Pre-Jury Motions, Logistics, and Preliminary Jury Instructions
108 linesJUDGE HANKINSON: Mr. Zangeneh, but I want to give you all this early — as early a time as possible to look at the legal instructions so that at the appropriate time we can start having some discussion about them.
JUDGE HANKINSON: I know it's a little bit early on, but is anybody aware of any special instructions they're going to be seeking that are outside the standards?
MR. ZANGENEH: Judge, at this point it's too early for us to tell. If it does come up during the pendency of the case, the court will be notified.
MS. CAPPLEMAN: I'm not aware of anything outside the standards, Judge.
MS. KAWASS: And on our same position as counsel for Mr. Garcia, at this point we don't have any special instructions, but as soon as we feel that one is necessary, we will provide copies to the court and to the state.
JUDGE HANKINSON: I'd like to have an opportunity to do my own research on jury instructions. I feel responsible for jury instructions. It's not just a defense or prosecution issue. It's for the court, so please give anything novel you're going to suggest to me as early as possible.
JUDGE HANKINSON: Don't wait to the last minute. It just causes me inability to research them and just makes for logistical problems. So please try to do that.
JUDGE HANKINSON: We do have co-defendants and multiple attorneys here. I want to establish the procedures for that.
JUDGE HANKINSON: Whoever is handling that part of the case for that defendant, or the state — whichever attorney is handling that part of the case should be the one making objections and making legal argument. I don't want to get into tag-teaming. And when I say that part of the case, that would be divided up: opening, each witness is a separate matter, closing. So basically, whoever is doing the cross on that witness should be the one to make objections and legal argument. So I think that's to your benefit as much as mine, but it keeps things a little more orderly. We'll proceed in the way we've been proceeding, as I understand it, and it will be State, Garcia, Magbanua in that order, unless somebody has agreed to the contrary.
JUDGE HANKINSON: Any issues on any of those procedures?
MR. ZANGENEH: Not from Mr. Garcia.
MS. CAPPLEMAN: No, sir.
MS. KAWASS: No, Your Honor.
JUDGE HANKINSON: Okay. Do either attorneys intend to concede guilt to any criminal charges before the jury?
MR. ZANGENEH: No, Judge.
MS. KAWASS: No, Your Honor.
JUDGE HANKINSON: Does either side wish to invoke the rule of sequestration?
MR. ZANGENEH: Garcia invokes.
JUDGE HANKINSON: Do you have any witnesses present, Ms. Cappleman?
MS. CAPPLEMAN: Yes, sir. Judge, obviously there's an exception for Mr. Newlin, present for the court's ruling. We'd also ask for an exception in reference to the Markel family pursuant to Marsy's law.
JUDGE HANKINSON: Who is that specifically?
MS. CAPPLEMAN: Ruth Markel, Bill Markel and Shelly Markel — the parents and sister of the deceased.
JUDGE HANKINSON: They're going to be witnesses?
MS. CAPPLEMAN: They have been listed as potential witnesses. I don't anticipate them being called, but it's possible.
JUDGE HANKINSON: Mr. Garcia?
MR. ZANGENEH: This is a decision the government has to make.
MR. ZANGENEH: The government has to burden us with who they're going to call, and obviously we're concerned that any potential witnesses that are privy to the actual testimony during the pendency of the case may be influenced by the testimony. So I object.
JUDGE HANKINSON: Magbanua?
MR. DECOSTE: One brief moment, Your Honor.
MR. DECOSTE: Based on representations by the state right now, we have no objection to that.
JUDGE HANKINSON: So what kind of testimony do you anticipate might be involved, Ms. Cappleman?
MS. CAPPLEMAN: It's possible that they'll be needed to authenticate some voices on some recorded phone calls.
JUDGE HANKINSON: And that would be the extent of their testimony?
MS. CAPPLEMAN: Yes, sir.
JUDGE HANKINSON: Mr. Garcia, how would you be prejudiced by that?
MR. ZANGENEH: Well, very simply, Judge, if they hear the government in their opening statement or about the pendency of the case —
JUDGE HANKINSON: Everybody be seated in the courtroom, please.
MR. ZANGENEH: — make a reference to the report.
MR. ZANGENEH: I'm sorry.
JUDGE HANKINSON: Go ahead.
MR. ZANGENEH: — make a reference to the recording, or who they believe the person behind the recording is.
MR. ZANGENEH: They'll clearly be influenced by that. And if the government's going to be relying on their testimony, then their testimony is going to be tainted. Now, if the government calls them originally to bring out the person, to authenticate a voice on a call at the inception of their case without reference to it or without other witnesses making reference to it, then there's no prejudice, and I'm okay with it.
MR. ZANGENEH: Fine. Other than that, there clearly could be some sway or some construction or leverage given to these witnesses if they are able to sit and observe what transpires with regards to the evidence issue.
JUDGE HANKINSON: And what is the law you're relying on, Ms. Cappleman, that says they need to be in here?
MS. CAPPLEMAN: Judge, I'll be reading from 960.001, sub 1, sub e.
MS. CAPPLEMAN: A victim shall have specific rights upon request, which includes the victim's family: the right to reasonable, accurate, and timely notice of, and to be present at, all public proceedings involving the criminal conduct, including but not limited to trial, plea, sentencing, or adjudication, even if the victim will be a witness at the proceeding, notwithstanding any rule to the contrary.
JUDGE HANKINSON: Has there been any court interpretation of that?
MS. CAPPLEMAN: If there has, I do not have that for Your Honor.
JUDGE HANKINSON: So I'll give you a chance to research that, but at this point in time I'm not going to exempt them from the rule of sequestration if they're going to be witnesses potentially. I'll give you an opportunity to further research that, but I don't think this is where we want to start making law in this case. So I've written an order exempting Mr. Newlin from the rule of sequestration. All other potential witnesses will be subject to the rule of sequestration. You say you have some witnesses present?
MS. CAPPLEMAN: Yes, sir. In light of your ruling, I will release the Markel family from their subpoenas. May I inquire whether the defense has them under subpoena?
MR. ZANGENEH: Not Mr. Garcia.
MR. DECOSTE: No, Your Honor.
MS. CAPPLEMAN: Do I have potential witnesses in the courtroom? Stand up.
JUDGE HANKINSON: They were standing. I told them to sit down.
JUDGE HANKINSON: No, no, no. I'm sorry. You remain standing.
JUDGE HANKINSON: I'm sorry. The rule of sequestration has been invoked. That means you need to remain outside the courtroom except while you're testifying. While you're waiting to testify, and until you're excused, you're not to discuss the case among yourselves or with any other person.
JUDGE HANKINSON: An important exception to that is you are free to talk to the attorneys for either side, just not in the presence of any other witnesses.
JUDGE HANKINSON: Obviously, there are witnesses that are not present here today.
JUDGE HANKINSON: It's counsel's job to make their witnesses aware of the court's ruling and advise them that they are under the rule of sequestration.
JUDGE HANKINSON: Other witnesses may step out.
JUDGE HANKINSON: Anything else from either side?
MR. ZANGENEH: Nothing from Mr. Garcia, Judge.
MS. CAPPLEMAN: No, Your Honor.
MS. KAWASS: No, Your Honor.
JUDGE HANKINSON: All right. So we'll resume, hopefully with the jury, at nine o'clock, with the preliminary comments and opening statements.
JUDGE HANKINSON: Be seated, please. Good morning, folks. Thanks for being back here this morning. Let me start by — let's talk about time just for a moment. I try to run this court on a very strict schedule. I do that mainly to not waste your time. I demand it of the lawyers. The lawyers will tell you that I'm pretty strict with them.
JUDGE HANKINSON: We were working after you left yesterday. We were working before you got here today.
JUDGE HANKINSON: All that I do to prevent wasting your time.
JUDGE HANKINSON: It will happen. We will have times that it's impossible for me not to have to take up something outside your presence, because that's the way the court works sometimes. But I work real hard not to do that. And to make that work, I need y'all to be timely. So be here when I tell you. I don't tell you sometime and expect we're really going to start half an hour later, you know. I try to do it where you're not sitting back in that jury room for too long, and I know y'all don't want to be coming to this courthouse any longer than you have to. I'm aware of the sacrifice that y'all are making to be here on the jury, and I'm going to do everything I can to use your time efficiently. I ask for your cooperation in that.
JUDGE HANKINSON: You've now been selected and sworn as the jury to try the case of State of Florida v.
JUDGE HANKINSON: Garcia and Magbanua, as we've already discussed during jury selection.
JUDGE HANKINSON: They are charged with first-degree murder, conspiracy to commit first-degree murder, and solicitation to commit first-degree murder. As I've also told you, the charges that the State Attorney has brought are not evidence, and you are not to consider them as any proof of guilt. It's my job to explain the law to you; it's your job to decide the facts of the case. That's one of the fundamental principles of our system of justice: I decide the law, you decide the facts, you apply the facts to the law. So we have totally separate jobs, and that's how our system works. I know that all of you probably have seen trials on TV from time to time, but you probably don't see one from beginning to end, so it may be helpful if you understand the sequence of events that are about to happen. At the beginning of the trial, the next thing that will happen is the attorneys will be given an opportunity to make an opening statement.
JUDGE HANKINSON: The opening statement gives the attorneys a chance to tell you what evidence they believe will be presented during the trial.
JUDGE HANKINSON: What the attorneys say is not evidence, and you are not to consider it as such.
JUDGE HANKINSON: Following the opening statements, witnesses will be called to testify under oath.
JUDGE HANKINSON: They will be examined and cross-examined by the attorneys.
JUDGE HANKINSON: Documents and other exhibits also may be produced as evidence.
JUDGE HANKINSON: After the evidence has been presented, I will instruct you on the law. The attorneys will then have an opportunity to make a closing argument.
JUDGE HANKINSON: Following the closing arguments by the attorneys and some concluding remarks by me, you'll retire to consider your verdict.
JUDGE HANKINSON: You should not form any definite or fixed opinion on the merits of the case until you have heard all the evidence, the argument of the lawyers, and the instructions on the law that I will give you. Until that time, you are not to discuss the case among yourselves.
JUDGE HANKINSON: Your verdict must be based solely on the evidence or lack of evidence and the law that I will explain to you.
JUDGE HANKINSON: I now instruct you not to communicate with anyone, including your fellow jurors, about this case.
JUDGE HANKINSON: No communication includes no emailing, text messaging, tweeting, blogging, or any other form of communication.
JUDGE HANKINSON: You cannot do any research about the case or look up any information about the case. If you become aware of any violation of these rules, you must notify the court personnel of the violation.
JUDGE HANKINSON: During the course of the trial, we will take recesses, and you will be permitted to separate and go about your personal affairs.
JUDGE HANKINSON: During these recesses, you must not discuss the case with anyone, nor permit anyone to say anything to you or in your presence about the case.
JUDGE HANKINSON: If anyone attempts to say anything to you or in your presence about the case, tell them that you are on the jury and ask them to stop. If they persist, leave them at once and immediately report the matter to the bailiff, who will advise me. The case must be tried by you only on the evidence presented during the trial in your presence, and in the presence of the defendant, the attorneys, and myself. Jurors must not conduct any investigation of their own. This includes reading newspapers, watching television, or using a computer, cell phone, the internet, any electronic device, or any other means at all to get information related to the case or the people and places involved in the case. This applies whether you're at the courthouse, at home, or anywhere else.
JUDGE HANKINSON: You must not visit places mentioned in the trial or use the internet to look at maps or pictures to see any place discussed during the trial. I know probably much of this sounds kind of familiar to you, if you're listening. At the beginning, I gave you a very similar instruction at the beginning of the case.
JUDGE HANKINSON: I don't mean to insult your intelligence, but the internet has become a big problem for the court system. I know we all get used to this — as soon as we have a question, we hop on the phone or computer and start looking up the answer. Obviously we can't try a case in that way, and if you do those kind of things, then we're all going to have been wasting our time here. I don't want to waste your time; I don't want you wasting my time. I know it sounds a little boring, but these things do happen. We do have problems along these lines, so please abide by this. In every criminal proceeding, a defendant has an absolute right to remain silent. At no time is it the duty of a defendant to prove his or her innocence. From the exercise of a defendant's right to remain silent, a jury is not permitted to draw any inference of guilt, and the fact that a defendant did not take the witness stand must not influence your verdict in any manner whatsoever.
JUDGE HANKINSON: The attorneys are trained in the rules of evidence and trial procedure, and it is their duty to make all objections they feel are proper. When an objection is made, you should not speculate on the reason why it is made.
JUDGE HANKINSON: Likewise, when an objection is sustained or upheld by me, you must not speculate on what might have occurred had the objection not been sustained, nor what a witness might have said had he or she been permitted to answer. I've already told you, from time to time we will have what we call sidebar conferences, where maybe I'll go over here and talk to the attorneys, or we might let you step out. Don't think something exciting is going on — that's a natural part of every trial. But there are certain times when I have to rule on things outside your presence, and that should not concern you.
JUDGE HANKINSON: If you would like to take notes during the trial, you may do so. On the other hand, you are not required to. That is entirely up to you.
JUDGE HANKINSON: We've provided you with a pad and a pen for your use if you wish to take notes.
JUDGE HANKINSON: Any notes that you take will be for your personal use. However, you should not take them with you from the courtroom until you start your deliberations. During recesses, if you'll just leave your notes in your seat, the bailiff will ensure they are not tampered with by anyone. If you just leave them in your seat at the end of the day, they'll collect your notes and secure them away for the evening and then pass them back out to you in the morning. So you're not going to take them from the courtroom until you start your deliberations. Obviously, when you start your deliberations, you will have your notes. No one will ever read your notes. After you've completed your deliberations, the bailiff will destroy your notes. If you take notes, do not get so involved in note-taking that you become distracted from the proceedings.
JUDGE HANKINSON: And you may wonder what I mean by that.
JUDGE HANKINSON: We've had a rare instance where some juror decides to kind of act like a court reporter and take down everything that's said here.
JUDGE HANKINSON: Obviously, an important part of your job is to observe the witnesses and decide whether you think they're accurate historians or not.
JUDGE HANKINSON: Don't get so buried in note-taking that you lose that function. And let me, as an aside — I know that Ms. Mathis just had an issue with her chair, and it's probably worth mentioning. One of the jurors yesterday thought he had broken the chair, I think, and fell over backwards. There is a lever on the left-hand side of your chair. If you hit that lever, the back will go back. So you don't want to go over backwards — be a little careful with it. And if it's too far back, just push the lever and lean forward so you're off of it. It should lock into position. But I thought we had a broken chair. I thought he'd fallen over backwards.
JUDGE HANKINSON: But anyway, it's just a lever on the chair to control your back.
JUDGE HANKINSON: Whether or not you take notes, you should rely on your memory of the evidence, and you should not be unduly influenced by the notes of other jurors.
JUDGE HANKINSON: Notes are not entitled to any greater weight than each juror's memory of the evidence.
JUDGE HANKINSON: During the trial, you will be permitted to ask questions of witnesses in case you missed something, you did not understand something, or you need to clarify a pertinent issue. The rules of evidence apply regardless of whether a question is asked by the attorney, by me, or by you. Therefore, there may be a legal reason why I cannot ask your question. If I do not ask your question, you must not hold that against any of the parties, and please do not take it personally. Subject to that understanding, this is how we will proceed. When the attorneys have finished asking their questions, if you have a question, simply raise your hand. I will give you time to write your question on a clean piece of paper, and the bailiff will collect your question. I will then confer privately with the attorneys. If I determine that it is a legally appropriate question, I will ask your question, and the attorneys may ask follow-up questions. If your question is not asked, you must not discuss it with other jurors or hold it against either party. The questioning of witnesses is the primary responsibility of the attorneys.
JUDGE HANKINSON: You are not obligated to ask any questions, nor encouraged to ask large numbers of questions.
JUDGE HANKINSON: However, if it will help your understanding of the case, you are encouraged to do so.
JUDGE HANKINSON: Now, remember, we don't do it in the middle of the witness. We do it when the witness is concluded.
JUDGE HANKINSON: All questions are in writing. We don't do any verbal questions from the jury. I have to have them in writing because I need to discuss them with the attorneys and decide that it's a legally appropriate question before the witness is asked.
JUDGE HANKINSON: As I indicated, the next thing that's going to occur is the attorneys will be given an opportunity to make their opening statements.
JUDGE HANKINSON: As I've also said, what the attorneys say is not evidence and you are not to consider it as such. However, I do encourage you to give them your careful attention. The opening statements are intended to give you an understanding of the evidence that the attorneys expect to present and the issues in the case. We'll start with the State of Florida.