Washington Courts

Today, Judge O’Connor gave each juror a set of the final jury instructions.  At the same time she read the instructions to the jurors.  These are the instructions the jury is to follow in its deliberations and in reaching its verdict.  Here are the instructions.  Jury Instructions.

The jury was delivered to the charge of Ashley Koedding, Judge O’Connor’s Judicial Assistant, at about 3:15 this afternoon.  Ms. Knoedding is responsible for the jury. She took an oath to take charge of the jury and to protect it during its deliberations.  She took her charge quite seriously and with interest and pleasure, one could see that. 

One could also see that Judge O’Connor has great respect fot her.  Ms. Knoedding will deliver the jury back to Judge O’Connor and the court when the jury has reached its verdict – when the jury is ready to “return a verdict.”

The verdict form can be found at the end of the Jury Instructions.

One has to admire and respect this process.  It is a tribute to the evolutiom of human-kind.  we will make it even better as time goes on.

The presentation of evidence part of the trial came to an end just before noon today. This afternoon Judge Kathleen M. O’Connor took steps to ready the case for the next to final step, giving the case to the jury.

Judge O’Connor excused the jury when Attorney Kosnoff, for the plaintiff, told the court he would not be presenting any rebuttal witnesses. There is a story there and I tell it in a later post. The jury will return tomorrow.

This afternoon the judge, along with the attorneys, took care of an number of items. There were some final motions which had to be dealt with. Next, all of the exhibits had to be put in order. This meant that the court wanted to be sure it had full agreement with counsel regarding the exhibits which were admitted during trial. Some items were not admitted and they were taken out of the exhibit books.

After this task was accomplished, judge and counsel worked through the jury instructions to be given to the jury tomorrow. This took the rest of the afternoon. Each side presents jury instructions for consideration and use. The court, too, will present instructions. The instructions tell the jury what must be done and what various presumptions and standards are. The court will send a copy of the final instructions to me and I will put them up on this site.

Tomorrow morning, the judge will instruct the jury on the instructions and will give the jury a working copy of all of them.

Then counsel will make their closing arguments to the jury. This will take the rest of the morning. The jury should begin its deliberations in the afternoon. The jury members have not discussed the case amongst themselves. They will begin that task when the jury is given the case for deliberations.

Tomorrow, Monday, the attorneys for Morning Star Boys Ranch will finish their case.  They will put Kenneth Putnam on the stand. He will be the main witness; they also have two others.

Mr. Kosnoff and Dan Fasy will put on some rebuttal witnesses and the case will come to an end either in the afternoon or on Tuesday.

On Tuesday, if time allows, the attorneys will present final argument to the jury.  The jury will begin deliberations probably on Wednesday.

This weekend, Judge Kathleen M. O’Connor has been working on the jury instructions.  Both sides have presented instructions.  The instructions selected will be given to the jury prior to the time it begins deliberations.

Judge O’Connor is doing a fine job. She runs a good courtroom, she does so firmly but fairly. She is especially good with the jury. She is kind and considerate. She ensures the jury does not have to spend any more time than necessary waiting in the jury room. This means she limits the time which is needed to hear and decide matters outside of the presence of the jury. This morning, for example, some matters had to be decided before the jury came in. She moved the matters along and got the jury in within a half hour.

Today the jury was excused at 4:30 pm and she and the lawyers worked on various motions and housekeeping details until 5:30 pm. This was a bit unusual. Unusual because the judge usually has other matters in other cases which she has to attend to before the end of the day.

Timing is very important because the court cannot function, cannot do its work, without having a full compliment of staff – the bailiff, judicial assistant and court reporter. Each person has an important role and must be present when the court is at work.

Judge O’Connor works at home during the evening. A matter came up at the very end of the day and the judge asked that the attorney who was to present something would scan it and send it to her via email. She will spend a fair amount of time tonight reading the material and thinking and perhaps doing some research before she makes her decision. She will present her decision when court reconvenes tomorrow.

The judge is doing a good job, her efforts and her concerns and her ability to be businesslike and interested at every moment are a real credit to her and to the Spokane Superior Court.

On Monday, Judge O’Connor will have certain alternatives regarding the proposed testimony of Michael Clarke – (a) continuance to allow the defendant to meet the surprise testimony and to prepare for cross-examination of the surprise witness, (b) refusal to permit the surprise witness to testify, or (c) mistrial (meaning that the trial will have to start again and a new jury will have to be selected – over two weeks of court time will be wasted).

When the decision to exclude testimony stems, not from a willful violation of a court order, but from the fact that a witness was not disclosed until just before or during trial, prejudice to the other side is relevant. Miller v. Peterson, 42 Wn. App. 822, 825, 714 P.2d 695 (1986). Considerations, referred to as the Barci factors, will be used in deciding whether to exclude or allow testimony from Michael Clarke:

(a) the presence or absence of good faith attempts by the proponent of the witness to comply with the rules of discovery,

(b) the availability or discoverability of the witness at an earlier time,

(c) the circumstances of the proponent at the time of the securing of the witness, i.e., whether a

physical injury or illness had progressed to a point where diagnosis and/or prognosis was possible and/or whether the passage of time had made the consequences of the acts of the parties discernible to an expert witness at an earlier time,

(d) the materiality of the proposed testimony to the proponent,

(e) the extent of surprise to the opponent,

(f) the availability of opportunity to the opponent to depose the witness,

(g) the availability of opportunity to the opponent to prepare for cross-examination,

(h) the opportunity to the opponent to secure contradicting witnesses,

(i) the prejudice presented to a proponent or opponent’s case if a continuance is granted,

(j) the impact upon both parties of the expenses of delay, and

(k) the ability of an imposition of costs upon a proponent to remedy any hardship

imposed upon an opponent by the late calling of a witness.

Miller, 42 Wn. App. at 825 (quoting Barci v. Intalco Aluminum Corp., 11 Wn. App. 342, 349-50, 522 P.2d 1159 (1974)).

It has been said that court must also take care not “to exclude testimony as a sanction absent

any showing of intentional nondisclosure, willful violation of a court order, or other unconscionable conduct.’” Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997) (quoting Fred Hutchinson Cancer Research Ctr. v. Holman, 107 Wn.2d 693, 706, 732 P.2d 974 (1987)) (internal quotations marks omitted).

The attorney for the plaintiff will argue that there has been disclosure of the witness and that the Barci factors should not be applied. The disclosure is not a direct disclosure, however. It is a disclosure counsel will ask the court to presume from certain circumstances. What does one say in times like this? “Stay tuned?”

There are more than 18 sexual abuse claims filed in Spokane County Superior Court  against Morning Star Boys Ranch of Spokane, Washington. The trial of the first case began this past week (January 11, 2010) in  Department 4 before Judge Kathleen M. O’Connor.

The case is being tried to a 12-person jury. Jury selection took four days during the week of January 11, 2010. First, a large pool of jurors for the case was selected by the court system. This is the venire of potential jurors for the case. The members of the pool answered a set of basic questions presented in writing to them by the court. Prepared, I am sure, with the input of counsel. Then, the potential jurors came to the courtroom to be examined by the judge and counsel for the plaintiff and the defendant. As a result of the questioning, the person was passed for cause by both sides of the case or caused to be rejected for cause. If there was agreement re rejection for cause, the juror was excused.  When a juror was rejected for cause, there was really no debate regarding the rejection. The judge and counsel agreed.

About forty jurors remained in the venire after this process was completed. RCW 4.44.120.

The day after, all of the jurors were brought into the courtroom to be addressed by the judge and counsel for the parties. They were addressed as a group. Counsel had certain time to ask group and individual questions in front of the group. A good deal of “give and take” between the jurors took place with counsel asking questions, all monitored by the court. Counsel alternated. This went on for about a day and a half.

Then the jurors were taken to the jury room and counsel and the court selected the jury. Jurors were assigned to positions in the jury box. New motions for dismissal of such persons were made for cause. One was rejected for cause. Next, the attorneys went through the process of using their peremptory challenges. Using such challenge, counsel rejected a juror for no reason that needed to be expressed. After going through this process, 12 jurors and three alternates were selected.

All the jurors were called back to the courtroom and the judge then filled the jury seats and the alternate seats with those jurors which were finally selected from the venire. The jurors, 12 plus three alternates, were empaneled. The judge then excused the other jurors gratefully thanking them for their service as potential jurors in the case. She did a good job in this and all of the jurors were appreciative and clearly knew their service was truly appreciated. They then went back into the main jury pool to be called perhaps in another case during the term of their service.

When counsel and court were not dealing with jury selection matters, various pretrial motions were argued and decided and orders signed. The judge and counsel were sincere in their thanks. Those of us who watched were much impressed by the civility and importance of the entire process.

With the panel and alternates seated, the court made a statement to the jurors. The process was explained and certain admonishments were made. RCW 4.44.280.　

On Tuesday, January 19, 2010 ( at 9:00 a.m.),  counsel will make opening statements to the jury. The plaintiff’s attorneys will take about an hour for plaintiff’s opening statement. Defense counsel will make an opening statement at this time (he could hold off until the beginning of the case for the defense, but that is somewhat unusual). The defense will take about half an hour.