Doc 269: Transcript of co-defendnat, Dr Smith's jury Questions - 03-21-2008

8/9/2019 Doc 269: Transcript of co-defendnat, Dr Smith's jury Questions - 03-21-2008

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA, ))

)

-vs- ) Indictment No. 1:06-CR-337-07-CC

) Excerpt

ANDRE D. SMITH, M.D., ) Questions from the Jury

Defendant. )

Excerpt of the Jury Trial Proceedings

Before the Honorable Clarence Cooper

March 21, 24, 25, and 26, 2008

Atlanta, Georgia

APPEARANCES OF COUNSEL:

On behalf ofthe Government: Randy S. Chartash,

Assistant United States Attorney

Lawrence R. Sommerfeld,

Assistant United States Attorney

On behalf of

the Defendant: Charles R. Floyd, Jr., Esq.

Amanda Lohnaas, RMR, CRR

Official Court Reporter

United States District Court

Atlanta, Georgia

Case 1:06-cr-00337-CC-JFK Document 269 Filed 08/18/2008 Page 1 of 32


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* * * * *

(Friday, March 21, 2008, 4:25 p.m.; jury not

present.)

THE COURT: Counsel, I received a very disturbing

note, I'm sure you all have read it. You all haven't read it?

MR. FLOYD: Yes.

MR. CHARTASH: Yes, Your Honor, we have.

THE COURT: Let me read it into the record. And I'm

assuming it's from the foreperson, it is signed by someone, I

can't make out the name, but the note reads as follows: "Are

we deciding based on Internet policies or general" -- what's

that word?

MR. FLOYD: Acceptable.

THE COURT: " -- acceptable or based on the law?"

So I am going to send out a copy of the charge. They

did make an oral request for the charge. But I think my

response is you have to take the law as reflected in the charge

and apply it to the facts of the case. And if they have

further questions then I might have to more focus on this. I'm

scared to get out here because the first question, Internet

policies and general procedures, and, of course, the medical

standard is embodied in the charge.

MR. SOMMERFELD: That's the --

THE COURT: That's why I don't want to -- we don't

have anything in my charge about Internet policies.



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MR. CHARTASH: Can we disabuse them of that?

MR. SOMMERFELD: Right. Can we disabuse them of that

notion and say this is not to be decided on Internet policies?

THE COURT: If you all can agree.

MR. FLOYD: No, sir.

THE COURT: What do you want?

MR. FLOYD: I think you tell them you've given them

the law they have to apply to the case.

THE COURT: Right now I have to do that, we'll see

where that leads, that may clarify. And I'm just going to say

read the charge to answer the question, because your standard

is reflected, it doesn't say anything about Internet policies.

MR. SOMMERFELD: Right, can we tell the jury that?

MR. FLOYD: Judge, I think we have given them the

charge. Anything other than that would necessarily amplify

whatever else you put in the --

MR. SOMMERFELD: Your Honor, it's not unnecessarily

amplifying. They are asking for further instruction and they

said do we decide based on Internet policies, and I don't think

it's a matter of debate that that's not the case and so to

disabuse them from that is proper under the law.

THE COURT: Well, I had decided to do what I had

suggested.

MR. SOMMERFELD: Okay, thank you.

THE COURT: Let's try that first. I know where you



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are going but let me, I'm scared on appeal -- I better take it

one step at a time. Let me write out, I want to read to you

all what I'm going to send out, let me write it out first.

(Pause in the proceedings.)

THE COURT: Let me read these two. The first one I

have before me is just definition of conspiracy, they want to

define conspiracy. The charge will handle that.

The second one: "What year did the federal

government regulate the Internet pharmacies?" Didn't you all

get into that, when the government started regulating this

thing?

MR. CHARTASH: When?

MR. FLOYD: The C.F.R. reg was entered --

THE COURT: You know, I can't get into that. They've

got to rely on their own memory on that. As to the first one,

it addresses the charge. So I'm going to send out a note

telling them that -- I think we better recess because she's got

to put the charge together. Bring them in so I can just tell

them we're going to recess and on Monday morning we'll have a

copy of the charge which covers all the questions you've sent

to the Court.

The foreman of this jury is pretty prolific, Mr.

Chartash.

MR. CHARTASH: Yes, Your Honor, it appears as

though --



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THE COURT: Seems we'll get some more notes.

(Jury returned to the courtroom at 4:31 p.m.)

THE COURT: Ladies and gentlemen, please be seated.

I am in receipt of your three notes and I do think once we

provide you with a copy of the Court's charge so that it can be

read in its entirety to everyone then that will address your

concerns as reflected in the notes you've sent. But we won't

be able to do that until Monday because the court reporter has

to transcribe my charge.

So we are going to recess at this time and on Monday

morning after everybody is here I will provide you with a copy

of the Court's charge that does address each and every question

you've raised and then you are to resume your deliberations.

But I want the entire charge read by the foreperson or someone

designated by the foreperson because I don't want anybody to

take anything out of context or give undue emphasis to

something. But make sure the entire charge is read. Who is

the foreperson?

Thank you, Madam Foreperson. State your name for the

record.

THE FOREPERSON: Lysaida Moore.

THE COURT: Okay, we'll be in recess until 9:30

Monday morning, at which time I'll provide you with a copy of

the Court's charge. Thank you and good day. And please don't

discuss this case with each other, nor with anyone else.



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A JUROR: Not now?

THE COURT: Not now, it's over, you'll resume on

Monday morning, don't discuss it.

(Jury retired from courtroom 4:33 p.m.)

THE COURT: Well, good day, gentlemen. You all be

here at 8:30 -- you all be here at 9:00, please.

(Proceedings adjourned at 4:35 p.m.)

* * * * *

(Monday, March 24, 2008, 11:40 a.m.; jury not

present.)

THE COURT: Thank you, please be seated.

MR. FLOYD: Good morning, Judge.

THE COURT: Good morning, Mr. Floyd, Mr. Chartash,

Mr. Sommerfeld.

As you know, we received two separate communications

from the foreperson of this jury, one in which she enumerates

five questions, and the other in which she wants to know about

recent laws or clarifications to federal law.

Okay, as to -- let me just read, one of the notes

reads as follows: "Have there been more recent laws or

clarifications to federal laws that makes the gray area less

gray?"

I'm just going to tell them to disregard -- that they

are to apply the law as given by the Court. Anybody have any

question of that? They have the law before them that applies



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to this case. Mr. Floyd?

MR. FLOYD: No, sir, that's an appropriate response,

we feel, Judge.

MR. SOMMERFELD: Yes, Your Honor, that's fine, if you

tell them to apply what you've told them.

THE COURT: Yes, told them the law. And let's review

the other note, which lists five questions, the first being:

"What are the online regulations for prescribing controlled

substances?"

And you all correct me if I am wrong, I don't think

anyone introduced any evidence regarding online regulations.

MR. SOMMERFELD: Your Honor, there was the DEA

circular, there was the FSMB which the defense put in, there

was the Georgia regulations. I think overall the theme with

all of these goes back to what they were asking on Friday about

are they applying some sort of Internet law or the law as

instructed, the general accepted.

So, frankly, we would ask as to all these questions,

Your Honor mentioned on Friday one step at a time, you'd give

them the instructions, at this point to disabuse them of the

notion that there's some separate Internet law, that you've

instructed them as to what the law that they must apply is and,

if necessary, if Your Honor wishes, to repeat the instruction

as far as the usual course of professional practice and the

fact that we're talking about the standards of medical practice



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generally accepted and recognized in this country.

They seem to be asking a lot about Internet law, like

they did on Friday, and I think it's time to remind them that

they have sworn to apply the law that you instructed them.

THE COURT: Which goes back to what I said, they

already have the law, I'll re-emphasize you have the body of

law you are to apply to the facts.

MR. SOMMERFELD: Right, that there is no separate

Internet law.

MR. FLOYD: Judge, the Defense position is that the

Court should simply tell the jury as to all of these inquiries

that they have been given the law to apply to this case,

period.

THE COURT: That's what I -- yep. You know, I think

three, it seems like the medical standard has been made the

legal standard based on the indictment, I was looking at three

that posed a problem, and I just was not -- there's one

standard that was the standard as testified to by the expert

doctors. I think we come out much better if we try to address

each of these questions which may encompass the bottom line,

that is, apply the law to the facts of the case.

MR. FLOYD: If it please the Court --

THE COURT: Because as to one and two --

MR. FLOYD: Judge, if I might, with regard to the

Court's last comment about the standard testified to by the



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expert doctors, I think that would go beyond what's required to

respond, because if you recall, Dr. Smith also testified to

that standard, not as an expert, but as a doctor he testified

to what that standard was and I wouldn't want to magnify the

significance of the expert testimony without also stating that

Dr. Smith testified as to that standard as well, because they

can choose to accept whatever.

THE COURT: Okay.

MR. SOMMERFELD: Your Honor, in that regard I think

the instruction on the --

THE COURT: Let me do it this way because I'm a

little confused. Mr. Floyd, what's your response to question

number one: "What are the online regulations for prescribing

controlled substances?" Let me hear from both of you so I can

make some final decision.

MR. FLOYD: Judge, it would be the Defense position

that as to that specific inquiry the Court will say I have

given you all the appropriate law that you are to apply in this

matter, period.

THE COURT: And that would be your position as to

number two?

MR. FLOYD: That would be my position as to number

one, that would be my position as to number two. Actually,

that would be my position as to each question. I think to go

into any detail to magnify any specific part of the charge that



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you actually spoke about and that's my concern.

THE COURT: Thank you. Let me hear from you, Mr.

Sommerfeld.

MR. SOMMERFELD: Your Honor, the Government's

position would be that, yes, the jury has sworn to apply the

law as instructed. And in response to this question, the law

as instructed, "What are the online regulations for prescribing

controlled substance," that, as instructed, it is illegal to do

so outside the usual course of professional practice, and as

instructed on page 20 the usual course of professional practice

is measured in accordance with --

THE COURT: You're referring to my charge?

MR. SOMMERFELD: Yes, standard of --

THE COURT: You seem to be saying one and the --

MR. SOMMERFELD: -- generally recognized and --

THE COURT: -- same thing.

MR. SOMMERFELD: The emphasis from here is that they

be told that it's the generally recognized and accepted

standards, that there's no separate online standard.

THE COURT: Okay. Let me hear from you.

MR. FLOYD: Judge, again, I think without recharging

them you magnify the significance of one particular part of the

charge.

THE COURT: No, no, I didn't say recharge it.

MR. FLOYD: Right.



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THE COURT: What I'm trying to say, as I see it

there's a standard, the one testified to by the doctor

physicians, and you said the one also testified to by your

client?

MR. FLOYD: Yes.

THE COURT: Okay. And those standards are to be

applied whether it's online or offline. Can I --

MR. FLOYD: I think that goes beyond what the Court

needs to tell them. That would be our position.

THE COURT: Okay.

MR. FLOYD: But, yes, I agree with the substance of

what the Court is saying.

THE COURT: Okay, let me give it a little thought and

I'll let you know what I'm going to do. Thank you.

MR. FLOYD: Thank you, Judge.

(Recess, 11:47 a.m. to 12:10 p.m.)

THE COURT: This is my reply.

Having read your question, the Court can only state

the following: The only standard that you are to apply to the

facts of this case is the one set forth in my charge. You are

to take this standard and apply it to the facts as you find

from the evidence presented during the trial. One fact --

strike that, let me start over again. One fact that you must

determine is the standard of medical practice that is generally

recognized and accepted in the United States, period.



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MR. CHARTASH: One fact?

THE COURT: Mr. Thomas, please carry that to the jury

room and we'll await further word, if not a verdict, from the

jury. Thank you and I will call you when we hear from the

jury.

(Jury deliberations ensued.)

* * * * *

(Tuesday, March 25, 2008, 12:25 p.m.; jury not

present.)

THE COURT: Thank you, please be seated. We're

making progress.

Mr. Chartash, Mr. Sommerfeld, Mr. Floyd, and

Mr. Smith, I received a note from the foreperson. There are

two questions written down. The first question being: "Are

the DEA Exhibit No. 34 regulations the law?" The answer is no.

Second question: "Are the standards of medical

practice considered the law?" No.

With respect to question number two, you should

always remember that my charge, two copies of which were given

to you, constitutes the law in this case.

And those are the questions and those are my

responses. Does anyone disagree? Mr. Chartash? Mr. Floyd?

MR. FLOYD: No, Judge.

MR. SOMMERFELD: Your Honor, the only comment I have

is on question number two they asked are the standards of



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medical practice considered the law. It's part of your charge

regarding the practice, so I might ask, instead of just saying

no, other than as instructed to you, other than as they fit

into my instructions, no, they are not separately the law. But

the instructions include that --

THE COURT: Standard?

MR. SOMMERFELD: Yes, to be lawful, treatment of a

patient must be in accordance with the standards of medical

practice generally recognized.

THE COURT: Mr. Floyd?

MR. FLOYD: Judge, I think the Court's initial

response is the appropriate. The answer to the question posed

is no and they have been given all of the law that applies in

this case. I think that's the appropriate response. I mean

included in that is that charge so, I mean, they have it in

front of them.

THE COURT: Well, what if I just modify it and say

that you should always remember that my charge, which includes

the standards, is the law?

MR. FLOYD: I would not take exception to that,

Judge.

THE COURT: Okay, I'm going to amend it.

MR. SOMMERFELD: Thank you, Your Honor.

THE COURT: Thank you.

(Recess, 12:27 p.m. to 12:55 p.m.)



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THE COURT: Mr. Floyd? You want to hear from the

Court again before I send this out?

MR. FLOYD: Thank you so much, Judge. Judge, out of

an abundance of caution, when I went back I reviewed my notes

and I looked at the particular language in that charge and the

question and --

THE COURT: Do you remember what I told the jury

about notes?

MR. FLOYD: I wasn't listening during that part of

the charge.

THE COURT: Don't rely on your notes; rely on your

memory. If your memory is different from your notes, rely on

your memory. Tell me what your notes say, then I want to hear

about your memory.

MR. FLOYD: My concern was that the response might

somehow suggest that there is a law which codifies or

encapsulates the standard. There is no law regarding the

standard and the Court says no to that inquiry. But I was

wondering if the remainder of that commentary to the jury might

somehow tell them that that was the law.

THE WITNESS: No.

MR. FLOYD: The only reference to the standard is on

page 17 of the Court's --

THE COURT: Let me say, I agree with you. Let me

read to you what I plan to say. With respect to question



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number two: You should always remember that my charge, which

refers to the standard, is the law in this case.

MR. FLOYD: Okay.

THE COURT: It's in the charge.

MR. FLOYD: Okay, that's fine, Judge.

THE COURT: I made that distinction because I knew

you were going to come back with this.


THE COURT: Okay. Thank you. You guys go to lunch

and have a good lunch, don't worry about this case, just come

back after lunch. The jury is eating, they're having a good

time.


MR. SOMMERFELD: Thank you, Your Honor.

(Recess, 1:00 p.m. to 3:03 p.m.)

THE COURT: Thank you, please be seated. Let me hear

from counsel.

MR. SOMMERFELD: Your Honor, we saw the question that

was given and your draft response.

THE COURT: My proposed response.

MR. SOMMERFELD: Proposed response, which we agree is

accurate and -- but we think in addition, they're asking about

what is the usual course of professional practice, what if we

can't agree, you have an instruction which specifically defines

it, and so our proposal is maybe in addition --



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THE COURT: Which instruction?

MR. SOMMERFELD: The last paragraph of page 20,

what's numbered page 20.

THE COURT: I don't have the charge. Read it.

MR. SOMMERFELD: "A controlled substance is

prescribed by a physician in the usual course of a professional

practice and therefore lawfully if the substance is prescribed

by him in good faith as part of his medical treatment of a

patient in accordance with the standard of medical practice

generally recognized and accepted in the United States."

That's the paragraph that defines what is the usual

course of professional practice.

THE COURT: Thank you, and that's on page what?

MR. SOMMERFELD: It's numbered page 20 in your

instructions and it's the final paragraph.

THE COURT: The final paragraph on page 20, I'll look

at it when I go back. Thank you.

MR. SOMMERFELD: Since they're asking for the legal

instruction we ask you give it.

THE COURT: No problem. Mr. Floyd?

MR. FLOYD: I want to look at what he just said,

Judge.

THE COURT: Yes, just read it.

MR. FLOYD: Because that doesn't look like page 20 on

mine -- sorry, I have the wrong one. That doesn't work.



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MR. SOMMERFELD: It's the page that you entitled Good

Faith.

THE COURT: Yeah, I got it, I know where it is. I've

got it in my chambers, I just didn't bring it to the bench with

me.

MR. SOMMERFELD: Thank you, Your Honor. Do you need

to see this?

MR. FLOYD: Yes, I need to see it.

THE COURT: Show it to him.

MR. CHARTASH: It's the last paragraph.

MR. FLOYD: I think that is appropriate, Judge, but I

think what the Court has -- I don't think you need to give them

a specific charge. I think what the Court says is responsive

and I think it reflects this.

THE COURT: I'm going to add to this, "I refer you to

page 20," boom. We need to try to bring closure.

MR. FLOYD: We take no exception to that.

THE COURT: Okay, thank you.

(Recess, following proceedings at 4:40 p.m.)

THE COURT: I think counsel has seen the question.

Mr. Chartash, I think you and someone had predicted that this

lady, the foreperson of this jury, I'm beginning to think that

may be the problem.

MR. CHARTASH: I think you might be right, Your

Honor.



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THE COURT: Patsy, I forgot to bring my glasses but

read that question into the record.

THE COURTROOM DEPUTY: It says: "Are the rules from

the State Board of Medical Examiners leading toward following

the law, if so, please state the law Dr. Andre Smith broke. If

he is indicted of a criminal act by prescribing controlled

substances over the Internet, then please state the law.

Lysaida Moore."

THE COURT: She doesn't know that the charge is the

law. I just think that -- I don't know what else to do and I'm

seeking guidance from counsel as to what we can do to get this

on track because it's so derailed that it appears based on the

questions we're now getting it's getting worse rather than

better. So let me just hear from both you guys.

MR. SOMMERFELD: Your Honor --

THE COURT: She's still making a request for the law.

MR. SOMMERFELD: Yes, and Your Honor, in light of the

questions, and knowing that it's your instruction which is the

law, what we would suggest is that they be reinstructed as to

solely the elements that the Government has to prove beyond a

reasonable doubt.

So there are elements on page 8 of your instruction,

there are three elements, there's elements on page 15 of your

instructions, three elements. And, frankly, I know you made

reference to it but they specifically asked for guidance as to



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the usual course of professional practice and there's a

specific instruction about that, which is the last paragraph on

page 20. And because they're off track we think it's

appropriate to just list for them the elements or list for them

those pages and list for them that and actually read it to them

because --

THE COURT: Let me say, that didn't seem to help

because my last thing, I told them where the standard was, the

page, at your suggestion, we all agreed. She told the clerk

that she didn't understand that. Didn't she, said she did not

understand that? Can't figure that out.

MR. SOMMERFELD: Rather than just direct them to it,

frankly, we request that you bring them in here and just read

those two instructions and that last paragraph because that's

the law that they have to find.

THE COURT: If I bring them in here I'm going to read

the entire charge unless you all can agree on what you all want

to do. And at some point I'm going to have to give the

dynamite charge and that will be it because this is getting

worse.

When you indicate the page and line on which they ask

about the medical malpractice standard, then they say I don't

understand, I read it but I still don't understand it, then

we've got a problem here. We're moving in that direction. I'm

inclined now to tell them that the charge is the law.



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MR. FLOYD: When it's my turn that's what I was going

to say.

THE COURT: The charge is the law.

MR. SOMMERFELD: Right.

THE COURT: I've said this repeatedly, apply that to

the facts.

MR. SOMMERFELD: That would be fine.

THE COURT: Then if they come back I'm going to have

to more than likely think seriously about giving them the

dynamite charge because they don't seem to get it and I think

probably we have someone whose background is such that she

really can't bring this all together.

Where is she from, anyway, Mr. Chartash? You were so

pleased -- I don't say you were pleased with your selection,

you all predicted --

MR. FLOYD: Puerto Rico, Judge.

MR. CHARTASH: From Puerto Rico, Your Honor, exactly.

THE COURT: And how long has she been in the country?

MR. SOMMERFELD: Of course, we don't know where this

is coming from, but if they would be instructed that the charge

is the law and they --

THE COURT: I'm going to do that.

MR. SOMMERFELD: That's great.

THE COURT: But I think I've done it.

MR. SOMMERFELD: I think so too but --



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THE COURT: The charge itself is the law. Maybe they

think the charge is separate from the law. That's what I'm

going to put.

MR. SOMMERFELD: Okay. Thank you, Your Honor.

THE COURT: Thank you, and we'll wait word.

MR. FLOYD: That's what I was going to say, too,

Judge, the charge is the law, period.

THE COURT: But I think I've said that a thousand

times. But, thank you, and that's what I'm going to say. The

charge itself is the law.

(Recess, 4:45 p.m. to 5:03 p.m.)

THE COURT: Counsel, let me just explain something to

you. I've come to the conclusion that they are confusing my

charge on the law with probably charges in the indictment.

So I'm going to make it crystal clear that my charge

on the law is to be applied to the facts of the case and I am

going to indicate to them that the indictment just reflects the

crimes that the Defendant is accused of. Because I'm thinking

that the charge on the law, the charge in the indictment, which

is the law, and I'm going to let them go today and tomorrow

morning I'm going to put that before them and I think if they

don't grasp what's going on then I'm going to be forced to

consider giving a dynamite charge so we can move on with our

lives.

Okay, Mr. Floyd you want to be heard about something?



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MR. FLOYD: Right. I don't want it on the record.

THE COURT: He doesn't it on the record, we're going

off the record, let the record so reflect. Court will be in

recess, thank you, Counsel.

(Proceedings adjourned at 5:05 p.m.)

* * * * *

(Wednesday, March 27, 2008, 11:02 a.m.; Genet

McIntosh Hopewell present representing Defendant; Mr. Floyd not

present.)

THE COURT: Thank you, good morning, please be

seated.

Young lady, so happy to see you. Have you heard any

good news yet?

MS. HOPEWELL: Not quite yet, Judge.

THE COURT: When was the operation, do you know what

time?

MS. HOPEWELL: He left, I think it was about 10:00.

THE COURT: Okay, he has our prayers.

MS. HOPEWELL: Thank you so much.

THE COURT: Thank you. Let the record reflect the

Court received a note from the foreperson of this jury and it

reads as follows: "We, the jurors, cannot make a final

decision. We cannot decide if he's guilty on all three counts

or not guilty."

And I think counsel has read the note, have you not?



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MR. CHARTASH: We have not, Your Honor.

THE COURTROOM DEPUTY: We had the note. I told them

what it was in essence.

THE COURT: And based on the note it's now

appropriate for the Court to give an additional charge.

Bring the jury in.

(Jury returned to the courtroom at 11:05 a.m.)

THE COURT: Good morning, ladies and gentlemen of the

jury.

THE JURORS: Good morning.

THE COURT: Ladies and gentlemen, I'm going to ask

that you continue your deliberations in an effort to reach

agreement upon a verdict and dispose of this case. And I have

a few additional comments I would like for you to consider as

you do so.

This is an important case. If you should fail to

agree upon a verdict, the case will be left open and may have

to be tried again. There's no reason to believe that the case

can be tried again by either side any better or more

exhaustively than it has been tried before you.

Any future jury must be selected in the same manner

and from the same source as you were chosen and there is no

reason to believe that the case could ever be submitted to 12

men and women more conscientious, more impartial, and more

competent to decide it, or that more or clearer evidence could



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be produced.

When you enter the jury room it is your duty to

consult with one another, to consider each other's views, and

to discuss the evidence with the objective of reaching a jury

verdict if you can do so without violence to your own

individual judgment. Each of you must decide the case for

yourself but only after a discussion and impartial

consideration of the case with your fellow jurors.

You are not advocates for one side or the other. Do

not hesitate to reexamine your own views and to change your

opinion if you are convinced you are wrong, but do not

surrender your honest beliefs as to the weight and effect of

the evidence solely because of the opinion of other jurors or

for the purpose of returning a verdict.

I know that all of you have worked hard to try to

find a verdict in this case. It apparently has been impossible

for you to do so so far. Sometimes an early vote before

discussion can make it hard to reach an agreement about the

case later. The vote, not the discussion, might make it hard

to see all sides of the case.

We are all aware that it is legally permissible for a

jury to disagree. There are two things a jury can lawfully do:

One, agree on a verdict; or, two, differ from what the facts of

the case may truly be.

There is nothing to disagree about on the law. The



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law is as I told you. If you disagree over what you believe

the evidence showed, then only you can resolve that conflict if

it is to be resolved.

You must also remember that if the evidence in the

case fails to establish guilt beyond a reasonable doubt as to

any or all counts, the Defendant should have your unanimous

verdict of not guilty as to the count or counts. If the

evidence in the case establishes the guilt of the Defendant

beyond a reasonable doubt as to any or all counts, then you

should enter a unanimous verdict of guilty as to that count or

counts.

I have only one request of you. By law I cannot

demand this of you, but I want you to go back into the jury

room, then, taking turns, tell each of the other jurors about

the strength and weaknesses of your position. You should not

interrupt each other or comment on each other's views until

each of you has had a chance to talk about your position.

After you have done this, if you simply cannot reach a

unanimous verdict, then return to the courtroom and I will

declare this case a mistrial and will discharge you with my

sincere appreciation for your service in this case.

You may be as leisurely in your deliberations as the

occasion may require and you shall take all the time which you

feel is necessary, but I want you to make an attempt to resolve

this case by returning a verdict one way or the other.



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So please return to the jury room. And Madam

Foreperson, I want you to allow each juror to evaluate the

strength and weaknesses of this case from his or her

perspective and after all of you have done that, if you can

overcome your differences, then we can bring this case to a

conclusion. But we owe it not only to the Defendant but also

to the State, because, as I've told you, this is an important

case and it couldn't be tried any better and that we know we

could not have a more competent jury to hear this case than

you. So I want you to make that final effort. Thank you and

at this time you may retire to the jury room.

(Jury retired from courtroom at 11:12 a.m.)

THE COURT: Patsy, make this a part of the record.

We will be in recess until we hear something, if we hear

something.

MR. CHARTASH: Thank you, Your Honor.

MS. HOPEWELL: Thank you.

(Recess, 11:13 a.m. to 2:10 p.m.)

THE COURT: Based on a note I received, not from the

foreperson of this jury but from one of the regular members of

the jury who is obviously displeased with the way in which this

case is being discussed and deliberated, this juror, who is

very disgruntled, stated in a note I'll read into the record

that he and many other jurors would like to pick a new

foreperson. So I had speculated early on I thought maybe the



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problem was the foreperson and now I have this note and the

note reads as follows: "Many of the jurors and myself would

like to pick a new foreperson," although this person has "floor

person," "in order to get fair, organized, and equitable

deliberations accomplished."

That I think we need to do, and I want counsel's

input, maybe I should, on the record, interview each juror to

find out whether or not they think they will be able to reach a

verdict under the leadership of a new foreperson, without going

into discussions, and I'll have a record of it in chambers. If

the overwhelming majority say yes, then I'm just going to

authorize that they convene again and select a new foreperson.

This is the law, it's always evolving, it's our chance to -- so

my suggestion is just to find out whether or not what he says

is actually true because this person is of the opinion, this is

juror, is this Brenda Steward -- Bennie Steward.

THE COURTROOM DEPUTY: Bennie, it's the male.

THE COURT: Bennie Steward said that many of the

jurors, including himself, feel that they could reach a verdict

if they had a new foreperson. So should I inquire into that?

MR. CHARTASH: Give us a moment, Your Honor.

THE COURT: It's fraught. I'm going to give you all

15 minutes. There's no hurry.

(Recess, 2:12 p.m. to 2:25 p.m.)

THE COURT: Please be seated. Counsel, do you want



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me to declare a mistrial or what have you all come up with?

MR. CHARTASH: That's a little different question.

THE COURT: Or do you all want to modify what I

proposed or do you all want me to proceed with what I proposed?

MR. CHARTASH: Your Honor, I'll --

MS. HOPEWELL: Your Honor, we would have some

concerns with --

THE COURT: I have some concerns, too. That's why I

say do you want me to declare a mistrial.

MS. HOPEWELL: We would have some concerns with

electing a new foreperson at this point because the process is

basically designed for everybody to express their individual

opinions regardless of who the foreperson is, and I think you

touched on that strongly with the last --

THE COURT: I've done everything possible, I agree

with you. I thought you all wanted to participate in making

law. I see you all are chicken. Well, I have no alternative,

then, but to declare a mistrial.

MR. CHARTASH: Your Honor, let's leave the first

question that you asked aside. I don't think there's any magic

to the foreperson position and Your Honor can certainly

instruct if they choose to elect, if they think it will be

productive to --

THE COURT: Let's assume I do as I proposed and I

report back to you with the record backing me up that the



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overwhelming majority feel they could reach a verdict if they

had a new foreperson, and I know some of you are saying, well,

if that were to happen the foreperson may go the opposite way.

MR. CHARTASH: It's possible.

THE COURT: Be the lone holdout.

MR. CHARTASH: There's a lot of group dynamics.

There's nothing magical about the foreperson and getting

another foreperson.

THE COURT: I thought you all were crazy enough to

run that risk, just see what this experiment in justice will

lead us to. But, anyway, if I can't get you all on the same

page then I'm going to go ahead and declare a mistrial because

we've done all we can do.

MR. CHARTASH: Well, I don't think that defense

counsel is on the same page as us. We might be willing to go

forward but you're suggesting --

MS. HOPEWELL: No, we're not on that page.

THE COURT: I think she's saying, Judge, you've done

all you can do.

MR. CHARTASH: Right. Hold on one second.

THE COURT: Mr. Sommerfeld? I'm open-minded.

MR. SOMMERFELD: If the Defense is going to object to

it, yeah, I don't know that there's much that we can do to go

forward. If I were in Defense's shoes I may very well feel the

same way. So we've done a lot, we've done all we can do.



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THE COURT: Let me think about this for 15 more

minutes and I'll let you know my final decision. Thank you.

(Recess, 2:37 p.m. to 2:45 p.m.)

THE COURT: Let the record reflect the Court, having

heard from counsel, the Court has decided to proceed with the

proposal but with a substantial modification.

Let the record reflect that the Court has decided to

send the following note to the jury from the Court and it reads

as follows: "If you, the jury, believe that continued

deliberations will be productive with the selection of a new

foreperson, you are authorized to select a new foreperson."

Let me hear from both, make your record.

MR. CHARTASH: The Government has no objection.

THE COURT: Ms. Hopewell, come to the podium. You

have a litany of concerns to enumerate, go ahead.

MS. HOPEWELL: Your Honor, our concern is that the

process, this is officially irregular, that it may distort the

process. The process itself is designed to allow each member

to express their views regardless of who the foreperson is. We

think that to change at this late date, essentially to dethrone

the person who is leading this jury, may create additional

other issues that may affect the deliberation on the issues in

this case. Therefore, for the record, we do object to

authorizing the jury to select a new foreperson at this point.

THE COURT: Let the record reflect your objection has



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been noted and overruled. Thank you.

Ms. Springs, will you take this to the jury room?

Don't go anywhere, I think we'll hear something fairly soon.

Court will be in recess.

(Recessed at 2:46 p.m.; jury deliberations continued;

mistrial declared on Thursday, March 27, 2008.)



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C E R T I F I C A T E

UNITED STATES DISTRICT COURT:

NORTHERN DISTRICT OF GEORGIA:

I hereby certify that the foregoing pages, 1 through

31, are a true and correct copy of the proceedings in the case

aforesaid.

This the 18th day of August, 2008.

Amanda Lohnaas, CCR-B-580, RMR, CRR

Official Court Reporter

United States District Court


Doc 269: Transcript of co-defendnat, Dr Smith's jury Questions - 03-21-2008

Documents

Transcript of Doc 269: Transcript of co-defendnat, Dr Smith's jury Questions - 03-21-2008