Privilege Waiver & Testimony Decision — Donna Adelson
60 linesJUDGE EVERETT: 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.
JUDGE EVERETT: We will resume with the trial this afternoon today at 2:20. Please report by 2:15. Enjoy your break. We'll be right back.
JUDGE EVERETT: Everyone can be seated.
JUDGE EVERETT: 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.
JUDGE EVERETT: Are there any other matters that we need to address?
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 needs to take in order for that to stop, but the fact remains that they're doing this in front of the jury.
MR. ZELMAN: It could have an impact on the jury and could impact my client's right to a fair trial.
JUDGE EVERETT: Well, this is a public trial. I 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 him?
MR. ZELMAN: They're behind me, Your Honor. No, all I can identify is this coming over to my right shoulder.
JUDGE EVERETT: Please be seated. I want to make this crystal clear for everyone who is observing the trial today.
JUDGE EVERETT: Should I or the bailiffs in any way notice that you are engaged in disruptive behavior that is intended to improperly influence the jury, you are going to be removed from the trial and subject to contempt.
JUDGE EVERETT: I cannot make this any clearer at this point.
JUDGE EVERETT: Please report back at 2:15.
JUDGE EVERETT: Once the jurors are assembled, we will continue with the trial. Ms. Descalzo, I believe, is still to be called by the defense.
MR. ZELMAN: Yes, Your Honor.
MR. ZELMAN: 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: Thank you.
JUDGE EVERETT: Please return at 2:15.
JUDGE EVERETT: All right. Two matters to briefly address before we bring the jurors on.
JUDGE EVERETT: The first concerning the — first concerning the waiver of attorney-client privilege as to the testimony of Ms. Descalzo.
JUDGE EVERETT: I am going to need to place the defendant under oath concerning this. Ms. Adelson, please rise. Raise your right hand.
JUDGE EVERETT: Raise your hand, please. Do you swear or affirm the testimony you're about to give will be the truth?
DONNA ADELSON: Yes.
JUDGE EVERETT: You can lower your hand. 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 one at a time.
JUDGE EVERETT: Mrs. Adelson, do you understand the scope of the waiver that you're providing?
JUDGE EVERETT: Do you understand the scope of the waiver that you're providing of attorney-client privilege?
DONNA ADELSON: I 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. Any further matters that are inquired into that exceed the scope, at that point we are going to have to send the jury out of the room. We are going to have to send the jury out of the room.
JUDGE EVERETT: As I previously stated before, the state is permitted to cross-examine as to all topics that are inquired into on the defense direct, and as well matters of impeachment and bias. Does the state need to be heard in any way 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'll allow... the short answer is, we were allowed 20 minutes during the lunch break to speak with Ms. Adelson.
JUDGE EVERETT: And in addition to the time that you had yesterday and other times?
MR. ZELMAN: Yes, Your Honor.
JUDGE EVERETT: Well, one moment. Who's handling this? Better or not tag-teaming any arguments of any sort.
MS. FULFORD: If I may, Judge — the issue is that we—
MR. ZELMAN: Your Honor, Ms. Fulford and I have discussed — 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?
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, that's a simple matter. But there has been time pre-trial 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 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.
JUDGE EVERETT: Please check with the jurors. Let them know that we will get started momentarily.
MR. ZELMAN: ...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. After, we are respectfully requesting that the court allow Ms. Adelson to participate at the sidebar as she is entitled, and for us to address additional issues that are weighing on Ms. Adelson's decision.
JUDGE EVERETT: Please approach. We are not going to do this for very long.
JUDGE EVERETT: You can bring the jury.