopped. And she goes back to Mexico and tried again. I remember telling my mom, “Go back home, you know, go back to Mexico.” Just by thinking how we were living, you know, and not have enough food or –-you have to pay for school, uniforms, shoes, and everything. ABSTRACT 712 Here, you get the books free, you just go to school. Not there. You have to pay. We did not have a lot of clothes. We had to wash them, hang them to dry, and then put them back on the next day for school. Shoes. We didn’t have three or four pair, like my kids have –-sometimes my daughter has twenty pairs of shoes. No, once or twice a year, you get a pair of shoes. You had to make them last. (R. 1801). At the beginning, the Boarder Control wanted us to spread out because adults have to go one way and kids have to go a different way, but we were crying and crying. We weren’t with my mother and being scared by the border patrol. I was scared of police, you know. We were just crying and crying; and I guess they feel sorry for us (inaudible) with my mother. And that’s when I kept telling her, “Go back.” But she decided to try again (inaudible) cross the border again with us. (Inaudible), I would call it. Tried again and that’s when we made it. Enrique was working in Hamburg. We finally met up with him. I knew Daniel was in the National Guard. When he came back from Iraq he lived with me for a time. He came back from Iraq, he wanted to spend time with my kids, my family, which my boy –- he’s eight years old. He was younger. Little kids like to play. And he loved my kids. (R. 1802). He used to spend time with me like three or four months when he came back from Iraq. Daniel discussed Iraq with me. There was one time my husband was at work; ABSTRACT 713 and my son, he always said that he wanted to be like Uncle Daniel because he saw him dressed up in uniform. He always tells my husband that he wants to be like Uncle Daniel. We were watching a movie with -–we like action movies. And there was a movie they were playing on TV that my son liked it so well, and started shooting, you know --I don’t remember what was the point. I think they got kidnaped by somebody and they were trying to –-and I remember Daniel laying on my lap and he said, “You know, I was like that, so scared that I would end up being killed because it was so scary being there. And it could have been my life.” Said he was so scared, but I was so glad that he come back alive because I always prayed and prayed. (R. 1803). When I found out that he went to Iraq, that they had shipped him back there, that he will come back because you watch the news and you see soldiers come without an arm, without a foot, or dead. I love my brother very much. I mean, now that I have my two children, I see the difference between the love of a brother and the love of a child. But my child is the same thing to my brother. I love my brother and I always will love him. I fed him, fed his bottle, changed diapers. He was like a kid to me. I remember when he was born and being there with him when he was sick, watching him. I will always love him. No matter what. I will be there for him. CROSS-EXAMINATION BY MR. DEEN Q. Perhaps like Victoria loved Aubriana? ABSTRACT 714 THE COURT: If you would come up to the podium. MR. DEEN: (Continuing) Q. Perhaps like Victoria loved Aubriana? MR. MORLEDGE: Objection, Your Honor. (R. 1804). Speculation. THE COURT: I’m going to sustain that objection. MR. DEEN: I’ll ask her if she knows, Your Honor. Perhaps she doesn’t know, like counsel said. Cross examination of Joana Mondragon by Mr. Deen continuing: I didn’t spend any time with her because I have my two children, and I work in Lake Village; and I’m the type person that I respect everybody’s decision, their life, because I like my marriage to be respected the way I respect others. I didn’t have any relationship with Victoria and Aubriana. LILIANA FRISBY DIRECT EXAMINATION BY MR. MORLEDGE My name is Liliana Frisby. (R. 1805). Daniel is my brother. I heard my sister testify about home remedies. Well, I use them on my daughter and myself, too, like the egg. I use it, like, if they vomit or they have a stomachache, we rub in it on them, you know, like she said, put it in a glass and stuff. Tomatoes. Like, when we have inflammation, or something like that, you warm them up, put them on there. That is ABSTRACT 715 a common practice in Mexico. The first time I went to a doctor was probably when I got married. We just didn’t have money to go. Daniel is a very good artist. (R. 1806). I recognize these drawings. The first one is a lion. Our mascot of the high school we graduated from. This is Christ praying. He’s dedicated to his religion. (R. 1807). The next one, it says, “Raza Unida.” It means “united people.” And on the bottom it says “United We Stand,” and it has the American flag and the eagle, which represents him loving his country, but also remembering he’s Mexican. The last one is of goldfish, which he has some as his pets. He has about thirty goldfish at home. It represents his love for them. He loves to draw. Daniel and I are very close. He’s like my twin brother. He joined the military because he loved the military and his country. I heard Father Vic talk about Daniel’s graduation. I was there and took pictures. (R. 1808). That was from when he graduated from Ft. Knox from his training. I took this. He was very excited about graduating. This was his pictures he took while he was at Ft. Knox. This was one of his platoon that he was training with at Ft. Knox. He knew he was shipping out to Iraq. We were very close. When Daniel came back from Iraq he was arrested for two ABSTRACT 716 DWIs. He didn’t have a drinking problem before. I got a call from Daniel in the middle of the night back in October of 2011. (R. 1809). He called me, I guess, he was trying to tell me that he was going to commit suicide. He wanted me to tell my parents that he loved them very much; and he wanted to let me know that he loved me, too, that he was very sorry for what he was going to do. But I talked to him and talked him out of it, and I was telling him there was something –he could find a better –he could overcome whatever he was going through and there was no need to do that because he was really going to hurt our family –snd later, whenever he came back, I saw him. I noticed that he had little cuts on his left arm. I asked him about it and he said that was from when he tried to commit suicide. On my wrist is a bracelet he made for me and my husband, and my kid. He started making them when he came back from Iraq to make a little extra money. That’s when he learned how to make them and he was making them and selling them. (R. 1810). The milk and green leaves Carolyn Stuard talked is something we feed our babies whenever they drink spoiled milk or when the milk ain’t no good, you know, they start throwing up or they have diarrhea; and we boil the milk with –-those are called mint leaves. We boil it together and then we cool it down and feed it to the baby. It helps settle their stomach. ABSTRACT 717 I love my brother with all my heart. I love him the same way and I always will. MR. MORLEDGE: Give me one second, Your Honor. Your Honor, may we approach at this time? THE COURT: Sure. [Bench conference] MR. ROSENZWEIG: We have no more testimony to present and we wanted to alert you because I assume you’d want to recess the jury and –THE COURT: I want to give the jury then a recess and we’ll take up –-I’ll give them a recess and that way we can do that -- and I’ll bring them back in. (R. 1811). By the way -- assuming that you’re not going to have any more witnesses, do you have any –-will you have any? MR. DEEN: No, sir. THE COURT: Very good. [Open court] THE COURT: At this time, the Court, we’re getting close to the conclusion. The Court is going to give you a twenty-minute recess -- and we need to do something here in chambers at the bench -- and then the Court will bring you back in. I anticipate at that time, I will likely be reading you the instructions and you will have the case. ABSTRACT 718 Do not discuss this case among yourselves or with others. THE BAILIFF: All rise. [Jury exits the courtroom.] (Break) [Open court, jury not present.] THE COURT: All right, we’re back on the record. Everyone can stay where they are. Mr. Pedraza, your attorneys at the bench advised the Court that we’re at the point now where you have to decide whether or not you want to testify; and that’s a decision that can only be made by you. (R. 1812). And I need to have that on the record and address you personally on that. The state cannot call you. And, though, this is not the guilt or innocence phase –- that has passed –- I would further instruct the state that they cannot comment on that in their closing remarks. But, first of all, let me get on the record, so there won’t be any dispute about it later, what is counsel’s advice to their client, Mr. Pedraza. MR. MORLEDGE: Your Honor, may we approach? THE COURT: Well –MR. ROSENZWEIG: Can we actually have, like, two minutes right here? THE COURT: Yeah, because I don’t want it to come up later that you advised him to do it and he didn’t. You-all may not be on the same page, but I don’t want later ABSTRACT 719 there to be some –- him saying one thing and you saying another -- so that’s the reason I’m asking it now. MR. ROSENZWEIG: Your Honor –THE COURT: I’ll give you two minutes. But you knew I was going to ask that. (Break) MR. ROSENZWEIG: May we do this –THE COURT: If Mr. Pedraza’s with you. MR. ROSENZWEIG: Yes. (R. 1813). [Bench conference] THE COURT: All right, are you advising him to or not? MR. ROSENZWEIG: Our unanimous advice is to not testify. THE COURT: Now, that is your attorney’s advice. You know, you’ve had some time to think about it, Mr. Pedraza, and there’s always pluses and minuses. I have no opinion and it wouldn’t be proper for me to give it anyway, but is your decision to testify or not testify? MR. PEDRAZA: Not testify, Your Honor. THE COURT: Let’s leave it at that. [Open court, jury not present] THE COURT: The Court will be in recess for about another ten –- Because I know ABSTRACT 720 y’all have been here, some of you may wish to go to the bathroom or something. I’ll tell the jury it’ll be at least another fifteen minutes. If you would be back in the courtroom at 10:25, according to that clock, then I’ll read the instructions. The Court’s in recess. THE BAILIFF: All rise. (Break) [Bench conference] THE COURT: We’re on the record. (R. 1814). My reporter thought you said you wanted to testify and so did my case coordinator. I thought I heard you say you did not; is that right? MR. PEDRAZA: I do not want to testify. THE COURT: Now we’ve got it clear. [Open court, jury present] THE COURT: You may have a seat. All right, ladies and gentlemen of the jury, this is how we will proceed. I’m going to read you the instructions that are to govern your deliberations. Following those instructions, the attorneys will make closing arguments to you and then you’ll have the case and retire to deliberate. You don’t need to make notes. I’m going to give you a copy of these instructions to carry to the jury room with you. ABSTRACT 721 JURY INSTRUCTIONS THE COURT: The faithful performance of your duties as jurors is essential to the administration of justice. It is my duty as judge to inform you of the law applicable to this case by these instructions, and it is your duty to accept and follow them as a whole, not singling out one instruction to the exclusion of others. (R. 1815). You should not consider any rule of law with which you may be familiar unless it is included in my instructions. It is your duty to determine the facts from the evidence produced in this trial. You are to apply the law as contained in these instructions to the facts and render your verdict upon the evidence and the law. You should not permit sympathy, prejudice, or like or dislike of any party in this action or of any attorney to influence your findings in this case. In deciding the issues you should consider the testimony of the witnesses and the exhibits received in evidence. The introduction of evidence in court is governed by law. You should accept without question my rulings as to the admissibility or rejection of evidence, drawing no inferences that by these rulings I have in any way indicated my views on the merits of the case. Opening statements, remarks during the trial, and closing arguments of attorneys are not evidence but are made only to help you in understanding the ABSTRACT 722 evidence and applicable law. Any argument, statements, or remarks of attorneys having no basis in the evidence should be disregarded by you. (R. 1816). I have not intended by anything I have said or done, or by any questions that I may have asked, to intimate or suggest to you what you should find to be the facts, or that I believe or disbelieve any witness who has testified in this matter. If anything I have said or done has seemed to so indicate, you will disregard it. In considering the evidence in this case you are not required to set aside your common knowledge, but you have a right to consider all the evidence in light of your own observations and experiences in the affairs of life. You are the sole judges of the weight of the evidence and the credibility of the witnesses. In determining the credibility of any witness and the weight to be given his or her testimony, you may take into consideration the witness’ demeanor while on the witness stand, any prejudice for or against the party, means of acquiring knowledge concerning any matter to which they testified, any interest the witness may have in the outcome of the case, the consistency or inconsistency of his testimony, its reasonableness or unreasonableness, and any other fact or circumstance tending to shed light upon the truth or falsity of his testimony. An expert witness is a person who has special knowledge, skill, experience, training, or education on the subject to which his or her testimony relates. (R. 1817). ABSTRACT 723 An expert witness may give an opinion on questions in controversy. You may consider his opinion in light of his qualifications and credibility, the reasons given for the opinion, and the facts or other matters upon which his opinion is based. You are not bound to accept an expert opinion as conclusive, but should give it whatever weight you think it should have. You may disregard any opinion testimony if you find it to be unreasonable. A fact in dispute may be proved by circumstantial evidence as well as by direct evidence. A fact is established by direct evidence when, for example, it is proved by witnesses who testify to what they saw, heard, or experienced. A fact is established by circumstantial evidence when its existence can be reasonably inferred from other facts proved in the case. However, circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion. (R. 1818). Evidence that a witness previously made a statement which is inconsistent with his or her testimony at the trial may be considered by you for the purpose of judging the credibility of the witness but may not be considered by you as evidence of the truth of the matter set forth in that statement. Evidence that a witness has been previously convicted of a crime may be considered by you for the purpose of judging the credibility of the witness. ABSTRACT 724 Daniel Pedraza has pled guilty to first degree murder, which is punishable by imprisonment in the department of correction for not less than 10 years, nor more than 40 years, or for life. In your deliberations on the sentence to be imposed, you may consider the possibility that Daniel Pedraza will be paroled. Eligibility for parole is as follows: First degree murder is punishable by life imprisonment or a term of years. Persons under a sentence of life imprisonment are not eligible for parole. If you sentence Daniel Pedraza to imprisonment for a term of years, he will be eligible for parole after he serves seventy percent (70%) of the term you impose. This percentage of imprisonment will not be reduced by the earning of meritorious good time during his imprisonment. (R. 1819). After hearing the arguments of counsel, you will retire to consider and complete the following verdict form: All 12 of you must agree on the verdict, but only the foreperson need sign the verdict form. This is the verdict form and I’ll put it on top. Reads as follows: “FOR THE OFFENSE OF FIRST DEGREE MURDER, THE JURY FIXES DANIEL PEDRAZA’S SENTENCE AT:” and the next sentence says, “A TERM OF” and then there’s a blank; and under that blank it says, “(not less than 10 years nor more than 40 years, or life) IN THE ARKANSAS DEPARTMENT OF ABSTRACT 725 CORRECTION.” CLOSING ARGUMENT BY PROSECUTING ATTORNEY MR. DEEN: Thank you, Your Honor. May it please the Court, ladies and gentlemen, and counsel. I’m going to take things slightly in reverse order. Instead of starting at the beginning as I did in opening statement, I’m going to start at the end of what was presented at this trial. I know that we’re all grateful that others can come to this country and obtain the benefits that we have, for our medical care, for our food, for our utility purposes, housing. And unless you’re a Native American -- some of you are Native Americans -- our ancestors came for a better life, too, a hundred years ago, two hundred years ago, three hundred years ago, however long ago it was, that our ancestors came here. (R. 1820). But what does this have to do with this crime was the question going through my mind while I was listening to the fact that at three years old, Daniel Pedraza lived in a one-room house with a dirt floor without proper plumbing. What does that have to do with this offense? It’s bad. It’s an experience probably shared by millions of people around the world, including a few probably serving this country, in certain areas, but what does it have to do with this offense? Did you hear any testimony from any professionals, any mental health professionals, or others that how that experience, that scarred him somehow, had warped him, had ABSTRACT 726 turned him into something else? No. That was presented to you for one reason, to try to (inaudible), that hopefully one of you would say, “Well, that poor boy. Isn’t that a shame to have to come over here at three years old and get a nice school education at Hamburg, graduate, get the benefits of military. Look at what happened when he was two or three. Well, he needs a break for that, doesn’t he?” No, ladies and gentlemen, he does not. What does it have to do with the case? Nothing. Nothing relevant, nothing logical. Military sergeant. I have the utmost respect for him and the hundreds of thousands of others like him, many of whom did not come home, or came home missing limbs, in our most recent war in Iraq and Afghanistan. (R. 1821). Just like my father and millions of other fathers came back from Viet Nam, thankfully, alive and with arms, and legs, and eyes; like my grandfather and millions of other grandfathers came back from Europe in World War II. Many of them didn’t. Well, what didn’t you hear about that? That’s great that he served. It’s good that he served. We have a volunteer force. It wouldn’t work without people volunteering to serve. What didn’t you hear about that? Was there any testimony that you heard that that experience in the Green Zone, in and around Baghdad, mentally affected him in any way? Did you hear any psychologists come in here and tell that? Did you hear any psychiatrists come in here and tell that, that, Oh, because of this, it makes him do ‘x’ and ‘y’; and certain stimuli that he’s subjected to caused him ABSTRACT 727 to go into a rage and do this and that, you know, because of mental disease, because of Post Traumatic Stress Disorder. If it was true, you would have heard it. If it was true, there would have been psychologists after psychiatrists sitting on that stand telling you about it. The reason you didn’t hear those things is it’s not true. It is false. If the suggestion is because of his service in Iraq that somehow mitigates his torture and murder of Aubriana. (R. 1822). Just like his background in Mexico as a young child, it has nothing to do with this case. It has nothing to do with it. They want you to think it has something to do with it. Poor, poor, poor Daniel. Here’s Aubriana now. Look over this way. Serving our country, a gunner on a humvee. Great. My dad didn’t kill my sister when he got back from Viet Nam; my grandpa didn’t kill my mom. Just like millions and millions of other returning veterans didn’t do that to their loved ones, in this case, a stepdaughter he barely knew, who he has no rights to put hands on to begin with. You don’t lay hands on somebody else’s child. Why did he do what he did? We will never know. I don’t think anyone will ever know. Why in the world did Victoria Pedraza not do what she should have done? I don’t think she can tell you herself. She says because she was terrified of him. I find that to be a pitiful excuse myself. Pitiful. As I pointed out, he can’t be awake 24 hours a day. He’s got to sleep some time. Now, he rigged this system up so that when the baby fell off of her stand-up torture, it would alert him so he’d know to wake up, stand her back ABSTRACT 728 up, or do whatever else he had in mind. The loop’s still there around her waist. No such rigs around Victoria. They slept in the same bed. (R. 1823). I don’t know how light of a sleeper he is to sense she got out of the bed, but I think you know what would happen to most -- I know what the mama of my children would have done. I would have woke up with an icepick sticking out of my eye or my kneecap blown off. Didn’t happen. Should have happened. Didn’t happen. But does that make him any less guilty. Does her dereliction of her duty as a mother, her complete abandonment of her natural god-given role to protect her child, make him any less guilty? No. Does it tend to reduce logically his punishment in any way, the fact that she didn’t do more, much more; or the fact that she was not fortunate enough to have brothers, or a father who was alive who would have attended to that business? I’m sure of that. That result would be different. I suspect he would have learned a valuable lesson. Those men weren’t available that day. They want you to think it does. They want you to think it does. That’s why we had the video (inaudible) WalMart surveillance video of Victoria going to the store buying the baby milk. Oh, my goodness. She didn’t tell anybody at the store all this bad stuff was going on; she didn’t go down to the police station and tell them all this stuff was going on. (R. 1824). She had a cell phone; she didn’t call anybody at the sheriff’s office and tell them this was going on. She didn’t stop a passerby and say this is going on, but she ABSTRACT 729 could have reported it. All this proof. All this proof. She didn’t do any of those things just like she didn’t take physical action to try to stop him when she probably could have, if she would have had the nerve, the courage. But does it lessen his punishment? She’ll get hers a month, two months, three months, whenever it gets reset, her case, for another jury. She’ll get hers then. Five to 20. That’s what the law prescribes for permitting abuse, for allowing somebody to seriously injure or kill your child. Perhaps the law is lenient. Perhaps it should be considerably more. Out of my control. It is 5 to 20 for permitting abuse that results in serious physical injury or death. We’ll let that jury worry about her. They’ll do what they see fit just as you’re going to do what you see fit to this defendant. So of the things that you have heard from the defendant, the three things you have heard from the defendant –MR. MORLEDGE: Objection, Your Honor. May we approach? [Bench conference] (R. 1825). MR. MORLEDGE: Your Honor, the defendant has not testified, so (inaudible) –THE COURT: He hasn’t said what was heard from the defendant –- the three things we’ve heard from the defendant; and you were going to go on and say, what? MR. DEEN: First, that the man had pled guilty. Although they didn’t hear that, those are words that he said. ABSTRACT 730 THE COURT: He could say he pled guilty. MR. DEEN: That’s not a secret. THE COURT: Right. Certainly. I’m just vetting it before –MR. DEEN: The man has pled guilty to first degree murder for the death of Aubriana Coke –THE COURT: Right. MR. DEEN: –- wants to put forth three things to lessen his punishment: his background in poverty, his military service, and the fact that the mother of the child (inaudible) and then go from there. THE COURT: All right. I’ve got it. MR. ROSENZWEIG: Your Honor –THE COURT: What? (R. 1826). MR. ROSENZWEIG: Your Honor, the problem is he said “the defendant,” and that’s a reference to the defendant’s –- A reference to the fact the defendant did not testify. He didn’t say the defendants, he said “the defendant.” THE COURT: Right. MR. ROSENZWEIG: And, Your Honor, I think the distinction is crucial. And I think a mistrial is appropriate, Your Honor. THE COURT: Mistrial is denied for these reasons: number one, you-all got up ABSTRACT 731 before he said anything further; number two, the defendant has –-and remember the instruction. The jury may consider whatever proof was said or done before as well as here. And the defendant has admitted that he’s guilty, so in a very low sense –well, the defendant has said something; and Mr. Deen is entitled to say that the defendant said he was guilty. Now, if he wants to soften the other or rephrase the other, that it’s the defense’s position that mitigation –but (inaudible) in fact the instructions so read that they may consider that. MR. ROSENZWEIG: Your Honor, without waiving the motion for mistrial; and, although, we believe that the admonition is insufficient, we will ask that the Court admonish the jury. (R. 1827). THE COURT: Well, if you want me to admonish the jury, you have to submit to me a proper admonishment. So submit it right now. Tell me what it should be. MR. ROSENZWEIG: It should say that the defendant has no obligation to personally testify at this stage of the proceedings and the Court –- any reference by the prosecutor having implied such –- that he said something other than he had pled guilty, should be disregarded -- (Talking over) personally, as opposed to –THE COURT: Did you hear that, Mr. Deen? MR. DEEN: Yes, sir. ABSTRACT 732 THE COURT: Okay. Do you have any response? MR. DEEN: There’s been no error committed that would require an admonition. The defendant did say something in this case; he opened his mouth and said he was guilty of first degree murder and beating this child –THE COURT: The Court will instruct the jury that the defendant has pled guilty to first degree murder; that the defendant is not obliged to testify -- I’ll take part of your admonition and modify it –- to testify at this stage of the proceeding. All right, that’s going to be what I tell them. (R. 1828). Thank you. [Open court] THE COURT: All right, after conferring with counsel, the Court is simply going to tell the jury that while the defendant has admitted his guilt to this Court at the plea hearing Saturday afternoon to the charge of first degree murder, he is not obliged to testify under no obligation, to testify at the sentencing hearing. You may proceed, Mr. Deen. MR. DEEN: Thank you, Your Honor. Admitted to knowingly causing the death of Aubriana Coke. The three things put forth by the defendant, Daniel Pedraza: poor background; military service; the fact he’s a good artist; the fact he doesn’t go in rages inside the jail cells; controls most of his anger when he needs to, when he doesn’t have any choice in the matter, when there’s not women or children to beat up ABSTRACT 733 on. Victoria Pedraza didn’t beat her own self up. Bruises all over her back, on her legs, arms. Beat her bare bottom until it turned to black in front of her daughter, who he made stand there and watch while he had her over the bed and beat her with a belt, her naked bottom. She didn’t do it to herself. (R. 1829). It’s still not sufficient justification for what she should have done, but it happened, an explanation of some kind, however weak it may be. What was. What could have been. I think they said the baby was about six months old when this was taken at the grandmother’s house. What a beautiful young mother and a beautiful young child with so much promise. (Inaudible) dead, mama’s going to prison, and (inaudible). This beautiful woman and this gift that was given her, her mother’s only grandchild, that she’s had or will ever have (inaudible). Gone forever. Typically, in this part of the case we’re talking about guilt. Did he do this? Did he do that? What’s the proof? Here, it’s about mitigating --“Mitigation” meaning making it lighter, making it lighter. How, how, how, how can you mitigate? How? What produced this? What mitigation in this world can there be that produced this? It’s an abomination. From her head to her toes. True enough, as the medical examiner told you, the lone wound, the one sharp blow to her abdomen, is the one that ruptured ABSTRACT 734 the duodenum and the one that resulted in her death. All the others, horrific as they are, would by themselves not likely produce that outcome. (R. 1830). And so there she lay with the bile and the acid pouring into her abdominal cavity, waiting to die, the question how long, and under what level of pain, waiting to die. What were his words to Victoria at that point? His words of comfort, “If that little bitch dies, I might as well kill you too.” That’s the regard he had for this child. “If that little bitch dies, I might as well kill you too.” You know, it’s apt somewhat by his decision to make them eat with their plates on the floor like animals, like dogs, because that’s how he treated them. He treated them like dogs. So, really, it’s a good analogy. You can go to the penitentiary for treating dogs like this, much less a human child. Over and over again, these disciplinary procedures on a two-year-old girl. “Timeout. Stand here. No, you’re not saying it right. You didn’t say it right. You can’t have milk. You can’t have chocolate milk. Get in the chair position.” I don’t know how long I could sit in the chair position. I’m fat and out of shape. I would say it wouldn’t be too long I could sit in it. How long could a baby sit in it? “Get down in the pushup position, bitch.” Belittling her mother. (R. 1831). And what’s the worst –- I don’t know if this is the worst or not -- psychologically the worst -- she had no earthly idea why she was being treated this way. No idea. In her world, “What hell have I been introduced to?” She ABSTRACT 735 had no comprehension what was going on. She knew enough to say to comfort her mother, “Don’t cry. Don’t cry, mama.”She knew that. It’d only make it worse. Water torture. Water torture. Did you learn that in Iraq? Putting a two-year-old baby’s head under the water, face up, in the bathtub. And that’s where that came from. (Indicating) The medical examiner told us she was cut from the inside of her lip. Of course, the water’s flowing, the water’s flowing. What blood there was is presumably in the bath water and down the drain. He said, if you recall, the medical examiner did, that this was inflicted some time prior to death. And, of course, we know from Victoria’s testimony that his conclusion about that is true, that the water thing was several hours prior to her death; and she lived in, whatever misery she was, almost a whole night. Not quite sure when she died because by the time they decided to call, she was dead. The ER doctor said she had been dead about an hour or two, he estimated. Now, American medicine, we need to get this newsflash out. We’ve missed the whole boat. Eggs, ladies and gentlemen, chicken eggs. (R. 1832). Keep them in the pharmacy aisle. Just rub them over your body. They’ll take all that bad stuff out. Just rub them over your body. Who knew? Who knew? Not just Daniel. His sisters, the whole family. I don’t know who all engaged in the practice. Well, it didn’t work here, did it? Maybe that might have some effect on a cold or something, I don’t ABSTRACT 736 know. It did not work here. So 10 to 40, or life. You’ve heard the judge say seventy percent is parole eligibility –-seventy percent of 10: 7 real years. Seventy percent of 20: 14 real years. Seventy percent of 30: 21 real years. Seventy percent of 40: 28 real years. He was 23 at the time; 28 plus 23 is something –-somebody needs to tell me how much that is. Fifty-three or two. About my age. Is a man my age done with foolishness, if I’m inclined that way? If I’m inclined to be a complete barbarian? Can you (inaudible) yourselves that, that a man in his early fifties has decided that he doesn’t want to engage in this anymore; he does not want to torture and dominate and in the end kill? (Inaudible) No. I know that’s a long time. I know it’s a long time. But I said when we started here yesterday: He gets to keep his life. Sure enough. He gets to keep it, unlike that poor child, he gets to keep it. (R. 1833). Where will he spend it? There is nothing less than life in prison in response to what he did to this girl, nothing less than life in prison for what he did to this girl. No, it won’t change it. And we know that. Nothing will change it. They’ll get up in here and say, “Why waste his life? Nothing’s going to change it.” I know one thing will change, perhaps two: There’s no little kids in the penitentiary. (Inaudible) on the outside, he gets out in 21 years, 28 years, 14 years, or some lesser term you come up with. No more of these. (Indicating) No more of this. End of it. Over. Let the rest of the world know, uh-uh, no –-don’t matter if it’s a child or not, ABSTRACT 737 they’re not disposable here. They may be in some other places. They’re not disposable here. In fact, they’re our valued treasures here. How many millions of childless families would have loved to rear this child, have this child? They’re not disposable. There’s one blank to fill in on this first form, and then the foreperson signs. Let it be life, please. Thank you, Your Honor. CLOSING ARGUMENT BY DEFENSE COUNSEL MR. MORLEDGE: May it please the Court. Thank you. (R. 1834). Ladies and gentlemen of the jury, thank you very much for your service and your time being spent here. One thing I would like to remind you of: Daniel Pedraza has pled guilty to the final blow that took somebody’s life, not to the torture. (Inaudible). Now, the prosecutor has talked about the sentencing range is 10 to 40, or life. If you give Daniel life, that means he will never get out. Okay? You can give him any range from ten years all the way up to 40 years. Eleven, 12, 13, 14, 15, all the way up to 40 years. The prosecution has tried (inaudible). I want to go over them. Okay? A sentence of 10 years, he’s got to do at least seventy percent before he’s even, even parole eligible and that’s if the parole board (inaudible) out of prison. Okay? Earliest release date: 2020. Now, let’s look back. Where were we all seven years ago? Okay? That was back in 2006. That’s when (inaudible) the big thing around the news. Just ABSTRACT 738 remember back then. Twenty years: 14. That’s when his earliest release date would be in 2027. Fourteen years ago from this day, it’s back in 1999. People were worried about Y2K, computers crashing, and cell phones going down. Thirty years. A sentence of thirty years, he’s looking at 21 years, at least. Okay? At least. (R. 1835). Earliest possible release date: 2034. Twenty-one years ago, 1992, a little known candidate was running for president. His name was Bill Clinton. He eventually won that election. Ladies and gentlemen, if you give him a term of forty years, he’ll have to do at least 28 years. Daniel’s only 24 years old now. He would have spent more time in prison than he would walking around free. Earliest release date: 2041. That’s if he’s even paroled. Back in 1985, that was 28 years ago, cell phones were almost unheard of. They were the giant bricks. Home computers were starting to take off and the Cold War was still in full swing. We are talking about real years here. That’s what we’re talking about. (Inaudible) to sit in a cell. Now, with that being said, after Daniel came home from Iraq, it’s true, his life spiraled downwards out of control. He had a toxic relationship with Victoria. Didn’t have a job where he bounced around to whatever little jobs he did have. Didn’t have any money. He had no home, no real home. He was a young kid back from the war. He took on a family. Shouldn’t have had that family, but he did. Couldn’t provide for ABSTRACT 739 himself or that family. (R. 1836). Now, with that being said, Victoria is getting a deal out of all of this. Like I said before, Daniel didn’t plead to torturing this little girl. Victoria’s deal is for five to twenty years. She doesn’t have to do seventy percent of that time. She does a sixth of that time and she gets, you know –-if she behaves in prison and gets good time. Okay? She’s pled to permitting the abuse of a minor. If she gets max at twenty years, she’s up for parole in about three and a half. She could get a fine. Just walk away. Like I said, we didn’t plead to torturing this little girl. Daniel didn’t. You heard what Victoria said up there on the stand: she lied in every statement she gave. That’s what she said out of her own mouth right there. And we’re basing anything and everything that we know about this case, at least what happened in the home, supposedly what happened, it’s come from her. And she readily admits that she lied in every statement she gave. You’ve got to remember that she needs to get this deal because she was facing a much severe punishment. Mr. Rosenzweig asked her if she was charged with capital murder at some point. She made this great deal with the prosecutor, Mr. Deen, in exchange for her testimony to testify it was Daniel. (R. 1837). That’s what you saw up there, saw her doing what she could to keep that sweet deal. Lord knows, she doesn’t want to lose that. Each of her statements –-this is how I see it, it’s like a fish story. I’m sure ABSTRACT 740 everyone’s gone fishing here and knows someone who has. Catch a fish, you come home, “Well, how was the fishing, honey?” “Oh, I did pretty good. I caught a fish about that big.” Okay? Guys down at the drugstore asks you, “How did you do? Did you catch anything?” “Yeah, I caught a fish about that big.” Then later on, the fish gets bigger, and bigger, and bigger. That’s exactly what Victoria’s statements are. It’s a fish story. They keep getting bigger, and bigger, and longer, and longer, with each version. Now, the only person that even put Aubriana in that closet attached to that rope was Victoria. You heard Clayton Moss, the lead investigator, there was no DNA from Aubriana on that rope. You heard that. That’s what he said. Judge even asked him on that. You heard Victoria tell the dock story. She was the main participant. She was the one who spoke. She showed everyone how Bri swung underneath the railing, fell down on the rocks. We’ve got pictures of that. You saw that. Clayton Moss says she was the one that told the story. Victoria even said she needed to buy time so she could bury her child. (R. 1838). She knew that she would be arrested; and that’s got to tell you something right there. Victoria discussed Bri’s lip. You heard the medical examiner discuss Bri’s lip too. Victoria said Bri’s lip happened just right inline with when the final blow -ABSTRACT 741 Possibly cut it on the faucet. She wasn’t sure. That’s what she said. Okay? You heard the medical examiner say that that could have occurred over 24 hours before during the evening. How is that possible if science, the medical examiner, is taking a look at that lip and saying, Hey, could have been 24 hours or more; and Victoria’s going, “No, it happened right then.” It doesn’t make sense. It just does not add up. The medical examiner, Dr. Erickson, also stated there was scarring. Okay, you heard scarring to Bri’s head. Now, said that that could have happened months before, months. You heard Sgt. Michael Armour testify the other day that during December, at a Christmas party, Bri was following Daniel, asking Daniel, “Put me on your shoulders. Ride me around.” Doesn’t sound like a little girl who’s scared of somebody, does it? She was pulling away from Victoria following Daniel that night. Victoria wasn’t scared of Daniel that night. That’s what Michael Armour said he saw. (R. 1839). She wasn’t scared of him. My question to you is: How did Bri get all that scar tissue on her head if it happened months before? The medical examiner, Dr. Erickson, also said that a layperson, anyone who’s not in the medical field, might not have known that Aubriana was really hurt. Said that an eleven-year-old child could have inflicted that same injury. You heard about home remedies. The little girl was throwing up that night. Okay? Maybe that sounds ABSTRACT 742 ridiculous and foolish. Everyone in here has tried to use (inaudible) to heal somebody. (Inaudible), I’ll give you that, but we’re talking about people from extreme poverty in Mexico who don’t have any formal education. That’s what they’ve grown up doing. That’s their tradition. They truly believe it works. You heard that. You heard Liliana Frisby; you heard Joana Mondragon, Daniel’s sisters. They truly believe that works. Daniel was trying to help that little girl. You heard Victoria say that Daniel admitted to her that he went too far that night. That’s what she said. Victoria also said Daniel was stressed, didn’t have a job, didn’t have money. They were bouncing around from place to place. For better or for worse, Victoria said Daniel was just trying to make her the best person she could be. (R. 1840). Grant it, he was going about it completely the wrong way. I understand that completely. Okay? We do, but in Daniel’s mind, he was trying to (inaudible). Now, Victoria said she was terrified of Daniel. That’s why she didn’t call the police. That is a ridiculous statement. Ridiculous. She had all the opportunity in the world. As Mr. Deen said, she had a cell phone. Absolutely. She had a cell phone. I mean, she was a satellite operator, okay, in the National Guard. She had people she could go to; she had family; she had friends to call. She didn’t. She went to Wal-Mart during the so-called torture episode on Sunday. You didn’t see her running down through the parking lot. Let me ask you: If any one of your kids was being tortured, ABSTRACT 743 you would go screaming down that parking lot looking for someone. You didn’t see that. Didn’t see that at all. You saw her buying eggs and milk. Calm as she could be. Cool and collected. No problems. Push my shopping cart back. Go make dinner. You heard Clayton Moss talk about the fact that when they were at the hospital, he took Daniel down to be interviewed for an hour. You remember, Victoria said, “Hey, listen, my family was there. Had doctors around, had police officers around, and you had National Guard people there.” (R. 1841). She could have told any of them. She didn’t. Didn’t say anything. She knows the National Guard people are there and she knows that they’re there to help their soldiers. That’s what they said. B.J. Dye said that. Sgt. Dye said that. That’s what they’re there for; they’re there to look out for the soldier. Now, with that being said, she’s got to keep her deal. Prosecutor made that deal (inaudible). It’s true. Her story didn’t really emerge –- I mean, it started emerging by progression each time she told it, but after she got that deal, oh, wow, every other word. She said in front of y’all that she lied in every one of her statements. How do you believe her? She’s got to put on that good show, got to get that deal, got to help herself out regardless. Daniel was a good kid growing up. He was quiet, respectful, generous, artistic. You’ve got to look at Daniel as a whole person. You’ve got to take his whole life into account here, okay, when you sentence him. That’s important. I ABSTRACT 744 wouldn’t want anyone to look at me on my worst days and just sentence me accordingly. You heard about Mexico. Bad. He grew up in poverty. He knows what poverty is. That’s why they came to America. (R. 1842). That’s why he loved America. That’s why he joined the National Guard, to give back to America. He knows what poverty is. He understands oppression and the effects of that. He went hungry. That’s all true. That’s who Daniel is as a person. Joined the National Guard right out of high school. He loved his country. He went to spend nine months in a war zone in Iraq. You heard Sgt. Dye and you heard Michael Armour discuss the fact that he was in and out of the Green Zone. Green Zone is not a hundred percent safe. Sgt. Dye said that. You heard about the mortar fire. You heard Michael Armour was scared. You heard it hit so close to their base (inaudible) Sgt. Dye. You also heard that when Sgt. Dye had the siren, when he hit it on his phone when he was back here in the States, people would still scatter. You heard that. You heard Michael Armour got shot at twice by sniper fire. Daniel was on those missions. Daniel wanted to be a career military man. When he got back, his life spiraled out of control. I’d like to equate it to something Sgt. Dye talked about, like, mortar fire: It’s on the rise; It’s always on the rise. In fact, in Iraq, it starts plummeting. You can’t control it. You heard that he picked up two DWI’s after Iraq. Told his sister, wept in her lap, that he was scared for his life. Told Joana that. (R. 1843). Mondragon. Told Liliana Frisby, ABSTRACT 745 called her in the middle of the night, talking about how he was going to kill himself. She later saw what he done to himself. She had to talk him out of it. You heard Melissa Sapp testify on the TV, the deposition. Heard her testify. She’s jailer over in Crossett where Daniel had been. He’s there for a year and a couple of months. Okay? Heard her testify that Daniel was her favorite male inmate since she’s been there. She’s been there for fifteen years. Respectful, courteous, never felt threatened by him. She also had him draw a picture of a child, a little baby, with angel wings because she had lost a child giving birth. Even took it back to Daniel and had him write below the child’s birth date and death date on it as well. I asked Melissa, “Ms. Sapp, do you understand what he’s charged with?” “Yes, I do.” “Do you understand what they’re saying he did?” “Yeah, I sure do.” I think that speaks volumes about Daniel. Daniel was also denied U.S. citizenship, not paying his DWI fine. That’s got to be frustrating. You go over there, put your life on the line, you’re in Iraq, you’re getting shot at, you’re getting bombed, mortar fire, the U.S. Government says, Nope. (Inaudible) he didn’t pay his fine. (R. 1844). You heard Luis Mondragon say he couldn’t have gotten through school without Daniel. That’s who Daniel was. That’s who Daniel is. He’s a generous person. He tries to help people. He’s got a good heart. You heard Father Vic Subb say Daniel’s a Christian. He’s Catholic. He knows ABSTRACT 746 he’s going to have to answer for the mistakes he’s made. He knows it. It’s highly likely (inaudible). He’s not a U.S. citizen, he’s probably going back to Mexico, if he ever gets out. I’m asking you to look at Daniel as a whole person (inaudible). I’m asking you to give him a second chance at some point in that life. Daniel is a redeemable person. He’s done a lot of good in his life. I’m asking you to give him a term of years. Thank you. FURTHER CLOSING ARGUMENT BY PROSECUTING ATTORNEY MR. DEEN: So Victoria did all this? Have I been transported to a different place and time? So Victoria committed all the other injuries? He just gave her the one shot, the one shot that killed her? Is that what the evidence shows? Victoria’s the one who slapped her over the head with a belt, made her do the chair stands, corner stands, all of the rest? No. (R. 1845). This is not an isolated incident, as I think the doctor said, where –- Sometimes you see that. You see where someone because of (inaudible) or other impairment of some kind, does something foolish and a child is seriously hurt or dead. But one shot did it. That argument makes more sense on there. Okay? The argument of giving someone a term of years between twenty and forty makes more sense on that. But this is a person who, for whatever reason, is capable, is capable of doing this. How many people are capable of doing it? How many can bring themselves to ABSTRACT 747 doing this to the little bitch, as he called her? If you are capable, if you have the ability to do this to someone, you can never get out because if you are capable of doing it, that continues with you. If you’re capable of inflicting this torture; if you’re capable of turning a loving, normal child into this, you can’t get out. You cannot. You cannot have this chance again. And anyone capable of this needs to know the same thing. Not that it’s going to be 10 or 20. It’ll be the day you die, if you live to be 65, if you live to be 95. I like the talk about real numbers up there, but I was thinking a different set of real numbers. (R. 1846). I wasn’t thinking about the bird flu, or Y2K, or when computers were invented, or when Armstrong walked on the moon, or whatever the case might be. The numbers that I was thinking about were forward numbers. Two plus seven, she’d be nine. Two plus fourteen, she’d be sixteen, getting her driver’s license. Two plus 21, just graduated college, maybe getting married. Two plus 28, she’d be 30, likely have children of her own by then. That’s the numbers we need to think about. Those numbers. That will never happen. Everything that she ever could have been is (inaudible). A hole in that family that will never be refilled. Those are the numbers that should be applied. And on that form, respectfully submitted, it’s your call, on that form I showed you, no numbers. A word: l-i-f-e. No numbers. The word. And in this state, unlike ABSTRACT 748 some others, it’s true enough what the judge told you: “life” means “life.” Doesn’t mean 20, 30, or 40, or anything else. You stay until either some governor down the road commutes your sentence or you die. MR. MORLEDGE: Objection, Your Honor. THE COURT: Objection on what ground? MR. MORLEDGE: Your Honor, it’s speculation, for one thing. (R. 1847). THE COURT: If it’s speculation, I’ll simply tell the jury it’s argument of counsel –-both sides argue their case. If you find that it has no basis in the facts of the evidence, you may disregard it. Thank you. MR. DEEN: It’s not speculation to say he’s stays there until he dies. I don’t quite understand this, but he will be there until he dies unless something else happens, or something intervenes. He will be there until the day he dies which is very much where he needs to be. Thank you. Thank you, Your Honor. (Bailiffs Sworn) THE COURT: Very well. I put your verdict form on the top. The remaining alternate is Ms. Hindsley. Ms. Hindsley can have a seat in the library in the event that she’s needed. Of course, the rest of the other twelve go into the jury room. When you reach a verdict, I would ask that you knock. And I will tell those here, I know some of you want to go outside, fine. You never know how long a jury ABSTRACT 749 will be out, but I will give approximately ten minutes. One bailiff will come down and say the jury’s in; and I’ll get the verdict read within ten minutes after they knock. (R. 1848). When you retire to the jury room, you know you will elect one of your number as foreperson who alone will sign the verdict. Some judges take up cell phones in certain cases when they go to retire because you cannot have any contact with the outside world under any circumstances, texting, or anything. I’m not going to do that. Whoever is elected foreperson, if you will simply take up the cells so there won’t be any temptation and set them over to the side because cases have been reversed for cell phone use in the jury room. And I don’t want to even run that risk, got a call, or something like that. So if the foreperson will simply ensure that in some way or another cell phones are not available to be used. I’ll leave it to you-all to work that out. With that said, all rise while the jury retires for deliberation. If you wish, the exhibits –-I’ll tell you what, I’m going to send the exhibits back with you just keep up with them because my reporter’s responsible for getting them back. Thank you. [At 11:30 a.m. the jury retired to commence deliberations.] [At 1:22 p.m. the jury returned to the courtroom, and the following proceedings were held.] ABSTRACT 750 THE COURT: Where are my exhibits? (R. 1849). Did someone bring the exhibits or are they still in the room? All right, let’s do this, everyone have a seat. If you would, go get the exhibits right now. All right, it appears you’re there foreperson, Mr. Pace; is that correct? FOREPERSON: Yes, sir. THE COURT: All right. Has the jury reached averdict? FOREPERSON: Yes, sir. THE COURT: Have they? If you would, give te verdict form to the bailiff. All right. If the defendant and counsel would rise. VERDICT [Reading of the verdict.] THE COURT: The verdict form reads as follows: For the offense of first degree murder, the jury fixes Daniel Pedraza’s sentence at: A term of life in the Arkansas Department of Correction, signed Matt Pace, foreperson. This is the verdict form signed by Mr. Pace. Does either side wish to examine that verdict form? MR. ROSENZWEIG: No, Your Honor. We ask that the jury be polled though. (R. ABSTRACT 751 1850). THE COURT: I was going to come to that next. Let the verdict be received then. [Polling of the jury.] THE COURT: All right. I’m going to begin with Mr. Claville. I’m going to go across the back row. If this is your verdict then when I ask you “Is this your verdict?” you will answer out loud “yes” or “no.” Claville, is this your verdict? JUSTIN CLAVILLE: Yes, sir. THE COURT: Pace, is this your verdict? MATTHEW PACE: Yes. THE COURT: Graham, is this your verdict? TASHEENA GRAHAM: Yes, sir. THE COURT: Anderson, is this your verdict? SABRINA ANDERSON: Yes. THE COURT: Smith, is this your verdict? JOHN SMITH: Yes, sir. THE COURT: McManus, is this your verdict? SANDRA McMANUS: Yes. THE COURT: Connard, is this your verdict? LAURA CONNARD: Yes. ABSTRACT 752 THE COURT: Hartness, your verdict? DIANE HARTNESS: Yes. (R. 1851). THE COURT: Cundiff, your verdict? CRYSTAL CUNDIFF: Yes. THE COURT: Dodrill, your verdict? LINDA DODRILL: Yes. THE COURT: Young, your verdict? KYLE YOUNG: Yes. THE COURT: Lewis, your verdict? FAYE LEWIS: Yes. THE COURT: All right. The jury has assessed life. Is there any reason, Mr. Pedraza, that I should not go ahead and impose that sentence at this time? Right of allocution is what I’m talking about, right to address the Court before sentencing. MR. PEDRAZA: No, Your Honor. THE COURT: Mr. Pedraza, you have entered a plea of guilty to murder in the first degree. The sentence was determined by a jury of twelve. The option that they chose was life. It is, therefore, the judgment and sentence of this Court that you are in fact guilty and that I sentence you to life in prison. You have a right to appeal. You have thirty days from entry of the judgment ABSTRACT 753 to file that notice of appeal and a free appeal at that. (R. 1852). With that said, you’re remanded back to the sheriff of this county; and at some convenient time, you will be transported to the department of corrections where you will serve a life term. The parties cannot express their thanks for your service; I’ll do that for them. I know this was a difficult case. You do not have to discuss this case, certainly any of your deliberations, with anyone. If they ask, it is your privilege to say no. If you want to, you can, but you are under no obligation to. With that said, I’m going to discharge the jury. And you will go with the bailiff through that door and before anybody else is released, we’ll let you-all leave. All rise while the jury leaves. THE BAILIFF: All rise. THE COURT: Prepare a precedent, Mr. Deen. CONCLUDED (R. 1853). ABSTRACT 754 ABSTRACT OF HEARINGS PRECEDING THE STAY GRANTED IN PEDRAZA V. DREW CIRCUIT COURT. Abstracter’s Note: From this point to the end of the Abstract is the abstract presented to the Court in Pedraza v. Drew Circuit Court. This is part of the case, but consonant with Supreme Court rule was not re-included in the clerk’s record submitted after the trial. As stated then as well, very little of the record involves testimony of witnesses, and that which does is not capable of abstracting and preserving the essence in abstract form. Therefore, the colloquies are quoted directly. FIRST APPEARANCE, MARCH 2, 2012 BEFORE JUDGE DON GLOVER THE COURT: MR DEEN: Okay. I have a first appearance. Who do we have? Daniel Pedraza, Your Honor. THE COURT: Okay. Daniel Perdraza. Let’s see. Is there a case number yet? MR. DEEN: Not yet, Your Honor. There may be a bench warrant number, but no case number yet. (SPR 585) THE COURT: Mr. Pedraza, would you come forward, please? For the record, your full name? ABSTRACT 755 THE DEFENDANT: THE COURT: How old are you? THE DEFENDANT: THE COURT: Twenty-three years old. And what’s your date of birth? THE DEFENDANT: THE COURT: Daniel Pedraza. January 27, 1989. A probable cause has been established for reason to believe that you’ve committed certain offenses. MR. DEEN: The first offense that I anticipate Mr. Pedraza will be charged with, and which probable cause has been found, is capital murder under subsection (9) of Arkansas Code 5-10-101, under circumstances manifesting extreme indifference to the value of human life, knowingly caused the death of a person fourteen years of age or younger. In this matter it’s alleged that the victim Aubriana Coke was approximately to years of age. The second potential charge is permitting abuse of a minor, which is a parent or guardian or person charged with the care or custody of a minor recklessly failed to take action to prevent abuse, which is a Class B felony. The capital murder charge that I mentioned a moment ago is punishable by either life in prison without parole or death. (SPR 586) THE COURT: Okay. Based on the investigation that has gone on and is ABSTRACT 756 continuing, Mr. Pedraza, there is reason to believe that formal charges could very well be filed against you charging you with certain offenses. As of this time formal charges have not been filed, but there is reason to believe that you could be charged with the offense of capital murder. As the prosecutor has indicated, capital murder in Arkansas is a Class Y felony which carries a penalty of, if found guilty, of life in prison without the possibility of parole or death. The second offense is permitting the abuse of a minor. I believe this is a Class B felony. A Class B felony in Arkansas carries a penalty of not less than five years, not more than twenty years in the Arkansas Department of Corrections and fines up to $15,000, or both. I do want you to know that you have certain basic and constitutional rights. You have the right to remain silent. Your right to remain silent essentially means that you are not required or obligated to talk to the police or agents or representatives of the law, but if you do, whatever you tell them can and will be held against you in a court of law. You also have the right to represented by a lawyer. The law provides that if you cannot afford to pay for the cost of a lawyer, then the Constitution requires that a lawyer be appointed to represent you at no charge. (SPR 587) ABSTRACT 757 Also, during the time in which you are in jail the law provides that you have the right to reasonable visitation by your lawyer, close relatives and friends and reasonable means will be provided for you to do so. Do you understand those basic rights? THE DEFENDANT: THE COURT: Yes, Your Honor. Are you and your family able to hire a lawyer or will you be able to hire a lawyer? THE DEFENDANT: My mom is in the process of hiring a lawyer for me and my wife. THE COURT: Very well. One of these charges is a capital murder charge and the law does not provide release on bail. Im going to ask you – A first appearance form, Margaret, do you have one? That’s Daniel Pedraza? Do you have a middle name, Mr. Pedraza? THE DEFENDANT: THE COURT: Your date of birth? THE DEFENDANT: THE COURT: January 27, 1989. (SPR 588) What year? THE DEFENDANT: THE COURT: No, sir. 1989. Do you have a social security number? ABSTRACT 758 THE DEFENDANT: THE COURT: XXXX? THE DEFENDANT: THE COURT: Yes. XXX-XX-XXXX Yes, sir. Mr. Pedraza, do you understand that you have the right to remain silent? Do you understand that? THE DEFENDANT: THE COURT: Could you answer yes or no? THE DEFENDANT: THE COURT: Yes, Your Honor. Do you understand that? THE DEFENDANT: THE COURT: (Nodding) Yes. Do you understand that during the time that you are in jail that the law provides that you have the right to talk to your family, close relatives and friends and reasonable means will be provided for you to do so? THE DEFENDANT: Yes. (SPR 589) THE COURT: Do you understand that as of this date formal charges have not been filed? Formal charges will be filled by the prosecuting attorney’s office out of this district, which is located here in Monticello, Arkansans. But based on the information that has been done, there is reason that you could be charged with the offenses of capital murder and permitting the abuse of a minor child. ABSTRACT 759 These are Class Y felony and Class B felony. Do you understand that? THE DEFENDANT: Yes, Your Honor. THE COURT: Again, I want to advise you that you have the right to be represented by a lawyer on these charges. And if you cannot afford to pay for the services of a lawyer, then of course a lawyer will be appointed to represent you at no cost. Do you understand that basic constitutional rights? THE DEFENDANT: THE COURT: Yes. Now, because could be charged with capital murder, at this time a bail bond will not be set for you. Once you get your lawyer, that person may choose to file a bond reduction or file to have one set at a later date. Do you understand that? THE DEFENDANT: THE COURT: Let’s see. Are you married? THE DEFENDANT: THE COURT: Yes. And do you have any minor children? THE DEFENDANT: THE COURT: Yes. No. How much formal schooling have you completed? THE DEFENDANT: I have some college. (SPR 590) ABSTRACT 760 THE COURT: How many years? THE DEFENDANT: THE COURT: So right at about a year of college? THE DEFENDANT: THE COURT: Yes, Your Honor. Do you have a phone number? THE DEFENDANT: THE COURT: 630 Alpha, A, Old Highway 13. Is that in Monticello? THE DEFENDANT: THE COURT: I had one here in this country and one in Dermott. What’s your present mailing address? THE DEFENDANT: THE COURT: DUI. Excuse me. I’m sorry. And what country was that in? THE DEFENDANT: THE COURT: DUI. What kind of - - THE DEFENDANT: THE COURT: No. I just have a DUI violations. Had what? THE DEFENDANT: THE COURT: Yes, sir. Have you been convicted of a felony in the past before? THE DEFENDANT: THE COURT: It’s like one fall semester and one summer semester. No. I just have a cell phone. What is that cell numnber? ABSTRACT 761 THE DEFENDANT: THE COURT: And who is the nearest relative? THE DEFENDANT: THE COURT: No. He lives in Sherwood, Arkansas. Do you have his cell number? What is it? THE DEFENDANT: THE COURT: I don’t know it. I just know his cell phone number. Does he live in the area? THE DEFENDANT: THE COURT: Pedraza, like mine. Okay. Do you have an address for him? THE DEFENDANT: THE COURT: G-e-r-m-a-n. Pedraza. Okay. That last name? THE DEFENDANT: THE COURT: German. G-e-r-m-a-n. G-e-m-a-r ? THE DEFENDANT: THE COURT: German Pedraza Who? THE DEFENDANT: THE COURT: My brother. And what’s his name? THE DEFENDANT: THE COURT: XXX-XXX-XXXX. (SPR 591) XXX-XX-XXXX. (SPR 592) Were you working before your arrest? THE DEFENDANT: No. I was just in the National Guard, drilling status. ABSTRACT 762 THE COURT: You’re in the National Guard? THE DEFENDANT: THE COURT: How long have you been in the National Guard. THE DEFENDANT: THE COURT: No. Like a vehicle? THE DEFENDANT: THE COURT: Just drilling. Do you own property? THE DEFENDANT: THE COURT: Five years in May. About four years and ten months. What status were you? THE DEFENDANT: THE COURT: Yes, Your Honor. Just a co-signer on a vehicle. How much were you making? Does the National Guard pay you times when you were not on active duty? THE DEFENDANT: No. Only when we drilled. THE COURT: You drill once a month? THE DEFENDANT: THE COURT: Yes, Your Honor. (SPR 593) How much do they pay you per month? THE DEFENDANT: It’s depending on how many days we drill. THE COURT: So what wage is that? THE DEFENDANT: Anywhere from $350 to $400. ABSTRACT 763 THE COURT : That’s $350 to $400.00 per month? THE DEFENDANT: THE COURT: Yes, sir. The way the system works, this is a first appearance and the next court appearance will be arraignment. At arraignment formal charges will actually be read to you. Arraignment, of course, will be held after the prosecuting attorney has filed the form charges. And at that stage of the proceeding you are required to be represented by a lawyer here in Drew County. Your case could be assigned to one of the judges who handle those cases. And we won’t know who the judge will be until the charges are actually filed. Are there any particular questions you have? THE DEFENDANT: THE COURT: No, Your Honor. Sheriff, do you have anything? DREW COUNTY SHERIFF: THE COURT: MR. DEEN: THE COURT: I don’t have anything. Mr. Prosecutor, do you have anything? No, sir. Okay. Thank you. HEARING, APRIL 2, 2012 ABSTRACT 764 THE COURT: Alright, Court’s on the record in 2012-37-B and A. I have before me Daniel Pedraza and Victoria Lynn Pedraza. Are you-all husband and wife? (SPR 625) MR. PEDRAZA: Yes, Your Honor. MRS. PEDRAZA: Yes, Your Honor. THE COURT: You-all are married? MR. PEDRAZA: Uh-huh (yes). MRS. PEDRAZA: Yes. THE COURT: Alright. Let’s get the appearances beginning with Mr. Best. MR. BEST: Say again, Your Honor. THE COURT: Let’s get the appearances. Mr. Best for the State. Go ahead. MS. BYRD: Arkie Byrd for defendant Victoria Pedraza. THE COURT: Which one? MS. BYRD: For Victoria Pedraza. THE COURT: Alright, Mr. Pedraza, do you have counsel at this point? MR. PEDRAZA: No, Your Honor. THE COURT: Okay. Can you afford an attorney? MR. PEDRAZA: Not right now. THE COURT: Okay. Where’s Mr. Porch? ABSTRACT 765 MR. PORCH: I’m here, Your Honor. THE COURT: If you would, come around, Mr. Porch. MR. PORCH: Yes, sir. THE COURT: Let the record reflect, Steve Porch, the chief public defender is present. Are you here on this case? MR. PORCH: Your Honor, I was waiting to see whether I would be appointed to it, and if so, I have some things to say to him, off the record, of course. (SPR 626) THE COURT: Right. He says he can’t afford lawyers, so I’m appointing you now. I know we’ll come back to the point of two counsel and all that kind of thing. MR. PORCH: Correct. THE COURT: –- but would you like to visit with him at this point in time and come back to it? MR. PORCH: I would like to visit with him. THE COURT: Let’s do that. And, Ms. Byrd, since these in a sense are companion cases, of course, I’m sure –- and I don’t know how we may develop it, it may very well be that they’re severed at this point -- but I need to give Mr. Porch a chance to visit, and however that may impact you or your client, let’s just –- That’s one reason I got you up here –- I saw you coming –- got you up here now so I wouldn’t wait until four o’clock this afternoon to call it up and then put you late ABSTRACT 766 getting back –MS. BYRD: I appreciate it. THE COURT: So, in any event, I’m going to recess this hearing and we’ll come back to it after Mr. Porch has a chance to visit –- Maybe you and Mr. Porch will have a chance to visit. Thank you. You-all can go. ** ** ** ** ** ** ** ** ** THE COURT: Alright, let’s go back on the record so out-of-town counsel can go. The Pedraza case. Alright, the record reflects thus far that Judge Glover conducted a first appearance on or about March 2nd on both defendants: Victoria Lynn Pedraza and Daniel Pedraza. Before I go any further, I want to –- I noticed that it’s a Latino name. Are you both Latino? MRS. PEDRAZA: I’m not. (SPR 627) MR. PEDRAZA: I’m from Mexico. THE COURT: Speak up. Let him get up there close. You are or not? MR. PEDRAZA: I’m from Mexico. THE COURT: You’re from Mexico? MR. PEDRAZA: Yes. THE COURT: Your English –- You understand? Speak English well? ABSTRACT 767 MR. PEDRAZA: Yes, Your Honor. MRS. PEDRAZA: Yes. THE COURT: Very good. Alright, that eliminates that because –- I wasn’t going to go a step further if I needed an interpreter. (SPR 628) Let’s do this, I’m going to read -- We’ll consider this an arraignment, and I’m going to read to each of you the –- And there should not be a waiver of arraignment. I’m going to read to each of you the charges that have been filed by means of an information against you beginning with Mr. Pedraza. The prosecuting attorney for the tenth judicial district has charged you with two offenses, enjoined them together. Count I is capital murder. It’s alleged that on or about February 26th through the 27th of this year that Mr. Pedraza knowingly caused the death of Aubriana Coke, a child less than fourteen years of age, under circumstances manifesting extreme indifference to the value of human life, which offense is punishable by death or by life imprisonment without parole against the peace and dignity of the State of Arkansas and in violation of Arkansas Code 510-101, then Count II permitting abuse. It’s alleged that on or about February the 26th through the 27th of this year, being a parent or guardian, or legally charged with the care and custody of Aubriana Coke, a minor, that Mr. Pedraza did recklessly fail to take acttoiopnrevent abuse to her that resulted in serious physical injury or death, which offense is punishable as a Class B felony and ABSTRACT 768 imprisonment for not less than five years nor more than twenty, and a fine not exceeding $10,000.00 against the peace and dignity of the State of Arkansas. (SPR 629) Likewise, with respect to Victoria Lynn Pedraza before me, it is identically alleged that on or about February 26th through 27th of this year that Victoria Lynn Pedraza did cause the death of Aubriana Coke, a child less than fourteen years of age under circumstances manifesting extreme indifference to the value of human life, which offense is punishable by death or by life imprisonment without parole against the peace and dignity of the State of Arkansas, and in violation of Arkansas Code 510-101; and then Count II also, permitting abuse is also alleged in Mrs. Pedraza’s case that on or about those same dates, February 26th, 27th of this year, being a parent or guardian, or legally charged with the care and custody of Aubriana Coke, a minor, that Mrs. Pedraza did recklessly fail to take action to prevent abuse to her, meaning the child, that resulted in serious physical injury or death, which offense is punishable as a B felony by imprisonment for not less than five years, nor more than twenty, and by a fine not exceeding $10,000.00 against the peace and dignity of the State of Arkansas and in violation of Arkansas Code 5-27-221. Now, in the case of Mr. Pedraza, counsel has been appointed. Does Mr. Pedraza wish to enter a plea at this time? ABSTRACT 769 MR. PORCH: Yes, Your Honor. We’re going to enter a plea of not guilty and demand a jury trial. (SPR 630) THE COURT: And, Ms. Byrd, do you represent Mrs. Pedraza? MS. BYRD: Yes, I do, Your Honor. THE COURT: And same question. MS. BYRD: She pleads not guilty to the charge and requests a jury trial. THE COURT: Very well. Now, as you know, the Court has some independent obligations because capital murder cases are subject to, as we say, to a super due process requirement, so we have to be always careful in any criminal case, but especially so when the stakes are these. Now, in that respect, I know you both know that the Court will be entering a scheduling order; and the Court needs to know, as soon as possible, two things: one, who your additional counsel will be because it’s imperative that -- in this Court’s judgment -- it’s imperative that each of your clients have second counsel for any punishment stage, and the reasons are self-evident. I would like to –- The Court would like to have notification of who that will be within a reasonable period of time; and I do not think that ten days would be unreasonable for you to identify who will be taking care of the –- who will be representing each of your clients at the guilt phase and, separately, the separate counsel will be at the punishment phase, or vice versa. ABSTRACT 770 Do you see any problem, Mr. Porch, with giving the Court the name of that counsel within ten days? Does that give you a chance to talk to –MR. PORCH: (Inaudible), Your Honor? What we’re going to do is –- Tim Leonard’s not death certified yet, so what we’re going to do is have him probably as a third on here. As far as the second person that will be assisting me with that, I do not know at this time, but I think ten days will be more than fair to get that. THE COURT: Well, you’ve got it. Who do you have that already have those qualifications in your office besides yourself? (SPR 631) MR. PORCH: Nobody. THE COURT: Okay. Well, you know, contact your commission up there and I’m sure they’ll locate one. Can you –- Do you believe the ten days is a reasonable period of time, Ms. Byrd, for –MS. BYRD: Yes, sir. THE COURT: –- you and your client to identify someone else? I’ve only ran into one case where the lawyer just about insisted that he do it all and, fortunately, he was removed from the case at some point in time and I didn’t have to face that -- it’s a case he should have never taken -- and his client obviously didn’t know any better. So, I know that you will explain to your client the need for that. And I have one that is represented by counsel with state-expended funds; I have one that is privately ABSTRACT 771 retained and I want to –- I note that the arrest date, according to Judge Glover, I believe, is March the 1st, so that’s when the statute, you know, speedy trial statute starts running, except for any exclusions, which we have not come on yet and I would not –- When were you hired, Ms. Byrd? MS. BYRD: (No response.) (SPR 632) THE COURT: I don’t care about a specific date. A week? Two weeks ago? Three weeks? At the time of the arrest? MS. BYRD: Hold on just a second. I know it wasn’t at the time of arrest. THE COURT: Well, just –MS. BYRD: I’m looking at March the 6th. THE COURT: This is what I want to do at this point: I want you-all to have an opportunity to visit with your clients -- I know Mr. Porch has not had any -- and determine whether or not what type of motions regarding mental competency, in any respect, that you may be raising. I don’t care if it’s for the guilt or the sentencing phase because those motions do toll the statute. But you have to get some history from your clients and I’ll give you an opportunity to do that. But I would ask that you do so within the next thirty days. (SPR 633) So, when you prepare the initial scheduling order, Mrs. Rosegrant, put in there that the defendants were arraigned today; counsel appointed for Mr. Pedraza; and Ms. ABSTRACT 772 Byrd entered her appearance, Arkie Byrd, for Mrs. Pedraza; and that counsel entered a plea of not guilty, for each, and demand for jury trial; and that the Court directed counsel to identify additional counsel, second counsel, and notify the Court, and the clerk, and prosecutor within the next ten days. Let’s just make that a date certain -let’s make it April 13 -- as to who that additional counsel will be, and address, and phone number; and that counsel will also have to file a written entry of appearance, and then within thirty days, this Court is not going to –- Within thirty days, the Court –- I’ll be back here anyway on the 7th. Let’s go on and have an omnibus hearing on the 7th and I am not going to schedule anything past then as I would in a run-of-themill criminal case. I will require that the additional counsel appear at that hearing. MR. PORCH: You’re talking May 7th, correct, Your Honor? THE COURT: Yeah, May 7th. And I’ll schedule it at one o’clock and I’ll take you up at one o’clock. And I’m not going to require –- One other additional thing I require: except those defenses, that a mental evaluation would reveal of any type, I’m going to direct that the defense make those defenses known by pleading by then, and we’re talking about defenses of -- whether it be duress, whether it be alibi, what I call your standard defenses to crimes -- and I’ll leave it -- Then make that for the deadline for you to file any motions for any type of mental mental eval. that you want. I also need to know at that point –- and I know I’m getting into elective stuff ABSTRACT 773 now, but some courts consider it not so elective -- I need to know what, if any, investigators are available to each defendant, through counsel, to investigate and provide counsel with evidence of any mitigators because I need to know whether or not there must be any court appointed. Now, I know the public defender commission, you-all have your own investigators, do you not? (SPR 634) MR. PORCH: Yes. THE COURT: Okay. And I don’t know the arrangement between Ms. Byrd and her client –- not asking at this point –- it can become relevant later –- as far as fee and money for expenses, but the point being is that that can be a -- Can be a very important aspect of the case if there is a conviction; and that is the availability of investigators to uncover any mitigating factors, if any, in the background of the defendant that counsel’s not in the position to do to ensure due process. And, Ms. Byrd, I want you to give that some thought. I’m not borrowing trouble. I don’t want to run into that ya-ya, but one previous judge did about private counsel versus give me some money, you know, to provide expert stuff. And neither am I going -- I want to give you a chance to reflect on them; I’m not going to ask you here today what your arrangements are with her. I will ask this: With respect to your client, do you know whether or not your client has spent–- He said he’s spent apparently substantial time in Mexico, what about your client? Has your client always resided in the United ABSTRACT 774 States, to your knowledge? MS. BYRD: Yes. She’s a U.S. citizen. She was born and raised here. THE COURT: Okay. Now, with respect to citizenship, is your client a U.S. citizen? (SPR 635) MR. PORCH: He has residency, Your Honor, which has expired. I believe it expired in February. He was –- A letter was sent to have it redone where he has to take his fingerprints; and the date for his renewal was March 30th, which that day has passed. THE COURT: I know April 2nd is after March 30th. Alright. So, I have a noncitizen. I want the State and Defense to research this week and provide me with no more than a two-page brief as to whether or not his non-resident and non-citizenship status should affect these proceedings procedurally or in any other way. I know about deportation, but I also know he’s also being held here and I know, as we know now, that in any ordinary felony case that conviction of a felony can result in that. (SPR 636) But I want you to check and provide the Court –- Let’s head off any problems in that respect and provide the Court something by Friday that I can look at. You’ll probably call the prosecuting attorney’s association and they’ll have somebody that’ll have that; and it may be nothing. But I do know cases that have come up, through the schools I’ve been to, I haven’t had to send an investigator to Mexico, but I know that ABSTRACT 775 is a test question on every judge’s test: How much money do you spend, if any, on sending someone to Mexico? Believe it or not, it is. And I don’t know how much time he spent there, his childhood, so on and so forth. But sometimes that takes a little bit more time; and then there’s evidentiary issues, even though it possibly comes in in the punishment stage. But I think that that probably may be one of the issues here; and I ask you to pay particular attention to that and talk to your commission up there and see if he’s got a passport. Alright, Ms. Byrd -- Mr. Pedraza is in Crossett jail –- Crossett jail or Ashley County? MR. PORCH: Crossett. (SPR 637) THE COURT: Mrs. Pedraza is up here. Does the Court need to know why? MR. PORCH: The only thing I was told was they wanted to keep them separate. THE COURT: It wasn’t an overcrowding issue or something like that? Well, we just need to know if –- Make sure that we know, you know, Crossett –- You know, if they move him -- you know, he’s got to be here at every stage just like she does -- we need that transport order. So, just tell whoever’s running that show, the sheriff, or the chief, or whoever –- I don’t know if it’s a county or city case –- if there’s any switch –- If I were you, I’d just call Tommy Sturgeon, the chief down ABSTRACT 776 there at Crossett, and I’d say, Call me directly if you need to move him, so you can let the Court know. Remind me, I’ll call him myself because I’m the one that has to get the order out. Now, I know there’s certain standard motions you-all file, but –- And severance is not a matter of right in a capital case and –- But because of the speedy trial issues, and so on and so forth, and because of this limited –- this is the only courtroom -- and their right to be tried in Drew County, if there are –- The severance motion is waived unless time were made. I’m not going to put a deadline on it right yet until you-all decide if you want a mental eval. for either one, but I will put a severance deadline at some point –- probably at that hearing if neither one of you want a mental eval. deal. You know, it depends upon whether or not there are any defenses, whether they’re antagonistic, whether one’s going to testify against another, et cetera, et cetera, and whether it be a waste of time basically to grant a form- oversubstance –- But you-all be thinking along those lines, if you would, because that’s where your Rule 37’s come up. Anything from the State? MR. BEST: No, Your Honor. (SPR 638) THE COURT: Mr. Porch? MR. PORCH: No, Your Honor. THE COURT: I’m going to endeavor to try this at the end of the summer. ABSTRACT 777 Thank you, Ms. Byrd. Pleasure to see you again. MS. BYRD: Thank you, Your Honor. May I be dismissed? THE COURT: You bet. HEARING, MAY 7, 2012 THE COURT: Alright, on special setting let’s go ahead and do the Pedraza cases, Daniel and Victoria Pedraza, 2012-37-A and B. MR. PARRISH: Your Honor, for the record, Gregg Parrish; co-counsel, Cheryl Barnard representing Mrs. Pedraza, Victoria Pedraza in this matter. THE COURT: Alright, let me make a note then. Give it to me once more. MR. PARRISH: Gregg –THE COURT: Parrish and Cheryl Barnard. MR. PARRISH: B-a-r-n-a-r-d. THE COURT: Right. And on Daniel Pedraza? MR. ROSENZWEIG: Jeff Rosenzweig, and Patrick Benca, and Tim Leonard as well. (SPR 639) MR. BENCA: Patrick Benca, Your Honor. THE COURT: Right. This is the second hearing -- I call it the second hearing ABSTRACT 778 -- that we’ve had in here. I’ve granted the motion to withdraw filed by Arkie Byrd on behalf of Victoria Pedraza. Mrs. Pedraza, you’re aware that –- and it’s with your permission –- that Ms. Byrd no longer represents you; is that right? MRS. PEDRAZA: Yes, sir. THE COURT: Alright. And, so I’m clear on it, and for the record, I believe both defendants speak English and speak well; correct? MR. ROSENZWEIG: That’s correct, Your Honor. MR. PARRISH: That’s correct, Your Honor. THE COURT: Very good. First of all, the Court gives this case the Court’s priority as far as settings and, naturally, at this time they’re being held without bond because this is a capital case. Let me -- With respect to –- Let’s take Mrs. Pedraza first. (SPR 640) MR. PARRISH: If I may, Your Honor. THE COURT: You may. MR. PARRISH: Your Honor, Gregg Parrish for the record. We received notification of this appointment at our office in Little Rock one week ago today. Immediately upon doing so, I believe I spoke with your case coordinator, Mrs. Rosegrant; I came down the next day –- a week from tomorrow –- with the ABSTRACT 779 opportunity to meet Mrs. Pedraza for the first time. I spoke with Mr. Best; I acquired the discovery disc; filed our entry of appearance and motion for discovery. Unfortunately, the discovery is lengthy, quite lengthy. There’s videos as well. Today is our second opportunity to speak with Mrs. Pedraza, although shortly, today. I’m asking on behalf of Mrs. Pedraza if we could reschedule the omnibus for at least thirty days out and give us time to go through the discovery that we’ve received. THE COURT: Does the State have a position? MR. BEST: Your Honor, I believe that would be appropriate, considering the short period of time that Mr. Parrish has –THE COURT: I agree. Now –MR. ROSENZWEIG: Your Honor, if I may could add to “we” –- Mr. Porch –- Mr. Porch was the only attorney on the case. He’s now been –- Now no longer on the case. Mr. Benca and I are on the case. We just got discovery, our discovery disc, only a day or so before they got theirs; and I have filed some motions based upon Mr. Porch telling us that you (inaudible) and have filed some motions (inaudible). (SPR 641) THE COURT: Alright. Well, our next court date is June the 11th. I’ll set it at the same time then. Let’s find out –- or I’m going to determine now –- what other motions that –- What motions would you like to have from the defendant? Would ABSTRACT 780 you like –- Mr. Best, would you like all your what I call “boilerplate motions” filed by the defendants by then with respect to challenging the death penalty, with respect to all their due process motions? MR. BEST: I believe so, Your Honor. THE COURT: Alright. Any problem with getting that done by then? I see –MR. ROSENZWEIG: Your Honor, there’s –- One problem is, I don’t think there’s any such thing as a boilerplate motion (inaudible) discovery; and until we get full discovery, it’s going to be somewhat difficult. We can do what we can, but I can’t certify to the Court we’re going to be able to do everything. Of course, we don’t even have an autopsy yet, so there’s going to be issues involved in that. (SPR 642) THE COURT: Well, let’s not borrow trouble. And you shouldn’t be offended by me calling them “boilerplate motions.” I’ll call them this then: routine and somewhat pedestrian motions, some of which still get filed, even though they’ve already been addressed by an appellant court. But I want to get a deadline on that and I’m going to place that deadline as July the 11th and back it up from that by –- I mean, June the 11th –- for the Court to render a decision on those motions. That means get those motions filed ten days prior to that, serve them on the State. Mrs. Rosegrant will be drawing the order in this. So, put on there June the 2nd will be the deadline ABSTRACT 781 and for the defendants to evaluate what has been furnished by the State thus far in the way of discovery. June 2nd, for the filing of any, what I call expected or normallyanticipated defense motions challenging this process; and also that is the deadline for the defense to notify the State of anything in the discovery that has been furnished so far that they consider to be incomplete or deficient. And the State will have five business days after that to respond, all this to be filed with the clerk. That way I’ll have it four or five days ahead of the June 11th deal and I know that you will try informally to resolve any problems; and if the autopsy is not back then you can’t -Obviously, it’s not in this batch of documents. But I do wish that the State would do this for the benefit of the Court and counsel, (inaudible) how many investigators you have on this. I don’t know who all worked –- I’m not asking now. (SPR 643) But I want you to look through that discovery, Mr. Best, and certify to this Court and to counsel that it’s not only what you have in your possession but you have made inquiry and diligent search with the investigating agencies, whoever they may be, and that they tell you they have nothing else. If they tell you they have something else, you think you don’t have to turn it over then you need to apply to this Court and generally describe what it is so I know. But I’m putting the responsibility on the State, as the law does, to whatever is in the possession of law enforcement or that’s accessible to them, make it –- certify to the Court by –- Just do an addendum to what ABSTRACT 782 you furnish that you’ve done a check. But I’ll give you another week to run your traps with law enforcement and make them go through their file, or go through it with them, so there’s not something out there that comes up at the last minute. Now, if there’s something outstanding such as an autopsy then go ahead and check with the medical examiner; and give the Court some idea, and counsel, as to when we can expect that. That’s that. Now, perhaps in that way we can then decide since that discovery is in. Mr. Best, are there any statements made by either one of these two defendants? MR. BEST: Yes, Your Honor, several statements. (SPR 644) THE COURT: And are they part of this package of discovery that you sent? MR. BEST: Yes, Your Honor. THE COURT: Let’s get any –- I’m sure you-all will focus on those if you haven’t -- I’m talking to both lead counsel now -- focus on those before –- maybe even any other parts of the discovery -- so that if you have a question as to the admissibility of those statements, that you file your motions to suppress by June 2nd and we can get the officers in here and have them testify. And I do that because –I haven’t seen any statements -- no need for me to look at them at this time -- I want you-all to focus on that. I don’t know if there’ll need to be a severance or not; it’s not automatic. I don’t know if those statements implicate one or the other. ABSTRACT 783 You know what I mean? And I’m not borrowing trouble either, but I just like to get to that point as quickly as possible for scheduling reasons. Alright, what, Mr. Parrish, would you like from this Court other than more and more time, sometimes, but -- I know you do your work fast. What would you like for this Court to order from the State that I have not ordered? MR. PARRISH: Your Honor, I can’t tell you at this time without having reviewed all of the discovery; and I assure this Court –- and I’m expecting a copy of it to be printed and on my desk, hopefully, when I arrive back at my office today -and we will notify the Court in writing, if the Court so desires. (SPR 645) THE COURT: Well, I’m giving Mr. Best another week to put the final touches on it, go back with your law enforcement and say –- you may want to write a letter to them to follow it up just to cover you and say –- I want to know because I’m having to vouch for it, have you given me all you’ve got, et cetera? And that, obviously, includes exculpatory material also and have them –- However you want to do that. And, if you don’t mind, if you’re going to print it off -– Would you mind printing off the Court a copy of what he furnishes? MR. BEST: You want a copy of all of the discovery provided to the Court? THE COURT: Because some of these discovery disputes, we may be able to handle by motion and so on. See what I mean? If I have –- We do it in civil cases ABSTRACT 784 all the time. I will look at a discovery file and I will know, for instance, in this case, what Mr. Rosenzweig is talking about and I will be up to date on it. So just print it off and furnish me –- You’re going to print one off for yourself. MR. BEST: We have one printed for ourselves, Your Honor –- (SPR 646) THE COURT: I know it, but I don’t want to take yours. MR. BEST: I just wanted to give you an idea –- I mean, it’s just a (inaudible), but we can print it off and get it to your office. THE COURT: It wouldn’t be –- We started this in nursing home cases –- I mean, those are like that. But it gives me –- I can turn to a page -- If you-all get in a dispute, I’ve got it in front of me on the bench. MR. BEST: Shouldn’t be a problem, Your Honor. THE COURT: That’s all. I can get it –- We can run it off. I tell you what, if you can get it to Penny, she will –- Our copier’s too slow, but she can go down to Pat’s office and run it off herself on her deal. MR. BEST: We can do it; it’s not a problem. THE COURT: Mr. Rosenzweig, anything from you that I can humanly do? (SPR 647) MR. ROSENZWEIG: Yes, sir, a couple of things. Mr. Deen and his office have been forthcoming in handing over, you know, what they have. There are some ABSTRACT 785 things that are a little unclear to me. There are some statements attributed to my client, I appear not to have recordings of, that were pre-custodial. They appear to be pre-custodial. If the statement was recorded, any or all of those, we want those. Secondly, it’s unclear to me –THE COURT: Let’s take them one at a time. You will identify by –MR. ROSENZWEIG: Yes. THE COURT: I want to nail it down. You will identify by June 2nd, in writing, which statements you are referring to at present and that you believe yourself not to have a recording of, then the State can respond within five business days as to whether or not there is in fact a recording; and then we can take it up on June the 11th. What’s the next thing? MR. ROSENZWEIG: Crime lab. It’s a little unclear as to what may or may not have been sent to the crime lab. Obviously, we want to know what may have been submitted to the crime lab. THE COURT: Alright, let’s take care of that. Mr. Best, do you mind by seven days when you do your certification, get with your office, make a list of the stuff, one, two, three, four, that was submitted? MR. BEST: Shouldn’t be an issue, Your Honor. THE COURT: Yeah, three things or ten things. Go ahead. (PR648) ABSTRACT 786 MR. ROSENZWEIG: At the crime lab -- A number of the analysts at the crime lab -- not all, but a lot of them -- will say, We can’t talk to the defense unless the prosecution grants permission; and I would assume that there won’t be any problem if that comes up, with Mr. Deen’s office talking to –THE COURT: Well, a good way to do it is y’all can talk to them together. MR. ROSENZWEIG: Well, that may or may not be possible depending on the schedules. THE COURT: Well, let’s give it a try. If he wants to visit with them, then let’s see if you-all can get together and get your interview done all at the same time, unless they just want to let you do it by yourself; and I have no problem with that. It doesn’t matter to me. Go ahead. MR. ROSENZWEIG: Anyway, we’re in the process of working through all the materials and we haven’t gone through and fully analyzed everything; these are just things that have occurred to me in the process of scanning through it. THE COURT: Well, that’s the reason I’m giving y’all the amount of time that I am. (SPR 649) Alright, so we’re clear, within seven days, you’ll send out a letter to your law enforcement and list by number what you submitted, then defense will have until June 2nd to go through that. I expect any motions to suppress respecting statements –- not ABSTRACT 787 talking about anything else –- respecting statements made by either of the defendants to be filed by June 2nd. Give the State an opportunity to respond and subpoena any officers here. That way all of that is out of the way. Then let’s go ahead and –- I’m not going to do any further settings beyond that as I would ordinarily because the case, or cases, themselves, we may need to set aside a special time for that, so why make y’all reach for your calendars at this point? Alright. MR. PARRISH: Your Honor, may I? THE COURT: Uh-huh. MR. PARRISH: If I might request of Mr. Best -- I would just mirror Mr. Rosenzweig’s request –- but if he’s going to notify Mr. Rosenzweig (talking over) the State (talking over). MR. BEST: Yes, that was my intention. (SPR 650) THE COURT: It applies to both. It’s all one case right at this point. And if you would send a copy of what you –- Don’t do it by letter. In things like this, and in some civil cases, it’s best to do it by formal response, style of the case, and that way the clerk knows to file it and send me a copy; and I’ll keep my own file on it so if a question arises. Anything else at this point? MR. PARRISH: Not at this time on behalf of Mrs. Pedraza, Your Honor. MR. ROSENZWEIG: I have one other thing. I talked with Ms. Barnard and ABSTRACT 788 I think because of the State’s involvement in the case, I think we probably need to disclose this -- We don’t –- Neither of us perceives any problem. I have, at any earlier occasion, previously represented Ms. Barnard on a matter. She represents cocounsel. That representation has concluded –THE COURT: Represented whom? MR. ROSENZWEIG: Ms. Barnard, co-counsel. I represented her at one point. That representation has concluded; and I thought, particularly, because of the nature of the charges here and the fact that the defendants may end up being adverse to each other, it’s appropriate just to put it on the record. MS. BARNARD: And I’ve discussed that also with our client, Your Honor, and she is aware of it and is okay with myself, along with Mr. Parrish, continuing her representation. THE COURT: Of course, Mr. Rosenzweig has discussed it with his client also. MR. ROSENZWEIG: We have no problem –- Everyone’s fine with it, Your Honor. THE COURT: Well, let me hear from the defendants personally on that. Mr. Pedraza, has Mr. Rosenzweig discussed with you the fact that he represented one of Mrs. Pedraza’s attorneys at one time? (SPR 651) MR. PEDRAZA: Yes, Your Honor. ABSTRACT 789 THE COURT: Come on up to the mic so my reporter can pick you up. I don’t want to know what the representation was necessarily in connection with, but I want to know if he told you what it was in connection with. MR. ROSENZWEIG: I did not, Your Honor. THE COURT: You did not? Then you need to. And I will –- I’ll assume this will all go well, but I want you-all to do this: I want you to submit to this Court under seal the –- and your client signing off on it –- that you have informed them that Mr. Rosenzweig represented Mrs. Pedraza’s -- one of her lawyers –- that the representation has concluded and the general nature of that –- it would be under seal –- and that your client and you will have to sign, each defendant, that you understand that that -– You’re satisfied that that would make no difference in this case, in case people’s memories get bad. You can do that by the next hearing. MR. ROSENZWEIG: That’s fine, Your Honor. THE COURT: Good deal. Alright, we’re concluded. (SPR 652) MR. PARRISH: Your Honor, I’m sorry to ask this, but will there be an order generated from Mrs. Rosegrant –THE COURT: There will be. All it’s going to say is –- It’s going to give the deadlines and it’s going to be put in there that –- Your suppression motions and that’s it. ABSTRACT 790 MR. PARRISH: Thank you, Your Honor. May we stand aside? THE COURT: You may. MR. PARRISH: Thank you. HEARING, JUNE 11, 2012 THE COURT: Let me get the appearances beginning over here with the State. MR. DEEN: Thomas Deen for the State. MR. BEST: Andrew Best. (SPR 653) THE COURT: And so the –- I almost had Mr. Leonard over there; and I had forgotten who you were logged in under. Go ahead. MR. ROSENZWEIG: Jeff Rosenzweig for Daniel Pedraza. MR. BENCA: Patrick Benca, Your Honor. MR. LEONARD: Timothy Leonard: Daniel Pedraza. MS. BARNARD: Cheryl Barnard: Victoria Pedraza. MR. PARRISH: Gregg Parrish: Victoria Pedraza. THE COURT: Very good. Before we get started on the motions here, my last pretrial order setting this matter for today, reflected in it –- it’s a May 7th order –- that the Court had, on the record and in this order, excluded certain time from the speedy trial act as with respect to both defendants due to defense counsels’ motion on that ABSTRACT 791 day to continue the omnibus hearing until today, June the 11th, to allow more time for discovery; and it further recited the fact that the reason for the exclusion, consequent delay, is that counsel for both defendants have only recently entered their appearance and had not been appointed at the time of plea and arraignment on April 2nd. I relieved Arkie Byrd, Victoria Pedraza’s counsel, on April the 2nd and Steve Porch as Daniel Pedraza’s. I put in there as a safeguard, “If Defendant objects to this exclusion of time for these reasons then the Defendants are to file written motion for reconsideration within five (5) business days from receipt of this order.” Have youall filed any such objection? MR. ROSENZWEIG: We have not, Your Honor. MR. PARRISH: We have not, Your Honor. THE COURT: And so, you do not disagree with the Court’s exclusion, at least as recited in that order? (SPR 654) MR. ROSENZWEIG: No objection. THE COURT: Very good. Alright. That takes care of that. I, also, at the previous pretrial hearing, ordered that the State furnish certain matters of discovery prior to this hearing. Among those that have not been furnished, at least as of late, that I know have -- at least the Court has it -- is the autopsy of the alleged victim. Does defense counsel have –- Remain seated. Do ABSTRACT 792 you-all have that autopsy now? MR. ROSENZWEIG: Yes, sir, we got ours toward the end of last week. (SPR 655) THE COURT: Fine. I just want to know if you have it. MR. PARRISH: Likewise for Mrs. Pedraza. THE COURT: You may keep your seats. Do you anticipate filing any motions as a result of that information contained in the autopsy? MR. ROSENZWEIG: Your Honor, we’re in the process of digesting it and we’re going to be consulting with our own experts; we may or may not. It’s just too early to tell. We want to reserve the right to do so, but we don’t -- I’m not able to give you a definitive answer one way or the other. THE COURT: Well, what do you think is a reasonable period of time for you to digest it and consult your expert and file any such motion, to determine if you need to file any further motion? MR. ROSENZWEIG: Can I have a second, Your Honor? THE COURT: Yeah, just stay at your seat. MR. ROSENZWEIG: Two months. THE COURT: Two months? MR. ROSENZWEIG: Two months. ABSTRACT 793 THE COURT: You’ve identified your expert already? MR. ROSENZWEIG: We are in the process of obtaining authorization from Ms. Sallings to retain, but we do not have the formal authorization, although, I do expect –- (SPR 656) THE COURT: The answer would then be, no, you’ve not specifically identified a person to –MR. ROSENZWEIG: We have a possible person; we have not completed the formal process of getting Ms. Sallings’ authorization. I do expect we will have it within a couple of days. Like I said, we just got this autopsy less than a week ago. THE COURT: Well then, what would take two months? MR. ROSENZWEIG: Well, the expert would have to look at it, to look at all the evidence, look at all the x-rays, look at all the photographs, et cetera, et cetera. And I assume this would not be his only –- The only thing he’d be doing. THE COURT: And given that, what makes you believe that it would take more than a week to two weeks for him to examine this stuff? MR. ROSENZWEIG: Well, assuming that there may be a little bit of time getting the crime lab to send –- He may need to look at other things in the crime lab, may want to talk to the crime lab doctor, things like that. It may not take that long. I’m trying to make sure that we set a date that we know we can make. ABSTRACT 794 THE COURT: Alright. What about from Mrs. Pedraza? MR. PARRISH: At this point, Your Honor, likewise, we just received the autopsy last week. Pretty much, I’d just mirror Mr. Rosenzweig’s request. We do not have an expert identified at this point. (SPR 657) THE COURT: While I’ve got you both on your feet, moving from the autopsy to other matters that have been furnished to you by the State, do you have any complaint at this time that there’s anything missing from what the State –MR. ROSENZWEIG: Your Honor –THE COURT: –- let me finish –- from what the State has thus far furnished –MR. ROSENZWEIG: Your Honor –THE COURT: –- that you would expect to be in the State’s file? MR. ROSENZWEIG: Well, Mr. Deen has indicated and been very forthcoming about things as when he receives them. There are some items which I believe Mr. Deen has not yet received either. THE COURT: I’m not worried about what Mr. Deen’s received. I want to simply know one thing –- You know, my job is simply right now is to shepherd this case and to, on the record, determine what, if anything, has not been supplied by either one side or the other, that according to the discovery rules should be supplied. ABSTRACT 795 So, I’m not asking what Mr. Deen has done or received. Is there anything at this point that has not been received by you, from the State, in the way of discovery that you believe exist or you believe has reason -– You believe there’s reason to believe exists. (SPR 658) MR. ROSENZWEIG: Your Honor, I have two answers to that: one of which is there’s materials that were sent to the crime lab that as of the end of last week, the crime lab had not prepared its reports yet. Now, that’s not Mr. Deen’s fault. THE COURT: I just want to know –- I want to identify them. MR. ROSENZWEIG: You said “the State,” and I’m telling you –- I’m giving you an answer. THE COURT: Okay. MR. ROSENZWEIG: Okay. That’s the first thing. The second thing is, we just got a bunch of discovery the other day. I haven’t had time to digest it all to determine whether there’s any records in there, something we don’t have. I’m in the process of digesting it but, you know, I don’t want to just read it just one time. As far as I can tell, I cannot name -- Other than the crime lab results, I cannot name at this point any specific thing we appear to be missing that we believe to be in existence. THE COURT: That’s all I need to know. MR. PARRISH: Your Honor, I won’t reiterate the crime lab because the ABSTRACT 796 Court’s aware of that –- (SPR 659) THE COURT: Please don’t. It’s here. MR. PARRISH: Your Honor, I don’t think there’s a problem with it –- And, likewise, we received two e-mails from Mr. Deen’s office last Friday. I’ve conferred with Mr. Best. I think some of that is duplicative, but I think some of it is new, and I have not had a chance to go through it because I was out of town -- we received it Friday -- and I’ll do that this week. The one thing –- And I’m not sure it even exists, but the State has provided me a statement of rights form dated March 1st of 2012 by Mr. Best, and the time is 9:47 a.m. on that statement of rights form; and I know that there was another statement on that date at a different time. I don’t know if this –I don’t have this statement, this particular date and time. (Mr. Parrish and Mr. Best conversing.) MR. PARRISH: Your Honor, this is not an issue based upon what Mr. Best has just told me. So, there’s not an issue with this statement of rights form. THE COURT: Mr. Rosenzweig, do you care to identify to the Court, so that I can enter an order accordingly, any matters, tangible evidence, that’s been submitted to the crime lab that you have not received a report on? MR. ROSENZWEIG: I have the entire crime lab evidence submission sheets, if I can –- May I approach? ABSTRACT 797 THE COURT: Sure. Is this being offered as an exhibit? (SPR 660) MR. ROSENZWEIG: I can –- This is –- I can offer them. This is what I got from the crime lab under evidence submission form. I asked them to print up everything they had there for lab work or other –THE COURT: What I need to know is what they have that has not been tested. MR. ROSENZWEIG: Well, I don’t know what they have tested or not tested; I know what I don’t have results for. THE COURT: That’s what I –- I’ll take that. What do you not have results for? MR. ROSENZWEIG: Okay, “Blue fleece blanket, w/stains; Child’s green tshirt, w/stains; Child’s bluejeans” –THE COURT: Just –- Hold it a minute. Is it given an item number? MR. ROSENZWEIG: Yes. I’ll just give you –- If you want, I’ll just hand it to you. THE COURT: Do you have it highlighted? (SPR 661) MR. ROSENZWEIG: It’s pretty easy to locate on the paper. Your Honor, it’s each one of these things. THE COURT: Alright. Well, mark this, Court’s Exhibit A, to this hearing. (WHEREUPON, Court’s Exhibit A was introduced into evidence, was marked ABSTRACT 798 by the reporter, and is attached hereto.) THE COURT: Is it your representation to this Court that all the matters contained in this report beginning with “Blue fleece blanket” down to “Several discarded paper towels w/stains” and then three items on the second page, “Blue towel; White towel; Child’s pair of white & pink socks, w/stains,” none of those have been the results of any tests on any of those items? MR. ROSENZWEIG: As far as I know, no results have been retained. When I talked to the crime lab people last week, when I picked that up -- When I picked that up, they said there were no results at that time. That was five days ago. THE COURT: That’s all I need to know. MR. DEEN: I can go online instantaneously and see whether they’re prepared or not through our account. THE COURT: We’ve got the autopsy and I was thankful -- that’s the main thing -- I was thankful to get that by this time. I’ll give you-all –- I see the items listed; and I will give you, say, probably a week to –MR. DEEN: She’s going to go back online and check right now. (SPR 662) THE COURT: And let Mr. Deen work with the crime lab and see if he can’t get those results as soon as possible. So, those are the matters that are still outstanding that the defense has thus far not received. The Court has then some idea ABSTRACT 799 that -- All things considered, considering the fact that we have two defendants, the nature of what’s charged, really, that’s not a lot outstanding in this case; and shouldn’t impede anything. I also note that Mr. Deen apparently sent counsel, under his cover letter of June 8th, this last Friday, eleven additional matters. After he compared law enforcement’s file with his file, he found eleven additional matters that he thought he should share, and has done so. What the Court’s going to do –THE COURT: (to the clerk) Did you get a copy of this? THE CLERK: I’m not sure. THE COURT: Mr. Deen, did you send that June 8th attachment to the clerk for filing? MR. DEEN: No, sir, it’s attached to your order though. THE COURT: Gotcha. (SPR 663) MR. DEEN: The computer printout is attached to your order. And she just pulled up the screen again (inaudible) say “in progress” except for the autopsy report and –THE COURT: I just want to make sure. Make me a copy and you can make this Exhibit B, Court’s Exhibit B. ABSTRACT 800 (WHEREUPON, Court’s Exhibit B was introduced into evidence, was marked by the reporter, and is attached hereto.) THE COURT: What about from the State, have you asked for certain things from the defendants that –MR. DEEN: We filed a general motion for discovery; thus far, have not received any response. I’m pretty sure (inaudible) receive one. There are a couple of items that I intend to supply to them that I have not yet done. However, Mr. Parrish (inaudible) told me this morning, and that is this incident between the Pedrazas involving an alleged domestic abuse in Sebastian County. I understand there’s some police records and court records involving those. THE COURT: Both Pedrazas? MR. DEEN: Yes, sir. And I’ll be submitting that. THE COURT: And did it have to do with this particular child? (SPR 664) MR. DEEN: I don’t know if the subject matter (inaudible) had to do with the child or not. THE COURT: I just couldn’t hear you well enough to –- It has to do with a domestic content? MR. DEEN: Between the two co-defendants. THE COURT: Did it involve violence? ABSTRACT 801 MR. DEEN: (Inaudible) involve violence or threats of violence. THE COURT: Alright. MR. DEEN: Also, another matter that I’ve also revealed to counsel this morning. We initially assigned this case to Mr. Moss. He’s no longer employed with the state police. THE COURT: Talking about Mr. Moss? MR. DEEN: Yes, sir, Clayton Moss. And I revealed to them some of the particulars that I have been told by his colleagues as to why he is no longer employed with the state police. THE COURT: Is that going to be an issue in this case or does it have the potential –- In other words, what does the Court need to know on the record in order for me to try to anticipate –MR. DEEN: Well, as I told the attorneys, Clayton Moss is still, I anticipate to be an important witness in this case, and when I have him on direct examination, the Court can be quite sure that I will bring all those things out. THE COURT: You don’t think it’ll be the subject of any preliminary motions of any kind? MR. DEEN: I wouldn’t anticipate. It’s a rather delicate matter. (SPR 665) THE COURT: I’ve got you. Well, I’m not going to ask you to go into it at this ABSTRACT 802 time; I was unaware of that. I don’t know where I picked up he wasn’t with the state police, but it went in one ear and out the other. People move on. So, in any event -What are y’all standing up for? MR. PARRISH: Your Honor, if I may, typically, (inaudible) Mr. Deen’s office (inaudible) Mr. Moss, obviously. Do you have a way to provide us that report to get in touch with him directly? MR. DEEN: I have his personal cell phone number. MR. ROSENZWEIG: We would join in on that and –- The matter that Mr. Deen has disclosed to me, (inaudible) informally, and if accurate it’s with some sensitivity. I think that our request for knowledge is probably covered (inaudible), but we may file a supplemental motion to get it all tied – MR. DEEN: Again, it’s a matter of something I’d rather not –THE COURT: Well, it didn’t come up in connection with this case? MR. DEEN: No, it did not. THE COURT: Alright. Then that settles that, at least for the time being. I’m not going to borrow trouble. (SPR 666) Let’s go now to the issue of mental exam. Are either defendant, beginning with Mr. Pedraza, going to be asking for a mental exam, for any purpose? MR. ROSENZWEIG: Your Honor, with regard to Mr. Pedraza, it’s our ABSTRACT 803 position –- We are not challenging he’s competency to stand trial; we are not alleging mental disease or defect with regard to a guilt-innocence defense at this point. We are doing some examination of him, which if we were to decide to pursue something -- it may be perhaps in preparation for a penalty phase -- it may be the State may be entitled to have its own examination in rebuttal, if we decide to go that way. We have not gone that way yet. The state hospital does not examine for mitigating circumstances, so we would have to go outside the state hospital for that. MR. PARRISH: Your Honor, with regard to Mrs. Pedraza, we do not anticipate seeking a mental disease evaluation at this time on her. THE COURT: Very good. Well, the Court knows you’re both good lawyers and you’re well on your way in this case. If anything, in your preparation thus far, in either talking to your clients or possible witnesses would indicate that a mental evaluation, either for fitness to proceed or culpability would be necessary, you would have made it by now. (SPR 667) Alright, are there motions that you would care for the Court to take up today? Have you filed a –- I’ve gone through some of them and I have a file up here on them. Are there any that you believe the Court should take up today that will help you in your case? MR. ROSENZWEIG: Your Honor, I think our severance motion -ABSTRACT 804 (Inaudible). I filed a motion, I think, before we had much in the way of discovery, and the discovery we have now accentuates that –THE COURT: Alright, all I wanted to know is the answer, and you’ve given it to me. You said “severance.” Now, the date upon which you filed that, or approximately, is what? I have all your motions in one file. When was it filed? I don’t see it in this stack. MR. ROSENZWEIG: Yes, I filed -- April 20th is when mine was filed. THE COURT: Alright, just give me a chance. MR. PARRISH: The motion for Mrs. Pedraza, Your Honor, was filed on June 1st. (SPR 668) MR. ROSENZWEIG: I can give you a copy of it, Your Honor. THE COURT: That’s alright. Keep it. You didn’t file yours until –- I can take them both up at the same time. MR. PARRISH: Your Honor, I believe if you take up Mr. Rosenzweig’s then mine becomes possibly moot at that point. THE COURT: It’s possible for one to have a right to and the other one not. Unusual, but –MR. ROSENZWEIG: As far as one has a right -- there’s only two people –that’s it, Your Honor. ABSTRACT 805 THE COURT: But I know that, I’m just saying it depends upon who files it sometimes. Mr. Rosenzweig, you missed my point entirely. You state in here in paragraph 2, it’s understood that the two defendants have given statements which cannot be redacted in a way that removes prejudice from their introduction. Therefore, you cite Rule 22.3(a) and the constitution states their defenses may become antagonistic; and you cite the factors that the Court properly should consider, some of which may have developed, some of which it would have been impossible to develop so far, such as testimony against each other at trial. What defenses are antagonistic, Mr. Rosenzweig? That’s Factor 1. (SPR 669) MR. ROSENZWEIG: Well, at the time I had prepared that motion, we did not yet have copies of the statements. We have now received one of Mrs. Pedraza’s statements which is very inculpatory toward Mr. Pedraza; and if it were introduced, it clearly would be a violation of the constitution –THE COURT: And when was that statement given? Do you remember the date? MR. ROSENZWEIG: It’s her last statement. March the 1st, I think? THE COURT: And that statement was given by whom? MR. ROSENZWEIG: Victoria Pedraza. ABSTRACT 806 THE COURT: March the? What did he say? COURT REPORTER: First. THE COURT: First? Mrs. Pedraza. Alright, what I’m asking though is where defenses are antagonistic. (SPR 670) MR. ROSENZWEIG: If in fact that statement is an accurate description of her position –- and I’m unable to answer that –- then they would be very antagonistic, Your Honor. In other words, she would be claiming that Mr. Pedraza caused the death; and Mr. Pedraza says, no, he didn’t, it was an accident. THE COURT: Well, is that what the rules mean when it says “where defenses are antagonistic” or does it mean where one claims alibi and the other claims selfdefense, you can’t have both? MR. ROSENZWEIG: Your Honor, may I –THE COURT: I’m just asking. MR. ROSENZWEIG: Okay. One, I’m unable to say. Mr. Parrish and Ms. Barnard can answer to what her defense is. If –- I can tell you this, she has given a statement which if not suppressed or otherwise excluded would absolutely entitle us to a severance whether their defenses were antagonistic or not. Now, on the question of antagonism, I can only surmise that her last statement is in fact her defense, but now I am not in a position to answer that. ABSTRACT 807 THE COURT: Very well. Where it’s difficult to segregate the evidence, point me to your support for that. MR. ROSENZWEIG: Where it’s difficult to segregate the evidence? Well, at this point, we don’t know, however, because a lot of the evidence is in the crime lab other than the statements. So, until we know the status of the evidence, that would be –- I’m unable to give a full answer. THE COURT: No. 3: Where there’s a lack of substantial evidence implicating one defendant except for the accusation of the other, what do you offer in support of that factor? (SPR 671) MR. ROSENZWEIG: What do we offer in support of that? Well, the statement attributed –- the last statement attributed to Mrs. Pedraza -- would be a significant portion of that. THE COURT: So, you’re saying there’s a lack of substantial evidence implicating your client, except for that March 1 statement? MR. ROSENZWEIG: That –THE COURT: That’s the bottom line. MR. ROSENZWEIG: –- is the large part of the State’s case. THE COURT: Where one defendant could be deprived -- Could deprive the other of all peremptory challenges. I think that’s pretty standard and self-evident. ABSTRACT 808 Where one defendant chooses to testify, the other is compelled to do so? MR. ROSENZWEIG: Obviously, that doesn’t (inaudible) until there’s a trial. THE COURT: Exactly. Where one defendant has no prior criminal record, the other has? Is that present here? MR. ROSENZWEIG: I’m not aware of what Mrs. Pedraza’s criminal record might be. I assume she does not have much of one. (SPR 672) THE COURT: Where circumstantial evidence against one defendant appears stronger than against the other, is that present here? If so, how so? MR. ROSENZWEIG: I’m not able to fully answer that at this time because there’s a bunch of discovery that I haven’t fully digested. THE COURT: Then what the Court –- The Court has no idea how it will rule eventually on it. I consider it though to be premature at this time. I would –Do you wish to offer any more, counsel for Mrs. Pedraza? MR. PARRISH: Not at this time. THE COURT: It would be premature. I do want to decide it though as soon as possible because scheduling two trials is a lot different than scheduling one. Normally, it would take two panels to try either one or both -- talking about a term of court –- so at this time, according to the factors that the Court’s supposed to consider, there’s really no basis upon which I should grant a severance. That is not ABSTRACT 809 to say –MR. ROSENZWEIG: Your Honor –THE COURT: -- that a severance cannot be granted at any time between now and the time a jury’s picked. (SPR 673) MR. ROSENZWEIG: Your Honor, maybe I’m misunderstanding what you’re saying. There are two separate –- or several –- different mechanisms by which you can get to a severance. One is the cross-implicating statement; second way, second independent way, or the -- Anyway, my understanding –- I can’t speak for Mr. Deen –- but my understanding is Mr. Deen’s position, he agrees that Mrs. Pedraza is entitled to a severance based on cross-implicating statement. MR. DEEN: Well, I think there would be a (inaudible) issue, given the detail of her statement against her husband -- her last statement, as you said –- against her husband. Redaction would be extremely cumbersome to the point of being almost useless. THE COURT: And? MR. DEEN: At the same time, I will say –- I know this is not a direct answer to your question -- It is my desire that Mrs. Pedraza will be testifying live at this trial –THE COURT: Which brings us to this point -ABSTRACT 810 MR. DEEN: That would moot the issue. THE COURT: You may have a seat, Mr. Rosenzweig. The Court’s still not going to rule on it at this time. The Court has an independent obligation to get these cases tried as quickly and as fairly as possible. You may have a seat, Mr. Rosenzweig. I understand that sometimes the State may offer a plea, in any criminal case, to a co-defendant in exchange for cooperation and testimony that the State would consider to be both truthful and helpful. The thing that gives me some pause here, that I wish to put on the record is, when I looked at the first time at the autopsy report today –- Let me have that autopsy report. (SPR 674) MR. ROSENZWEIG: Your Honor, while you’re looking –THE COURT: No, I remember where it said it. MR. ROSENZWEIG: Your Honor, your reference to having looked at the autopsy raises another motion that we need to take up, which is a motion that we filed, and I believe Mrs. Pedraza also filed, to rescind your order to provide all materials to you. Of course, the basis for it was that we –- Which we were concerned that this would be regarded as a reception of evidence outside the presence of the defendant, which has (inaudible) critical stage, and that was kind of our basis for it. I understand the Court’s motivation appears to be to ascertain there’s not going to be a discovery problem, but I think the Court needs to wait and see if we determine there ABSTRACT 811 is a discovery problem, first. THE COURT: Okay. MR. ROSENZWEIG: That’s our position, Your Honor -THE COURT: Very good. (SPR 675) MR. ROSENZWEIG: –- and I’d ask the Court to grant the motion to rescind. THE COURT: Yeah. Well, I’m not. You can have a seat. The Court’s not receiving evidence, obviously. I don’t want to state the self-evident. In any event, the thing that I wanted to alert the State and defense counsel of is that after reading the autopsy report and the findings in there regarding old-type injuries, or aged injuries, it, in no way, forecloses anything except that it does -- to the extent the Court would need to approve anything -- the Court doesn’t have to approve anything, fine, but if it becomes important for the Court to approve any type of plea negotiation in exchange for what the State considers something of value for a favorable sentence recommendation for either to testify against the other, the age of the injuries is what gave me pause, that if it were shown later at trial of either one, that this was an ongoing process, it would make it less likely that the Court could accept certain types of recommendations, unless of course it was absolutely vital to the State’s case against the other. And I don’t second guess the State on that. But these are –According, at least to the medical examiner, this was not a one-time event. And if ABSTRACT 812 something has been ongoing then the Court may conclude that given the age of the alleged victim, what, two, three years old –MR. DEEN: Three. (SPR 676) THE COURT: –- then it’s harder for this Court to look the other way with regard to a suggestion in exchange for a plea bargain that one is more or less culpable. It would have been different if I would have seen that it was a one-time deal, according to the medical examiner. But, then again, that will all be looked at by defense expert. MR. DEEN: Your Honor, I don’t know (inaudible) to you. THE COURT: And if it’s not then I don’t have to worry about it. MR. DEEN: The State has a very firm view as to what happened here, whose hands were placed on who. It may be a more likely scenario as opposed to a sentencing recommendation is the potential guilty plea by the other party to a lesser offense for the jury to decide what sentence she receives in exchange for her testimony against her co-defendant, which is critical, not so much for conviction but for purposes of imposition of death penalty, which I fully intend to seek. (SPR 677) THE COURT: That may very well be so. You know much more about the case than I do and should -- you both should -- but that did come to my mind. ABSTRACT 813 Alright, with respect to the –- Any motions –- First of all, let’s take care of the items mentioned in Court’s Exhibit A, the blanket, so on and so forth, about ten or twelve items, that are in Exhibit A. I’m going to give the State til the end of the week to find out from the crime lab when the results will be back from whatever test -- I know there’s some DNA tests -- and they will be required to be back certainly by our next hearing date, which is July 10th. Insofar as witnesses are concerned, by July the 10th, I’m ordering –- How long –- Not knowing if there’s going to be a severance, when do you think you could get your case ready? When do you think you could try your case on either one –MR. DEEN: Your Honor –THE COURT: –- with the earliest –- In other words, if I said, Mr. Deen, take all this information, give me a list of witnesses and how long you think it’ll take to pick a jury and put your case on, how quickly do you think you could get that done? MR. DEEN: In the number of days allotted me or in the calendar? (SPR 678) THE COURT: In the calendar –- From now until whenever, when do you think you could –MR. DEEN: Here’s the issue, if he takes sixty days to develop his PTSD defenses, as I think that’s where he’s going as a mitigator –THE COURT: But I’m not –- I’ll give him less time on that. ABSTRACT 814 MR. DEEN: –- then I’m looking at –- That creates my whole clock running again to have somebody at the state hospital to try to rebut that, or some other expert. THE COURT: He’s not going to have that time. If you didn’t have to worry about Post Traumatic Stress Syndrome defense –- And the schools I’ve been to, it’s debatable when and if that comes in, anyway. I know it’s safer to always let it in, so on and so forth, but believe me, there is a body of thought out there that is very much against the syndrome mitigators. If you didn’t have to concern yourself with that, how quick could you get to trial, by giving them a list of witnesses just like you would in a burglary case? (SPR 679) MR. DEEN: Neither of our witnesses are lay witnesses; the police officers, the personnel out at the hospital that tried to treat the child, the crime lab. Of course, crime lab with those medical examiners, I like to be at least ninety days out. Of course, give me two or three days so that I can get with their coordinators and see where I am because, oftentimes, I know Your Honor wants his cases first, and he wants his crime lab first, his autopsy first, but there are cases scheduled ahead of you. I may be told I’m third out, for instance, on a particular day, or I’m second out, or I’m fourth out, which makes me somewhat uncomfortable. I mean, I’ve had occasion where I’ve been second out –THE COURT: So, you think I need to set –- I need to set this case now. I ABSTRACT 815 need to set both defendants at the same time now. If it develops that you moot –you-all moot the issue of severance –- then that saves that. Mrs. Rosegrant and I discussed it the other day. When can I try it? With the 35 days excluded, ordinarily the time would run, say –- It’d be the end of the year or around there. So, why don’t I set both cases for trial on -- Worst-case scenario how long do you think it’ll take to try this case? MR. DEEN: I believe that the State can pick a jury and present its evidence in four days. Again, I’d be grateful if I could have alternative dates to present to the medical examiner’s office –THE COURT: I’m going to do that, but I’ll do it two ways: I’m going to give a –- I’m going to take a week that’s not perhaps a criminal week and then perhaps a week that is -- not just the medical examiner, but give defense counsel some choice in that –- and then -- We’ve just got one courtroom here and –- Right now I’m looking at October. (SPR 680) MR. PARRISH: Your Honor, just for the record, I think the Court said without the excluded period, the Court was thinking speedy trial ran at the end of the year. That’s what I understand. Mr. Best and I thought speedy trial without the excluded periods would not run until February of next year, as I understand it. ABSTRACT 816 MR. BEST: Right, February 28th of 2013 –THE COURT: I backed it up. It’s the only thing that scares me. But this case is not going to get better with age. Whether it be the chief investigator is no longer under the so-called control of the State; peoples’ memories get bad and -- There’s no reason why a capital case has to take a year to get to trial, if it is the type of case that can be brought to trial before then. Keeping in mind, speedy trial (inaudible) -Give me October. That’s what I want. I’ll tell you what -- What’s that? The 15th? I’ll tell you what, I’ve got judicial conference the week of October the 15th. I went for one day last week and was bored to death, came home, so I don’t care about going. Let’s look at October the 15th and then –MR. ROSENZWEIG: Your Honor –THE COURT: Goodness, let me get my words out. (SPR 681) MR. ROSENZWEIG: I’m sorry, I thought you were finished, Your Honor. THE COURT: Then let’s look at the following week also; and that’s my criminal trial week. That’s two weeks right there. So, what I’m going to do is I’m going to set it –- I’ve got a civil jury trial the 15th, I’ll just bump that and –- just a one-day trial –- I can get it tried anytime, I’m sure –- and we’ll set it first out on the 15th or we’ll set it first out on the following Monday. The advantage is, if everything works out with you-all on the 15th, it could ABSTRACT 817 go over on that following Monday; and then if the other one, if it has to start on the 22nd –- Oh, that’ll conflict with drug court. If it has to start on the 22nd for purposes of witnesses and so on and so forth, the 29th is open, which is the third Monday. In other words, if you start on the 15th, we could go over to the 22nd. That’d be a six-day trial. If we started on the 22nd, a date is open for the 29th, which is the Monday following so y’all won’t be cramped for time. (SPR 682) And I would ask that y’all sweet talk your witnesses as much as possible to see what we can get done in that respect. Then I will set the next hearing –In the order –- The only thing you will say in this order, and whatever else comes up, Mrs. Rosegrant, is that the State will have until this Friday, either get the results or furnish some reason why the results on those items in Exhibit A are not here. With respect to any mitigators that the State –- this is generally speaking –- that the State would have an opportunity, an obligation, to offer rebuttal evidence on, be it, PTSD, PTS, whatever, or any others that rebuttal evidence may be offered on, I would order that the defense decide upon those and get its experts identified within the next thirty days. You-all should have already been well on your way on that one anyway. The same way with your autopsy report. You’ve received it now, and I’m sure ABSTRACT 818 that the director will approve another forensic looking at it; and I would ask that that person make his or her critique of it within the next thirty days and supply the same to the State. You’ll put that in there. In other words, State has thirty days to identify any mitigators for which it will offer expert testimony and identify the names of those experts and what they will say; and, therefore, the State can then make a decision on whether or not they believe it worth it to get rebuttal. (SPR 683) The motion for severance is denied at this time without prejudice to re-raise it at any point in the future. Counsel, for Mrs. Pedraza, do you know of any other motions that you would like for the Court to rule on at this time that she has filed? MR. PARRISH: Not at this time, Your Honor. We may address it when we come back on our next date. THE COURT: Okay. MR. PARRISH: I’m sure at some point, as I’m sure the Court is aware, the Court said the motion for severance was denied without prejudice, I’ll go ahead and advise the Court, I’m sure we’ll be addressing that again at some later point. THE COURT: And I’m going to see if that –- I would –- I think implicit in this is I would hope and expect if you and the State moot that motion, you’ll do so as soon as possible. If you decide to do something that would moot that motion, you ABSTRACT 819 would do so as soon as possible because it’s going to effect the number of days and all that stuff that –MR. DEEN: We’ve discussed the scenario, the possibility, which I mentioned a few minutes ago. (SPR 684) THE COURT: I understand. Yes, sir? MR. ROSENZWEIG: I prematurely -- In the middle of your –- A minute ago in the middle of your statement –THE COURT: That’s alright. Go ahead. MR. ROSENZWEIG: In terms of scheduling, I am somewhat skeptical that we’re going to be able to get this thing tried in October, but I also need to let you know that I have previously been told in another case to leave the first two weeks of October available for a trial in Hot Spring County. I have a hearing on that case on July the 11th, the day after our hearing here, and I’ll probably have more information on whether we’re actually going to go to trial or not. That case in Hot Spring County is a 23-year-old case. THE COURT: Yeah, well, I think you answered my question. Has that case been set? MR. ROSENZWEIG: It’s been tentatively set for sometime in that two-week period. We don’t have exact dates. (SPR 685) ABSTRACT 820 THE COURT: Right. Well then, my setting is first. You know then, if my setting is first, it prevails. And thank the judge there for tentatively setting this case. You know, everybody always wants to reserve your time. But this case has been set as of today, so it takes precedence; and that’s even more reason to get it tried then. You might get some more tentative settings. Yes, sir? MR. BENCA: Your Honor, Patrick Benca –THE COURT: Yes, sir. MR. BENCA: July 10th, I do want to inform the Court -- Obviously, Mr. Rosenzweig is first chair; I am second chair. July 2nd, I do have a family vacation that I have –THE COURT: You take it. MR. BENCA: –- for that whole week. Very good. THE COURT: You take it. MR. BENCA: And then with regard to the October setting, I want to inform the Court that I do have a case that’s set on the Benton County’s -- death penalty case -- October 8th, in front of Judge Green. It’s anticipated it’s going to last approximately two weeks, so the latter part of October obviously –- I wanted to put the Court on notice there’s that possibility. ABSTRACT 821 THE COURT: Right. And that’s the reason I wanted to do it now because, you know, if that appears to develop then -- I would love to have you in this courtroom, but they’ll have to find someone else. (SPR 686) MR. ROSENZWEIG: Your Honor, at some point -- Your Honor, Mr. Porch, first, already had to remove himself from the case because of that, but -- We can’t be in a position where I’m working with Mr. Benca and Mr. Leonard –- Mr. Benca is certified –- and then right before trial when there’s a conflict, substitute someone else. We just can’t do that. THE COURT: It won’t be right before trial; and we’re talking about the penalty phase. MR. ROSENZWEIG: So –THE COURT: Let’s not borrow trouble. At this point, he’s not asked for a continuance based on that. MR. ROSENZWEIG: Okay. THE COURT: So, don’t speak for him. MR. ROSENZWEIG: I’m sorry, who is the “he” we’re talking about? THE COURT: Mr. Benca’s –MR. ROSENZWEIG: He’s letting you know what one part, one member, of the defense team, who’s most familiar with his own scheduling, he has a conflict with ABSTRACT 822 what appears to be your trial date. THE COURT: I understand, but he can speak for himself and he just did. MR. ROSENZWEIG: Well, I understand that, Your Honor –THE COURT: Alright. MR. ROSENZWEIG: –- but we’re not severable. I mean, this is a defense team. We’re not individual contractors going off independently –- (SPR 687) THE COURT: I hear you. MR. ROSENZWEIG: I assume you’re denying my objection? THE COURT: For what? MR. ROSENZWEIG: Well, I do believe Mr. Benca indicated that he currently has a conflict; and you indicated that you would just remove him and we’d have to substitute someone else at the last minute. THE COURT: If it’s appropriate. We’re not going to borrow trouble. We’ll wait and see if his trial comes off; we’ll wait and see a lot of things. We’ll just be patient. Thank you, Mr. Rosenzweig. MR. ROSENZWEIG: Your Honor, my problem is, of course, the contemporaneous objection and I wanted to make sure we noted our objection. And while I’m up here, I need to make sure I understand what obligation you’re putting on us within thirty days, if you could tell us again so –ABSTRACT 823 THE COURT: It’ll be in the order, but I said that any experts that you care to identify with respect to your mitigators, or any experts, period, for instance, with respect to looking at the autopsy, that you identify those experts and the substance of what they would say within the next thirty days. That will be in time for the July 10th pretrial hearing; and the State can decide at that time if it needs additional time to find rebuttal witnesses. And there you have it. (SPR 688) And I ordered the State by this Friday to come up with the results or reason why not on those items that you identified in court. It can work with the crime lab on that. And I gave you-all a setting; and we’re put down first out on the –- whatever it was -- the 15th; or first out on the 22nd. MRS. ROSEGRANT: So, either or – THE COURT: Yeah, first out on both of those dates. And if you-all get together, regardless of the crime lab, to come either time and one is more convenient for the other, or one more convenient for Mr. Benca, then fine. Mr. Benca, whose court is your case in? MR. BENCA: Your Honor, Judge Robin Green up in Benton County. And the name on the case is Nicholas Johansson. It’s set for October 8th and it’s anticipated it’ll be two weeks. THE COURT: And it’s who now? Judge who? ABSTRACT 824 MR. BENCA: Judge Robin Green. (SPR 689) THE COURT: Robin Green. And the case was what? MR. BENCA: It’s Nicholas Johansson. State vs. Nicholas Johansson. I do have a pretrial with Judge Green set for, I want to say the third week, but I can’t give you the exact date. I can get –THE COURT: Well, a lot of times judges call each other, and I could always give Mr. Green, or Judge Green, a call and see how it looks on his docket; and you’ve got to work together. MR. BENCA: I understand. THE COURT: And I certainly don’t want to disrupt any defense. I’d love to see you try the case. MR. BENCA: I understand, Your Honor. And just to save you any -- It’s Robin Green. It’s a female. I just don’t want you to call and ask for His Honor. Thank you, Judge. THE COURT: I owe you. And I pay my debts. But fairly new on the bench, I would assume. MR. PARRISH: I think she’s been on awhile, Judge. I think she’s been there three or four years. (SPR 690) THE COURT: Three or four years? Well, that’s new. Yes, sir? ABSTRACT 825 MR. PARRISH: The July 10th date, Judge, may I presume it’s at one o’clock –THE COURT: Absolutely. If you need it any later in the day, we can do that. MR. PARRISH: Thank you, Your Honor. THE COURT: Alright, anything else from any side? I’m done. MR. ROSENZWEIG: You have denied our motions to rescind the previous orders? THE COURT: Done it twice. Thank you. We’re done. HEARING, JULY 10, 2012 THE COURT: Alright, let’s go with Pedraza. MR. PARRISH: Good afternoon, Your Honor. Is that the Victoria Pedraza, or both cases, you’re calling at this time, Judge? THE COURT: Both at the same time. Let’s get the Pedrazas in here and then I’ll get the appearances. MR. PARRISH: For the record, Your Honor, Gregg Parrish on behalf of Victoria Pedraza, also, co-counsel Cheryl Barnard who is –THE COURT: Let me get everybody in here first. Let me get the lineup. I’m doing this for the benefit, primarily, of my reporter so if there’s any question later ABSTRACT 826 about who was present, so on and so forth, we’ve got it all on the record. (SPR 691) Alright, now let’s begin with the State. The State is represented by Mr. Deen and Mr. Best, and they’re present; and I’ll begin with those at the podium and those that are not at the podium; those that are in training and those that aren’t. Go ahead. MR. PARRISH: Thank you, Your Honor. Gregg Parrish on behalf of Victoria Lynn Pedraza who stands adjacent to my right. MS. BARNARD: Cheryl Barnard on behalf of Mrs. Pedraza. THE COURT: Alright, I see Mr. Pedraza in the courtroom. MR. ROSENZWEIG: And Jeff Rosenzweig representing Daniel Pedraza. MR. MORLEDGE: As well as Birc Morledge, substituting for Mr. Benca, Your Honor. THE COURT: What’s your name? MR. MORLEDGE: Birc, B-I-r-c, last name Morledge, M-o-r-l-e-d-g-e. THE COURT: I got, just a few days ago, a motion for substitution of counsel. I’ve not authorized substitution yet; I want to take it up today. It doesn’t matter to me if you try the case in place of Mister –- As long as the substitution of counsel does not interfere with the current case scheduling order. Counsel? (SPR 692) MR. MORLEDGE: Your Honor, I do believe Mr. Rosenzweig’s going to –THE COURT: I’m asking you. You’ve seen the scheduling order and so I’m ABSTRACT 827 asking you: Will your substitution interfere with the scheduling order? MR. MORLEDGE: Your Honor, at this point, Mr. Rosenzweig, I guess would –MR. ROSENZWEIG: Right. I have to state that I’m lead counsel and I do state the position of the Pedraza defense team in this regard. THE COURT: Well, you’re counsel at the guilt stage? MR. ROSENZWEIG: No, sir, I’m lead counsel for the whole thing, Your Honor, guilt and penalty. THE COURT: Go ahead. MR. ROSENZWEIG: Your Honor, our position that we’ve expressed before is simply this, we do not think that we are going to have time, no matter how many lawyers we have, to get ready for trial in October because the sheer amount of work. We will, of course, obey a direct order to go to trial. We’re not going to get held in contempt, but we –- I seriously doubt we’re going to be in a position to announce ready for trial, but we are working as hard as we can on this matter and doing everything we can to be as ready as possible for that time. That is why Mr. Morledge was substituted –- or we’re seeking to substitute him –- for Mr. Benca because Mr. Benca’s trial schedule was such that he was essentially going to be unavailable for the month preceding the current court setting of this trial. (SPR 693) ABSTRACT 828 Mr. Morledge, his schedule does not have that conflict. I have worked with Mr. Morledge. He and I spent six weeks together on another capital case; and I have confidence in his abilities to assist me. Nonetheless, I want the record to continue to reflect our problems with the Court’s intention of October 22nd. THE COURT: Right. Mr. Morledge; correct? MR. MORLEDGE: Morledge. Yes, Your Honor. THE COURT: Spell that last name. MR. MORLEDGE: Sure. It’s M-o-r-l-e-d-g-e. THE COURT: And what’s your address? MR. MORLEDGE: It is 1311 South Broadway in Little Rock. THE COURT: Alright. Now, I put the question to you for the third time: Is there anything –- I want to hear it from you. Is there anything about you coming onto this case at this time that would, in and of itself, cause a delay? MR. MORLEDGE: Your Honor, I’d defer to lead counsel for that. THE COURT: Alright. Then I’ll take that as a no. In the future, I want you to visit with whoever you take advice from; and when this Court asks you a direct question –- I’m going to give you the benefit of the doubt today –- when this Court asks you a direct question about whether or not your advent in this case, in and of itself, switching counsel, would cause a delay, I would suggest that you answer it and ABSTRACT 829 you give the Court a direct answer. MR. MORLEDGE: Yes, sir. (SPR 694) THE COURT: In the future, your refusal –- I’m putting you on notice now –may be punishable by contempt. It is not a hard question to answer; and as a lawyer, you don’t need a lawyer, at least I should hope not. Does the State have any response to –- I’ve not entered an order of substitution yet; and at this point, I am disinclined to until the new proposed counsel understands that when asked a simple direct question that he will answer it. I’m not going to come down on him today with a contempt because I don’t think he means anything bad by it -– MR. DEEN: I don’t either –- (SPR 695) THE COURT: –- and discretion is the better part of the –MR. DEEN: –- and I suspect he’s been told to say what is he saying. It’s regrettable he won’t tell you whether or not he has conflicts for that week, but so be it. MR. ROSENZWEIG: Excuse me, the question was not whether he had a conflict for that week or not. He does not have a conflict for October 22nd and October the 29th. He does not have such a conflict. The issue, Your Honor, was simply this, the issue is whether or not there was anything on his advent on the case ABSTRACT 830 that would cause him to not be ready; and that could not be appropriately answered without preserving our issue about the Court not giving it sufficient time. THE COURT: It is a factual question; it is not a matter of your opinion. It is also a matter of demands upon his time that you may or may not altogether be aware of, be they family demands, extra-legal demands, or demands of other courts. And I do not assume, nor am I to, Mr. Rosenzweig, that you eat, live, and sleep with him, and are intimately familiar with all the demands of his life, including possibly health demands; and, so, that is the reason –- It goes far beyond any demands that another court may place upon him. There may be personal issues that I would need to be aware of and that he, for some reason, has not made you privileged to. MR. ROSENZWEIG: Okay, Your Honor –THE COURT: Now, having said that, you’re not recognized any further. You may have a seat. I want to take up the next matter. (SPR 696) MR. LEONARD: Tim Leonard for Mr. Pedraza, Your Honor. THE COURT: Alright, now, let’s get Mrs. Pedraza up here. MR. PARRISH: I’m sorry, Your Honor? THE COURT: Let’s get to the business at hand. This is a pretrial hearing. I want to know from the State, are there any matters –- you alerted me to by letter a couple of days ago –- are there any matters, Mr. Deen, in the way of discovery, that ABSTRACT 831 you would like to bring to the Court’s attention, beginning first with have the defendants furnished you with what you believe they should at this point? MR. DEEN: They have not, but I’ve not made a demand as of this point. THE COURT: What jumps out at you as the things that perhaps they could have done by this time and furnished you today? (SPR 697) MR. DEEN: The witness list would be one thing, and I spoke with Mr. Rosenzweig about that this morning. He has retained some experts, I understand that, but he has not yet designated them as witnesses and he has not yet made a decision whether or not they will be witnesses. Under those circumstances, I don’t think he’s required to disclose them to me at this point. THE COURT: Alright. Now, I’m going to turn –- Keep this defendant by defendant. With respect to Mrs. Pedraza –- the cases have not been severed at this time –- but I’m not skipping forward because I want to hear from you-all on this. Apparently, you-all are here anticipating perhaps some type of plea today; is that correct? MR. PARRISH: We have a recommendation, Your Honor. THE COURT: Yeah. MR. DEEN: I’ve amended the information as to Mrs. Pedraza. THE COURT: Right. The Court got a letter from Mr. Deen the other day and ABSTRACT 832 it basically –- didn’t ask for my concurrence and it didn’t ask for anything else, and is not required to –- but I’m not –- Today –- I’m not saying I won’t Friday –Friday, or sometime in the near future, the Court wants to prepare, if there is a plea by Mrs. Pedraza, okay, I want to know –- Because of the sensitive nature of this case –- they’ve not be severed yet –- and I like to do some of my own research –- and I don’t have a clerk. I know the State has pretty much –- a great deal of discretion in these matters as far as the –- and knows more about the case certainly than the Court does, what it needs to do to try to secure what it hopes to be convictions. But the Court would be more comfortable –- I’m not second-guessing anybody -- The Court would be more comfortable if I could have at least a couple of days to see what, if any, concurrence I must have in any plea by Mrs. Pedraza. I need to –MR. DEEN: Well, she has a right to plead guilty as charged, whether you concur or not –- (SPR 698) THE COURT: I agree with that. MR. DEEN: –- and she is charged with one count of permitting abuse; and she has a right to plead guilty to that charge. THE COURT: I’m just saying that I have a right to schedule a plea hearing. And I don’t mind doing it on a Friday, or something like that, but I want to be certain because in a capital case, the Court has some independent obligation to make sure ABSTRACT 833 something doesn’t happen later that I’m called upon, if the plea is in exchange, for instance, for testimony or something like that, that I’m not in a position. It’s nothing wrong with sleeping on something so –- And that’s not to second guess the State or defense, it may be just the thing. And even if I thought it wasn’t, it would not be my concern. Okay? MR. PARRISH: If I may, Your Honor? THE COURT: Yeah. MR. PARRISH: If that’s the Court’s position today, might I ask two things? Unfortunately, Friday –- if the Court does decide on Friday –- I know the Court has not said that –- Friday is a bad day for me. I have a sick family –- (SPR 699) THE COURT: Then I wouldn’t schedule it on that day; and if I were out of pocket, I’d get another judge to do it. MR. PARRISH: Thank you, Your Honor. And, second, in light of what the Court has said, I don’t know if there are any other issues at this time. THE COURT: That probably pretty much –- Because, you know, in eight out of ten cases, it goes the way of the plea or the way you-all are pushing it. My thoughts are much further down the line, having nothing to do –- It has to do with testimony and any objections that I may anticipate coming up later for Mr. Pedraza, that I may want to flesh out on the front end for this Court’s sake. And, like I said, ABSTRACT 834 this I was taught by someone else who knows more about it than I do. MR. DEEN: Your Honor, the way this is constructed –- the way this arrangement is constructed -- it will not involve a typical plea that we might present to you. THE COURT: It’s a jury sentencing? (SPR 700) MR. DEEN: Right. THE COURT: I understand that. And that solves 90 percent of my initial concern. I’m not looking for a way to deep-six it -- I’m just coming right to the point –- but I do want –- and I’m entitled to an opportunity, since this is a capital case, to think on it. My schedule is unimportant. I can always ask Judge Glover, Judge Pope, or Judge French, or Judge Johnson, if I’m unavailable and more convenient for youall, to take the plea and would not hesitate. MR. PARRISH: And with that said, Your Honor, pretty much any other day of the month is fine. It’s just that one day and –THE COURT: You’ve got it. MR. PARRISH: And the other thing that I would ask then, if that’s the Court’s position today, if we’re not going forward, if we may stand aside at this point because I don’t think there are any other issues we need to address right now. (SPR 701) THE COURT: What I want –- And the only thing I’ve got was –- Well, Mr. ABSTRACT 835 Best had called over earlier to Mrs. Rosegrant, I think, a few days earlier, but there was nothing in writing on it to alert the Court that y’all may want some plea time. But until I got Mr. Deen’s letter, which was a couple of days ago –- three days ago, maybe four, I don’t know –- then I didn’t know what the charge was and if it would be jury sentencing, and so on and so forth. I would have familiarized myself with the rules of criminal procedure on it. And I know the Court doesn’t have to concur in the plea, and the Court should stay out of all of that and not express any opinions. The thing that –- Not borrowing trouble –- The thing that I want to put you on notice as, if there is any side agreement that this is conditioned upon, any cooperation, courtroom or non-courtroom, of Mrs. Pedraza, and I was called upon later to visit that issue, in any, shape, form, or fashion, you know, enforce, not enforce, that kind of thing –- I just want to know what those agreements were on the front end and if it was something that I would be comfortable in doing. MR. DEEN: What you commonly run into in any co-defendant case, you testify truthfully against her co-defendant in all proceedings involving him. THE COURT: And what –- In other words, where the State has its leverage on that, oftentimes, is in –- Rarely, they resort to perjury charge –- What it is is it’s either in a probation-type deal, or whatever the deal is, or particular recommendation to a jury or a judge. If it’s to a judge then the judge has to go along with it; if it’s to ABSTRACT 836 a jury, whatever. Same thing. But if it’s to testimony truthfully then just as we did today on my motion with your comparatively minor case, in my practice, go on and get them in some shape, form, or fashion on the record. It does not have to be certainly in this Court. (SPR 702) MR. DEEN: Oh, it’s most definitely going to be done on the record. THE COURT: I understand. MR. DEEN: This isn’t the first time that I’ve done this, and I’m not just going to let her plead guilty and walk out without committing herself. THE COURT: I know –- I know that. This is where I’m coming with it, Mr. Deen. I’m not trying to poke holes at all because I’m feeling my way around here because of the sensitivity of the case and the fact that it involves a child, and it’s more high profile, is that when that testimony later at trial comes and to the extent it varies, if it does at all, from that previously given, the traditional role of the Court in having to make a call as a question of law as to whether or not it was a reasonably fateful repetition of that earlier testimony; and, therefore, whose feet can be held to the fire as far as the deal goes? That’s the only thing I’ve been taught elsewhere about this, is that the Court has to sleep on, and everybody must come forth. Because, number two, the defense is entitled to know the benefit of the –MR. DEEN: I’m sure (inaudible) with the fact of this arrangement and with ABSTRACT 837 any bearing as it may be. Now, she’s given a fairly extensive statement already to the authorities. (SPR 703) MR. PARRISH: And we would concur with that, Your Honor. The State has a good idea of what she will be saying already. THE COURT: Mr. Deen, where had you planned on –- Obviously, before she would enter a plea –- Where had you planned on memorializing this? With a court reporter in your office? In this courtroom? MR. DEEN: Right here in this courtroom right here in open court. THE COURT: Before the plea is taken; right? MR. DEEN: Before you accept the plea. THE COURT: But –MR. DEEN: It’ll be in the context of her guilty plea statement. She was there, she saw it, she was present; and the permitting abuse, of course, is part and parcel of the accident that caused her child’s death by Mr. Pedraza. THE COURT: Let me ask you this: on that question –- because you know the issue that will be raised to the jury -– and if I were defending Mrs. Pedraza, I would, too –- and that is that if she’s lying to save her own hide -- and why wouldn’t she if she’s faced with the death penalty, what an incentive to invent anything -- and to escape the death penalty herself. That would be the obvious and first comeback. ABSTRACT 838 (SPR 704) MR. DEEN: I fully expect to hear that at this point. THE COURT: I know –- I guess my point being –- I’m not trying to (inaudible). If you think that’s where I’m coming from, I’m not. -- is that in the guilty –- If you get it in the guilty plea statement, you already know that she will pin all the blame on him; and when asked if this is true and he did this, why didn’t you stop it, is she going to claim some type of duress? MR. DEEN: She has the marks to prove it. THE COURT: That’s not my question. Is she going to claim it? MR. DEEN: “Duress” is a legal term, Your Honor –THE COURT: I know. Is she going to claim –MR. DEEN: She will not offer the defense of duress. (SPR 705) THE COURT: Gotcha. Because I was going to whether or not the plea –- If she said duress at his trial, but said no duress for me to take the plea, that’s where I was going. MR. DEEN: Well, I don’t understand you. “Duress” is a legal defense. She does not assert the affirmative defense of duress; and at this trial, she will not be accused of a crime and, therefore, will not assert the affirmative defense of duress. ABSTRACT 839 If you mean –THE COURT: Well, I know she won’t be accused of a crime at her trial, but when asked, If all this is true, why didn’t you stop it, will she testify at trial that she was about to lose her life if she interfered? MR. DEEN: I anticipate that she’ll say that she was very fearful of the man. And I’ve asked that same question: Why –- At one point, even according to her statement, he was asleep in the interim of this –- not only just get away, get a hammer and bash his head in –- and I don’t have a good answer for that and I don’t think she does either. THE COURT: Okay. Very well. Point 1, as I said, let me sleep on it; and whatever the testimony is going to be, it can either be taken before me or someone else. And as I appreciate it, she would plead guilty to this B felony, and if she testified truthfully then –- Let me ask you this –- you’ve probably got a quick answer for it -- if she testified, in your opinion, untruthfully, and recanted in any material respect, what then? (SPR 706) MR. DEEN: I’d have to hear how the –- what the variance consisted of –before I can answer that. I mean, I have two options: I can try to hammer her when she is sentenced by the jury –THE COURT: The least desirable. ABSTRACT 840 MR. DEEN: Right. Down the road. Alternatively, we (inaudible) as to her. Now, I don’t anticipate that latter event. That would be –THE COURT: Well, the thing is that -- I’ve not gone this way before, and that’s the reason I want to go outside and that’s what I’m going to be doing, but the phone lines were all tied up this morning. And I’m going far away for this one and I –- It may take me a day or two to get the person, who I have immense respect for, and I think that the deal –- and I can do some of my own, as the supreme court would allow me –- it’s the deal –- And I know Mr. Deen has run into this before –- Let’s say it’s conceded she testified a substantial variance from what --and he’s disappointed and he believes that she’s backed out, the issue is: Can you undo the plea? Let’s say, one-out-of-ten chances it completely flip flops and he’s able to come up with evidence that she’s the perpetrator, then can the plea be undone? (SPR 707) MR. PARRISH: Your Honor, if that happened –- And I recognize the -- I don’t envision that at all based on the statement she’s given, but if that happened, I would fully expect certain, some type of motion from Mr. Deen that we would respond to –THE COURT: Would you agree that the plea would be negated, held for naught? MR. PARRISH: Would I agree? I cannot do that at this point, Judge, because ABSTRACT 841 I don’t know what the variance -- what they may be asserting the variance is –THE COURT: No, no. I’m saying, let’s say she gets up and says, I did it, I did it, I have fooled all of you, I’m taking the wrap, I have pled guilty, res judicata, double jeopardy, I’m out of here, would you agree that if she got up and said, I did it, that this plea could be set aside? MR. PARRISH: For the record, I cannot agree to that, Judge, because I don’t know specifically what may take place, although, I think there is case law out there; and, certainly, there’s more people that know more about this, but I believe it’s the Green v. State case that we were just told about that addresses that as well. And if that was to happen in the Court’s scenario, I’m confident Mr. Deen would come in here and say fraud and set it aside –THE COURT: I’m confident of that, too. Are you confident of my ability to set aside that plea? (SPR 708) MR. PARRISH: I think there’s law out there that the Court can make that ruling on. THE COURT: Good. Would you do me –- You’ve got an interest in this. Then you provide me that law –MR. PARRISH: I’ll do it. ABSTRACT 842 THE COURT: –- and you tell me that it is controlling. MR. PARRISH: Yes, sir. THE COURT: When can you have it for me? MR. PARRISH: Next Tuesday. I’m sorry, Judge, I’ve been on the road the last week, so I’m trying to figure my days. If you’ll give me til next Tuesday –THE COURT: That’s fine. MR. PARRISH: –- if that’s alright with you. THE COURT: That’s fine. MR. PARRISH: I’ll have copies to you and Mr. Deen and I’ll even provide copies to –THE COURT: Arkansas Authority? (SPR 709) MR. PARRISH: Yes, sir. MR. ROSENZWEIG: My case, Your Honor. MR. DEEN: Has it been retried a second time? MR. ROSENZWEIG: Yes, it was retried. It was retried. THE COURT: He’s going to supply it to me; that ends that discussion. MR. ROSENZWEIG: Charles Green versus -THE COURT: Thank you. You-all may stand aside. MR. PARRISH: Father-son case? ABSTRACT 843 MR. ROSENZWEIG: Father-son case. THE COURT: You may stand aside. MR. DEEN: You said –- I know the case and I need this woman’s testimony to accomplish what I want to accomplish in this case. THE COURT: I understand that, Mr. Deen. I’m not trying to dissuade you; you’ll misunderstand if I do. I am making sure that this Court, if things do not happen the way you hope, anticipate, and may have every reason to believe they happen, will happen, I’m making sure that it is absolutely fool-proof that she can be charged with capital murder; and if it is not fool-proof, then I will not entertain any thought of it. But it better be on the record and nailed down that if she substantially and materially varies from what testimony she offers this Court, that her plea can be set aside on the basis of fraud, and that Mr. Deen can recharge her, that a mistrial can be declared without prejudice to the State in the case of Mr. Pedraza, and that this thing starts over from Square One. If that assurance –- (SPR 710) Mr. Rosenzweig, you are not involved in this conversation at this point –MR. ROSENZWEIG: You said something about a mistrial of Mr. Pedraza, and I would like to be heard on that issue. THE COURT: You will, if and when it occurs. Now, unless I can have that assurance, I’ll not risk anything. ABSTRACT 844 MR. PARRISH: And, Your Honor, in response to that –THE COURT: And I’m sure you can give it to me. MR. PARRISH: I think I know –- I think I’m interpreting maybe what Mr. Rosenzweig was saying. I don’t think I, or anybody on Mrs. Pedraza’s team, can assure this Court that Mr. Pedraza’s entitled to a mistrial for –THE COURT: I’m not –- I’m not –- I’m not –- That would be a separate matter for him. MR. PARRISH: Maybe I misunderstood. (SPR 711) THE COURT: No, you can’t waive –- No. But I think that your client –- I know this: I want your client on the record that she understands and waives any rights that she has to object to the plea being set aside, and I want that personally from her; and then you-all can go about your business once I have that. And I don’t –- Mr. Deen’s a good trial lawyer -- you-all are –- if he says he’s got to have her, then I take him at his word. He is the prosecutor; I am not. It is immaterial what I think or don’t think. MR. PARRISH: Your Honor, may I be heard on one section –THE COURT: Yeah. MR. PARRISH: –- just for the record, because I think this will come up, and I fully expect Mr. Deen to confirm this. But for the record, there’s been no ABSTRACT 845 recommendation, side-door recommendations, for Mrs. Pedraza as to a term of year if she testifies. It’s solely jury sentencing. There’s no numbers that we’ve talked about, nothing whatsoever. THE COURT: Well –MR. PARRISH: And I say that –THE COURT: –- why should there be? MR. PARRISH: Well, I just say that for the assurances of Mr. Rosenzweig –THE COURT: The most she could get is twenty years for that crime. What is it, a one-sixth crime? (SPR 712) MR. PARRISH: Yes, sir. THE COURT: Okay. She’d be in and out the door in a flash, so what does it matter to you really? The difference between five and twenty years in the Arkansas Department of Corrections is negligible on a one-sixth crime; and she has substantially reduced any exposure that she may have to a jury. Visiting with one judge in northwest Arkansas this morning -- didn’t end in a death, but a serious injury on a child –- it was a miracle it wasn’t a death –- the woman got life and the man got, I think, ten years, so they fit a whole range of deals. And twenty years, even if the State asks for the maximum, you know, at the ABSTRACT 846 sentencing hearing –- or in this case, no recommendation, just threw it out there –it still –- There’s little downside to her, considering where she started out. MR. DEEN: Well, I’m sure the jury would be made aware that she testified (inaudible) assistance, and they can take that into account if they wished. (SPR 713) THE COURT: Absolutely. The jury can take into account virtually anything in sentencing. Alright, then let’s move to Mr. Pedraza. MR. PARRISH: Your Honor, at this point, we don’t have another date. I’ll supply the Court that information -THE COURT: Please do. And this matter is reset. If we can do the plea thing –- we all get satisfied or the Court gets some comfort –- I’ll do it before then or get another judge to do it before the 27th, if y’all want to move this along. But that ends Mrs. Pedraza’s portion of this case. MS. BARNARD: Your Honor, I have one, just one quick procedural –- The information you want from Mrs. Pedraza, do we want that in writing signed by her or –THE COURT: I’ll do it orally. It’s just as easy orally in court. MS. BARNARD: Thank you. THE COURT: Just make sure she knows what I’m going to be asking. MS. BARNARD: Yes, sir. ABSTRACT 847 THE COURT: I’ve forgotten, she must speak excellent English or –- She nods yes. Do you speak very well? MRS. PEDRAZA: Yes, sir. THE COURT: Very good. Yes, I think she understood what I said; and that is if her testimony changes, in any material way, the Court would not raise that issue on its own motion, but if the State believed it did, and this Court concurred, that this Court would have to concur –- and you could argue otherwise –- then I could set aside the plea. I’m not asking you to agree as to what that variance would have to be, only that if I found, without an abuse of discretion that that variance occurred and agreed with the State, that my legal authority to set it aside would not be challenged. That’s all I’m saying. (SPR 714) MR. DEEN: If I didn’t believe she was sincere and truthful, I wouldn’t be doing this. THE COURT: I know that, Mr. Deen. I’m on a different subject. I just want to pin them down that they will not challenge the State or the Court’s legal authority to set it aside should that unlikely possibility occur, if you want to call it that, if it makes you feel better. MR. PARRISH: I’ll have the research to the Court within seven days, Your Honor. ABSTRACT 848 THE COURT: Thank you. MR. PARRISH: May we stand aside? Conclude Mrs. Pedraza? THE COURT: You may. ** ** ** ** ** ** ** ** ** THE COURT: Alright, let’s take up Mr. Pedraza. MR. ROSENZWEIG: Your Honor, the first thing I’d like to address to the Court is –- If I understood you to say that you were going to be setting Mrs. Pedraza’s plea sometime in the near future, in the event that it’s at sometime other than when Mr. Pedraza is going to be there, I would like that we have notice of it so at least one member of our –- of the Daniel Pedraza defense team – (SPR 715) THE COURT: These cases haven’t been severed; and, naturally, you’d get notice. Unless they were severed, why wouldn’t you? MR. ROSENZWEIG: Well, Your Honor, I don’t know how different –Different judges run their courts differently. THE COURT: No, the law’s the same everywhere; we try cases here the same as they do elsewhere. So, my point being is, at this point –- If these cases had been severed, assigned different cases numbers, it’d be different. But, no, you will get notice of any proceedings in this case. MR. ROSENZWEIG: I feel assured that we’ll have notice then. ABSTRACT 849 THE COURT: That’s a given. Now, with respect to discovery that you received –- you’ve already hit on that, Mr. Deen –- which is that you have not received a list of witnesses or experts. Let me see my last –- (SPR 716) MR. ROSENZWEIG: I am prepared to discuss this with the Court, Your Honor. THE COURT: Where is the most recent file? Do you have my checklist on –I’m waiting on –- She’s going to –- My secretary’s going to get my checklist so I can check off what’s –- She’s got my checklist in there on –- Anything you haven’t received from –- Here it comes. Alright, any of your motions, Mr. Rosenzweig, that you have filed here that you would like, or think that it would be appropriate for me to rule on at this time? MR. ROSENZWEIG: Your Honor, I would ask that we set another hearing for discussion of all those motions; and the reason I ask is –- I mean, I’m not talking about a lengthy –- I’m talking about sometime in August is what I’m talking about. The reason is we’re still working on investigating the case, we may want to amend, or supplement, or file additional motions. Secondly, assuming you ratify the conclusion of Mr. Morledge on the case, I want to get him up to speed on everything and get his input on these motions for purposes of –THE COURT: If he wants to join the case, fine. I’m not –- Until he decides ABSTRACT 850 –- Mr. Pedraza always answered my questions directly; until he does -- Mr. Morledge -- then I’m not going to substitute –- He can simply –- If he wants to file an entry of appearance, that’s fine, then defendant will have three lawyers. But I’m not going to excuse Mr. Pedraza –- I mean, Mr. Benca – at this time and substitute. Now, with that being said, are there any of these motions? They begin with your motion for discovery, demand to produce crime lab personnel, motion for severance –- that apparently is going to be mooted –- motion for individual sequestered voir dire? Do you want a ruling on that at this point? (SPR 717) MR. ROSENZWEIG: Your Honor, my feeling is this, I’m prepared to argue those motions at this time. The point that I am trying to make is, I would rather, if the Court was going to –- I would personally rather the Court defer those until we get further along in our investigation, in our decision making with regard to the case just so we don’t end up espousing a point that’s contrary to what we end up wanting to pursue. That’s my position, Your Honor –THE COURT: What I’ll –MR. ROSENZWEIG: But I’m happy to answer -- (talking over). I’m happy to argue any motion the Court puts on its docket. (SPR 718) THE COURT: Right. What I’ll do is, at some point in time this week, probably tomorrow, I will rule upon those motions that I think are ripe now at this ABSTRACT 851 particular point in time and then those that I think that are not ripe at this time. MR. ROSENZWEIG: Your Honor, if there are any motions that you feel are ripe, I’d like to be heard orally on them and I’m prepared to argue orally on them. THE COURT: Right. Well, I don’t have to hear oral argument on them. Alright, let’s do this, are there any things from the State that you have not received at this point, any evidence that you feel is believed with some justification that the State has in its possession, respecting Mr. Pedraza, that you’ve not received? MR. ROSENZWEIG: Are you addressing Mr. Deen or me? THE COURT: You. MR. ROSENZWEIG: Your Honor, there are some matters which we’re still working on. Of course, I want to state that Mr. Deen and his office have been most cooperative in their, you know, in their efforts. THE COURT: Mr. Deen doesn’t need accolades, believe me. MR. ROSENZWEIG: Well, Your Honor –THE COURT: Well, what I was –- to move this matter along because I’ve got some other cases to hear today –- what I need to know is: Is what the State furnished you thus far deficient in any manner? (SPR 719) MR. ROSENZWEIG: Your Honor, let me answer it in this way: we don’t have some stuff, some background stuff, from the crime lab, but Mr. Deen has authorized ABSTRACT 852 the crime lab to give it directly to us; and I have no reason to think we won’t get it. THE COURT: Well, I have a right to know what that is. What is it? MR. ROSENZWEIG: Your Honor, there’s some bench notes with regard to some of the non –THE COURT: Specifically? MR. ROSENZWEIG: Your Honor –- We have the crime lab results, but I don’t believe we have some of the bench notes from some of the testing and I want to –THE COURT: I need to know what they are because I’m going to make an order on them. That’s how you’ve got, in a sense, with some help –MR. ROSENZWEIG: Bench notes –- (SPR 720) THE COURT: Let me finish. That’s how we got, in a sense, some of the stuff. I encouraged Mr. Deen to get a hold of them, he did, and they moved it along. This Court tries to get that for the defense; and, therefore, nobody has a right to claim they didn’t get stuff in time and they need a continuance. Now, you owe it to the Court to tell me exactly what it is you haven’t gotten. MR. ROSENZWEIG: Well, I don’t know what I don’t have, but I believe that I do not have yet certain bench notes that deal with the underlying results, which I do have. ABSTRACT 853 THE COURT: Specifically, what do you mean by “bench notes”? MR. ROSENZWEIG: Okay, normally speaking, when tests are done, the tester, a particular lab personnel, will write down in his or handwriting, or type on some sort of computer screen, or something, the intermediate results, the observations, that type of thing; and those are often called “bench notes” because they are done at the, quote, work bench, so to speak. THE COURT: Right. MR. ROSENZWEIG: I do not –- Normally, the state crime lab does not send those out, but they do give them –THE COURT: Have you checked to see if they did here? MR. ROSENZWEIG: I did not –- I don’t have them. THE COURT: You’re sure of that? (SPR 721) MR. ROSENZWEIG: I don’t believe I have them. I don’t think Mr. Deen has them either. MR. DEEN: I’ve not provided them to him. I don’t have them. I did authorize them to release –MR. ROSENZWEIG: So, I don’t have a problem with the idea we’re going to get them. THE COURT: Well, this is my call, not yours, Mr. Rosenzweig. ABSTRACT 854 MR. ROSENZWEIG: Yes, sir. THE COURT: What the Court –- I know you’ve authorized him to get them, but they will not respond to him like they will to the Court, or to you, Mr. Deen; and I don’t want it to be used as a pretext for a continuance later. So, the Court is ordering –- do an order, Mrs. Rosegrant –- is ordering the crime lab at the request of both parties to furnish to Mr. Rosenzweig and to counsel for Mrs. Pedraza, copies of all notes made by lab personnel detailing their work herein on any tests conducted. MR. DEEN: Your Honor, could you include me in that as well? THE COURT: I thought I did. Just say they’ll be furnished to the State and to –- filed now –- defense counsel with copy to the Court within seven business days from today. MR. DEEN: Your Honor, could you give them a little more time? THE COURT: What? Them? MR. DEEN: Uh-huh (yes). THE COURT: They’re just going to make copies, aren’t they? Fourteen business days. Sorry, I thought that extra money up there bought some –- appropriation bought some –MR. DEEN: In their defense, they’ve had some pretty good turnover lately and they are short some staff, including one of the associate medical examiners, whose ABSTRACT 855 spot is vacant. (SPR 722) THE COURT: Now, what else? MR. ROSENZWEIG: Your Honor, two other things come to mind, one of which is not directly in Mr. Deen’s control, but it’s sort of. One, I filed a motion for all the child’s prior medical records, and the State has sent me some medical records. Now, obviously, the co-defendant, who is now going to be testifying for the State –or, apparently, is going to testify for the State –- would know where all her child went to the doctor. As I said, we’ve gotten some, I just want to make sure we have all –THE COURT: You’ve got that 10.2 hemoglobin report. (SPR 723) MR. ROSENZWEIG: I want to make sure we have all the child’s medical records from her. MR. DEEN: I have no way, independently, to do that without information from the mother; and if what she tells me doesn’t suit Mr. Rosenzweig, I’m sorry to hear it, but I’m not going to go canvas every medical clinic on the planet. She’s given me a list –THE COURT: I can get the medical records without that. MR. DEEN: She’s given me a list –- We have to know where to ask for them. She’s given me a list of the clinics that she says, through her counsel, the child received care. We have sent subpoenas to all of those places. Some have responded ABSTRACT 856 –- One responded and said they could find no record because the child hadn’t been treated there. We’ve received responses from others. When we get them, we forward them to defense counsel. Now, I know that Mr. Rosenzweig knows that discovery is not a substitute for one’s own investigation; and I trust that he’s making inquiries as well. MR. ROSENZWEIG: Here’s the problem, my client knows of one clinic that the child went to, I mean, because he didn’t know the child its whole life –- that’s the problem –- and he didn’t know where all the child had gone. He knows of one clinic, and Mr. Deen has provided records from that clinic –- a place in Warren –- As to what he knew about them, he doesn’t know –- He doesn’t have any personal knowledge of that before, and this is the first time we’ve had court since I filed that motion. MR. DEEN: Well, I don’t recall –- (SPR 724) THE COURT: How do you think –- Let’s say Mr. Deen didn’t cooperate with you at all and you didn’t have this Court’s –- all you could do is ask for an order from this Court –- what would a defense lawyer ask the Court to do –MR. ROSENZWEIG: What I would ask –THE COURT: –- that will turn up every visit? MR. ROSENZWEIG: Well, Your Honor, what I would do is –ABSTRACT 857 THE COURT: Where is the repository of all that information? MR. ROSENZWEIG: I’m prepared to respond. THE COURT: What is it? MR. ROSENZWEIG: Okay, Your Honor, what I would do is ask for all the identifying data on the child and any insurance the child may have had, and then order all –- You know, some would be sent to Blue Cross, Medicaid, SCHIP, CHAMPUS, wherever she may have gone, with the appropriate HIPAA litigation exception findings. And, also, I think it would be appropriate under the circumstances also to order the mother to disclose the names of all places that the child had gone before. (SPR 725) THE COURT: Well, I thought –- This is what the Court will do. You prepare a precedent. You may want to include Blue Cross; you may want to include CHAMPUS. My thoughts about whether or not this child had Blue Cross Blue Shield –- You don’t want my thoughts on that. But the State can be ordered, all you’ve got to do is look –- Because I’ve already read it. I’ve read her nutrition deals; I’ve read her hemoglobin counts, when they occurred; I’ve already read everything on that; I already could give you her Medicaid number. And I believe I would ask the Court for a one-sentence order that said, The State of Arkansas is hereby directed to supply, to both sides, all payments made by the State of Arkansas under the Medicaid ABSTRACT 858 program -- I believe this child went on Medicaid the day it was born -- and the State can have you that like that (indicating). MR. DEEN: Now, when you’re referring to the “State,” you’re referring –THE COURT: I’m talking about the State of Arkansas, not the prosecutor’s office. You prepare the order, Mr. Rosenzweig, and I expect it to be on my desk and Mrs. Rosegrant will stamp it. But you’ve got the Medicaid numbers and everything; and you don’t need Mrs. Pedraza, but you have whatever her lawyers furnished. Now -MR. ROSENZWEIG: They have not provided me a list. (SPR 726) MR. DEEN: It’s been provided to me. THE COURT: Well, at least through Mr. Deen. I’ll order them to turn over to you that list themselves. Okay? Mrs. Pedraza can sign it as to the only places she knows of. What you want is an order from the Court that directs the department of human services, or DF&A, to furnish you all Medicaid payments made under that number; and it can be for the woman herself or it can be for the child. I believe I’d ask for both. MR. ROSENZWEIG: Okay. THE COURT: Thank you. Now, move to the next item. MR. ROSENZWEIG: In the proposed order, I will include the specific ABSTRACT 859 findings that this is a litigation exception under HIPAA -– THE COURT: You probably won’t even have to do that, but go ahead. What do you want next from the Court? MR. ROSENZWEIG: Okay, the third thing is, if you recall, the last time we were here in Court, Mr. Deen revealed that one of the investigating officers had been terminated –THE COURT: I recall that. (SPR 727) MR. ROSENZWEIG: -– with the state police, and we would like to get a hold of his personnel file that outlines all the circumstances of that. I may need an order from the Court on that point –THE COURT: What do you say, Mr. Deen? MR. DEEN: I’m opposed to that. THE COURT: Why? The reason that I say that, I read in John Wesley Hall’s book the other day about a case getting reversed because –- In that case, the State did not disclose a thing, not even the termination, okay, so it was an extreme case. But you assume I know maybe, or heard at the courthouse why, I really don’t know a thing about it –MR. DEEN: Well, this involves a very sensitive matter. It involves young people –ABSTRACT 860 THE COURT: Without you even going there, you-all get together and figure out a way for you-all –- for him to protect his client’s rights, for you to protect yours -- and submit something to the Court with respect to a protective order because I’ve not heard a bit of talk about it; and maybe that’s why it’s so hush-hush. You just have to take me at my word. So, I’m not trying to steer it in any particular direction, but this is a capital case and I will not rely upon anybody’s judgment as to what is important enough -– forget the sensitivity –- I don’t doubt that –- important enough for the defendant, if he’s on trial for his life, to know. MR. DEEN: If the Court –- The Court seems to be ordering that protective order –- (SPR 728) THE COURT: I’m not ordering it; I’m just saying I’m throwing that out for you-all. If you-all want to submit anything to me in camera –- The problem with incamera deals is that the defendant can’t make a record and neither can the State. MR. DEEN: If you do order it –- and I will tell –THE COURT: In camera? MR. DEEN: No, if you do order that the state police produce this officer’s file –THE COURT: In camera? MR. DEEN: Correct. ABSTRACT 861 THE COURT: Without anybody seeing it but me? MR. DEEN: Nevertheless, because it would be sealed and made part of the record, regardless –MR. ROSENZWEIG: Under Rule 19, it would be sealed -MR. DEEN: I’d, nevertheless, ask that you include in your order that the state police redact the names of certain third parties that were involved in the termination. THE COURT: Well, redaction is –MR. ROSENZWEIG: Your Honor, I have an alternate proposition. (SPR 729) THE COURT: Well, let’s not try to solve that today. I just want –- And I don’t want to make up the rules on that. You-all look at what you consider to be the law on it. This does not have to be done today. And just like the plea deal, I’m not going to be stampeded by anybody. And I don’t want to unnecessarily know things either, but my point is is that I know this is a capital case –- it’s different from many others –- and I’m more lenient then with discovery and letting the defendant have any and all possible things. MR. DEEN: Well, who Clayton Moss may have been involved with has nothing to do with any fact in this case. MR. ROSENZWEIG: Your Honor –THE COURT: Don’t –- Let’s not argue that. It’s like –- I don’t know if the ABSTRACT 862 father of this Pedraza child –- or this child –- has been interviewed. It’d be the first one I’d interview. It wouldn’t matter whether I believed a thing he said; he might could take me some place to where I would find out something. It has nothing –The issue of who Moss may have been involved with or not, I agree may not have a thing to do with it, unless it took you some place that you needed to go. And, oftentimes –- not oftentimes –- sometimes it doesn’t. We’re speculating. Let’s do this, you-all give me some law on each side and I’ll do the best that I can. My concern is not the third parties’ names; my concern is whether or not defense counsel can make a record and make arguments in this Court that I may not have thought of –- same way with the State –- unless they see it. And so, just give me some law. And if you-all can agree on a protective order –- If Rosenzweig agrees that they be redacted, it saves me from making a decision. So, be nice to him, Mr. Deen. (SPR 730) MR. DEEN: It’s hard. THE COURT: It’s hard? Oh, no, Mr. Deen, it’s not hard. MR. ROSENZWEIG: It’s my job to make it hard. THE COURT: If I can be nice to people, anyone can. Now, what else, Mr. Rosenzweig? MR. ROSENZWEIG: You had asked Mr. Deen about this designation of ABSTRACT 863 witnesses, and whatever, and I’m prepared to address that issue at this time. THE COURT: Well, if you’re going to do it by designating witnesses, if you’re just going to tell me you need to look at it longer, then it’s just the same song, second verse. (SPR 731) MR. ROSENZWEIG: Well, Your Honor, I may be singing the same song, second verse, but –THE COURT: You need more time? MR. ROSENZWEIG: Yes, sir. THE COURT: Well, I most certainly will give you more time. After all, you’ve got between now and trial date –- it’s not going to be continued –- to get it all done. So, the longer -- I want to put on the record -- that you put that off then you are beating yourself –MR. ROSENZWEIG: Your Honor, here’s our situation: we have -– With regard to experts, we have gotten permission from the public defender commission to retain experts, and we have actually retained those experts. However, we have not designated them as witnesses yet because they have not finished their wages with regard to it and we don’t know –- And right now they’re under the attorney-client privilege unless or until we decide to use them as witnesses. But they have been designated, they have been retained. We are working on them. I certainly don’t want ABSTRACT 864 to disclose their names publicly, for obvious reason. I am happy to disclose their names ex parte in camera to you so you know that I’m not making it up. (SPR 732) THE COURT: I take you at your word, Mr. Rosenzweig, that you have, but I’m going to tell you the law, too, it wouldn’t matter if you did disclose them publicly and to Mr. Deen. He couldn’t get anything from them anyway at this juncture, until and if you decided to use them because it would be work product. So, you don’t have to play it that close to your vest. I do want their work done by our next pretrial; and if you are going to use them -- Put in your pretrial order, Mrs. Rosegrant, that their work, to the extent it will be used in this capital case, must be completed and furnished to Mr. Deen by the next pretrial hearing. They have enough time to do that. Certainly, to the extent that any, as you call them “bench notes,” will be relevant to their determination then they will have those within fourteen business days. So, anything else? MR. ROSENZWEIG: When are you proposing the next pretrial hearing, Your Honor, because –THE COURT: The next pretrial hearing is going to be on the 27th of August. Alright. MR. ROSENZWEIG: Your Honor, one other thing –- Again, I want to reiterate my position that on any motions that you plan on ruling on, I would like to ABSTRACT 865 be heard orally on them; that’s number one. Number two, the record should reflect that on any motion challenging the constitutionality in Arkansas statute, although, I don’t think it’s required in a criminal case. I have notified the attorney general and the attorney general has sent waiver letters. I believe Mr. Deen has received them. MR. DEEN: I have. THE COURT: Anything else? (SPR 733) MR. ROSENZWEIG: Your Honor, with regard -- Mr. Morledge, he’s in a position to answer your question about whether he has vacations, allergy shots, state fair trips, whatever else that might conflict with this; and so, I’d like to get this resolved. THE COURT: Well, I’m not going to visit –- I’ve told you I’m not letting Mr. Benca off the case at this time. Mr. Morledge had a chance to speak. One thing –MR. ROSENZWEIG: Your Honor –THE COURT: One thing -MR. ROSENZWEIG: –- Mr. Morledge – THE COURT: –- and then my word is the last because I was elected -- and this is this: The harm done, Counsel, by speaking for your co-counsel, whether you’re lead counsel or not –- wouldn’t matter if this was a capital case or a civil case –- is is that you diminish him; and he is entitled to stand on his own and speak in this ABSTRACT 866 courtroom, without being drummed out and marginalized by co-counsel. Whether that was your intent or not –- I’m sure it was not –- but it is the effect upon a disinterested third party. And that was most of all my concern for him because he should have told you before you walked in this courtroom, I will speak for myself, I am a licensed lawyer, competent to try a case, and I will not accept another lawyer speaking for me as if I were invisible. (SPR 734) MR. ROSENZWEIG: May I respond, Your Honor? THE COURT: You may not. This hearing is concluded. HEARING, SEPTEMBER 10, 2012 THE COURT: The case set for pretrial today is State v. Daniel Pedraza. Let's get the appearances. Let's get the appearances. MR. DEEN: Thomas Deen for the State. MR. BEST: Andrew Best for the State. MR. ROSENZWEIG: Jeff Rosenzweig for Mr. Pedraza. MR. BENCA: Patrick Benca for the defense, Your Honor. MR. MORLEDGE: Birc Morledge for the defense, Your Honor. THE COURT: Alright, other two counsel, come on, drag your chairs up here. I may can excuse one of you pretty quickly. (SPR 735) This pretrial hearing was previously scheduled, but I couldn't get to it. What ABSTRACT 867 was that date? MR. BEST: August 27, Your Honor. THE COURT: August 27th. I left the bench that day about 11:30 in some pain and it didn't resolve, and I find out two hours later when I went to my physician, I had a kidney stone, so I spent the night in the hospital getting rid of it. So, that was the reason it just wasn't a tummy ache. That gives me good cause to exclude the time between then and now under the speedy trial act. Now, if I need to get my physician out at Monticello Medical or any hospital records to support that, I do not mind doing this. I know it's a capital case. Certainly, if any of you think, for your own protection, that you need that substantiated, I don't mind doing that. MR. ROSENZWEIG: We'll waive access to the Court's medical records. THE COURT: Well, in any event, that's that. So, the Court will enter an order today which excludes that time. I called Mrs. Rosegrant from the hospital, I think, and told her to get with you-all -- I was in no –- and get this thing rescheduled as soon as possible. I was in no –- Couldn't talk at the time. Now, to begin with, let's get –I want to make sure –- I have a file here with some of the pending motions and I want to find out from the State if it has any motions that the State would like for me to take up today. (SPR 736) MR. DEEN: The State has no motions that are pending, Your Honor. ABSTRACT 868 THE COURT: Alright. Now, let me see if I have in this file what the defense has. MR. ROSENZWEIG: Your Honor, if it will help, I have drafted –THE COURT: Come on up here. MR. ROSENZWEIG: Not in any particular logical order, as far as I can tell –THE COURT: Well, I know certain motions I'm going to take up initially. When was this updated? MR. ROSENZWEIG: Excuse me, sir? THE COURT: When was it updated? MR. ROSENZWEIG: That's what I brought to court –THE COURT: You can remain in your seat. MR. ROSENZWEIG: –- when we were here. It was prepared for the hearing that was postponed because of your illness. (SPR 737) THE COURT: Well, I see motion for severance of the defendants here. MR. ROSENZWEIG: I put all my motions up there. THE COURT: I know. But you're not handing me an up-to-date one? In other words, you still don't –- Aren't asking for severance after one pled; right? MR. ROSENZWEIG: Your Honor, part of the problem with this is –- It was unclear, although Mr. Deen has told me orally otherwise, since she pled but had not ABSTRACT 869 been sentenced, you were concerned -- until Mr. Deen has claimed any interest in that –- we were concerned that maybe they would be tried together and then the jury go for sentencing on her, but apparently, that's not his intention if I understand correctly. THE COURT: I'm lost, but in any event, you may have a seat. Mr. Deen, with respect to –- Because I was out of town –- Told you-all if you wanted to take a plea on Mrs. Pedraza, to get Judge Glover, or somebody; and as I understand it, you-all did that. MR. DEEN: Yes, we did do that. I don't recall the date, but it was what we proposed earlier, which is –THE COURT: And what was it she pled to? MR. DEEN: Permitting abuse. THE COURT: And the range of punishment? MR. DEEN: Class B felony, five to twenty. (SPR 738) THE COURT: Five to twenty. With respect to –- And that would be jury sentencing; correct? MR. DEEN: Yes, Your Honor, at a later date. THE COURT: So there's no suggestion here that those two proceedings would be combined? MR. DEEN: No, Your Honor. ABSTRACT 870 THE COURT: Good. I just need to get that on the record. Now, what I think is important but I don't have –- What we need to do, but I don't have Mrs. Pedraza's attorneys here –- What I need to do is set her jury sentencing trial as soon –- I need to get the setting made as soon as possible. So, if you and her lawyers would get together and get with Mrs. Rosegrant by the end of the week so we don't delay on that. MR. DEEN: If I could get a couple of possible dates in the fall, I'll call Mr. Parrish this afternoon. THE COURT: See what you-all can get worked out.Alright, let me take up a couple of motions that I have in my file that I think will require some more attention perhaps than others. The first one is motion for supplemental discovery relating to Victoria Pedraza. The motion, as I read it, requests that the State deliver to Daniel Pedraza's counsel any handwritten notes, if any exist, taken of the statement that Victoria Pedraza gave the prosecutors at or about the time of her plea; and defense cites Rule 17.4 as –- Looking through my file, I didn't see a written response. Did you file one or do you want to make one now? MR. DEEN: Yes, sir, I did file one. (SPR 739) THE COURT: Alright. MR. DEEN: I'd like to have access to the clerk's file. It should be fairly -ABSTRACT 871 One of the last few things filed. THE COURT: It just didn't make it to mine. MR. DEEN: This is the clerk's file I have, Your Honor? THE COURT: Thanks. This is the one on 404(b). MR. DEEN: Those are combined, Your Honor. THE COURT: Oh, they are? Okay. You-all may remain seated to make any further argument, but I believe your written motions and responses are somewhat complete. Here the Court sees that Daniel Pedraza has requested that this Court require the State to deliver to Mr. Pedraza's counsel handwritten notes taken reflecting certain statements that Victoria Pedraza has made to the State incident to her plea bargain and as a result of her plea bargain. I take it Victoria Pedraza, you intend to call at the trial of this matter. MR. DEEN: Yes, I do. THE COURT: Very well. I just wanted to get that on the record. MR. DEEN: And I will probably interview her again. I can just have defense counsel in on those interviews and taking notes. (SPR 740) MR. ROSENZWEIG: That will be fine, Your Honor. THE COURT: The rules cited by defense counsel, which defense counsel argues allows this Court to order the production of the prosecutor's notes reflecting ABSTRACT 872 what Mrs. Pedraza told the prosecutor to get this plea bargain done -- the Court has –- and that would incriminate, according to the State, Mr. Pedraza in the death of his stepdaughter. The defense cite Rule 17.4 of the Arkansas Rules of Criminal Procedure, of which in pertinent part provides the Court in its discretion may require disclosure to defense counsel of any other relevant material and information upon a showing of materiality in preparation of the defense. Mr. Rosenzweig suggests not only that in this that it would be relevant and material respecting what Mr. Pedraza must defend insofar as the criminal allegations but would also certainly have relevance possibly to any punishment stage. The State responds that the State is not obliged to furnish the substance of Victoria Pedraza's statements that she gave the State, incident to the plea bargain –- (SPR 741) MR. DEEN: Your Honor, the State does believe it's required to provide substance and has done so. Work product is the –THE COURT: The actual notes themselves? MR. DEEN: Right, right. THE COURT: You say you do not want to, and the rules do not require you to produce actually notes of the statement? MR. DEEN: And the Court is charitable in describing these notes reflected everything Mrs. Pedraza told me because they most certainly do not reflect ABSTRACT 873 everything. THE COURT: And they may not. I have no way of judging. MR. DEEN: In my cryptic entries, some of which are strategic-type things reminding myself what I might want to look at, but it's not an effort to provide an oral synopsis of everything she said to me. MR. ROSENZWEIG: Your Honor, if I may respond -- (SPR 742) THE COURT: Let me finish what –- And then I'll let you respond. Let me finish my summary of what is being asked and why the State says that it should not provide them. It says, "These notes which are by no means a complete rendition of the witness' statement are work product under 17.5 and not subject to disclosure." It goes onto say, Much of what Victoria described in her interview were the defendants' actions. For instance, she explained the purpose of the rope draped over a clothes rod in the couple's closet found in the home. She explained the defendant would tie a rope to the child and the other end to himself so that when she fell or sat down during the nighttime, (inaudible) punishment, he would be alerted. She described water torture, and so on and so forth. Also, statements Mrs. Pedraza attributes –- Mr. Deen in his response says, Mr. Pedraza, according to Mrs. Pedraza, suggested to him that if the little bitch died, he might as well kill her too. And when an ambulance was called for the child, his statements included discussion with Victoria as to what lies would be ABSTRACT 874 told to medical personnel as to the origin of the child's injury. Now, the State contends it's not obliged in this capital case to turn over its notes, however, they may be of the discussions with Mrs. Pedraza as to what Mr. Pedraza did and how he threatened her and encouraged her to lie to the ambulance personnel. Both the defense and the State rely upon Rule 17. The Court finds Rule 17 is in part (inaudible). However, I have a question: Why have both of you not relied upon Arkansas Code 16-89-115? Beginning first with you, Mr. Rosenzweig –- and remain seated –- why is that law not cited? (SPR 743) MR. ROSENZWEIG: Your Honor, I don't know all my statutes by number. THE COURT: I'm sorry. It is the discovery statute in criminal proceedings and more specific than Rule 17 of the Arkansas Rules of Criminal Procedure; and it specifically addresses the production of documents and, particularly, statements taken by the State and when the Court should order it and when the Court should not order it. MR. ROSENZWEIG: Are you ready? THE COURT: Yeah. MR. ROSENZWEIG: I'm ready to respond if the Court so –THE COURT: Very good. MR. ROSENZWEIG: Excuse me, sir? I'm sorry? ABSTRACT 875 THE COURT: Go ahead. (SPR 744) MR. ROSENZWEIG: Your Honor, several things: one is, to an extent, that statute has been superceded by rules of criminal procedure and case law stemming from it. There are –- The supreme court has held that there are two ways in which discovery can be handled, one of which is to do that procedure; and that's the so-called Jencks Act, based on the federal Jencks Act. The other way is the so-called open-file policy. Now, if we went by the little Jencks Act and we're also entitled to a continuance after every witness in order to prepare for cross-examination. So, that's the reason I did not rely on that because the prosecutor has renounced by asserting the open-file policy the statute for the discovery proceeding. THE COURT: Your response, Mr. Deen? MR. DEEN: I'm reading the statute again, Your Honor. THE COURT: It's the statute 16-89-115 relating to production of documents when they're in the possession –MR. DEEN: I think that contemplates the practice which occasionally is followed in some jurisdictions in which the State (inaudible) witness testifies –THE COURT: Right. MR. DEEN: And I've never employed –- I've been in trials in which that has been employed against me as defense attorney, but I've never employed it since I've ABSTRACT 876 been prosecuting attorney. (SPR 745) THE COURT: Well –MR. DEEN: I think it goes beyond the procedural aspect of when it should be provided. I'm willing to provide –- and I have provided –- Mrs. Pedraza's other statements to authorities, but I think in trial preparation in which I'm interviewing a witness, that opens up a tremendous work product privilege -- If I interview any number of witnesses before trial, I might talk to them the morning of trial again, which would put me in the scenario apparently of anything I wrote down, I immediately delivered to defense counsel. MR. ROSENZWEIG: We're not questioning that, Your Honor. If I could –THE COURT: I know you're not. Let me get to the –- You-all are familiar with the –- or maybe –- In any event, the case of –- 1987 case of Winfrey v. State –MR. ROSENZWEIG: I'm quite familiar with it, Your Honor. THE COURT: Alright. I know you're asking for the statement now, or whatever, he had. I'm not missing your point on that and I'm not ruling on it yet. But in that opinion –- And, by the way, to my knowledge, the statute we're talking about has not been repealed by the Arkansas Rules of Criminal Procedure. In fact, it's been amended several times since then. (SPR 746) ABSTRACT 877 MR. ROSENZWEIG: May I respond to that now? THE COURT: No, I want to finish talking, Mr. Rosenzweig. If I'm wrong, I'm wrong, but that's the way I see it; it's not been repealed. In this particular case, Justice Dudley said that there's no work product exception in the production of witnesses' statements under Arkansas Statute 43-20-11, referring back, which is now found at 16-89-115. And he goes on to say what we all know that it is constitutional error to deny the defendant the right to expose the jury to the facts from which the jury could appropriately draw inferences relating to the reliability of witnesses. The main and essential purpose of confrontation is to secure the opponent of opportunity to cross-examination. Now, it depends sometimes, but not always, on whether or not that particular witness testifies. Certainly not all interviews conducted by the State must be turned over. (SPR 747) And what Dudley says here, that statement includes a substantially-verbatim recital of an oral statement contemporaneously –- key words being substantially verbatim, not precisely verbatim –- and all that is judged by whether the notes reflect the language of the witness, the length of the witness' statements in comparison to the length of the interview, whether the questions may be out of context, the lapse of time between interview and transcription. And here I'm confident they were taken by Mr. Deen contemporaneously, so there's no lapse in time. And here the concern about the verbatim-ness of the statement was more of a ABSTRACT 878 concern that there's a fairness to the witness, but whatever is attributed to him in a written synopsis of what the witness said, would it be grossly unfair for his credibility to be jeopardized by using the report on cross-examination. The Court believes at this point certainly –- It further goes on to say what the Court should do if this matter comes up; and that is obviously to review the document itself. And Mr. Deen has suggested that some of his thoughts are in there. I'm not being cynical, but it was obviously said to me to say, This report also contains my mental impressions of the case and, therefore, work product, and et cetera, et cetera. All of which the Court could redact before it was turned over to defense counsel at the appropriate time. That does not give it though –- In all likelihood, I want to see the report. It would have to be made a part of the record. In any event, whether or not I went under this statute or under the rule -- doesn't matter –- because the defense has to make a record. I can assure you at this –- Not can assure you. Leaning heavily towards requiring the production of the report certainly after she testifies. I would like to order it produced now, but I am going to have my own research done. You start with the premise that death is different, as taught in all of our schools. There is a super due process that is attached to this whole proceeding that is not found in an ordinary criminal case, simply because a person can be put to death. And, unless, the defense can test fully through cross-examination all it can available to it, Mrs. Pedraza's, the accuracy, ABSTRACT 879 reliability, and truthfulness of her testimony relating to what she describes to be the actions of Mr. Pedraza in relation to this child's case. (SPR 748) This case rises and falls on that testimony. Sure there's a medical examiner's report, and I know Mr. Rosenzweig has raised the issue of if the medical examiner takes into account certain things that she may have said to him. I don't know that that's the case yet. Point being is that, would the medical examiner's report square with her testimony -- that's a second issue -- if I were defending? Point being is that if there are cases that either side wishes to submit to this Court that are death penalty cases relating to statements made particularly by a co-defendant in connection with a plea bargain, as narrowly as you can make it –- do a nationwide search –MR. ROSENZWEIG: What – (SPR 749) THE COURT: Do a nationwide search and see if there are any of those statements. The reason, too, that it is important here, particularly that defense have anything that Mrs. Pedraza has said, in order to secure this plea bargain, or in exchange for this plea bargain, is that according to Mr. Rosenzweig –- and I have no reason to doubt his motion on this –- Mrs. Pedraza and her counsel have refused to talk to him. She will only talk to the State. And if she claims she didn't talk before, while she alleges this abuse was occurring at her home for fear of her own personal safety, that fear cannot be present now. That would be no reason for her not to talk ABSTRACT 880 to Mr. Pedraza's counsel. She's locked away in a separate facility, so she can make no claim that by talking now about what she says he did, he can do anything to her in reprisal. And so, I don't know her reasons for not, or her counsel's reasons, for not talking to you. It makes it all the more important though if you're denied access to her to record a statement from her as to what she's going to say at trial; and if the only other evidence out there is in the possession, such as it is, of the prosecutor, and the defendant is on trial for his life and she is his chief accuser, then if there's due process anywhere in the world, it would appear you would be entitled to it. But I do not have a case in point, and I don't know that there's one in Arkansas. I'll make some calls to see what cases I can come up with. But capital cases being entirely different than all others. And I agree with both counsel, as one of you said, under Arkansas law, we know she's going to testify, it is likely that I will order, perhaps with some redactions, those notes turned over as to what she told Mr. Deen Mr. Pedraza did, including getting her to lie to the ambulance people about the nature of the child's injuries and origin. MR. DEEN: Your Honor, correction, she's the one who initially came up with the lie. I don't want you to say that –THE COURT: But he may –- According to her? (SPR 750) MR. DEEN: According to her, she initially came up with the lie of falling off ABSTRACT 881 the dock. THE COURT: She did? MR. DEEN: That is what she told me. THE COURT: Okay, because it's not –- I'm not asking it more than I need to because I am –- My hearing isn't what it should –- You're stating that she will testify at trial that it was whose idea to lie? MR. DEEN: I don't know about whether it was whose idea to lie, but his question to her is: What are we going to tell them? according to her. Her response was the falling off the dock. She came up with the idea of falling off the dock. Now, your question's more broad than that. Your question is: Who decided to lie first? THE COURT: I see. Did she tell the ambulance, the emergency personnel that arrived at the home, did she tell them, My daughter fell off the dock? (SPR 751) MR. DEEN: I don't know if she initially uttered that or he initially uttered that, but both of them did. THE COURT: But she initially came up with the alibi? MR. DEEN: That's correct. (Inaudible). THE COURT: I understand. And, you know, I haven't seen the statement. MR. DEEN: Your Honor, these (inaudible) of value –THE COURT: Go ahead. ABSTRACT 882 MR. DEEN: -- frankly. They provided you –- Defense counsel has not asked for a deposition. I think Arkansas law authorizes one. Just have a deposition. We'll have her under oath. The whole world can attend. Cross-examine her to a fair-thee-well. MR. ROSENZWEIG: If you're agreeing to a deposition, that'll be great. We'll do a deposition then. THE COURT: But the State may agree to a deposition. What is the –- And, you know, I've looked at your deposition statute. I'm not trying the case –- Is there somebody talking in this courtroom? (SPR 752) MR. DEEN: The translator, Your Honor. THE COURT: Oh. MR. ROSENZWEIG: Some of the family members cannot understand English, so our interpreter is translating for them. THE COURT: Alright. I thought I was talking in a drum. I knew –- I didn't think there was a translator here because Mr. Pedraza said he spoke perfect English. MR. ROSENZWEIG: But the family does not. Your Honor, for the record, it's Ms. Theresa Jones. She works for the public defender commission. THE COURT: Okay. I don't have any problem with it. Do you mind though because it's –- Let's see if we can get you situated someplace. It's booming on me ABSTRACT 883 and I can't have that going on as a distraction. Can you get a little bit more toward the back of the room? Any of you-all that want to join her, a little bit further back, and talk more in a whisper. Penny Rosegrant suggested that you simply put your paper up there. That's good. I mean, she can't plead Fifth Amendment now, can she? MR. DEEN: No, sir. THE COURT: So that's not an option for her. MR. ROSENZWEIG: Your Honor, we'd love to take the deposition. (SPR 753) THE COURT: I don't need to know if you'd love to take the deposition; I know you'll be doing it. It doesn't moot the other question -MR. ROSENZWEIG: I understand that -THE COURT: –- because you can have several statements, but maybe you won't be as excited about what she told Mr. Deen if you get your deposition. And after the deposition, if you still want what you've got from –- what you're asking for from Mr. Deen –- what I will do is I will ask –- or direct it –- Mr. Deen simply supply it to the Court at the appropriate time, prior to her testimony, and I'll see what's in there. I can make it part of the record. MR. DEEN: I can provide a copy now. You know, what would be an unfortunate scenario, I think, is create this precedent in which a prosecutor's notes go ABSTRACT 884 to defense counsel and then the witness is impeached based on the poor note taking of a prosecutor: Well, you didn't tell Mr. Deen that when you took this sweetheart deal on August 14, did you? It's not in his notes -– THE COURT: I know, but that happens routinely in witness statements that are taken by police that are not recorded. (SPR 754) MR. DEEN: Police are witnesses; I'm counsel in this case. THE COURT: I understand. MR. DEEN: And if that's what starts happening in the future, it'll be the last day I take notes. THE COURT: But this is a capital case and you're not on trial. The point being is not that you didn't tell Mr. Deen that or so much about omitting something, as it is what if she told you one thing and flatly in her testimony she says something contradictory that could send this man to the death chamber? Now, that is a horse of a different color. It's not so much the completeness of the notes as it is if she said to you and you have a note to that effect, No, he did this, and gets on the stand and says the opposite, then that's clearly going to be relevant and impeachable. MR. DEEN: (Inaudible), Your Honor. I'm aware of my obligation. (SPR 755) THE COURT: I know that, but the point is that I have to decide or look at the things –ABSTRACT 885 MR. DEEN: Nine pages of my scribbling and I'll be glad to provide the Court a copy if we come to that. THE COURT: If we come to that. Let's get the deposition done first. And the thing is, is that the unfortunate part of the statute –- and I don't think you can do it in a capital case –- is that if there is something in there –- and that's the reason I probably need to look at it earlier –- if there is something in there --and I look at the deposition and compare it, and see a train coming, I can't recess –- or it's very hard to –- a capital murder case, which is the procedure under attorney –- Waiting until after the witness testifies for the Court to make a decision to turn them over and send a jury home, come back in two days after defense has a chance to check this out. MR. DEEN: It's all about creating a (inaudible) fogger, and I think a lot of us in this room know that. That's what it is. THE COURT: It's this, Mr. Deen, it's making sure that regardless of anyone's opinion as to what has happened is that the witness against him, the chief witness, her truthfulness will be the big issue in this case; and, therefore, anything she said either to you or to other people is critical. (SPR 756) Alright, the 404(b) motion filed by Mr. Pedraza, I am unclear from your –And remain seated, please, Mr. Rosenzweig. I am unclear what you're seeking to ABSTRACT 886 exclude. Always let me finish. I read from your motion, the prosecution has told the defense that it may seek –- the word is "may," not will –- may seek to introduce evidence of an altercation Pedraza had with his future wife -- let's just say co-defendant Victoria Pedraza –- some months before the death of Aubriana Coke. "Some months"? Not one month, not two. All of that's important. The alleged basis of introduction would be Rule 404(b) (inaudible) evidence of other crimes so on and so forth is not admissible to prove the character of the person in order to show that he acted and conformed therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, and intent, preparation, absence of mistake or accident. Admission of such evidence -- you go on to say -- is not guaranteed under 404(b) even the crime (inaudible) is obviously offered for the purposes allowed by the rule. It must be independently relevant to the main issue relevant in -- And you go on to ask the Court even if it is relevant to do a 403 analysis. The State's response is more specific than yours. It specifically says that you're asking to exclude evidence of his prior abuse of Aubriana Coke, the two-year-old victim in this case, and also exclude evidence of a prior altercation between himself and the child's mother. The motion that I have from defense counsel doesn't mention excluding prior abuse of the two year old. MR. ROSENZWEIG: Your Honor, if I could respond on that. ABSTRACT 887 THE COURT: Yeah. MR. ROSENZWEIG: (Inaudible) as Mr. Deen did in the context of the motion for production of 404(b) -- What I'm trying to get at, and apparently not with full clarity, but what I'm trying to get at is several different things. One is, there's no dispute that these two had an altercation on –- (SPR 757) THE COURT: I just need to know is your motion pertaining to an altercation, or altercations, between the two Pedrazas or does it include, as Mr. Deen's response suggests, prior alleged abuse of the two-year-old victim –MR. ROSENZWEIG: Yes. THE COURT: –- if so -- See, I have to go by only the written motion. MR. ROSENZWEIG: I understand and let me address that, Your Honor. Are you ready for my response? THE COURT: I am. MR. ROSENZWEIG: Your Honor, clearly the written –- I looked at it as a two-barrel thing. First, the written motion dealt with the altercation. Your Honor, we were also seeking –- and this is one reason we wanted Mr. Deen's notes and the substance of Victoria Pedraza's statement –- that's in the motion for production –THE COURT: Right. I've got you. (SPR 758) MR. ROSENZWEIG: Okay. -- in order to see exactly what she was saying so ABSTRACT 888 we could then file the appropriate motion dealing with the exclusion of it, but since we didn't know what it was –THE COURT: Well, for all you know, there's no allegations then of that –MR. ROSENZWEIG: Well, Your Honor, it appears that –- It appears, Your Honor –THE COURT: But that's under an entirely separate rule of evidence. It is not necessarily a 404(b) issue. Let me deal with this solely with regard to any prior altercation, or altercations, as your motion says, between the two Pedrazas. Mr. Deen's response, I guess, went further than your motion did. That's all. Let me see what the incident is according to Mr. Deen for the State. "The incident between the Pedraza couple took place last year" -- Do I have a date? Mr. Rosenzweig? MR. ROSENZWEIG: It was in the summer of 2011. THE COURT: Date? (SPR 759) MR. ROSENZWEIG: I don't have that right in front of me. I can get that for the Court. THE COURT: Alright. Summer of, what, ‘11? MR. ROSENZWEIG: Yes, sir. THE COURT: Alright. –- "where the two were assigned military training exercises. The evidence is offered" -- I don't know what the incident is. It says, "The ABSTRACT 889 evidence is offered" -– "Does not offer to merely show that the defendant's a bad person (inaudible) domestic violence, but to establish the commencement of an increasingly abusive and manipulative relationship in which the defendant managed to conform his will on every aspect of Victoria Pedraza's life. It was his intent to do so. And according to Victoria, he implemented the plan of regular beatings when there was thought of leaving him. He added his assurance she was fat and worthless and she would be acceptable to no man. If she did manage to leave, he said he advised her he would find her and kill her. Mr. Deen says the evidence is independently relevant going to the circumstances leading to the child's death in which Victoria failed to take measures to protect the child from the ultimately fatal abuse administered by her husband. No justification exists for Victoria's parental inaction, but given that she was the only other one present when the child was murdered, the State's entitled to show reasons for her fearful mental state, however inadequate they may be. Evidence further negates the defense's suggestion that it was a hapless defendant who stood helplessly by as he became ensnared in Victoria's discipline and corrective training exercises demanded of the child instead of vice versa." And you go on to say that the defendant wishes to conceal from the evidence that his corrective training routine coming child abuse preceded the date of the child's death. Let me keep this simple. Is there a police report on this incident at Fort ABSTRACT 890 Chaffee? (SPR 760) MR. ROSENZWEIG: Yes, there are documentations. THE COURT: Okay. May I see it? MR. ROSENZWEIG: Your Honor, it appears I don't have it in this notebook. I only brought –- I do not have it in this notebook. THE COURT: Mr. Best, I bet you've got it. MR. BEST: We've got it somewhere, Your Honor. I found the interview of the witness, but I haven't found the police report. THE COURT: Well, what's the date of the interview? MR. BEST: November –THE COURT: What? MR. BEST: November 26th, 2011. THE COURT: It wasn't in the summer then? (SPR 761) MR. BEST: No, Your Honor. MR. ROSENZWEIG: I must have misspoken then, Your Honor, my off-the-cuff recollection isn't –THE COURT: May I see the witness' statement so I can get some idea as to what somebody said happened? MR. BEST: May I approach, Your Honor? ABSTRACT 891 THE COURT: You may. MR. DEEN: This is an after-the-fact witness statement –THE COURT: Right. MR. DEEN: –- taken in connection with this matter. MR. ROSENZWEIG: (Inaudible) THE COURT: Taken in connection with the incident at Fort Chaffee? MR. BEST: No, Your Honor, this was taken later after –THE COURT: That does me no good. MR. BEST: Okay. MR. ROSENZWEIG: Your Honor, if we have a brief recess, I'll gather –- THE COURT: Yeah, it will enable me hopefully to make the ruling. Thank you. We're in recess. Let me know. (Off the record) THE COURT: You may be seated. Thank you. Mr. Best and Mr. Deen, do you-all recall basically what this incident involved? Is it a battery, verbal abuse, or what? (SPR 762) MR. DEEN: I believe there was some assault or battery. I don't know if she ABSTRACT 892 was injured to the extent it became a battery. It's alleged she was out waiting for him to come out of the nightclub with some other members of the military, he came outside. She was there waiting at the vehicle for them to come out and that he laid hands on her about his view of whether she had left the club –- should or should not have left the club –- without him. THE COURT: Well –MR. DEEN: The military, they did their own internal, as I understand it. Also, the local authorities came in and made a report. She declined to prosecute. It's alleged he showed up in the female barracks later that night or the next day trying to console her into not doing so. Then if the Court would allow me to, I can explain why I think it becomes relevant. THE COURT: And we may save that for a later day after I see the report. Let me ask something. The date of death of this child was? MR. DEEN: It was February the 28th or 27th. February the 27th or 28th, Your Honor. THE COURT: Of 2012; correct? MR. DEEN: Yes, sir. THE COURT: When did Mr. and Mrs. Pedraza begin their romantic relationship? When did they, let's say, first meet? (SPR 763) ABSTRACT 893 MR. DEEN: I don't know about the first meeting, Your Honor, but I believe in June of 2011 is when they began a romantic relationship. The information says February 26th, dash, 27th of 2012 for date of death. THE COURT: So, they were together, residing together –MR. DEEN: I don't know about residing together in June, Your Honor. THE COURT: I've got you. They became involved –- I'm just wondering how long the State claims that the Defendant Pedraza had an opportunity to have influence over her. MR. DEEN: Now I'm getting into why it's relevant. She will testify, as I appreciate it, that the incident at Fort Chaffee, or the nightclub near Fort Chaffee, was the first time that she detected, what she described as a change in his behavior, and in which she felt like he was by the use of force, threats of force, seeking to have her do as he would have her do. THE COURT: But when did they hook up? In other words, when did they become a couple, I guess you would say? I know that –MR. DEEN: Later in the summer, they moved to a camper trailer behind her grandmother's house in Warren; and that's when they began for the first time to reside together. THE COURT: So, these two co-defendants were not together prior to the ABSTRACT 894 summer of 2011? MR. DEEN: If they had any interest in each other or were romantically involved prior to that, I'm not aware of it, at least not in a boyfriend-girlfriend type of situation. (SPR 764) THE COURT: Alright. Good deal. I take it that it's the State's position that this child was –- I'll put it this way –- well attended to and cared for before Mr. Pedraza showed up on the scene? MR. DEEN: Your Honor, I don't –THE COURT: Mr. Rosenzweig, are you paying attention? MR. ROSENZWEIG: Yes, sir, I am. MR. DEEN: Well, she was not well attended to and cared for by her father, who basically abandoned her, as my appreciation of the –THE COURT: Well, I mean –- You know what I mean. Did Mrs. Pedraza take care of the –- I mean, the child had been with Mrs. Pedraza since birth, I take it? MR. DEEN: Yes, sir. THE COURT: And the proof will be that this child was well attended and cared for by her, I'll put it that way, prior to she and Mr. Pedraza getting together? MR. DEEN: I don't have any evidence to the contrary, Your Honor. And in ABSTRACT 895 this corrective training, as I've referred to it in the pleadings, according to her is Mr. Pedraza's term for what Aubriana went through. (SPR 765) THE COURT: Right. MR. DEEN: And that didn't commence, according to Mrs. Pedraza, until they moved in with each other. "Corrective training" is also apparently a military term, I'm told. THE COURT: Mr. Rosenzweig –MR. ROSENZWEIG: Yes, sir? THE COURT: –- I'm sure that you have already interviewed the father. MR. ROSENZWEIG: The father? No, we have not yet interviewed the father. You're talking about the biological father for the child? THE COURT: The father of the child. MR. ROSENZWEIG: No, we have not yet, no, sir. THE COURT: You may have a seat. Mr. Rosenzweig, you can put that thing down. (SPR 766) MR. ROSENZWEIG: I was looking for that –THE COURT: I know. I'll give you a chance after this hearing is over to find it. Mr. Rosenzweig, do you have any idea as to what this biological –- Do you ABSTRACT 896 know who the biological father is? MR. ROSENZWEIG: We have his name, yes, sir. THE COURT: Do you know where he lives? MR. ROSENZWEIG: I believe there's an address in the file, but I can't recite it to you right offhand. THE COURT: Do you know how long after the birth of this unfortunate child that her father was with her mother? MR. ROSENZWEIG: I have several different understandings. I do not know which is correct, Your Honor. THE COURT: From where do you get these understandings? MR. ROSENZWEIG: Just from what different people have told me. I have not yet pinned down which is correct. THE COURT: And how do you go about pinning that down? MR. ROSENZWEIG: Well, the first thing I would do is, among other things, is if we could talk to Mrs. Pedraza, which I believe, if I understand your ruling correctly, we're going to be allowed to. (SPR 767) THE COURT: Well, where do you understand this natural father to live? MR. ROSENZWEIG: I cannot recite his address right here. THE COURT: I don't mean his address. Where do you understand him to ABSTRACT 897 live? North Arkansas? MR. ROSENZWEIG: Marmaduke, Arkansas, Your Honor. THE COURT: Have you got an idea where Marmaduke is? MR. ROSENZWEIG: Yes, sir. THE COURT: Where? MR. ROSENZWEIG: It's up in northeast Arkansas. THE COURT: About a two-hour drive from Little Rock. I believe that would have been the first person I would have talked to in preparation for this case. I would not wait til I talked, if at all, to Mrs. Pedraza because you haven't known whether or not you were going to talk to her until today. I'd get in my car, I'd call the sheriff ahead of time, have them to track him down and see what he had to say. MR. ROSENZWEIG: Your Honor, may I respond? THE COURT: You may. (SPR 768) MR. ROSENZWEIG: We're in the process of working on all these things and this is one that we simply are still in the process of working on this case. THE COURT: Of all people besides the two defendants, it is possible, if not likely, that he would know more than anyone. He would be No. 1 on my list before I even filed a motion about declaring the death penalty statute unconstitutional. He could be –- may not be –- could be a huge witness, particularly, with respect to Mrs. ABSTRACT 898 Pedraza's claim that she was coerced in a sense into allowing this alleged abuse to go on six months. You would go first to the person who obviously had a history with her; and then you would find out from him and other people there did she have someone between him and Mr. Pedraza, another man; and then from that man, you would go, if appropriate, to the next man. You would talk to any prior employers. You would have certainly any research done in each area as to whether or not any ex parte orders of protection were -- Those are fact witnesses on which I possibly would (inaudible). They're not esoterical law school questions. This case is fact-driven. Most of the rulings that any Court would make are in large measure relating to evidence discretion and are upheld on appeal. You will not win or lose this case based upon rulings of this Court. You both win or lose it based upon how well you have –- and quickly –- you have located potential key fact witnesses on the issue of coercion. I will not grant continuances based upon witnesses that you have not yet interviewed if those people were earlier known to you. (SPR 769) Now, the State may have policemen out there that can help them work up their case, I understand that, but they've got a lot more cases than you, too. This is worth lead counsel going with a court reporter in hand to put that person under oath and get a sworn statement in case they drop dead tomorrow, or a piano falls on them, or they get drunk and get killed in a car accident. Get a sworn statement. You wouldn't even ABSTRACT 899 have to turn it over to the State. I would have been in my hoopty up there within a week after I took the case or I wouldn't have taken it. It does concern the Court because I want this case tried on time and no last-minute surprises; and if there are any surprises, it comes as a result –- I just wouldn't go talk to him, I'd have a court reporter -- always had one –- because I would never ask a jury to believe –- Show them a statement they signed that I wrote down. Juries don't like lawyers anyway. I'd have a court reporter to cover myself, as well as my client. The business about what any actions attributed to the defendant going to the motion by Mrs. Pedraza after they became a couple relating to events with the child discipline and so on, clearly, her testimony, if believed, would be relevant and will come in. I think you-all know that's a given. MR. ROSENZWEIG: I'm sorry, I didn't hear that. (SPR 770) THE COURT: I said: Evidence relating to any conduct that Mrs. Pedraza attributes to Mr. Pedraza in his treatment of the child certainly will come in. They were together only six months prior. Probably any treatment of the child by her prior to Mr. Pedraza would come in also, but you've not uncovered that through witnesses. This child was only two years old, therefore, the treatment by either, the stepfather or the mother, during this child's brief-and-unfortunate life will come into evidence. The autopsy report itself indicates old wounds within; matters that she may have told ABSTRACT 900 DHS when I think a report was made, whether or not she disclosed anything to DHS when they visited with her without Mr. Pedraza present, will be admissible. All of that will come in. With respect to the incident at Fort Chaffee, I'm sure it will be the least of your concerns or the Court's concern. There will already be so much else in there, but I'll make a decision on that at the time. With respect to a jury in this case, Mr. Deen, do you encourage the Court in this particular case to submit any additional questions with respect to –- Do you want any special –MR. DEEN: Questionnaire. (SPR 771) THE COURT: –- questionnaire? MR. DEEN: Defense counsel specifically –THE COURT: I know, but do you see the need in this case for additional questions? MR. DEEN: Although I was an early skeptic of those, I may –THE COURT: Me, too. MR. DEEN: –- I think I found some use in them. THE COURT: Well, you know, you have available to you –- I'm stating the obvious –- more ways to –- when you're local here and so on –- you have more ways to check people out just by your presence here and having a big office staff and all ABSTRACT 901 the things available to you like that, defense counsel doesn't have. What I would ask you-all to do is if -- Mr. Rosenzweig, if you have additional questions, a reasonable amount, that you would and Mr. Deen can confer on before we leave here and have him check off what he agrees to, if you-all –- Don't bring them to me first. Always go to counsel opposite and say, Hey, these look good to you, I can submit them -- If you-all can agree they're reasonable in length and so on, I don't mind doing it at all. It doesn't –- Remember, none of that's answered under oath, so it really doesn't cut down a whole lot on voir dire. (SPR 772) Mr. Deen, how many jurors do you think it will take? MR. DEEN: Given the need to death qualify –THE COURT: Given everything. MR. DEEN: –- I would think two –- Is each panel 65, Your Honor? THE COURT: No, we're getting –THE CLERK: Closer to ninety. MR. DEEN: Ninety in the panel? I believe it'll take a panel and a half in my view. THE COURT: Why don't I give one day to jury selection and not have the second panel. I'm subject to change coming in to, like, two o'clock and let's see -I've got some cases to try this week, let me see the turnout, and we'll go from there. ABSTRACT 902 MR. DEEN: This will be the first time the new panel will be called this week? THE COURT: Tomorrow. Mr. Rosenzweig –MR. ROSENZWEIG: Yes, sir. THE COURT: –- two hundred -- Do you think two hundred jurors? MR. ROSENZWEIG: Your Honor, you know, you deal with these people all the time -- you and Mr. Deen do -- so I think –THE COURT: I do; Mr. Deen's here today. MR. ROSENZWEIG: Mr. Deen's office. Your Honor, you know, I'm poor at predicting how many challenges one has, how many are going to be excused because of publicity or knowing people, and that type of stuff. I just don't know. Obviously, we need enough people in order to impanel the jury and alternates –- (SPR 773) THE COURT: I think we can do it with two panels. If I'm wrong then it's on me. Let's find out who's going to be co-first chair. You can have a seat, Mr. Rosenzweig. Let me get on the record for the benefit of my reporter, the names of the two additional counsel -- they're here -- so she can -- because I'm going to address you-all now. ABSTRACT 903 MR. MORLEDGE: Yes, Your Honor, Birc Morledge. That's B-I-r-c M-o-r-l-e-d-g-e. MR. BENCA: And my name, Your Honor, is Patrick Benca, B-e-n-c-a. THE COURT: Alright, Mr. Benca called –- Y'all have a seat. Mr. Benca called my office the other day, and I told Mrs. Rosegrant to call him back and say I would substitute Mr. Morledge for him provided that I didn't have the same problem I had last time; and that when I asked Mr. Morledge about his calendar or anything else I considered pertinent to this case, that he stand up and give me an answer. MR. BENCA: Your Honor, if I could, there is one thing –- I do want to get the Court up to speed on a couple of issues that may bear –- (SPR 774) THE COURT: You can stand right there and tell me. MR. BENCA: Real quick, Judge –THE COURT: Are you still on the case? MR. BENCA: I'm still officially on the case. THE COURT: Do you want me to substitute Mr. Morledge for you? MR. BENCA: I do, Your Honor, but I do want to bring up a point. Last week, I did appear in front of Judge Robin Green on that case that was going to be somewhat of a conflict and the case has been moved; and I did not want to –- I wanted you to know that information. (SPR 775) ABSTRACT 904 THE COURT: Oh, your credibility here -- I might call her today and see if –Look, I don't care who is second chair. Both of y'all, I'm sure, are good or you wouldn't be here. But, Mr. Morledge, you want to take his place? MR. MORLEDGE: Yes, Your Honor, I would –THE COURT: Mr. Benca, sorry you had to sit through all of this. MR. BENCA: That's alright, Your Honor. I appreciate it. THE COURT: Good to see you. MR. BENCA: It was good to see you. THE COURT: I figured that other one would be moot. Alright, as it stands now, Mr. Morledge, your calendar good for the current trial date? MR. MORLEDGE: Your Honor, with the utmost priority, yes, it is. THE COURT: Alright. Good deal. Mr. Morledge, as I understand it, you'll be handling the –- if we get to that –- the punishment phase; right? MR. MORLEDGE: No, Your Honor, Mr. Rosenzweig will be first chair on the punishment phase. THE COURT: What are you going to be doing? MR. MORLEDGE: Your Honor, I'm going to be second chair to Mr. Rosenzweig and helping with voir dire and all the other –- (SPR 776) THE COURT: Alright, let me finish with you, Mr. Morledge. You may go, ABSTRACT 905 Mr. Benca. MR. BENCA: Thank you. I appreciate it, Your Honor. THE COURT: You bet. So, Mr. Morledge, how many capital cases have you tried before? MR. MORLEDGE: Your Honor, I do believe I have tried, been apart of –THE COURT: Been at the table? MR. MORLEDGE: I'm sorry, sir? THE COURT: Been at the table? MR. MORLEDGE: I would say this is my eighth, Your Honor. THE COURT: Your eighth. Have you made a closing argument in either one on penalty yet? MR. MORLEDGE: No, Your Honor, I have not. THE COURT: Why not? MR. MORLEDGE: For one reason or the other, the other attorney I was working for at the time wanted to do it all. THE COURT: So, you're telling me that the lawyer at the guilt phase made the same –- He made the closing argument at the penalty phase, too? MR. MORLEDGE: Yes, Your Honor. THE COURT: Do you know the reason why it's encouraged that you have two ABSTRACT 906 different lawyers, one that stands up and does it at the guilt phase and makes the closing, and a separate lawyer at the penalty –- You understand –- You learned in your training and so on the reason for that? MR. MORLEDGE: (Nods positive.) THE COURT: That's "yes"? And what is that reason? (SPR 777) MR. MORLEDGE: So the jury gets a different look at another attorney, so if they didn't believe one attorney, you have someone else there (inaudible), Your Honor. THE COURT: Do you think that's a good reason to do it? MR. MORLEDGE: I do, Your Honor. In some particular instances sometimes it isn't; sometimes it is. THE COURT: Well, tell me a time it's not a good idea that they get up and –If, for instance, let's say it's a case where the guilt of the defendant had been proven beyond a reasonable doubt, what's the guilt-phase attorney, what's his obligation, or her obligation? MR. MORLEDGE: Well, Your Honor, for instance, one time –- (SPR 778) THE COURT: No, I'm asking you a question: What's the obligation even if the guilt is obvious of defense counsel at the guilt phase? Can they get up and tell the jury, Oh, well, I know the evidence is overwhelming and my client's guilty? They ABSTRACT 907 can't do that, can they? They can't do that, can they? MR. MORLEDGE: No, Your Honor. THE COURT: Why? MR. MORLEDGE: Because they just spent the last week and a half saying, My client's innocent. THE COURT: Because you can't plead your client. You can't get up and say, Yep, he's guilty. That defense attorney has still got to argue to that jury some type of reasonable doubt may exist, even though looking them straight in the eye, he knows that the proof is overwhelming. And what does that do to that lawyer's credibility then? It zeroes it out, doesn't it? And that is why a separate attorney, for the most part, handles both the examination and makes closing argument on what may be the most important part of the trial, and that is life or death, because then the jury doesn't say, Oh, well, here's the same man or woman who blew smoke up my behind six hours before. And so, you're telling me, that in these eight trials, the same lawyer made the closing on guilt and innocence, and the same lawyer made the closing on punishment; is that right? MR. MORLEDGE: Your Honor, we didn't get to the punishment phase as in for the death penalty in any of those cases. (SPR 779) ABSTRACT 908 THE COURT: Why not? MR. MORLEDGE: Because they were given a sentence that wasn't that. It was something –- It was either first degree, second degree, something to that nature. THE COURT: Okay. But were you ready to get up? MR. MORLEDGE: If I had to be, yes, Your Honor. THE COURT: In other words, you were going to do it? MR. MORLEDGE: No, Your Honor, I was never planning to do it, but if I had to, I would have. THE COURT: I don't understand. I'm directing these questions, Mr. Rosenzweig. MR. ROSENZWEIG: Your Honor, I'm a fact witness to a couple of those trials, Your Honor. (SPR 780) THE COURT: I'm not talking about a couple of them. What I am trying to tell you is this: I'm not in any way cross-examining you or anything, but the Court in a capital case has an independent obligation, as I've been taught by those smarter than I, to ensure that the trial is fundamentally fair and that I don't have a lawyer at that table simply as a hood ornament to say, Well, he had two lawyers, he must have two for one specific reason and that is, so when and if that time comes that you do go to the jury on life or death, that you are prepared. And it is not for you or Mr. ABSTRACT 909 Rosenzweig to make that decision –- are you clear on that? -- as to whether or not your client is entitled, not only to a second lawyer, but a second lawyer that will perform on his or her own when the time comes, if necessary; and that ego and all of that is laid aside, or the desire to control everything that goes on, but to give up control to somebody else equally qualified like you. And your demeanor here in this courtroom tells me that probably you would be somebody I would want talking to a jury because they're not going to be put off by you, or be intimidated, or think you are a fast Eddie; and they may give you more the benefit of the doubt than they would if I were doing it. So, I'm not going to say any more about this, other than like on the other deal, I'm going to make a couple of calls to, I think some good capital murder judges, as I mentioned one in Florida that I trained under, because I know that it's come up. Well, I've just never –- And I've taken three of these courses. I've never heard any of them say –- it's always assumed –- that the different lawyer does it; and it's pounded into the judge's head. It is in a sense –- (SPR 781) Well, no wonder you weren't sitting at the table; you were sitting back there on the bench. Alright. And I think I shall address the matter to the public defender commission also and see what their –- because that's who is paying you-all –- see if ABSTRACT 910 we're paying for two when we're getting one. Mr. Deen, do you believe that there are –- then I'll turn to Mr. Rosenzweig –are there any other motions, whether they're filed by you or anyone else, pending that you think the Court needs to rule on? MR. DEEN: I don't believe the Court has ruled on defense counsel's legal issue motions. I believe those are all evidentiary motions –THE COURT: The legal issue motions I can do this week, provide for the constitutionality of the statute, so on and so forth. On voir dire –- and I'll get to this later –- I certainly don't want to work with any more probably than four jurors if we get –- And certainly it'll be sequestered in chambers. I don't see any reason why we shouldn't go with –- I've done it one at a time; I've done it three at a time. Three at a time will be my inclination. There's no firm –- There's no bright line on it. (SPR 782) The legal issue motions are well enough stated, I can rule on those. And as I said, Mr. Rosenzweig, I know you're a very capable lawyer, but I am –- and should say on the record –- that I am stunned that if I, if I were defending and there was a man who was the father of this child, that may have lived with the woman -– the co-defendant was going to try to put my man in the death chamber -- and he only lived right up in northeast Arkansas, I would have been in my car and gone up ABSTRACT 911 there and interviewed with him, with a court reporter, to take down his sworn statement, and any other significant other that she has had prior to her getting with Mr. Pedraza, to see what those men had to say about how she was as a mother or her concern, and whether or not she made any similar claims against them, whipping them and making her put up with stuff because that will be her claim; and what she's told Mr. Deen is she did nothing for six months while Mr. Pedraza proceeded to slowly kill this child; and that she was silent; that she apparently -- She came up with the lie to tell the ambulance driver that the child had fallen off the dock. Those men, or associates, anybody in DHS up there, they are fact witnesses, you know. I would certainly –- You know a trial judge would be very inclined since your man's on trial, life or death, be very inclined to let those people in because her credibility is going to be an issue; and the witness' credibility is always an issue. And here we are a month away from trial and you've had this case for how long? (SPR 783) MR. ROSENZWEIG: Several months, Your Honor. THE COURT: Alright. Well, it's a two-hour drive to Little Rock from your house. MR. ROSENZWEIG: Your Honor, may I respond? THE COURT: You may respond. MR. ROSENZWEIG: Your Honor, that deals with the motion that I have ABSTRACT 912 prepared and because it deals with internal defense, I would ask to be ex parte in camera, or at the very least in camera so we're dealing with some public –THE COURT: Well, you can file things under seal. MR. ROSENZWEIG: Well, Your Honor, I have –- I wanted your permission to file it under seal. THE COURT: Well, let me see, you know the rule is –- I need to bring it out –- they emphasize them in these -- you want to show it to me, what it is –- not only are all proceedings on the record, but it is required that they be public. MR. ROSENZWEIG: No, sir, some of them are not, Your Honor. THE COURT: I know some of them aren't, but as a rule. If they are not public then the Court must make certain findings as to why not. MR. ROSENZWEIG: That's correct. THE COURT: Have you shown this to Mr. Deen? MR. ROSENZWEIG: I have told him what I was -- I have not shown that to him yet, Your Honor. THE COURT: Alright. Then I want you to show it to him. Why not? So he can respond. (SPR 784) MR. ROSENZWEIG: Your Honor, the purpose –- The reason I did not want to –- I told him what I was seeking, but I did not want to talk about the contents ABSTRACT 913 because they dealt with internal defense issues. THE COURT: Right. MR. ROSENZWEIG: And that's why it's labeled ex parte, Your Honor. THE COURT: Well –MR. ROSENZWEIG: And what I –THE COURT: I understand. And I'm not going to make a decision on it at this time. MR. ROSENZWEIG: Okay, Your Honor, I would like to make a presentation on record with regard to it. It deals with mostly, not absolute exclusively, but mostly with the penalty phase problems that we are having. And that's why we need and I would like to make a presentation to the Court about it. Because of the nature of what we're talking about, Your Honor, I have to –THE COURT: Alright, let me take a look at your motion. (SPR 785) MR. ROSENZWEIG: Thank you, Your Honor. THE COURT: One of the arguments is that --I consider the motion under seal, but it is a motion for continuance –MR. ROSENZWEIG: Yes, sir. THE COURT: –- and you've made these motions before; and one of them is –- In paragraph 3, you basically say that you're not ready to try, won't be in October, ABSTRACT 914 the amount of time allowed for preparation (inaudible) fall short of the average length of time for pretrial preparation in any capital case in Arkansas in the modern era. MR. ROSENZWEIG: That's correct. THE COURT: Well, I think I've addressed that already because you –- And this motion has to do with the penalty phase because at this point, this Court believes that you've done, what I would consider as a trial lawyer, what is reasonable in interviewing fact witnesses that could very well have a direct bearing upon whether or not this even reaches the penalty phase –MR. ROSENZWEIG: Your Honor? But you have to be prepared in both things at the same time, Your Honor. THE COURT: I'm not going to say any more than to say this: The chief evidence and witness in this case against your client is your client's girlfriend or wife. Were they married? (SPR 786) MR. ROSENZWEIG: They are married. THE COURT: Married. Okay. Wife. Mr. Deen has extended to her a plea bargain of a Class B felony punishable by from five to ten in jury sentencing. In exchange for that, she has agreed to testify certain things placing, we'll say all the blame for this six month's worth of abuse culminating the death of this child upon your client. This case rises and falls on her credibility, every statement she's made, ABSTRACT 915 every claim she's similarly made against any other man; and all you have to do is go back two years, two-and-a-half years because that's how old this child is. Given that and given that's the way this case was when it walked in your office; and given the fact that the father of this child is in Marmaduke, so far as you know, and you've not even tried to find him yet -- and you've had this case for four to five months –- that's the first person you go look to, and then the next man she's with, and you carry the reporter. MR. ROSENZWEIG: May I respond, Your Honor? THE COURT: (No response.) MR. ROSENZWEIG: May I respond? THE COURT: Yeah. MR. ROSENZWEIG: Thank you, Your Honor. Your Honor, first, you know, people approach cases in different ways. Obviously, I haven't approached this in the same way that you would have approached it if you would have been the trial lawyer –- (SPR 787) THE COURT: Not –MR. ROSENZWEIG: Your Honor, may I finish, please? THE COURT: You may. MR. ROSENZWEIG: Thank you. Number two, we have been talking to ABSTRACT 916 plenty of witnesses. We have spent weekends; we have gone down on weekends, spent our weekends, trying to find people, talking at length, talking for hours and hours with people. We haven't talked with everyone yet. We haven't had the time to talk with everyone yet. Just like this isn't your only case; it's not our only case. Furthermore, Your Honor, we have been preparing, as one has to do, both guilt and penalty at the same time. There are particulars about this case that we have had to concentrate on. We've spent a lot of time on the medical. We have spent a lot of time trying to prepare the penalty phase. We simply have not had enough time. The Court has –THE COURT: Do you have investigators in that office that can go talk to that man? MR. ROSENZWEIG: Your Honor, we have investigators –- I'm sorry, you're talking about the ex-husband? (SPR 788) THE COURT: Well, I don't know if they were married. MR. ROSENZWEIG: We have talked to plenty of people, Your Honor. THE COURT: No, no, I'm talking about the father of this child. MR. ROSENZWEIG: Yes, her ex-husband –- Not her ex, but an ex –THE COURT: Was he her husband or not? MR. ROSENZWEIG: Anyway, Your Honor, I do not know –- I have not ABSTRACT 917 talked to him and I do not know if our investigator has or not. I do not think –- THE COURT: Has it been requested to talk to him? (SPR 789) MR. ROSENZWEIG: The investigator has been requested to talk to, you know –- He has a copy of the file and has been requested to talk to everyone. Now, Your Honor, the issues in that motion –- the issues in that motion deal extensively –- I would probably say 90 percent of it –- dealing with penalty phase issues we have. I would rather not discuss it publically. And we are entitled to discuss it in camera because of the particular nature of what we're talking about because it deals with trial preparation, deals with matters which might -– some of which come under the attorney-client privilege or other privileges and, therefore -- But we are trying to make a record on the absolute need for a continuance, a reasonable continuance, in this case so we can get ready. And I want to explain to you ex parte in camera, if possible, some of the problems that we have had to show you that we have not been dilatory or un-diligent with regard to this. The guilt-and-penalty phase has to be prepared at the same time. It's an interrelationship. They have to be prepared at the same time. Assuming there's a guilt verdict, you're not going to give us two months to get our penalty phase together. We have to be prepared to go –THE COURT: You're right about that. ABSTRACT 918 MR. ROSENZWEIG: And we've got some issues –- There's some things –I mean, there are things that are a matter of public record. We do not yet have all his military records -- this is a man who spent almost a year in combat in Iraq -– and we do not yet have all his military records. We have been trying, and trying, and trying to get them. There are –- His parents speak only Spanish; they do not speak English. We have had to deal with them through an interpreter. There are numerous culture issues that we have to deal with in this matter that have made it much more difficult to prepare. The mental health professional we have retained has essentially run into a wall with the cultural issue; and we just simply need more time. (SPR 790) THE COURT: Well, there's a great deal of case law out there that PTS –- they say disorder –- actually syndrome –- Have you found many cases where that's been sufficiently recognized for the Court –MR. ROSENZWEIG: There are plenty of cases where it has been. The point is, Your Honor –THE COURT: Good. I want to see them. MR. ROSENZWEIG: If I may respond. May I respond? Number one, under (inaudible), anything about defendant or the defense is admissible as mitigation. Furthermore, Arkansas statute specifically said that mitigating evidence is admissible without regard to its admissibility under a rule of evidence. Anything is admissible. ABSTRACT 919 THE COURT: I think you're telling us something we ought to know. MR. ROSENZWEIG: Well –THE COURT: What I'm saying is it's –-Mr. Pedraza was in the national guard when he was arrested; correct? (SPR 791) MR. ROSENZWEIG: Yes. He's technically still a member. THE COURT: And he was in Iraq, when? MR. ROSENZWEIG: He was in Iraq about four years ago, approximately. THE COURT: Four years ago. Was he in active service then or did he go as a guardsman? MR. ROSENZWEIG: He was a member of the guard. They were deployed on active duty. He was –THE COURT: When did he become a member of the guard? MR. ROSENZWEIG: Immediately after high school; correct? MR. PEDRAZA: May 30th, 2007. MR. ROSENZWEIG: May 30th, what? MR. PEDRAZA: May 30th, 2007. MR. ROSENZWEIG: 2007. THE COURT: May 30th, 2010? MR. ROSENZWEIG: No, no, ‘07. ABSTRACT 920 THE COURT: ‘07? Of 2007. And what unit is he –- It'd have to be local. MR. PEDRAZA: Alpha Troop 39, 151 Calvary. (SPR 792) MR. ROSENZWEIG: What division? MR. PEDRAZA: Thirty-nine. MR. ROSENZWEIG: Alpha Troop 39. THE COURT: Where? MR. PEDRAZA: Crossett-El Dorado. THE COURT: Crossett-El Dorado. Good, they've got your records. MR. ROSENZWEIG: No, sir, they don't necessarily have all of them. THE COURT: Have you gotten the records? MR. ROSENZWEIG: We've gotten some records –THE COURT: I want to know, have you gotten the records that the national guard has? MR. ROSENZWEIG: No, we do not yet have all of the records. THE COURT: Why not? MR. ROSENZWEIG: We have been trying and they haven't given them to us. THE COURT: Why? MR. ROSENZWEIG: Why? I don't know why. They're just looking for them; they're spending time trying to get them; they're just doing it at their leisure. I don't ABSTRACT 921 know why. We just don't have all of them. We just got his –THE COURT: Have you talked to his commander? (SPR 793) MR. ROSENZWEIG: Excuse me, sir? THE COURT: Have you talked to his commanding officer? MR. ROSENZWEIG: Members of our staff here, physically, Mr. Green, has talked to all sorts of people there; and there is a –THE COURT: No, I don't mean all sorts of people. Have you gone to his commanding officer in Crossett –MR. ROSENZWEIG: Have I gone –THE COURT: –- and said, Here's my authorization, I'm defending this man on capital murder, I'd like a copy of his file? MR. ROSENZWEIG: Mr. Green, our mitigation specialist, has physically done that, yes, sir. THE COURT: He's gone and talked to the commanding officer –MR. ROSENZWEIG: He's talked to a number of people. THE COURT: Well, that –- I don't care if he talked to ten thousand, if he didn't talk to the man's commanding officer. That's who he should have started with. He may have them right there in the building. (SPR 794) ABSTRACT 922 MR. ROSENZWEIG: Your Honor –THE COURT: So, my point is is that I have told you earlier how lenient I am on making Mr. Deen turn over all this other stuff on his notes of the interview of Mrs. Pedraza, how I consider this to be –- called a super due process –- but a very important trial because a man's life is at stake. But at the same time, Mr. Rosenzweig, when I am told by counsel –- It wouldn't matter if it was you or anyone else –- and I ask if a particular key person has been gone to for certain records that would normally have them or could get them for you like that (indicating). I was a commander briefly in the Dermott unit. I know where the records are. If you walk away from the podium, I'm through with the conversation. MR. ROSENZWEIG: Your Honor, I was checking with Mr. Green and just getting the name of the persons he has talked to. THE COURT: Is that your mitigation specialist? MR. ROSENZWEIG: That's my mitigation specialist. THE COURT: Very good. Mr. Green, come up. Alright, if you would, put your pad away. Swear the witness. MR. ROSENZWEIG: Your Honor, I would ask that this be done ex parte in camera. (SPR 795) THE COURT: I'm just going to ask where he's gone to get the records. ABSTRACT 923 MR. ROSENZWEIG: Your Honor, I'd still ask that it be done in camera. THE COURT: I'm not going to do that. Go ahead. TYLER GREEN EXAMINATION BY THE COURT (Note: This colloquy does not lend itself well to abstracting. Therefore it is quoted directly.) Q. Very good. Did you go to this man's commanding officer and ask for copies of the records? A. Yes, I did, sir. Q. Who is his commanding officer? A. Well, I did not go and talk to his commanding officer –Q. But that was my question to you. A. Yes, sir. Q. I asked you if you had gone and talked to his commanding officer. ABSTRACT 924 A. No, I have not, sir. Q. Then why did you answer me "yes"? A. Well, the reason I answered you yes, I misunderstood the question, sir. MR. ROSENZWEIG: He was saying he talked to the sergeant –MR. GREEN: Sergeant. (SPR 796) MR. ROSENZWEIG: –- and also talked to Sgt. Matthews who runs the records. THE COURT: All I wanted to know –- I wasn't putting words in his mouth like you were, Mr. Rosenzweig. THE COURT: (Continuing) Q. And where are those records, Mr. Green? A. The records that I received are in my office. Q. Are where? A. Are in my office. Q. Who did you get them from? A. I got –- The first set of records I got from the Crossett National Guard Armory. Q. No, do you have them in your possession? ABSTRACT 925 A. Right here or do I have them –- Q. No, do you have them in your custody? A. Yes, sir, I have some records in my custody. Q. And who did you get them from? A. I got them from the –- The first set of records I received from the Crossett National Guard Armory in Crossett, Arkansas. (SPR 797) Q. Alright. Is there anything in there to suggest to you that there were other records, that these records were incomplete that you received? A. Yes, sir. Q. Alright. And what was incomplete about them? A. Those particular –- The first set of records did not have any medical records. Q. Okay. Good deal. But were they otherwise complete except for the medical records? THE COURT: Don't shake your head, Mr. Rosenzweig, to give him the answer. No, I've lost interest at this point because I –- Let it note on the record that when I asked him a question, Mr. Rosenzweig shook his head no. MR. ROSENZWEIG: I was just –ABSTRACT 926 THE COURT: I know what you were doing; and it is unfortunate. Thank you very much. I have no further observations to make other than based upon what Mr. Green has said about not going to his commander for his records. And based upon what I've seen in this motion filed under seal, at this time, the motion is denied without prejudice, but –MR. ROSENZWEIG: Sir, may I? THE COURT: Put it in –- Let me finish, Mr. Rosenzweig. (The court speaking to Mrs. Rosegrant) Put it in an envelope, you know, put it under seal. (SPR 798) Alright, Mr. Green, you may go back to your bench back there. At this time, your motion for the reasons you gave in writing in the motion and considering what I heard and observed in the last few minutes from this witness, the motion at this time is denied without prejudice –MR. ROSENZWEIG: Your Honor, may I make a few more remarks? THE COURT: You may make them. MR. ROSENZWEIG: And may I make them in camera under seal –- Pardon me, in camera ex parte? THE COURT: I'm not going to adjourn and go in chambers. If you wish to file something in writing ex parte under seal –ABSTRACT 927 MR. ROSENZWEIG: You will allow that? THE COURT: I will allow that, but understand, just because you file it doesn't mean that after I look at it I may not be in agreement that it should be filed under seal. So, bear that in mind. If you, you know, just always bear that in mind. MR. ROSENZWEIG: I understand you're in charge, Your Honor, I understand that. The point is is that these are matters which I have tried to explain to you are matters dealing with things, number one, that do not need at this point to be in public; and, secondly, it's our position they've not been any matters to which Mr. Deen should be privy. But, clearly, should not be public. That's why I sought to proceed in the way that I have. (SPR 799) THE COURT: And it is done in appropriate circumstances in capital cases; I'm aware of that. It's not that it's not a used procedure. But bear in mind that in your motion for a continuance based upon the possibility of Post Traumatic Stress Disorder, okay, it is fair for me to say, and should -- that's the reason I got Mr. Green up here -- was that you do not claim in that motion that Mr. Pedraza has been diagnosed with PTSD. No, you said he went on a tour in Iraq and that oftentimes people come back from Iraq with Post Traumatic Stress Syndrome. So, I've been taught by those better that you see if there is some initial (inaudible) of reason to go further. ABSTRACT 928 MR. ROSENZWEIG: And that's what I wanted to talk about the ex parte –THE COURT: But –- I took your motion under seal and I'm placing it under seal. But I'm also stating on the record that one of my reasons, additionally, for denying it is there is no claim in there that this man has received such a diagnosis and at this point -- or is currently under treatment for it –- and at this point, his commanding officer, who knows more about him than anybody else, has not even been talked with. MR. ROSENZWEIG: May I respond? THE COURT: You may not. You may have a seat. I've made my ruling. Mr. Deen, if you would, unless you want to give them to him, if you would file your notes, note taking –- (SPR 800) MR. DEEN: I'd like to offer it into evidence – THE COURT: Do you want to do it under seal? MR. DEEN: Yes, please. –- as TD-1. THE COURT: Fine. MR. DEEN: With the reporter? THE COURT: No. I'd rather file it in the file. If y'all want to do it with the reporter, it doesn't matter. MR. DEEN: It's really not in the form of pleadings –ABSTRACT 929 THE COURT: I know it. Let's do it so it will go up with the clerk's record. She's got a manila envelope. Do you have any manila envelopes, Ms. Savage? THE CLERK: I do. THE COURT: You do? Will you write "under seal" on them? THE CLERK: I can. MR. DEEN: I'm going to mark it as TD-1. It's nine handwritten pages. I've added numbers to the bottom right-hand corner of each page a few minutes ago, 1 through 9. (SPR 801) THE COURT: I suspect I'll be able to read your writing. MR. DEEN: I doubt it. MR. ROSENZWEIG: Your Honor? THE COURT: Yes, sir. MR. ROSENZWEIG: Should I get with Mr. Deen and schedule the deposition or do you want to be involved in that? THE COURT: I would like the deposition –- Mr. Deen may not even attend; it may be Mr. Best. I would suggest, given the lateness of the hour, that you have a subpoena issued. If y'all can get together on a date, fine, but if I was defending him, I'd get with you. Couldn't reach an agreement, I'd have the subpoena issued because he's got other people in the office that can cover. ABSTRACT 930 By the way, administratively, there's no reason for Mr. Pedraza to be down in Ashley County being housed and Mrs. Pedraza up here. We had to wait this morning to get this thing going for the sheriff to go down there and get him. It should be flipped. I don't need her up here. Put her –- tell the sheriff –- down there; put him up here. That way I can pull him over for a hearing. Boy, they went clear to Crossett. MR. DEEN: Sometimes there are issues with room with female prisoners –Do you want us to look into that? THE COURT: The thing about it is, they had him in that jail in Crossett. I know they've got a bigger, better jail in Ashley County now. And I'm just thinking for our convenience. (SPR 802) MR. DEEN: Initially, that's the way we had it set up then I discovered that her family's in Warren, his in Hamburg, and so we reversed it. THE COURT: I know. Let's disregard the families for the Court, and for counsel, and for Mr. Rosenzweig driving down. There's no reason for him to go another 45 minutes to Crossett to talk to his client. I would ask, unless there's some compelling reason to keep –- He's going to have to come over here for the trial anyway. If you happen to run into the sheriff this week, you can tell him. MR. ROSENZWEIG: Let me make sure I understand –THE COURT: Issue your subpoena. ABSTRACT 931 MR. ROSENZWEIG: I'm going to issue the subpoena. (SPR 803) THE COURT: You bet. There'll be no Fifth Amendment unless they can dream up some -– because she's already pled –- dream up some reason then Mr. Deen's waived his objection so –MR. DEEN: I do intend to be there and I will, provided I'm not in a jury trial somewhere. I have several of those scheduled in the next couple of weeks. MR. ROSENZWEIG: Your Honor, because she's in custody, obviously we can't control where she goes so I'd like to get some guidance from you as to where the deposition will be –THE COURT: I tell you what, so it's all legal, let's do it here in this courtroom. Do it in this courtroom. Give me a calendar. Let's just go ahead –If you want to, I'll have the subpoena issued myself. Get your calendars, gentlemen –MR. ROSENZWEIG: Mine is in my car, Your Honor. We've also got to determine whether I can hire a reporter or whether the Court's court reporter does it. I assume –THE COURT: If you want to take the deposition, you pay for it out of the public defender budget. MR. ROSENZWEIG: I just want guidance. ABSTRACT 932 THE COURT: You bet. You pay for your own depositions and –- If y'all can get together on a date, fine. Mr. Rosenzweig, you know you're supposed to have your –- Do you have your –- Counsel, he calls you second chair; I call you co-chair. (SPR 804) MR. MORLEDGE: Thank you. THE COURT: Do you have your calendar with you? MR. MORLEDGE: Your Honor, I'm good with whatever day. MR. ROSENZWEIG: I can arrange my calendar. THE COURT: Mr. Deen, when are you in trial? MR. DEEN: Thursday and Friday of this week. THE COURT: Alright. MR. ROSENZWEIG: I do know that the 21st of September has cleared out completely for me. That's Friday the 21st. THE COURT: The 21st of September it will be in this courtroom at nine o'clock in the morning. Draw me an order for me to sign. I'll order to produce her. Order to produce her, that's as good as a subpoena. MRS. ROSEGRANT: Judge Pope's in the courtroom on the 21st. THE COURT: Huh? MRS. ROSEGRANT: Judge Pope's in the courtroom on the 21st. ABSTRACT 933 THE COURT: For what? MRS. ROSEGRANT: Child support. THE COURT: Well, y'all can do it in the jury room. (SPR 805) MRS. ROSEGRANT: If not, he'll be done by noon. THE COURT: Yeah, he'll be done by noon. That's on a Friday? He'd be done by noon, but that would mean Mr. Deen would be here after noon on Friday. MR. DEEN: Mr. Parrish might wish to be present also, Your Honor. THE COURT: I agree. I mean, we'll try to accommodate the world, but we do have a trial coming up. You-all agree on whatever date you want to. I will have Mrs. Rosegrant –- You submit an order for me instead of drawing it up, applying to the sheriff of Drew or Ashley, whichever's appropriate, to produce her in this courtroom or in the jury room. If y'all would prefer to do it at nine in the morning, you can use the jury room. Judge Pope is using this courtroom. You do it however you want to. We'll do it on the 21st. (SPR 806) MR. ROSENZWEIG: Either venue, either room is –THE COURT: Y'all work that out. And that's that. My court reporter's available or anybody else you'd like to use for the deposition. Thank you, gentlemen. Court's in recess. ABSTRACT 934 HEARING, OCTOBER 1, 2012 THE COURT: Let’s go on Pedraza. Is Mr. Pedraza here? MR. ROSENZWEIG: He’s in the lock-up room, Your Honor. THE COURT: Okay, bring him in. Alright, let’s begin with the State. Y’all may remain seated unless I need you to stand –- I’ll tell you then –- but let’s just remain seated and let’s get the appearances. (PTR 4) MR. DEEN: Thomas Deen, Andrew Best, and Crews Puryear for the State. THE COURT: Alright. MR. ROSENZWEIG: Jeff Rosenzweig representing Mr. Pedraza who is here; Birc Morledge is here; Tim Leonard is here; and if I could also introduce to the Court, Steven Malone from West Palm Beach, Florida. He’s a member of the Mexican Capital Legal Assistance Program. THE COURT: Well, you’re not introducing him as attorney of record? MR. ROSENZWEIG: No, sir, he’s here just as an observer. THE COURT: Welcome. You may have a seat. The Court ordered this hearing today relative to defendant’s motion for continuance. It is –- Has the –- You may have, but the –- And you didn’t need to -- We’re here today –- But does the State wish to take the position relative to this motion? MR. DEEN: I received the motion this past Friday after you unsealed it, and ABSTRACT 935 the State’s opposed to it and prepared to argue on the merits today. (PTR 5) THE COURT: Alright, if you would, come on up and give me the basis of your objection. Come up to the –MR. DEEN: Of course, the motion in its affidavit lay out a list of horribles. He could have been exposed in utero to chemicals; he may have lived in a dirt hut; his family may have been mean to him; or there may be dysfunctional family problems; he may have been exposed to pesticides as a child; just a litany of things that could have affected him as a child and, therefore, mitigating evidence, but it is all speculative. I mean, it is a typical child in Mexico, I’m sure, but no witnesses are identified who live in Mexico, who need to be traveled to a remote area to interview and bring here. As far as the expert’s affidavit, he says he’s conducted a neuropsychological exam to some extent, but he can’t finish it, but he doesn’t say why and he doesn’t say what he lacks to finish it. He doesn’t say what else he needs to do. Mr. Birc, the attorney, specializes in capital litigation says that it’s not possible for any lawyer, not just these lawyers, any lawyer on this planet to effectively represent Mr. Pedraza under these circumstances. I find that to be overbroad, to say the least. This is an effort, it appears to me, frankly, these lawyers choosing to fall on their swords now in anticipation of post-conviction issues. I understand why they want more time. I’m sure they would like to have years to develop all of this, right ABSTRACT 936 now, theoretical litigation with nothing real behind it. If you parse it all out, it amounts to nothing but a whole lot of aspirations. (PTR 6) THE COURT: Alright, Mr. Rosenzweig. MR. ROSENZWEIG: Your Honor, I want to effectively say that we are –- I don’t know what verb to use –- begging, pleading, beseeching the Court for a continuance; and we simply –- We understand why the Court wants to have a quick trial, but under the particular hardships, obstacles, whatever, that we found ourselves in this case, we simply need, respectfully request, more time. And I disagree with Mr. Deen’s characterization of things because I’m sure the Court has closely read the affidavits, the declarations that were attached to our motion. But, you know, the message from those is than mere speculative. In the Court’s order of the other day, you indicated there wasn’t anything in the record indicating Mr. Pedraza had even been in the Army; and we have, of course, various documents here, which I’ll hand to -THE COURT: At the point that order was entered, there was nothing in the record. How many hearings have we held? At least three. MR. ROSENZWEIG: And -THE COURT: Let me finish. When I’m talking, you can’t talk. (PTR 7) MR. ROSENZWEIG: Yes, sir. ABSTRACT 937 THE COURT: We’ve had at least three hearings and he was arrested back in, what, February; and to this point though there have been claims he was in the Army; there have been claims he was in combat; there have been claims he has been in Iraq, to this point, til today, this Court has not been furnished one piece of paper to substantiate, which has been my problem all along. And let me, not correct you, but remind you of one thing, this Court does not set about on any criminal case, capital or otherwise, to try the case quickly. That’s the wrong adjective to use. It is the trial court’s responsibility to bring the case to a conclusion as reasonably soon as possible because most cases do not get better with age -- they get to tasting like cold hash; they have no flavor -- and people’s memories get bad and documents disappear; and the sooner any case can be brought to trial, within reason, after giving both sides an opportunity to prepare, the better off the justice system appears, and is, and the greater likelihood of justice because of the quality of evidence is enhanced. (PTR 8) Now, the problem this Court has had thus far with the requests has been that the argument of counsel for the defense has not been supplemented with facts in the record that all trial courts use in any capital case, or otherwise, to establish whether or not there’s been a preliminary showing –- threshold, if you will –- showing that the continuance is sought to pursue the reasonable possibility of helpful discovery in this ABSTRACT 938 case, as you say, for mitigators, primarily. Once that reasonable probability or possibility is demonstrated, according to case law, and that factual basis is established in the record, the Courts, including this Court, has not reluctance in granting a continuance. However, Courts cannot do it based upon naked assertions of counsel. To do so would be to violate many rules, including those that one of your colleagues and a man I respect a great deal who writes the best book on trials for Arkansas lawyers, John Wesley Hall, and he writes, “Lawyers can’t testify, not even as to procedural matters for which motions for continuance come under,” and this is an absolute rule. There are certain exceptions. They don’t –- They are not in play here. And so, I wrote you-all for this reason -- I was not obliged to –- but I wrote both counsel this last week and I said, “What I’m going to need, in fairness to this Court, in fairness to the Defendant, in fairness to the State, is testimony and documents to demonstrate that there is a reasonable possibility that there are mitigators out there that a delay would enable you or the investigator to discover.” And that is what we’re here about. The other thing I mentioned in there is this: It is important in any case like this to determine if the Defendant, himself, has cooperated with his counsel to enable counsel to get this information in a timely way. A defendant may not obstruct the process by refusing, or declining, or waiting too late to sign necessary authorizations ABSTRACT 939 and releases in this case to the Armed Services, who have his records. (PTR 9) And so, before this hearing gets along too far, the first thing I will want to know and see are those releases, and the date of those releases, and how those releases have been used by defense counsel or investigators to make contact with and obtain medical information that may give rise to some possibility that he suffers from PTSD. So, I’m letting you know what the Court is going to be focusing on -- not this Court, but all courts -- in determining this motion. Now, you may proceed. MR. ROSENZWEIG: Thank you, Your Honor. Your Honor, first, with regards to matters that you refer to in the record, there have been –- If I can respond respectfully in a couple of ways. First, we were in a –- We had discussed this, I believe, on the record –- Certainly, I’ve discussed it with the prosecutor that it was generally known –- I did not believe from our previous discussions that this was in dispute and that he was in the Army in Iraq. Secondly, Your Honor, I believe that the discovery file, which you had ordered the State to hand over to you and which was the subject of a motion to rescind which you denied, has references to that. Frankly, Your Honor, we did not think that the fact that he had been to Iraq was an issue. Nonetheless, Your Honor, I have here, and I can present -- (PTR 10) THE COURT: Dates of service; nature of service; combat; non-combat -ABSTRACT 940 MR. ROSENZWEIG: Yes -THE COURT: And there can be references in a file, but there may not be any documents. MR. ROSENZWEIG: May I? THE COURT: Put them in -MR. ROSENZWEIG: Your Honor -THE COURT: –- as long as you can authenticate them. MR. ROSENZWEIG: Well -THE COURT: Show them –- Have you shown them to the prosecutor? I have no way of knowing. I know politicians, apparently, have forged their military records to get votes; I wouldn’t think a defendant would. You never know. Are they certified? (PTR 11) MR. ROSENZWEIG: They are not certified, Your Honor, but -- Your Honor, the rules do not necessarily require that -- Purports what it appears to be copies are admissible as originals, Your Honor. THE COURT: I know -- I know that I can probably look at them. I’m just saying that –- Mercy, this is a capital case -- you’re asking for a continuance -- how much trouble would it be even to get a letter from his company commander at his guard unit and say, Attached, and I’ve initialed them, or his –- Some Army records. ABSTRACT 941 And that would take me off the spot -MR. ROSENZWEIG: Your Honor -THE COURT: –- and it would give me some comfort. I’m just asking you to, you know -MR. ROSENZWEIG: Your Honor, I’ll just put it this way, I don’t think Mr. Deen or anyone is going to think that this is a -- And if I could say, what I have here in my hand, Your Honor, is the Army Commendation Medal, if I could read the citation here; and I’ll present this in the record: “TO SPECIALIST DANIEL PEDRAZA ALPHA TROOP, 1ST SQUADRON 151ST CAVALRY FOR MERITORIOUS PERFORMANCE IN SUPPORT OF OPERATION IRAQI FREEDOM FROM 01 APRIL 2008 TO 02 DECEMBER 2008. SPECIALIST PEDRAZA” -THE COURT: What were the monthly dates? MR. ROSENZWEIG: April to December, 2008. THE COURT: Give me the inclusive dates again. MR. ROSENZWEIG: April 1, 2008 to December 2nd, 2008. THE COURT: Alright, nine-month tour? (PTR 12) MR. ROSENZWEIG: Yes, sir. “SPECIALIST PEDRAZA DEMONSTRATED SUPERIOR ENTHUSIASM, DETERMINATION, ABSTRACT 942 AND LEADERSHIP QUALITIES THAT FAR SUPERSEDE HIS CURRENT DUTY POSITION. SPECIALIST PEDRAZA EXCELLED AT ALL ASSIGNED DUTIES WHILE SERVING AS A MEMBER OF 2ND PLATOON. HIS PROFESSIONALISM AND LEADERSHIP SKILLS ARE IN KEEPING WITH THE FINEST TRADITIONS OF MILITARY SERVICE AND REFLECTS GREAT CREDIT UPON HIMSELF, 1ST SQUADRON 151ST CALVARY, THE 39TH INFANTRY BRIGADE COMBAT TEAM, THE MULTI-NATIONAL DIVISION - BAGHDAD, AND THE UNITED STATES ARMY,” and it’s signed by Colonel Kendall W. Penn, Commanding. Your Honor, we also have copies of –- at least I have here copies –- this is “GUARDIAN OF THE IZ” –- International Zone –- “CERTIFICATE OF ACHIEVEMENT Is Presented To SPECIALIST DANIEL PEDRAZA FOR YOUR EXCEPTIONALLY MERITORIOUS SERVICE IN SUPPORT OF TASK FORCE PACESETTER SECURING THE INTERNATIONAL ZONE DURING OPERATION IRAQI FREEDOM 07 -09.” Those were the years, I assume. “YOUR DEDICATION TO DUTY AND SELFLESS SERVICE HAVE NOT GONE UNNOTICED. TASK FORCE PACESETTER WISHES YOU BEST OF LUCK IN YOUR FUTURE ENDEAVORS.” THE COURT: Task Force, what? (PTR 13) ABSTRACT 943 MR. ROSENZWEIG: Task Force Pacesetter, P-a-c-e-s-e-t-t-e-r. THE COURT: And that was for service, where? THE COURT: In the International Zone in Iraq. And then, what we also have here, Your Honor, is a copy of the shoulder sleeve insignia former wartime service and this is –- And the inscription includes, “This is to acknowledge the following soldier has been awarded the SSI FWTS, 39th Infantry Brigade Combat Team SSI, for participating in combat operations in support of Operation Iraqi Freedom.” And if I could put these into the record. THE COURT: I don’t mind you doing that at all. MR. ROSENZWEIG: Excuse me? THE COURT: I don’t mind that at all. Do you have any objection, Mr. Deen? MR. ROSENZWEIG: And -MR. DEEN: I was not shown them prior to this hearing -- I was asked to stipulate to them -- and my preference would be, Call your first witness, and that’s how we operate, but if we’re operating -THE COURT: Apparently –- I know. It’s not only how we operate, it’s how courts operate. Do you have any witness that you can put those in through? MR. ROSENZWEIG: Your Honor, I could call Mr. Pedraza –- For the limited purpose of identifying these documents, I could call Mr. Pedraza. Would the Court ABSTRACT 944 allow me to call him for that limited purpose? THE COURT: What about your –- How did you get these? From your investigator? (PTR 14) MR. ROSENZWEIG: A number –- Our investigator; and we have all dealt with the family and at various times physically have been the ones to obtain them. When I say “we,” I’m talking about attorneys. And, Your Honor, with regard to –And I think we can solve any –- I think probably the best way is if you allow me to call Mr. Pedraza for that limited purpose to identify – THE COURT: We’ll wait and get them –- What I’m going to do is I’m going to mark them for identification, that way you won’t lose them -- and leave them with the clerk -- and condition that at some point in time during this hearing that if I am to consider them for purposes of a continuance then you can authenticate them either through him or someone else. MR. ROSENZWEIG: The first one, the Army Commendation Medal, I’m handing a copy. I have what is a more original version -THE COURT: A more original? MR. ROSENZWEIG: I present a copy to the Court, Your Honor -THE COURT: Alright. MR. ROSENZWEIG: –- but I have the original for your inspection. (PTR 15) ABSTRACT 945 THE COURT: Let’s get them marked 1, 2, 3 for purposes of this hearing. (Defendant’s Exhibits 1, 2, and 3 were marked for identification.) MR. ROSENZWEIG: I have -- For the record, I have other documents, certificates, but they deal with training and things like that, which may not be relevant to the Iraq or -THE COURT: Let me –- I shouldn’t have to, but let me ask you this question: Do you have, or your investigator, anyone on your team, have a release form that the Army uses? Or have you drafted your own to get his medical records -MR. ROSENZWEIG: Yes, we have –- Would you like for me to get them -THE COURT: Yeah, that’s fine. Let the record reflect that Mr. Rosenzweig is visiting with his investigator on this very simple question after I asked in my letter that they have -- (PTR 16) MR. ROSENZWEIG: Your Honor? THE COURT: Yes, sir. MR. ROSENZWEIG: What we have –- Let me state what I have in my hand. Mr. Pedraza signed a number of releases on –- the date here is April 12th, 2012 -- and I have them here. He signed a number of releases, which you were concerned about, you know, whether he signed it in a timely fashion. The releases –- The specific -He signed any number of them –- The specific ones we have here were copies of ABSTRACT 946 ones that were addressed to other places, to other institutions, but he signed any number of them. THE COURT: Well, I’m not sure what you’re saying, but I’m not putting on your case for you. I’m going a little bit further than I would if this were a burglary case; I would have already concluded this hearing. I’m going to let you show them to Mr. Deen at the appropriate time and you-all can –- You can decide, as far as the significance -MR. ROSENZWEIG: Your Honor –THE COURT: My point is this, Mr. Rosenzweig, if the defendant has not, for reasons of his own refusal, executed what is appropriate for him to execute after it being submitted to him and that’s what’s holding things up, this Court has to know it. This Court has to separate out what you have or have not done, what he has or has not cooperated with in order for this Court to make a record. MR. ROSENZWEIG: Your Honor, I didn’t want to interrupt. THE COURT: Go ahead. MR. ROSENZWEIG: Okay. Your Honor, I can tell you this, Mr. Pedraza has signed, expeditiously, immediately put in front of him, every release, every document, everything that we have asked him to sign. (PTR 17) THE COURT: But I asked you in my letter this last week to bring them with ABSTRACT 947 you. Have you done it? MR. ROSENZWEIG: I’ve got copies of releases that he has -THE COURT: I can’t accept –- You have to show them to Mr. Deen. MR. ROSENZWEIG: I did show them to Mr.Deen. MR. DEEN: There are two medical record releases that purport to be signed by Mr. Pedraza. But, Your Honor, again, I’m not trying to tell him how to present his case, but, traditionally, one would call a witness and then qualify that witness, and say, Have you received releases -THE COURT: I agree. I told him in my letter I wanted to hear from the investigator on the stand. MR. DEEN: –- and are these releases you received? What do these releases –- (talking over) THE COURT: What did you do with them? I agree. (PTR 18) MR. DEEN: Your Honor, I think we may need a short break, or something, to -THE COURT: I don’t. I’m going to get through with this. If this is –- It would take me the rest of the week to drag this out; and it’s not the Court’s responsibility. I am stopping my questioning right now and I am putting the ball in counsel’s court to call witnesses that I have requested you to have with you to put on ABSTRACT 948 documents that I’ve requested you to give me a preliminary showing, a factual basis, upon which to conclude that there is a reason to continue this matter before pursuing possible leads vis a vis PTSD. I’m giving you that opportunity now. You may call your first witness. MR. ROSENZWEIG: Your Honor, may we have a five-minute break? THE COURT: You may. MR. ROSENZWEIG: I want to discuss something with co-counsel. THE COURT: You may. MR. ROSENZWEIG: Thank you. (PTR 19) THE COURT: And when y’all are on that subject, I want to put on the record one contact I had with defense counsel by phone after y’all’s last hearing. It was announced that you would –- Or at the last hearing, it was announced that you would handle both the guilt and, if necessary -- came to that -- punishment phase of the trial. This Court did not make an issue of it then, but as everyone here who has tried, or presided over, or gone to school on capital cases know that these cases are unique, that it is, if not required, strongly recommended that one lawyer handle the guilt phase; and then if it becomes necessary to have a punishment phase, that separate lawyer do that. I don’t have to give you the reasons. They have to do with the lawyer’s credibility. To depart from that routine, that recommended protocol, gave ABSTRACT 949 this Court –- vexed this Court –- because I do not want to try this case twice on account of Rule 37. I contacted your other counsel and told him of my concern -- I would have to report it in some way, see what I could do about it -- and he called me back and said you-all had agreed, following my phone call, that you would, at this time, handle the guilt and he would handle the punishment, if it came to the punishment phase. MR. ROSENZWEIG: Your Honor, may I -THE COURT: That’s what –- I’m not finished. (PTR 20) MR. ROSENZWEIG: Okay. I’m sorry. THE COURT: And you need to cover this during your break because this you’re putting on -- That was my last word from your co-counsel –- Now, you’re putting on, or trying to put on, evidence relating to a reason to continue on the guilt phase; and when I left this matter, that was going to be his job. I haven’t heard anything out of him during any of these proceedings, so far, except his name. When you-all visit –- I’m going to be coming back and I’m going to expect him to be up here on this motion for continuance on the –- if it has to do with evidence –- on the guilt phase because he’s the one who’s supposed to be preparing it. This Court stands in recess. I’ll give you-all ten minutes. MR. ROSENZWEIG: Your Honor -ABSTRACT 950 THE COURT: I’m through until we get back on the record. MR. ROSENZWEIG: Okay. When we get back on the record, I want to respond to something -THE COURT: I’m through. (Recess from 2:05 p.m. until 2:22 p.m.) THE COURT: We’re back on the record. I cut Mr. Rosenzweig off and I’m ready to hear further – (PTR 21) MR. ROSENZWEIG: Let me start with what I was going to say before the break. I think the Court may have, to some extent, misunderstood what had been said in the earlier proceedings about who was doing what. I think the record would reflect that I never said that I was going to be doing both guilt and penalty. I think that it came up from the standpoint of Mr. Morledge had been talking about his previous employer and what his previous employer did. I can state for the record, Your Honor, that both of us are preparing both parts of the trial. Unfortunately, because of the complexity of this case, are, frankly, not far enough along to know for sure whether we have an intertwined guilt-and-innocent phase or not. But both of us are preparing both so we’re both ready for both. Now, it is highly likely that one of us will take the lead in one part; and one will take the lead in the other part. Now, tentatively, at this point, in that situation, it would be me in guilt and Mr. Morledge in penalty. That ABSTRACT 951 may change. Both of us are getting ready for both. I want the record to be clear on that. And, Your Honor, with regard to your inquiry concerning the presentation of the testimony, we respectfully ask to go in camera ex parte because we are very –We are concerned about the fact that Mr. Green is a member of the defense team and, thus, is covered under the lawyer-client privilege under the –- (talking over) THE COURT: Mister who? (PTR 22) MR. ROSENZWEIG: And -THE COURT: Mr. Green, the -MR. ROSENZWEIG: Tyler Green, the mitigation specialist. And, Your Honor, Mr. Green is a member of the defense team. His testimony would be privileged. We are concerned that if there were any testimony outside ex parte in camera matter this would be deemed a waiver of privilege; and we respectfully request to be allowed to go ex parte in camera and we will be happy to answer any questions that you –- any questions that you have. But we simply cannot, under these circumstances, do it in a public proceeding because of privilege and because –- Not only privilege, but of course, work –- In addition to lawyer-client privilege –- We’re talking about the work product privilege; we’re talking about federal and state constitutional rights and the -- We’re talking about due process; and because it’s a ABSTRACT 952 death penalty case, eighth amendment as well. THE COURT: Well, Mr. Deen cited the Missouri case that said that motions for continuance are not to be heard ex parte. MR. ROSENZWEIG: Your Honor, I read the –- Number one, that’s Missouri; that’s not Arkansas. (PTR 23) THE COURT: Well, I recognize the distinction. MR. ROSENZWEIG: Your Honor, if I could continue with what I was -THE COURT: Go ahead. MR. ROSENZWEIG: Thank you. In that case, the end result though was they were talking about the –- They had sought the continuance and the continuance had been granted and, therefore, there was no prejudice because it was involved in a motion for continuance and the continuance had been granted. That, to my knowledge, (inaudible) matter. It didn’t say that, but I think it was read slightly out of context to say under the circumstances (inaudible). The other problem, Your Honor, is with regard to Mr. Green, we’re talking –- Literally, we are talking about –- In this case, we’re talking about a member of the defense team. He is not an independent actor; he is part of the defense team. We consult with him all the time; he consults with the client regularly. This is precisely why we’d have to go in camera ex parte to avoid waivers of privilege, to avoid incursions into privilege; to avoid ABSTRACT 953 incursions into his constitutional rights. And if, Your Honor, after hearing from us in camera ex parte, there are matters that you feel that you could disclose to Mr. Deen, you could bring them to our attention and we could make a record on those things. But we simply cannot be put in a position of waiving privilege, Your Honor. I am happy to make, you know, representations to you about what we have done. I’ve made the representations in the motion, which you have unsealed (inaudible) overruled our objections (inaudible) sealed. And I’m happy to, you know, make those same representations here. One thing I do want to clarify while we’re here, one of the issues that was in the motion that is concerning slides has now been resolved -- (PTR 24) THE COURT: That concerned, what? I couldn’t hear you. MR. ROSENZWEIG: Slides. The microscopic slides from the crime lab. Since I sent that motion to you, the crime lab provided the slides to us and we sent them to our expert. THE COURT: Do you have –- Before I ask Mr. Deen to respond, do you have any case law to provide this Court that it has authority to accept an ex parte motion -- Testimony on ex parte motion for continuance? MR. ROSENZWEIG: Your Honor, I can cite something. In the Code of Judicial Conduct, there is a provision that it is not improper for you to have an ex ABSTRACT 954 parte contact regarding scheduling matters. This would be a scheduling matter. THE COURT: Well, that –- If that’s the precedent you wish to provide the Court, I can quickly dispose of that and -MR. ROSENZWEIG: I’d ask that -THE COURT: Once I start talking, I will not tell you again, do not say one word. (PTR 25) Now, I can quickly dispose of that as being wholly inapplicable. That applies to situations where lawyers call your office, or your case coordinator, and ask for trial settings. Now -MR. ROSENZWEIG: Your Honor –- (talking over) THE COURT: Now –- Have I finished? MR. ROSENZWEIG: I thought you had. THE COURT: Alright. Well, you wait. MR. ROSENZWEIG: Okay. THE COURT: Now, you may have a seat over there and let Mr. Deen respond to your -- MR. ROSENZWEIG: I do have some other – THE COURT: I asked you for your authority -MR. ROSENZWEIG: Well, I gave you one and I have others. THE COURT: Then respond. ABSTRACT 955 MR. ROSENZWEIG: Okay. THE COURT: Give me the citation. (PTR 26) MR. ROSENZWEIG: Your Honor, Rule 19.4 and Rule 19.6 of the Rules of Criminal Procedure –- Rule 19.4 is protective orders. “Upon a showing of cause, the court may at any time order that specified disclosure be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit his counsel to make beneficial use thereof.” Now, Your Honor, 19.6, in camera proceedings: “The court may permit any showing of cause in whole or in part for denial or regulation of disclosures to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.” THE COURT: Alright. Thank you. You may have a seat. Before you get up, Mr. Deen, the Court on its own find those two provisions of the rules of criminal procedure having to do with in camera proceedings has nothing to do with ex parte communication with the Court. In camera and ex parte are two entirely different concepts. “In camera” is simply a fancy way of saying in ABSTRACT 956 chambers. It does not deny party opposite the right to be there, cross-examine any witnesses because the Court should never be put in the position, that I’ve been asked to be put in today, and that is to listen to testimony from one side and one side only and to have the responsibility of asking questions, which puts me in the role of an advocate. And that’s the worst position a judge can be put into. It would destroy any appearance of impartiality and I would be –- And I would hope I would be taken out and whipped if I assumed the role of the State in asking questions that have to be asked of a defense witness either at trial or in one of these proceedings. It violates something so fundamental with the system that I’m not even going to consider it. Now, Mr. Deen, you don’t have to respond to 19.1, but I will ask you simply to state your position regarding the State’s right to be present if testimony is offered relative to a motion for continuance. (PTR 27) MR. DEEN: This is not the sort of proceeding that’s contemplated, for instance, in the Court authorizing the hiring of an expert in which the defense’s theory might have to be exposed. Defense counsel can use whoever they want to gather these records up and to be the person to authenticate the records. They have chosen to use Mr. Green to authenticate these records -- that is their business -- but in doing so, they do not insulate them somehow from the factual representation of the gathering of them and the authenticity of them. Also, in paragraph 24, which I note ABSTRACT 957 Mr. Rosenzweig executed under oath, making himself a proponent of its authenticity or the truthfulness, in a sense. Paragraph 24, “Because the State’s charge was only filed a few months ago, Mitigation Specialist Tyler Green, has had the limited opportunity to conduct interviews.” So, on the one hand, Tyler Green is used offensively. He can’t conduct interviews for reasons that are unknown. How he’s been limited since February is not known or explained. But, on the other hand, he can’t be asked questions about that. And that’s fundamentally unfair. I don’t intend to go into any defense theory and anything the client may have told Tyler Green or told these lawyers, but they have placed themselves in this position by using him in this capacity, of both to gather records and using him offensively in their petition, or their motion, rather, to try to get a continuance. (PTR 28) MR. ROSENZWEIG: May I say something? THE COURT: No. I don’t have to even entertain oral argument on oral matters before this Court on oral motions. The Court can simply go by the briefs if it wants to. The point being, this Court –- Let me make certain findings and then conclude this hearing. This Court this past week entered an order denying Mr. Pedraza’s request to consider his motion for continuance ex parte. “Ex parte,” for those of you who are not lawyers, means when one side approaches the Court without letting the other side ABSTRACT 958 know what it’s doing; and not, therefore, giving the other side a chance to say, Hey, that’s not true. Let me tell you why it’s not true, Judge. And a judge –- And when a case is tried to a jury, a jury depends entirely upon the assumption that the positions of both sides will be challenged and vetted through cross-examination when there’s testimony offered. Testimony offered ex parte, either live or through an affidavit, is unvetted, unexamined, and unchallenged, and can leave a judge or a jury with the wrong conclusions. It was Blackstone that said that cross-examination is the greatest discovery of the truth. (PTR 29) Here the State, equally entitled to a fair trial, would be denied such an opportunity here; and the Court would be denied the benefit, quite possibly, of the truth. In the order that this Court entered, the Court went further than is necessary in ruling upon the lack of the ex parte availability to the plaintiff –- of the defendant –- in moving for a continuance. And I specifically refer to the Missouri Supreme Court case that rejected defense’s current efforts for this Court to consider it without the benefit of the State challenging it. There’s no Arkansas case on it simply because it hasn’t come up in Arkansas. But not all cases in Missouri –- Not all Missouri points of law have been considered in Arkansas and vice versa. Anyway, the point being is that I went further and I went into some detail and alerted counsel as to why I had not thus far granted any ABSTRACT 959 continuance based upon the naked and unsupported assertions of defense counsel that it needed more time chiefly to pursue mitigators, possible mitigators. (PTR 30) The Court noted in its order that the psychiatrist that defense counsel attached an affidavit from, his affidavit, about PTSD stated that he had not evaluated Mr. Pedraza. The Court also noted that the psychiatrist had said he had not received any military records. So, there’s nothing even here to suggest that any doctor, regardless of how educated, would be in any position to offer an opinion thus far; and there was no reason given why he had not at least been afforded the records. I would not require that he had already examined Mr. Pedraza to grant the motion for continuance, if at least the doctor had examined medical records, military records, VA records, that at least suggested the possibility –- suggested, I emphasize –- and I emphasize possibility –- that Mr. Pedraza in some way or another suffered any form of PTSD. Those records could have been mailed to him. He could have examined them in his office and based his affidavit thereon saying he needed to visit with Mr. Pedraza. And that way it would be a basis for this Court to grant a continuance. No reason is given why any medical records have not been forwarded from the Army; no reason is given –- I don’t even know if they have them. And that would not violate attorney-client privilege or work product in no shape, form, or fashion.(PTR 31) ABSTRACT 960 Further, I noted that this Court on its own motion called Mr. Green at the last hearing and inquired who he had contacted to obtain military records, medical or otherwise, at the local guard unit where Mr. Pedraza served, certain of his medical records would in fact be there. And given the length of time that Mr. Green had been on the case, there would be no reason not to have gone to the commander of that unit. He first said he did go to the commander; then he changed his story and said he had not, he had gone to the first sergeant. I also noted I discontinued my questioning when I saw in front of me counsel for the defense coaching, shaking his head no, as I examined the investigator. I only did that because this is a capital case. (PTR 32) Now, with respect to the business about possibly going to Mexico to find some mitigators, unspecified mitigators, non-statutory mitigators, this Court had asked before, “How much time has Mr. Pedraza spent in Mexico?” I remember the language in the initial brief or motion filed by the defense. It started out saying that Mr. Pedraza “at an early age,” I believe was the language, came to -- left Mexico -came to the United States. This Court was left completely in the dark as to whether or not that’s one month, ten years, fifteen years. Therefore, I have no idea as to whether or not there’s the possibility of any significant records in Mexico. I’m not even given a location in Mexico. This Court’s been afforded absolutely nothing, factually; and the Court has to believe that Mr. Pedraza has told defense counsel ABSTRACT 961 when he left Mexico. And if he came at one year old, what chance would there be? Many college students have spent possibly as much time on spring break in Mexico. I have no idea what Mr. Pedraza’s contact with Mexico is. I know that at the first appearance he spoke perfect English and I know he is a National Guardsman. I have no idea when he came; or if there are even any school records and, if so, what they might show. The business of his military service and service in Iraq may very well be a nonstatutory mitigator, but this Court would submit to the jury there is an appellant case –- I’ve forgotten out of what state –- where a trial judge declined to submit as a mitigator the defendant’s three years of combat tour in Viet Nam. Without reaching the issue of PTSD, the appellate court stated that those tours, three tours, should have been submitted. The jury was not obliged to consider them as a mitigator but could if they wanted to. And I would certainly –- I don’t know what they would have said say if there was just one tour. Point being, I believe that the matters that –- if you get them in through the rules of evidence -- would allow this Court to submit to the jury, if it comes to the penalty phase. Service, be it National Guard, or otherwise. I would have no trouble doing that. So, to suggest that I’m denying you what I believe to be a submissible mitigator, non-statutory, I can do that, but I do not have to buy hook, line, and sinker without a factual showing any reason to believe that there is a reason ABSTRACT 962 for Mr. Pedraza to this point to be examined elsewhere. (PTR 33) On Mr. Deen’s point specifically about attorney-client, he is correct. You cannot pick a witness –- If Mr. Green were covered by that –- and he’s not covered as to all of it, suffice it to say, all information that he’s gathered that would be relevant to this Court determining whether or not there’s a possibility of additional mitigators and a reason to continue, all the information that he’s received, from whatever source, is not work product nor is it –- Certainly not attorney-client privilege. And what this Court specifically would be looking at –- or any court –would be when Mr. Green started on this case. You have to log your time in capital cases. (PTR 34) He’s paid by the hour, I believe. There has to be submissions as to what hours he’s worked; where he’s been; what his expenses were; who he has contacted, the dates upon which he’s contacted them; whether or not Mr. Pedraza signed or declined to sign the appropriate releases for him to get it, the information; who he’s talked to at the local guard unit; what records he even has. Last hearing he said had certain records from the Army. I’ve not seen them. They’re not attorneyclient privilege or work product. I don’t know when he got them; I don’t know what they show. What if they show that Mr. Pedraza, like many who leave Iraq or Afghanistan –- Those soldiers are screened for PTSD, normally. What if the screening showed none and that’s the document that Mr. Green has? I don’t know. ABSTRACT 963 But in order to grant a continuance, I would need one that showed he did. And if I don’t have one that shows he was screened and what the outcome was, or that he’s been treated between then and now –- And that’s been back in 2008 when he served, you would think in the last three years, there would be some medical evidence out there, some diagnosis, some treatment, some something, some application on account to the VA. They havscereaening process now. This Court has, trying to prepare for this hearing, has read the article authored by two Harvard men -- not to throw words around -- Pitman and Orr –- on the testing for PTSD and its forensic psychiatric application. And I have read virtually every case there is out there on it, and I believe the practice from the supreme court library will show that. The point is is that generally there is some vetting process. And three years post-Iraq, there would be some type of indication, objectively, that could be offered to this Court without violating any attorney-client privilege or anything else. (PTR 35) But I want to know, and have been furnished nothing, to show what Mr. Green has done, or others, to get this information, why it has not been forthcoming to the Court; and I can only conclude in its absence that there is none. Now, the interest of this Court is not to try this case at the end of October; the interest in this case is to give both sides a speedy trial, observe their rights of due ABSTRACT 964 process. And if there is nothing out there on PTSD, for this particular defendant –we’ve tried a case without it -- there has been opportunity to certainly come with it. Same way with the deal in Mexico, I can’t even begin to consider something unless I at least know what time he spent in Mexico, at what age, where, what there would be available in the way of records there that may involve possible mitigators. All that can be shown, certainly, without any violation of attorney-client privilege. (PTR 36) The only other thing I was going to bring up, but I’m not, is that I received a letter, which was not sent to the clerk, from some official in Mexico offering criticisms of –- unsupported criticisms –- of having this trial in October. I give the letter the weight that it should have, given its lack of underlying factual underpinnings. And I was inclined when I came out here today to ask what, if any, role defense counsel had in the sending of this letter. I decline at this point to do so because I really don’t want to know the answer. If the State –- If I thought that the State had had some official, local or foreign, had any role in playing in writing this Court -- not send a copy to the other side -- to influence this Court’s decision on any pending matters, I would be very disappointed; and I think the defense would try to have the State’s head. ABSTRACT 965 It’s different when somebody writes something on an official piece of stationery. You know, you’re supposed to give it a little leeway, credibility, but if I found that the defense knew about this letter before it was written or had any part in it, I would be disappointed. I won’t even go into the rules involved. But I recognize the responsibility of defense counsel in representing a defendant in these situations. I hope that they have gotten the cooperation from Mr. Pedraza that they need and that they’re not taking a bullet here because if they don’t say so now, if he’s not cooperated fully, given them dates which he may have been in Mexico, all that kind of stuff, then I think they’ve hoisted themselves on their own petard. I can’t worry about it, but that is that. (PTR 37) Now, let me deny now the motion to hear any testimony or receive any documents, testimony ex parte; and having given counsel the right, an opportunity to put this matter before the Court where they could be challenged by the State, I have nothing else to hear on this case today and this hearing is now concluded. MR. ROSENZWEIG: Your Honor, may I be heard on a couple of things -THE COURT: No. MR. ROSENZWEIG: –- to correct the record on a couple of things -ABSTRACT 966 THE COURT: If I’m wrong on the record, it’s self-correcting. MR. ROSENZWEIG: Your Honor, no, I think you’re –- The Court is operating under a misapprehension about a couple of things, Your Honor. First, on a minor issue, Mr. Green is a salaried employee with the public defender commission. He does not –- He does not submit request for payment because he is a salaried employee. (PTR 38) THE COURT: But if that is the case, in a capital case, he still must keep some kind of record or log to protect everyone on a Rule 37 deal as to contacts made, when they were made, what documents were obtained. You do that even on civil cases -MR. ROSENZWEIG: I’m not disputing that, Your Honor. THE COURT: Okay. Well, my point was the documents are there. MR. ROSENZWEIG: Your Honor, if I could state a couple other things for the record to make sure the record’s clear. First, Your Honor, with regard to the questioning of when Mr. Pedraza resided in Mexico, he came to America at approximately age four. He has returned to Mexico to see family on several occasions for what are relatively brief family visits. The issue with whether Mr. Pedraza came at one, two, three, four, six, or whatever, is not the point that we were making. The point is the ABA guidelines require a multi-generational workup and he ABSTRACT 967 has –- His grandparents live in Mexico; they speak only Spanish. His aunts and uncles live in Mexico; they speak only Spanish. And we are –- And we have not been able to get everything tied down. The point is we don’t know yet all the family dynamics for the reasons we set forth in the motion for continuance, Your Honor, and explained in there what we found out to be one of the significant problems we had. Secondly, Your Honor, further on with regard to Pablo Stewart, what the record should be pretty clear on –- and you were concerned –- we had just –- Our concern was this: we realized that what we were going to need –- Because of the family problems here is we were going to need a Spanish-speaking psychiatrist in order to be able to deal with the nuances on the collaterals -- And the doctor -- We had just gotten the authorization from Dr. Stewart –- Or the public defender commission to hire Dr. Stewart. (PTR 39) Secondly, Your Honor, all these affidavits talk about how it takes time and rapport and going back to them and looking at that –- Again, Your Honor, we also -You said there was no evidence. You, in the records, that you have seen –- that you have seen –- that were given to you at your order by the State –- includes Victoria Pedraza saying, “I know he has PTSD.” Furthermore, Your Honor, he also –- And there are also records about his ABSTRACT 968 carving up himself in a suicide attempt. I will also quote, Your Honor, and this –I believe this may have been quoted in one of the affidavits, but I’m reading here from something from the VA, “However, there are troubling” -- This is from the Veterans Administration. “However, there are troubling initial signs that soldiers from the all-volunteer professional military are reluctant to seek help or that help may not be readily available to them. For example, Hoge et al. (2004) found that although approximately 80% of Iraq and Afghanistan veterans who had a serious mental health disorder” –- such as PTSD -- “acknowledged they had a problem, only approximately 40% stated that they were interested in receiving help.” In addition, “only 26%” – (PTR 40) THE COURT: Are you quoting from the article that I referenced you? MR. ROSENZWEIG: I’m sorry, sir? THE COURT: Are you quoting from the article –MR. ROSENZWEIG: I’m quoting from “The Unique Circumstances and Mental Health Impact of Wars in Afghanistan and Iraq.” National Center for Posttraumatic Stress Disorder -THE COURT: I’m just not going to let you stand here and read. I’ve got other cases today. You said you’re not going to put on proof unless it’s ex parte -MR. ROSENZWEIG: Your Honor -ABSTRACT 969 THE COURT: Now, you’re not correcting the record now, Mr. Rosenzweig -MR. ROSENZWEIG: Yes, sir, I am -THE COURT: You’re not correcting the record. I have no proof before me that he came here at the age of four. I have your statement. You cannot testify. You want to get on the stand, swear to tell the truth; Mr. Deen gets to cross-examine you as to how you found it out, then you’re going to have to waive attorney-client privilege. And he’s the only one that can waive it. Now, I have been extremely patient and I have given you every opportunity. I have given you a road map in which you can prove your case, if you had one for a continuance with PTSD. You’ve not so much as even supplied one medical document. You agreed that before today you had not even produced any proof that he was in Iraq. (PTR 41) MR. ROSENZWEIG: No, sir, I do not agree with that. That’s the exact (talking over) -THE COURT: That is made –- It was not in the way of proof. Now, what I’m going to ask you to do instead of rearguing the motion. I’ve made my ruling. The record has been made. You may have a seat. MR. ROSENZWEIG: Okay, Your Honor, I need -- (talking over) (PTR 42) ABSTRACT 970 THE COURT: I said have a seat, or the sheriff will put you there. Now, this hearing is now concluded and the Court has ruled on the motion; and we’re onto other business. You may take Mr. Pedraza back. ABSTRACT 971