Jeff Wood Trial Transcript, Day 1

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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF PIMA
STATE OF ARIZONA, Plaintiff,
) ) ) vs. ) ) JEFFREY ALLEN WOOD, ) Defendant. ) ______________________________)
2 CA-CR 2011-0193 CR-20093952
BEFORE:
THE HON. JOHN LEONARDO, DIV. 10
APPEARANCES: MARK DIEBOLT appearing for the State
DONALD KLEIN SANDRA BENSLEY appearing for the Defendant
JURY TRIAL - DAY ONE 21 22 23 24 25
5/10/11
Deirdre Muzall, RDR, #50012 Certified Court Reporter
1 2 PENDING MATTERS 3 4 5 6 7 JURY SELECTION
INDEX p 3
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COURT'S PRELIMINARY INSTRUCTIONS TO THE JURY 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 SERGEANT ARREDONDO 23 24 25 D. E. By Mr. Diebolt C. E. By Mr. Bensley p p OFFICER FAIRCHILD D. E. By Mr. Diebolt C. E. By Ms. Bensley p p BRADLEY SCHWARTZ D. E. By Mr. Diebolt C. E. By Mr. Klein ReD. E. By Mr. Diebolt p p p OPENING STATEMENT BY MR. DIEBOLT OPENING STATEMENT BY MS. BENSLEY
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p p
106 111
116 139 170
177 182
185 189
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 State . MR. KLEIN: THE COURT:
PROCEEDINGS
Good morning. Good morning, Judge. We are here on State versus Wood, If you would announce your presence
MR. DIEBOLT: THE COURT: criminal 20093952 .
for the record, please. MR. DIEBOLT: Mark Diebolt appearing for the
Good morning, Your Honor.
Don Klein
and Sandra Bensley for Jeffrey Wood, he is present in custody. THE COURT: Good morning. Are there some
matters that we need to take up before we bring the jury in? MR. DIEBOLT: I think just briefly , Judge. We
don't need to particularly conclude them at this moment but I had a, if I may approach, a couple quick things as to , really I think the Court can take those under advisement. I'm asking that the nature, I guess we were
going to stay away from the nature of the offenses , both the defendant and the victim have a murder conviction . THE COURT: MR. DIEBOLT: All right. Obviously that they have a prior
would come in and that they are in DOC would come in, but
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I don't think there's any relevance at this stage to introduce that they are both in for murder. I guess there
is a chance that some jurors would recognize probably Schwartz's name more than any other person's name but we can deal with that. THE COURT: MR. KLEIN: motion in limine. Mr. Klein. Let me address both issues as to the Number one, I don't think it is timely.
Number two, it doesn't conform to the requirements of the rules setting forth an explanation as to why the motion should be granted. And beyond that, well, let's start off with the nature of the felony . We had talked about that at our And
last hearing on the motions that we had timely filed. at that time the State made no comment and the Court
actually questioned whether we were going to get into the nature of the prior. I had said yes, the State made no
suggestion that they were going to ask to limit it. I think in connection particularly with jury selection if we don't mention the nature of Mr. Schwartz's prior , we run the risk that midway through the jury selection or during the trial, we're going to have a juror who says, oh, I know that man, he's the guy who killed the other doctor or conspired to kill the other doctor. THE COURT: I just want to make sure what your
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position actually is: is it that the nature of the conviction for both the defendant and the victim be mentioned? MR. KLEIN: going to testify. I don't anticipate that Mr. Wood is Therefore there is no reason why any
mention should be made of a prior conviction , so, and the motion in limine doesn't address that. I think that it is
appropriate to have the nature of Mr. Schwartz's prior conviction. And as far as -And the reason apparently is for voir
THE COURT:
dire purposes, so that the jury will know before they are actually sworn in who this is, that they may have read something about him and have some opinion about him that they may not recognize until the end of the case? MR. KLEIN: Yes. And in terms of Brad Roach's I
testimony, we disclosed him as well previously.
anticipate that he will testify concerning Mr. Schwartz's reputation for honesty and his reputation for aggressiveness . considerations. THE COURT: Based on what, what is the foundation Both of those are legitimate
for that kind of testimony ? MR. KLEIN: His conversations with other people I believe he's met
in the community about Mr. Schwartz . Mr. Schwartz.
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THE COURT: MR. KLEIN: THE COURT: concerned about.
Okay. Yes.
Just like any other witness? Not as his lawyer.
Right, okay, that's what I was
Mr. Diebolt. Judge, I don't know how it's
MR. DIEBOLT:
relevant that the nature of his, I mean if we are going to say they are both murderers , then say they are both murderers; otherwise that information should be left out . THE COURT: Well, the point of it, and I think it
is a legitimate one, is that that was a case of great notoriety that the victim was involved in. And when we
ask jurors, well, one of the earlier questions we ask them is do you know any of the people involved in this case? And if they don't recognize that he is that person, but do later in the case and if they have some opinion about him, good or bad, that's something that we need to get out and make sure that it is exposed before they are sworn in. That's the only issue here. And if
you have a different suggestion as to how we can do that , I am happy to do it. MR. DIEBOLT: THE COURT: MR. DIEBOLT: Well -Or to consider it. If it comes up, let's say they
don't recognize the name, it comes up during the trial, that's a detriment to the State's case, not the defendant,
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potentially . another guy.
Oh, this guy, I remember this guy, he killed
And I can assure the Court I won't be asking for a mistrial. So I don't know, the prejudice is really to
the State, not to the defense as to that aspect of it . I just think we should, it makes more sense to me to stay away from it . If someone thinks in their mind
that might know of him and they ask a question, we can deal with that. But I mean, are we looking for someone, I think it convolutes the voir dire process, are we looking for someone who has never heard of Brad Schwartz and the Brian Stidham scenario that -- THE COURT: No, it is just that if we get it out
there , then we can inquire about whatever feelings they might have. around. So . In order to present a fair trial all the way I mean I don't think it's necessarily
imperative that we tell them that he was convicted of thus and such , but that he's associated with that case, although I don't know how you separate them. Aside from that issue, I don't have any problem when Dr. Schwartz takes the witness stand in terms of impeachment , that he's just impeached with the fact that he has a felony conviction without the nature of it, that would be the standard way that we would deal with it. But
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in this case because of the notoriety of that, perhaps what we ought to do is just, you can ask whatever questions you want around that without hitting it full on. And we can bring jurors up to the bench and in quire if there's any indication that somebody does know the victim. Are we going to refer to him as Dr. Schwartz? MR. KLEIN: I would object to it , his license to
practice medicine in Arizona has been revoked. THE COURT: Yes, but absent that there is less
likely recognition of who he is, if somebody has read about the case in the past. MR. KLEIN: be a doctor. MR. DIEBOLT: What happens when you retire as a Do you still --
I think the Court can say he used to
judge , they still call you judge I have noticed. I have seen some retired judges referred to as that. THE COURT: I am not sure that happens if you are
convicted of murder, though. MR. KLEIN: Technically , Judge, conspiracy to
commit first degree murder, not murder. THE COURT: All right. The motion to preclude
the testimony of Brad Roach as a character witness is denied. The motion to preclude the nature of the victim's felony is granted at this point . But I will give counsel
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free reign to probe around that during voir dire . All right . Anything else? Let me in quire again I think we had it
about the possible length of the trial .
set for four days , is that still what you expect? MR. DIEBOLT: MR. KLEIN: No, Judge. I think the State's only going to be We intend to call four witnesses,
calling four witnesses.
I think we should be able to get it to the jury Thursday morning. THE COURT: MR. DIEBOLT: THE COURT: Okay. I think faster than that. Okay. On the outside we will tell
the jury Thursday , is that good? MR. KLEIN: THE COURT: jury panel in? MR. KLEIN: We would like to make a mini opening Yes. Anything else before we bring the
to assist in the voir dire process. THE COURT: MR. KLEIN: THE COURT: Of how much length, Mr. Klein? Two minutes . Mr. Diebolt, do you have any
objection to doing that? MR. DIEBOLT: THE COURT: That's fine, Judge. And would you like me to do that very
early , at the point where I normally would tell them what
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the trial is about, very early in the process? MR. KLEIN: Whatever the Court is comfortable
doing in terms of scheduling. THE COURT: then. MR. DIEBOLT: I had one question about getting, All right. You may bring them in
if we are on a normal schedule and take a break and come back and probably Brad Schwartz would be the first witness, I don't know how to get him in here. They don't
want to walk him up to the stand, just to give you a head's up, the officers don't want to walk him up to the stand, they would rather he be sitting there, so I don't know how we can work that out, but I am sure we will figure it out. THE COURT: little recess then. Well, we will just have to take a Although it is not going to be an
issue that he's in custody so I don't know that it makes much difference. MR. DIEBOLT: I think it is a security issue.
Walking personnel, the nature of his conviction . THE COURT: Is that right, you would rather have
him seated before the jury is in the courtroom? SHERIFF'S DEPUTY: We will have him seated before
they come into the courtroom. THE COURT: That's better for you security wise?
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SHERIFF'S DEPUTY: THE COURT: THE BAILIFF: THE COURT: Ladies and Gentlemen .
Yes, sir. You may bring them in.
Very well .
The jury is entering. Please be seated. Good morning,
This is the time set for criminal
trial in the matter of State of Arizona versus Jeffrey Wood, it is criminal 20093952. Is the State ready to proceed? MR. DIEBOLT: THE WITNESS: MR. KLEIN: Yes, Your Honor . Is the defense ready to proceed? Good morning, Your Honor. Yes , we
THE COURT:
Ladies and Gentlemen , at this point
if you would please all stand and face the courtroom clerk and raise your right hand to be sworn as jurors.
((Whereupon the prospective jury panel is
THE COURT:
Please be seated.
Ladies and I
Gentlemen, I first want to thank you for your patience. know you have been in the courthouse for a long period of time already this morning and sometimes in circumstances that were not extremely comfortable , so we very much appreciate your being here and your patience with our
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process. We are going to begin the jury selection process in this case at this point . And this means that I will be
asking a number of questions of you, and these questions are not designed to pry unnecessarily into your personal lives and we hope that they don't do that. But it's
necessary that we ask these questions to find out if you have any knowledge about this particular case or about any of the people involved in it; to find out if you have any preconceived opinions about the case that you might find difficult to lay a side; and to find out if you have had any personal or family experiences that might cause you to identify yourselves with one side or the other. In other words , we need to ask these questions to do all that we can to insure that whoever is selected to sit as a juror in this case can do so fairly and impartially . Please do not withhold information in order to be seated on the jury and do not be concerned with whether your answers are right or wrong. This isn't any kind of We ask simply
test; there are no right or wrong answers .
that you be honest and candid in your responses and that you not be concerned with what you think I or the lawyers want to hear from you. If your answer to a question that I ask of the
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whole panel is no, then you need do nothing.
If your
answer is yes, please raise your hand and when I call on you, please s tate your name first so that the c ourt reporter can take down not only what is said but who it is that is speaking. If at any time a question is asked for which you do have a yes answer but for whatever reason you prefer not to answer the question in open court, let me know that and I will give you the opportunity of coming down in front of the bench and responding in just the presence of the attorneys and myself. Those who have not been asked to sit in a particular seat should not respond to these questions as we ask them . But you should pay close attention to the
questions as we go through them because invariably some of those who are answering the questions will be excused for one reason or another during the selection process , and when that happens one of you will be called forward to sit in the empty seat . And the first thing that I will say to
you when you come forward is, have you heard all the questions that we have asked so far ? And secondly, would you have had any yes answers to any of those questions? So it's important that you remember the questions that are asked and especially those that you would have
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had yes answers to. Before we go any further I want to introduce to you the courtroom staff and those who will participate in the trial. Seated in front of me is De Muzall who is the It is her responsibility to take down The
court reporter .
verbatim everything that is said in open court.
Superior Court is referred to as a court of record and the transcripts that are possible as a result of her notes are part of the Court's official record. And to my left is Henry Rivera who is the courtroom clerk. His responsibility is to swear in
jurors, swear in witnesses that appear during the trial, keep track of exhibits admitted into evidence, and at the end of every court session he produces a short summary of what happened in Court referred to as a minute entry. that is also part of the Court's official record. And the young man who helped you find your way from the jury assembly room up to the courtroom today is John Wilford, he is the Court bailiff, it is his responsibility to make sure the jury gets to where they need to go and have what they need to have throughout the course of the trial. And if the prosecution would please introduce himself. MR. DIEBOLT: Yes, thank you, Judge. My name is And
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Mark Diebolt , I'm a prosecutor with the Pima County Attorney's Office . THE COURT: Thank you. And if defense counsel
would introduce themselves and those at his table. MR. KLEIN: Gentlemen. Yes. Good morning, Ladies and
My name is Don Klein, I am a lawyer at the Assisting me is
Pima County Public Defender's Office.
Sandra Bensley , she's also a lawyer at the Public Defender's Office . Between us is a young gentleman by the And behind us is our legal
name of Jeffrey Wood .
assistant, Nelva Harper. THE COURT: Do any of you know or think you know
any of the people that have been introduced to you so far? Okay. The defendant in this case is charged with
one count of aggravated assault , temporary but substantial disfigurement. And in order to give you a better idea of
what the charges concern, I am going to let the attorneys explain it a little bit further to you . And Mr. Diebolt, you may proceed. MR. DIEBOLT: Thank you , Judge. This is just a
chance for us to tell you in about two minutes what the case is about. And at a different point in time I will But it is a
give a little bit longer opening statement. fairly short, simple , direct case.
And that is there are
two inmates at the Department of Corrections , the
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defendant and the victim.
The defendant attacked the Beat him
victim outside a creative writing class.
severely enough that he suffered substantial injuries to his face , nose, cuts , and bleeding. So because they are Department of Corrections inmates, they are still charged under the state statute which is aggravated assault, causing temporary but substantial injury. And that's why we are here today. MR. DIEBOLT: MR. KLEIN: Mr. Klein. Thank you, Your Honor. Ladies and Thank you .
Gentlemen, this case actually goes back to September of 2008. Like Mr. Diebolt said, Mr. Schwartz was in prison
at the Tucson prison way out on Wilmot south of I-10. Mr. Wood was also in prison. They were both attending the
creative writing class that was held at the Department of Corrections . At some point on September 27th, 2008, right before the class was about to end, Brad Schwartz got punched in the face several times. The man who did that I The
think the evidence is going to show is Jeff Wood.
reason that he did that I think the evidence is going to show is basically part of a plan by Brad Schwartz to make the State of Arizona pay for his conviction. He believes
he was wrongly convicted, wrongly put in prison and he's
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angry about that. And so he engages in conduct so that Jeff Wood basically punches him, punches him several times, then walks calmly back into the creative writing class. You will find out that within roughly a year after this happened, Brad Schwartz filed a civil lawsuit against the Department of Corrections claiming that they failed to protect him from his being assaulted. In that
lawsuit he alleges that even before this happened he had been assaulted at least three times. The first time
happened in roughly July of 2008 and then there were two other ones between the end of July of 2008 and September of 2008. You are also going to hear that the Department of Corrections personnel offered to put Mr. Schwartz in what is called protective custody so that he won't have to deal when many of the people who are in what's called general population. custody. Mr. Schwartz refused to be in protect ive
He's willing to risk being in general
population, again as part of his scheme to support his lawsuit against the State of Arizona and the Department of Corrections. Basically it comes down to Mr. Schwartz inciting, doing acts that provoked Jeff Wood into punching him several times. Once that confrontation was done, no
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further attacks on Mr. Schwartz.
Jeff Wood went into the
classroom, was detained eventually by corrections officers at the Department of Corrections, admitted that he had punched Mr. Schwartz and actually later on when he was talked to by an investigat or, Ian Friedlander, he said -MR. DIEBOLT: serving at this point. THE COURT: This is getting to be beyond the I am going to object to self
scope of a mini opening. MR. KLEIN: Okay. Mr. Schwartz was punched, he
is punched because he provoked in order to fulfill his goal of filing a lawsuit against the State of Arizona . THE COURT: Ladies and Gentlemen, having been
given that brief outline of what the case concerns , do any of you think you have seen, heard or read anything about this case or have you heard anyone ex press an opinion about it ? Have you or any members of your family or close friends ever been involved in any way in a case like this one? All right. We will start with Mr. Marum, is it?
What is the situation? JUROR MARUM: think I can do it . THE COURT: JUROR MARUM: All right. Was it while you were -I got stabbed in 1997. I don't
I was assaulted .
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THE COURT: JUROR MARUM: public library. THE COURT:
Away from work, not a work situation? It was right here at the Tucson
All right.
And you think that the
effect of that is going to make it difficult? JUROR MARUM: THE COURT: Yes, sir, I know it will. Thank you, Mr. Marum, we will excuse
you from service on this jury and ask you to report back to the jury commissioner's office on the 1st floor. you for being here. And Ms. Patricio. JUROR PATRICIO: I had a similar situation with my sister and it was dealt with in tribal court. THE COURT: How long ago was that? About a year and a half, two Thank
JUROR PATRICIO: years ago. THE COURT:
Some kind of an assault? Yes.
JUROR PATRICIO: THE COURT:
Did it involve any weapon? No
JUROR PATRICIO: THE COURT:
Do you think that will have any
effect on your ability to be fair and impartial as a juror? JUROR PATRICIO: THE COURT: Yes.
Then Ms. Patricio, we will excuse you
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and ask you to report back to the jury commissioner's office on the first floor for assignment to a case of a different nature. Thanks for being here.
Anyone else who had their hand up? All right. THE CLERK: THE COURT: THE CLERK: THE COURT: We will fill number 11. Bernard Dougherty . And fill number 14. Pamela Dugdale . Good morning, Mr. Dougherty. Have
you heard the questions we have asked so far? JUROR DOUGHERTY: THE COURT: Yes, I have .
Would you have had yes answers to
anything at this point? JUROR DOUGHERTY: THE COURT: No. Have you
Ms. Dugdale, good morning.
heard the questions we have asked so far? JUROR DUGDALE: I have but I have a question . I
think I may know Mr. Schwartz, was he an eye doctor? THE COURT: He was. Then I was a patient.
JUROR DUGDALE : THE COURT:
Do you think that is going to have
any effect on your ability to be fair and impartial? JUROR DUGDALE : THE COURT: No, I don't think so .
Is there anything about the nature of
this case that would make it difficult for any of you to
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sit as a fair and impartial juror? JUROR HANSEN: THE COURT: approach as well. May I approach ? If counsel would
Please come up.
((Whereupon there is an on-the-record bench conference.))
JUROR HANSEN:
My heart is not in it, I lost my
daughter in the last year and the name Schwartz jumped out at me . I read the paper, I don't know but I don't feel I'm getting
that my heart is in the right place yet. there , if you can respect that. THE COURT:
I think, is it emotional? Yes.
JUROR HANSEN: THE COURT: for you? JUROR HANSEN:
Where you are, it's kind of difficult
Yes, it is starting to get
stronger but when you are the rock for your wife and son and everybody else too, so, yes, I don't know when it is going to jump up and bite me. THE COURT: When it does, it is very distracting ? Yes, it is.
JUROR HANSEN: THE COURT:
Go ahead and have a seat then, sir.
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((Whereupon the juror leaves the bench conference.))
THE COURT: striking him? MR. DIEBOLT: MR. KLEIN:
Counsel have any objection to
No. No.
((End of bench conference.))
THE COURT:
And Ms. Jaenicke . Yes, I have two comments . One
JUROR JAENICKE:
of them is I don't like violence , I'm a school teacher and I have experienced it in my home, not in my personal home but in my sister's. And a girl that ended up in her later
years, nice family, got involved with drugs and became violent and at this point she's in Patent State Hospital . So her children got taken away. I don't like violence or
anything like that and I really believe that I wouldn't be objective. I don't know . You think that would a ffect your
THE COURT:
ability to be fair and impartial in deciding the case? JUROR JAENICKE : I don't like violence. I would probably be emotional. Not even a trickle of blood or any
punch, my stomach just turns upside down.
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THE COURT:
Thank you, ma'am.
And Mr. Schrage?
JUROR SCHRAGE:
I am an officer with the
Department of Corrections and I deal with this stuff on a weekly basis. one. THE COURT: Okay. Got you. And Mr. McClellan. I'm not going to be too im partial on this
JUROR MCCLELLAN: May I approach? THE COURT: Yes, come on up.
JUROR MCCLELLAN:
I don't know if I could be
impartial because the defendant's attorney already basic ally hung him out to dry. Basically admitting that
he did it so I don't know if I can remain impartial on it. THE COURT: Well, what would be asked of you if
you are selected to sit as a juror is to listen to the evidence and decide whether the State 's met its burden of proving the defendant guilty beyond a reasonable doubt based on the evidence. Not based on anything else . Not
based on any preconceived opinions or thoughts you have about the matter. And that's what we need to know ,
whether you can do that or not. JUROR MCCLELLAN: Okay, I should be fine with
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that. THE COURT: All right. Thank you.
THE COURT:
And Mr. Goldman is it? May I approach?
JUROR GOLDMAN: THE COURT:
Please come on up.
JUROR GOLDMAN:
Two things.
First of all I think
I have already made up my mind about whether this gentleman is guilty or not. And also I work as a
physician at UPH and I see inmates all the time and I know all the guards there and they told me about Dr. Schwartz and his situation , so I think I am definitely not impartial at this point . THE COURT: impartiality go? JUROR GOLDMAN: THE COURT: Well, I think this guy is guilty. You understand that if Okay. And which way does your
All right.
you are selected to sit as a juror you would have to take an oath that you wouldn't decide the case until you heard
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the evidence and you would base it only on the evidence. Do you think that would be impossible for you? JUROR GOLDMAN: THE COURT: excused. Yes, I think my mind is made up . Thank you. You are
All right.
THE COURT:
Any problem getting rid of him?
MR. KLEIN: No. MR. DIEBOLT: THE COURT: Or any of the others so far. I intend to strike everybody who has
responded to that question except of course Mr. McClennan because he's okay . MR. KLEIN: MR. DIEBOLT: All right ? That's fine. Yes.
THE COURT:
Anyone else have a hand up? Yes, I just know I would Do you want me to
JUROR SHANK MIGLIAZZO: not be very good at this trial. approach the bench? THE COURT: Yes, please.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. KLEIN: Any objection? No. ((Whereupon the juror leaves the bench conference.)) seat. JUROR SHANK MIGLIAZZO: There's just a friend of ((Whereupon there is an on-the-record bench conference.))
mine who was assaulted, attacked and hospitalized and I abhor violence and I just know it would a ffect the way I look at this. THE COURT: How long ago was that? Three years ago.
JUROR SHANK MIGLIAZZO: THE COURT:
A close friend did you say? Yes.
JUROR SHANK MIGLIAZZO: THE COURT:
Attacked in what kind of a situation? She was in a shopping It was later
JUROR SHANK MIGLIAZZO:
mall and they stole her purse and beat her. in the evening.
It wasn't when the mall first opened .
But it was not pretty. THE COURT: Okay. Thank you. You may take your
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MR. DIEBOLT: THE COURT:
No. Okay.
THE COURT:
And Ms. Johnson. Shall I tell you from here or
JUROR JOHNSON: should I come up? THE COURT:
What is the nature of it? I will just come up. Come on up.
JUROR JOHNSON: THE COURT:
All right.
JUROR JOHNSON:
I read something about
Mr. Schwartz and personally I think he's a real douche bag and they should have let that guy finish him off. THE COURT: Okay. So you think that might have
an effect on your ability to be fair? JUROR JOHNSON: THE COURT: Probably. Thank you.
Okay.
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THE COURT:
Anybody else ?
The Court will excuse
the following jurors and ask all of you to report back to the jury commissioner's office on the first floor so that they can as sign you to some other case of a different nature. That would be Ms. Jaenicke, Mr. Schrage, Mr.
Glenn Hansen, Ms. Shank Migliazzo and Ms. Johnson as well . And we will fill number eight. THE CLERK: THE COURT: THE CLERK: THE COURT: THE CLERK: THE COURT: THE CLERK: THE COURT: THE CLERK: MR. KLEIN: THE COURT: Michael Bouley. Fill number ten. Anissa Brumfield . Fill number 18. Anthony De Leon. Fill number 20. K aren Trujillo . And number 21. William Roe . Your Honor, can we approach? Yes.
MR. KLEIN: he could not be fair . THE COURT:
I believe Dr. Goldman stressed that
You are right, I did miss him, I am
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sorry, I will take care of it . ((End of bench conference.))
THE COURT:
And Mr. Goldman, you are also
excused, I'm sorry I missed you through the first round. Please report back to the jury commissioner's office on the first floor. And we will fill number six. THE CLERK : THE COURT: Linda Caputo. Good morning, Ms. Caputo, have you
heard the questions we have asked so far? JUROR CAPUTO: THE COURT: anything ? JUROR CAPUTO: THE COURT: No. Yes.
Would you have yes answers to
And Mr. Bouley, have you heard the
questions we have asked so far? JUROR BOULEY: THE COURT: Yes.
Would you have had any yes answers? No.
JUROR BOULEY: THE COURT:
Ms. Brumfield, good morning, have you
heard the questions we have asked? JUROR BRUMFIELD: THE COURT: anything ? Yes.
Would you have yes answers to
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JUROR BRUMFIELD: THE COURT:
Yeah.
Can I approach?
Please come on up.
JUROR BRUMFIELD:
I knew the doctor that was
murdered so I would not really be fair as far as him being punched or a fair juror. THE COURT: Were you a patient? No, I babysat for him. Thank you.
JUROR BRUMFIELD: THE COURT:
All right.
THE COURT:
And Ms. Brumfield, we will excuse you
and ask you to report back to the jury commissioner's office on the first floor, thank you for being here, ma'am, they will as sign you to some other case. Fill number ten. THE CLERK: THE COURT: Karen Lennex. Good morning, Ms. Lennex, have you
heard the questions we have asked so far? JUROR LENNEX: THE COURT: Yes.
Would you have had yes answers to
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anything ? JUROR LENNEX: THE COURT: No. And Mr. De Leon.
Thank you.
JUROR DE LEON : THE COURT: asked so far? JUROR DE LEON : THE COURT: anything ? JUROR DE LEON : THE COURT:
Good morning.
Have you heard the questions we have
Yes.
Would you have had any yes answers to
No.
Ms. Trujillo, have you heard the
questions we have asked? JUROR TRUJILLO : THE COURT: anything? JUROR TRUJILLO: THE COURT: please. Can I ask to approach? Yes.
Would you have had any yes answers to
Yes, if counsel would approach,
JUROR TRUJILLO :
Just by what I have heard I
already have ideas of how I would, what I would say, so does that have an effect, I mean ?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question.
THE COURT:
Well, here's the thing.
If you are
selected to sit as a juror, you take an oath to decide the case based on the evidence . And you are not supposed to
make a decision as to guilt or innocence until you have heard all the evidence and the arguments of the attorneys, then you base your decision on the evidence you heard and based only on that. JUROR TRUJILLO : I mean right now I already have
without hearing more than what I just heard, so I was just wondering if that could happen. THE COURT: What is your opinion now?
JUROR TRUJILLO : I feel like it was an excuse and he probably , I would probably vote against. THE COURT: His conviction ?
JUROR TRUJILLO : Not conviction, for him to be convicted. THE COURT: I assume you would vote guilty? Yes.
JUROR TRUJILLO : THE COURT:
Would you be able to set that aside
and listen to the evidence? JUROR TRUJILLO : I could do that. I just had that opinion. That was my
But despite what I
have heard I could do that. THE COURT:
That was my question.
It might come into your mind or you
might feel like that just a little bit , you might feel one
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way or the other but the important thing is whether you can set that a side and have an open mind and not decide the case until you hear the evidence; do you think you can do that? JUROR TRUJILLO : Yes, I can . THE COURT: All right.
MR. DIEBOLT:
Wouldn't it be prudent to perhaps
tell them that what Mr. Klein says, what they heard, what we said, it is not evidence, nothing presented to them so far is evidence, that they are to keep an open mind. I
think you probably covered that but I don't know, we seem to be getting some people who are perhaps prejudging and basing their opinion on what he said. giving argument right there . THE COURT: Well, we are not very far into the Because he was
questioning , I think it might be pre-mature, we have not gotten into the presumption of innocence yet. But if it
appears to either of you that we need to say something along those lines during the process, I can.
34
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anything ? JUROR ROE: THE COURT: No. Ladies and Gentlemen , I am going to THE COURT : JUROR ROE: THE COURT: asked so far? JUROR ROE: THE COURT: Yes. Would you have had any yes answers to Mr. Roe, good morning to you, sir. Good morning. Have you heard the questions we have
read to you a list of potential witnesses that may appear in the case and I read this list so that you can let us know if you know or you think you know any of these people. Bradley Schwartz, the named victim in the case. Detective Ian Friedlander. Sergeant Samuel Arredondo . Corrections Officer Julie Fairchild . Corrections Officer Angelo Chiaravallo . Lynn Quattlebaum. Corrections Officer Sian Rayot . Brad Roach. I am seeing no hands to any of those. JUROR DUGDALE: THE COURT: I k now Dr. Bradley Schwartz.
In what way?
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JUROR DUGDALE: THE COURT:
I was a patient of Dr. Schwartz.
You mentioned that before. Yes.
JUROR DUGDALE: THE COURT:
Since you mentioned it before, have
you thought any more about it and do you think it is going to have any effect on your ability to be fair and impartial as a juror ? JUROR DUGDALE: THE COURT: No.
How long were you a patient? Just one time about around 2000 ,
JUROR DUGDALE:
2001, something like that. THE COURT: Thank you, ma'am.
Ladies and Gentlemen , we know that jury service is an inconvenience to all of you to one extent or another and we also know that you appreciate how important it is that people such as yourselves be willing to sit as jurors in cases like this one. It is one of the most important
civic duties that you can be called upon to perform and we know that you don't take this duty lightly. Let me explain a little bit about the schedule that we anticipate for this trial. We will probably have
a jury selected by l:30, we will probably start the case at 1:30 and go until approximately 5:00 o'clock today. We
will have a recess in the middle of the afternoon of 15 or 20 minutes and we try not to be in session more than hour
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and a half at a time without some kind of a break. We will also ask the jury to return tomorrow morning at 10:30. We will go from 10:30 to noon. We will
take a recess from noon to 1:30, come back at 1:30 and go again until approximately 5:00 o'clock with a short recess in the middle of the afternoon. That's the normal
schedule that we keep during trials. The attorneys tell me that they expect this case at the latest to conclude probably Thursday morning. it's not a particularly long case. So
It should get to the
jury, this is all a little bit of guess work because you never know exactly how things are going to go, but the attorneys are usually fairly accurate in that regard. So is there anything about the length of the trial, the schedule that I just outlined that creates a problem for you that is serious enough, whether it be personal , business or health, that is significant enough that any of you feel the need to actually be excused from service on this jury and report back to the jury commissioner for assignment to some other case? All right. I am seeing some hands and I will But
call on you individually to get your situations.
first I will explain to you that the law provides that a juror may be excused only if his or her absence from work would materially and adversely affect the public health,
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safety or welfare, or if service as a juror would impose an undue hardship on that juror. So having explained that, let me see your hands one more time all right. Mr. Dingeldine? I may have a funeral to go to.
JUROR DINGELDINE: A motorcycle accident. THE COURT:
It hasn't been set yet? It hasn't been set yet.
JUROR DINGELDINE: THE COURT:
So you are just waiting? I don't know if it is Friday
JUROR DINGELDINE: or Saturday or Thursday . THE COURT:
And I guess you don't know anything
else, even if you knew the day you wouldn't know the time? JUROR DINGELDINE: THE COURT: Lennex. JUROR LENNEX: I teach first grade, we're doing Right. Yes. And Ms.
All right.
Thank you.
state testing this week and if I am not there the other teachers have upwards of 40 kids in their class because we don't have subs. THE COURT: And how is that being handled today ? Today we had one sub that we were
JUROR LENNEX:
able to get but our librarian passed away on Monday so she has to take over for her the rest of the week. THE COURT: So there isn't a sub to take your
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class? JUROR LENNEX: THE COURT: There isn't one, no.
Ms. Medina.
JUROR MEDINA: I just got off of maternity leave so I really need to get to work because we are behind on bills and I am the main provider for our house hold. THE COURT: service? JUROR MEDINA: THE COURT: I don't believe so. Do you get paid when you are on jury
Who is your employer ? It is Dr. Brian Goldsmith, he's a
JUROR MEDINA: dentist. THE COURT:
All right.
Anyone else ?
Counsel
wish to approach, please.
THE COURT: feeling generous.
We don't have many left.
I'm not
So are there any feelings you have
about any of those three people? MR. KLEIN: I think Ms. Medina and Ms. Lennex I think Dingeldine's,
have legitimate excuses.
realistically they're not going to, I have a hunch we may lose Dingeldine as well because I assume he's related to
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
David Dingeldine and probably will know people in the County Attorney's and such. THE COURT: MR. DIEBOLT: Okay. I guess you could check, she could
maybe call her employer and see if they are paid for jury service, I don't know how you want to do that. they do. I forgot the other one . THE COURT: family a little bit. Maybe I could ask her about her She said she's the sole provider. Sometimes
And she just had maternity leave. MR. DIEBOLT: THE COURT: things. All right . Yes. So it is a confluence of a lot of Thanks.
THE COURT : consist of?
Ms. Medina, what does your family
JUROR MEDINA:
I have a new born, a two and a half We're
month old and a four year old and my husband .
behind on bills so we are trying to do the catch-up game right now. THE COURT: Is your husband employed as well ? Yes. The Court will excuse Ms.
JUROR MEDINA: THE COURT:
All right.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Lennex and that's all at this point .
And Ms. Lennex,
please report back to the jury commissioner's office on the first floor. JUROR LENNEX: THE COURT: THE CLERK: THE COURT: asked so far? JUROR RYAN: THE COURT: anything? JUROR RYAN: THE COURT: approach as well. Yes, I think I better approach. Please do come up . If counsel would Yes. Would you have had any yes answers to Do I give them this paperwork? And we will fill number ten.
Yes.
Kenneth Ryan. Have you heard the questions we have
JUROR LENNEX: ophthalmologist? THE COURT: JUROR RYAN:
Is Bradley Schwartz an
Yes . I'm a physician. I served as dean I have
of the College of Medicine for a number of years.
heard things about him outside of what was in the press. I never met him so I only know what was in the papers but
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I have had people in my professional capacity relay things about him that lead me to have a lower opinion of him than I had from the press. THE COURT: Okay. Having said that, we
under stand what you are saying, if you are selected to sit as a juror, that wouldn't necessarily exclude you as long as you would be able to set that aside, those feelings aside because your only function here is that you listen to the evidence and decide whether or not this defendant is guilty of what he is charged with. So if you could do that, we're okay. If you
can't , then if you think that's going to interfere with your ability to be objective and open minded and listen to the evidence. JUROR RYAN: As a dean I had to listen many times
to both sides, that's part of my job, I'm just declaring what is so. THE COURT: JUROR RYAN: We appreciate that. It is one anecdote I was told, he
had stolen equipment out of our operating room. THE COURT: telling us. Okay. As I said you should be Because we will take it
We are glad you are .
into consideration.
But in terms of your own ability to
sit as a fair and impartial juror, that's only up to you ; do you think you could ?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Schwartz.
JUROR RYAN: THE COURT:
I think I probably could. You understand you are just deciding
what the facts are in this case? JUROR RYAN: THE COURT: Yes. This is not a referendum on Dr.
JUROR RYAN: THE COURT:
No, I know. All right.
No, I think I could. Thank you.
THE COURT:
Have any of you ever served as a That is not this kind of a
member of a Grand Jury before?
jury but one that usually meets several times a month to decide whether charges ought to be brought. Have any of you ever been called as a witness in a criminal case for any reason ever in the past ? Have you or any members of your family or close friends ever served as law enforcement officers ? Small, who and what kind of position? JUROR SMALL: THE COURT: JUROR SMALL : THE COURT: JUROR SMALL : My uncle, sheriff's department . Still is? Retired. Was it in Pima County? Yes. Mr.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 up? events. work?
THE COURT:
While he was with the sheriff's
department did he specialize in any particular area? JUROR SMALL : THE COURT: Not that I believe . Anyone else? Ms. Warren.
JUROR WARREN: California.
My nephew is a police officer in
About how long has he been a police officer? JUROR WARREN: THE COURT: Probably about nine years.
Do you talk to him much about his
JUROR WARREN:
When we get together during family
THE COURT:
Is that yearly or less than that? Probably about three times a year.
JUROR WARREN: THE COURT:
Mr. Benjamin, did you have your hand
JUROR BENJAMIN:
Yes, my brother -in-law is a
retired officer in Massachusetts. THE COURT: Okay. Anyone else in that top row?
JUROR CAPUTO: THE COURT:
My son-in-law is Border Patrol.
In the Tucson sector? Yes.
How long has he been with them ? Fifteen plus years. Ms. Foley, did you have your
Okay.
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hand up? JUROR FOLEY : My father was a police officer out For 10
of state but he has been retired for 15 years. years . JUROR BOULEY:
Brother-in-law used to be a cop at My cousin is a cop in
the University of Arizona. Providence, Rhode Island. THE COURT: row?
The second row here, anybody?
First
All right, Ms. O'Brien. JUROR O'BRIEN: THE COURT: My brother is an ICE agent.
How long has he been with them? About 10 years.
JUROR O'BRIEN: THE COURT: for him? JUROR O'BRIEN: THE COURT:
Any other law enforcement before that
No.
Is he in Arizona?
JUROR O'BRIEN: Chicago. THE COURT: Anybody else? All right. Anybody
that responded to that question, is there anything about your relationship to someone who is in law enforcement that you think would have an effect on your ability to be fair and impartial as a juror if you are selected to sit as a juror in this case? Seeing no hands.
Have you or any members of your immediate family ever studied or practiced law? Ms. Foley?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ago. military .
JUROR FOLEY : THE COURT: JUROR FOLEY :
My husband is an attorney. Has he ever practiced criminal law? Well, I don't know , he was in the
THE COURT: JUROR FOLEY : THE COURT: JUROR FOLEY :
Perhaps in the military? Yes. How long ago would that have been? Five years. Six years . Dave Dingeldine, County
JUROR DINGELDINE:
Attorney's Office , retired judge. THE COURT: What relationship ? Father.
JUROR DINGELDINE : THE COURT:
Do you think there is anything about
that relationship and his close association with the County Attorney's Office for that period of time is going to have any effect on your ability to be fair and impartial? JUROR DINGELDINE: THE COURT: No.
All right, thanks. I'm a lawyer.
JUROR DOUGHERTY: THE COURT:
Have you ever practiced criminal law? In the military but 40 years
JUROR DOUGHERTY:
JUROR MCCLELLAN: I studied international law and international war crimes.
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THE COURT:
As a -Undergraduate. Yes, Ms. Demers.
JUROR MCCLELLAN: THE COURT:
Anyone else?
JUROR DEMERS:
My father is a corporate attorney
who practices in Pennslyvania and my sister just finished law school here at the University of Arizona . THE COURT: You mean this month? Yes, this weekend .
JUROR DEMERS: THE COURT:
So she hasn't practiced anything yet? No. Mr. Roe?
JUROR DEMERS: THE COURT: JUROR ROE:
Anyone else?
I was a judge advocate four years ago
and practiced law in New York , but no criminal. JUROR O'BRIEN: I don't practice law but I am a legal assistant. THE COURT: of attorneys? JUROR O'BRIEN: THE COURT: law at all? JUROR O'BRIEN: No, not really, just cases here Joseph Watson. You work with an attorney or a group
Does that attorney practice criminal
and there but not for the most part. THE COURT: Anyone else ? In deciding the facts
of this case the jury will have to evaluate the testimony of witnesses. Is there anyone who would be unable to
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evaluate the testimony by the same standard for each witness? In other words , anybody who comes into the courtroom and takes the witness stand is entitled to have the jury evaluate what they say for truthfulness and accuracy based on the way that you usually would evaluate what people tell you. And that is by their demeanor; by
whether they are contradicted by other evidence ; by whether or not they have a vested interest in the outcome of the trial; those kinds of things. But it should not be based on their status in society. The standard is the same whether the person is
educated or uneducated or whether they are wealthy or poor or whatever, and this is particular ly true when it comes to law enforcement officers. A law enforcement officer's It's not
testimony is to be treated like anyone else's.
to be given more weight or less weight simply because of that status . Is there anyone who thinks they will not be able to apply this standard to all the witnesses including law enforcement officers ? Is there anybody who would be unable or unwilling to follow the law as given to you in the Court's instructions, disregarding your own notions of what the law is or what the law ought to be?
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And the example that we usually use is that there are alot of people in our society that believe that the possession of marijuana should be legalized. And if this
case had to do with possession of marijuana, which it does not, and that was your view, that would not automatically exclude you from sitting as a juror as long as you would be willing to set a side that view and apply the law as the Court gives it to you. or an issue with that? If selected to sit on this case would any of you be unable or unwilling to render a verdict based solely on the evidence produced here in the courtroom? A criminal prosecution is a very formalized process that begins with the prosecutor filing specific written criminal charges against the defendant. The Is anybody going to have a problem
defendant has the opportunity to challenge those charges by pleading not guilty and having a trial, and then it becomes the burden of the State to prove those charges beyond a reasonable doubt . And they have to do that with
evidence that they bring here into the courtroom before the jury . And the jury cannot consider anything in making
its decision that has not been presented to them here in the courtroom. This is why once the jury is selected we tell them don't go visit the site of the alleged offense and
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don't refer to the Internet, don't try to find information on there or in newspapers or any other reference manual because you have to make your decision based only on what the State brings into the courtroom . have an issue or a problem with that? The law requires that the State prove the defendant guilty beyond a reasonable doubt. is presumed by law to be innocent. The defendant Is anybody going to
This means that the
defendant has no obligation and is not required to prove his innocence nor is he required to present any evidence . It's also the defendant's constitutional right to choose whether he wishes to testify or not in this trial. If he
chooses not to testify, the jury cannot consider that in any way in deciding guilt or innocence because that is an exercise of his constitutional right. Is there anyone who
does not under stand this principle of law or does not think he will be able to apply it? Do any of you know any other members of the jury panel ? Seeing no hands. Ladies and Gentlemen , there are
some additional questions that I want to ask you that will be on the easel here as soon as the bailiff turns it around. These questions are not designed to pry into your
lives but the attorneys have the responsibility of deciding who can be fair and impartial and they don't know
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anything about you except what they hear here in the courtroom and these questions are designed to help them in that process. Let me give you a little bit of direction as to some of these. Number two , the area in which you reside .
We are not asking for your ad dress but if you can tell us the general area of the city or the county that you live in. And you may describe that either by the nearest major
cross streets or an identifiable area of town, it could be the university area or Vail or the northwest , something of that nature . Number three, your occupation . If you would What
rather not name your employer , you need not do so. we are primarily interested in is the nature of your employment. Number five, if you have children or
grand children that are under 21, please tell us their age and their gender. mention them. And number seven we will expand upon as we go through and I think you will get a good idea of what we are after. please. JUROR DINGELDINE: Stephen Dingeldine . I reside And Mr. Dingeldine, if you can start off, If they are over 21, you do not need to
in the 85747 district which is the Rita Ranch area, Vail
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side.
I'm retired air force for 21 years.
I work for I have
Target dot com out at Rita Ranch for two years.
been divorced for five years, currently I have a fiance. I have two children, eight and 19, both girls. on a DUI, number six . THE COURT: A DUI trial? A DUI tour back 20 years ago . I have sat
JUROR DINGELDINE:
And then I watch sports and read the news paper. THE COURT: Which newspaper, the Star? Yes, I have a subscription.
What is your primary source of news ? Newspaper and Internet.
Any magazines you look at regularly? Sports Illustrated.
Any entertainment television you like
not to miss on a daily or weekly basis? JUROR DINGELDINE: THE COURT: Regular sports.
Mostly sports? Yes. Mr. Small. I live
JUROR DINGELDINE: THE COURT: JUROR SMALL :
Thank you, sir.
My name is Steve Small.
around Fruehauf and La Cholla . finished carpentry.
I am in construction, I do I have
My wife is a pastry chef .
been working for my employer for six years. been with her's for four.
My wife has
No children , never sat on a
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jury.
And I watch movies and read some books. THE COURT: Any magazines or newspaper s you look
at regularly? JUROR SMALL : THE COURT: No. What would you say your primary
source of news would be? JUROR SMALL : THE COURT: JUROR SMALL : THE COURT: you like not to miss ? JUROR SMALL : THE COURT: Not for the most part . Thank you, sir. Ms. Medina. TV. One of the local channels or cable? Local. Any particular shows on television
JUROR MEDINA: Sahuarita area. hygienist. now.
Amy Medina, I live in the
My occupation is a registered dental
I have been doing that for about six years
My husband is a health and wellness manager at the And we have
Ranch o Sahuarita gym for about six months.
two kids , a two and a half month old and a four year old . And I have never been on a jury before. I usually watch local news. Little things,
Biggest Loser, stuff like that are the only things I really watch on TV. THE COURT: source of news is? What would you say your primary
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yes. news?
Probably talk radio.
Like 104.1 .
Any magazines you look at regularly? No.
Any particular television shows you
like not to miss for entertainment? JUROR MEDINA: Not really. Project Runway, when
those types of shows are on.
But nothing too particular .
I will miss and hit them here and there. THE COURT: I guess the children have more effect
on your schedule than the TV? JUROR MEDINA: Yes. JUROR WARREN: in Mid-Vale park. for 33 years. My name is Paula Warren. I live
I work for a bank, I have worked there I am not married.
I'm a service manager.
I have two sons who are 18 today. on a jury.
And I have never been I
I watch television and I watch the news.
watch Criminal Minds , CSI, everything. THE COURT: television news? JUROR WARREN: THE COURT: Yes. All right. You indicated you watch
Would that be your primary source of
JUROR WARREN:
Local news.
The morning channels,
THE COURT:
Any magazines or newspaper s you look
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at regularly? JUROR WARREN: I read the newspaper sometimes at Local news basically. Mr. Benjamin . I live in the
work if it is there on the table. THE COURT:
Thank you, ma'am. Scott Benjamin.
JUROR BENJAMIN : Park Mall area.
I design large optical systems for the
University of Arizona, I have been there about 16 years. My wife is self employed as a personal trainer. I have
never sat as a juror before, never been chosen to sit . Let's see. Reading, primarily trade magazines. A local one.
Motorcycle consumer news. THE COURT:
Your primary source of news? Local TV channel or Internet.
JUROR BENJAMIN : THE COURT:
And any entertainment television you
like to watch regularly ? JUROR BENJAMIN : in the background . JUROR CAPUTO: My name is Linda Caputo. I live Not really. If it is on, it is
in the Skyline/Campbell area and I am a legal secretary, I have worked in that job about ten or eleven years. THE COURT: attorney have? JUROR CAPUTO: Corporate bankruptcy . It is a bankruptcy firm. Not married. I have one daughter I did sit on a What kind of a practice does that
and two grandchildren, eight and five.
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criminal case about five years ago. THE COURT: Do you recall the nature of the
charges and what the verdict was? JUROR CAPUTO: It was a shooting . And the
verdict was, we couldn't find against the defendant beyond a reasonable doubt. THE COURT: So it was a not guilty verdict? Yes.
News? I watch the local news channel and Magazines, natural living kinds of TV, Good Wife, sit coms .
JUROR CAPUTO: the Internet for news.
things, health kinds of things. THE COURT: regularly? JUROR CAPUTO: THE COURT: Sit coms?
Any other sit coms that you watch
Yes . I like them all. Things like Parenthood .
JUROR CAPUTO:
that, those half hour shows occasionally. Romantic sit coms. THE COURT: JUROR FOLEY : Thank you.
My name is Korrie Foley, I'm in the
Swan and Sunrise area. I am a biotech sales rep, 12 years for Genatech. VA . My husband is an attorney, he's with the I have
I have two children, one is 13, one is 15.
never sat as a juror before.
And so entertainment is Glee
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and American Idol .
And reading habits, non-fiction.
News
is mostly CNN, NPR and on line. THE COURT: look at regularly ? JUROR FOLEY : THE COURT: Not really. Thank you. Mr. Bouley. Any newspapers or magazines that you
JUROR BOULEY:
My name is Mike Bouley, I live in I have been with Cleveland Not currently married.
the Wilmot and 22nd area.
Maintenance for about 15 years. No children .
And I haven't sat on a jury before.
Internet , Sunday newspaper , local news, national news . THE COURT: any particular shows ? JUROR BOULEY: THE COURT: No. We w atch Cops sometimes. And Ms. Selsor. How about entertainment television ,
Thank you, sir.
JUROR SELSOR:
My name is Katherine Selsor, I
work for Lewis Management, I manage home owner associations, I have been doing that for about three years . jury. I like fiction, the Good Wife, Dexter, that's about it. THE COURT: What would you say your primary I'm divorced , no children, I have never sat on a
source of news is then? JUROR SELSOR: Internet .
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THE COURT: at regularly?
Any magazines or newspapers you look
JUROR SELSOR: THE COURT: JUROR RYAN:
Yes, Cosmo. And Mr. Ryan.
All right, thank you.
I'm Ken Ryan, I live in the lower I'm a retired
foothills near River and Campbell.
physician and professor at the University of Arizona College of Medicine, 35 years. My field is, I had a
laboratory based position, my field is micropathology and infectious diseases and I did hold a variety of administrative position s in the various organizations in the Health Sciences Center during my career. My wife is a retired travel agent, she was in that business for 20 years. Our children are grown. I
have not been impaneled as a juror. My reading, my primary source of news, I read the New York Times . I don't take a local paper any longer. I
do watch usually the TV news at 10:00 o'clock . mostly local news .
The local,
I don't have any TV shows that I
follow although it's hard for me to avoid Law and Order around my house because my wife watches almost every episode. THE COURT: JUROR RYAN: Secondary exposure. Sort of like secondary smoke.
THE COURT: Any magazines you look at regularly?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 before. shows .
MR. KLEIN: THE COURT:
New York er. Thank you, sir. Mr. Dougherty. I live near I am a
JUROR DOUGHERTY:
Bernard Dougherty.
Wrightstown and Camino Seco, northeast Tucson.
lawyer, I practiced in Anchorage , Alaska for 20 years as a tax lawyer and now I lecture in international law, mostly in Europe. I live in Tucson but I am not here very often.
My wife was a legal administrator and now she teaches English as a second language. children . I have never sat as a juror. I have two grown I read a lot of The
non fiction, I read the Economist, foreign affairs . newspapers, the local paper and the New York Times. TV : NCIS , CIS, SCI, whatever, those kinds of
THE COURT:
Thank you, sir.
Mr. McClellan.
JUROR MCCLELLAN: Vail, 85641 .
I am James McClellan , I live in
I am currently unemployed, my last employer I worked with them
was with the U . S. Census Department. for about two months . I'm single.
I worked as an enumerator. No children. Never been a juror
And TV habits and reading, I read the Arizona And I watch local and Watch the Daily
Daily Star about every other day. national news. show. stuff .
Occasionally follow CNN.
Colbert report.
And then also just follow Internet
Typically like checking in with what is going on
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with the ICC, the International Criminal Court. THE COURT: How about entertainment television ? Entertainment television , crime
JUROR MCCLELLAN: dramas, comedies. THE COURT:
Any particular ones? N. C. I. S. comes to mind. Thank you. Mr. Scott.
All right.
JUROR SCOTT:
My name is Charles Scott, I live Right now I am a pool
in the Broadway and Swan area.
cleaner at Progressive Pools , I have been there for about a year. I'm single, I don't have any children. I have
not sat on a jury before. I don't really read. truck magazines. I get Import Tuner and I mainly watch
I get other magazines.
Myth Busters , stuff on discovery , history channel, Colbert report, Daley show, things like that THE COURT: JUROR SCOTT : What is your primary source of news ? Morning, local television.
Sometimes CNN, not really, though. THE COURT: Thank you. Ms. Dugdale. I live in the
JUROR DUGDALE: northwest part of town.
Pamela Dugdale.
I am a clerk at the United States Not
Postal Service, I have been there for 27 years. currently married.
I have got an adult child and a four I sat on a criminal trial in 2008
year old grand child .
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for sexual molestation, we found him guilty. And then I was in traffic court probably about 25 years ago as a juror . And we found him guilty but I
couldn't tell you all the specifics . I read the Daily Star. fiction and non-fiction books. I watch local news. Read I
Consumer Reports, Time.
work the swing shift so I don't see a whole lot of TV , what is on when I get home is The Closer, Criminal Minds , Cupcake Wars and C lean House, and it just depends on how bored I am as to what I watch. THE COURT: Thank you, Ms. Dugdale. Ms. Demers. I live
JUROR DEMERS:
My name is Deirdre Demers.
in central Tucson , I am not employed right now, I'm a student, I'm getting my masters in public health. finished my first year doing that. I just
I am not married, I I have
have one child , a son who is three and a half. never sat as a juror before.
All the reading I do is for
school, I don't read any newspapers or get any magazines. I don't have a TV and I don't keep up on the news. THE COURT: at all? JUROR DEMERS: THE COURT: No. Ms. Agorastos. I Any magazines or newspapers you look
Thank you, ma'am.
JUROR AGORASTOS: live in Sahuarita.
My name is Maria Agorastos .
I do hair, I have been doing it for 13
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years .
I'm a divorced mother of a 14 year old.
I have
never been on a jury before.
I like to watch Locked Up.
I watch local news and read People and Gourmet magazine. THE COURT: What is your primary source of news? The television .
JUROR AGORASTOS: THE COURT:
Local stations ? Yes.
Any newspaper you look at? Once and awhile. Ms. Brenton.
Thank you.
JUROR BRENTON: Amy Brenton , I live in the Tucson Mall area. I work for Flowing Wells school district. I am basically a He has I
have been there seven years. kindergarten aide . been there 17 years. clerical job there.
My husband works for U. P. S. He has a combination sort of I have two kids, 13 and 15.
I have
never sat on a jury before and I read a lot of food and fitness outdoor type stuff. THE COURT: source of news is? JUROR BRENTON: THE COURT: you watch regularly? JUROR BRENTON: I don't watch TV. THE COURT: All right. Thank you. Mr. De Leon. I get the Sunday paper. What would you say your primary
Any other entertainment television
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JUROR DE LEON :
Hello, I am Anthony De Leon.
grew up and live on the eastside . at Pima. and out. East campus.
I'm a full time student
I am also employed parttime at In
I am single, no kids, first time being summoned And don't really watch too much TV. I don't usually read
for jury duty .
Textbooks and Netflix and movies. any news . THE COURT:
Do you watch any news on television
or get it on the Internet? JUROR DE LEON : THE COURT: study at this point? JUROR DE LEON : next semester. THE COURT: Thank you. Ms. O'Brien. I'm starting my media arts degree No, sir.
Do you have a particular area of
JUROR O'BRIEN:
Kathleen O'Brien, I live in
Marana, I have worked for an attorney for ten years now. My husband works at Raytheon, he's a mechanical engineer , he's been there like 11 years. a juror. No children, never sat as
And I like to read fiction and non-fiction and I And local news.
read the Daily Star on the weekend. THE COURT:
Local television news?
JUROR O'BRIEN: Yes. THE COURT: Any magazines you look at regularly?
JUROR O'BRIEN: No.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that.
THE COURT: you like not to miss ?
Any entertainment television shows
JUROR O'BRIEN: THE COURT:
People's Court, Judge Judy,
Well, we are going to do better than
You are setting the standard pretty low. All right , thank you . JUROR TRUJILLO : Ms. Trujillo .
Karen Trujillo, I live in the
Alvernon and Speedway area. I am a trainer, a wellness trainer, self employed, I have been doing that since '88 but right now I am out of work. children . juror . Two adult children . Not married . Two
I have never sat as a Non-fiction. I like to
My reading is fiction .
watch light movies and light TV like Dancing With the Stars . And my news is mainly just little blips on the
Internet. THE COURT: at regularly? JUROR TRUJILLO : THE COURT: JUROR ROE: No. Mr. Roe . Any magazines or newspapers you look
Thank you, ma'am.
I'm Bill Roe, university area.
Recently I did a lot of natural resources consulting for nonprofit groups and state and local agencies. And then
more recently I have been heavily involved in political campaigns more as a volunteer . activist , neighborhood activist. My wife is a community I have two grown
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children . I have never sat as a juror before. very little TV . And I watch
Do look at the New Yorker and the Times
and I get two or three different news clipping services that cover Arizona and New Mexico politics. THE COURT: Okay, thank you, sir.
Ladies and Gentlemen , I remind you that you have the opportunity of coming up to the bench and responding to questions up here if you feel the need to do so because at this point I have to ask you if you or a close friend or a relative has ever been arrested, charged or convicted of anything other than a minor traffic offense? Small? JUROR SMALL : THE COURT: JUROR SMALL: THE COURT: JUROR SMALL : THE COURT: Court or City Court? JUROR SMALL : bond. THE COURT: you think ? JUROR SMALL : Yes. But it was in one of those courts do No, it didn't go to trial. Set a Wife, DUI. About how long ago? A year. In Pima County ? Yes. Misdemeanor DUI either in Justice Mr.
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THE COURT: Dougherty?
All right.
Anyone else?
Mr.
JUROR DOUGHERTY: as a juvenile. THE COURT: Okay.
Daughter in a drug related case
In Pima County? No, in Anchorage.
JUROR DOUGHERTY: THE COURT: JUROR RYAN: THE COURT:
Mr. Ryan, did you have your hand up? Yes. Could I come up?
Please come up.
JUROR RYAN:
My son was arrested and convicted of
a felony and served four months in Arizona for a class six felony. THE COURT: JUROR RYAN: What was the felony? It was called control of stolen
property , basically he stole it. THE COURT: JUROR RYAN: THE COURT: JUROR RYAN: THE COURT: How long ago was it? It was 11 years ago. In Pima County? Pima County. Okay, thanks.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them.
MR. KLEIN:
Did you want to ask if he had any
hard feelings toward the State? THE COURT: I will get into that in general with
MR. KLEIN:
I'm sorry, several times I looked
over and Mr. Roe appears like he may be dosing off. THE COURT: All right. We will watch that.
THE COURT:
All right.
Other hands?
JUROR MCCLELLAN: for drunk driving. THE COURT:
My cousin was arrested twice
Once for aggravated assault . Any of that in Pima County ? No.
About how long ago? Not sure about the drunk
JUROR MCCLELLAN:
driving charges but aggravated assault was earlier this year. THE COURT: Okay. Ms. Demers.
JUROR DEMERS:
My brother was arrested in high
school for theft and vandalism.
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THE COURT:
Was that in Pima County ? No, Pennslyvania.
JUROR DEMERS: THE COURT:
Anyone else ? My nephew was arrested for a drug
JUROR WARREN:
related offense and spousal abuse here in Pima County . THE COURT: About how long ago? Recently.
Within the last year? Yes.
Is the case pending? Yes.
Anyone else ?
Anybody that responded to that question, is there anything about the association with the criminal justice system by somebody you know or by yourself or a relative that you think will have any effect on your ability to be fair and impartial as a juror in this case? Of course you understand the Pima County Attorney's Office is the prosecuting authority in Pima County. Do any of you have any ill feelings as a result
of any of these things that you have related to the Court, any residual resentments against any part of the criminal justice system, whether it's the police or courts or defense attorneys or prosecutors or anything of that nature? Ms. Warren?
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Yes.
Against whom? Well, it was something that was By I guess the State.
JUROR WARREN:
said when he was in Court. THE COURT:
By the prosecutor ? Yes. Negative .
JUROR WARREN: THE COURT: inappropriate? JUROR WARREN: THE COURT:
You thought it was unjustified or
Very much so.
Do you think that will have an effect
on your ability to be fair and impartial to the State since they are represented by that same office? JUROR WARREN: THE COURT: I wouldn't think so, no . No.
You don't think so? No.
Anyone else ? Have
Let me ask the other side of that question.
any of you ever been the victim of a crime, ever had your car stolen, your home burglarized, been assaulted, anything of that nature? JUROR SCOTT: THE COURT: JUROR SCOTT : THE COURT: JUROR SCOTT : Mr. Scott.
I was a victim of a home invasion. How long ago? Two years ago. In Pima County? Yes.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ago. hand up? arrests. solved. ago.
THE COURT: prosecuted? JUROR SCOTT : THE COURT:
What was the result, was someone
No. All right. Ms. Dugdale.
JUROR DUGDALE : THE COURT:
I had a car stolen.
About how long ago?
JUROR DUGDALE: 2001. THE COURT: Okay. Mr. McClellan.
JUROR MCCLELLAN: I was stabbed in middle school with a pencil. Yeah. Okay. Thank you.
THE COURT:
JUROR O'BRIEN:
My car was stolen about 15 years
THE COURT: JUROR RYAN:
All right.
Anybody else?
Mr. Ryan. No
Home invasion 25 years ago.
Identity theft, two years ago.
And that one was
THE COURT:
Okay.
Mr. Small, did you have your
JUROR SMALL :
Car stolen about seven years ago. No arrests.
Home invasion about two years ago. THE COURT: Okay.
Mr. De Leon.
JUROR DE LEON : No prosecution. THE COURT:
House was robbed like two years
Any other hands?
Ms. Warren?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that? staff . stuff . there ?
JUROR WARREN: years ago. THE COURT:
My house was robbed about eight
Anybody that responded to that
question , is there anything about the circumstances of what you related, being the victim of a crime that you think would have any effect on your ability to be fair and impartial as a juror ? Okay. Have any of you ever worked in a jail or a
prison facility of any kind? JUROR FOLEY : Can I clarify? In my present
position actually the Department of Corrections is one of my major customers so I am out there a fair amount, at least four to six times a year. THE COURT: When you go out, what do you do out
JUROR FOLEY:
Usually just educational type
THE COURT: JUROR FOLEY :
Of what nature? Medical education, training of
THE COURT: JUROR FOLEY : THE COURT:
Staff rather than inmates? Right, no inmates. About how long have you been doing
JUROR FOLEY :
Three years.
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THE COURT:
Is it just one facility that you go
JUROR FOLEY : where it is .
All of them.
Mostly, depending on
The one here in Tucson, there's a major spot
that you go to within all of them and then Florence. THE COURT: Is there anything about that work
experience that you think might make it difficult for you to sit as a fair and impartial juror given the fact that this alleged offense occurred within the prison system? JUROR FOLEY : THE COURT: No. Okay. And Mr. Bouley.
JUROR BOULEY:
I had to fix an air condition er
for Pima College, it was a portable unit in the parking lot at the Wilmot prison . THE COURT: Okay, a one time situation ? A couple of times. It wasn't
JUROR BOULEY: actually in the prison. THE COURT:
About how long ago? Probably about five years ago.
JUROR BOULEY: THE COURT:
Anybody else ?
Have any of you taken your children to see an eye doctor since 2004 ? JUROR WARREN: THE COURT: Yes.
Do you remember about how long ago? Two years ago.
JUROR WARREN:
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THE COURT:
Do you remember who the doctor was? Dr. Flores.
Ms. Medina. When my son was born he had a
JUROR MEDINA:
bacterial infection, so I don't remember anything about it , it was just a couple months ago. THE COURT: Anybody else ? Ms. Agorastos?
JUROR AGORASTOS:
I take him every year, we go
every year, I just go to different doctors, I don't remember their names . THE COURT: Just for a normal yearly eye exam? Yes.
JUROR AGORASTOS: THE COURT: boxing or wrestling? MR. DIEBOLT: THE COURT:
Do any of you have any experience in
Judge, you had one more response. I'm sorry, I didn't see your hand.
JUROR BRENTON: I take my daughter for an eye exam every year. THE COURT: Usually you go to the same place? Usually we go to Occidental
JUROR BRENTON:
THE COURT:
So it's not always the same doctor? Not always the same doctor .
JUROR BRENTON: THE COURT: any experience?
Wrestling and boxing, anybody have
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Party . Fair. now. coached?
JUROR MCCLELLAN: and high school for P. E. JUROR MEDINA: for a middle school. it, it is his hobby. THE COURT:
Just wrestling in middle school
My husband was a wrestling coach That was his main thing, he likes
How long has it been since he
JUROR MEDINA: Just last year he coached. his first year not doing it. THE COURT: Okay. Mr. De Leon.
This is
JUROR DE LEON : THE COURT:
I work out at a boxing gym. Anybody else? Do any of you
Okay.
have any medical training other than what you have mentioned already? Ms. Medina? Just CPR, things like that . Is
JUROR MEDINA:
that what you are talking about? THE COURT: I meant more formal medical training. Okay, no . Have any of you ever Are you now or have you
Okay.
volunteered to do volunteer work? ever for any organizations? JUROR MCCLELLAN:
At the local Tucson Democratic
The Arizona Trail Association, the Tucson Book And there's one more but it's escaping me right
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JUROR MEDINA:
Just working whenever they had it
over at the Tucson Mall Park, that big medical community to help the homeless, I just cleaned teeth that day. THE COURT: Okay. Mr. Dougherty. For the American Red Cross and
JUROR DOUGHERTY:
the German Red Cross but as a lecturer and also for the Alaska Aids Association . THE COURT: All right. Ms. Brenton.
JUROR BRENTON: I volunteer at my kids' schools and also local food coop . JUROR DE LEON : I volunteer every year wherever I Whatever it may be.
can, school related, band related. THE COURT: Okay.
Ms. Demers.
JUROR DEMERS:
Previously at different types of
social service agencies on the east coast and here in Tucson, the International Rescue Committee. THE COURT: All right. Mr. Benjamin.
JUROR BENJAMIN : Association. THE COURT: JUROR RYAN: Okay.
Revolutionary War Veterans
And Mr. Ryan.
Mostly in the arts, I served on the
board for the Arizona Opera Company and the Arizona Theater Company and I give preview lectures for the opera. THE COURT: JUROR ROE: Anyone else? Mr. Roe.
Conservation groups and political
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candidates. THE COURT: Do any of you have any business or
social connection with anyone in the U.S. Attorney's Office or the County Attorney's Office or any other prosecuting office other than what you may have mentioned like Mr. Dingeldine? JUROR BOULEY: Richard Kingston. THE COURT: him? JUROR BOULEY: THE COURT: Yes, used to be. Ms. Demers. Mr. Bouley? My cousin used to be married to
He used to be a prosecutor I believe. Your cousin used to be married to
Okay.
JUROR DEMERS:
I'm sorry, this is vague, I think
my sister during her schooling interned with a district attorney but I'm not sure. THE COURT: JUROR ROE: Mr. Roe, did you have your hand up? I know the U. S. Attorney for
Arizona, I have worked with him previously. THE COURT: JUROR ROE: THE COURT: Okay. Yes. Anyone else ? Mr. Burke is it?
Any of you who just answered that question, is there anything about your association with some one in one of those offices that would have any effect on your ability to be fair and impartial ?
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Have any of you ever been a witness to a criminal act ever ? Where you were called to testify?
Ever been a witness to a criminal act that you were not called to testify ? For whatever reason it never
got to Court but still you witnessed something and maybe you reported it to the police? JUROR BENJAMIN: THE COURT: Mr. Benjamin?
Hit and run.
How long ago was that? Probably about 18 years ago.
JUROR BENJAMIN : THE COURT: JUROR ROE:
Mr. Roe. Forty years ago when I lived in
Taiwan there was a neighborhood incident with young children interfering with construction workers and the foreign affairs police were called in. THE COURT: Okay. Anybody else?
Ladies and Gentlemen , I think that's all the questions I intend to ask you . I like to always give you
a chance to tell us something we may have missed because sometimes jurors don't give information because we don't ask the right question. So is there anything that you can
think of that you would want to know if you were one of the lawyers trying to decide whether you could be fair and impartial in this case that we have not gotten into? McClellan. JUROR MCCLELLAN: My aunt is currently employed Mr.
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with the Iowa State Correctional facility as a nurse. THE COURT: Do you have much contact with her?
JUROR MCCLELLAN: I hear stuff from my mother about her about weekly. THE COURT: Okay. JUROR DINGELDINE: Mr. Dingeldine. My fiance is an ex
correctional employee and her ex-husband was in a correctional position. THE COURT: Did your fiance work in Arizona in
the Arizona criminal justice system? JUROR DINGELDINE: THE COURT: Florence.
For about how long? About a year maybe.
JUROR DINGELDINE: THE COURT: there ? JUROR DINGELDINE: THE COURT:
How long has it been since she worked
About 13 years. I am going to give the
Anyone else?
opportunity to the attorneys to ask additional questions if they have any. Mr. Diebolt. Thank you . Ms. Warren, I want to
MR. DIEBOLT: ask you a question.
I heard you a few minutes ago talk
about this but I didn't really catch everything you said about something else that happened. JUROR WARREN: It was something that was said in
Court by the attorney to his wife and his son was there.
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That said that they had gotten him, like we got him.
And
they were having problems, which I don't want to get into but the comment that was made, when it was said I felt it wasn't appropriate for his position , you know. MR. DIEBOLT: Did you say that that person that
you are describing was a prosecutor in a Court hearing or a Court trial? JUROR WARREN: MR. DIEBOLT: JUROR WARREN: MR. DIEBOLT: Yes. Well, it was on the outside. Outside of Court?
Oh, I see. Yes.
You felt that, correct me if I am
wrong, you felt that that was inappropriate type of behavior ? JUROR WARREN: MR. DIEBOLT: Yes, I did. I think the judge asked you if that
would impact your ability to sit here and make a decision based on this case? JUROR WARREN: environment . Well, this is a different
And the case itself is different. I'm not the prosecutor. No, you are not. Mr. Roe, did I write things down So you seem to be
MR. DIEBOLT: JUROR WARREN: MR. DIEBOLT:
correctly, I wrote here politics .
politically active , that seems to be a big part of your life?
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JUROR ROE: MR. DIEBOLT:
That is correct. Is it political activism , I don't
want to put you on the spot, that you participate in or do you mean like being a part of the political process? JUROR ROE: I work with a lot of candidates and
help advise them in fund raising and strategy in particular. MR. DIEBOLT: little awkward. doing that? JUROR ROE: convictions as well. MR. DIEBOLT: Would those strong convictions have I do enjoy it but I have strong And this next question may be a
You do it because you enjoy it, you like
any impact that you could anticipate in a trial such as this? JUROR ROE: MR. DIEBOLT: I don't think so. I just have a general question for Obviously you know
everyone and then I will sit down.
that both of these individuals were incarcerated in the Department of Corrections at the time of this incident, they were prisoners. Would that have any direct impact on
your ability to still listen to what happened? Let me put it another way. Do you think by
being a prisoner all your rights have been taken from you? Enough that you couldn't sit there and be fair and
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impartial? One more thing. Because they are in prison , the
heck with them , they deserve what they get; anybody have that mentality such that you can't make a decision based on the evidence presented? Anyone?
Thank you for your time . THE COURT: MR. KLEIN: Mr. Klein. Thank you. I don't have a good Let me ask you a
memory, I am going to have use notes.
couple more questions similar to those on the board . First of all I think a couple of you mentioned that you listen to talk radio, I think somebody mentioned 104.1. Is there anyone who didn't mention it who tends to listen to talk radio on a fairly regular basis? JUROR MCCLENNAN: NPR when I am in the car. MR. KLEIN: JUROR FOLEY : Anybody else ? Yes. Ms. Foley? Mr. McClennan?
Yes, I occasionally listen to
MR. KLEIN: Ms. Selsor? JUROR SELSOR: Yes, when I am with my dad he
makes me listen to Rush Limbough . MR. KLEIN: Okay. Mr. Dingeldine? Dave Justice. Is that the
JUROR DINGELDINE: right name?
It is a morning show. Can I move closer, Judge?
MR. KLEIN:
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THE COURT: MR. KLEIN:
Yes. I'm sorry, you listen to? Once in a blue moon I listen
JUROR DINGELDINE:
to talk radio like Dave Justice in the morning. MR. KLEIN: Anybody else ? Next question. Some
judges ask and some judges don't.
Any of you have bumper
stickers on your cars or personal trucks or anything like that? Mr. Roe? JUROR ROE: Presidential candidate from the last
presidential election. MR. KLEIN: Anyone else ? On one of our cars we have a
JUROR DOUGHERTY:
bumper sticker in support of Planned Parenthood. MR. KLEIN: All right . Anybody else ? Have any of you ever filed a civil
lawsuit where you are suing somebody else ? JUROR DUGDALE: I guess it was civil. in a car accident . MR. KLEIN: And you are trying to collect Where I was
JUROR DUGDALE: MR. KLEIN:
Yes.
Flip side of that, have any of you A good example is if you
ever been sued by somebody else?
are in a car accident, somebody says it is your fault and they sue you. Have any of you ever been sued? Ms Medina?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 up? answer.
JUROR MEDINA: I don't know if this is the right
MR. KLEIN:
Whatever your answer is is right. I am in proceedings, not really
JUROR MEDINA:
proceedings but I am getting my wages garnished for like credit cards, so I don't know if that counts. MR. KLEIN: Mr. Dougherty, did you have your hand
JUROR DOUGHERTY: malpractice . MR. KLEIN: Okay.
Yes, by a client for
Anybody else?
Does anybody have any physical problem , hearing, vision, any sort of physical problem that will interfere with you sitting in Court for like one and a half hours, two hours at a time? JUROR SCOTT : long periods of time . take it any more MR. KLEIN: Have you had difficulty paying Mr. Scott? I have trouble paying attention for I used to take Ritalin but I don't
attention so far today? JUROR SCOTT : MR. KLEIN: Not really. Because this is generally about the Do
length of time that we would go and then take a break . you think you would be able to do that? JUROR SCOTT : Probably.
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JUROR CAPUTO: MR. KLEIN:
I'm having trouble hearing .
So am I. It is the environment. The
JUROR CAPUTO: ventilation. MR. KLEIN:
Can you hear me okay? I can hear you okay, I can't hear
JUROR CAPUTO:
this gentleman very well. MR. KLEIN: Mr. Diebolt? That's okay. I'm just
It is important to be able to hear everybody but
we know now that we should talk a little louder so we can be heard over the ventilation system. Anyone else have any other physical problems that would make it difficult to sit one and a half, two hours at a time? Okay. I think I basically have like only two or
three more questions and they are going to sound fairly stupid, not to imply that the other questions didn't sound stupid too, but these are sort of experiences that sometimes lawyers have and we want to make sure that we don't have those experiences repeat themselves. So my first question is, is there anything about my physical appearance, Ms. Bensley's physical appearance, Jeff's physical appearance, Mr. Diebolt's physical appearance that makes you at all feel uneasy about serving on the jury ? Either you think just looking at the lawyer
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you can't believe the lawyer; anything at all that makes you feel uneasy or makes you feel like you can already judge the result in this case? Mr. McClellan, is that what you mentioned before? JUROR MCCLELLAN: just stands out to me. MR. KLEIN: Okay. Is that going to affect your No, it's the facial tattoo , it
ability to sit fairly and impartial ly? JUROR MCCLELLAN: I don't think so but I just
thought I should mention it. MR. KLEIN: Sure, I appreciate that. Anybody
else have a similar feeling, seeing the tattoos on Jeff's face? Okay. I won't finish the question. Ms. Selsor? Yes. What feeling does it give to Let me start
in the back row.
JUROR SELSOR: MR. KLEIN: you?
Okay.
Does it make you afraid? JUROR SELSOR: No, I just don't think it's very
professional or it is not something that is for me. MR. KLEIN: Would the fact that Jeff has tattoos
affect your ability to sit fairly in this case? JUROR SELSOR: THE COURT: at here. I don't think so.
That's the only question he's getting
Is it going to affect your ability to sit fairly So you can go ahead, Mr.
and impartially as a juror.
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Klein. MR. KLEIN: Who else in the back row? I think
there were a couple other people. JUROR WARREN: be fair, though. MR. KLEIN: anyone else ? That was Ms. Warren. Was there It wouldn't affect my ability to
Middle row?
Is it Ms. Agorastos? Yes. But it just makes you
JUROR AGORASTOS:
feel like he might be guilty but I'm not going to judge him just for the appearance, you know. MR. KLEIN: Okay. Let me put it to you this way.
Sitting here, you haven't heard any evidence yet, you know he's presumed to be not guilty, but seeing his tattoo , does that make you think he's guilty? JUROR AGORASTOS: that it is just a tattoo. MR. KLEIN: So you can put that aside? The Court It may. But I already know
reporter has to have an answer. JUROR AGORASTOS: MR. KLEIN: row? Okay. Yes. Anybody else in the middle
In the front three? Okay. Last question . Does anybody think that
they have any sort of psychic or intuitive ability to tell whether somebody is guilty or not guilty, telling the truth or not telling the truth or anything like that?
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Okay.
Thank you very much for your attention.
THE COURT: Do counsel pass the panel for cause? MR. KLEIN: THE COURT: Can we approach, Your Honor. Yes, you may.
MR. KLEIN:
I would like to request that the
Court strike Ms. Medina particularly since she indicated that her wages are being garnished for credit card bills . And likewise at this point now the Court knows with the exception of her I don't think there is any problem with any of jurors so we do have additional jurors available. That was one of the concerns that the Court had before. But I think given her expressed concern about finances and the fact that her wages are being garnished and that she needs to work. THE COURT: Oh, I see, I was wondering what your
point was but it has to do with her financial situation. MR. DIEBOLT: THE COURT: MR . DIEBOLT: THE COURT: He could strike her. Pardon? He can use a strike. Yes , he could. This is one of those
situations where it appears we have got plenty more, then
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we have to go through four more people to get one seat, to get somebody seated. But I think it is a fair comment, we
have moved along so it does sound like it will be a financial burden on her, so all right . MR. KLEIN: Thank you.
THE COURT:
Ms. Medina, we are going to excuse
you and ask you to report back to the jury commissioner's office on the first floor. Thank you very much for being
here and your willingness to serve as a juror. And we will fill number three . THE CLERK: THE COURT: Teresa Curtis. Ms. Curtis, have you heard the
questions that I have asked so far? JUROR CURTIS: THE COURT: Yes, I have .
W ould you have any yes answers to any
of the questions that I have asked? JUROR CURTIS: criminal charges. The one about a relative that had
I have a nephew who was arrested for
DUI and served some time. THE COURT: About how long ago? A few years ago in Maricopa
JUROR CURTIS: County.
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And with regard to volunteering, I volunteer for Junior Achievement every week and I volunteer for the Humane Society. JUROR CURTIS: THE COURT: Yes.
Would you respond to the board then . My name is Teresa Curtis , I live I work for I
JUROR CURTIS:
on the far east side , Broadway and Houghton.
Raytheon and I'm attached to a military unit on D. M. have been there for two months as a material planner. I am a widow, my children are grown. grand -daughter who is five. sit on a jury. I have a
I have not been selected to
I have a few authors that I like to read .
TV viewing, I'm a channel surfer, I watch alot of I just pick up at random a lot of different I don't read the
things that catch my interest .
newspaper, I don't watch television news, if I hear from somebody about something, I will do some research on it but I don't typically pay attention to the daily news at all. THE COURT: Would that research include the
JUROR CURTIS:
Sometimes I look up things on the
Internet or if I hear of a story I will watch the news on purpose on a particular day to get more information. THE COURT: Any newspapers or magazines that you
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read? JUROR CURTIS: THE COURT: Guidepost is about the only one.
Any entertainment television ? I do like the half hour comedies,
JUROR CURTIS:
the Thursday night lineup. THE COURT: What would that be? It is like The Office and Half hour comedies all night. No other yes answers to
JUROR CURTIS:
Community and Out Source. THE COURT: anything else ? JUROR CURTIS: THE COURT: MR. KLEIN: MR. DIEBOLT: THE COURT:
Thank you.
No, I don't believe so.
Counsel pass the panel for cause? Yes, Your Honor. Yes, Your Honor . That means, Ladies and Gentlemen ,
that all of you have been found to be fair and impartial. What we have left to do is to shrink your number down to the eight people plus one alternate that will actually sit as jurors. And in order to accomplish that we will take a
recess and we will ask all of you that have been responding to questions , everybody seated up here to return back to the courtroom, it is about 25 minutes after 12 now, at 1:45. 1:45.
And during this recess please do not discuss the case, the little you know about it with each other or with
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anybody else .
Keep an open mind, take with you all your And those of you who have not been
personal possessions.
responding to questions should report back to the jury commissioner's office on the first floor, your participation in this particular trial is now at an end, thank you very much for being here. The record will show the absence of the jury, the presence of counsel and the defendant. Counsel , I would
ask that you exercise your strikes before you take your own lunch recess. MR. KLEIN: Anything else before we recess? No. Oh. We don't need to decide it
now but when we were talking about the nature of the prior conviction for Mr. Schwartz, there's also the guilty plea that he made that specifically does refer to fraud or deceit. And so I think that the nature of that guilty
plea is relevant, but again that's just something we can talk about later. THE COURT: What specifically was it, that's the
federal charge you are talking about? MR. KLEIN: Right. That was conspiracy to
control, to obtain a controlled substance by fraud or deceit. THE COURT: in recess . Okay. All right . The Court will be
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((Whereupon the noon recess is taken and the trial proceeds as follows.))
THE COURT:
The record will show the presence of
counsel and the defendant and the absence of the jury panel . Anything before we bring the jury in, counsel ? MR. KLEIN: Judge, I did want to follow-up on the I believe Ms. Bensley tends And given the
issue about the guilty plea.
to refer to it in her opening statement.
fact that the nature of the crime inherently deals with fraud and deceit, I think it is appropriate for the jury to hear the actual charge on that count. THE COURT: MR. DIEBOLT: Mr. Diebolt. Judge, I would object to that.
Originally I objected to the plea agreement being referred to or introduced into evidence. conviction for that. There was never a
In fact is there has to be a Fraud isn't necessarily a
conviction for that to happen.
crime of moral turpitude, nor has it been determined to be a crime of dishonesty. So based on those factors I would ask the Court to not allow counsel to go into it, a plea agreement that was never entered into as a conviction . the nature of it. THE COURT: The Court will permit the impeachment And certainly not
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of the defendant based on his admission of guilt with regard to a crime involving fraud. MR. KLEIN: No, Your Honor . Anything else? Oh, I'm sorry, we
are going to invoke the rule.
Sergeant Gonzales from the She wasn't listed by
Department of Corrections is here. the State as a witness. THE COURT:
Anybody who expects or intends to be
a witness in the case must stay outside the courtroom until you are called as a witness. THE BAILIFF: THE COURT: You may bring them in.
Your Honor, the jury panel. The record will
Please be seated.
show the presence of the jury, counsel and the defendant. Ladies and Gentlemen , the clerk will now call the names of those selected to sit as jurors in this case . your name is called, please come forward and have a seat as directed by the bailiff . THE CLERK: Teresa Curtis. As
Paula Warren. Scott Benjamin . Korrie Foley. Michael Bouley Katherine Selsor. Charles Matthew Scoot. Amy Brenton . Anthony De Leon.
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THE COURT:
Those who were not selected to sit as
jurors should report back to the jury commissioner's office on the first floor. We thank you for your
participation in this process here today and for your willingness to sit as jurors. You are now excused .
And Ladies and Gentlemen, those who have been selected, if you would please stand and face the courtroom clerk and raise your right hand to be sworn as jurors .
((Whereupon the jurors are sworn.))
THE COURT:
Please be seated.
Ladies and
Gentlemen, you have had handed out to you a three ring notebook that includes the Court's preliminary instructions which are on blue paper and I will read those instructions to you now and ask you to read them along with me. You will have these instructions throughout the
trial so you can refer back to them at any time you would like. Ladies and Gentlemen, now that you have been sworn, I will tell you something about your duties as jurors and give you some instructions in an effort to help assure a fair trial. At the end of trial after you have
heard all the evidence I will give you more detailed instructions and those instructions will control your
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deliberations. If you have any questions about these instructions, did not hesitate to ask for clarification. The following rules govern your conduct as jurors during the trial. I am going to give you some dos and
don'ts, mostly don'ts, which I will call the admonition. Do not reach any conclusions about any fact or about the outcome o the case until you have heard all the evidence, the closing arguments and the final instructions on the law. Form your final opinions only after you have
had an opportunity to discuss the case with each other in the jury room at the end of the trial. Do not discuss the case. Do not discuss the
evidence with each other until all the evidence has been presented and you have retired to deliberate on the verdict at the end of trial. Until that time you should If
not discuss any aspect of the case with each other.
you have a question or need additional information, submit your request in writing and I will discuss it with the attorneys. Do not talk to anybody about the case or about anyone who has anything to do with it, and do not let anyone talk to you about those matters, until the trial has ended and you have been discharged as jurors. prohibition about not discussing the case includes This
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communicating with anyone about the case using e-mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, I-Phones, I-Touches or any other form of electronic communication. You are not permitted to blog
about the case or your experience as a juror on this case until the trial has ended and you have been discharged as jurors. Until then you may tell people that you are on a
jury, and you may tell them the estimated length of the trial, but do not tell them anything else except to say you can't talk about it until the trial is over. It is your duty not to speak with or permit yourselves to be addressed by any person on any subject connected with this trial. This includes the lawyers, the If someone should try
parties, witnesses and spectators.
to talk to you about the case, stop him or her and walk away. If you should overhear others talking about the If anything like this does
case, stop them or walk away.
happen, report it to me or a member of my staff as soon as you can. To avoid even the appearance of improper conduct, do not talk to any of the other parties, lawyers, witnesses, the spectators or media representatives about anything until the case is over, even if your conversation with them has nothing to do with the case. If you
inadvertently have contact in the hallways or elevators
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going to or from the courtroom, there is nothing wrong with saying good morning or good afternoon, but your conversation should end there. In no other way can the
parties be assured of the absolute fairness they are entitled to expect from you as jurors. The lawyers and parties have been given the same instructions you have about not speaking with you. If the
attorneys, parties or witnesses do not acknowledge you outside of the courtroom, or avoid riding with you in the elevator, they're not being rude, they're just following this rule forbidding contact. Please instruct family and friends not to enter the courtroom or hallway in front of the courtroom for any reason during trial. If you arrange to meet family or
friends at the courthouse during trial, please meet them on the 1st floor or outside the courthouse. In order to minimize the risk of accidentally overhearing something about the case, I ask that you wear your juror badges in and around the courthouse so people will recognize you as jurors. Each of you has gained knowledge or information from the experiences you have had prior to this trial. Once this trial has begun, you are to determine the facts of this case only from the evidence that is presented in this courtroom. Arizona law prohibits a juror from
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receiving evidence not properly admitted at trial. Therefore, do not do any research or make any investigation about the case on your own. Do not view or
visit the locations where the events of the case took place. Do not consult any source such as a newspaper, a
dictionary, a reference manual, television, radio or Internet for information. If you have a question or need additional information, submit your request in writing and I will discuss it with the attorneys. There may or may not be news media coverage of this trial. If there is, do not read, watch or listen to If
any newspaper, television, Internet or radio accounts. you inadvertently see, hear or read something about the case, end your exposure to it immediately and please let the bailiff or me know as soon as possible. If you have cell phones, laptops or other communication devices, please turn them off and do not turn them on while in the courtroom. You may use them
only during breaks as long as you do not use them to communicate about any matter having to do with this case. You are not permitted to take notes with laptops, blackberries, tape recorders or any other electronic device. You are only permitted to take notes on the Devices that can take
notepad provided by the Court.
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pictures are prohibited and may not be used for any purpose. During the trial I suggest that you avoid alcoholic beverages in favor of caffeinated beverages during the noon recess in order to help you stay alert during the afternoon. These rules of conduct are very important and a violation of any of these rules by anyone could force a retrial of the entire process. Before each recess I probably will not repeat the entire admonition I have just given to you. I will
probably give you some shortened version as a reminder. However, even if I forget to make any reference to it, remember that the admonition still applies at all times during the trial. Writing pads and pens have been provided for your use in taking notes. notebooks. These notebooks should not leave the courtroom but should be left on your seats during recesses. Take as They are located in the juror
many or as few notes as you wish to help you remember the testimony, but do not let note taking distract you from hearing and seeing the evidence as it is presented. Transcripts will not be provided, nor is testimony likely to be repeated after a witness has been excused from the
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witness stand. Whether you take notes or not, you should rely on your own memory of what was said and not be overly influenced by the notes of other jurors. You may not
share your notes with your fellow jurors until you deliberate at the end of the case. notes will be kept confidential. bailiff will have access to them. At all other times the No one but you and the After you have reached
a verdict, the bailiff will destroy your notes. Criminal trials usually proceed in this order. The prosecutor who represents the State will make an opening statement previewing the case. The defendant's
attorney may give an opening statement either immediately after the State's opening or after the State has presented its evidence. These statements are not evidence. They
are statements of what each side thinks the evidence will be and it is hoped that they will help you understand and follow the evidence that will be presented. The State will present its evidence, the defense is not required to present any evidence but may do so. the defendant does present evidence, the State may then present rebuttal evidence. Each witness is subject to If
direct examination, cross examination and redirect examination. At the end of the case the attorneys will present
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their closing arguments.
The State is given the right to
argue first and last because the State has the burden of proof. After all the evidence has been presented, I will read the final instructions which contain the rules of law that you must follow in deciding the case. You will deliberate in the jury room. Once you
agree on a verdict, you will be brought into the courtroom where the clerk will read the verdict in the presence of the parties. You have two major duties as jurors. To
determine the facts and to attempt to reach a verdict by applying the law to the facts. You must decide the facts You must not
only from the evidence produced in Court.
speculate or guess about any fact and you must not be influenced by sympathy or prejudice. You will hear the evidence, decide the facts and then apply those facts to the law that I will give you. That is how you will reach your verdict. In doing so you You
must follow the law whether you agree with it or not.
must not take anything I might say or do during trial as an indication of any opinion I may have about the facts. You and you alone are the triers of the facts. Finally you are not to consider the possible punishment that could be imposed.
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You must determine the facts from the evidence produced in Court. Evidence includes the testimony of
witnesses, exhibits offered and admitted by the Court and fact stipulations, that is, agreements between the parties. Evidence does not include the lawyers' statements. The statements and arguments of the attorneys
may help you understand the law and the evidence but they are not evidence in and of themselves. If I sustain a lawyer's objection to a question, you must disregard the question and not guess what the answer to it might have been. If I order certain testimony stricken from the record, you should disregard that testimony. A lawyer's question is not by itself evidence. If I do not allow a particular exhibit to be received as evidence, that exhibit is not evidence for you to consider. Do not concern yourself with the reasons for Do not regard
my rulings on the admission of evidence.
those rulings as any indication from me as to the credibility or weight that you should give to any evidence that has been admitted. It is up to you to decide what
testimony to believe and how much weight to give it. In determining the credibility of witnesses, you should use the test for accuracy and truthfulness that
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people use in determining matters of importance in every day life, including such things as their ability and opportunity to observe; their memory; their manner while testifying; any motive or prejudice they might have; any inconsistent statements they may have made. You should
evaluate the testimony in light of your common sense and experience. The rules of evidence ordinarily do not permit the opinion of a witness to be received as evidence. However, a witness may give an opinion on a subject upon which a witness has become an expert because of education and/or experience. Expert testimony should be used by you You are not
like the testimony of any other witness. bound by it.
You may accept it or reject it in whole or
in part and you should give it as much weight as you think it deserves considering the witness's qualifications and experience, the reasons given for the opinions and all the other evidence in the case. The jurors are not permitted to ask questions directly of witnesses. left to the attorneys. The examination of witnesses is However, during the examination of
witnesses, you may wonder why certain questions are not asked by the attorneys. In the event you do have an
important question that you think should be asked, write it down on the question forms provided in your juror
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notebook.
After the attorneys have finished questioning a If you do,
witness, I will ask if you have a question.
raise your hand, your question form will be collected by the bailiff who will bring it to me. in writing or it cannot be considered. The question will be reviewed with the attorneys and if I decide that the question is a proper one, it will be asked. Keep in mind, however, that the rules of The question must be
evidence or other rules of law may prevent some questions from being asked. I will apply the same standards to your
questions as I do to the questions asked by the attorneys. Do not be discouraged if a question you submit is not asked. Do not speculate as to why it was not. The
fact that a juror's question is not asked does not indicate the question was not a good one or it should not have been submitted. It merely means for some legal
reason it could not be asked. During the course of the trial, recess or break periods may be longer than anticipated or announced by the Court. The delays are necessitated by either matters
related to this trial or to the Court's obligations to manage other cases pending before the Court. I apologize
in advance for any inconvenience this may cause and hope that you understand these delays are simply unavoidable. The law provides for a jury of eight persons in a
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case like this.
In any case lasting several days we seat
one or more alternate jurors so that if a juror becomes ill or has a personal emergency, the trial can continue without that juror. In this case one alternate will be
chosen randomly by the clerk at the end of the case. Until then each of you must consider yourselves a juror in this case. Please do not be concerned with who may or may
not be an alternate. The law does not require a defendant to prove his innocence or to present any evidence at all. is presumed by law to be innocent. A defendant
The State must prove This
the defendant guilty beyond a reasonable doubt.
means the State must prove each element of the charge beyond a reasonable doubt. This burden never shifts throughout the trial. If the State does not meet this burden of proof, you must find the defendant not guilty. If at any time during the trial you have difficulty hearing or seeing something that you should be hearing or seeing, or if you have personal distress for any reason, please raise your hand and let me know. It may seem that we are taking your presence for granted, but I assure you that we are not. We are very
mindful of the voluntary nature of your service and we will make every effort to use your time efficiently and to
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make you as comfortable an possible during your service. We have provided carafes of water and cups. you want some water, simply pour yourself a cup or ask another juror to pass it to you. permission to do this. You do not need to ask If
If you wish to bring in your own However, please do
container of water tomorrow, you may.
not bring any other beverage into the courtroom. Ladies and Gentlemen, that concludes the general preliminary instructions. I will now read the charges and
the instructions that apply specifically to these charges. The defendant is charged as follows : that on or about the 27th of September, 2008, Jeffrey Allen Wood assaulted Brad ley Schwartz causing temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part, or a fracture of any body part. The State has charged the defendant with the crime of aggravated assault. The defendant is presumed
innocent , you must not think the defendant is guilty just because of this charge. The defendant has pled not guilty. This plea of
not guilty means that the State must prove every part of the charge beyond a reasonable doubt. The crime of aggravated assault requires proof that the defendant committed assault, which requires proof
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that the defendant intentionally, knowingly or recklessly caused a physical injury to another person; and the assault was aggravated by the fact that the defendant committed the assault by any means of force that caused temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part or a fracture of any body part. Intent or intentionally as used in these instructions means that a defendant 's objective is to cause that result or to engage in that conduct. Intent may be inferred from all the facts and circumstances disclosed by the evidence. It need not be
established exclusively by direct sensory proof. The existence of intent is one of the questions of fact for your determination. And that concludes the preliminary instructions . And the State may present opening statement when you are ready, Mr. Diebolt. MR. DIEBOLT: Thank you , Your Honor. I am just
going to take a few minutes to talk to you about the case. It is a very simple case, there is nothing overly complicated about it and therefore it will probably be short in duration and we will probably finish by tomorrow. It is 2:00 o'clock , we will have some witnesses this after noon. The very first witness you will hear from will
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be Brad Schwartz.
Brad Schwartz is an inmate in the So is the defendant , Mr. Wood. Can we
Department of Corrections. MR. KLEIN: approach ? THE COURT: Yes.
Judge, I am going to object.
MR . KLEIN:
I believe the record will reflect
that Mr. Diebolt said Brad Schwartz is an inmate in the Department of Corrections, so is Mr. Wood. That's
improper to say that he is currently in the Department of Corrections . THE COURT: MR. KLEIN: Why? Why? It is totally irrelevant as to
whether he is currently in the Department of Corrections . THE COURT: Mr. Klein, the evidence surely will
show or indicate it was the case that they were both in prison at the time of this offense. MR. KLEIN: 2008. That's true, back in September of
There's no basis and no reason for him to say that
Mr. Wood is still in the Department of Corrections . THE COURT: All right. Noted. No further
reference to the current status of either gentleman is to
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made during the trial.
MR. DIEBOLT:
Both Mr. Wood and Mr. Schwartz were
housed at a unit called the Rincon unit, which is a division of the Arizona Department of Corrections, it happens to be in Tucson. all throughout the State. There are different divisions Parts of the State.
Being housed in the Department of Corrections that particular unit allows inmates to access classes if they so choose . There is a particular class, it happened
to be a creative writing class, it doesn't really matter , where a volunteer comes in and teaches, teaches a class to inmates. class . Mr. Schwartz was intending the class. In the It is an opportunity for inmates to attend this
classroom setting which is inside the prison in 2008 the inmates have access to leave and go to the inmate bathroom or leave and go to get a drink from the drinking fountain which is right adjacent to the classroom. There are several inmates in the room, Mr. Schwartz leaves to go to the bathroom, on the way back from the bathroom, which is all pretty close in area, he gets a drink from the drinking fountain. At the drinking
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fountain he is confronted by the defendant. And I don't know how other to put it. two ways to put it. kicked his butt. There are
Mr. Wood assaulted him and Mr. Wood
I hope that doesn't offend anyone, but
he basically pummeled him to the point that he caused fractures to Brad Schwartz 's face, eyes and nose and extensive bleeding. Mary's Hospital. He was immediately taken to Saint
After Saint Mary's Hospital he was
transported to Maricopa County Medical Center via helicopter to under go surgery and repair for the injuries he suffered . At the time Mr. Schwartz was assaulted , he tells one of the corrections officers it was Wood or Woods. He's got tattoos all over him. He's got a shaved head.
And then eventual ly Ian Friedlander who is an investigator with the Department of Corrections, he shows a six pack, a six photo array to Brad Schwartz and Mr. Schwartz says, that's the guy that did it. As soon as this happens , this incident happens, corrections officers came. You will hear from two or
three corrections officers who were working at the prison at the time . And you will hear specifically as to what And the first one was Officer
the defendant told them.
Fairchild and she will tell you that the defendant Mr. Wood says, I was the only one involved in the
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incident . Mr. Wood, the inmate, was then later interviewed if you will by the investigator, which is Friedlander , and he made statements to Friedlander about his participation in the assault. There's a few things to remember . I asked you a
brief question earlier about if any one of you felt that because you are in the Department of Corrections, housed there , that you don't have a right to, well, that all your rights are removed. And if any one of you believed that. And the reason that we are
And no one raised their hand.
here is because one inmate assaulted another inmate and caused temporary but substantial injury, that is how the law reads, temporary but substantial, by the damage he did. And there's consequences for that. why we are here. And that's
In addition to, well, what you do is you
listen to testimony, that's basically what your responsibility is. are. You decide what the facts of the case
And how you do that is you bring in your common
sense, your life experiences, you listen to the people who testify under oath on the stand and you ask yourself a question . The question is, am I firmly convinced that the
defendant is guilty of committing assault ? And I would submit to you that at the conclusion
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of this case you will be firmly convinced .
There are no
cuts, no injuries , no bleeding from the defendant whatsoever at the conclusion of the incident . And the defendant -- I am going to sit down because I want to get to Brad Schwartz, I want to put him on the stand and get him sworn in and have him tell you what happened. I would ask you to listen carefully, take
notes either mentally or on paper, confer with each other at the conclusion of this fairly short presentation of evidence , and I will be asking you to come back with a guilty verdict. Thank you. Mr. Klein, do you wish to make an
THE COURT: opening at this time? MR. KLEIN: THE COURT: MS. BENSLEY:
Ms. Bensley will, Your Honor. Ms. Bensley, you may proceed. This case is really about a man who
was convicted of a crime and wasn't happy about that conviction. That man is Bradley Schwartz . He was so
unhappy about that conviction that he wanted the State to pay for it. So much so that he sued the State of Arizona
in a civil lawsuit in an attempt to manipulate the system. Now let me be very clear, we are not here because of the civil lawsuit. But that civil lawsuit is important
because Mr. Schwartz was sent to prison and he needed a basis to sue the State . Mr. Schwartz was in other fights
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while he was in prison.
And you are going to hear Weeks and
testimony about that from various witnesses.
even months pass after those fights and no lawsuit was ever filed. In those other fights Mr. Schwartz did not Those injuries were not severe Mr. Schwartz
sustain serious injuries.
enough to warrant the filing of a lawsuit . needed more to manipulate the system.
You will also hear testimony that Mr. Schwartz did not want to enter into protective custody, or PC as it is often referred to. Witnesses from the s tate prison,
from the Department of Corrections will testify that the prison is set up in a way that it can offer protection for inmates that either fear for their safety or are in jeopardy . An inamte can ask to enter into protective
custody or the prison can place him into it involuntarily. Mr. Schwartz had been beaten up before, he had been offered that protective custody and he refused to enter into it. Even signing a statement saying so. When all of the circumstances are taken together, we are going to ask you to find that Mr. Schwartz instigated a fight with Mr. Wood to form the basis for his lawsuit. Mr. Wood then acted in self defense in response
to this instigation by Mr. Schwartz . Mr. Schwartz isn't going to admit that he instigated the fight . And he's not going to admit that
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Mr. Wood was defending himself.
Although Mr. Schwartz
won't admit it, there will still be circumstantial evidence to support this was self defense . Now there will also be no evidence that Mr. Wood received any injuries during this incident. But the law
does not require that somebody receive injuries before they can act in self defense. After the fight Mr. Schwartz took steps to exaggerate the incident . He overstated how the fight
occurred and tried to make it involve more than just his bare hands. Witnesses will testify that no weapons of any
type were found by any of the prison guards. He also did everything he could to aggravate the injuries he did sustain so they would look more serious. After the guards became aware of the incident, Mr. Schwartz was taken to the medical unit. Nurse
Quattlebaum who is a nurse for the prison, for the Department of Corrections, she treated Mr. Schwartz in that medical unit . Ms. Quattlebaum will testify that Mr.
Schwartz 's actions after the injury included blowing his nose. Mr. Schwartz k new that if he had an injury around
his eye area, that he should not blow his nose. Mr. Schwartz will admit that when he was a doctor he would tell his patients not to blow their nose when they had this type of possible injury.
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The nurse had even already instructed him not to
Because he was previously a doctor, he knew that blowing his nose would cause his eyes to actually protrude , making the injury look worse. he did it any ways. not to do it. Final ly he was very vocal about how he was being treated medically in order to manipulate the system involving his medical care, all of it for the benefit of his lawsuit. As the jury you can make assessment s about the credibility of witnesses. As part of your assessment of Knowing all that,
The nurse even had to warn him again
the credibility of Bradley Schwartz you will hear that Mr. Schwartz has one felony conviction and that he also pled guilty in a separate case involving a charge of conspiracy to obtain a controlled substance by fraud or deception. Mr. Schwartz got what he wanted and even more. He tried to manipulate the medical system and the legal system. As the jury don't let him manipulate this
criminal trial . THE COURT: MR. DIEBOLT: The State may call its first witness. The State will call Bradley
THE COURT:
We will need time?
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MR. DIEBOLT: THE COURT:
Just a few minutes. Ladies and Gentlemen, the bailiff
will escort you to the jury room for a few moments until we get the witness into the courtroom. MR. DIEBOLT: THE COURT: Judge, may I address the Court. Let the record reflect the absence of
the jury, the presence of counsel and the defendant. MR. DIEBOLT: It is my understanding Mr. Schwartz
is in chains and I talked to the corrections officers, or the officer, excuse me, and they don't have a problem removing it but they would need the Court's okay for that. THE COURT: That's fine.
Mr. Klein, I take it from the record so far what you want a self defense instruction? MR. KLEIN: Yes, actually, Judge, I can give you
those jury instructions. THE COURT: as I can get. You may bring in the jury. THE BAILIFF: THE COURT: The jury is entering. Please be seated. The record will I appreciate as much advance notice
show the presnce of the jury, counsel and the defendant. And the State may call its witness. MR. DIEBOLT: THE COURT: The State calls Brad Schwartz. Mr. Schwartz, if you would face the
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clerk and raise your right hand to be sworn.
BRADLEY SCHWARTZ having been duly sworn, takes the witness stand and testifies as follows.
DIRECT EXAMINATION MR. DIEBOLT:
Q.
A.
Would you please introduce yourself to the jury. My name is Bradley Allen Schwartz. Mr. Schwartz, do you have a background and
Q.
training and education and experience as a doctor in Tucson? A. Yes, I do. How long were you practicing, approximately? In Tucson? In Tucson? From 1998 up until October, 2004. I want to ask you several questions about
Q.
A.
Q.
A.
Q.
September, 2008 and I want to go backwards from there. Prior to September of 2008 had you been assaulted in the Department of Corrections? A. Prior to September? Yes.
Q.
And on September 27th, 2008, you were in fact
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housed in the Rincon Unit in the Department of Corrections; is that also correct? A. Yes, that's correct. On that particular day, which was September 27th,
Q.
2008, I want to talk about the incident and I want to talk about surrounding factors. Right before the assault
occurred, what were you doing? A. I was in a classroom, there was a class that was
offered called creative writing that was given by a professor who had come from the University of Arizona, Professor Shelton. And the class ran from I would say
about 12:00 o'clock to about 2:00 o'clock every Saturday. So I was in the classroom attending that class.
Q.
At some point during the class -- were there
other inmates in the class? A. There were about maybe 15, I would say, 15 to 18 That Saturday there were a
people that usually went.
couple people missing, so maybe 12, 13 people in the class.
Q.
And are inmates that are housed there allowed to
leave the classroom and use the facilities? A. Yes. And did you in fact do that at some point during
Q.
the class? A. Yes, with about 15 minutes remaining, maybe 20
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minutes remaining in the class, I got up and stretched my legs and went to the bathroom which was, the classroom was situated down a long corridor and at one end of the corridor it's locked but the other end where we came into the corridor into the classroom is a sort of outdoor quad, if you will. of that quad. it's outdoors. An open air quad. And there are offices off
And the bathroom is off of that quad, so I walked down the hallway to stretch my
legs and I went to go to the bathroom so I am physically outside the building, and then you step into the bathroom at that time.
Q.
A.
So you used the restroom; is that correct? Yes. What did you do after that? I was just looking up at the sky, just enjoying It was a nice sunny day out and then I went back
Q.
A. the day.
down the corridor towards the classroom again toward the water fountain.
Q.
A.
What happened at that point? At that point Mr. Wood was at the water fountain.
I didn't really see what he was doing, I assumed he was drinking or washing something off. And I just had my
hands in my pockets and was looking at the ground, basically just waiting.
Q.
Did you go up to the water fountain itself?
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A.
I didn't get there, I don't believe I even got a
chance to make it to the water fountain, I think I was just standing with my back up against the wall looking at the ground when things happened.
Q.
A.
Tell the jury about things happening? Well, like I said I had my hands in my pocket, I
was looking at the ground, I really wasn't expecting anything. in my face. And he wheeled around 180 degrees and struck me And I think, what I remember is that I went And he just started pummeling me. And
down immediately.
at some point I believe I even said to him, all right, already, you got me enough; enough already; and he just kept going.
Q.
position? A.
Were you in a standing position, a kneeling
No, I was down on the ground. And do you know if he was using his fists, his
Q.
hands, his feet or could you tell? A. It was, from what I remember, it was maybe 99
percent his hands, maybe he kicked me once or twice.
Q.
A.
And when he kicked you were you on the ground? I was on the ground. Do you remember, could you even estimate how many
Q.
times you were struck? A. You know, when you are going through something
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like that, it feels like interminable. maybe 20, 25 times.
I would say it was
Q.
to him? A.
During that time do you remember saying anything
I said, you got me enough already.
Stop.
Q.
Let me stop you there and ask you, right before
he wheeled around and took a swing at your face and struck your face, did you say anything to him? A. I said absolutely nothing. Did you, I guess maybe in prison you can look at
Q.
people the wrong way, did you give him a dirty look? A. No. Do you remember him saying anything to you? No, he didn't say anything, he had his back to
Q.
A. me.
Q.
And during the time he was striking you, do you
remember him saying anything to you? A. I could have sworn I heard him a couple times
calling me a Jew, or dirty Jew, or something like that, something of that nature.
Q.
A.
Are you of the Jewish faith? Yes. At some point, obviously at some point this
Q.
incident stopped and he stopped hitting you or striking you; is that correct?
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A.
Yes. What happened at that point? He just calmly walked away. Walked back into the
Q.
A.
classroom.
Q.
A.
Did he say anything then? No, nothing at that point. Where were you when this pummeling was over? I was on the floor and I just, I kind of inched I found my eye I was a
Q.
A.
my way up on the wall to pick myself up.
glasses which were kind of mangled at that point.
little woozy as you can imagine and I was walking down the hallway just kind of holding onto the wall as I was walking. I was dripping blood and I walked toward the
open quadrangle there and there were officers milling around because they were at the time of their shift change so you had officers leaving and officers coming so you had double the standard number of officers at that time at around close to 2:00 o'clock. me was an Officer Powell. MR. KLEIN: narrative. THE COURT: MR. DIEBOLT: Sustained. Judge, I am going to object to the And the first one that saw
Q.
Was Officer Powell one of first officers you came
into contact with?
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A.
He was the first one. What happened with Powell? Powell immediately called ICS which is, it is
Q.
A.
some kind of emergency incident, I'm not sure what the abbreviation stands for, and that's basically to lock down the yard and to get officers to come assist him.
Q.
A.
Were you bleeding at that time? Oh, I was bleeding all over the place. What was your, let me skip that. After Powell
Q.
calls ICS, what happens? A. After Powell calls ICS, anyone that is on the
yard that's not on the rec field, which is a fenced-in area where guys were at rec that morning, they were already enclosed, they don't need to be locked down, but guys that are walking around on the rest of the yard, they are told to lock down immediately. Officers come to And
assist whoever the officer is who is calling the ICS. that's basically it.
Q.
A.
Did you go back in the classroom yourself? No, I didn't. At some point I remember that one
officer accompanied all the people -MR. KLEIN: again. THE COURT: continue. Overruled at this point, you may Judge, objection to the narrative
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THE WITNESS:
At some point I remember an officer
going into the classroom and, well, let me take a step back. First they wanted to find out who did this to me
but afterward I remember them taking all the people out of the classroom and accompanying them back to their cells. MR. DIEBOLT:
Q.
A.
Did you know the person that did this to you? Meaning know who did it or know him personally? That's a good question. Did you ever know him
Q.
personally prior to this incident? A. No, maybe I said two words to him before, ever. Had you seen him before? Yeah, I had seen him in the classroom. Had you ever had any problems with him? No, absolutely not. Did you attempt to tell the officers who had done
Q.
A.
Q.
A.
Q.
this to you? A. Yeah, I did. Did you describe him to the officers? Before I even said anything, they said -MR. KLEIN: Judge, I am going to object to what
Q.
A.
the officers said as hearsay, and non-responsive as well. THE COURT: Overruled. Not for the truth of the
THE WITNESS:
The officer said to me, oh, he
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admitted it.
It is that guy Wood. Judge, I would ask you to strike that
MR. KLEIN: based on the answer. THE COURT:
The jury will disregard that
response, it is stricken. THE WITNESS: tell you the truth. I didn't even know his name, to Inamte who he was, I could describe
what he looked like but I didn't know his name, I couldn't have said, oh, yeah, it was Wood, I didn't know his name. MR. DIEBOLT:
Q.
A.
Did you describe him to the officers? Yes. MR. DIEBOLT: If I may approach the witness with
some photographs. THE COURT: MR. DIEBOLT: You may.
Q.
I want to show you a series of photographs.
will give you a number and see if you recognize them. They are in no particular order. beside you. A. I am just going to stand
State's two, do you recognize that?
Yeah, that's me. Is that a picture of you after this incident? Yeah, I believe so. Do you recognize State's three? Yes, it is the hallway.
Q.
A.
Q.
A.
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Q.
A. would be.
Is that the hallway where the assault took place? Yeah. I'm trying to see where the water fountain
Right here to the left in the picture. And that's on State's three. State's four, do
Q.
you recognize that? A. Yeah, that's where I was taking myself along the There's the water fountain again in the
wall to get back. next one.
Q.
correct? A.
You are pointing to State's five; is that
Yes. There seems to be some, well, blood on the floor? Yeah. State's six, do you recognize that? That's probably mine. Probably O negative.
Q.
A.
Q.
A.
Q.
State's seven, do you recognize that, is that
A.
Yeah. State's eight? Yeah, that's me. State's nine, is that also you? Yeah. Those were all taken right after the incident
Q.
A.
Q.
A.
Q.
occurs; is that correct? A. Yes.
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Q.
A.
State's 10? Yes, that's me. What is depicted in State's 10; can you see that
Q.
okay? A. there.
Yes, that's blood along the mat exiting the door I didn't think I bled that much. It is kind of a back shot but do you recognize
Q.
who is depicted in State's one? A. Yeah. That is Mr. Wood. That is Officer Powell
right there. MR. DIEBOLT: items at this time. THE COURT: MR. KLEIN: THE COURT: Any objection? No. Exhibits one, two, three, four, five, I move for the admission of those
six, seven, eight, nine and ten are admitted. MR. DIEBOLT:
Q.
I want to talk a little bit about the injuries Can you tell the
that you received from this assault.
jury where you were struck and what was the injury that resulted from those strikes? A. eyes. Okay. All of the blows basically were around my I sustained what's known as a frontal
My mid face.
ethmoidal nasal fracture which is a fracture through the bridge of the nose and it extends behind the bridge of the
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nose into what is called the ethmoidal air spaces and it also involved the floor of the eye sockets and the roof of my eye sockets. And in essence it had the effect of basically collapsing, if you think of it like a book, you would be closing the cover of a book by pushing in by the bridge of my nose where the binding of the book would be by my mouth, if you will. book like this, okay. that makes sense. If that makes sense. Closing the If
So the cover would be my face.
So that part of my face was in essence
collapsed, all those bones right in that area were broken. Do you want me to talk about the other injuries?
Q.
Let's just talk about all of them right now, then
I will ask you some follow-up questions. A. Okay. So as a result of that, the nerve that
brings the sense of smell was severed so I no longer have smell. In turn because of that, it is linked with the
nerve that allows you to taste, so I don't have taste at all, taste or smell. And that's permanent.
I had some mild damage to my right optic nerve so my color vision is off in my right eye. And in addition,
because of the close proximity of everything within the eye socket, the muscles that move the eye were affected and my right eye is turned outward a little bit, that's called strabismus when your eyes are misaligned, and
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because of that I have permanent double vision and I have to wear, I have something ground into glasses called prisms to correct that. And let's see. I guess because of the damage to
the optic nerve, the damage to the olfactory nerve which is the nerve that lets you smell, in essence you could, one could then conclude that I have what is called a traumatic brain injury.
Q.
What treatment did you receive medically?
Did
you first go to the Department of Corrections treatment facility, then somewhere from there? A. I was first taken to the DOC little infirmary And they were waiting for an ambulance
area on the unit.
to take me to the hospital and I was driven to Saint Mary's Hospital, I believe. And then from there they flew
me via helicopter to Maricopa Medical Center up in the Phoenix area, MR. DIEBOLT: Honor? THE COURT: MR. DIEBOLT: THE COURT: MR. DIEBOLT: Yes. If I may approach. Yes. May I approach the witness, Your
Q.
I am going to show you three documents, 11, 12 Disregarding the first
and 13, or sets of documents.
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page.
Let me go backwards.
Do you recognize what these Do you see --
documents are, starting with 13? A.
Yes, this is I guess, it must be medical records, Yes. Yes, this is the,
it must be from Saint Mary's.
when you get seen in the E. R. by a physician, they dictate a note. That's probably what this is. They
didn't really treat me there, other than stabilize me.
Q.
A.
Do you see State's 11? Maricopa Integrated Health System, yes, this is
when I hit the E. R. at Maricopa Medical Center.
Q.
Again does that look like a copy of the medical
records from that particular medical facility? A. Yes. And what clinic was that? Neuro-surgery clinic. Actually this one right
Q.
A.
here, this is at the clinic, this is not an E. R. visit, I don't think, this is from when I saw the, this is follow-up, this is follow up when I had my surgery on my neck later on.
Q.
And as a result of this particular assault, had
you had, did you get follow-up medical treatment in addition to the initial treatment that you received, was there follow-up? A. Yeah, I had had prior problems with my neck. I
had had several slipped discs in my neck, several which I
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had operated on prior to my arrest.
And as a result of
the assault, the problem was exacerbated so I had another surgery on my neck about five, six months after.
Q.
Do you remember having an opportunity to talk to
Investigator Friedlander about what had happened on that day, September 27th, 2008? A. Yes. Do you remember being shown a six photo array and
Q.
asked to see if you could identify the individual who had assaulted you? A. Yes, I do. Do you remember picking a person out of that six? Yes, I do. At some point after this assault -- let me back
Q.
A.
Q.
up.
Had there been assaults on you prior to this
particular incident? A. Yes, there were several others. And was the Department of Corrections aware of
Q.
some of those? A. Absolutely. Were you ever asked to be or were you ever asked
Q.
if you wanted to be in protective custody for your safety? A. I had talked about it with an Officer Haus
several times and suggested it and she said, no, you were not ready yet. Whatever that meant.
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Q.
Did you ever talk to anyone else or have any
consultation with anyone else in the Department of Corrections as to protective custody? A. I didn't get into the specifics. I had kind of
touched upon it a little bit with Deputy Warden Schaff.
Q.
A.
What happened with that? Well, it was after that guy Pritchard jumped on
me in the chow hall, he had us both in the office talking to us.
Q.
Let me stop you there.
Is Pritchard a guy who
from a previous incident had done something? A. Yes. Had he assaulted you? Yes. Had that been reported? Yes. And had the deputy warden brought you and
Q.
A.
Q.
A.
Q.
Pritchard into somewhere together? A. Correct. After the incident? Yes. What happened there? Well, he had us both together in the room and he
Q.
A.
Q.
A.
was chastising Pritchard about what happened and basically saying, you know, that here it was that, you know,
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Schwartz didn't do anything to you, didn't even look at you and you jumped on him, what was going on? He basically questioned him and then he said to me, Schwartz, look, my hands are kind of tied with this guy right now. If we move him, the place that he's going So I
to go to, his safety is, his safety will be at risk.
am kind of looking for your permission, this is me sort of paraphrasing what he is saying, I'm sort of looking for your permission to let him stay here. Now what was I going to say? the hole. What do you say? No, throw him in So I said, I
No, I am not going to say that.
have no problem with the guy as long as he leaves me alone, I guess that's all right. But so then he made me sign a piece of paper saying that I felt safe being there, even though I didn't feel safe being there. leaving the unit. And I had touched upon possibly
He kind of put a gun to my head.
Q.
A.
Not literally? Not literally but figuratively by making me sign
this piece of paper saying that it was okay that this guy remain on the yard and that I could stay on the yard.
Q.
Well, I guess from the little that inamte about
prison life, is there, there seems to be somewhat of a code, I don't want to use the word ethics but a code in prison; is that something that is Fairchild to say?
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A.
Well, there's all sorts of different codes, which
code are you talking about?
Q.
I guess not to snitch on people, have you ever
heard of that? A. Yes. At some point did you make a decision to go ahead
Q.
with a lawsuit against the Department of Corrections? A. Yes, I did. And do you remember when that was that in Was it after
Q.
reference to the timing of these assaults?
this assault that we're talking about on September 27th, 2008? A. Well, it was way after with this gentleman, it
was months after.
Q.
And was the reason for the lawsuit, was it
because you had been assaulted so many times? A. It was just because of DOC's incompetence in They knew what was going on
controlling the situation.
and they turned the other cheek and it happens there constantly like that.
Q.
Now before you were in the Dependent of
Corrections did you ever, did you have a prescription drug habit? A. Well, what happened, like I said I have a
congenital, I have a neck problem, it is called congenital
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spinal stenosis or congenital narrowing of the canal that my spinal cord passes through in my neck. And around, I
would say 2000, either 2000 or 2001, somewhere around that time I started developing symptoms where I would get this electrical shock symptoms down my arms into my hands if I turned my neck a certain way. And I started getting that associated main. first I ignored it, I didn't do anything about it. And And
then it progressively got worse, and here I am seeing 40, 50 patients a day and I am busy, I have my own family at home and I can't get out of the office, I'm constantly tied up, and I was dumb. I ignored it and for lack of a
better reason I was just lazy and I should have gone to see a doctor, being one myself, I should have realized that there was something wrong. But I didn't, and what I did was I said, okay, I am having pain so I get pain pills. So I wrote my office
manager a script for pain pills and she filled it for me and got them for me. And every couple of months, every
month she would do it for me when I needed it.
Q.
A.
And that's not permissible, correct? No, I should have done the right thing and gone As it turned out, I had a problem.
to a doctor.
Q.
A.
Do you see inmate Wood in the courtroom today? Yes.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 him?
Q.
A.
Where is he sitting and what he is wearing? Blue shirt, blue tie. In the middle of his
attorneys. MR. DIEBOLT: May the record reflect the witness
has identified the defendant in this case. THE COURT: The record will reflect the witness
has indicated the defendant. MR. DIEBOLT:
Q.
Did you ever during or back to the incident on
September 27th, 2008, in the hallway by the drinking fountain within Wood, did you ever strike him? A. No. Did you ever raise your hand or try to strike
Q.
A.
No. Did you ever fight back yourself? No. Why not? Well, I guess two reasons. One is the easy one
Q.
A.
Q.
A.
and one is the difficult one.
The easy one is that I find it abhorrent.
frankly I find violence disgusting.
Being a physician I have taken care of many people with the same problem I have had, as a matter of fact I was the contract physician for DOC for about four years. For over
four years that I was in Tucson I had the contract to
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repair these kinds of injuries for everybody south of Florence in DOC, both for the inmates and for the guards.
Q.
Did you ever have the opportunity to strike back
or hit Mr. Wood while he was assaulting you? A. Pretty much I didn't even really have the
opportunity but the thought had crossed my mind and I didn't. And you know the other more difficult answer is
that -- well, I will just leave it at that.
Q.
Okay.
Do you think, were there inmates as far as
you knew that were aware that you had been a practicing doctor on the outside? MR. KLEIN: Judge, I am going to object to what
other inmates may have known. THE COURT: THE WITNESS: THE COURT: MR. DIEBOLT: Sustained. Don't answer that? Don't answer it, right.
Q.
Do you believe that any of the assaults stem from
the fact that you had been a doctor on the outside? MR. KLEIN: THE COURT: MR. DIEBOLT: Objection, still speculation. Sustained.
Q.
Were any inmates aware that you were a doctor? MR. KLEIN: Judge, same objection. All he's
done is change other inmates to any.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 me Doc. one.
THE COURT:
Yes, there would have to be some There's not
objective basis for that kind of question. such a basis at this point. MR. DIEBOLT:
Q.
Did any inmates ever refer to you as doctor or
ask if you had been a doctor on the outside? A. Oh, yeah, my -MR. KLEIN: Objection, excuse me, I have the same
objection to what other inmates may have done. THE COURT: Overruled, he may respond to that
THE WITNESS: THE COURT: THE WITNESS:
Respond? Yes. Yes, that is my nickname, they call I mean, given the fact that my
So they all know.
case took place in Tucson and this unit is in Tucson, everyone knew what I was in there for. MR. KLEIN: I am going to object to the
speculation that everyone knew. THE COURT: that last comment. MR. DIEBOLT: Sustained. The jury will disregard
Q.
Did you ever receive, did inmates ever try to
attempt to extort you for some money? A. Yes.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a moment?
MR. KLEIN:
Judge, excuse me, I am going to
object again and ask that the answer be stricken unless we can direct it specifically to Mr. Wood. inmates may have done has no relevance. THE COURT: MR. DIEBOLT: Sustained. It is also leading. What other
Q.
Could I have just one moment, Your Honor? THE COURT: MR. Diebolt: Yes. That's all the questions I have at
this point. THE COURT: MR. KLEIN: Mr. Klein. Before we start, may we approach for
MR. KLEIN:
Based on Mr. Diebolt's question of
Mr. Schwartz and his answer that he abhors violence, I would ask to be allowed to impeach him as to the nature of his prior conviction. THE COURT: No, I think that is a collateral
matter, I will not allow that.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KLEIN: CROSS EXAMINATION THE COURT: based on Rule 403. The Court's previous ruling, also
Q.
Mr. Schwartz, I think you testified that your
decision to go ahead with the lawsuit was made months after you were hit on September 27th; is that your testimony? A. Yes. When you went to the infirmary at the Department
Q.
of Corrections, you met with a nurse by the name of Quattlebaum , didn't you? A. Yes. And isn't it true that one of the first things
Q.
you told her to do was get in touch with your lawyer? A. Yes. Now in addition when you met with Ms.
Q.
Quattlebaum , she was treating you for your injuries, right? A. Right. And you yourself knew that if you had a
Q.
fractured, what is it called?
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A.
Orbit. Orbit, you shouldn't blow your nose, right? Right. Did you blow your nose? Yes, I wanted to see if it was fractured. In fact did Nurse Quattlebaum tell you not to
Q.
A.
Q.
A.
Q.
blow your nose? A. Well, I didn't need her to tell me not to, I knew
that, I treat these things.
Q.
Whether you knew that or not, didn't she tell you
not to blow your nose? A. Yes. By blowing your nose, you wound up making your
Q.
eye protrude because of the fracture? A. She told me not to blow it after I had done it. My question though was by blowing your nose you
Q.
made your eye protrude because of the fracture? A. It didn't make it protrude, I felt the pressure
in there, it didn't make it protrude.
Q.
Well, isn't it true that you used to tell your
patients not to blow their nose when there is a fracture? A. Correct. And one of the reasons is because it makes your
Q.
eye protrude? A. It could make your eye protrude.
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Q.
And you are saying that it didn't make your eye
protrude this time with Nurse Quattlebaum ? A. No, at least from what I recall. Okay. And your memory of the incident basically
Q.
is that you say Mr. Wood was standing at the water fountain, correct? A. Yes. You were standing across the hallway against the
Q.
wall, correct? A. Yes. And without any provocation he just wheeled
Q.
around and swung and hit you? A. Yes. And I think, well, that distance was about eight
Q.
to ten feet away, wasn't it? A. Yes. And he didn't advance toward you, did he? Eight to ten feet? No, it was maybe five, six
Q.
A.
feet, seven feet maybe, not ten feet.
Q.
Do you remember talking with me and Ms. Bensley
and Mr. Diebolt was there, one of your lawyers was present? A. Yes. And do you remember we had this conversation in
Q.
one of the rooms in the courthouse, right?
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A.
Yes. You knew that it was being tape recorded? Yeah. Have you been provided with a transcript of that
Q.
A.
Q.
interview? A. No. Let me show you what has been marked for If you would look
Q.
identification as defendant's P.
through it and tell me if that appears to be a transcript of the interview we had? A. Yes, it looks like the transcript. Let me ask you to turn your attention to page
Q.
nine on lines five through 13. A. Okay. Did you actually on line 13 specifically give the
Q.
estimate that there was about eight to ten feet between you and Mr. Wood? A. Yeah. The reason why I said it was less is
because when I was looking at the picture it looked like it was less than eight to ten feet.
Q.
And so when he hit you you were standing right
across from the water fountain? A. Yes. Against the wall? Yes, I was leaning on the wall with my back on
Q.
A.
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the wall and my hands in my pocket.
Q.
Let me show you what has been admitted as State's Maybe let me show the jury this;
exhibit number five.
here's the water fountain right here, correct? A. Right. Here's across the hall, right? Correct. Where you were standing? Yes. Where you got hit? Right. Where you fell to the ground? Right. You didn't move until Mr. Wood had already left? Well, I had fallen and probably rolled a little
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
bit and he came after me.
Q.
picture.
I'm sorry.
First of all let's look at this
Is there any blood on that entire wall across
from the water fountain? A. Not across from the water fountain, maybe about
five, six feet down from it.
Q.
you? A.
Okay.
Did you start bleeding as soon as he hit
I don't know, I didn't take a timing of that. But I think you previously testified that as soon
Q.
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as he hit you, you went down on the ground, right? A. Yeah. Okay. I probably rolled over a little bit. Now you have talked with Investigator
Q.
Friedlander from the Department of Corrections, right? A. Yes. And that occurred back on October 10th of 2008,
Q.
right? A.
I don't remember the date. Roughly, within a couple months after this
Q.
happened? A.
Yes. Did you ever tell him anything other than you
Q.
went right down to the ground after being hit? A. recalled. used, sir. I believe that all I told him is what I best I don't really remember the exact words that I
Q.
Did you ever tell him that you rolled around on
the ground? A. I am just trying to picture it in my head. I am
sure that when I went down I probably fell and rolled a little bit, I would imagine.
Q.
Okay.
And am I correct that the first time you
told anybody that you rolled on the ground was today, right now? A. I don't know.
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Q.
And the reason why you are saying that you must
have rolled around on the ground is because there is no blood across the wall from the water fountain? A. before. Well, yeah, I had never seen these pictures
Q.
A.
Okay.
So now that you have seen the pictures --
So obviously it was a couple feet down from
there, I guess.
Q.
question. A.
Mr. Schwartz, if you would wait until I ask the
All right, sorry about that. Thank you. Did you ever see a transcript of your
Q.
interview with Investigator Friedlander from the Department of Corrections? A. No. Let me show you what has been marked for
Q.
identification as defendant's O and ask you if you recognize that as being a transcript of your interview with Mr. Friedlander ? A. Yes. Okay. So let's go back to the transcript of the
Q.
interview that you and Ms. Bensley and I and Mr. Diebolt had back on January 4th of this year. A. Okay. When you were describing to us what happened, did
Q.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
you tell us that you went down to the ground like a sack of potatoes? A. Yes. At any time during that interview did you say
Q.
that you had rolled around on the ground? A. No, I guess not. Okay. And when you were further describing what
Q.
had happened to you, did you describe the whole scene as looking like the Texas Chainsaw Massacre? A. Yes, I remember saying that. In you creative writing class did you learn about
Q.
using literary devices? A. Well, it wasn't really a class. It was just more
of a discussion group about writing. we didn't learn anything really.
It wasn't a class,
Q.
So you didn't learn anything about using literary
devices to create an effect? A. Not really. Okay. And how long had you been attending this,
Q.
not a class, how long had you been attending this meeting with this professor from the U of A? A. months. I don't know how many months. Maybe four or five
Q.
Let me ask you something because I may not have I thought you had testified that 99
heard you correctly.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
percent of the blows to you were by the feet and then -A. No, by the hands. By the hands. Okay. Then I did hear you
Q.
incorrectly, I apologize. once? A. A couple of times.
And you said he only kicked you
Like I said it is hard to
remember, you know, I wasn't taking stock while it was going on.
Q.
Sure.
And so after you had been struck
repeatedly, Mr. Wood went into the classroom, right? A. Correct. He didn't stop along the way, did he? No, not that I saw. And would you agree with me that he ran into the
Q.
A.
Q.
classroom? A. It seemed like to me like he just walked calmly
from what I recall.
Q.
Would you look at your interview with
Investigator Friedlander, I believe that's exhibit O. A. Okay. And let me direct your attention to page six at
Q.
line 22. A.
Okay. All right. You see that Investigator Friedlander
Q.
asked you what happened after he hit you and kicked you,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
right? A. Okay. And your answer was he ran down the hallway back
Q.
into the classroom? A. Yes. And then on page seven, line one, did you also
Q.
tell Investigator Friedlander he runs into the classroom? A. Yeah. Okay. He never went into the bathroom
Q.
afterwards, right? A. I thought he went straight back to the classroom. Okay. Didn't hang around the water fountain any
Q.
more, did he? A. No. While he was hitting you, you didn't lose your
Q.
consciousness, did you, you didn't black out? A. I didn't really remember, to tell you the truth. Well, did you remember when you spoke with Nurse
Q.
Quattlebaum whether you had blacked out? A. after. I vaguely remember some of those conversations
Q.
Well, did you tell Nurse Quattlebaum that you
didn't lose your consciousness? A. I don't think I did. You don't think so?
Q.
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A. saying.
I don't think I lost consciousness is what I'm
Q.
Do you remember when you talked again with me,
Ms. Bensley and Mr. Diebolt, your lawyer, back in January telling us that in fact you did lose consciousness or you blacked out for about five or ten minutes after the corrections officers arrived? A. I blacked out after they arrived when I was
sitting on the floor by the door, but I thought you meant did I black out during the incident while he was hitting me.
Q.
right? A.
So you were alert while you were being hit,
Yeah. Didn't black out while you were being hit? No. Then sometime later when the corrections officers
Q.
A.
Q.
arrived, you blacked out for about five or ten minutes? A. I just lied down and closed my eyes, yeah. Well, I mean you are a medical doctor. You were.
Q.
You are trained in medicine, right? A. Right. There's a difference between blacking out and
Q.
lying down and closing your eyes; isn't there? A. When something like this happens, time kind of
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slows down and things get very fuzzy and I didn't really know what was going on, I was very disoriented after this happened.
Q.
A. on after.
So you didn't know what was going on? Afterwards, I had no idea really what was going
Q.
But I thought you testified that you remembered
the guards saying that Mr. Wood had admitted doing it? A. I'm talking about after, when I am in Nurse I was lying down and I started kind
Quattlebaum's office.
of dosing off and I'm not really sure if I passed out, if that's passing out or not. well, I closed my eyes. I just know I didn't feel
Q.
When you were still in the hallway area and there
were corrections officers around you, not when you were in Nurse Quattlebaum's office, did you black out? A. To the best of my recollection, no. And did you in fact tell Ms. Bensley and myself
Q.
and Mr. Diebolt that you did while the corrections officers were around? A. Maybe I did, I can't remember. Why don't you turn to page nine of our interview
Q.
at lines, starting at the bottom at line 39 to the top of page 10 through line two. A. No, which? See where I am at?
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Q.
A.
Are you on my interview or Friedlander's? I am on the wrong one. Let me look.
Q.
It's easy to get confused. THE COURT: Which exhibit number are you
referring to, Mr. Klein? MR. KLEIN: approach. THE COURT: MR. KLEIN: Which interview and I can tell you? This is the interview with me and Ms. I apologize, Judge, if I could
Bensley and Mr. Diebolt. THE COURT: That would be exhibit P that you
should look for, Mr. Schwartz . THE WITNESS: MR. KLEIN: Okay.
Q.
A.
Bottom of page nine, top of page ten. Okay. Did you tell us in fact that you did black out
Q.
for maybe five or ten minutes after Officer Powell first arrived? A. I might have been confused, okay. You might have been confused now or then? No, then. Back then? Yeah. And might you have been confused because you
Q.
A.
Q.
A.
Q.
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didn't black out at any time while being attended to in the hallway? A. haze. I don't really remember, sir. I mean it is a
Q.
All right.
Now while it is a haze, do you have a
pretty good recollection of the first time you got hit? A. I just remember that he wheeled around and hit me
and I was standing looking at the floor, that's what I remember.
Q.
A.
Where did he hit you? I don't recall. Okay. Maybe the side of my head, you know. When you spoke with me, again this is exhibit P Somewhere on my face.
Q.
A.
Q.
on page four at line 26, did you tell, did you say that, are you there yet? A. What page? Page four, line 26. Okay. Did you say he hit me on the side of the head? Yeah. On the first time? Okay. Because after that is when you went down like a
Q.
A.
Q.
A.
Q.
A.
Q.
sack of potatoes, right?
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A.
Okay. Is that what you told us? I guess so, yes. When you spoke with Investigator Friedlander Sorry, I was
Q.
A.
Q.
which I believe is exhibit O on page nine. looking at the wrong notes. A.
Page three, lines 23 and 24.
Page three, which interview? This is exhibit O. Friedlander? Yes, the one with Investigator Friedlander. Page three, line what? 23 and 24. Okay. Did you tell Investigator Friedlander the very
Q.
A.
Q.
A.
Q.
A.
Q.
first punch was to my nose right between the eyes? A. Okay. Is that what you told Investigator Friedlander? Yeah. Okay. But do you see the next sentence? Let's look at the next sentence. You have got to remember this is a rapid sequence
Q.
A.
Q.
A.
Q.
A.
and very fast so I can't remember exactly which was first and which was second. I'm approximating.
Q.
Well, so were you approximating for Investigator
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Friedlander or were you approximating for the interview with us? A. I don't even remember, to tell you the truth. At
this stage I don't even remember where I was hit first or second or last.
Q.
Okay.
But I mean the first blow you would agree
was the most memorable, right, because that was the one that was most important? A. None of it is very memorable. I have memory
problems since this happened.
Q.
Okay.
Let's talk about your symptoms.
When you
spoke with, when you were answering questions from Mr. Diebolt, let's see, you had frontal ethmoid nasal fractures? A. Yes. You had fractures of the floor and the roof of
Q.
the eye sockets? A. Correct. No sense of smell or taste? Correct. Mild damage to the right optic nerve? Correct. And your right eye was turned outward creating
Q.
A.
Q.
A.
Q.
permanent double vision? A. Yes.
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Q.
A.
Those are all your symptoms, right? Those are called signs, not symptoms. Signs are
what you see by examining, symptoms are what the person complains of.
Q.
Okay.
Sorry for my imprecise medical language.
So those are the signs of your condition right now as a result of being punched? A. And a droopy right upper eyelid. You hadn't mentioned that one when you were
Q.
listing those for Mr. Diebolt? A. No, I didn't mention it. And when I talked with you in exhibit P, when we
Q.
were talking about, and I may have used the wrong language back then, too. When we were talking about your, I think
you referred to them as residual injuries from the incident? A. Yes. You talked basically about five problems. One
Q.
was that your right eye was sunken about ten millimeters, right? A. Yeah. One was your drooping eyelid, right? Yes. This is on pages 23 and 24, the middle of page
Q.
A.
Q.
23, top of page 24.
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A.
Okay. All right. So drooping eyelid; your right eye
Q.
was sunken; your right eye is turned out; you have constant double vision and chronic pain? A. Yes. Are what you complained of back in January? What line am I looking at? Page 23, line fourteen to page 24, line two? Okay. When we talked about your residual injuries you
Q.
A.
Q.
A.
Q.
never mentioned anything about losing your sense of smell, did you? A. No. You never talked about losing your sense of
Q.
taste? A.
No, I didn't. And later on during that interview we talked
Q.
about your right eye being sunken, right? A. Correct. And you complained to me that if a CT scan was
Q.
taken properly, and if the right eye was sunken, the CT scan would not show normal anatomical alignment, right? A. Repeat that question. Sure. During the interview you and I had back in
Q.
January of this year, you told me that if a CT scan was
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taken properly and if a person -A. You mean on anyone in general or on me? All right. Let's talk about you. A CT scan of
Q.
you was taken on, just a second.
If a CT scan of you was
taken on January 26, 2009, at the Maricopa Integrated Health System of your maxillofacial area without contrast, and if you in fact had a sunken right eye of about ten millimeters, that would not show up as a normal anatomical alignment, would it? A. It may or may not, it depends on alot of
different factors.
Q.
Have you seen the results of the CT scan of your
eye on January 26th? A. I think you showed them to me that day because we
had a question about that when we were discussing about how CAT scans are taken and that it depends on the person doing the scan and how they position your head. And
sometimes a view may, the eye might look like it is really sunken in alot, sometimes it might not look like it is sunken in at all; you really have to go on the clinical findings, what you see rather than on the CAT scan.
Q.
Let me show you defendant's N and ask you if you
recognize that as a copy of the CT scan that was done at Maricopa Medical Systems? A. Yes.
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Q.
And that refers to an anatomic alignment on your
eye socket? A. The alignment remains anatomic, correct. Like I
said it all depends on the way that it is taken, the picture. It is not really even clear what this
radiologist means by the word anatomic, does he mean that the eyeball is -- you know, there is an X, O, I and a Z coordinate, which one is he referring to, I don't even know.
Q.
The condition that you have talked about where
your eye was sunken is called enophthalmos? A. Yes, enophthalmos. Could you spell it for the court reporter. E. N. O. P. H. T. H. A. L. M. O. S. Okay. And when we were talking about that
Q.
A.
Q.
condition, this is on page 28 of my interview with you which is exhibit P, the last page of the interview? A. Okay. I asked you on line eight relating to this
Q.
condition, so the eye socket region would not be anatomically aligned, correct? A. You asked me that, yes, but the question once
again from a medical standpoint is sort of ambiguous because you are talking about within that socket itself or compared to the other side; there are alot of ways to
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interpret that question.
Q.
Yes.
And the way you interpreted that question
on January 4th of 2011 was to agree with me and say correct, is that your answer? A. Correct, yeah. So when I asked you, so the eye socket region
Q.
would not be anatomically aligned back in January, your answer was correct? A. answer. That it is not anatomically aligned, that was my
Q.
A.
If someone actually suffered from enophthalmos? Right. And the reason is because --
Q.
Excuse me, I didn't ask you for the reason, I
just wanted to make sure you agreed with what you told me back in January of 2011. A. Okay. Thank you. All right. Now you have filed a
Q.
lawsuit against the Department of Corrections, right? A. Yes. And that claims that you did not receive adequate
Q.
protection from the Department of Corrections? A. Yes. And the prime example in your lawsuit is being
Q.
hit by Mr. Wood, right? A. Correct.
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Q.
Prior to being hit by Mr. Wood, from July until
September 26th, you had previously been struck by three other inmates, right? A. Yeah, from what I recall, yeah. Well, all right, there was one by an inmate by
Q.
the name of Scott, right? A. Yes. And in fact you wound up fighting back with him
Q.
in that instance? A. Yes. There was another one by an inmate named
Q.
Pritchard all by himself? A. Correct. And then there was a third by inmate Pritchard
Q.
and another inmate? A. Yes, and I don't remember his name, yeah. You know a corrections officer by the name of
Q.
Angelo Chiaravallo, right? A. Chiaravallo, yeah. Okay. Yes. As far as you can tell he had no hard feelings And he's been pretty straight with you?
Q.
A.
Q.
toward you? A. No, not that inamte of. He was the officer who went up to Maricopa County
Q.
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with you? A. Yes, he was very kind to me, yeah. And so he never asked you if you wanted to go
Q.
into protective custody? A. I don't remember, to tell you the truth, sir. You never told him you didn't want to go into And actually that's bad phrasing, let Did you ever tell
Q.
protective custody?
me get rid of all the negatives.
Corrections Officer Chiaravallo that you did not want to go into protective custody? A. I can't recall. I think I may have said that to
him when I was lying on the table in Nurse Quattlebaum's area there up in that little infirmary area, something of that nature.
Q.
Let me clarify this.
I'm not just talking about
when he was with you in September of 2008 at the infirmary and then up at Maricopa County. I'm talking about any of
the interactions that you had with him while you were at the Department of Corrections in Tucson? A. I don't recall. I think most of the conversation I don't
I had about that was with that Officer Haus. think it was with Chiaravallo.
Q.
And you testified about that with Mr. Diebolt
that you had conversations with Corrections Officer Haus , right?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it?
A.
Yes. Is Officer Haus a man or a woman? A woman. H.A.U.S. is how she spells her name.
Q.
A.
Q.
And she was the one who told you not to request
A.
Yes. That's your testimony? Yes, sir. And then the only other person that you testified
Q.
A.
Q.
about with Mr. Diebolt was the deputy warden, right? A. Correct, Schaff. And the deputy warden from what you said forced
Q.
you to sign a paper saying that it was okay for Pritchard to stay on the yard? A. Yes, sir. That had nothing to do with you going into
Q.
protective custody? A. together. Well, it sort of does because it was linked
Q.
Did the paper that you signed at the direction
of Warden Schaff say that you do not want to go into protective custody? A. No, that paper does not say that, sir. Thank you. His name is spelled S. C. H. A. F. F.
Q.
A.
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Q.
Did you ever ask Deputy Warden Schaff if you
could go into protective custody after you had been, this would have been the third time that you were hit, right? A. Well, I never got to speak to him. No. Or after Pritchard? Correct me if I am wrong, but the incident that After Wood?
Q.
A.
Q.
you were talking about involving Deputy Warden Schaff was after you had been hit by inmate Pritchard? A. Correct. In the lunch hall? Right, the first time. Okay. And did you ever ask Deputy Warden Schaff
Q.
A.
Q.
to go into protective custody at that point? A. No, sir. Even though you had previously been hit by inmate
Q.
Scott? A.
Correct. And your explanation about the federal guilty
Q.
plea that you made was basically you had been having intense pain, right? A. Correct. And I think you said that you asked your office
Q.
manager to fill a prescription for you, right? A. Yes.
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Q.
A. believe.
Did you ask anybody else to do that? My girlfriend and another office worker, I
Q.
A.
And in fact that happened multiple times? Yes, sir. Like more than 20 times, right? I believe so. And your guilty plea in that was to one count of
Q.
A.
Q.
conspiracy to obtain controlled substances by fraud or deceit? A. Yes, sir. And you had previously been convicted in Pima
Q.
County Superior Court of a felony, correct? A. Yes, sir. MR. KLEIN: Honor. THE COURT: MR. KLEIN: You may. If I could have just a moment, Your
Q.
Back in September, Mr. Schwartz, what housing
unit were you in at the Department of Corrections? A. It is known as Rincon. What number unit? Oh, building? I started out in five. And I was Which housing?
Q.
A.
there for, let's see, I got to Rincon unit in Tucson in July of '07. I started out in building five, I was there
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maybe five months or so. building seven, I believe.
And then I moved after that to I was there for a couple of
months and then they started doing some construction on the yard, they were changing over the doors. The doors
used to be manual, you had to turn it with a key, and they turned it to fully electronic. So they started moving everyone from building to building, as they would complete one building, the next building they were going to work on, they would move all the guys out of there and they were shuffling buildings around. So we went from seven, then to six, and so I was But at the time when this
in different buildings.
happened, I believe I was in building six, when this happened.
Q.
And any of the times that you were at the prison
on Rincon yard, were you ever in the same housing unit with Mr. Wood? A. No. In terms of your conviction of a felony in state
Q.
court, you feel you were wronged, right? A. Wrongfully convicted, yes, I do. MR. KLEIN: I don't have any other questions. THE COURT: redirect? recess. Mr. Diebolt, do you have significant
I was just thinking when it is best to take a
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can. be okay.
MR. DIEBOLT:
Probably now, Judge, if that would
THE COURT:
Ladies and Gentlemen, we will take I remind you not
about a 15 minute recess at this point.
to discuss the case with each other or with anyone else, keep an open mind, we will see you back in about 15 minutes.
((Whereupon the afternoon recess is taken and the trial proceeds as follows.))
THE COURT:
The record will reflect the absence
of the jury, the presence of counsel and the defendant. Anything before we bring the jury back? MR. KLEIN: I am going to ask to reopen my cross
for two very brief areas. THE COURT: MR. DIEBOLT: brief with my redirect. Okay. You may bring in the jury.
Judge, I was going to be fairly Then I have actually three
witnesses, I don't know that we will get to all three but I would like to get to Fairchild and Arredondo if possible. THE COURT: All right, we will do the best we
THE BAILIFF:
Your Honor, the jury.
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THE COURT:
The record will show the presence of
the jury, counsel and the defendant. Mr. Klein. MR. DIEBOLT: THE COURT: Could we approach briefly. Yes.
MR. DIEBOLT:
I guess we will have to remove him
from the stand, it will probably take about ten minutes or so. It will not be very long. THE COURT: MR. DIEBOLT: What for? Well, he is still in shackles, we
brought him in without the jury present, I would like to handle it that same way. THE COURT: MR. DIEBOLT: THE COURT: MR. DIEBOLT: cumbersome to do that. THE COURT: Okay. You mean when he leaves? When he leaves the stand. Is that what you would like me to do? Yes. I mean it is sort of
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THE COURT: cross-examination? MR. KLEIN: THE COURT: MR. KLEIN:
Mr. Klein, did you have additional
I do, Your Honor. You may. Thank you.
Q.
Mr. Schwartz, I just had a couple more questions.
Number one, when you left the classroom where you were having the creative writing session, had Mr. Wood already left? A. Yeah, he was already in the hallway, sure. And when you walked down the hallway into the
Q.
area where the inmate restroom is, was Mr. Wood in the hallway? A. Yeah. Didn't you just ask me that?
Q.
No, what I asked you was when you left the
classroom area, had Mr. Wood already left? A. Had he left the classroom to go into the hallway? Had he already left the classroom? Yes. Now you mentioned also that one of your
Q.
A.
Q.
continuing problems is double vision? A. Yes. Is that the same as diplopia? Yes, that's just a doctor term for it, diplopia . One of the doctors you saw up in Maricopa County
Q.
A.
Q.
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was a doctor by the name of Iman Feiz-Erfan? A. Feiz-Erfan, yeah. Okay. It is F. E. I. Z. dash E. R. F. A. N. Do
Q.
you remember seeing him on February 10, 2009, in connection with problems with your back? A. Inamte that's when I had my, we were planning on
the surgery or it was at the time of the surgery on my neck, yeah.
Q.
During that meeting with the doctor did you
discuss some family history? A. I don't know what we discussed. I'm sure at some
point he must have asked me my family medical history at some point, I am sure.
Q.
Did he ask you if you had diplopia or
intermittent diplopia? A. I don't remember what he asked me, to tell you
the truth.
Q.
Let me show you what has been marked for Does that appear to be a
identification as defendant's R.
copy of the doctor's report of your contact with him on February 10th, 2009? A. Yeah, 2/10/09, yeah. Directing your attention to the middle of the The sentence begins, when asked, do you
Q.
second paragraph. see where I am at?
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A.
Yes.
When asked the patient about any diplopia ,
he stated intermittent diplopia and droopy lid, right, I see that.
Q.
A.
So the patient was you? Correct. MR. KLEIN: THE COURT: MR. DIEBOLT: That's all I have. Mr. Diebolt, you may redirect. Thank you.
REDIRECT EXAMINATION MR. DIEBOLT:
Q.
Just a few questions about the state of mind,
your state of mind after you were hit; do you remember if you remained conscious from the hit to going to the ground? A. truth. I don't really remember much, to tell you the I don't remember which end was up. What were you thinking during this time period? I was thinking, when is he going to stop? I was
Q.
A.
thinking, does he have a knife? of things. can't.
I was thinking all sorts
Some of which I can remember, some of which I
Q.
Would you describe at least some part of the
assault, would you describe yourself as being disoriented?
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A.
I was very disoriented. Were you alert, mentally alert during the
Q.
assault? A.
Yes. Do you remember what came first, what exactly,
Q.
exactly came first and what came second and what came third and fourth and fifth, sixth, et cetera? A. that. No, I can't remember the order or specifics like
Q.
You were asked questions from a transcript that Let me just look at the number
you have in front of you. or the letter. P.
And counsel was asking you some
questions about page four, he asked you about several lines about two-thirds of the way down. being asked those questions? A. Yes. Those answers or the answer is less a few lines Do you remember
Q.
out of maybe 38 lines roughly, that was your entire response to a question that was given, do you remember that? A. Let me look and see the question. Okay. So it
was a vague question about tell me all the events that you recall happening, so I kind of went into a best of my recollection diatribe of, you know, what happened.
Q.
So from line approximately 4 to 42, is that a
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brief summary that you are giving as to what happened? A. Yes. And in that summary are you talking about the
Q.
assault of Mr. Wood upon you? A. Correct. I want to refer you to, actually I would ask the
Q.
Court that that be read in its entirety, the entire 4 through 42 for the purpose of context and the purpose of completeness, Judge. THE COURT: You may.
MR. DIEBOLT: Thank you. MR. KLEIN: objection. THE WITNESS: THE COURT: MR. DIEBOLT: Do you want me to read it? The record will so reflect. May the record show it's over my
Q.
I will probably read it and ask you, have you
read that, have you looked through it? A. No, actually I haven't. Do you want to take a second to do that to
Q.
yourself.
MR. KLEIN: that? THE COURT:
Can we approach while he's reading
Yes.
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MR. KLEIN: referring to.
Judge, this is the portion that he is
Among other things there are references in
there that are beyond the scope of my cross examination and they were not brought up in direct examination. For
example, there are parts in there where he claims that Mr. Wood must have had something in his hand, which was never testified to in direct examination nor addressed during cross examination and not relevant to what I believe Mr. Diebolt is trying to get at. THE COURT: The point is well taken, Mr. Diebolt.
I think you can lead him through those parts that are relevant to your examination, staying away from those things that aren't. MR. DIEBOLT: THE COURT: That's fine. If you need guidance at any point,
then come back up here and discuss it some more.
MR. DIEBOLT:
Q.
I am going to read it to you in sections and I
will ask you if that is correct and you just tell me yes
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or no, is that understood? A. Okay. Your response in the interview, so when I, I went
Q.
up to the bathroom I, this is about, I guess at about a quarter to two, towards the end of the class, which also coincided with the shift change of the officers on the unit. I walked to the bathroom which is in the outdoor courtyard, you know, took care of business and then came back to go toward the classroom that, and the classroom is down a long corridor, it has to be about 80 yards long I would say judging it against a football field, about 80 yards. And along the right-hand side of the corridor are And there's a water fountain between two
the classrooms.
of the classrooms and I was going to go to the water fountain and get a drink and then go back into the classroom. And Mr. Wood was at the water fountain. At the
time he was just kind of doing something in front of the water fountain. paying attention. I wasn't sure what but I really wasn't I figured I would just let him go, you And so I, I
know, and then I will go after, use it after.
was just standing against the wall across from the water fountain, so maybe ten feet away from him. Does that all sound correct so far?
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A.
Yes. And I had my hands in my pocket, I'm looking down
Q.
at the ground and all of a sudden he wheeled around about 180 degrees and he, I'm just going to go in sections, he hit me on the side of the head and I went down like a sack of potatoes. And as soon as I went down, he was on me,
all over me, you know, punching, kicking, and then like maybe after twenty seconds of that I like, all right, all right, enough, enough, you know. And while he's kicking
me he is calling me a dirty kyke and you know a fucking Jew and basically that was it. And then he, he just walked away and you know I was kind of hit and I got up, felt along the wall and walked, you know, holding the wall, I really couldn't see much. My glasses were broken and I had alot of swelling
around my right eye and I kind of felt along the wall toward the entrance way into the courtyard. And while I
was there the officers saw me and they came running and they called, and that's what's called an ICS which is some kind of incident, you know, an assault, whatever. You
know, whenever there's an assault they call ICS so it locks basically everybody down who is on the yard and they came running and they immediately went to the classroom and he said I did it. out loud, I did it. I mean, you know, he just said it
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 witness? you.
Does that look accurate, sir, as to the interview? A. Yes, sir. MR. DIEBOLT: That's all I have, Judge, thank
THE COURT:
Jury have any questions of this
All right, Ladies and Gentlemen, then we will excuse you again just for a few moments, and we will have you right back and the State will proceed with its next witness. The record will show the absence of the jury. The Court orders that the witness be returned to the Department of Corrections as soon as possible. MR. DIEBOLT: going this afternoon? THE COURT: witness, Mr. Diebolt? MR. DIEBOLT: THE BAILIFF: THE COURT: Officer Fairchild. Your Honor, the jury. Yes. Please be seated. The record Close to five. Who will be your next Judge, how long do you plan on
will show the presence of the jury, counsel and the defendant. The State may call its next witness. MR. DIEBOLT: The State calls Officer Fairchild.
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THE COURT:
If you would come forward and face
the clerk and raise your right hand and be sworn.
OFFICER FAIRCHILD having been duly sworn, takes the witness stand and testifies as follows.
Q.
A.
Would you introduce yourself to the jury, please. Julie Fairchild. What is your occupation? I'm a correctional officer. How long have you been with the Department of
Q.
A.
Q.
Corrections? A. Fifteen years. And as of September of 2008, what were your
Q.
responsibilities at the Department of Corrections? A. To maintain public safety and the health and
welfare of inmates and staff.
Q.
Were you aware of an incident that occurred
between two inmates after a creative writing class on September 27th, 2008? A. I was and it was during a creative writing class.
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Q.
Thank you for that correction.
Were you notified
something was going on, is that how it happened? A. No, I noticed blood out front of the doors. What did you do at that point? I entered the hallway. Is the hallway adjacent to the classroom itself? Yes, it is. Is that classroom designed or at least used at
Q.
A.
Q.
A.
Q.
that time for the purpose of conducting educational classes? A. Yes. Is that the educational portion of the prison? Yes. And do inmates attend those classes? Yes, they do. While they are attending classes are they allowed
Q.
A.
Q.
A.
Q.
to go out to the inmate restroom or the drinking fountain? A. Yes. Is that normal behavior? Yes, it is. When you entered the area what did you first
Q.
A.
Q.
notice? A.
As soon as I entered the doorway, only one door
opens at a time, I noticed inmate Schwartz was huddled in the corner here on the opposite side of the door and there
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was blood everywhere in the hallway.
Q.
A.
What did you do at that point? At that point I went down to the classroom that
was being held by a volunteer to insure his safety, which is the public.
Q.
Did you determine that the volunteer teacher I
guess, was it a teacher or an instructor or something? A. Yes, an instructor. Once you made the determination that person was
Q.
okay, is that Fairchild to say? A. Yes, sir. What did you do next? After that I instructed all the inmates that were
Q.
A.
still in the classroom to line up against the wall for a knuckle body check.
Q.
At any point did you or other officers ask for
help to get other officers there? A. Prior to me entering the classroom, Officer And he noticed inmate Schwartz Which is an
Powell followed behind me.
as well and that's when he initiated an ICS.
alert for all of us to stand, to get ready to help out.
Q.
So then you lined up the remaining inmates in the
classroom; is that correct? A. Yes, sir. Did you yourself at that point go to inmate
Q.
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Schwartz and render any aid to him at that point? A. No, sir. Did you go to the classroom and line up the
Q.
inmates? A.
Yes, sir. What happened at that point? At that point I instructed all the inmates to
Q.
A.
face the wall, to line up against the wall and I was looking for blood on their clothing, blood on their shoes, anybody shaking, usually their adrenalin, the assaulter will start shaking.
Q.
So I guess that leads to my next question.
In
the 15 years or so that you have been in the Department of Corrections have you seen inmate assaults before? A. Yes, sir. Have you come to the scene after inmate assaults? Yes, sir. You said you were looking for signs that would
Q.
A.
Q.
indicate to you someone else may have been involved? A. Yes, sir. Did you make such observations? Yes, I did. Tell the jury what you observed? I came upon inmate Jeffrey Wood and noticed there
Q.
A.
Q.
A.
was blood on his shoes, blood splatter on his pant legs.
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I instructed him to turn around so I could cuff him, take him out of the classroom and then cuff him. And at that
point when I was handcuffing him he advised me that he was the only one that assaulted inmate Schwartz.
Q.
Did you make any observations of him physically You mentioned some
other than what you have described?
adrenalin or something, anything that would be consistent with being in an assault situation? A. No, sir. Did you take him outside of the classroom and
Q.
cuff him? A.
Yes, sir, I did. Is there a particular protocol for that? Yes. When you are going to restrain an inmate, One
Q.
A.
you want to remove him from any other further harm.
inmate that is handcuffed behind the back, it's not safe to be around other inmates that aren't. remove them from the area. So you always
Q.
At some point did you, let me rephrase that.
Once you had inmate Wood handcuffed, what did you do with him? A. Two other officers came and relieved me of inmate
Wood and escorted him to a holding pin.
Q.
Did you make any other observations of any other
inmates other than the two that you described, inmate Wood
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and inmate Schwartz, having any signs that would be consistent with being involved in that assault? A. No, sir. Do you see inmate Wood in the courtroom today? Yes, I do. Where is he sitting and what is he wearing? He's wearing a blue shirt with a striped tie. MR. DIEBOLT: I have. Thank you. THE COURT: You may cross, Ms. Bensley. I believe that's all the questions
Q.
A.
Q.
A.
CROSS EXAMINATION MS. BENSLEY:
Q.
Good afternoon.
Not too many questions.
You
were personally involved with conducting the body and knuckle check that you described? A. Yes. And at that time you did not see any blood on
Q.
Mr. Wood's pants? A. No, I did not. You didn't see any redness, bruising or scratches
Q.
on his hands? A. No, I did not. And no bruises, redness or scratching anywhere
Q.
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else on Mr. Wood's body? A. No, I did not. And you were in a position to come into contact
Q.
based on the observations that you made with Mr. Wood's shoes and pants? A. Okay, can you say that again, please. You were in a position to come into contact with
Q.
his shoes and pants? A. Come into contact how? Well, you were with him? You were in the
Q.
presence of that, you were able to observe things? A. Yes. And you personally never took any swabs or any
Q.
evidence processing off of the pants or the shoes? A. No, ma'am, I did not. Nor from Mr. Wood's hands? No. And you don't know personally if his pants,
Q.
A.
Q.
Mr. Wood's pants or shoes were taken as evidence or collected? A. No, I do not know that. And this statement that you described while you
Q.
were testifying that Mr. Wood made, that was in response to a question that you asked him? A. Yes, I asked him what was going on.
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Q.
And when Mr. Wood made that admission to you,
that statement, did he say it in a loud voice or a quiet voice, a whisper? A. He was facing the wall, he turned his head and
said, I was the only one.
Q.
A.
Okay. Not abruptly, not boisterous, none of that, just
as I am speaking to you.
Q.
Did you tell Mr. Schwartz anything about what Mr.
Wood told you? A. No. And in the contact that you had with Mr. Wood,
Q.
was he cooperative with you? A. Yes. And he wasn't violent with you? No. MS. BENSLEY: further questions. THE COURT: MR. DIEBOLT: THE COURT: witness? Thank you, officer, you may step down, you are excused. THE WITNESS: Thank you, sir. Can I have one second. I have no
Q.
A.
Thank you, officer. Any redirect? Nothing further, Judge, thank you. Jury have any questions of this
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THE COURT: MR. DIEBOLT:
The State may call its next witness. The State calls Samuel Arredondo.
SERGEANT ARREDONDO having been duly sworn, takes the witness stand and testifies as follows.
Q.
A.
Tell the jury your name. Sergeant Samuel Arredondo. What is your occupation? I'm a correctional sergeant for the State of
Q.
A. Arizona.
Q.
If I may approach just to adjust that microphone.
How long have you been with the Department of Corrections? A. About six and a half years. And your current rank is sergeant; is that
Q.
correct? A.
Yes, sir. I want to take you back to September 27th, 2008.
Q.
Did you become aware of an incident between two inmates somewhere outside of a creative writing class? A. Yes, sir.
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Q.
A.
Did you respond to that location? Yes, sir, I responded. What was the reason for you going there? To assist, to see if they needed any help, to see
Q.
A.
if the staff that was already taking care of problems, to see if they needed any help.
Q.
I want to have you tell the jury about what
happened when you got to that location; do you recall? A. Yes. When I arrived I saw Officer Powell, first
of all he's the one that initiated the Incident Command System. I spoke to him. By initiating the Incident Command System, does
Q.
that mean alerting other officers that something is going on? A. That's correct. Once that is done, do officers respond there? Yes, sir. Please continue. So I spoke to him first and asked him what had And he had said that he initiated ICS for an
Q.
A.
Q.
A. happened.
inmate that had been assaulted.
Q.
A.
What did you do in response to that? I asked him where the inmate was. He pointed out
inmate Schwartz. to assist.
I went over there to see what I could do
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Q.
jury? A.
And describe the scene as best you can for the
Inmate Schwartz was sitting down just inside the He was sitting
hallway entrance of the education area.
down, or he was actually kneeling down on the floor just on the inside of the door. As I walked in I saw him
there; he was very bloody and I saw lots of blood down the hallway. I saw it on the walls. On the floor.
Q.
Did you see any other inmates inside of the
classroom? A. Initially it was only me and Schwartz. At some point did you direct or ask that
Q.
photographs be taken of the blood in the area? A. Sergeant Gonzales was there attending to inmate
Schwartz and I left that area to go to the sergeant's office to obtain a camera and I came back and took photos of the scene.
Q.
A.
A photo was taken of Mr. Schwartz as well? Yes, sir. And do you recall if photographs were taken of
Q.
the hallway and the walls as well? A. Yes, sir, they were. At some point was medical attention given to
Q.
inmate Schwartz? A. That's correct.
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Q.
At some point was inmate Wood separated from the
rest and handcuffed? A. Yes. Did you make any observations of inmate Wood
Q.
yourself, sir, did you see him there? A. Yes, I did. What were your observations? Officer Fairchild had discovered that inmate Wood She directed him away from the
Q.
A.
had blood on his clothes.
rest of the inmates that were in the classroom and brought him into the hallway where he was restrained. And I saw
that he had some blood on his pants and on his shoes and I took pictures of that also.
Q.
Does the Department of Corrections have a
criminal investigation unit that handles follow-up investigations? A. That's correct. Is Investigator Friedlander a part of that unit? Yes, sir. Did he also come in at a later point to do
Q.
A.
Q.
some follow -up as far as this investigation went? A. He did follow-up. I don't remember that he was
there that day.
But he did some follow-up.
Q.
At some point did he talk to you about what your
observations were?
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A.
Yes, I was interviewed by him. Do you recall what if anything happened to the
Q.
shoes and pants of inmate Wood? A. The day that it happened, after inmate Wood was
escorted to a holding enclosure behind the building, I instructed an officer to take the pants and the shoes from the inmate.
Q.
Did you see any injuries yourself, did you
yourself observe any injuries to inmate Wood? A. No. Did you see any injuries to any other inmates
Q.
that were associated with that reading class on that day? A. No other inmates besides Mr. Schwartz. MR. DIEBOLT: THE COURT: That's all I have, thank you. Cross examination, Ms. Bensley.
CROSS EXAMINATION MS. BENSLEY:
Q.
You were in a briefing at the time that you
received the information about the incident on September 27th, 2008? A. That's correct. And that briefing was being held in a room that
Q.
was very near to where Mr. Schwartz was found?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
A.
Right. Just essentially out the doorway? Out the doorway and around the corner. But a very short distance? Pretty close. And you told us that you instructed another
Q.
A.
Q.
A.
Q.
officer to gather the shoes and pants that Mr. Wood was wearing on September 27th? A. Right. That was so that the clothing and the shoes could
Q.
be collected as evidence? A. Correct. And you personally didn't take any swabs of the
Q.
pants, shoes or anything on Mr. Wood's person or his actual hands? A. No. You do recall seeing the bag of clothes and shoes
Q.
at some point? A. Yes. But you don't know where they ended up? No. You had some interaction with Mr. Schwartz on
Q.
A.
Q.
September 27th, 2008? A. Yes. And at that point Mr. Schwartz was explaining his
Q.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
injuries to you after he had been in this incident? A. Yes. And he was actually like naming the different
Q.
bones for you and the parts of the eye that he thought were effected? A. Right. And you were aware of Mr. Schwartz previous to
Q.
September 27th, 2008? A. I was aware that he was an inmate at Rincon, yes. Because you were actually aware of previous
Q.
assaults or fights that Mr. Schwartz was involved in? A. Well, what I was aware of was another supervisor
telling me that he had dealt with him in some situations, I don't remember the details on it. I personally had
never dealt with him in that capacity.
Q.
But you were aware that there had been some
previous issues? A. No, I heard that there were but I didn't know the
details of them.
Q.
And you had received information or had a
recollection that Mr. Schwartz didn't want to enter protective custody? A. The recollection that I had was another
supervisor telling me that he thought that he had heard about that.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Q.
And you had also recalled or had heard that Mr.
Schwartz had actually signed a statement that declined that protective custody? A. That would be the same answer for that. And that's a yes, you had heard that? I had heard that. MR. DIEBOLT: question, Judge. THE COURT: MS. BENSLEY: Sustained. I am going to object to the
Q.
A.
Q.
You were aware of that? MR. DIEBOLT: THE COURT: MS. BENSLEY: Same objection. Sustained.
Q.
Are you familiar with involuntary protective
custody or IPC as it is sometimes called? A. Yes. And is that when the prison, the Department of
Q.
Corrections actually can place somebody into that custody without the permission of that inmate? A. Right. That's a Fairchild description of that? Right. Were you aware of that happening to Mr. Schwartz
Q.
A.
Q.
prior to September 27th of 2008?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
A.
No. Can I have just one second, Your Honor. Were you
Q.
able to overhear or hear the conversation that Officer Fairchild was having with Mr. Schwartz on September 27th, 2008? A. I don't recall. Were you able to hear her conversation with
Q.
Mr. Wood ? A.
I don't recall either. I am going to show you a few photos. MS. BENSLEY: THE COURT: MS. BENSLEY: Your Honor, may I approach? Yes.
Q.
Q.
Let me show you what has been marked for And I Go
identification as defendant's exhibits S, T and U. am going to ask you if you are familiar with those. ahead and take a look at those. A. Yes, I am familiar with these.
Q.
And those are the shoes of Mr. Wood on September
27th, 2008? A. These appear to be the photos that I took of
inmate Wood's shoes on that date.
Q.
Those are a Fairchild representation of what you
actually saw as well as the pictures that you took? A. Correct.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
MS. BENSLEY: THE COURT: MS. BENSLEY:
And may I approach? Yes.
Q.
And let me give you S first.
What is this
picture, what are you trying to depict in this picture, what is it significant for? A. It shows what appears to be blood on the bottom
of inmate Wood's right shoe.
Q.
A.
And then defense exhibit T? The next one? Is that the same thing? The bottom of the shoe? The bottom of the left shoe, yes. And then defense exhibit U? That shows what appears to be blood on the front This last one also shows the
Q.
A.
Q.
A.
and tip of his right shoe.
spot that I believed at the time to be blood on his pants.
Q.
When you say the last one, can I approach again? THE COURT: MS. BENSLEY: Yes.
Q.
And that is defense exhibit U.
And there were no
other photos that you took of the shoes and clothing on that day? A. Not that I recall. MS. BENSLEY: Your Honor, I would move for the
admission of defense S, T and U.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 excused. witness?
THE COURT: MR. DIEBOLT: THE COURT: MS. BENSLEY: THE COURT: MR. DIEBOLT: THE COURT:
Any objection? No objection, Judge. Exhibits S, T and U are admitted, I don't have any further questions. Any redirect? No, Judge, thank you. Jury have any questions of this
Thank you, Sergeant, you may step down, you are
State have additional witnesses? MR. DIEBOLT: I have one additional witness, I can begin now if you
Judge, at the Court's pleasure. wish. THE COURT: you think? MR. DIEBOLT: THE COURT:
Will it take more than 20 minutes do
Probably for cross as well, Judge. All right. We will just end there
then for the day and that witness will be available tomorrow morning? MR. DIEBOLT: THE COURT: 10:30, Judge. Yes. All right. Ladies and
Gentlemen, at this point then, it is about 25 minutes to five, a little bit earlier than we usually stop but you have been in the courthouse a long time already today and
196
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
it will give you a chance to beat the traffic a little bit so we are going to recess for the day. We will ask you to return back tomorrow morning at 10:25 tomorrow morning. During the recess please
remember not to discuss the case with each other or with anyone else; keep an open mind; we will see you back here tomorrow morning. Thank you very much for your attention.
The record will show the absence of the jury, the presence of counsel and the defendant. Counsel, so as to help along with the preparation of the instructions, are we going to have any expert testimony in the case, is it necessary to have the expert testimony instruction? MR. KLEIN: MR. DIEBOLT: THE COURT: No. No, Judge. I believe that is Court's instruction Is either side going to
17 so we will take that one out.
request an instruction on the lesser included of assault? MR. KLEIN: THE COURT: No. So we can exclude those. And I
haven't had a chance to look over your instructions so I will have them ready tomorrow morning. Anything else we need to take up today? MR. KLEIN: MR. DIEBOLT: I don't believe so. No, Judge.
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THE COURT:
The Court will be in recess until
10:30 tomorrow morning in this trial.
198
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ___________________________ Deirdre Muzall, RDR, #50012 Certified Court Reporter I, Deirdre Muzall, certify that I took the shorthand notes in the foregoing matter; that the same was transcribed under my direction; that the preceding pages of typewritten matter are a true, accurate and complete transcript of all the testimony adduced, to the best of my skill and ability. C E R T I F I C A T E

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Jeff Wood Trial Transcript, Day 1

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1

STATE OF ARIZONA, Plaintiff,

) ) ) vs. ) ) JEFFREY ALLEN WOOD, ) Defendant. ) ______________________________)

2 CA-CR 2011-0193 CR-20093952

THE HON. JOHN LEONARDO, DIV. 10

APPEARANCES: MARK DIEBOLT appearing for the State

DONALD KLEIN SANDRA BENSLEY appearing for the Defendant

JURY TRIAL - DAY ONE 21 22 23 24 25

Deirdre Muzall, RDR, #50012 Certified Court Reporter

1 2 PENDING MATTERS 3 4 5 6 7 JURY SELECTION

116 139 170

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 State . MR. KLEIN: THE COURT:

MR. DIEBOLT: THE COURT: criminal 20093952 .

Good morning, Your Honor.

testimony, we disclosed him as well previously.

in the community about Mr. Schwartz . Mr. Schwartz.

THE COURT: MR. KLEIN: THE COURT: concerned about.

Just like any other witness? Not as his lawyer.

Right, okay, that's what I was

Mr. Diebolt. Judge, I don't know how it's

potentially . another guy.

Oh, this guy, I remember this guy, he killed

I think the Court can say he used to

convicted of murder, though. MR. KLEIN: Technically , Judge, conspiracy to

about the possible length of the trial .

calling four witnesses.

early , at the point where I normally would tell them what

Yes, sir. You may bring them in.

The jury is entering. Please be seated. Good morning,

This is the time set for criminal

Ladies and Gentlemen , at this point

((Whereupon the prospective jury panel is

test; there are no right or wrong answers .

whole panel is no, then you need do nothing.

verbatim everything that is said in open court.

My name is Don Klein, I am a lawyer at the Assisting me is

Pima County Public Defender's Office.

name of Jeffrey Wood .

And that is there are

two inmates at the Department of Corrections , the

defendant and the victim.

The defendant attacked the Beat him

victim outside a creative writing class.

think the evidence is going to show is Jeff Wood.

he was wrongly convicted, wrongly put in prison and he's

He's willing to risk being in general

further attacks on Mr. Schwartz.

Jeff Wood went into the

THE COURT: JUROR MARUM: public library. THE COURT:

And you think that the

JUROR PATRICIO: years ago. THE COURT:

Some kind of an assault? Yes.

JUROR PATRICIO: THE COURT:

Did it involve any weapon? No

JUROR PATRICIO: THE COURT:

Do you think that will have any

Then Ms. Patricio, we will excuse you

Would you have had yes answers to

Ms. Dugdale, good morning.

JUROR DUGDALE : THE COURT:

Do you think that is going to have

Is there anything about the nature of