Joe Jordan testimony (TES Volunteer)

SIDEBAR #2 (9:47-9:50)

Jury sent out at 9:53

Witness asked to step out.

(JJ apparently recorded some conversations with his attorney and others)

LDB - the objection I lodged was based on the propriety of CM eliciting the witness invoking the 5th in front of the jury.

CM - In his sworn stated in November where no defense lawyers were present LDB advised him he was given immunity for what he said and then they carried on and which they discussed with him that he had broken the law and he knew that he had broken the law. Illegal wiretapping.

CM - Regarding his September 28, 2009 recorded statement with Det. Edwards - page 34 - talking about acknowledging he had recorded the conversation and discussing how he did it. And you memorialized the statement in a recording you did surreptitiously, right? And on page 39 - I contact you and give you a recording done without his permission? You broke the law, don't break another without destroying it. Witness said "you know its not to your benefit to go after me". He has a right to talk to him about this. It goes to his credibility. He did not expect him to take the 5th amendment at this time; and, when LDB immunized him, he didn't really have a 5th amendment privilege.

HHJBP - anything else from the State?

LDB - only that CM was not demonstrating there was a change in testimony. CM had told her that he was not going to be asking him about the illegally recorded conversation. She maintains her objection.

CM - "You made a mistake, in my opinion the body was moved". His testimony is all in conflict.

HHJBP - was it represented to the State that there would be no questions involving him invoking his 5th amendment. That he decided to do it was a different story. He decided to do that.

LDB - there is no changed testimony. His suggestion is this is now why he is changing testimony is without merit. He told CM in depo that he made a mistake and he told the Jury that today also.

CM - He did not ask him about invoking his rights.

HHJBP - Davis vs. Alaska -

IF there is a pending criminal proceeding that goes to the issue of bias, then counsel can question on that. Unlawful interception - a felony of the 3rd degree. Alleged commission of crime? End of October 2009. He was granted use immunity of prosecution?

LDB - for his statement only.

HHJBP - Statute? 3 years? The proper procedure would have been to proffer the question to see if the witness would invoke his 5th amendment right then we could have dealt with that. It is fair game that this witness has been granted use immunity by the prosecution. It would have been up to the state as to whether to go into the details.

Mr. Mason what is your continued line of questioning? With his response, he would stop.

LDB - we are moving the response be stricken. But if he wants to ask him other question as it relates to bias, no objection.

LDB, CM and JB are having a conversation.

HHJBP: Page and line of his deposition where he invoked his 5th amendment right? Vol 1 was December, Vol 2 was Feb.

LDB - Vol 2, page 74, line 3 - Vol 1, page 8, line 27.

HHJBP - was he subpoenaed by the State or Defense today?

CM - Defense.

HHJBP - question asked "were you threatened with felony prosecution?" That question does not necessary elicit the response he gave of invoking his 5th amendment right. He could have answered yes or no and because he is not skilled, did the first thing that came to mind. Mr. Jordan's attorney - was your client given use immunity?

Attorney McClallen- for the recording, yes your honor, but not for his testimony today.

HHJBP - I will instruct the jury to disregard his last comment about the 5th amendment.

LDB - I will agree to offer him any use immunity for his testimony today. That will probably open up other doors.

HHJBP: Mr. McClallen - you might want to go out and talk to your client.

HHJBP - give the jury their special break and we will be in recess for at least 15 minutes.

(10:16)

10:36

Jury not in courtroom

Let's return the witness and Mr. McClallen.

LDB - It's my understanding the Court is going to strike the response?

HHJBP - yes. The response was basically non-responsive to the question that was asked. (His Honor chuckling). Okay, McClallen did you talk to your client?

Yes.

HHJBP - and you explained to your client? Mr. Mason?

CM - can we approach?

SIDEBAR #3 (10:36-10:49

Jury coming back (10:49)

(CM and JB not looking happy)

HHJBP: To the Jury: The following 2 questions have been withdrawn and you are to disregard - question about reason to change testimony and were you threatened with felony prosecution and his assertion of 5th amendment right.

REDIRECT BY CM

No further questions.

No recross.

Witness excused.