3.Privilege Waiver & Testimony Decision — Donna Adelson
103 linesJUDGE EVERETT: You remain under your subpoena. Please do not discuss your testimony with any other witness in this matter. Have a good day.
Members of the jury, at this point we are going to take our lunch break. Once again, I will instruct you not to discuss your testimony with each other or any other person. Do not review or seek out any information outside from this courtroom.
We will resume with the trial this afternoon, today, at 2:20. Please report by 2:15. Enjoy your break.
(Jury exits courtroom.)
JUDGE EVERETT: Everyone can be seated.
Any discussion that needs to take place concerning whether the Defendant will testify does need to occur during the extended lunch break at this point.
Are there any other matters that we need to address?
MS. CAPPLEMAN: Not from the State, Judge.
MR. ZELMAN: Judge, I'm still hearing reactions from the gallery over my right shoulder during witness testimony. I heard it again after the Court cautioned the gallery again.
I don't know what steps the Court, you know, needs to take in order for that to stop. But the fact remains that they're doing this in front of the jury, could have an impact on the jury, and it could impact my client's right to a fair trial.
JUDGE EVERETT: well, this is a public trial. TI cannot clear the courtroom. However, who do you believe you heard making comments or in some way doing something that was intended to distract the jury? That person can be removed. Are you able to identify them?
MR. ZELMAN: They're behind me, Your Honor. No. All I can identify is it's coming over my right shoulder.
JUDGE EVERETT: Please be seated. I want to make this crystal clear for everyone who is observing the trial today. Should I or the bailiffs in any way notice that you are engaged in a disruptive behavior that is intended to improperly influence the jury, you are going to be removed from the trial and subject to contempt. I cannot make this any clearer at this point.
Please report back at 2:15. Once the jurors are assembled, we will continue with the trial.
Ms. Descalzo, I believe, is still going to be called by the Defense?
MR. ZELMAN: Yes, Your Honor. Ms. Descalzo and Ms. Newhouse are slated.
JUDGE EVERETT: Concerning the rule of sequestration, the remaining witnesses understand they are not to be in the courtroom.
MR. ZELMAN: I'm not aware that they have been, Your Honor.
JUDGE EVERETT: Please scan the courtroom to make sure none of your witnesses are present so we do not have any continuing violations of the rule of sequestration.
MR. ZELMAN: I don't see any witnesses in the courtroom, Your Honor.
JUDGE EVERETT: Please return at 2:15.
(Court in recess.)
JUDGE EVERETT: Everyone can be seated.
All right. Two matters to briefly address before we bring the jurors in. The first concerning the waiver of attorney/client privilege as to the testimony of Ms. Descalzo. I am going to need to place the Defendant under oath concerning this.
Mrs. Adelson, please rise, raise your right hand. Raise your right hand, please.
(Defendant is sworn.)
JUDGE EVERETT: You can lower your hand.
Do you understand with your former -- or, I guess, I don't know the relationship exactly, but someone who has previously represented you, concerning their testimony today, are you waiving attorney/client privilege concerning what they will testify about?
DONNA ADELSON: Yes, I am.
JUDGE EVERETT: Concerning that, Mr. Zelman, do you wish the Court to make any further colloquy?
MR. ZELMAN: Yes, Your Honor. The waiver is specific as to the counsel that our client received from Ms. Descalzo --
JUDGE EVERETT: well, if you need to discuss with her what she's waiving, that's fine. I don't believe you can waive on her behalf.
Mrs. Adelson, do you understand the scope of the waiver that you are providing? Do you understand the scope of the waiver that you're providing of attorney/client privilege?
DONNA ADELSON: JI do, Your Honor.
JUDGE EVERETT: What is that scope?
DONNA ADELSON: The information that we discussed after my son's trial regarding my travel and my state of mind.
JUDGE EVERETT: Is the Defense planning to examine this witness on any other topics than what has been identified as the scope of the waiver?
MR. ZELMAN: No, Your Honor.
JUDGE EVERETT: Very well. If any matters are inquired into that exceed the scope, at that point we are going to have to send the jury out of the room. As I have previously stated before, the State is permitted to cross-examine as to all topics that are inquired to on the Defense direct and also, as well, matters of impeachment and bias.
Does the State need to be heard in any way?
MS. DUGAN: No, sir.
JUDGE EVERETT: As to the other matter concerning whether Mrs. Adelson will testify as a part of the Defense case in chief, Mr. Zelman, were you able to speak with her as to a final decision?
MR. ZELMAN: I will allow -- the short answer is we were allowed 20 minutes during the lunch break to speak with Mrs. Adelson.
JUDGE EVERETT: In addition to the time that you had yesterday and other times.
MR. ZELMAN: Yes, Your Honor.
MS. FULFORD: If I may, Judge. The issue is that we --
JUDGE EVERETT: Well, one moment. who's handling this matter? We're not tag teaming any arguments of any sort.
MR. ZELMAN: Your Honor, what Ms. Fulford and I have discussed was the factual issues that are concerning our client's decision, she was more involved in than I was. So the only thing that I intended to address was the time that we had during the lunch break.
Aside from that, I'm asking that Ms. Fulford be allowed to address the Court.
JUDGE EVERETT: Ms. Fulford, go ahead.
MS. FULFORD: The issue that we're facing, Judge, is this was six days of testimony from witnesses for the State and a great deal of evidence that they have entered. we have discussed with our client, of course, her right to remain silent or whether she wants to testify or not. we have not had an opportunity to go through all of the evidence that's been entered in this case and have a full and frank discussion with her about that evidence, if there are any issues that she thinks need to be addressed for her testimony, whether she thinks she needs to testify or not, and what her decision is on that.
JUDGE EVERETT: When we had the break yesterday at 2:45 in the afternoon, you did not speak with your client concerning whether she wished to testify or review the evidence?
MS. FULFORD: Absolutely. Yes, Judge. And that's what I said. we have discussed with her whether she wants to testify or not.
JUDGE EVERETT: The defendant in every single case, Ms. Fulford, is faced with this moment as the Defense case in chief ends.
what are you asking for?
MS. FULFORD: I'm asking for additional time to be able to go through all of the testimony and evidence with our client so that she can make a fully informed decision as to whether she wants to continue to remain silent or testify in this case.
JUDGE EVERETT: Ms. Fulford, concerning that, that has been provided by the Court. If she wishes to testify, we do need to go through the colloquy. If she does not, it's a simple matter. But there has been time pretrial to prepare for this moment, there's been time during trial, and, specifically, we recessed court early for you to address any issues of witnesses or whether your client would testify.
MS. FULFORD: Yesterday when you allowed us to recess early, Judge, Mr. Zelman and I spent time going through the evidence that was admitted, making sure that we understood everything that was there, because there was some confusion during the trial about things being added and things being removed. So we wanted to make sure we understood completely what there was there.
we left here, went straight to the jail, and had the issue with the potential new witness, and spoke with our client. But that's not ample time to discuss with her what has actually come in in the State's case.
JUDGE EVERETT: Your client is in a no different position than any other defendant who has to decide whether they wish to testify or not. I will give you five additional minutes to discuss this matter. From there, the Defendant is going to have to make a decision whether she is going to testify or exercise her right to remain silent.
Please check with the jurors. Let them know that we will get started momentarily.
(Court is in recess.)
MS. FULFORD: Your Honor, may we approach with our client?
JUDGE EVERETT: With your client?
MS. FULFORD: Yes, please.
JUDGE EVERETT: Why can we not address this matter when the jury is out of the room?
MR. ZELMAN: Judge, the concern that we have raised a number of times is the response from the audience concerning things that are said by the Defense. And although the proceedings are public, that has not stopped the peanut gallery from their comments and laughter. we are respectfully requesting that the Court hear Mrs.-- allow Mrs. Adelson to participate at sidebar, as she is entitled, and for the Court to address -- for us to address additional issues that are weighing on Mrs. Adelson's decision.
JUDGE EVERETT: Please approach. We are not going to do this for very long. The other witnesses for the Defense are ready?
MR. ZELMAN: Yes, Your Honor.
JUDGE EVERETT: Please approach.
(Sidebar conference as follows:)
JUDGE EVERETT: Mrs. Adelson, you remain under oath. Go ahead.
DONNA ADELSON: So my concern is that I was hoping to have time with my attorneys to go over evidence, that I could make an intelligent and informed decision, and five minutes is not going to do it.
JUDGE EVERETT: Mrs. Adelson, this has not been simply about five minutes. From the time that you were indicted, through going through discovery, through the pretrial process, through the start of the State's trial, you have had the opportunity to confer with counsel and decide whether you wish to testify. As far as what has come out during the trial, certainly you have been able to listen to this and make your decision. But it is time to make a decision.
DONNA ADELSON: But I thought I would be able to consult with my attorneys in making the decision, not just -- I'm a layman. I'm not just making it on my own.
JUDGE EVERETT: Are there any other legal arguments that you have to make concerning this?
MR. ZELMAN: Your Honor, the concern that I think my client is unartfully phrasing is that in order for her to make the decision -- she's still on the fence. we have been able to explain to our client the evidence that has come in up to a certain point. we have not been able to go over everything with her. And --
JUDGE EVERETT: Mr. Zelman, to that point, this trial is no different than any other criminal trial that occurs in the state where the attorneys and the defendant observe the evidence of the State and then have to make a decision. You have been able to consult with your client. I believe you said you went and saw her on Saturday. You had yesterday. The issue of testifying has not come up; is that what you're trying to say?
MR. ZELMAN: No, Your Honor, that's not what I'm saying. What I am saying is that there are -- when we started off representing Mrs. Adelson, there were a plethora of issues that she felt she had to explain to the jury. She has now told us for the very first time during the lunch break that there are only a couple of questions in her mind, meaning whether or not she exercises her constitutional right to testify or to not testify.
We are not asking for a lengthy period of time. we originally said that our Defense case was going to take four to six days. we're now halfway through the second day. And all we're asking for is for that -- to get through the additional witnesses that are today. Give us the opportunity -- give her that additional time so that she can make that decision so that we are not put in the position where we're looking at potential ineffective assistance of counsel issues because she is --
JUDGE EVERETT: Although you have prepared her.
MR. ZELMAN: We have. But the decision, it has obviously serious consequences, whether she exercises her right, exposes herself to cross-examination, or whether she is satisfied with the advice that we are giving her concerning her right to testify.
JUDGE EVERETT: Whether it's this afternoon or tomorrow morning, the situation remains the same. She must choose concerning whether she will testify or not.
MR. ZELMAN: I understand that, Your Honor.
JUDGE EVERETT: Does the State wish to be heard?
MS. CAPPLEMAN: My concern, Judge, is that we've told this jury that the case is going to conclude Friday, right?
JUDGE EVERETT: Three weeks.
MS. FULFORD: You said the 8th.
JUDGE EVERETT: Possibly the 8th, Ms. Fulford. Don't interject. This is the State's opportunity.
MS. FULFORD: I apologize.
MS. CAPPLEMAN: Yeah, I just -- I don't really want to give it to them on Friday night. I don't see what the purpose of another delay is. we've had lots of delays. I do appreciate that it's a very difficult decision, but it has to be made, and I don't think it's going to get any easier tomorrow morning than it is this afternoon.
So I would ask to proceed and use all the time that we have reserved with the jury as wisely as we can.
JUDGE EVERETT: How long do you think the examination of the witnesses are going to take this afternoon?
MR. ZELMAN: The two witnesses this afternoon, Ms. Newhouse, I think direct and cross, 15, 20 minutes are plenty to authenticate an exhibit through her, but not -- and have it introduced but not publish it.
And then Ms. Descalzo, direct and cross, I don't see it going more than 30 minutes, Your Honor.
JUDGE EVERETT: This is starting to sound like an issue as it relates to lack of preparation.
You have discussed with your client what her testimony would be?
MR. ZELMAN: If she testifies, yes, Your Honor.
JUDGE EVERETT: You have prepared her for this direct and cross-examination?
MR. ZELMAN: As best as we can.
JUDGE EVERETT: How many times, if you can estimate, have you discussed whether she will testify in this trial?
MR. ZELMAN: I'm going to have to refer to Ms. Fulford about that.
MS. FULFORD: I mean, whether she would testify, just that simple subject has come up lots of times. But actually preparing her and going through the evidence that's been admitted, we're trying to --
JUDGE EVERETT: This is not about --
MS. FULFORD: -- do that now.
JUDGE EVERETT: -- going through each piece of evidence.
MS. FULFORD: I'm not talking --
JUDGE EVERETT: This is whether she's prepared to testify.
MS. FULFORD: well, she has indicated she is not because she hasn't had an opportunity to discuss the evidence with us, what has come in and what needs to be addressed.
JUDGE EVERETT: Ms. Fulford, how is this case different from any other Florida case where the defendant must make a decision at the conclusion of the State's evidence? One-day trials happen routinely.
MS. FULFORD: Right, I understand that, Judge, but this is not a one-day trial. The State --
JUDGE EVERETT: No, it has --
MS. FULFORD: The State used --
JUDGE EVERETT: Hold on. Don't speak over me. There have been multiple opportunities for you to discuss with your client the substance of her testimony, what she would testify to, and we are at the point where it's time to make a decision. This does not sound like good cause for any further delay.
DONNA ADELSON: May I say something, Your Honor?
JUDGE EVERETT: Speak to your attorneys.
MR. ZELMAN: The question that Mrs. Adelson had, the statement is she's asking for the remainder of the afternoon, after the other witnesses testify, and so that -- and she will make a decision at that point.
JUDGE EVERETT: Once the witnesses finish with their testimony, at that time, we will revisit this issue. Concerning whether the direct will start this afternoon is a separate matter from whether she is planning to testify. I need a decision concerning whether she plans to testify at the conclusion of the other Defense witnesses.
MR. ZELMAN: Yes, sir.
JUDGE EVERETT: Please return to your table.
(Sidebar conference concluded.)
JUDGE EVERETT: You can bring in the jurors.
(Jury in courtroom.)