Supplemental Jury Instructions
175 linesUNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x UNITED STATES OF AMERICA, v. 20 CR 330 (AJN) GHISLAINE MAXWELL, Defendant. Jury Trial ------------------------------x New York, N.Y. December 27, 2021 10:30 a.m. Before: HON. ALISON J. NATHAN, District Judge APPEARANCES DAMIAN WILLIAMS United States Attorney for the Southern District of New York BY: MAURENE COMEY ALISON MOE LARA POMERANTZ ANDREW ROHRBACH Assistant United States Attorneys HADDON MORGAN AND FOREMAN Attorneys for Defendant BY: JEFFREY S. PAGLIUCA LAURA A. MENNINGER -and- BOBBI C. STERNHEIM -and- COHEN & GRESSER BY: CHRISTIAN R. EVERDELL Also Present: Amanda Young, FBI Paul Byrne, NYPD Sunny Drescher, Paralegal, U.S. Attorney's Office Ann Lundberg, Paralegal, Haddon Morgan and Foreman
(Trial resumed; jury not present)
JUDGE NATHAN: I did receive a note. May we please have the following items: Different colored Post-Its; white paperboard; highlighters, different colors; and then Matt's transcript; and then also may we have a definition of "enticement." So we're going to get started on the supplies. We'll get them colored Post-Its, white paperboard. I'm not sure exactly what they mean but we'll try and find a large pad, and we'll also give them a whiteboard and dry erase markers and then highlighters. Ms. Moe, Matt's transcript you'll get printed immediately?
JUDGE NATHAN: Okay. And then I'll hear from the parties as to how they would like to respond to the request for a definition of "enticement."
MS. MOE: Your Honor, with respect to the jury's question regarding enticement, our view is that the Court's instruction, which is on page 21, instruction number 15: "The terms persuaded, induced, enticed, and coerced have their ordinary everyday meanings." That remain true now, and so we would propose referring them to that portion of the Court's instruction.
MR. EVERDELL: Your Honor?
JUDGE NATHAN: Just a moment. Trying to get my things up and running here. Yes.
MR. EVERDELL: Yes, your Honor. So I think there are -- if I recall, there are cases that do try to define those words in a little bit more detail. I don't have those cases at my fingertips and I'm trying to get them online, but I don't think we have WiFi in the courtroom.
JUDGE NATHAN: I have one. United States v. Almonte, 16 CR 670; and United States v. Dupigny, 19 CR 528, gave a little bit of elaboration on that series of words. For "entice" -- I think this is true for both those cases, I'll confirm -- they provided in the charge that "entice" means to attract, induce, or lure using hope or desire. I think I recall, Mr. Rohrbach, you referenced that definition at one point when we were discussing an issue, if I'm not mistaken. Is that what you had in mind, Mr. Everdell?
MR. EVERDELL: The one I was thinking of, I think, is the one -- I'm trying to find the name, is it -- should be in my notes. Just give me one minute, your Honor. The one where we were arguing the Rule 29, which I cited to the Court, Broxmeyer, I think; am I correct about that?
JUDGE NATHAN: I don't know. This was the causation -- you wanted me to define with respect to causation, is that the --
MR. EVERDELL: One moment, your Honor.
JUDGE NATHAN: I think it was -- it was the one I was talking about with the issue of causation, but I believe that case also tried to define the words separate and apart from the causation issue.
MS. MOE: Your Honor, the government would have no objection to the Court providing the instructions set forth in Almonte and Dupigny.
JUDGE NATHAN: That's the model I have. Those charges, I believe, also provided the language that we did include, which is what the parties agreed on, which is that these words have their ordinary meaning. So on the table derived from Almonte and Dupigny is: "Entice" means to attract, induce, or lure using hope or desire. I think we would also reference them back to the line that you indicated, Ms. Moe.
JUDGE NATHAN: Just a moment.
MR. EVERDELL: Your Honor, I'm sorry.
JUDGE NATHAN: Take your time.
MR. EVERDELL: Because I don't have internet access, so I can't pull it up on my computer.
JUDGE NATHAN: Broxmeyer, which is 616 F.3d 120, defined "entice" as "to draw on by exciting hope or desire; allure."
MR. EVERDELL: Your Honor, I think then we'll just go with the Dupigny and Almonte one that you raised before.
JUDGE NATHAN: Okay.
MS. MOE: Thank you, your Honor. And we also now have the transcript of Matt's testimony. We're happy to hand that up.
JUDGE NATHAN: Okay. One of my law clerks will grab that please and take it to the CSO, while Ms. Williams is getting the supplies; so that just goes to the CSO. In response to the note, I will write: Dear jury, we are gathering the supplies you requested. We've sent back Matt's transcript. As for your question regarding the definition of enticement -- could you give me the page and line again of the charge, Ms. Moe?
MS. MOE: Yes, your Honor. It's on pages 21 and 33; those are instruction number 15 and also instruction number 26.
JUDGE NATHAN: Okay. So for page 21, what's the line number or lines?
JUDGE NATHAN: And for 33?
JUDGE NATHAN: Okay. I left my charge back there. So I'll refer them to pages 21 and -- page 21, lines 5 and 6; and page 33, lines 5 and 6. I will then say: Further, "entice" means to attract, induce, or lure using hope or desire. Ms. Moe.
JUDGE NATHAN: Mr. Everdell.
MR. EVERDELL: That's fine, your Honor. Thank you.
JUDGE NATHAN: All right. Thank you. I will write that note and send it back. We'll mark -- I'm sorry, I forget what court exhibit we're on, but we'll mark this note as the next court exhibit once Ms. Williams reminds me where we are. All right. Thank you. Yes.
MS. STERNHEIM: Judge, I just have a quick statement, and I'm asking the Court's assistance. You mentioned on Friday that -- I guess it was Wednesday that we're supposed to wear N95 masks in the courtroom -- or in the courthouse, I should say.
JUDGE NATHAN: Yes.
MS. STERNHEIM: And it's my understanding that one has been provided for Ms. Maxwell, but she can only wear it in the courtroom. And I think that that is not a correct health standard.
JUDGE NATHAN: The rule actually is in the courthouse.
MS. STERNHEIM: In the courthouse.
JUDGE NATHAN: Entry into the courthouse is required to wear an N95 or KN95.
MS. STERNHEIM: And I would ask that the Court direct the marshals to permit her to wear it throughout the day.
JUDGE NATHAN: I will consult with the marshals through the district executive's office. But my understanding of the new rule as of today is that entry into the courthouse requires wearing at all times, except briefly when eating or drinking, a KN95 or N95. But I'll get confirmation of that.
MS. STERNHEIM: Thank you very much.
JUDGE NATHAN: Anything else?
MR. EVERDELL: No, your Honor. Thank you.
JUDGE NATHAN: Thank you.
(Recess pending verdict)
JUDGE NATHAN: We have another note, which will be Court Exhibit 13: May we also have Parkinson's transcript. Ms. Moe, you'll provide that?
JUDGE NATHAN: Okay. And let me just note we have now sent back everything requested in the prior note in terms of supplies, Matt's transcript, as well as the response from me that I outlined last time. Anything else, counsel?
MR. EVERDELL: No, your Honor.
JUDGE NATHAN: Thank you.
(Recess pending verdict)
JUDGE NATHAN: I have a note. May we please have the transcript of David Rodgers.
JUDGE NATHAN: Other issues to raise?
MR. EVERDELL: Not from the defense.
JUDGE NATHAN: We don't know what time the jury wishes to deliberate to this evening. My inclination would be to -- it's up to them when they wish to stop, so I assume we'll get a note. So I think we'll wait for that. But I am inclined to think about, if they are not done, extending deliberations tomorrow for at least some amount of time. But I'll hear from you on that. So you can think about it or respond to it now, Ms. Sternheim.
MS. STERNHEIM: I would just say that I think the jury should basically set its own schedule. You can suggest if they want a longer day, but I don't think we should be pushing them. They seem to be working very studiously and they seem to have a mind of their own. Because last week the Court invited them to sit the extra day and they declined that. So an inquiry may be appropriate, but I don't think telling them what they should do is necessarily the right thing to do.
JUDGE NATHAN: Well, I have told them previously that they are here till at least 5. I think the question is whether, in light of the circumstances we find ourselves, we should encourage longer, if it's available to them. But you think about it. I'll hear from you. I'm not intending to do anything just yet. I presume we will hear from them as to this evening, but think about the indication of at least some extension of hours tomorrow if they have not completed the task. All right? Thank you.
(Recess pending verdict)
JUDGE NATHAN: I have a note. Under Count Four, if the defendant aided in the transportation of Jane's return flight, but not the flight to New Mexico, where/if the intent was for Jane to engage in sexual activity, can she be found guilty under the second element? I'm going to let you take a -- if you want to just take a look at the note. Counsel, you're welcome to take a photo of it, if that helps.
MS. STERNHEIM: Thank you.
JUDGE NATHAN: Mark the note as Court Exhibit 14. THE DEPUTY CLERK: 15.
JUDGE NATHAN: 15. Counsel, soon I'll look for your proposals. Another note from the jury. This one says: We would like to end deliberations at 5 p.m. today. So we'll take up extending deliberations after we resolve the response to this question.
(Counsel conferred)
JUDGE NATHAN: All right. Let me get a proposal.
MR. EVERDELL: Happy to talk, your Honor.
JUDGE NATHAN: Counsel, are you ready?
JUDGE NATHAN: Okay.
(Counsel conferred)
JUDGE NATHAN: Defense counsel, are you ready?
MS. STERNHEIM: Yes.
JUDGE NATHAN: Okay. Go ahead, Ms. Moe.
MS. MOE: Your Honor, our proposal would be to refer the jurors to instruction number 21 on page 28 of the Court's instructions, which pertains to comprehensive instruction with respect to the second element. Beyond that, we're not able to parse the question because we find it confusing; so we think the safest course is to refer the jurors to the comprehensive instruction with respect to the second element.
JUDGE NATHAN: Mr. Everdell.
MR. EVERDELL: Your Honor, I think the answer to this question is no, and I'll tell you the rationale for this. As to the jurors' note, they've clearly separated out in their minds the flight to New Mexico versus the flight back from New Mexico. And in their minds, there still is a question, it would seem, that the flight -- whatever the purpose of the flight to New Mexico was, whether it was for illicit sexual activity or not, that is different from the purpose of the flight back from New Mexico. And they are asking can she be found guilty solely on if there's some aiding and abetting, some helping of that flight from New Mexico, which presumably the flight home they're saying.
JUDGE NATHAN: So the flight from New Mexico to where?
MR. EVERDELL: Well, there is no record of a flight from New Mexico. But what they are saying, I think, in this note is they are separating out in their minds the flight to New Mexico versus whatever flight she may have taken from New Mexico. And I would say based on the instructions in the Court's instructions which the government pointed to, there has to be -- the significant or motivating purpose of the travel across state lines has to be that Jane engaged in illicit sexual activity. There is no significant or motivating purpose of a return trip where Mr. Epstein wasn't present; it's just a return trip from New Mexico. That would not be a significant or motivating purpose. She is just presumably going home, but is not for the purpose of engaging in illicit sexual activity. The testimony, if we are to believe it, is that she went to New Mexico for some purpose to engage in sexual activity, that's if you believe Jane's testimony. But returning from there is not that purpose. Returning is returning, or it's going somewhere else; it's going somewhere away from where -- at least in the record, the evidence in the record, if there is any -- Epstein was presumably in New Mexico. This is her leaving New Mexico. So I don't think that qualifies as a significant or motivating purpose. That travel across state lines is for some other purpose.
MS. MOE: Your Honor, I don't believe this note is that clear about what flight we're talking about. The note begins by talking about an unspecified return flight, and then it turns to talking about a flight to New Mexico. Then there's a modifying clause about intent. It is unclear which of the two flights we are now modifying. I think the safest course here is to refer the jury to the elements of the crime. I think guessing at what flight they may be talking about is sort of beyond the reach of this question because they haven't identified a flight here.
MR. EVERDELL: Your Honor, I think they've been fairly clear. They say: If the defendant aided in the transportation of Jane's return flight, but not the flight to New Mexico. The only evidence we have of a flight to New Mexico with Jane is the one in the flight logs, and it is a flight to New Mexico. And so the return flight would be some other flight besides the flight to New Mexico. She is also alleged that -- and to be honest, I think it was a little unclear what may have happened in New Mexico based on her testimony; but if there was any illegal sexual conduct, the flight to New Mexico, this is what they are debating, because they say, but not the flight to New Mexico, where/if the intent was for Jane to engage in sexual activity. Okay. So it seems that the jury is deliberating or at least trying to decide whether the flight to New Mexico was for the purpose of engaging in illegal sexual activity. And they are confused that the return flight that happens after that, could that be the basis alone for a conviction on Count Four. Answer is no, because that return flight is not for the purpose of illegal sexual activity.
MS. MOE: Your Honor, at the very least, the answer to this can't be no, because a jury could infer intent to engage in sexual conduct and the return of a flight in aiding and abetting that. We can't tell which flight we're talking about, which leg of a potentially multi-leg trip we're talking about. And so I think here, again, the Court gave a thorough instruction about this particular element. Because we can't tell which set of facts they are asking about, I think the proper course here is to refer the jury to the particulars with respect to this element.
JUDGE NATHAN: It's difficult to know and to have in my head, based on the articulation of the question, as well as the testimony, exactly what they are referring to. I don't know. So I am inclined to follow the government's suggestion here and to say, I can't provide an additional response to your question other than to consider carefully the instructions as to -- I mean, I could either point them to all of the count or specifically to the second element, since that's what they're asking about.
MR. EVERDELL: If we're going to just refer them to certain language, I think we refer them to the language in the last paragraph.
JUDGE NATHAN: Page?
MR. EVERDELL: Page 28, instruction number 21, lines 14 through 17.
MS. MOE: Your Honor, those particular lines don't appear to be what the jury is asking about. I recognize that the note refers to Count Four and the second element, but the entire note seems to be about transportation of some kind. And so we would propose just referring them to the instruction in its entirety.
MR. EVERDELL: Your Honor, I don't find this note confusing. And I think simply saying it's confusing --
JUDGE NATHAN: Well, I find it confusing. For example, I don't know if this is a question about aiding and abetting. I don't know.
MR. EVERDELL: Your Honor, I think this is pretty -- I think this is a question about whether you can hold her accountable for a return flight, if you believe that she had something to do with arranging that return flight from New Mexico; whereas the first flight to New Mexico may have been -- at least there's some testimony to consider about whether that was for the purpose of illegal sexual activity. It was not true of the return flight, the flight back, wherever she was going, home, somewhere else, somewhere away from Mr. Epstein. I think they are asking, Can we consider if Ms. Maxwell had anything to do with that flight, arranging of that flight, whether she can be convicted, because it's on the return trip from an area where Jane claims she was involved in sexual abuse.
JUDGE NATHAN: But it says where/if the intent was to engage -- for Jane to engage in sexual activity.
MR. EVERDELL: Right. They are saying with a flight to New Mexico, where/if there was an intent for Jane to engage in sexual activity. So there is still an open question in their minds about whether the flight to New Mexico, that travel, was for the purpose of engaging in illegal sexual activity. But they are now considering whether the flight out of New Mexico, if Ms. Maxwell had any -- did anything to do with that flight, with arranging that flight, could we convict her on that count alone. Because there is no, I think, evidence that she arranged the flight going to New Mexico; instead, they are considering now whether there's any evidence that she may have arranged the flight out of New Mexico. And is that enough to provide a conviction on Count Two? And I think the answer to that is pretty clearly no -- I'm sorry, Count Four I should have said, not Count Two. Because there's no evidence of that. And there is also -- there is no -- in the instructions themselves, that would not be a significant or motivating purpose for that travel across state lines. That would simply be for her to return home. That's not travel for the purpose of engaging in illegal sexual activity.
MS. MOE: Your Honor, I think this colloquy illustrates how confusing the note is. We are now guessing at what hypothetical facts the jury is talking about; and then guessing hypothetically what their legal question is on top of that. And I think we're compounding guesswork, what this question is about. And so the question is about the element; the charge is about that particular element. I think more guesswork here makes this more confusing and not less confusing. I think, as the Court pointed out, some aspects of this note are about aiding and abetting. And so even referring the jury just to instruction number 21 leaves out that aspect of the jury's deliberations and their determination on this particular issue. And so we think the safest course is to provide the jury with applicable law in this area, and they can find the facts as they see fit and as they apply to these particular instructions.
MR. EVERDELL: Your Honor, I don't think this is a question about aid and abetting, broadly speaking. I think they are talking about the flights to and from New Mexico. I think that much is pretty clear from the note. And whether or not Ms. Maxwell had anything to do with arranging that travel --
JUDGE NATHAN: But your legal contention is she can't be found guilty of this count unless the jury concludes that she aided in the transportation to New Mexico. That's not legally accurate, is it?
MR. EVERDELL: Your Honor, the instruction itself says it has to be a significant or motivating purpose for the travel across state lines.
JUDGE NATHAN: Right.
MR. EVERDELL: Right? The travel back to a place where she is presumably not engaging in illicit sexual activity, that is not a significant or motivating purpose for that travel.
JUDGE NATHAN: You didn't answer my question.
MR. EVERDELL: Maybe I'm confused by the question, your Honor.
JUDGE NATHAN: To be found guilty on this count, must the jury conclude that she aided in the transportation of Jane's flight to New Mexico?
MS. MENNINGER: Your Honor, may I interject myself into this conversation?
JUDGE NATHAN: If you answer the question, I would value it.
MS. MENNINGER: I will. It has to be a place for which the travel was a significant or motivating purpose for illegal sexual activity. In this hypothetical that they've given in this question, they have a comma in two places. The first place they have a comma is after the return flight, comma, but not the flight to New Mexico, where the intent was for Jane to engage in sexual activity, comma. So they have excluded out where they're hypothetically claiming that the flight to New Mexico was the place for which the intent was for Jane to engage in sexual activity.
JUDGE NATHAN: Wow.
MS. MENNINGER: And they are asking, Can we find her responsible for the return flight, but not that flight to New Mexico, where the intent was to engage in sexual activity. That's why I think they have written it with the commas as they are.
JUDGE NATHAN: Okay.
MS. MENNINGER: So they have to be directed --
JUDGE NATHAN: Let me try again. Can I get a yes or a no to my question? Is it your legal position that the jury must conclude, in order to convict on this count, that the defendant had to aid in the transportation of the flight to New Mexico?
MS. MENNINGER: I don't believe that -- no, no, it is not my contention.
JUDGE NATHAN: Thank you.
MS. MENNINGER: And the reason is the indictment does not specify New Mexico. It could be a flight to New York, for example. It could be a flight to New Mexico. It could be any place, the purpose for which was to engage in illegal sexual activity. So it doesn't have to be to New Mexico.
JUDGE NATHAN: I agree with that. This is why it's difficult to parse the question without assuming a variety of meanings, and I'm trying to track your comma argument.
MS. MENNINGER: Had they placed the comma after New Mexico rather than the place where they did put the comma, then that would have told us, can't she be responsible for aiding in the transportation of the return flight, comma, but not the flight to New Mexico, comma. That would then put the where/if the intent was --
JUDGE NATHAN: That would be an entirely different meaning to the question.
MS. MENNINGER: I think so.
JUDGE NATHAN: No, I agree. What I don't know is I don't know what they meant and I don't know how much weight to put on that comma placement; because, as you've noted, that precise sentence without that comma has an entirely different meaning.
MS. MOE: Yes, your Honor. And I think at the point at which we're parsing jury notes like statutes this finely, I think it illustrates the point that this note is confusing; that we're not sure what the jury is asking about either factually or legally. The question is about the second element; and so we think the proper course is to refer the jury to those particular instructions. And the jury is free to send a clarifying note, if they wish to do so. But I think when we are parsing commas this finely in a note that is unclear, it's unclear which clauses are modifying which clauses, or which flights we're even talking about, I think it's far too confusing to give simple answers here.
JUDGE NATHAN: I can't answer this ambiguous question no. I don't know that the answer is no, even with the ambiguity; because I don't know if what they have in mind is an aiding and abetting question, which we haven't discussed yet.
MS. MENNINGER: They never used the word "abet."
JUDGE NATHAN: That's true. I won't assume that's the question for purposes of the answer, but I also don't assume the meaning that you've put on it for purposes of the answer. So the only solution here is to say, I direct you to consider the full instruction on Element 2 of Count Four on page 28.
MS. MENNINGER: Our request would be to emphasize the portion of that that talks about the purpose of the travel. Because they have highlighted the purpose of the travel in their question. And the way I read it is certainly that that's their question. If they don't have evidence that the intent on the return flight was for purposes of sexual activity, then I do think the answer, as Mr. Everdell said is, no, they can't convict.
MS. STERNHEIM: May I have a moment?
(Counsel conferred)
MR. EVERDELL: Your Honor, I'm sorry to raise another issue, but I think we have to, given the note itself. One moment. Sorry. The photograph on the phone keeps disappearing. We're talking about they are referring to Count Four, which is the substantive transportation count, which, as we know, has to deal with the violation of New York law. And they are talking about flights to New Mexico; and can she be found guilty on the second element of Count Four regarding these flights to New Mexico. So I think we may have to respond to the jury on that score as well, which is the fact that they have to be considering New York events for Count Four, rather than -- or violations of New York law, which wouldn't occur in New Mexico for there to be a conviction on Count Four.
MS. MOE: Your Honor, I think that's exactly why we proposed directing the jurors to the entirety of the instruction, which says just that. The second paragraph of that same instruction reminds the jury, as the instruction does throughout, that we're talking about New York Penal Law, Section 130.55. And so I think our proposal remains the same that they be referred to the entirety of the instruction, which includes that language, among other aspects of this particular element.
JUDGE NATHAN: Yes.
MS. STERNHEIM: Judge, may I be heard for a moment?
JUDGE NATHAN: Sure.
MS. STERNHEIM: I think the fact that the jury has mentioned New Mexico regarding a count that pertains to New York is not just cleared up by referring them to the instruction. Clearly they are making an error concerning which state begins with "New." And I suggest that if the Court wishes to refer them to the charge, the Court also clears up the fact that Count Four requires a violation of New York law, not New Mexico law.
JUDGE NATHAN: That's certainly why we should refer them to the whole charge. That's what lines 7 through 10 make clear.
MS. MOE: Yes, your Honor. The only illegal sexual activity identified in the entirety of the jury charge is a statute in New York. There cannot be any risk of confusion on that score. This particular charge reminds the jury of that and includes that language as well. The jury has not been charged about any laws in New Mexico; so there can't be any risk of confusion for exactly that reason.
MR. EVERDELL: I just don't understand the confidence about how there can be no possible confusion --
JUDGE NATHAN: This conversation is stopping. My decision is to refer them back to this charge, because it is a proper instruction on the second element to Count Four. I do not know what this question means. It's too difficult to parse factually and legally what they're asking. So the only option in those circumstances is to direct them back to the count. So I'll take any requests beyond simply saying, I received your note. I refer you to instruction number 21 on page 28. Please consider carefully the full instruction.
JUDGE NATHAN: Mr. Everdell?
MR. EVERDELL: That's fine, your Honor.
JUDGE NATHAN: Okay. I'll do that. And then -- well, let me write it, and then we'll send it back, and then we'll discuss -- because we have to bring them in to dismiss them. So I received your note. I refer you to instruction number 21 on page 28. Please consider the entirety of the instruction.
JUDGE NATHAN: Okay.
MR. EVERDELL: Without waiving our prior objection.
JUDGE NATHAN: Understood. All right. While Ms. Williams is handing that to the CSO, for extending deliberation times going forward.
MS. MOE: Yes, your Honor. We've considered the matter. And the government's view is that is within the Court's discretion certainly to set a schedule for jury deliberations. Given the circumstances, we agree that it's prudent to advise the jury that, barring any scheduling complications, they should expect an extended day tomorrow.
MS. MENNINGER: Your Honor, at this point, because it has only been three days, we believe that any suggestion that they should stay later is beginning to sound like urging them to hurry up, when clearly they know that they can deliberate as long as they want and they should be able to deliberate as long as they want. They haven't expressed any hesitation. They've been asking for transcripts, they've been asking for materials. While we would not mind the Court giving an instruction much like it did last week, telling the jurors that should they choose to stay later on any given day, the Court can make arrangements for them to do so, we would object to trying to urge them to stay later if they are not asking to do so and aren't expressing any difficulty in proceeding with the deliberations that they are currently undertaking.
MS. MOE: Your Honor, the Court has previously extended certain days or contracted certain days, depending on our schedule; and, in fact, I think the first day of deliberations we had an extended day on the consent of both parties. We don't believe that sends any kind of signal, other than that the Court is setting a schedule. And we think that's appropriate here given the circumstances.
JUDGE NATHAN: I think what we should do, I'll tell them that if deliberations are not complete starting tomorrow, I would like you to make yourselves available to deliberate until at least 6 p.m. each day. Of course, if you all agree to deliberate later than that, you're most welcome to do so. Please let me know by note when you wish to stop, but the default going forward will be 6 p.m., unless anyone indicates to Ms. Williams that that constitutes a hardship. Okay?
MS. MENNINGER: That would be our concern, your Honor, obviously, that some of them do have hardships.
JUDGE NATHAN: As I did last time, I'm going to tell them the default will be 6; but if it's a hardship, they should let Ms. Williams know, in which case -- so, again, the language will be, If deliberations are not complete starting tomorrow, I'd like you to make yourselves available to deliberate until at least 6 p.m. Of course, if you all agree to deliberate later than that, you're most welcome to do so. Please just let me know by note when you wish to stop. But the default going forward will be 6 p.m., unless anyone indicates to Ms. Williams on their way out that that is a hardship. Okay?
MS. MENNINGER: Your Honor, we would object to adding the "If deliberations are not complete." I think that any kind of suggestion that the deliberations should be resolving by a certain time or not resolving could potentially --
JUDGE NATHAN: That is the precise language I used last week in asking if they wanted to sit on Thursday. It didn't cause them to think that they had to complete their deliberations.
MS. MENNINGER: But the rest of the language, your Honor, last Thursday was "if you want to." And this one seems a little bit more like we're suggesting that you do it unless you have a hardship.
JUDGE NATHAN: I clearly have discretion to set the schedule, there's no doubt about that. And I can do it over your objection. So I'm happy to give -- I think we should set it as a default, unless there's a hardship.
MS. MENNINGER: I understand that, your Honor. I just would request -- and it's our request that your Honor not include the language "unless deliberations are complete."
JUDGE NATHAN: I will use the same language that I used last week. It's precisely the same language I used on multiple occasions without objection. And I don't want them to assume that I think it should take longer than that. That's the concern. So I don't want them to assume what I'm saying, that I'm suggesting it should take longer. I don't want them to assume it should take shorter. I'm happy to add, if you want, Of course, I don't mean this in any way to pressure you; you should take all the time you need.
MS. MENNINGER: Yes, very much would appreciate that, your Honor.
JUDGE NATHAN: Ms. Moe.
JUDGE NATHAN: All right. Bring in the jury.
(Jury present)
JUDGE NATHAN: Thank you, everyone. Hi, members of the jury. Please be seated. I did receive your note asking to finish today at 5, so I brought you in to dismiss you. A few things. Of course, bear all of my instructions in mind. Please continue to take precautions in light of the increase in the variant. I need all of you here and healthy, of course. So take your masks, be cautious. I appreciate that. You'll begin again tomorrow at 9 a.m. Same instructions: Wait till everyone is there, then begin your deliberations. If deliberations are not complete starting tomorrow, I would like you to make yourselves available to deliberate until at least 6 p.m. Of course, if you all agree to deliberate later than that, you're most welcome to do so. Please just let me know by note when you wish to stop. But I'd like you to plan to deliberate until at least 6 p.m. As with the last time, if that is a hardship that you can't do, let Ms. Williams know that on your way out and we'll adjust. But otherwise, please plan for 6 p.m. Of course, by this I don't mean to pressure you in any way. You should take all the time that you need. With that, I bid you a good night. Be safe. And we'll see you tomorrow. Thank you.
(Jury not present)
JUDGE NATHAN: Matters to take up?
MS. STERNHEIM: Nothing.
JUDGE NATHAN: Okay. I'll see you tomorrow. Be safe, everyone.
(Adjourned to December 28, 2021 at 9:00 a.m.)