EFTA00090206 Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Paç L9L5ber1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, RALPH BERRY, U.S. District Judge And A Jury 1 ## Before: HON. ALISON J. NATHAN, ## APPEARANCES AUDREY STRAUSS United States Attorney for the Southern District of New York LAW OFFICE OF MARK S. DEMARCO Attorneys for Defendant LAW OFFICES OF EZRA SPILKE, PLLC BY: MARK DeMARCO -AND- BY: EZRA SPILKE SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090207 2 THE DEPUTY CLERK: Counsel, please state your name for the record, starting with the government. THE COURT: Good morning. MR. DeMARCO: Good morning. For Mr. Berry, Mark DeMarco and Ezra Spilke, Ms. Mayerlin Ulerio, and of course Mr. Berry. Good morning, Mr. Berry. THE COURT: Good morning, counsel. THE DEFENDANT: Good morning. THE COURT: I had hoped to start at 9:00 but Mr. Berry wasn't brought until now. Hopefully that won't repeat going forward. We will make sure that things are in place to prevent that so we can timely get started each day. I thank everyone for being here on time. Let me ask, as a matter of procedure, we will wait for the jury department to let us know when the panel is checked in and assembled and in their seats, and then can head over to 500 Pearl to commence jury selection. My purpose for today is to confirm the receipt of the voir dire questionnaire that I sent yesterday with the noted change, make sure everybody got that. The second is to confirm that there have been no additional plea offers. And SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090208 3 ## Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 3 of 16 L9L5ber1 lastly, I made the note, make sure there are no questions regarding jury selection now that you have been to the walk-through in the jury selection room where selection will take place. So, let me ask, everybody received the voir dire with the noted changes? THE COURT: Nothing additional, Mr. ? MR. : Nothing additional. MR. DeMARCO: Yes, your Honor; and nothing additional. THE COURT: Thank you. Any additional plea offers that I need to allocate on? MR. : No additional plea offers have been extended, your Honor. THE COURT: OK. And then let me confirm if anybody has any questions about jury selections. To repeat the basic process, I will qualify 33 potential jurors that represents 12 jurors and three alternates, 10 peremptories as to the main panel for the defense, six peremptories for the government, one peremptory per side with respect to the alternates. And the way that we are operating under the COVID protocols, the jury department will, after the jury panel members are checked in, they'll be randomly assigned a number consistent with a list that the jury department generates, they will be seated in that numerical order in the jury selection room. I understand 1 SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090209 4 Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 4 of 16 L9L5ber1 through 42 will be in the main jury selection room and then 43 through, I believe 82 -- we will get the final number once we see what the return on the summons is -- will be seated in courtroom 9C also at 500 Pearl, with a live feed to 9C of everything taking place in the jury assembly room. I will make preliminary instructions which you have seen after you and I enter the courtroom. The panel members will be seated at that point. I will make my preliminary remarks, the written questionnaire that the jurors can read along with will be handed out at that point, both in the jury assembly room and in 9C simultaneously through court staff. I will instruct the jurors not to write anything on the questionnaire with the exception of circling a number if they have a "yes" response to that question as I read through the questionnaire. So, at that point I will turn to panel member juror no. 1 and go through and read the questionnaire getting "yes" or "no" response to each question. If the answer is "yes" following up as appropriate. To the extent that the matters touched upon could influence other jurors or are of a sensitive nature, we will bring that juror over to the plexiglass area to my right in the jury assembly room, there is markings on the floor where folks stand and the noise machine will be on so that others cannot hear, and I will inquire with the juror as to any necessary follow-up. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090210 5 Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 5 of 16 L9L5ber1 Once we get through, assuming we get through juror no. 1 without any for-cause issues, I will turn to juror no. 2 and say do you have any "yes" responses? And then we will take those in order as they come. If any juror needs to be dismissed for cause, let's say juror no. 2 needs to be dismissed for cause, then we will proceed with the same process with juror no. 3. Any "yes" questions, taking those one at a time, continuing until we have 33 qualified jurors. Once we have 33 qualified jurors you will exercise your peremptory strikes by list and simultaneously, that is, each side will produce a list with the government's six strikes as to the main panel and one strike as to the alternate panel, and the defense will write its list with 10 strikes as to the main panel and one strike as to the alternate panel. Obviously, before anyone is dismissed, I will hear from counsel if any applications or issues need to be raised if you are satisfied with our jury. Once we get there we will read the names of the selected jurors, dismiss to the jury department the unused jurors, and then proceed over back across the street over here. I believe what we will do is have Ms. Williams take the jurors to the jury room, which is an outfitted courtroom so they can put their belongings down, she can give them notebook and pen, bring them back in. At that point she will swear the jury and I will give preliminary instructions and opening SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090211 6 statements. Whether that happens today or tomorrow we will see. Hopefully today. Any questions or issues to raise with the process I have described? Mr. [___]? MR. [___]: Your Honor, no. One small thing on the voir dire. We submitted a list of names for the Court to read. One thing I wanted to flag for the Court is one of the witnesses' names we asked you to include is Jesus Ortiz, and that's how he pronounces his name, with a hard J. I want to flag that for the Court so that his name is read accurately to the jury. THE COURT: Let me see if there are any other pronunciation issues. Mr. DeMarco, while I am pulling that up, any other questions or issues with respect to the process? MR. DeMARCO: No, your Honor. THE COURT: And, Mr. DeMarco, you are going to keep your mask on so I don't have to keep coming at you about it? MR. DeMARCO: I will do my best. THE COURT: OK. Don't take it off to talk. MR. DeMARCO: Sorry? THE COURT: Don't take it off to talk. MR. DeMARCO: OK. I took it off to listen the last time. THE COURT: That's an anatomical anomaly. EFTA00090212 7 Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 7 of 16 L9L5ber1 I should say, of course, once we are in the courtroom then counsel in the plexiglass box with the HEPA filter will be able to remove their mask for questioning, and to the extent outside of the jury we have argument or the like, we can do that in there to aid that process. It's Ms. Ulerio, Mayerlin, am I saying that correctly? MS. ULERIO: Yes. THE COURT: And you have another paralegal Dylan Schneider who may be here? MR. DeMARCO: Yes, your Honor, but he won't be with us in court. THE COURT: And what about Jeremy Schneider? Mr. Schneider. MR. DeMARCO: He is unable to be with us. THE COURT: He won't be at trial at any point? MR. DeMARCO: No. I don't expect him to be here. THE COURT: Should I include him in the voir dire just in case. MR. DeMARCO: I think you should, Judge, because his name might come up and I just can't see how or where or under what scenario. But, just to be safe. MR.: His name is on the stipulations, so maybe to be safe. THE COURT: Just to note, when I do introduce counsel for purposes of the voir dire, and Mr. Berry, and the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090213 8 EFTA00090214 9 Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 9 of 16 L9L5ber1 THE COURT: Was it an issue you wanted to speak to the government about first? MR. DeMARCO: I did consult with the government. I was unpersuasive. I was hoping to be more successful with your Honor. THE COURT: OK. And the first witness is? MR. DeMARCO: Mr. Rasheen Vega. THE COURT: Go ahead. And if you could speak into the mic, please? MR. DeMARCO: It seems to me, your Honor, from my reading of the 3500 material, that we can expect Mr. Vega to testify to something like this: That he was the nephew of Mr. Jones, that he was 11 years old at the time that Mr. Jones was shot in June of 2000, that he witnessed a portion of that shooting or the aftermath of that shooting which I am OK with. The problem that I have with his prospective testimony is this: It also appears from reading the 3500 that the government will seek to elicit from Mr. Vega testimony about the horrific, horrific bedsores or compression sores that Mr. Jones was suffering from at the time of his death. I believe there is at least notes that Mr. Vega observed the sores to be oozing, observed Mr. Jones to be in terrible, terrible pain and suffering at or near the time of his death, and my concern is that, A, in light of the fact that two doctors are being called SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090215 10 Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 10 of 16 L9L5ber1 by the government and, even apart from that, Mr. Vega is not qualified to testify about the injuries that he observed; and B, that this type of testimony serves no purpose but to elicit or garner sympathy from the jury and will be unduly prejudicial to Mr. Berry. So, that's the basis of my objection to Mr. Vega, should he be asked those types of questions. THE COURT: Understood. ## Mr. ___? MR. Your Honor, there are two large topics that Mr. Vega is anticipated to testify about. I think it is consistent with what Mr. DeMarco says is, one, he was a percipient witness to the shooting itself; and two, he observed the victim's injuries after the shooting and was involved in the victim's care in the 10 years between the shooting and the victim's death. I take it it is the second category that the defendant is objecting to. But here, cause of death is obviously a big issue in this case and it is something that it is our burden to prove, that the injuries from the shooting lead to his death. And we expect the evidence to show that, as a result of the shooting, the victim became paralyzed from the waist down and that meant that he was confined to a wheelchair -- whereas he was not in a wheelchair before -- and developed serious complications as a result of that including serious sores which later led to infection and the victim's SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090216 11 Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 11 of 16 L9L5ber1 death. We will not be eliciting expert medical testimony or opinion from this witness, he will be simply testifying to what he observed with respect to the victim's physical condition during the 10 intervening years between the shooting and the death and that's important evidence, it's evidence that will then be consistent with things that medical experts to be qualified as experts will be called to testify about, but those experts did not observe these injuries during the 10 intervening years. They also did not observe Mr. Jones prior to the shooting. For instance, they wouldn't be able to tell you whether he was in a wheelchair before the shooting or after the shooting. They wouldn't be able to tell you if he developed those bedsores before the shooting or after the shooting. It is Mr. Vega's observations that will allow the jury to connect those dots. Given how important causation is in this case, we think it is important that the jury understand those injuries. THE COURT: Will medical records, that will be introduced, describe the bedsores? MR. : They will describe the bedsores at the time of the autopsy which was in November of 2010. THE COURT: What is the connection between bedsores and cause of death? Infection? MR. : Your Honor, essentially what I expect the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090217 12 Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 12 of 16 L9L5ber1 testimony will be from the medical experts is that as a result of the gunshot wound, that caused paralysis and paraplegia in the victim. Paraplegia commonly leads to things such as bedsores or pressure sores from not being able to move one's body; also other conditions such as a colostomy bag, a collapsed rectum, a permanent catheter, all of which can lead to infections and that in this particular case it was the complications of the paraplegia that led into infections or sepsis and that it was the sepsis that ultimately, in 2010, killed Mr. Jones. MR. DeMARCO: Your Honor, if I may? THE COURT: Sure. MR. DeMARCO: In my reading of the 3500 notes that were disclosed it's more than that. He describes oozing-type wounds, he describes a horrific odor, I think he described it as the smell of death in Mr. Jones' apartment at or near the time of his death. It's facts like these that I am focusing on. THE COURT: Yes. MR. DeMARCO: The paraplegia, the medical testimony from the medical examiners will establish that Mr. Jones was a paraplegic and he was in a wheelchair. But, my concern is about the graphic description of the bedsores, the compression sores, and also the horrific odor witnessed by Mr. Vega. MR. : Your Honor, we are certainly cognizant of SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090218 13 Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 13 of 16 L9L5ber1 not crossing the 403 line here. We think it is important that the jury understand the nature of these injuries and how they could lead to his death and what the injuries were during the intervening time between the shooting and the autopsy. We are not looking to be gratuitous or to pile on here. THE COURT: Yes. Well, it's clearly a 403 line here. You have cumulativeness with the medical testimony, you have graphic descriptions from a relative who cared for the victim which could very well produce sympathies and prejudice that would interfere with and overcome the medical facts that you need for purposes of proving causation. So, because this witness is testifying first it's difficult for me to know exactly what additional facts you need to extract from the witness but I am certainly going to cut off the line at any graphic descriptions. To the extent that walking this person through questions regarding the medical condition is emotional testimony, I think we are -- it will have to be stopped. So, I think what you need to think about is what -- and I'm going to allow a little bit of leading to ask the specific factual questions you believe that you need and that are not cumulative with the medical testimony, but I'm going to guard this line very carefully, and you should too. MR. : Your Honor, I understand that. I will say that in meeting with this witness we have tried to follow that line and I am -- with the ability to maybe construct some SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090219 14 of my questions in a leading way, I will hope to enforce that line. It is, again, certainly not our intention to be gratuitous but to simply get in the nature of the injuries and their relationship. THE COURT: You don't have pre-autopsy medical records that you are putting in that describes these injuries? MR. : No, your Honor. MR. DeMARCO: I'm sorry. What was that? Pre? THE COURT: No. I asked if there were -- MR. DeMARCO: I misunderstood your question, Judge. I'm sorry. THE COURT: I asked if there were pre-autopsy medical records that describes these infections and injuries and the answer is no. MR. DeMARCO: The government has disclosed, pursuant to Rule 16, some of these records that your Honor references, so. MR. : Your Honor's question was I think if we are introducing them. There are voluminous medical records that are almost incomprehensive to a layperson. We are not introducing those records. THE COURT: But you have a medical expert. MR. : We do have a medical expert. MR. DeMARCO: Your Honor, if I just might add another fact to this? Based on the exhibit list and the exhibits SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090220 15 Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 15 of 16 L9L5ber1 provided to us by the government, the government intends to introduce, through the medical examiner, photographs of these bedsores. So, I think that expert testimony, by itself, sufficiently will describe the bedsores that Mr. Jones was suffering at the time of his death. MR. : To be clear of what photographs we are introducing, we are not introducing the most graphic pictures of the bedsores. In fact, we were concerned in introducing some of the pictures that they wouldn't fully show how serious the bedsores were but we are not going to be putting in the most graphic pictures. THE COURT: What I am going to allow is you will have some permission to lead with respect to the description of the injuries and sores. It's going to be brief and extraction of facts that you need that is not cumulative with medical testimony and evidence that's coming in. We will see how it goes but I am -- I intend to be extremely cautious given that this is non-expert medical testimony coming from a relative. So, the prospect of prejudice and emotion and sympathy is real and I'm not going to let it happen. MR. □: Yes, your Honor. We understand. THE COURT: Anything else? MR. DeMARCO: No thank you, your Honor. THE COURT: OK. Any word, Ms. Williams? (Discussion off record) SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090221 16
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THE COURT: They said 15 to 20 minutes so I imagine the marshals need time to get Mr. Berry across the street. So, unless anyone has anything further, we will break and re-assemble across the street at 500 Pearl. Thank you. So, one question. Mr. , is the government ready to commence trial? MR. DeMARCO: Your Honor, we are going to meet over at the jury room? THE COURT: We will meet in the alcove outside the jury assembly room. There will be jury department staff there to assist. (Jury selection contained under separate cover) SOUTHERN DISTRICT REPORTERS, P.C. EFTA00090222