July 19, 1979: Bench Conference
MR. BLACKBURN: Your Honor, may Counsel approach the Bench?
THE COURT: Yes.
B E N C H C O N F E R E N C E
MR. BLACKBURN: We didn't object at the point on the reasonable hypothesis, because we did not want to interrupt Wade -- I mean the circumstantial. We would like a clarifying ruling on that or some instruction to the jury.
THE COURT: Well, of course, Wade misstated the law. I am sure it was not intentionally. It may be the law in North Carolina. It is not the law in the Fourth Circuit.
MR. BLACKBURN: We just did not want to interrupt him.
MR. SMITH: At any time Your Honor wants to correct it, I have no objection to it.
MR. BLACKBURN: We were concerned about the every other hypothesis.
MR. MURTAGH: Mr. Smith in his opening statement said that we will prove that there was nothing insane about Jeff; that he was not under the influence of drugs or alcohol. And I think it is not an issue of insanity or sanity. He is presumed sane, and the Government does not have to show -- other than the premeditation or malice aforethought --
THE COURT: I didn't read his statement to the jury as requiring any proof one way or the other.
MR. SMITH: No indeed.
MR. MURTAGH: But the word "insanity" is before the jury now, Judge, and also the Motion on Sadoff is still before the Court. We think it requires some type --
THE COURT: (Interposing) Do you have any Motion to make and what is it?
MR. BLACKBURN: We would Move first of all, Your Honor, that clarifying instructions be given on the circumstantial evidence at this time.
MR. SMITH: I would hope that Your Honor would do that when you instruct the jury.
MR. MURTAGH: Your Honor, we would also Move that the Court rule on the Motion in limine on mentioning insanity. It has already happened in the opening statement, and I fear it is going to permeate the trial.
MR. SMITH: It is not going to permeate the trial.
THE COURT: I understand his position to be that he will show the man is sane, and there is no question of his sanity.
MR. MURTAGH: Yes, Your Honor. But that puts the burden on the Government to show that someone would have to be insane in order to commit this type of crime. That is not our burden.
THE COURT: I don't follow that.
MR. BLACKBURN: We would prefer an instruction now rather than later, since the injury occurred now, on the circumstantial evidence.
THE COURT: Well, had you objected timely I would have done it then. I will now handle it in a different fashion.
(Bench conference terminated.)
THE COURT: Members of the jury, an objection has been interposed by the Government to a particular statement or contention of the law as to what the law was concerning or the degree of proof. I simply say at this time that while Counsel are at liberty to argue in good faith what they contend the law is, that it will be the duty of the jury to take the law from the Court. And to the extent, if any, which you find the Court's statement of the law to be at variance with what any lawyer on either side of the case has said the law in his opinion was, then you will be bound to take the law from the Court.
The matters which were the subject of the objection will be covered in the final instructions of the Court to the jury. At that time you will be given the principle of law on the basis of which you will be governed and make your decision in the case.
At this time, before beginning the evidence in the case, we will take our morning recess, members of the jury. As I have stated to you individually as you were selected, and now I say to you collectively, while we are in recess at this or any other recess of the Court, you are not permitted to discuss the case among yourselves or with others or to allow, certainly, anything to be brought to your attention concerning the case.
And of course, rigidly to be enforced will be the instructions against reading, looking at or listening to anything about the case which may appear in any of the news media.
Finally, you must at all times keep a fair and open mind about the case. As I perhaps said to you -- I frequently do and you will hear it again -- in the very nature of things, both sides cannot talk at once. Consequently, it is unfair to draw conclusions on the basis of what one side is presently saying or presenting without giving equal time, so to speak, and an equal opportunity to the other side to reach conclusions and to argue their contentions.
During the course of the trial, I will not repeat all these instructions verbatim, but just may from time to time say, "Remember the instructions of the Court." You will know to what I am referring. And of course, they will be in effect at all times during the course of the trial.
I will let you go to the jury room. I don't know whether anybody has made any coffee for you this morning or not. But you will find the necessary equipment and a starter bag of coffee for you. You will also find a little refrigerator in which those of you who care to bring soft drinks or other items that need to be kept cold, you may keep those in there.
We will be reconvening at 11:25 for purposes of proceeding with the evidence in the case. For your further information as to our schedule, we normally recess at 1:00 o'clock for lunch and reconvene at 2:30.
In the afternoon we take a somewhat shorter recess than the one we take in mid-morning, such as the one we are about to enter. This will be our normal schedule, except that later in the day I will give you a somewhat altered schedule which we might follow on Fridays or a Friday if you see fit to adopt it. That would mean a little earlier convening in the morning and a little earlier recess on Friday afternoon.
Take a recess until 11:25, please.
(The proceeding was recessed at 11:02 a.m., to reconvene at 11:25 a.m., this same day.)