Discussion on Scheduling of Witnesses & Jurors Taking Notes

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THURSDAY, AUGUST 13, 1998

(Court convened at 9:35 a.m. The defendant was present. The jury was not present.)

THE COURT: Are there any matters we need to take care of before we bring the jury in?

MR. PANOSH: Your Honor, in looking at the schedule, it would appear we're going to get to a matter next week that -- in which we'll have to know whether Theodore Kimble is exercising privilege or not. I think the best time to do that would be sometime tomorrow, either first thing or about the time you let the jury go.

THE COURT: I'd say we do it between 12:00 and 1:00.

MR. PANOSH: All right.

MR. HATFIELD: Your Honor, could I -‑

THE COURT: Yes.

MR. HATFIELD: -- comment on that? Your Honor, I think that we need the weekend to evaluate the situation with Kimble's -- Theodore Kimble's counsel, and to assess the situation at that point in time. Because they do respect the input that we may have on that subject.

THE COURT: As long as it doesn't put the State at a great disadvantage, because they got witnesses to schedule in here on Monday, and if they don't know before Monday, then it's going to be difficult for them. You ought to be

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able to make that decision between now and 1:00 o'clock on Friday.

MR. HATFIELD: Well, I can tell you that I'm not prepared to make that decision, and I've spent 15 months on this case. And one of the major problems with that decision is that we don't have access to Ted Kimble, and it may be that his counsel would allow us to meet freely with him, but up to now, that has not been afforded us.

THE COURT: Well -‑

MR. HATFIELD: I don't think that we should have to sacrifice, so that the State can plan its case. They've not shared any of their plans with us.

MR. PANOSH: Your Honor, that's not accurate. I arranged for a meeting between Ted and Ronnie and their counsel in my office on the Friday preceding the trial. That's Number 1. Number 2, it's not Mr. Hatfield's decision, it's counsel for Theodore Kimble, and they've told me that they've made a decision and that they have discussed it with their client. And I think it will be -- it's going to make things run a lot smoother next week if we know which witnesses we need and in which order.

THE COURT: All right. Now, I'm going to tentatively schedule it for tomorrow between 12:00 and 1:00 and we'll hear it during that period of time.

MR. HATFIELD: Well, if I may --

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THE COURT: Or he needs to be available.

MR. HATFIELD: If I may say this. First of all, the meeting on Friday did not include myself and did not include one of the other lawyers who represents Ted Kimble. And the purpose of that meeting was not to determine whether they were going to exercise the Fifth.

Now, the second point is this. Regardless of what Mr. Panosh thinks that Theodore Kimble's counsel have told him, we have been reliably informed that no decision has been made. So -‑

THE COURT: I'm saying, make it between now and 1:00 o'clock tomorrow.

MR. HATFIELD: Why do we have to make that decision?

THE COURT: You don't have to make it. His counsel is the one that's going to have to make that decision.

MR. HATFIELD: Your Honor, I just don't understand why North Carolina gets to determine the time frame on this, instead of the defendant's -‑

THE COURT: The State of North Carolina is not determining the time. I'm the judge in this case, and I'm trying to move this case along as quickly as I can. They told me it was going to take five to six weeks, and I'm trying to get it in within less than that time, if we

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possibly can. They've got witnesses scheduled, and the State's indicated they may finish their evidence by Monday, and they need to know which witness to get in here and which not to get in here, based on whether or not he's going to in fact testify or invoke his privilege. And his lawyers know that. They can make that decision between now and noon tomorrow.

MR. HATFIELD: Your Honor, if they finish next Monday, we'll have Major League baseball next week. There's no possibility that they're going to finish on Monday. I just counted the witnesses.

THE COURT: I don't know whether they will or not. I'm going to hold them to the fire, and they're going to -­you know, we're going to try to move along as best we can.

MR. PANOSH: Your Honor, I didn't predict next —

Monday. I'm sorry to mislead you.

THE COURT: I'm sorry. Well, I thought when we were talking yesterday, I understood next Monday.

MR. HATFIELD: Your Honor, the modified potential witness list has almost exactly 100 witnesses on it.

THE COURT: Well, I'm inclined --

MR. HATFIELD: That is just theirs.

THE COURT: Well -‑

MR. HATFIELD: And they've only called 20 of them.

THE COURT: Some of them may be short witnesses,

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some may be long. It's going to take awhile.

MR. HATFIELD: Your Honor, they spent yesterday putting witnesses on --

THE COURT: Well, we've wasted time right now talking about it. Let's move along.

MR. HATFIELD: Well, I just think that if -- that the Court should open the door --

THE COURT: I can always start court at 9:00 o'clock, and I can always go to 6:00 o'clock, I can work on Friday, and I can work on Saturday. Now, we can take it either way you want to do it. I'm trying to keep the jury fresh, keep the case moving along as best I can. And I've given you what I thought was a time frame to move within, and I'm hopeful we can do that. If we can't, then I'll speed it up or slow it down or whatever it needs to take to keep this jury fresh and focused.

Bring them in.

Come back to the witness stand, please.

Bring the witness back up to the witness stand, Mr. Panosh.

MR. PANOSH: Mr. Lindell. Sergeant Lindell. (The witness, Roy Lindell, returned to the witness stand.) (The jury entered the courtroom at 9:40 a.m.)

THE COURT: Pleased to have the panel back. I hope each of you had a nice evening and are feeling okay.

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Anyone on the jury panel experiencing any problems today that I should know about, if you'll raise your hand, I'll be glad to talk to you about that.

JUROR NUMBER 12, MR. MAJORS: I don't have a problem --

THE COURT: Yes, sir.

MR. MAJORS: -- but we want to know if it's possible if we could bring -- make notes out here.

THE COURT: You may do that, yes, you may take notes. I would caution you, however, that just because one juror's taking notes, the rest of you should not sit back and relax, because we used to have a rule that if one -- if anybody objected, they could not take the notes in the jury deliberations, because it would give someone an unfair advantage. Someone may sit there and say, "Well, he's taking good notes" or "she's taking good notes. I can relax, and she'll get it down, he'll get it down." They may get it wrong, just as the court reporter or the Court could get it wrong. So you need to listen and make your own determination of what the facts are, and not rely upon someone's taking notes. You certainly may take notes, and that's no problem. If you need paper or pens, I'll be glad to provide them to you. Do you need that, sir?

MR. MAJORS: We can -- I guess we can bring our own note pads.

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THE COURT: No. We'd be glad -- we've got enough here to provide you with those, for those of you that would like to take some notes.

Any other questions or problems today?

(The clerk handed note pads and pens to the bailiff.)

THE COURT: All of you may not want to take notes, but if you'd like to take some notes, the court officer will pass out a pad here and some pens, and kind of leave it up to you, if you want to do that.

(The bailiff handed note pads and pens to some jurors.)