July 31, 1979
Scans of original transcript
MR. BLACKBURN: Your Honor, we call Mrs. Mildred Kassab. Your Honor, while we are waiting, I am informed that there are several photographs that I want to formally move into evidence -- Government Exhibit 483(a), which is the picture with the word "Pig" on it, Photograph 1085 Government Exhibit, which was introduced or marked yesterday by Mr. Medlin, and four small photographs -- scenes of the Kalin residence, the front of the MacDonald residence, the front porch, and the front of the house, which are Government Exhibits 161 through 164.
(Government Exhibits 481(a), 1085, 161, 162, 163, and 164 were received in evidence.)
THE COURT: Let me see counsel at the Bench now before you start to bring this witness.
B E N C H C O N F E R E N C E
THE COURT: I have had my usual bombardment of motions and so forth. When they come in, of course, I carry on a full work schedule in addition to this trial, which is kind of a relief from my ordinary duties, and I don't know whether anything that has been filed relating to the prospective testimony of this witness or not. If there is, before we get into it, we might as well get it hashed out. I was going to make the suggestion that it might profit us to collect a bunch of motions and so forth and maybe let this jury take a half day off sometime and thrash it all out.
MR. BLACKBURN: Judge, if you are going to do that today --
THE COURT: (Interposing) I did not say that I was going to do it, but I am just throwing it out.
MR. BLACKBURN: For the Government's own progress in the case concerning witnesses coming up, this would be the best time for the Government. I don't know about the defense. We have reached that point where after Mrs. Kassab and the Kalin daughter, we are going to switch to a different type of testimony being blood and technical stuff, so this is a good point for the Government in which to do that. Also, just in terms of preparation --
THE COURT: (Interposing) Before you go into that?
MR. BLACKBURN: I think even right now if you want to stop right now.
MR. MURTAGH: Your Honor, alsi in regard to the blood tets, we would like to thrash out with counsel the most expeditious way to do it. All the chemists will testify. They will be available for Cross-Examination, but the time required to get the mechanics in can be cut from about two days to maybe half a day, if counsel would agree. We would like to thrash that out.
THE COURT: How much time do you think we need for these chambers matters?
MR. SEGAL: The most significant motion we have pending, Your Honor, is the motion for voir dire on Mr. Stombaugh. We need him here, but I don't think it would take more than an hour to do that. The legal argument may take a little time.
THE COURT: You don't have him present today, do you?
MR. BLACKBURN: No, sir.
MR. SEGAL: Do you nkow when you are going to have him present so we can do it all at the same time?
MR. BLACKBURN: He is going to come close to the end of the case -- whenever we reach that point.
MR. SEGAL: Perhaps, that one matter cannot be disposed of at this time.
MR. SMITH: I don't think it can. I think that is separate.
MR. MURTAGH: Your Honor, as far as the Stombaugh matter, defense counsel has had Mr. Stombaugh's Grand Jury testimony, and has had Mr. Stombaugh' -- laboratory reports --
MR. BLACKBURN: (Interposing) That is a matter we can argue about. I would like to suggest on behalf of the Government, maybe at this time I think it might be best because this witness -- it might be best at this point before we even get into Mrs. Kassab to break, I think, because that might clarify --
THE COURT: (Interposing) How much time do we need now then?
MR. BLACKBURN: It would be helpful to us before we rest our case to know about the jury viewing. We want to talk about the April 6th tapes; third, that mater of the Esquire magazine; and fourth, the matter of Helena; and fifthly, the sexual thing, because for example, we have got witnesses coming into Raleigh this week who might tetify about these various mattrs. It just helps in planning how to do what next.
MR. MURTAGH: Also, Judge, the psychiatric issue in this case, we are now at a posture where that is going to be --
MR. BLACKBURN: (Interposing) We might choose to do that first.
THE COURT: Could this witness testify? I was thinking that maybe we could get rid of her before 1:00 o'clock and just take the afternoon off.
MR. BLACKBURN: I don't think I am misrepresenting to the Court that she will be longer than one hour because of her Direct and Cross. Some of the tings that she says might or could go into the sexual area, for example. I was not going to ask her about that until that was ruled upon. I told her not to say anything about it, but depending on the ruling that might come out.
THE COURT: Cold we go as far as you can before you get into anything controversial and break it right there?
MR. BLACKBURN: I don't mind doing it that way.
THE COURT: Let's do it that way. Now, I don't want to waste an afternoon, but it looks like you have cut out enough to do for an afternoon.
MR. SMITH: I don't think it would be a waste at all. I think it would be a help.
THE COURT: All right, next question: do you want to handle these matters in chambers, in open Court, on the record, or just how?
MR. BLACKBURN: I would prefer in chambers. I think it would be better for both counsel.
MR. SEGAL: I think the discussion legally should be in chambers, Your Honor, the voir dire.
THE COURT: That would have to be on the record.
MR. SEGAL: I don't see any reson why we cannot do it in chambers.
MR. BLACKBURN: We have got one witness, Pamela Kalin, who is coming from Florida this morning. Hers would be shorter. She would like to get back tonight. She thought we were going to go ahead.
THE COURT: She is not here now.
MR. BLACKBURN: Let me see if I can find out if she is here right this minute, and if not, we will go with Mrs. Kassab.
THE COURT: If she is going to be short.
(Bench Conference terminated.)
B E N C H C O N F E R E N C E
MR. BLACKBURN: The little girl is not here. I was showing defense counsel where I was going with this witness. In all honesty, this witness' testimony is of the type of nature that to break it off in just her impact for the Government, I think, we would prefer not to start unless we could stop at one time. So, with all due respect, we would like to maybe just stop now.
THE COURT: Well, do you have another witness on deck?
MR. BLACKBURN: No, sir; we don't. We were going to go to Pam Kalin. She will be here by 2:30, but she is not here now. She was supposed to be.
MR. SEGAL: I think we have to come back, Your Honor.
THE COURT: Well, then, why don't we take off until 2:00 o'clock. Let the jury come back at 2:00 and then we will finish that witness and then we will do the legal stuff.
MR. BLACKBURN: That will be fine.
(Bench Conference -- terminated.)
THE COURT: Members of the jury, what we have been doing -- the counsel have been considering a suggestion of the Court which might result in some savings of time for you. Normally, when matters involving legal points come up, the Court excuses the jury and you go back and sort of cool your heels until we can get the thing thrashed out. We have been accumulating, though, for a couple of weeks now, a lot of things. It was the suggetion of the Court that we might, perhaps, go as far as we could this morning, and maybe give you the afternoon off so that you would not have to be waiting around while we are considering matters which are of no concern to the jury in the case, being purely legal in nature. I understand now that it will be better to take our recess since you have one short witness and to come back at 2:00 o'clock.
MR. BLACKBURN: Yes, sir, and if for any reason we find out that is not the case, we will notify the Court as quickly as possible.
THE COURT: All right, then, we will take our recess now, members of the jury, and we will come back today at 2:00 o'clock. At that time, we will probbly have a short witness. When that is over, we will keep on working, but you will have the afternoon off. Take a recess now until 2:00 o'clock. Don't talk about the case.
(The proceesing was recessed at 12:11 p.m., to reconvene at 2:00 p.m. this same day.)
F U R T H E R P R O C E E D I N G S 2:00 p.m.
(The following proceedings were held in the presence of the jury and alternates.)
THE COURT: Good afternoon, ladies and gentlement. I have had some informatoin just a few moments ago to the effect that your witness had missed a plane or something like that.
MR. BLACKBURN: Sir, she is not here. Her parents are here and expected her to be on the plane. She was not on the plane, so I must tell you that our short witness at 2:00 o'clock wil be even shorter because she is not here.
THE COURT: If you could arrange for all the rest of them to be like this.
MR. BLACKBURN: I guess the Government is at the point where with the bench conference before the break that we could proceed without the jury, Your Honor.
THE COURT: Well, members of the jury, it was just brought to my attention and, of course, I had no way of getting in touch with you like a half hour ago. Really, it would not have been necessary for yo uto come back this afternoon, inasmuch as we had these legal arguments and motions to make, and I didn't want you sitting around waiting for those, and you could have gone and stayed because when I found that the witness couldn't be here, then all other witnesses to testify will -- their tetimony and evidence and whether or not it will be admissible and so forth will be determined in large measure by the rulings on these motions now pending before the Court.
There is a whole stack of them as you can see. But we have waited until this long to see because some of them we were able to get by without having to have a hearing on so I think I am in a position now to excuse you until tomorrow morning at 9:30.
I want to remind you, as I always do, of those things that you can't do. I also want to thank Mrs. Wilkes and Mrs. Richardson for some very delicious cake and so forth that we got from the jury over the lunch recess.
So, we will excuse you then. In fact, you can just take a recess until tomorrow morning at 9:30 because the legal arguments and things, I believe you said, you would make those in chambers.
MR. SMITH: Yes, sir.
THE COURT: All right.
(The proceeding was adjourned at 2:03 p.m., to reconvene at 9:30 a.m. on Wednesday, August 1, 1978 [sic].)