WORD FOR WORD TRANSCRIPT OF ARGUMENT BY JA, CM AND JA REGARDING PROPOSED JURY INSTRUCTION FOR THE WITHDRAWAL OF DR. RODRIGUEZ' TESTIMONY 6/24/11 WFTV Raw Video Day 38, Trial Pt. 12 Starting at 9:57 http://www.wftv.com/video/28351869/index.html HHJBP: Anything else we need to take up? JA: We have this - I guess its a requested instruction about Dr. Rodriguez. I dont know if you want to talk about that now or in the morning. HHJBP: Thats up to yall. Im here. JA: Mr. Mason, which would you prefer? Talk about this now or in the morning? CM: We can talk about that now. JA: The State objects to the suggested instruction. It is first of all a comment on evidence not before the Jury to the extent that it seeks to indicate that Dr. Rodriguez will not be resuming his testimony because his employer, the Department of Defense will not permit him to testify in the current proceeding. Its not before the Court and it is also not wholly accurate. I think it would be better if the Court did not announce to the Jury facts not before it. But if it does, the correct fact, as I know it, would be that he is not that his testimony was prohibited pursuant to the rules and regulations of the Department of Defense, and therefore, he was testifying in violation of those rules and would not be permitted to do so. I dont think the Defense wants the Jury to be told that. So, perhaps we should simply come up with an instruction that in a more bland way advises the Jury that he was withdrawn; because, as the Court noted, the Defense could have subpoenaed him and forced him to testify since he was here, and they chose and I applaud them for not trying to ruin this mans life over it, but they didnt. So I think a more appropriate instruction would simply be something that announces that hes withdrawn as a witness, and the Jury should disregard any testimony that he gave because I think that more accurately reflects the reality. CM: Your Honor, you may recall that it was Mr. Ashton who stood in that room with all of us and told us that he, on Saturday had had a phone call from the boss of the Department of Defense advising him what Mr. Ashton has told me they told him - that Mr. Rodriguez would be terminated if he testified and that information was not passed on to us until that part of the day after his deposition, in fact, had been taken the day before on that and the only reasonable conclusion is exactly as we all talked about. Yes, you could have forced him to stay fact. I suspect, if we had asked you, you could have had him declared a material witness and had him put in jail. HHJB: Thats true. JA: True. CM: But, obviously we were put in a situation of dealing with reality and humanity and ethics, not to do any of those things. I dont want it to read that it was like he just withdrew or just didnt do it because thats just not the case. Well, you were there. You heard it. HHJBP: It is also true, is it not, that what was represented was that he did not get the permission of them to testify. And that was the reason why CM: I dont know that. Mr. Baez talked with him. I didnt. JB: We dont know that, Judge. All we know is this. We know that he came, he began his testimony. Of course we had the break. Mr. Ashton took his deposition. Somehow Mr. Ashton had a phone call with the Department of Defense on a Saturday. The next day hes shaking in his boots because hes going to get fired. JA: Let me clarify the implication of what Counsel just said so its clear. I received a phone call from Dr. Rodriguez employer at the Department of Corrections Department of Defense, a Captain Malick (sp). I did not solicit his contact. He informed me that they had learned of Dr. Rodriguezs participation by seeing it on television; that it was in violation of Department of Defense regulations, that he did not seek their permission and that he was ordered to return home. And if he testified, he would be fired. I informed the Court and counsel of that in an off the record discussion outside as a courtesy so that the witness would not end up losing his job over this. Any implication in Counsels comment that I contacted them is absolutely 100% false. JB: There is also more to the story here Judge. Mr. Ashton also requested an additional 24 hours so he could review a deposition that he just took, knowing full well that Mr. Rodriguez was in the hot seat. So, we are going to have a motion in regards to that forthcoming. But this is the most accurate representation of the events that transpired with regards to Mr. Rodriguez. JA: Since the facts are quoting me, I think Im the most accurate. The point is, the facts are not before the Court. The Court needs to simply inform the Jury that the witness is withdrawn, which is factually and legally accurate and that the Jury should give no regard to his testimony and leave it at that. If counsel wants to file something under oath, bring it on. JB: We will. HHJBP: Well, the only thing Im going to say about it is this, in order for me to craft something other than something that is based upon what I know which is very little is that you are going to need this captain to testify and they dont need to do it in person. We can do it at a break, after 5 or early in the morning before 9:00 and Dr. Rodriguez - and we can find out 1. whether that is a regulation by the Department of Defense, and, 2. whether or not the good doctor sought permission to do this. If not, because I offered on Saturday to order Mr. Dr. Rodriguez to be held over until Monday to testify since he was in the jurisdiction of the Court and if he would have been held here on his own and if someone had echoed that they felt that despite my written or verbal order to him that they had reason to believe that he would flee the jurisdiction of the Court then I would have ordered him held in the Orange County Jail until such time as he would testify to assure his availability. And, if memory serves me correctly, the Defense then said they did not want the mans job in jeopardy that you had another witness that could to testify basically to the same thing that he was going to testify to and that you were going to let him go. So if we are going to tell the whole story, we will to tell the complete story or tell a very benign thing that his testimony is to be stricken and you are not to consider his testimony the little that he did give and you are not to speculate on the reasons why, and it will be very benign. And I can craft that and I will give that and that will be end of story.