• People vs. Manson et al.People vs. Manson, Atkins, Van Houten and Krenwinkel • OCT 2, 1970

LOS ANGELES, CALIFORNIA, FRIDAY, OCTOBER 2, 1970 9:47 A.M.

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THE COURT: All counsel are present.

I wanted to bring up two matters, gentlemen.

First, with respect to the defendants. Have you had an opportunity to talk with them about coming back into the courtroom?

MR. FITZGERALD: Yes.

MR. KANAREK: Yes, your Honor.

THE COURT: What is their desire?

MR. KANAREK: Mr. Manson told me he does not wish to, your Honor.

THE COURT: He does not what?

MR. KANAREK: He does not wish to return to the courtroom.

MR. FITZGERALD: The female defendants indicated to Mr. Hughes, Mr. Shinn and I that they could not assure us of conduct that would be considered by the Court to be decorous; but they didn’t say they would act up.

They told us that they couldn’t assure us they wouldn’t.

I am not trying to play word games with the Court or anything. It is just that they did not say if they were put into the courtroom and the Judge takes the bench, we are going to sing or say anything; on the other hand, they didn’t give us any assurance that they wouldn’t either.

My own personal opinion is that the situation has not changed.

MR. BUGLIOSI: I would request that we start out again with all of them in court. If they want to act up again, I think we should at least start with them in court. Maybe Manson won’t act up. There is a chance that he won’t. If he does, then he will have to be removed.

I would not like to have the proceedings continue with them outside the courtroom; especially with Mr. Flynn on the stand, who is one of the principal witnesses against Manson.

MR. SHINN: Your Honor, I think if they act up again, your Honor, it is going to affect the jury.

MR. BUGLIOSI: How long are you going to keep —

THE COURT: Whose fault would that be?

MR. SHINN: That I understand, your Honor, but we have to have a solution where we have a happy medium. If they act up again in front of the jury, it is to their prejudice.

THE COURT: Well, the problem, from the Court’s standpoint, is that I can’t —

MR. SHINN: Yes, I understand.

THE COURT: — I can’t get an unequivocal answer from anybody as to what the defendants want to do, whether they are willing to comply with the Court’s rules and orders regarding their conduct.

I will indicate it to all of you they may return to the courtroom as soon as they are willing to conduct themselves in a proper manner.

MR. SHINN: I talked to them —

MR. FITZGERALD: They will not make such an affirmation. That’s the problem.

I don’t want to be equivocal but they are equivocal. When you ask them if they will agree to come back into the courtroom and not speak out of turn, they won’t agree to that sort of a commitment.

THE COURT: Of course, it’s been clear from the outset that the women take their — the female defendants take their lead from Mr. Manson.

MR. HUGHES: I don’t think that’s clear, your Honor.

THE COURT: It’s clear to me. That has been the pattern.

So I would suppose, from what’s gone on in the past, if Mr. Manson behaves himself, they will, too. Although we have no assurance of it.

MR. SHINN: Your Honor, is it possible that all defense attorneys should talk to Mr. Manson together, then, your Honor, to try to convince him.

THE COURT: If you think it will do some good, yes.

MR. SHINN: Do you think it will help, Paul, if we all talked to him?

MR. FITZGERALD: Try.

THE COURT: I have no objection to that.

MR. SHINN: Do you want to, Mr. Kanarek?

MR. KANAREK: Certainly.

MR. SHINN: All go talk to him.

MR. HUGHES: I don’t see any necessity for my talking with Mr. Manson but —

THE COURT: I should think that Mr. Kanarek would be perfectly able to communicate with Mr. Manson his thoughts regarding his absence from the courtroom, but if you would like to have other counsel present there —

MR. KANAREK: I have no objection to counsel —

THE COURT: I’m not suggesting it. Someone else made the suggestion. I’m just telling you I have no objection to it.

MR. KANAREK: Perfectly agreeable in this connection, your Honor. I have — perfectly —

THE COURT: Are you requesting that you, have a joint conference?

MR. KANAREK: Certainly. I join with Mr. Fitzgerald and Mr. Shinn and I regret that Mr. Hughes will not.

MR. HUGHES: I’ll go if I’m requested by Mr. Kanarek.

THE COURT: Is Mr. Manson in the lockup now?

THE BAILIFF: He’s in the lockup, your Honor.

MR. FITZGERALD: Maybe we can go in the back way and no one will see us.

THE BAILIFF: Is this a session with them inside the lockup?

THE COURT: Yes. They may go inside the lockup. Take them through the back door so they will not be visible from the courtroom.

THE BAILIFF: Is that by themselves or with a deputy in there?

THE COURT: By themselves.

MR. KANAREK: Thank you, your Honor.

MR. BUGLIOSI: Then we are going to come back to the chambers?

THE COURT: I assume this will just take a few minutes, won’t it?

MR. FITZGERALD: Less than five.

THE COURT: We will wait here in chambers unless you gentlemen want to step outside. You are welcome to stay.

MR. BUGLIOSI: I have some work to do outside.

THE COURT: All counsel are present.

Do you hate anything to report, gentlemen?

MR. FITZGERALD: Mr. Kanarek?

MR. KANAREK: What is that, your Honor?

THE COURT: Do you have anything to report?

MR. KANAREK: Yes, your Honor.

Mr. Manson wishes to remain in the lockup.

He feels that the oppression upon him by the Sheriff, by the arbitrary action, for instance, of yesterday’s sui sponte, the sudden change of position as far as the lockup goes, the fact that he feels — well, without belaboring it, your Honor, that is it.

THE COURT: Well, of course, that doesn’t really answer the question. Mr. Kanarek.

He doesn’t have any right to remain out of the courtroom while the trial is going on.

He has a right to be present. That right may be forfeited by disruptive conduct.

If all he is saying is that, “I prefer to remain outside,” then he is coming back in.

MR. KANAREK: That is not what he is saying. I can’t make that representation to the Court.

He is saying if he does come back in that there will be untoward conduct.

THE COURT: He is saying that?

MR. KANAREK: Well, what I am saying is that he is implying, he is telling us — I cannot make — we were all there, we all heard it, and I certainly can’t make the representation other than what I am making, namely, that I cannot represent to the Court that he won’t.

MR. HUGHES: I don’t think he made any representation, that he would make disruptive tactics.

THE COURT: We will start the proceeding with all the defendants back in the courtroom. I can’t tell from what you gentlemen say what the intention of the defendants is, so I will give them the benefit of the doubt and we will start back in the courtroom.

I don’t see any other way to handle it.

MR. FITZGERALD: I want to be clear that I am not playing any games with you, Judge, or this court.

THE COURT: No. I think the defendants are.

MR. FITZGERALD: That may be; but I hope you understand the equivocal nature of the representations made to us.

THE COURT: I have no criticism of counsel in this regard. I think you are all attempting to get them back into the courtroom where their best interests will be served.

Sometimes you can’t control your clients. I recognize that. I also recognize that there is no way that you can force an unequivocal answer out of a client if he doesn’t want to give it.

On the other hand, since I don’t have an unequivocal answer from the defendants, I am going to assume that they wish to be brought back into the courtroom and wish to continue the trial and observe the usual rules of conduct, and that is the way we will start.

If it becomes necessary to remove them again, I will tell you once more, they may return to the courtroom at any time they are willing to affirm their desire to return and conform their conduct to the reasonable rules of the Court.

Now, the other matter I wanted to take up was this question of conversation on Page 12,265, which I indicated yesterday I was going to have stricken but the People wanted on opportunity to offer some points and authorities.

MR. BUGLIOSI: Before we get into that, I wanted to make one or two comments about the Court’s ruling yesterday with respect to my contempt.

Does the Court want to hear me now very briefly, or after this?

THE COURT: Very well.

MR. BUGLIOSI: I’m not going to ask the Court at this point to revoke it. I may appeal.

I want the Court to know that I feel that the Court’s ruling was a gross, flagrant abuse of discretion. I don’t think the Court took into consideration some very obvious points and I would ask the Court in the future to consider two obvious points: Number one, this is the 16th week of a hotly contested trial and the Court knows that in the heat of battle attorneys say things that they shouldn’t say and this is understandable and I think should be condoned, unless it goes beyond permissible margins.

I would also ask the Court to keep in mind the inflammatory conduct of Mr. Kanarek yesterday. It was just kind of a culmination on my part. I don’t think the Court took into consideration what this man has been doing in front of the jury for several months and he continues to get by with it.

This was a response on my part. I did not initiate it. Everyone I’ve spoken to — not that the Court is concerned at all — but they are shocked and startled and surprised. They read in the newspaper what I said. I told him to keep quiet and I’ve had it up to here. And you might say I was just talking to my friends, but the impression I got is that everyone is totally shocked by the Court’s ruling, feels it is a gross abuse of discretion.

And the only reason I bring it to the Court’s attention right now is that in the future I would ask the Court, please, to consider the two obvious points, that this is a hotly contested trial and tempers become a little frayed and also take into consideration what Mr. Kanarek is doing which incites a response on my part.

I will try to control my outbursts in the future and just try to keep as quiet as I can in court, but I do want the Court to be aware of these two things; a long, hot trial and the fact that he’s constantly implying to the jury that I’m coaching these people, giving them a script.

He can argue that, and I think that even — if he even argued that it would be bad, but he’s not supposed to do that in questions. My response yesterday, although it was probably improper, I think it was understandable under the circumstances.

I just wanted that to be in the record. That’s all I have to say.

THE COURT: All right.

Now, let’s get on to the conversation.

Do you have any authorities you wish to offer or argument in connection with this conversation on Page 12,265?

MR. BUGLIOSI: Yes. I think Mr. Musich and also Mr. Kay are also going to argue the matter.

I think it clearly comes in under MO. And the basic rule, which the Court is already aware of, but I think it should be in the record, People vs. Peete, P-e-e-t-e, 28 Cal. 2d, 306, Page 314.

“It is settled in this State, however, that, except when it shows merely criminal disposition, evidence that is relevant is not excluded because it reveals the commission of an offense other than that charged. The general tests of the admissibility of evidence in a criminal case are, does it tend logically, naturally and by reasonable inference to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense. If it does, then it is admissible, whether it embraces the commission of another crime or whether it be part of a single design or not. Whenever the case is such that proof of one crime tends to prove any fact material in the trial of another…to prejudice the defendant in the minds of the jurors is no ground for its exclusion.”

And then I have other cases. People vs. Lopez. Lopez even says — in Lopez it goes further. It adds whether the crime be similar in kind or not. Even if the other crime is not similar in kind it can still come in if there are some substantial similarities.

And I maintain, your Honor, that putting on this evidence of what Manson asked Mr. Flynn to do does logically, naturally and by reasonable inference cause the jury to believe that if he asked Flynn to do something very similar to what we are alleging he asked on the night of the 10th, there is a strong likelihood that he did, in fact, order his co-defendants to commit these murders on the two nights in question.

The Baker case, 25 Cal. 2d at Page 1, says,

“It is not essential that such similar transactions shall have resulted in the commission of a crime. It is sufficient if they tend to prove a scheme of the defendant which included the acts charged.”

Now, in this case the murder was not completed but as the basic case says that’s not important. Mr. Manson, we are not alleging that he murdered any of the Tate or the LaBianca victims. We are alleging that he ordered these, murders or he asked that they be committed.

And this is what he did with Juan Flynn. The fact that Juan Flynn declined, as far as I can see, is totally irrelevant.

I think Mr. Musich, Mr. Kay, also —

MR. MUSICH: I would just like to make a point, your Honor, that basically this is the common scheme and design exception to show intent and motive.

MR. FITZGERALD: All those things? Each one of those —

MR. MUSICH: I’m sorry, to show identity and motive.

MR. BUGLIOSI: Actually. MO is identity, actually, when you come right down to it.

MR. MUSICH: All right.

In any case, the problem I feel the Court is having, or that the Court may be having, is as to the prejudicial effect as to outweighing its evidentiary value.

I submit to the Court, as the Court indicated itself, that it might be a form of rhetoric, I would submit to the Court that that is a matter that can be argued, that the weight to be given to this statement is for the jury, and it does not go to its admissibility.

I also submit to the Court that we do not have a particular crime here. We do not have a completion of a criminal offense. Therefore, it has to be less prejudicial than evidence of similar crimes which is clearly admissible under the law of the state.

I would submit to the Court —

THE COURT: And also by that fact less probative.

MR. MUSICH: Not — well, not less probative in this case, your Honor, as far as the facts and circumstances and the evidence already introduced in this trial.

MR. BUGLIOSI: It is not less probative. The fact that Mr. Flynn declines should not inure to the benefit of Mr. Manson. He can’t claim credit for the fact that Mr. Flynn said no.

THE COURT: Well, if you examine the exact answer you find that there is no order, there is only a question.

MR. BUGLIOSI: Well —

THE COURT: And the question is put in circumstances without any accompanying conduct or any further steps being taken to implement it if, in fact, there was an invitation to do something.

MR. KAY: May I be heard, your Honor?

THE COURT: And I simply don’t think that it’s enough.

MR. BUGLIOSI: At the LaBianca residence there is no language that he ordered them to go in there either.

THE COURT: Well, but that was an entirely different situation. There they had conduct.

MR. BUGLIOSI: Because they were willing to carry out his wishes. The fact that Flynn was not willing, Manson can’t claim credit for that.

THE COURT: Here we don’t even have a member of the alleged conspiracy. All we have, in effect, is a stranger, Mr. Flynn, at some prior time.

MR. BUGLIOSI: But we are asking that it only come in as to Manson, not on the conspiracy count but on the seven counts of the murder; limited to Manson on the seven counts of murder, not the conspiracy count.

Also, I direct the Court’s attention to page 11,903 where this was gone into by Mr. Fitzgerald, and Juan Flynn said: “And then we got right in front of the house and this man right here, you know, asked me if I would go in there.”

He was there, your Honor, Mr. Flynn, and he knows what Manson wanted him to do.

Like Mr. Musich said, I think it is up to the jury in infer whether Manson was just kidding or not.

There is no doubt in my mind that he meant it. I spoke to Mr. Flynn, and Mr. Flynn tells me he wanted him to go in there, and Flynn said “No.”

MR. KAY: May I be heard a minute, your Honor?

THE COURT: Yes.

MR. KAY: I am not denying anything that Mr. Musich and Mr. Bugliosi has said, but I am going to tell you how I read the cases.

I am not going to ask for as much as they are, but I feel, after reading the cases, that this evidence would be admissible limited to Mr. Manson, but to the LaBianca murders and not to the Tate murders.

Let me explain my position.

First, we have the problem that I think the Court has brought out that the incident that occurred with Mr. Flynn was not a crime.

Well, the case of People vs. Baker, a 25 Cal. App. 2d case, page 1, which is a 1938 case, states:

“It is not essential that such similar transaction should have resulted in the commission of a crime but it was sufficient if they tended to prove a scheme of defendant which includes the acts charged.”

And also I cite to the Court a 1968 case of People vs. Haston at 69 California Reports starting at page 233.

I argue that the identity — this is what we are trying to bring out by what happened to Mr. Flynn — the identity is very similar here as to what happened at the LaBianca residence. We have people being tied up, Mr. Manson mentioning on both occasions about — well, with Mr. Flynn he mentioned tying up, and at the LaBianca residence they were tied up.

No. 2, and I think most significantly, we have Mr. Manson actually present at both the Flynn incident and at the LaBianca incident, whereas we don’t have him present at the Tate incident.

Two, we have Mr. Manson as the one that is doing the talking about what is going to happen inside the location. Here we have him talking to Mr. Flynn about tying people up and cutting people up; and here we have Mr. Manson at the LaBianca residence with some of the defendants talking about, well, don’t let them know that you are going to kill them.

I think that the identity there between the LaBianca incident and what happened with Mr. Flynn is very probative as to the identity of the fact that Mr. Manson is the one that did it with Mr. Flynn, because we know that from Mr. Flynn and from Linda Kasabian’s testimony, and the jury can infer that just about the same thing happened.

MR. BUGLIOSI: I would join in what Mr. Kay says, but I think the main thing showing identity is that it is just unheard of, and I would ask the defense if they can come up with any other case. It is unheard of to drive up in front of a home where you have no animosity toward the persons, no contact, you don’t want to rob them or rape them, you just want to go in there and murder them by stabbing.

This uniqueness is MO. It is so unique. I can’t think of any other case where that happened before. If it has happened, I don’t know where it is in the books.

You just don’t go to strangers’ homes and say let’s tie them up and go in there and cut them up.

The absence of a pedestrian, garden variety, type of motive, the absence of that motive in itself shows identity and MO.

If he had told Mr. Flynn, “Let’s go in there and rob them, and if there is a women in them we will rape her,” that is different. Here we are talking about something different. Just driving up in front of a home and saying, “Lets go in there and tie them up and cut them up.”

It is the same thing as putting on evidence on the night of the LaBianca murders. I really think it can come in as to count 1 through 7. Just against Manson, not as to the co-defendants and not on the conspiracy count.

There is such a remarkable similarity, that I think this is what they are talking about, that the cases say the fact that it may tend to prejudice the defendants in the minds of the jury is no ground for its exclusion.

THE COURT: That is not the basis.

MR. MUSICH: Your Honor, similar conduct, too. It doesn’t have to be a crime.

I’d like to point out the case of People vs Sykes, 44 Cal. 2d 166. Here the majority of the Supreme Court, at that time, held that the evidence of the fact that the defendant was attempting to solicit this minor for prostitution and pimping purposes was admissible as to a charge of furnishing a minor with a marijuana cigarette. This was part of his plan and conduct to influence this minor to become a part of his operation. The court held that that far-out evidence in that case was admissible. It is a very unique case.

THE COURT: I can see all that and I am familiar with most, if not all, those cases, but I think here we have something different.

Here we have a bare statement which is not, in my opinion, a clear invitation to commit murder, phrased in the form of what I consider to be, perhaps, a stupid or a vicious — or you can characterize it in many ways — statement, not implemented by any additional conduct.

There is no evidence that there was a gun, a rope, a knife, or anything else present. No one took any steps to do anything.

It also occurred, as I recall, two months before the alleged murders.

I think it is too remote.

Now, I can conceive that depending on what defense, if any, the defendants put on, it might come in on rebuttal. I don’t know. But at this stage, I think that the prejudicial effect would outweigh any possible probative value.

MR. BUGLIOSI: We have another situation where there were knives in the car and Clem Tufts was with Mr. Manson. I tried to get that in before and the Court wouldn’t let me get that in.

He told Juan Flynn to go inside, tie them up, and then come out, and then they would all go in and cut these people up. That was in the Chatsworth area. It was an expensive home. And there were knives in the car.

I tried to get that in under MO and the Court never let that in. But Clem Tufts was in that car and Clem Tufts was with Manson on the night of the LaBianca murders also.

That is a little closer to home there. There were knives in the car.

At the house, we have got a similar thing. Go in and tie them up, and then we will go in and cut them up.

In the LaBianca murder, Manson tied them up, supposedly, and then came out.

THE COURT: As a matter of curiosity, why wasn’t Tufts prosecuted?

MR. BUGLIOSI: I can explain.

THE COURT: It is of no moment in this case but I am just curious.

MR. BUGLIOSI: There are several reasons, and I can’t give the Court all the reasons.

One reason was that all we had at the time of the Grand Jury was Susan Atkins, and what she told me, her story was identical to Linda Kasabian’s with one substantial departure. She said that after the LaBianca incident they drove straight back to the ranch instead of going to Venice where these other things occurred. In the Grand Jury the testimony was that he was with them at the LaBianca residence and they drove back to the ranch.

We didn’t have him doing anything affirmative that night, not even disposing of anything.

There were other problems. He is a mental case.

Also, I had to put this Grand Jury thing together in about three days, and I hadn’t spoken to Tufts.

I was hopeful that maybe we could use him as a witness for us at that time. Maybe he would have testified for us at the trial.

There are several other reasons which I won’t go into now, but I am just giving the Court some idea.

THE COURT: You don’t have to tell me.

MR. FITZGERALD: One of which involves certain unprofessional and unethical conduct by the District Attorney in obtaining the statement of Susan Atkins and the subsequent publication by the Los Angeles Times and a subsidiary of the Los Angeles Times.

MR. BUGLIOSI: Are you joining the remarks of Mr. Kanarek?

MR. FITZGERALD: No.

MR. BUGLIOSI: I want you to say for the record what the unethical conduct is.

MR. FITZGERALD: All right.

MR. BUGLIOSI: Tell me.

MR. FITZGERALD: The District Attorney secured, inappropriately, through the offices of a Superior Court Judge, to get Richard Caballero to represent Susan Atkins, and the District Attorney had knowledge that in a major metropolitan newspaper, on Sunday, May 14, 1969, there was to be published by the Los Angeles Times her confession.

Now, we also have information that Richard Caballero, who was acting as an agent of the Los Angeles County District Attorney’s Office, destroyed tapes and stenographic reports indicating that Susan Atkins denied that she made such statements to you and denied that she made such statements to any representative from your office.

We have tried to litigate this matter many, many times, Mr. Bugliosi.

I don’t have any problems with your ethics, but I have problems with some of the ethics of some of the people in your office.

We tried to litigate this a hundred times, and every time I try — I resent your putting one side of the story on the record, when it doesn’t happen to be the case.

MR. BUGLIOSI: I solicited your response, Paul. I wanted you to state it for the record.

THE COURT: All right, gentlemen. I assume responsibility for letting the conversation take a divergent turn. My question to Mr. Bugliosi simply was one of curiosity. It has nothing to do with what we are doing here.

Is there anything also before we go back in?

I am going to admonish the jury, strike the conversation and admonish the jury not to consider it for any purpose.

I want to do it in such a way that I will call their attention to it without unnecessarily rehashing it.

Do you have any suggestions as to that?

MR. BUGLIOSI: You could probably say the incident wherein Mr. Manson suggested that something be done inside of a relative’s home.

THE COURT: I thought that what I might do is simply read the witness’s answer up to the point where he says: “And then he says” — this is Mr. Flynn talking about Mr. Manson — “Well, why don’t we go in there and tie them up and cut them up to pieces, you know.”

In other words, the preceding parts of that answer describe there was one night they were going to an ice cream parlor and talking about some relatives of Flynn, and they went looking for the house, and so forth.

This will orient them as to the conversation without giving them the actual conversation.

MR. BUGLIOSI: I think that will suffice.

MR. MUSICH: You are going to order that they disregard the conversation, not the fact that they went to an ice cream parlor?

THE COURT: The conversation?

MR. MUSICH: The conversation in front of the location, the conversation following this meeting at the ice cream parlor.

Or are you going to have him disregard that they were at the ice cream parlor?

THE COURT: What I am inclined to do is to strike Mr. Flynn’s answer — that is what is being stricken — and admonish them not to consider the answer for any purpose.

MR. KANAREK: Your Honor, may I state, I want to thank the Court for doing this, and I am prefacing it that way, your Honor, because I am going to ask for a mistrial, and I just wanted —

THE COURT: Thanks are not necessary, Mr. Kanarek.

Let’s get on with the trial.

MR. KANAREK: I understand that, but I don’t want the Court to think —

THE COURT: That you are unappreciative?

MR. KANAREK: Yes.

THE COURT: I don’t think you are.

MR. KANAREK: But the point is, if I may just briefly state it, it is my position, without belaboring it, alluding to the language in Bruton vs. the United States, especially, that thinking that you can’t unring the bell, I make the motion for a mistrial because of the prejudicial effect of that.

MR. HUGHES: I would join the motion.

THE COURT: The motion will be denied.

MR. HUGHES: Your Honor, I have another area, which is similar, and which concerns a statement, and that which also is a solicitation of a crime which did come in and which I would ask your Honor to consider striking and admonishing the jury about, and that is the testimony of Barbara Hoyt to the fact that Mr. Manson solicited her to engage in an act of oral copulation with Juan Flynn, which would be solicitation of the commission of a felony.

I don’t believe that that was brought up at the time, that it was a solicitation of a felony.

MR. BUGLIOSI: No, it wasn’t.

MR. HUGHES: 288, I believe, of the Penal Code.

MR. FITZGERALD: A. 288a.

MR. HUGHES: 288a of the Penal Code.

And I would ask that on that basis that that testimony be struck and that the jury be admonished to disregard that testimony.

MR. BUGLIOSI: Your honor, that was proper redirect. On cross-examination, I think it was, Mr. Kanarek brought out that she engaged in voluntary sexual practices and this shows that it wasn’t voluntary. There were things she did which were not voluntary. She testified this was against her will.

MR. FITZGERALD: I think we have the same problem in regard to testimony yesterday wherein Mr. Flynn testified that in order to rid the girls of their inhibitions Manson ordered them to, (a) copulate one another, and (b) to copulate him, which are, of course, felonies.

MR. KAY: That testimony was stricken.

THE COURT: That answer was stricken. The answer simply wasn’t responsive to the question. I couldn’t anticipate that he was going to give an unresponsive answer and it was stricken and the jury was admonished.

However, the other one, I think, was responsive and proper redirect.

MR. KANAREK: I have just another motion, your Honor.

MR. HUGHES: Well, I think we are acting on my motion.

MR. KANAREK: Oh, I’m sorry.

MR. HUGHES: And my position would be that an admonishment not sufficing on the Barbara Hoyt’s statement, that there be a mistrial declared.

THE COURT: Motions will be denied.

MR. KANAREK: May I join in Mr. Hughes’ motion?

MR. SHINN: Join in that motion, too, your Honor.

MR. FITZGERALD: And I think the admonishment doesn’t suffice in terms of Mr. Flynn’s statement yesterday.

I happened, for example, to notice the press, where the press talked about Manson ordered sexual perversions among his followers.

The press, I think, is a reasonable barometer of what the general public believes or feels and I think it’s a reasonable barometer of what the jury thinks. And if the jury heard evidence, although I think they’ll honestly do their best to keep it out of their mind, but if they hear evidence of sexual perversion of this kind of magnitude —

THE COURT: But they didn’t. You see, that is not what the answer said. Mr. Flynn didn’t say that Mr. Manson ordered that. What he said was that Mr. Manson said you could do this and you could do that. It was totally unresponsive to the question as to what, if anything, he did.

MR. BUGLIOSI: The Court is not going to let me go into it, but he did order these things.

THE COURT: That wasn’t what the answer was.

MR. BUGLIOSI: Well, I got the impression the Court thought this was too prejudicial. That was the impression I got from the Court.

MR. FITZGERALD: These are my arguments. I’m arguing that it is too prejudicial.

MR. BUGLIOSI: Right. And I got the impression that that was the basis for the Court’s ruling. I just went on to another subject. But I think it’s very relevant and there is evidence that he did have them do these things.

THE COURT: Well, all right, gentlemen, we’ll go back out.

MR. KANAREK: Your Honor, just one brief — it will take a half a minute.

Your Honor, may I ask for your Honor to admonish the jury not to consider for any purpose Mr. Bugliosi’s solicitation from Mr. Flynn of testimony concerning Mr. Manson offering him LSD and mere admonishment not sufficing I ask for a mistrial.

Mr. Bugliosi did ask him whether Mr. Manson —

MR. KAY: That answer was stricken.

MR. KANAREK: No. I don’t believe it was.

MR. KAY: Yes, it was.

MR. BUGLIOSI: There was an objection. The objection was sustained. Again, on cross-examination, he was asked whether he took LSD out at the ranch. This is on redirect that — did Mr. Manson ever give you the LSD. All these things are coming in on redirect and I think they are proper. You have to watch your questions on cross —

MR. HUGHES: I would join in Mr. Kanarek’s motion.

MR. BUGLIOSI: — because I read these transcripts every night.

MR. SHINN: So do we.

THE COURT: All right, gentlemen.

MR. KANAREK: May I have a ruling on that last, motion? Your Honor didn’t rule.

THE COURT: What was the motion?

MR. KANAREK: For mistrial because of the solicitation in connection with the LSD.

THE COURT: That the question was asked?

MR. KANAREK: Yes.

THE COURT: Motion is denied.

ALL FEMALE DEFENDANTS: (In unison.) Hail Cesar.

THE BAILIFF: No talking while court is in session.

DEFENDANT MANSON: Your Honor, may I suggest that the Court continue to try itself, as it has been doing a very poor job of showing the public any justice. You’ve only shown your force and your power.

THE COURT: Mr. Manson, I order you to sit down, sir. Remain quiet during the proceedings so that we can continue this trial. You are now disrupting this trial.

DEFENDANT MANSON: (Singing.) That old black magic has me in its spell. That old black magic that you keep so well. Those icy fingers —

THE COURT: I order you once again to sit down, sir, and stop this.

DEFENDANT MANSON: I’d like to go back to my room and relax. You can handle your own matters.

THE COURT: Sit down, sir.

DEFENDANT MANSON: I find it hard not to do what I’m told because all my life I’ve done what I have been told.

THE COURT: All right, sir. We are going to continue this trial.

DEFENDANT MANSON: Now, your Honor, if you would allow me to maintain a voice, I could probably bring to you the thought that I have done what I’m told.

THE COURT: I order you to stop, sir.

DEFENDANT MANSON: You have been ordering me forever. All my life you have ordered me. You have ordered me to cease to live. You bring me in here and you charge me for murder and you say I have rights and you hold up rights in front of me but you give me none.

THE COURT: If you don’t stop, Mr. Manson, I’m going to have you removed from the courtroom.

DEFENDANT MANSON: Okay. That’s all right. I’m not here anyway. You can put a picture up here and prosecute yourselves. Because that’s all you’re doing.

THE COURT: Are you ready to proceed now, sir?

DEFENDANT MANSON: I’ve been ready to proceed, May I ask the man some questions?

THE COURT: No, you may not.

DEFENDANT MANSON: I can’t speak? I’m a dummy, a (Indistinguishable).

THE COURT: We are going to go ahead now.

DEFENDANT MANSON: You are going ahead. But where are you going ahead to? Look at yourselves. Look at all of you. Where are you going? You’re going to destruction, that’s where you’re going. You will end up being judged. That’s what you’re going to do. All of you. Everyone of you. It’s your judgement day, not mine. I’ve already judged me.

THE COURT: Remove Mr. Manson from the courtroom.

You will be permitted to return, Mr. Manson, whenever you are willing to affirm your willingness to remain quiet.

DEFENDANT MANSON: Have a good day. I will. Every day is a good day for me.

DEFENDANT ATKINS: Who are you judging?

DEFENDANT VAN HOUTEN: Look in the Mirror, follow your own reflection.

THE COURT: I order you ladies to stop.

DEFENDANT VAN HOUTEN: The guilt you find is yours.

DEFENDANT ATKINS: Who is going to order you on judgement day?

DEFENDANT VAN HOUTEN: Go look in the mirror and try yourself.

THE COURT: If you don’t remain quiet, ladies, I will have you removed from the courtroom.

DEFENDANT ATKINS: For what?

DEFENDANT VAN HOUTEN: You did it when you took away our pro per.

DEFENDANT KRENWINKEL: You let us have no advice, either.

THE COURT: Are you able to get down what these ladies are saying, Mrs. Reporter?

THE REPORTER: Yes.

DEFENDANT ATKINS: You don’t hear it anyway. It goes right in one ear and out the other.

DEFENDANT KRENWINKEL: You don’t want to hear it.

DEFENDANT ATKINS: Look, at yourself, man. You are nothing but a machine. You’re a machine.

DEFENDANT KRENWINKEL: You are headed for complete destruction of yourself because that’s who you judge is yourself and only yourself.

THE COURT: Are you ready to proceed now?

DEFENDANT VAN HOUTEN: Now.

DEFENDANT ATKINS: Proceed.

THE COURT: Remove the ladies front the courtroom.

DEFENDANT ATKINS: Have a nice day.

THE COURT: The jury is admonished to disregard the remarks of the defendants to their entirety. Counsel are again advised that their clients may return to the courtroom any time that they are willing to affirm their willingness to proceed and conform to the Court’s rules regarding their conduct.

The record will show that all counsel are present and the jurors are present. All of the defendants have been removed from the courtroom.

Ladies and gentlemen, during the course of Mr. Flynn’s testimony on Wednesday, during the afternoon session, Mr. Flynn was asked a question by Mr. Bugliosi during the course of redirect examination and I’m going to strike Mr. Flynn’s answer from the record.

I’m going to read you a portion of the answer so that you will have in mind what question and what answer I’m referring to. I will not read you all of the answer. And you will be admonished to disregard the entire answer of Mr. Flynn, not only the part I read but the part that I don’t read.

The answer to which I refer began as follows:

“Well, the conversation was that one night — ” and I might say, to orienting you to the specific question and answer, this was an answer Mr. Flynn was giving regarding an alleged conversation that he had with Mr. Manson on a particular occasion.

The answer began as follows:

“Well, the conversation was that one night, I can’t say the date, but we went to the ice cream parlor and we was talking about some relations, some family, you know, relatives. And I wanted to look, into them, you see, to see where they live. You know, I just wanted to see where they live, look up the street.

“So, you know, I asked Mr. Mason if he would drive in there, you know. And he says, yes, you know. So we went looking for the house and the street, you know, and we found it. And we parked outside.

“And then Mr. Manson asked me if they had a dog in there, you see, and I says, yes, they have a little dog.”

And then there was some more conversation allegedly between Mr. Manson and Mr. Flynn which was related in this answer.

Now, this is the answer to which I refer and the entire answer of Mr. Flynn is being stricken and the jury is admonished to disregard it for all purposes.

You may proceed, Mr. Bugliosi.

MR. BUGLIOSI: I believe there is still cross-examination of Mr. Flynn.

I would ask the Court to state on the record that although the defendants have been removed from court microphones have been installed where they are and they are hearing these proceedings. I don’t know if that’s on the record right now.

THE COURT: Yes, that is the case. There is a microphone — a speaker, rather, in the lockup for Mr. Manson and there is a speaker upstairs in the room in which the female defendants are being kept and they will be able to hear all of the proceedings.

MR. FITZGERALD: I have no information — I have no reason to doubt your Honor’s statement, but I can’t agree that they can hear the proceedings because I haven’t been up there and determined whether they could hear the proceedings.

THE COURT: All right. Let’s proceed.

MR. KANAREK: Yes, your Honor.

MR. HUGHES: I wish to state for the record that the exclusion of Leslie Van Houten is over my objection, your Honor.

A JUROR: Your Honor —

MR. KANAREK: Your Honor, I wonder if we might approach the beach.

A JUROR: We couldn’t hear the end of Mr. Hughes’ statement.

THE COURT: Would you read that back.

THE COURT: Objection is overruled.

MR. KANAREK: May we approach the beach briefly?

THE COURT: Mr. Kanarek, we’ve had lengthy conversations in chambers this morning.

MR. KANAREK: Very well, very well, your Honor.

THE COURT: I see no reason for another bench conference now.

Q: Mr. Flynn, is it a fair statement, Mr. Flynn, that when you spoke with, you know, Mr. Davis and the other man that was with Mr. Davis —

Do you have those conversations in mind?

Ivar Davis?

A: Yes.

Q: Is it a fair statement, Mr. Flynn, that you made no mention concerning — I’m not now asking about the knife, but concerning the language, the words that you say Mr. Manson told to you in the kitchen.

MR. BUGLIOSI: Are you through?

MR. KANAREK: Yes, your Honor.

MR. BUGLIOSI: Repetitions and beyond the scope of redirect.

MR. KANAREK: I don’t think that I’ve asked that question of this witness, your Honor, and it certainly —

MR. BUGLIOSI: Beyond the scope of redirect, your Honor.

THE COURT: Read the question.

MR. KANAREK: Yes, your Honor. Mr. Fitzgerald brings up what I think is a valid point. If I’m not talking through the microphone he fears that —

THE COURT: Well, I might say that it might assist your clients to hear through the speakers if you would use the microphones in examination.

MR. KANAREK: Yes, your Honor.

THE COURT: You may do so or not, as you desire, but —

MR. KANAREK: Yes.

THE COURT: — I’m sure it would assist them.

MR. KANAREK: May I use that, Mr. Darrow?

Has your Honor ruled on that?

THE COURT: You started to say something about what Mr. Fitzgerald had raised, Mr. Kanarek.

MR. KANAREK: Yes, your Honor.

Mr. Fitzgerald raised the point, which I think is very valid, concerning the use of this microphone.

THE COURT: All right.

MR. KANAREK: That the defendants would be able to hear better if I used the microphone.

THE COURT: I had asked to have the question reread, so just a moment.

MR. KANAREK: I’m breaking it up, your Honor, in two parts. I don’t believe that this question has been asked.

THE COURT: Do you understood the question, Mr. Flynn?

THE WITNESS: Yes, sir.

THE COURT: You may answer.

THE WITNESS: I don’t remember.

Q BY MR. KANAREK: Whether you did or not, Mr. Flynn.

A: I don’t remember if I told him.

Q: I see.

A: If I talked to him about that.

Q: Now, Mr. Flynn, you and I had conversation. Remember that?

A: Here?

Q: No, not here in court. I mean outside of court.

A: Yes.

Q: And did I tell you to tell me any events that you might know of concerning this case?

MR. BUGLIOSI: Improper foundation.

THE COURT: Overruled. You may answer.

THE WITNESS: I don’t remember.

Q BY MR. KANAREK: You don’t remember?

A: No.

Q: Well, may I ask you this, Mr. Flynn:

Concerning the matter about the knife and the matter of the words that you say occurred in connection with the knife in the kitchen —

A: Yes.

Q: — do you have that all in mind? You have that all in mind, haven’t you?

A: Yes.

Q: What you’ve testified to here in court, have you?

A: Yes.

Q: Did you at any time in talking with me ever mention those matters to me?

A: I don’t remember if I did or not.

Q: You don’t remember —

A: I don’t remember.

Q: I see. Now, then, may I ask you, Mr. Flynn, is it a fair statement that you have difficulty in remembering?

MR. BUGLIOSI: This implies — assumes a fact not in evidence. It implies that he did tell Mr. Kanarek this and that he has forgotten it.

MR. KANAREK: This question stands on its own two feet, your Honor. This isn’t limited to —

THE COURT: Objection is overruled. You may answer.

THE WITNESS: Would you repeat the question?

MR. KANAREK: Certainly.

Q: Is it a fact, Mr. Flynn, that you have difficulty in remembering?

A: Well, I have as much difficulty as anybody else. And if it’s brought to me, you see, if it’s brought to me, you see, then, you know, then I acknowledge, you know, whatever statement is brought to me, or, you know —

Q: Now, you mentioned that also yesterday, Mr. Flynn. In other words, when you say brought to you, what you mean is if someone tells you something, tells you that something occurred — well, let me withdraw that and ask you: What do you mean, Mr. Flynn, by “brought to me,” rather than my suggesting it? You tell us what you mean by that.

A: Well, I could be doing some work and someone comes up to me and says, “I went swimming today,” and discusses the matter with me to a point, you know, to an effect, you know. Then it’s brought to me, the effect is brought to me of what they’ve done, you know.

Q: Well, have you finished that?

A: Well, then, therefore, I become a part of it, you see. And that’s it.

Q: Now, directing your attention to your own words, Mr. Flynn, “brought to me,” did Mr. Bugliosi in his conversation with you bring anything to you?

A: Well, I came here on my own free will, you see. I was asked by the police officers, you know, if I would see him, you see. So I didn’t for a period of time. And then I came. You know, I felt like coming here, so I came. You see?

Q: Well, now, when you just told us a few moments ago what you meant by “brought to me,” you were referring to things that were brought to your attention by people pointing them out to you; is that correct?

A: Well, I was asked, you see, I was asked.

Q: In other words, are you telling us, Mr. Flynn, that what you testified to here in court concerning matters that Mr. Bugliosi interrogated you about were matters which were brought to your attention by Mr. Bugliosi?

A: Would you repeat that question again?

MR. KANAREK: Yes. May it be read, your Honor?

THE COURT: Read the question.

THE WITNESS: What I testified here in court were matters that I brought here to court, you see. You see, I was asked if I was willing to see the District Attorney, you see. But at that time — that’s the question.

Q BY MR. KANAREK: That’s your answer?

A: The answer.

Q: That’s your answer, Mr. Flynn?

A: Yes.

Q: Well, I’m not speaking now, Mr. Flynn, of your physical person being brought to Mr. Bugliosi.

A: Yes.

Q: I’m speaking now of ideas, conversation, questions. I’m asking you now to answer this, if you would, please.

Did Mr. Bugliosi bring any thoughts to you, bring any ideas to you, that you testified to here in court when he spoke to you?

Did he bring these ideas to you?

MR. BUGLIOSI: Too ambiguous, your Honor. I object on that ground.

THE COURT: Sustained.

Q BY MR. KANAREK: You had conversation with Mr. Bugliosi before coming to court, right?

A: Yes.

Q: And my question is now, directing your attention to the matters that you spoke of about the knife and the statements that you say Mr. Manson made in connection with the knife, now, were those matters matters that you spoke to Mr. Bugliosi about when you talked to him?

A: Well, I spoke to Mr. Bugliosi and the police about these matters.

Q: And you spoke to Mr. Bugliosi and the police about these matters in the last few weeks; is that correct?

A: Well, you could say nine months; about nine months, a year, somewhere around there.

Q: A year ago you mentioned these to the police?

A: Yes.

Q: Pardon?

A: Yes.

Q: All right. That would be September of 19 — in September of 19 — or October, this is October the 2nd, around October 2nd of 1969 you mentioned these matters to the police; is that right?

A: I said from nine months to a year, sir.

Q: From nine months to a year ago?

A: Something like that, yes, in that length of time.

Q: I see, it could have been in October of 1969. A year would be October 2nd, 1969. Could have been that long ago; is that right, Mr. Flynn?

A: It was from, I’ll say, nine months — you know eight months, nine months to a year, something like that, in that length of time, you see.

Q: All right. So the extreme end of it would be October the 2nd, 1969. That would be what you are saying is the extreme end of the time that you may have told this to the police.

Is that what you’re saying, Mr. Flynn?

A: I didn’t say I could have. I said I did.

Q: You did?

A: I did.

Q: And it could have been in October — you’re picking the time now, Mr. Flynn, so that would be — you agree that a year ago from today would be October the 2nd, 1969, Do you agree with that?

A: Well, I don’t keep dates, you know.

Q: My question is, today is October the 2nd, 1970, Mr. Flynn.

A: Yes.

Q: Do you agree that a year ago today would be October 2nd, 1969?

A: Yes, I agree with you.

Q: Now, Mr. Flynn, is it a fair statement that as far as talking to me is concerned, that you spoke to me in the last few weeks during the summer of 1970?

A: Yes.

Q: Is that a fair statement, Mr. Flynn?

A: Yes.

Q: Now, is it at fair statement, Mr. Flynn, that — and I don’t wish to — I don’t wish to pry, Mr. Flynn, into your reasons for not wanting to discuss Vietnam, I’m only interested in what effect, if any, your experiences in Vietnam have had upon your state of mind or your thinking.

Do you understand that, Mr. Flynn?

A: Yes.

Q: I am not doing this. I’m not asking you these questions just to be asking the questions.

Do you understand that?

A: Yes.

Q: Is it a fair statement, as you look into your mind, as you think of yourself and the thinking that you do in connection with whatever you may do, is it a fair statement that your experiences in Viet-Nam have affected your thinking?

MR. BUGLIOSI: Repetitious.

MR. KANAREK: I don’t think this question has been answered directly, your Honor.

I think if we had a direct answer to the question —

THE COURT: It is ambiguous, Mr. Kanarek. I don’t see how the witness can possibly answer.

The objection is sustained.

Q BY MR. KANAREK: May I put it to you this way. May I ask you for a comparison, Mr. Flynn.

Is it a fair statement that your ability to remember and think was different before you went to Viet-Nam than it is now?

A: I will say that as far as the commitment in Viet-Nam.

Q: What is that?

A: As to the commitment in Viet-Nam.

Q: What do you mean by that?

A: Well, what I went there and saw, you know, and what I thought I was going to see there.

Q: Have you answered that question?

A: Yes.

Q: Well, now, before you went to Viet-Nam, Mr. Flynn, did you walk, for instance, along the streets of Los Angeles without any shoes on?

MR. BUGLIOSI: Irrelevant. Beyond the scope of redirect.

THE COURT: Sustained.

Q BY MR. KANAREK: Mr. Flynn, may I ask you this: Since you have come back from Viet-Nam, do you find that you have greater difficulty in relating and remembering than you did before you went to Viet-Nam?

A: I don’t understand the question, sir.

Q: Pardon?

A: I don’t understand the question.

Q: You don’t understand it?

A: No.

Q: Directing your attention to your own ability to remember whatever you may see, Mr. Flynn, or hear. Is it a fair statement that your ability to remember is less now than before you went to Viet-Nam, that which you may have seen or heard?

A: I couldn’t answer it yes or no.

Q: Would you answer it in your own way, please?

A: I will say that I remember, you know, I have got a pretty good head.

Q: I am asking for a comparison, Mr. Flynn.

MR. BUGLIOSI: Objection —

MR. KANAREK: A comparison before you went to Viet-Nam compared with right now.

MR. BUGLIOSI: — on the grounds it is irrelevant.

THE COURT: Sustained.

Q BY MR. KANAREK: For instance, Mr. Flynn, you have, at some time, stated that the car that you now think is a Ford —

A: Yes.

Q: — a yellow Ford —

A: Yes.

Q: — at one time you stated that that was a Plymouth; is that correct?

MR. SHINN: Your Honor, I am going to object on the grounds it has been asked and answered.

THE COURT: Overruled.

You may answer.

MR. KANAREK: Is that correct?

A: Not that I thought it was a Plymouth.

I said a Ford is a Ford and a Plymouth is a Plymouth.

Q BY MR. KANAREK: Have you finished?

A: Yes.

Q: Do you remember telling Mr. Sartucci that this very car was a Plymouth?

MR. FITZGERALD: Asked and answered yesterday.

THE COURT: Overruled.

You may answer.

THE WITNESS: I could have told him that.

MR. KANAREK: All right.

Q: Would you tell us the reason why you said that Ford that you now believe to be a yellow Ford is, in fact, a Plymouth?

I will withdraw that.

Could you tell us why you told, why you once stated that the car you now believe to be a yellow Ford, why did you previously say it was a Plymouth?

A: Well, I saw Mr. Charles Manson drive in the yard one day — one night, you see — it was just starting to get dark, you see — and he got out of the car, you know. He was with Brenda. He was coming over the Santa Susanna Pass, you know, from that direction.

And he told me that he wanted me to go to a place —

MR. KANAREK: Your Honor, I submit that he is not answering the question.

THE COURT: You asked him why. He is apparently trying to answer the question.

MR. KANAREK: Well, your Honor —

THE COURT: Do you want to withdraw the question?

MR. KANAREK: Yes, I will withdraw the question,

Q: Mr. Flynn, as you sit there on the witness stand —

A: Yes.

Q: — do you consider that you are a witness for the prosecution? In your own mind, do you consider yourself a witness for the prosecution?

MR. BUGLIOSI: It is irrelevant. Also, beyond the scope of the redirect, your Honor.

MR. KANAREK: It goes to bias, your Honor, and impeachment, his state of mind in this matter.

THE COURT: Overruled.

You may answer.

THE WITNESS: Well, I am a witness as well for you, too, as for the prosecution.

MR. KANAREK: And in your mind, you are a witness for both sides; is that right?

A: Well, I am a witness for the testimony that I serve, in my mind.

Q: In your mind?

A: Yes.

Q: And in your mind, Mr. Flynn, is it a fair statement that you, at this time, like Mr. Manson? Is that correct?

A: I feel that although I don’t agree with everything that he says, that he has everything and every right to do what he does, you see, and I don’t dislike him, you know.

I will say that.

Q: You don’t dislike him?

A: No.

Q: I see.

Is it a fair statement that you like him?

MR. BUGLIOSI: Repetitious, your Honor. It was gone into yesterday.

MR. KANAREK: No, your Honor. I don’t believe that I have gone into this yesterday.

THE COURT: Overruled.

MR. KANAREK: My notes don’t indicate that, your Honor.

THE COURT: The objection is overruled.

You may answer.

THE WITNESS: You could say. I can say yes.

Q BY MR. KANAREK: That you do not like him; right?

A: Well, that I like him, you know, and that I don’t like him.

Q: Pardon?

A: That I like him and that I don’t like him.

Q: Well, as you sit there in the witness stand, is it a fair statement that you do not like him, Mr. Flynn?

MR. BUGLIOSI: Asked and answered.

MR. KANAREK: I don’t think it has been, your Honor. The witness can give an answer.

MR. BUGLIOSI: He said he does not dislike him. He already testified to that.

THE COURT: The question has been answered, Mr. Kanarek. The objection is sustained.

MR. KANAREK: All right.

Q: Now, Mr. Flynn, since yesterday, have you spoken to Mr. Bugliosi?

A: Yes.

Q: And you spoke to Mr. Bugliosi yesterday a couple of times; right?

A: Yes.

MR. KANAREK: Thank you.

THE WITNESS: You are welcome.

THE COURT: Any questions, Mr. Hughes?

MR. HUGHES: Yes. Thank you, your Honor.

Q: Juan, do you recall the leather laces that I showed you the other day, the four sets?

A: You showed them to me, yes. I recall them.

Q: Now, do you remember any of those being the laces that you were wearing on the August 16th raid, the day of the August 16th raid?

MR. BUGLIOSI: This was asked and answered. It is also beyond the scope of the redirect.

THE COURT: Sustained.

Q BY MR. HUGHES: You said you received some threat notes; is that right?

A: Yes.

Q: And that they were washed in your pants a couple of months after you received them; is that right?

A: Yes.

Q: Did you make any Xerox copies of those threat notes?

A: No.

Q: Did you take a picture of them?

A: No.

Q: Did you write them out somewhere else?

A: No.

Q: What did those notes say, Mr. Flynn?

A: One of the notes said: “This is an indictment on your life because it is coming down. In the course — and when in the course of human events life becomes intolerable to sustain under a power, the people will invoke their initial right to revolution.”

And there was another little part there that said, “Where the eagle flies, we will lie under the sun, where the eagle flies, we will die to be one.”

And that is one of the — you see, I remember it, you see, from one of the songs, you know.

Q: Didn’t one of the notes also say, “I am going to sneak up on you and give you a kiss”?

A: Yes, it is the same one. It said something like that.

Q: Was that a threat?

A: Well, to start with, I felt that “This is an indictment on your life” and “a kiss” didn’t go too well, you know. So I thought that I would take it for what it was coming and the source.

Q: Were there any drawings on the notes?

A: Yes.

Q: Flowers?

A: There was a cross on it.

Q: Little pictures of smiling faces?

A: Well, they had a picture that looked like me, you know.

Q: Were you smiling?

A: Well, it was just a profile.

Q: Actually, besides being an actor, you are sort of an amateur poet, too, aren’t you?

A: I like to write.

Q: You write limericks?

A: I write who?

Q: Limericks.

A: Well, I just write what feels good inside.

Q: You gave some of your poetry to the press the other day, didn’t you, to the news media?

MR. BUGLIOSI: That is irrelevant.

THE COURT: Sustained.

Q BY MR. HUGHES: Didn’t you actually make up that threat note, that poetry, yourself?

A: That threat note?

Q: What you call a threat note?

A: No.

I was at the Fountain Of The World one night, and I won’t mention the name because I was asked not to mention those names but the source that it came from approached me at the Fountain Of The World and handed me this, you know.

Q: Didn’t you recently ask some of the girls for the words to one of Mr. Manson’s songs?

A: Yes. Yes.

Q: And aren’t those words, “Where the eagle flies,” aren’t those from one of Mr. Manson’s songs?

A: Yes.

Q: And those are words that you say were in the note; is that correct?

A: Well, the note that says, “This is an indictment on your life,” you see.

Q: Now, you say a couple of people came and threatened you physically with your life, is that right, when you had an ax, when you were chopping wood; is that correct?

A: Well, I was working, you know, and they came down there.

Q: One of them was a girl?

A: Yes.

Q: Did you hold her hand?

A: I don’t remember.

Q: Could you have?

A: Well, I like to be nice to girls, yes.

Q: Did you go with her the next day for a car ride?

A: Yes.

Q: Didn’t you ask her the next day to drive you down to the County Jail to see Mr. Manson?

A: Well, they kept insisting that I should see Mr. Manson, you see.

Q: Well, did you go with her?

A: No.

Q: Are you afraid of Mr. Manson?

MR. BUGLIOSI: Ambiguous, your Honor.

Now? Or at Baker Ranch in the middle of the night? Or Spahn Ranch? Or what?

MR. HUGHES: Right now.

THE WITNESS: Well, of Manson himself?

MR. KANAREK: Your Honor, before the next question is enunciated, may the record reflect that at least 18 seconds elapsed before the witness answered?

I can represent that to the Court.

MR. HUGHES: Did you understand the question?

THE COURT: That is not evidence, Mr. Kanarek. You are not testifying as a sworn witness.

MR. KANAREK: I would offer to be sworn, if your Honor wishes.

THE COURT: That won’t be necessary.

Let’s proceed.

THE WITNESS: Would you repeat the question?

Am I afraid of Mr. Manson right now?

MR. HUGHES: Yes.

THE WITNESS: Well, not of Mr. Manson himself, but the reach that he has, you know.

Q BY MR. HUGHES: You testified about a crossbow. You had a crossbow at one time?

A: Yes.

Q: Did you once shoot at an old man with a crossbow?

MR. BUGLIOSI: Irrelevant, your Honor.

THE COURT: Sustained.

Q BY MR. HUGHES: Mr. Flynn, you have been in the movies somewhat. Have you ever used an English accent in the movies, or can you do an English accent?

MR. BUGLIOSI: That is irrelevant.

THE COURT: Sustained.

Q BY MR. HUGHES: Can you do an American accent, Mr. Flynn?

MR. BUGLIOSI: Ambiguous. Also irrelevant.

THE COURT: Sustained.

Q BY MR. HUGHES: Is how you are talking now an accent that you have put on for this court?

A: I wouldn’t say so.

MR. KANAREK: Your Honor, may the record reflect at least a 15-second wait in connection with this last answer?

I offer to be sworn on that, your Honor.

MR. BUGLIOSI: Do you want me to call you as a witness, Mr. Kanarek?

THE COURT: The jury is perfectly capable of observing the demeanor of the witness and the manner in which questions are answered.

MR. KANAREK: If I may address myself to that, your Honor?

THE COURT: It is not necessary for you to make such comments.

MR. KANAREK: Very well.

It is just that the record is silent on time, your Honor.

THE COURT: The jury has to determine the facts in this case.

MR. KANAREK: Yes, sir.

MR. HUGHES: I have no further questions, your Honor.

Thank you, Mr. Flynn. Have a nice day.

THE COURT: Anything further, Mr. Bugliosi?

MR. BUGLIOSI: Yes.

MR. KANAREK: Your Honor, before he proceeds, I promise I will just ask one question, if I may reopen?

THE COURT: Very well.

Q: Mr. Flynn, it appears to me, it may be erroneous, that there is a marked difference in your demeanor on the witness stand now than before. I believe that is a fair statement.

MR. BUGLIOSI: This is argumentative, your Honor. It is not time for argument.

MR. KANAREK: I am asking him.

Q: Is there some reason, Mr. Flynn, why your demeanor on the witness stand now is different than it was when you first took the witness stand?

MR. BUGLIOSI: That it argumentative and assumes facts not in evidence.

THE COURT: Sustained.

MR. KANAREK: Thank you.

Q: Mr. Flynn, this arrest on August the 18th, 1970, did that take place after you spoke to Sergeant Sartucci and myself?

A: Yes.

Q: You had already spoken to us, and you were arrested that same day; is that correct?

A: Yes.

Q: What were you arrested for?

A: For drinking a beer out in the desert.

Q: And you requested that you be arrested for that; is that correct?

A: Yes. I felt that I needed it.

Q: Where is the Fountain of the World, Juan?

A: In Box Canyon.

Q: How far is that from Spahn Ranch?

A: Five miles; something like that.

Q: You testified in court as to some of the words in these threat notes that you received, or these notes that you received.

Did you study these notes rather carefully?

A: Yes.

Q: Is that why you remember the words?

A: Yes.

Q: You have also heard Mr. Manson sing songs out at Spahn Ranch; is that correct?

A: Yes.

Q: And you recognized that some of the words in these notes were words that you had heard him sing before?

A: Not him, himself, but I heard at the ranch.

Q: Sung by whom?

A: By members of the Family.

Q: Has Mr. Kanarek approached you several times outside this court and spoken to you, Mr. Flynn?

A: Yes.

Q: On any occasion, did he tell you not to say anything to anyone?

A: Yes.

MR. BUGLIOSI: No further questions.

THE COURT: Anything further?

MR. FITZGERALD: No recross.

MR. KANAREK: Yes, your Honor.

May I ask a question on this last point about my approaching —

THE COURT: Mr. Shinn?

MR. SHINN: No, your Honor. No questions.

THE COURT: Go ahead, Mr. Kanarek.

Q: Now, Mr. Flynn, would you tell the jury all of the circumstances when you say that I said that you shouldn’t say anything to anyone?

A: Well, after I requested to be arrested, you see, I called some people that I know and I told them where I was, you see. Then I spent two, three days in jail. And these people asked me, you know, if I wanted out, you know, I told them where I was.

THE COURT: Mr. Flynn, I don’t think you are answering the question that Mr. Kanarek asked you.

Would you reframe the question, Mr. Kanarek?

MR. KANAREK: May it be read, your Honor, so that there is no question? It is the same question.

THE COURT: All right. Go back and read the question.

Listen to the question, Mr. Flynn.

THE WITNESS: Yes.

THE WITNESS: Okay.

I will say it like this. When I walked outside, Mr. Kanarek bailed me out of jail, you see, and then I walked outside, and I said, “Oh, it is you?”

And Mr. Kanarek says, “Yes,” you know.

So he says, “What happened to you?”

So I related — I told him that, you know, I was in jail for drinking a beer, you see.

Then, he says, “Have you had anything to eat,” you know?

“No,” I says to him. I says, “I haven’t had anything to eat because I was in — how do you call them places — the hole, the tank, all day, you see.” And I told him that I wanted something to eat.

So, he offered to buy me something to eat.

And in the meantime, he told me that I shouldn’t worry, you know, and I shouldn’t — you know, I shouldn’t worry, you know, and that he would have some of the girls to come down and pick me up.

Then we went and had some food, you know, and on this, he said that I shouldn’t talk to anyone. In this period of conversation, he told me not to talk to anyone, you see.

This is all Mr. Kanarek said: “Don’t talk to anyone,” you see.

Then he says: “The girl are coming,” you know.

So I told him, “No. I am going somewhere else,” you see.

So, I had Mr. Kanarek drop me off in this place, this remote place.

And he says, “Call me in the morning,” you know, and he gave me a card, you know.

And I said that I would, but I didn’t.

And that was the relation of the conversation, you know.

Q BY MR. KANAREK: Did I tell you not to talk to anyone concerning the case that you came out of jail on?

A: The only thing that you said to me, you know, in repetition, you know, at various times of the conversations that we had, was, “Don’t talk to anyone, don’t talk to anyone.”

Q: And we discussed the case in Barstow involving why you were in jail here in Los Angeles; is that right?

A: Well, I don’t know if I talked about Barstow, you know, I don’t remember.

Q: You don’t remember telling me why you were arrested?

A: Yes, I think I told you.

Q: And it involved a traffic — a drinking matter in Barstow; is that right?

A: Drinking of beer, right. Yes.

Q: And I told you not to discuss it with anyone, is that correct?

A: Well, you said that, too, yes.

MR. KANAREK: Thank you.

THE COURT: Anything further?

MR. HUGHES: No questions.

THE COURT: Anything further, Mr. Bugliosi?

MR. BUGLIOSI: No further questions.

THE COURT: You may step down, Mr. Flynn.

THE WITNESS: Thank you.

MR. BUGLIOSI: People call Dave Steuber.

THE CLERK: Would you please repeat after me.

I do solemnly swear —

THE WITNESS: I do solemnly swear —

THE CLERK: — that the testimony I may give —

THE WITNESS: — that the testimony I may give —

THE CLERK: — in the cause now pending —

THE WITNESS: — in the cause now pending —

THE CLERK: — before this Court —

THE WITNESS: — before this Court —

THE CLERK: — shall be the truth —

THE WITNESS: — shall be the truth —

THE CLERK: — the whole truth —

THE WITNESS: — the whole truth —

THE CLERK: — and nothing but the truth —

THE WITNESS: — and nothing but the truth —

THE CLERK: — so help me God.

THE WITNESS: — so help me God.

THE CLERK: Would you be seated, please.

Would you draw the microphone back, sir, and would you please state and spell your name.

THE WITNESS: David Steuber, S-t-e-u-b-e-r.

Q: What is your occupation, sir?

A: State traffic officer, California Highway Patrol, 1382 East Olive, Fresno, California.

Q: You are not one of the investigating officers in the Tate-LaBianca murders, are you?

A: I am not.

Q: Do you know Juan Flynn?

A: I do.

Q: Have you ever had a conversation with Juan Flynn?

A: I have.

Q: Where did this conversation take place?

MR. KANAREK: Your Honor, may we approach the bench?

MR. FITZGERALD: It is hearsay.

MR. KANAREK: And it is hearsay. I agree with Mr. Fitzgerald.

I would like to approach the bench.

THE COURT: It is not hearsay yet. This is a foundation.

MR. FITZGERALD: The question calls for hearsay.

MR. KANAREK: Also, it is improper.

I would like to approach the bench.

THE COURT: Overruled.

You may answer the question.

THE WITNESS: In Shoshone, California.

Q BY MR. BUGLIOSI: Where is Shoshone, California?

A: It’s just east of Death Valley National Monument in California.

Q: It’s a little stop in the road?

A: Yes, sir.

Q: Small little town?

A: Population approximately 75 to a hundred.

Q: And when did you speak to Mr. Flynn in Shoshone?

A: On December 19, 1969.

Q: Where did you speak to him in Shoshone?

A: In a house that he was sharing with two other occupants.

Q: Who was present at that time in addition to yourself and Mr. Flynn?

A: Paul Crockett, Paul Watkins, Brooke Postin and, at one phase of the conversation, Deputy Don Ward, Inyo County Sheriff’s Office.

MR. KANAREK: Your Honor, if I may, I would like to object on the grounds of due process and I’d like to do it at the bench, if I might make my point to the Court.

THE COURT: Are you talking about this conversation?

MR. KANAREK: Yes, your Honor.

THE COURT: This witness’ testimony?

MR. KANAREK: Yes. I don’t believe it’s —

THE COURT: I assume you are going to offer the conversation; is that right, Mr. Bugliosi?

MR. BUGLIOSI: Yes, your Honor.

THE COURT: Then let’s approach the bench, gentlemen.

MR. HUGHES: Your Honor, may defendant Leslie Van Houten be present for the bench conference? I don’t wish to have any proceedings outside of the presence of the defendants.

THE COURT: I stated to you what the ground rules were, Mr. Hughes.

MR. HUGHES: Well, your Honor, may the record be clear, then, that there is no microphone and that the defendant is not able to take part in those proceedings at the bench and that accordingly — THE COURT: You are, however, if you wish.

MR. HUGHES: Accordingly, your Honor, I wish to be able to make the point so that the defendant may hear it now.

Accordingly, your Honor, I will approach the bench. However, I will not waive Miss Van Houten’s presence at any of the proceedings in this court.

THE COURT: Let’s hear from Mr. Kanarek first.

MR. KANAREK: I don’t believe the District Attorney can put this on at this point because —

THE COURT: Put what on?

MR. KANAREK: This evidence. I don’t think he can put this on at this point. He must do that on rebuttal. I disapprove of this witness coming on at this time.

In other words, because there has been some testimony by Mr. Flynn, I don’t think that allows him to put this, what would normally be, rebuttal evidence on, and I will object to that because it pinpoints and causes an undue emphasis on the purported authenticity of Mr. Flynn’s statement.

THE COURT: I assume the objection is going to be one of hearsay.

MR. KANAREK: Also, yes, your Honor.

MR. FITZGERALD: If he is not going to put the conversation on, it’s immaterial and irrelevant. He can’t put a witness on the stand and ask him if he’s had a conversation.

MR. BUGLIOSI: I am going to put it on.

MR. FITZGERALD: If he is going to put the conversation on itself, that’s hearsay.

THE COURT: He has to lay the foundation first, Mr. Fitzgerald, in other words, he is entitled to try to get the conversation in, but he has to first lay a foundation.

MR. FITZGERALD: What exception to the hearsay rule?

THE COURT: I don’t know.

MR. BUGLIOSI: I’ll make my offer of proof right now, your Honor.

This goes towards my flare-up in court yesterday. Mr. Kanarek, and I have it in the record, I have an authentication for it, has implied that Juan Flynn’s statement was recently fabricated. As early as this morning he started off by saying, “Did Mr. Bugliosi bring anything to you?” And then he went further. He says, “About the knife incident in the kitchen, were these matters brought to your attention by Mr. Bugliosi?’

He said that this morning.

Now, let me read you Section 791, your Honor:

“Prior inconsistent statement,

“Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing —

THE COURT: Keep your voice down.

MR. BUGLIOSI: Oh.

— is inadmissible to support his credibility unless it is offered after (b) an express or implied charge that has been made that his testimony at the hearing is recently fabricated.”

Now, again, I turn to Volume 106 and I read some of the statements that Mr. Kanarek made to Mr. Flynn implying that he made up this story while talking to me. Says,

“As a matter of fact, it’s a fair statement, Mr. Flynn, that you have not told us the truth in this courtroom concerning the knife at your throat.” And he says, “You are saying that, sir.”

“Q. I’m asking you, Mr. Flynn.

“A. I told you the truth.

“Q. Did you tell Mr. — then there is some reason, there is some reason, did you tell Mr. Sartucci when you were at the Police Building on August the 18th, 1970, did you tell Mr. Sartucci about the knife at your throat when Mr. Manson made these threats to you?”

There’s objections.

“Well, I told him the truth.

“Mr. Flynn, my question is, as a matter of fact, you made no statement to Mr. Sartucci in your interview of August 18, 1970, about a knife at your throat at a time when Mr. Manson supposedly made these statements to you, did you, because it did not happen? Is that right, Mr. Flynn?

“A. I didn’t mention it if it is not in the record because, you know, I says, you know, I’ll bring it up here.

“Q. Oh, you’ll bring it up here.

“A. Yes.

“Q. You had in your mind — in other words, you deliberately lied to Mr. Sartucci; is that right?

“A. No.”

“BY MR. KANAREK: You are holding that back, is that right, Mr. Flynn, to spring it on us in this courtroom; is that right?

“A. No. I told the officers about this before, you see.

“Q. And Mr. Flynn, are you telling us, do you remember when the man was there taking down all the notes, like this Mr. Hollombe is here in this court?

“A. Yes.

“Q. You were talking to Mr. Sartucci on August the 18th, 1970?

“A. Yes.

“Q. You deliberately did not tell him about the knife at the throat?

“A. You say ‘deliberately’ I say, I might not come up with it.

“Q. You might not have come out with it?

“A. Yes.

“Q. It wasn’t a very important point. The reason it wasn’t is because it never happened, is that right?”

Just constantly here. I’ll go on further.

“You were at the Police Building because you wanted to be there and help the police; is that right?

“A. Well, you see, I was asked if I was willing to testify by the officers, you see, or come down and see the District Attorney, you see, and I was — and I says, yes, you know. So it might not have sprung right there, but I know it happened. You know, it happened.

“Yes, I see.

“Yes.

“Q. Do you mean, Mr. Flynn, that you made it up for the purposes of this courtroom? Is that correct, Mr. Flynn?”

Direct — direct questions.

MR. KANAREK: He’s going to — I mean —

MR. BUGLIOSI: Direct. There is no question about it.

MR. KANAREK: I’m afraid he is going to have a hemorrhage here this morning.

MR. SHINN: What date is that?

MR. BUGLIOSI: I am just taking some of it.

THE COURT: There is no question. There was an implied, if not express, charge of recent fabrication.

MR. FITZGERALD: I’ll stand on my objection that it’s hearsay. I represent Patricia Krenwinkel.

THE COURT: There is a limiting instruction. If it’s limited solely for the purpose of letting a jury determine whether or not the statements were made to this officer at the time he alleges it, not for the content or the truth of it.

MR. KANAREK: Before your Honor proceeds on this point, I think our point is valid. This testimony does not come in in connection with their case in chief.

THE COURT: Certainly it does.

MR. KANAREK: No, your Honor. I don’t believe that they can rehabilitate this witness — I think the orderly procedure would be on rebuttal for them to bring in this type of a witness.

THE COURT: Then you would raise the objection that they were bringing in a matter that wasn’t covered in your defense; therefore, they couldn’t raise it on rebuttal.

MR. KANAREK: No, I think —

THE COURT: I think it’s clearly admissible but there must be a limiting instruction.

MR. BUGLIOSI: Well, your Honor, I’m not too sure. This might come in substantively. The inconsistent statements rule, I forget the name of the case, People vs. Johnson, held that prior inconsistent statements cannot come in substantively, they can only come in for impeachment purposes.

I don’t think there is any case that says that prior consistent statements can’t come in substantively. They aren’t hearsay but they come in under an exception to the hearsay rule.

I think we will have to do some research on this. But to my knowledge, they come in substantively.

THE COURT: If you want to pass it for the time being —

MR. BUGLIOSI: I don’t want to pass this because he has to leave. He is from Fresno.

THE COURT: I’m going to give a limited instruction.

MR. BUGLIOSI: Well, there is no indication in the Evidence Code that this can’t come in substantively.

MR. KANAREK: This isn’t Mr. Manson’s declaration.

MR. FITZGERALD: It’s covered by 1235 of the Evidence Code and the case you are referring to, most recent case, is People vs. Green.

MR. BUGLIOSI: That’s on prior inconsistent statements. This is a prior consistent statement.

MR. FITZGERALD: Same rule applies.

MR. KANAREK: But you can’t bootstrap that into evidence as against Mr. Manson.

THE COURT: 1236 covers the prior consistent statement.

MR. BUGLIOSI: Right. And 1236 refers to Section 791. And 791 in sub (b) they talk about an implied charge of recent fabrication.

MR. KANAREK: And we have the Sixth Amendment, right of confrontation, your Honor, involved. And we have a right to confront. And how can you confront your accuser if this man is a gentleman whom Mr. Manson has never seen.

THE COURT: Well, I think to avoid that problem —

MR. BUGLIOSI: All right, your Honor, why don’t you instruct them now that it is limited for that purpose and then maybe later, if I could give the Court some authority, the Court could reinstruct the jury.

Would that be okay, your Honor?

THE COURT: Yes.

MR. KANAREK: May we have an offer of proof as to what this witness is going to say in this regard? I think it’s a fair request to have an offer of proof because Mr. Bugliosi has talked to him but certainly I don’t think any of us have.

THE COURT: I think there should be an offer of proof.

MR. BUGLIOSI: Oh, the offer of proof, your Honor, is that he asked Mr. Flynn in Shoshone if Mr. Manson had ever confessed to him or spoken to him about the Tate murders and Mr. Flynn says, “Well, there was one time in the kitchen at Spahn Ranch and Mr. Manson put a knife at my throat, pulled my hair back, and says, ‘You SOB. Don’t you know I am the one doing all these killings?’” Almost precisely the testimony here in court.

And it just couldn’t be more consistent. The language is almost identical.

MR. KANAREK: Yes, your Honor.

I would object to the use of this evidence in any event because it is hearsay upon hearsay, if we want to get poetic about it, and the fact of the matter is, furthermore, that I don’t believe that the jury — the jury can make that fine distinction that your Honor is going to instruct them. I think that interferes and denies Mr. Manson a fair trial, a fair jury trial, because we are now dealing with a purported confession, your Honor, which has, as your Honor knows — all the cases are legion that when you come to words of confession you get into an area that is very, very dangerous. And here is purported confession that is coming in.

So it’s our position that the jury should not be allowed to hear any of this, not only on hearsay but —

THE COURT: The objection is overruled.

MR. BUGLIOSI: Thank you.

MR. SHINN: Join in the objections and it is hearsay as to Susan Atkins.

MR. HUGHES: Join in the objections and it is hearsay as to Defendant Van Houten.

So that the record is abundantly clear, I want it clear the Defendant Van Houten not only is not present but is not able to hear this conference.

THE COURT: Under Illinois vs. Allen there is no requirement that she even hear. She has a right to be present if she conforms her conduct to the reasonable requirements of the court and does not disrupt the trial. When she is removed under Illinois vs. Allen there is no right to hear.

MR. FITZGERALD: No, I disagree with your Honor.

MR. HUGHES: I’m not waiving her right to —

THE COURT: At any rate, she has a speaker and she can hear.

MR. HUGHES: She cannot hear the proceedings that take place at the bench and I am not waiving her presence.

MR. FITZGERALD: She couldn’t even hear it when she was in court.

THE COURT: Those are purely legal arguments.

MR. HUGHES: I am making a legal argument, your Honor, and it is that she cannot hear this conference.

THE COURT: You said that, Mr. Hughes. There is no need to repeat it.

MR. HUGHES: I’m not waiving her presence at any proceedings before this Court. Any proceedings, your Honor —

MR. KANAREK: May I join —

MR. HUGHES: — to hear or otherwise.

MR. KANAREK: — on behalf of Mr. Manson with Mr. Hughes’ comments.

THE COURT: Very well.

MR. KANAREK: And Mr. Fitzgerald, if he did make a comment in connection with this subject matter.

Q BY MR. BUGLIOSI: How long was the conversation you had with Mr. Flynn?

A: I don’t recall the exact length of that conversation. There was a series of conversations during the day with each of the witnesses as I interviewed them and I started, perhaps, at 1:30, 12:00 o’clock in the morning, and it didn’t conclude until somewhere around 10:00 or 11:00 that night.

Q: Was your conversation with Mr. Flynn tape recorded?

A: Yes, a good portion of it was.

Q: Did you bring that tape recording to court with you today?

A: Yes, I did.

Q: After the conversation at any time did you play the tape recording?

A: I have played just a small part of this tape within the last two days. It’s the only time.

Q: All right. With respect to that small part of the tape, did it appear to accurately record the conversation that you engaged in with Mr. Flynn?

MR. KANAREK: Calling for a conclusion, your Honor. And I think that the best evidence is not this witness’s editorializing, your Honor.

MR. BUGLIOSI: It’s a necessary foundation, your Honor, to determine whether anything was deleted or added. It’s a part of the foundation.

THE COURT: Well, you are not offering the tape.

MR. BUGLIOSI: We are going to play the tape, your Honor. We are going to offer the tape.

MR. HUGHES: Furthermore, your Honor, I would object that this has never been made a part of discovery and I would ask for an exclusion or suppression.

MR. BUGLIOSI: This is legal argument that should be made up at the bench, your Honor.

THE COURT: Objection is overruled. You may answer it.

THE WITNESS: Will you repeat the question, please.

MR. BUGLIOSI: Yes.

Q: When you played the tape, did you determine that it fully and accurately reported the conversation that you recall having with Mr. Flynn?

A: It did.

Q: Was anything added or deleted, to your knowledge, in that tape?

A: No, it was not.

Q: And do you have that tape with you in court today?

A: I do.

Q: And you have a tape recorder to play it on?

A: I do.

Q: In the conversation that you had with Mr. Flynn, did he mention any knife incident at Spahn Ranch with Charles Manson?

MR. KANAREK: Object, your Honor, on the grounds it’s leading and suggestive and not the best evidence, if we have the tape, your Honor.

THE COURT: Overruled.

MR. KANAREK: I wondered if we also might make a motion at the bench on this.

THE COURT: Objection is overruled.

The jury is admonished that evidence of the alleged conversation to which this witness is apparently going to testify will be received for a very limited purpose and that purpose is only to permit the jury to consider it with respect to the question of whether or not Mr. Flynn made these statements to this witness at the time indicated. And the evidence is not received with respect to the truth of the statements which Mr. Flynn may have made.

In other words, you are not to consider the statements for the matters contained therein, but only for the purpose of determining whether or not Mr. Flynn made the statements to this witness on the date indicated.

MR. SHINN: Your Honor, may I address the Court, your Honor?

THE COURT: Yes.

MR. SHINN: May I take this witness on voir dire to determine whether or not the constitutional rights of Mr. Flynn were violated or not?

THE COURT: That motion is denied.

MR. HUGHES: Your Honor, I would move for a continuance so that we can have time to hear this tape. And also I would move that all of the testimony of Mr. Flynn be struck because this tape was not made available to us and apparently the prosecution had full knowledge of it.

MR. BUGLIOSI: Your Honor, this is legal argument and should be up at the bench, and defense counsel knows it.

MR. HUGHES: This was not made a part of discovery.

THE COURT: Do you wish to make an argument at the bench, Mr. Hughes?

MR. HUGHES: Yes, your Honor.

THE COURT: All right.

MR. HUGHES: However, I also wish to point out that I am not waiving —

THE COURT: I don’t want any more argument in front of the jury, sir. I am giving you the opportunity to come to the bench.

MR. HUGHES: Yes, sir.

MR. HUGHES: I just wish to point out, also, again, that I do not wish to waive defendant Van Houten’s rights.

THE COURT: You said that now about three or four times, Mr. Hughes. Don’t clutter up the record by saying it any more. You don’t add anything to it.

You have made your objection. It has been overruled.

MR. HUGHES: May I have a continuing objection, then, for any time there is any proceeding outside of her hearing?

THE COURT: You may.

MR. KANAREK: May I join and have the same on behalf of Mr. Manson?

THE COURT: All right.

Let’s get on.

MR. BUGLIOSI: Will the Court admonish the jury to disregard his comment that we never furnished anything?

Again, your Honor, it is argument in front of the jury that the District Attorney is doing something wrong.

THE COURT: Let’s get on.

MR. HUGHES: We have never been furnished or did we even have knowledge of the existence of the tape recording which is here alluded to, and I would move, number one, that all of the testimony of Juan Flynn — this is a tape recording of Juan Flynn, and Juan Flynn is a critical witness — that all of his testimony be struck, for failure of the prosecution to comply with the various discovery orders made in this case.

THE COURT: Your contention, first, is that it comes within the discovery order; is that right?

MR. HUGHES: Yes.

MR. FITZGERALD: Yes. The statement of the witness. I will agree.

I move for a one week’s continuance — he said this was an 11-to-12 hour conversation — I move for a one week’s continuance to listen to it. It will take a week to listen to it.

MR. BUGLIOSI: I just got this yesterday myself. I didn’t know about it.

I called him in Fresno and he came down with the tape.

The first time that I found out about it is when Mr. Flynn was on the stand and he testified that on a previous occasion he made a statement at some Sheriff’s Office up in Shoshone. I started inquiring, and I found out it was the CHP officer.

So, I just got this tape myself. I was totally unaware of it.

MR. HUGHES: In the event that —

THE COURT: Just a minute.

I want to make sure that I understand.

Did you gentlemen know about the existence of Officer Steuber?

MR. HUGHES: No.

MR. FITZGERALD: No.

MR. KANAREK: No.

THE COURT: Did you know about him?

MR. BUGLIOSI: I knew of his existence, of course. I didn’t know that he had spoken to Flynn until he related this.

THE COURT: Didn’t Officer Steuber report this conversation to somebody?

MR. BUGLIOSI: Well, he reported it to Frank Fowles, the District Attorney in Inyo County.

Somehow it never reached the LAPD or me.

The first time that I found out about this is when I spoke to Mr. Flynn in my office and he stated that Manson put the knife to his throat. That is the first time that I found out about it.

THE COURT: Well, I agree that if there is a tape, in view of the fact that counsel have not, apparently, had an opportunity to hear it — is that right?

MR. FITZGERALD: Right.

THE COURT: — that they should have an opportunity to hear it.

MR. BUGLIOSI: We could do that at 2:00 o’clock.

THE COURT: Obviously, in connection with their cross-examination.

How long is it going to take for them to listen to it?

MR. BUGLIOSI: This particular portion here is extremely short. This is the only thing that I am bringing in right now.

THE COURT: I know, but before they are in a position to cross-examine, they have a right, and will want to, I am sure, to hear the entire tape.

MR. FITZGERALD: And it is my understanding from the witness’s testimony that that is 11 or 12 hours in length.

THE COURT: Now, let’s consider also, gentlemen, that this evidence is being received for a limited purpose. That is, only as to whether or not it was said, not for the truth of the matters stated therein.

MR. KANAREK: That is theoretical, though, your Honor, as far as the jury is concerned.

THE COURT: All right, Mr. Kanarek, that will make about the 357th time you said that in this trial. You don’t need to say it again. This is not final argument.

MR. KANAREK: Yes, your Honor, but the point I was trying to make to the Court is that I believe that the objection of the best evidence rule is valid. I think that the present Evidence Code indicates that higher evidence should be used as opposed to just oral testimony.

Therefore, in the context of these proceedings with the jury knowing there is a tape, there is a synthetic authenticity given to this man if he is allowed to testify.

I think that if there is a tape, then he should try to use the tape.

THE COURT: Why is that any different than a man who testifies after having made notes of a conversation?

MR. KANAREK: I am saying that the tape is higher evidence.

MR. BUGLIOSI: I am going to play the tape.

MR. FITZGERALD: I think that essentially there are two problems, and I wouldn’t like to see them confused.

One is that this officer, if he testifies to a tape recording, I think we are entitled to hear the entire recording, because other portions may amplify or ameliorate or contradict.

THE COURT: No question.

MR. FITZGERALD: Number two, I think this is the tape recording of Juan Flynn, who is a major prosecution witness, and we ought to be entitled to listen to that tape in order that we might be able to bring Mr. Flynn back for further cross-examination in the event that the tape recording contains any contradictory statement, any prior inconsistent statements.

So, your Honor, we are talking about two things. We are talking about this officer’s recorded statement, and we are talking about Juan Flynn’s recorded statement. That seems to be the big problem.

THE COURT: I have no problem with that at all, gentlemen. You are entitled to hear it in its entirety, and as far as I am concerned, you are entitled to play it, if you want to, any portion that Mr. Bugliosi does not play, so far as it has any relevance.

The only question now is how will we proceed?

Mr. Bugliosi apparently has a very brief portion that he wishes to offer under —

MR. BUGLIOSI: Extremely brief. About a half a minute or a minute.

THE COURT: — 791 of the Evidence Code.

MR. KANAREK: I would ask that before this witness testifies any further, that as far as his testimony goes, the matter be adjourned.

THE COURT: We are going to adjourn in a minute because it is after 12:00 noon.

MR. FITZGERALD: Let me ask him if he has the tape with him, or you can ask him. Inyo County is 240 miles away.

THE COURT: He said that he has it.

MR. FITZGERALD: The entire tape.

Can I ask him?

MR. SHINN: May I be heard, your Honor?

THE COURT: One thing at a time.

MR. FITZGERALD: As to the logistics. Would you ask him if he has the entire tapes here, because if he doesn’t, it is unlikely that we are going to hear them over this weekend. We won’t be able to hear them until the first part of next week.

Let’s find out what he has got available that we can listen to.

THE COURT: If he has them all here, they can be listened to over the weekend. Mr. Bugliosi can then proceed to play the limited portion that he is interested in, and at the end of the direct examination of this witness, we will then adjourn until such time as you get an opportunity to hear the tapes.

MR. FITZGERALD: All right.

MR. BUGLIOSI: I think we should be able to play that particular portion right now.

THE COURT: That is what I said.

MR. BUGLIOSI: At this particular moment.

THE COURT: When we come back after lunch.

MR. BUGLIOSI: Yes.

MR. KANAREK: I would object to it being used at this time under the doctrine of People vs. Crovedi, the right for the defendant to prepare.

THE COURT: You will be given a complete opportunity to prepare.

MR. KANAREK: But the effect on the jury of allowing the jury to hear it, and then going ahead to prepare, that deprives, your Honor.

THE COURT: You are not going to have to cross-examine before you hear it.

MR. FITZGERALD: He said he has five reals of tape that purport to be Juan Flynn’s conversation. He actually has two with him in this building and three are in his car.

THE COURT: So they are all here in Los Angeles?

MR. FITZGERALD: Apparently.

THE COURT: All right.

MR. SHINN: May I say something now, your Honor?

THE COURT: Yes.

MR. SHINN: I think we should take up the question of whether or not the tape, or this witness’s testimony regarding the conversation with Mr. Flynn, is admissible or inadmissible.

We have a constitutional question here, your Honor, whether or not Mr. Flynn was aware of his constitutional rights. We have a right to go into that before he even goes into the conversation, your Honor, before Mr. Bugliosi goes into that.

THE COURT: What is your authority for that?

MR. SHINN: It is a constitutional right, your Honor. We should know whether or not Mr. Flynn gave up his constitutional right.

THE COURT: You cite me some cases after the noon recess on that.

We are going to recess at this time, but what I anticipate doing, gentlemen, is letting Mr. Bugliosi go ahead and play that portion of the tape that he desires to.

We will than adjourn until — I suppose it will take until Monday — or as long as you indicate — and you can play the tapes over the weekend, and you can commence your cross-examination.

MR. HUGHES: Would the Court order copies made for each counsel so counsel can prepare?

I don’t know, logistically, how we are going to do that.

THE COURT: Just get together and play them. You are going to listen to them here in court. Put the tape on the machine and play it.

MR. HUGHES: Will the Court make this building with a machine available, or what? I don’t understand.

THE COURT: You and Mr. Bugliosi can work out the details.

MR. BUGLIOSI: Before you go any further. I will be through in five-minutes after 2:00 o’clock. I suggest that we might utilize this afternoon for Roni Howard and Virginia Graham, to bring then into your chambers.

I have my original notes now on Virginia Graham, and I had them photostated.

Did the Court get a copy of the Roni Howard notes?

THE COURT: I think so.

MR. BUGLIOSI: We can either discuss the legal aspect of this or bring them in this afternoon, but I think we should utilize this afternoon.

Things have slowed down tremendously at this trial, and I don’t think we should throw away the afternoon.

THE COURT: I certainly agree with you, if there is something that can be done.

MR. BUGLIOSI: Does the Court want me to bring in Virginia Graham and Roni Howard this afternoon, or does the Court want to just consider the legal aspects of the admissibility?

I think we already discussed the admissibility aspect. It seems to me that the issue now is: What are they going to testify to?

THE COURT: As I indicated to you the other day, and counsel seemed to be in accordance, that this is what they wanted done, to have the witnesses come into chambers and testify as they are going to testify, and then, on the basis of that testimony determine whether or not effective deletions can be made.

Is that agreeable, gentlemen?

MR. FITZGERALD: Agreeable.

MR. BUGLIOSI: I can have them here this afternoon.

MR. KANAREK: Can we hear what counsel is going to play this afternoon now, before he plays it, your Honor?

THE COURT: I have no objection to that.

MR. KANAREK: Would your Honor order that?

THE COURT: We will take a recess now until 2:00 o’clock this afternoon anyway.

MR. KANAREK: But will your Honor order it?

THE COURT: How long will it take to play?

MR. BUGLIOSI: This particular portion that we will play in the courtroom after the noon recess will take a minute.

THE COURT: Why don’t you work it out between you during the recess.

MR. KANAREK: Very well.

THE COURT: We will take the noon recess at this time ladies and gentlemen.

Do not converse with anyone or form or express any opinion regarding the case until it is finally submitted to you.

The Court will recess until 2:00 p.m.

LOS ANGELES, CALIFORNIA, FRIDAY, OCTOBER 2, 1970 2:05 P.M.

-o0o-

THE COURT: All counsel are present.

Did you have something you wanted to bring up, Mr. Kanarek?

MR. KANAREK: Yes, your Honor.

During the noon hour, as best I could, your Honor, in the Law Library, I researched this point, and I believe that I would say — I allege that going ahead with this witness’ testimony at this point would be reversible error, your Honor.

Beginning with Priestly, which is 50 Cal. 2d, 812, which I’m sure is a case that your Honor knows about, the failure of the prosecution to respond to discovery means that whatever evidence that they have must be suppressed in view of the — well, without belaboring it — the circumstances of this case.

I have cases here that I would want the Court to consider. Because you can’t unring the bell as far as this jury is concerned. Once that tape recording starts winding and they hear what Mr. Flynn purportedly said, the error is in.

Now, the only relief that the defendant —

THE COURT: Mr. Bugliosi said he didn’t know about it.

MR. BUGLIOSI: In fact, I haven’t heard the tapes myself. The only thing I have heard is one minute. I haven’t heard it all myself.

MR. KANAREK: First of all, we have no declaration to that effect, we have nothing under oath. We have merely the protestations of Mr. Bugliosi in that regard.

THE COURT: That’s right. Because the question was just raised a few minutes before noon.

MR. KANAREK: But, your Honor, what I am saying is, you see, it isn’t a matter of good faith or lack of good faith on the part of the prosecution, or their allegation of good faith. What it is, what it means is, that the prosecution, because they didn’t do their homework, here we have Mr. Manson arrested, we have 12 hours of tape, and — THE COURT: Now, Mr. Kanarek, if you are contending that you have the right to something that hasn’t yet been discovered, I am afraid I am not aware of any authority that requires that.

MR. KANAREK: Law enforcement, your Honor — if I may, your Honor — what I am saying is that, at the very minimum, I think that the Court — and I make the motion to continue — I refer here to — I have here Witkin on Procedure, and I am sure your Honor recognizes that there are certain situations which are so important that the Court can order a continuance — but we don’t have to actually continue this trial; your Honor can defer his ruling until they can present points and authorities, and I would want to present points and authorities in a more cogent manner than I can just over the noon hour.

I have the cases here, your Honor, which I think clearly substantiate. This is State action. It was in law enforcement officers’ hands. There was coordination between the District Attorney of Los Angeles County and the District Attorney of Inyo County. There is 12 hours of tape.

The fact of the matter is that we were not furnished those 12 hours of tape.

So, the only relief —

THE COURT: You are going to be given an opportunity to listen to all of the tapes before cross-examination.

MR. KANAREK: But the damage is done, your Honor.

THE COURT: What damage?

MR. KANAREK: Well, in other words, purportedly, there is going to be some statement by Mr. Flynn about the knife and about some statements of Mr. Manson concerning the alleged Tate and LaBianca murders.

Now, we made discovery, your Honor. We did everything we could do.

THE COURT: How would discovery prevent those statements from coming in?

MR. HUGHES: I think the point is, your Honor, that the discovery was not necessarily directed to Mr. Bugliosi personally. It was directed to the District Attorney’s Office, to the Police Department, and to various other agencies, and just because Mr. Bugliosi personally did not have knowledge of 12 hours of tape recordings, I don’t think it means that it was not discovered.

MR. BUGLIOSI: I don’t see how we could produce something we don’t have.

THE COURT: I fail to see where the prejudice is myself.

MR. KANAREK: It is here —

THE COURT: Even assuming what you say is correct. Where is the prejudice?

MR. HUGHES: The discovery comes today, supposedly, and Mr. Bugliosi, apparently, for several days, anyway, has known of those tape recordings.

MR. BUGLIOSI: No, not several days.

THE COURT: What difference does it make? You will have an opportunity to listen to them before you cross-examine.

MR. BUGLIOSI: I called Fresno two nights ago and I asked if he had the tapes, and he said he did, and I asked him to bring them down, and he brought them down with him.

Was it yesterday?

MR. MUSICH: I think so.

MR. BUGLIOSI: I didn’t know about the conversation until Juan Flynn testified on cross-examination that he told some sheriff in Shoshone about it.

So, I called Don Ward, and Ward said yes, he remembered a conversation in Shoshone.

And I said, “Who was it with?”

And he said, “Some guy from the CHF,” and he didn’t know the name of the man.

So, I knew about Dave Steuber, and I said, “Is it Steuber?” And he said, “Yes.”

So, we called Fresno that night, and he verified that he had the tapes, and I asked him to bring them down.

Now, those are the facts. How is that a violation of discovery?

MR. FITZGERALD: There is a factual inaccuracy.

The tapes were in the possession of the District Attorney of Inyo County, Frank Fowles. I think one can make a substantial argument that you should have known about it.

MR. BUGLIOSI: There is no question, perhaps, that I should have known about it, but I didn’t.

THE COURT: Have any of you listened to the tapes?

MR. FITZGERALD: I listened to a portion.

THE COURT: I mean, all the tapes?

MR. FITZGERALD: No. That was not possible.

MR. HUGHES: There are 11 hours of tapes, and we only had two hours over the noon recess.

THE COURT: I think maybe you are premature. Maybe there is nothing in the tapes worth discovering anyway.

MR. FITZGERALD: That could be.

MR. KANAREK: That could be, if Mr. Fitzgerald says, but they are going to use a portion now in connection with the knife incident and the words uttered by Mr. Flynn, supposedly, to Mr. Manson.

THE COURT: Assume that you had discovered the tapes six months ago, Mr. Kanarek. What difference would this make? They would still offer the evidence.

MR. KANAREK: Not necessarily, because then, if we had knowledge of those tapes, then, perhaps, our questioning would have been different. That is the point.

THE COURT: What question?

MR. KANAREK: Preparing for trial.

THE COURT: What question?

MR. KANAREK: Questioning of Mr. Flynn. The only reason that they’re offering it is supposedly because it’s rehabilitating him. There wouldn’t be any need for rehabilitation if they’d have made discovery and been — THE COURT: My recollection is that he testified, either on direct or cross, or perhaps both, that he did tell an officer in Shoshone.

MR. KANAREK: Well, what I’m saying is, your Honor, this type — this interrogation, and what occurred, would be — would perhaps — and there’s some probability, would be different if they had made discovery and we’d have had a transcript of the tapes. Because this is now purporting to rehabilitate him. And there would be no need for rehabilitation if we’d have had — if they’d have made the discovery that we requested.

And in that sense, the very relevance of the word, it gives him — it gives him an aura of authenticity or credibility that doesn’t exist, and need not have existed except for the fact that they did not make discovery. And I think that the cases are clear.

THE COURT: You keep saying that but I see no evidence that they didn’t make discovery.

MR. KANAREK: Well, but — well, what I’m saying is, if your Honor makes a judicial decision that they didn’t make discovery, it will be too late. Because the bell would have been rung as to this point by playing these statements to the jury at this time.

THE COURT: Even if they didn’t make discovery, Mr. Kanarek —

MR. KANAREK: Yes.

THE COURT: — which at this point is a poor assumption on your part, are you contending that there’s some automatic requirement that the Court must exclude the evidence?

MR. KANAREK: Yes. What I’m saying is if —

THE COURT: All right. You give me the citation.

MR. KANAREK: People vs. Seach — I mean this is the application clearly — the Priestly case.

THE COURT: Do you have what the case holds?

MR. KANAREK: I can’t represent that to the Court. 215 Cal. Ap. 2d at 779 is one case.

THE COURT: People vs. what? What is the last name?

MR. KANAREK: Seach, Your Honor.

MR. BUGLIOSI: 779?

MR. KANAREK: Yes.

THE COURT: All right. Any others?

MR. KANAREK: Yes. Well, the Priestly case, 50 Cal. 2d 812, where there —

THE COURT: Do you know what it holds?

MR. KANAREK: That had to do with informer evidence.

MR. BUGLIOSI: Seach holds just the opposite of what you say, if this headnote —

MR. KANAREK: Well, Mr. Bugliosi, again, is sliding off the point.

MR. BUGLIOSI: I think it says that. It says exactly the opposite of what you are saying.

MR. KANAREK: It doesn’t, your Honor. It held in that — if I may finish — it doesn’t hold that at all.

MR. BUGLIOSI: Maybe the headnote is wrong.

MR. KANAREK: The headnote says —

MR. BUGLIOSI: Mr. Kanarek —

MR. KANAREK: May I finish, your Honor?

MR. BUGLIOSI: All right.

MR. KANAREK: When Mr. Bugliosi has made very extended argument to the Court I have refrained, as your Honor may well recollect, from interjecting or interrupting.

Here. The headnote itself says:

“In a burglary prosecution, though the prosecution may have shown bad faith in withholding the report of an expert witness as not having been received in time, in the time period covered by the Court’s pretrial discovery order, failure to furnish defendants with the report of an expert who had examined physical evidence taken from defendants was not prejudicial where defendants were furnished with a copy of the report on the day before the expert testified and nothing in the nature of the report supported defendants’ contention that they lack ample opportunity to prepare for cross-examination of the expert.”

THE COURT: That relates to a report that was known about.

MR. KANAREK: Well, but, if your Honor will bear with me just a minute, that’s reading the headnote because Mr. Bugliosi —

THE COURT: I am now looking at the opinion, Page 785.

MR. KANAREK: Yes, your Honor. What I’m saying is —

THE COURT: Well, don’t you see any difference between something that is known to the prosecution and something that is unknown to them?

MR. KANAREK: Well, your Honor has to make the judicial decision. I don’t think your Honor can make that decision based upon unverified protestations of a deputy district attorney.

But over and above that is the fact that in Seach there’s the clear implication — it’s implicit, if not explicit, that if you are deprived of fair cross-examination, if you are deprived of something that must take place, or that would have taken place had you been given this, then the evidence must be suppressed.

Now, in this case had we been given these tapes, the examination of Mr. Flynn would undoubtedly have been different. And so, therefore —

THE COURT: You don’t know that. You haven’t heard the tapes.

MR. KANAREK: Well —

THE COURT: I would suggest this, Mr. Kanarek: I think whatever you are trying to do is premature at this time. If, after you have listened to the tapes, you feel that you have grounds for some kind of a motion, then I think you should set that forth clearly in some kind of a declaration that I can consider in the light of whatever the tapes reveal.

MR. KANAREK: By that time the damage will have been done because the jury is going to hear the portion that is probably the portion — the very portion that we are — that has to do with the allegations about the knife and the statements. And you can’t unring the bell. And that is the error, your Honor.

That’s why I am asking that this matter be continued, this witness be held in abeyance until we can convince the Court, or try to convince the Court, that the Court should suppress the tape and the testimony of this witness because the prosecution didn’t make discovery.

Maybe your Honor will decide against us. But if you let the jury hear it now, it’s going to be fatal. Because the jury — then you can’t unring that bell. And that’s — your Honor has the power not to allow that error to occur by just merely holding in abeyance what supposedly is going to take place in the courtroom right now.

Maybe the prosecution is right. But this way we can offer declarations, points and authorities, and then we can have this evidence.

There’s nothing magic. This evidence doesn’t have to go right now. But he’s offering it only in connection, I gather, with this point about the knife and the statements of Mr. Manson allegedly in the kitchen.

MR. BUGLIOSI: Well, to clarify the issues, are you alleging that the prosecution had this tape and deliberately never turned it over to the defense? I’d like to know if that is an allegation.

MR. FITZGERALD: I am not alleging that.

MR. KANAREK: Well, your Honor, I am not going to make — do I have — is your Honor asking me to answer that?

MR. BUGLIOSI: I am trying to find out what the issue is. Is that the issue, that we suppressed this tape?

THE COURT: Mr. Kanarek, I don’t care whether you answer that or not.

MR. KANAREK: Very well. If I may —

THE COURT: But if you don’t support your motion with something other than a bare assumption, you are not going to get very far. I can tell you that.

MR. KANAREK: I understand. But I think that we can convince the Court, your Honor, that if the District Attorney doesn’t do their homework —

Now, I do not know for sure whether this was deliberate or not deliberate. How can I say that at this point?

And I’m not going to misrepresent to the Court, or just make something up out of whole cloth.

THE COURT: I think the suggestion that because the District Attorney comes into possession of something at a later date and had no knowledge of it beforehand and is not acting in bad faith, or deliberately covering up something, that that evidence automatically must be excluded, I think that that’s absurd. And I know of no requirement in the law, statutory or case law, that requires any such result.

MR. KANAREK: Well, but what I mean, is, if, for instance the District Attorney, your Honor, deliberately did not go somewhere — let’s take that hypothetical.

THE COURT: Did not go somewhere and get something he didn’t know existed? Is that what you mean?

MR. KANAREK: No. That he knew — let’s say hypothetically — but what I’m saying is —

THE COURT: We are wasting time, Mr. Kanarek.

MR. KANAREK: Your Honor, I want a continuance so that these matters may be handled by points and authorities. I ask your Honor for a continuance, or merely that this witness be held in abeyance, so that we can approach the Court with points and authorities to convince the Court that this evidence should be suppressed.

We have merely the protestations of counsel, Mr. Bugliosi. They are not verified. No declaration. No points and authorities.

Because I believe in the context of our discovery order, and the context of our request for discovery, and the context of the entire way that this case has been handled with the in depth — the in depth supposed investigation, hundreds of people being spoken to — MR. BUGLIOSI: Oh, really?

MR. KANAREK: What happens here constitutes a fact situation, your Honor, where your Honor must suppress this tape and it cannot be used as a remedy and failure to do that is a denial of due process and a fair trial in not making the discovery that Mr. Manson’s entitled to.

THE COURT: In the first place, Mr. Kanarek, all the People are offering, as I understand it, is a very brief conversation, or a portion of a conversation, that this officer had with Mr. Flynn. They are not offering the tapes.

MR. KANAREK: But, say, it turns out that that should have been suppressed. The jury now hears that. Your Honor makes an order that they shouldn’t pay any attention to it.

What I’m saying is Bruton, and other cases, say you can’t unring the bell in certain situations and this is one of them. And it’s reversible error we allege.

THE COURT: I think you are creating a smoke cloud out of absolutely nothing.

MR. FITZGERALD: I have evidence that Mr. — that Officer Steuber told the Los Angeles Police Department about the existence of these tapes well over six months ago. And I think that at some position of these proceedings we ought to be able to ask this officer, outside the presence of the jury, whether, in fact, that’s true.

I hate to allege that based on the information I have, but based on other —

MR. BUGLIOSI: You may ask that.

MR. FITZGERALD: — on other information I have, in which case we have a little more direct chain, if, in fact, the Los Angeles Police Department knew about it I think they are agents of the prosecution.

MR. HUGHES: I would ask that my defendant, Leslie Van Houten, be present for these proceedings in chambers.

THE COURT: She can be present whenever you tell me that she is willing to come back into court and conduct herself in the proper manner.

MR. HUGHES: Well, your Honor, I don’t know that I can make that representation, and barring not being —

THE COURT: Until she is willing to so affirm, she is not coming back.

MR. HUGHES: She would not specifically answer the question, which I understand that the —

THE COURT: Well, I understand the game playing perfectly, Mr. Hughes.

MR. HUGHES: Well, I’m not playing the game. They may be, your Honor, or — I don’t know. I don’t understand the game playing. But I would ask either that she be present for the proceedings or that she be allowed to hear them in some manner.

THE COURT: She can hear them.

MR. HUGHES: All proceedings. She cannot hear these proceedings. I don’t see any microphones, your Honor.

THE COURT: She can’t hear proceedings when they have them at the bench or in chambers in any event.

MR. HUGHES: Well, I’m not waiving her presence at any proceedings, your Honor. No proceedings. To hear them or in any way.

THE COURT: That will make it about the sixth time you have said that today, Mr. Hughes.

MR. HUGHES: I want the record to reflect amply that that is my position and that she is not either —

THE COURT: Doesn’t reflect it any more amply when you say it six times than it does when you say it once.

MR. HUGHES: I don’t think the record reflects that this was not being broadcast to the defendants, number one, your Honor.

THE COURT: Chambers discussions? No chambers discussion has been broadcast to the defendants since this trial started, and you have made no objections before.

MR. HUGHES: Well, at this point, your Honor, the picture is changed and I am objecting now. And I think — I hope it’s clear that I am objecting and that I am not waiving her presence at these proceedings.

MR. KANAREK: Your Honor, if I might, I would ask your Honor to read People vs. Estrada, 54 Cal. 2d —

THE COURT: What is the holding in that case? Does it have anything to do with what we’ve been talking about?

MR. KANAREK: Yes, your Honor. 713.

I prefer, rather than to synopsize it, I would prefer that the Court consider all of the language of the case rather than take counsel’s —

THE COURT: Well, I’m not just going to read cases at random, Mr. Kanarek. I want to get on with the trial.

MR. KANAREK: Well, it’s my position, your Honor —

THE COURT: I think when you cite a case to me you should be able at least to state what the holding of the case is so that I can have some idea whether it’s relevant to anything under consideration.

MR. KANAREK: Well, your Honor, yes. I think — you never get a case that’s on all fours, but I’m saying that the —

THE COURT: I’ll settle for all threes.

MR. KANAREK: Very well. Either before or during trial an accused can compel the People to produce the written statement of a prosecution witness relating to the matters covered in his testimony.

And it is my position that when the prosecution doesn’t respond to discovery, so that counsel in connection with conducting the case hasn’t the use of that material which should have been discovered in connection — to prepare for his case, that the Court, the remedy that the defendant has is that the prosecution must not be able to use that. The remedy is to suppress.

I ask your Honor to read the Estrada —

THE COURT: That’s one of the remedies.

MR. KANAREK: Yes, your Honor.

THE COURT: But that assumes a number of things that have not yet been demonstrated in this case.

MR. KANAREK: But you can’t do everything at once. That’s why we are asking your Honor to hold this.

THE COURT: You haven’t even heard the tapes yet, Mr. Kanarek.

MR. KANAREK: I will make the motion that we hear the tapes before this witness is allowed to testify, lay a foundation, or allow the jury to hear it.

Furthermore, it’s out of context. He’s only going to play a small portion. Maybe there’s something two and a half hours later in that tape that’s going to be important in context with the small portion he is going to play.

MR. BUGLIOSI: I can still bring it in.

MR. KANAREK: So I think that we can eliminate error, we can have a tendency not to inject error by postponing this witness’ —

THE COURT: Is there any reason why the part that you intend to offer couldn’t be deferred until the first of the week?

MR. BUGLIOSI: Just that I don’t see any need for it, your Honor.

The man is from Fresno. The defense has broken up our case several times. I just don’t see any need for it.

This is prima facie evidence. I spoke to Mr. Flynn in my office. I gave the defense a copy of my conversation with him, which included that confession. So, there is the evidence right there that I am not trying to suppress it.

If I were trying to suppress it, I wouldn’t have given you a copy of the confession.

MR. KANAREK: That isn’t the point.

MR. BUGLIOSI: That is the point.

MR. KANAREK: That isn’t the point.

We wouldn’t have gone into certain aspects of the interrogation if we had known there was a tape from Shoshone.

MR. FITZGERALD: Speak for yourself, Mr. Kanarek.

THE COURT: I think you are making a mountain out of a mole hill. I don’t have any idea what you are talking about in relation to any fact content. You are just giving us a make-weight argument.

MR. KANAREK: No, your Honor.

THE COURT: You haven’t heard the tapes.

MR. KANAREK: I wouldn’t have asked the questions if I knew about the tapes.

THE COURT: You don’t know that any more than I do.

MR. KANAREK: Your Honor, if I knew there was a tape —

MR. MUSICH: If I might interpose?

The purpose of the evidence is only to rehabilitate the witness because of the cross-examination which raised the issue of the truth or falsity of this statement.

That is the only part of the tape that we are going into, your Honor.

Counsel has heard that portion of the tape, and whether or not Mr. Kanarek indicates he wouldn’t have gone into that area on his cross-examination, there would have been no need to rehabilitate the witness if he hadn’t, and his credibility as to that witness would have been just as well founded and credible without cross-examination as we are now trying to do by rehabilitation.

So, Mr. Kanarek’s theme and argument that he wouldn’t have gone into it would have then alleviated the problem of going into it with the witness.

MR. BUGLIOSI: I will take the stand and testify under penalty of perjury that I found out about the tapes, I guess, two days ago, when I called him late one night in Fresno.

That was the first time I found out about these tapes. I will state that under penalty of perjury.

MR. KANAREK: It isn’t just a question of Mr. Bugliosi. Mr. Stovitz has been on this case, and there have been other deputies that have been on the case.

MR. BUGLIOSI: I will call Aaron up here.

MR. KANAREK: And it is a sterile act for Mr. Bugliosi to say that he didn’t —

THE COURT: You are making a mountain out of a molehill, as I have already stated.

The only purpose of the testimony to be elicited by the People is to show that the statements were made, not for the truth of the content.

Now, if you want to use the tapes for some other purpose, you have them.

MR. KANAREK: No, your Honor.

THE COURT: You have them.

If you want to recall Mr. Flynn, you may do that.

If you want to use the information in the tapes, whatever it is, and apparently none of us, except Mr. Bugliosi, knows what is in the tapes, because we haven’t heard them —

MR. BUGLIOSI: I haven’t heard them either.

THE COURT: He hasn’t either.

MR. HUGHES: We don’t know what is in them.

THE COURT: If there is something in the tapes that you want to use for some other purpose, you will have an opportunity to do so. That won’t have the slightest effect on the testimony of the officer that the statements were, in fact, made.

MR. KANAREK: And in order to zero in on it, what I am saying is that the whole reason that Mr. Bugliosi went through this extreme effort to get him at this point is because Mr. Bugliosi knows that this, in the eyes of the jury, will purportedly rehabilitate Mr. Flynn because what he said happened in Shoshone allegedly did happen, and that is the vice of not making discovery, because if he had made discovery —

THE COURT: Now you are assuming something as to which there is no evidence whatever, that he didn’t make discovery.

He told you just the opposite.

MR. KANAREK: That is why we have motions, your Honor.

I am asking merely that this witness’s testimony be held in abeyance.

THE COURT: Mr. Bugliosi has offered to take the stand and be sworn to testify that he knew nothing about it. He is the chief counsel in the case.

MR. KANAREK: But on equal protection of the law, your Honor, you made it very important, you said we must have points and authorities and written motions.

There is no reason that this police officer’s testimony can’t be held in abeyance.

THE COURT: Here you have the direct testimony of the witness.

MR. BUGLIOSI: Do you want me to testify in open court under oath?

THE COURT: No matter what anybody suggests, including the Court, you don’t want it, even though it is diametrically opposed to the position that you take.

MR. KANAREK: My position is not to crucify Mr. Bugliosi or to hold him up and say “You are lying.” My purpose here is merely — if he will stay to the point — the point is that I believe the law is clear, that your Honor has an obligation to suppress this evidence because they didn’t make discovery.

THE COURT: That assumes the very fact which has already been denied.

MR. KANAREK: That is why we have the power here — we have a continuing, on-going trial —

THE COURT: You are objecting to Mr. Bugliosi taking the stand and denying the very thing you are claiming.

MR. KANAREK: I am not objecting. If your Honor wishes to?

THE COURT: It is not what I wish. It is your motion.

MR. KANAREK: But I am saying that we, also, under People vs. Crovedi, have a right to prepare.

THE COURT: Prepare what?

MR. KANAREK: Prepare points and authorities in a cogent, in a good lawyer like manner, to convince your Honor that even if he didn’t know, even if he didn’t know, because the law say, “knew or ought to have known,” — THE COURT: I thought you already cited those authorities to me.

MR. KANAREK: I haven’t done it complete.

There is People vs. Cartier, 51 Cal. 2d —

THE COURT: You certainly will have the opportunity to do so.

MR. KANAREK: But by that time the jury will have heard it.

The only thing that I want, your Honor —

MR. BUGLIOSI: I will take the witness stand.

MR. HUGHES: But 6 months ago, Mr. Bugliosi, you weren’t chief counsel. Aaron Stovitz was chief counsel, and we don’t know if he knew about it, and we don’t know what the LAPD knew six months ago.

MR. BUGLIOSI: Are you now deciding who was chief counsel six months ago?

MR. HUGHES: Mr. Stovitz said he was.

I believe that you were chief counsel for all intents and purposes. However, I believe that Mr. Stovitz had that title, and I believe that you were pretty angry.

MR. BUGLIOSI: Who told you that I was angry?

THE COURT: Gentlemen, we are wasting time.

MR. HUGHES: Six months ago, I believe that LAPD knew about these tapes.

MR. BUGLIOSI: The only one that called me an assistant was this guy over here. He called me Aaron’s assistant in open court.

MR. KANAREK: May the record reflect that he is pointing to Mr. Shinn.

MR. BUGLIOSI: Aaron was my boss, obviously. He was the head of the trial department.

MR. KANAREK: Here your Honor has the power to avoid error getting before the jury, if your Honor decides to suppress this, and I believe, your Honor, that we did everything we could do, and I believe that the state of the law is that if the prosecution doesn’t come up with it, then they are — THE COURT: You keep saying that.

MR. KANAREK: Well, I can’t do it without doing it your Honor.

I think that in holding it in abeyance a couple of days is not going to hurt anybody.

MR. HUGHES: As a matter of fact, Mr. Bugliosi, you told me on numerous occasions that Mr. Stovitz used to come down and take things from your files, and that he did other things, and that he was always losing evidence; that you had a lot of evidence that he went through that you lost.

MR. BUGLIOSI: If he took something out, I had already looked at it.

Before I put it in there, I looked at it, and I had never seen or heard of these tapes until two days ago.

THE COURT: Then I will put it over until Monday to give the defendants’ counsel an opportunity to listen to the tapes.

Now, don’t come in here on Monday, Mr. Kanarek and tell me that you didn’t listen to the tapes, because we don’t want to delay the matter any longer than that.

MR. KANAREK: I won’t. But is there, maybe, a day more convenient to the officer?

THE COURT: Let us worry about that.

All you are asking now is for the weekend, and that is all you are going to get.

MR. KANAREK: I have mechanical problems in that the weekend, in getting this tape — what I am saying, mechanical problems of this type can —

THE COURT: Whatever the problems, you will have to solve them.

MR. BUGLIOSI: I am worried about the possible destruction of the tape by accident.

MR. KANAREK: That is what I mean.

I don’t want to have anything to do with the tape personally.

MR. BUGLIOSI: That is why I would like to play it today.

No matter what is on the other other portion of the tape, no matter what it is, this particular portion is admissible.

MR. KANAREK: That is the point. He wants it, and they didn’t make discovery, you see, your Honor. He doesn’t care about the rest of it.

MR. BUGLIOSI: I don’t know what is on the rest of it.

I am saying that irrespective of the rest of it, this particular portion is admissible.

THE COURT: That can be solved by having it played in chambers and having the reporter take down the portion you are interested in. It could be read into the record if, in fact, it were destroyed.

MR. BUGLIOSI: All right. I would appreciate that. Should we bring Mr. Steuber in here?

THE COURT: Yes.

MR. KANAREK: The jury is in the box. They will see the police officer coming in here.

THE COURT: We won’t be needing the jury the rest of the afternoon.

MR. BUGLIOSI: No.

Roni Howard is here, and Virginia Graham is supposed to be here.

THE COURT: Let’s take the jury upstairs, at least until the mid-afternoon recess, and then we will have a better idea whether they will be needed at all this afternoon.

MR. BUGLIOSI: Do you want Mr. Steuber back here now?

THE COURT: Wait until the jury leaves.

MR. BUGLIOSI: Yes. But do you want Mr. Steuber back here?

THE COURT: Yes.

THE COURT: Did you bring the recorder in?

MR. BUGLIOSI: Yes. Do you have it, Mr. Steuber, the recorder, with you?

MR. STEUBER: Yes.

MR. BUGLIOSI: And do you have the tape about the knife?

MR. STEUBER: Yes, I do.

MR. BUGLIOSI: This is Judge Older, Mr. Steuber.

MR. STEUBER: Very glad to know you.

Mr. Bugliosi, this tape isn’t at the very beginning, but it is at the start of the knife story.

Is that where you want it?

MR. BUGLIOSI: Yes.

MR. KANAREK: Maybe you can go back a couple of sentences, or have you?

MR. STEUBER: I think I have.

THE COURT: Before we get into it, let’s clarify the record here.

All counsel are present, and the purpose of this proceeding at the moment is simply to have the reporter take down the substance of the conversation from the tape which Mr. Bugliosi desires to offer into evidence on Monday, so that in the event, for one reason or another, the tape should be destroyed or damaged, there would be a record of the conversation.

Is that correct, Mr. Bugliosi?

MR. BUGLIOSI: Yes, your Honor.

THE COURT: I do not anticipate that there will be any examination by counsel at this time.

MR. BUGLIOSI: Right.

THE COURT: Since it is not being offered at this time. This is purely a recording.

MR. BUGLIOSI: Kind of a perpetuation of testimony, as it were.

THE COURT: A perpetuation proceedings.

MR. HUGHES: Since this is a recording of, purportedly, Juan Flynn, and for the other reasons I stated previously, I would ask that either Leslie Van Houten be present or these proceedings be broadcast to her.

THE COURT: When you assure me, Mr. Hughes — I have told you a dozen times before — if your client is willing to affirm a willingness to conduct herself properly in court, she may be present.

MR. HUGHES: Your Honor, she would not answer that question for me.

THE COURT: Let’s proceed.

MR. KANAREK: Out of an abundance of precaution, although I see some infirmities in the argument, I want to join with Mr. Shinn’s argument about the constitutional right of Mr. Flynn not being here.

I see no harm in joining with that argument.

I would join in that regard.

Lack of foundation.

MR. HUGHES: Join.

THE COURT: Let’s proceed.

MR. BUGLIOSI: May the record reflect what we are doing now? We are going to play a tape recorded conversation of, what, December —

MR. STEUBER: December the 19th, 1969.

MR. BUGLIOSI: Between yourself, sir?

MR. STEUBER: Officer David Steuber, in Shoshone, California.

MR. BUGLIOSI: With Juan Flynn?

MR. STEUBER: That is correct.

MR. BUGLIOSI: And we are back in chambers now, and you are playing this particular portion of the tape referring to the knife incident to perpetuate this particular testimony.

MR. STEUBER: Correct, sir.

MR. KANAREK: Not testimony. To perpetuate the tape.

MR. BUGLIOSI: This particular passage of the tape.

MR. KANAREK: If I may? Just a couple of questions, so I can get ahold of Officer Steuber if I need him?

Just where I can locate him?

May I ask the questions, your Honor?

THE COURT: Yes, you may.

MR. KANAREK: How could you be reached if I wanted to reach you?

MR. STEUBER: Let me offer you my business card, and I may be reached 24 hours a day through the Highway Patrol Office at Fresno. The area code is 209. The number is 485-7440.

MR. KANAREK: Thank you very much.

MR. STEUBER: Is it corrected on that card in the upper right-hand corner?

MR. KANAREK: 485-7440.

MR. STEUBER: Yes.

MR. KANAREK: Thank you.

MR. STEUBER: You are welcome.

THE COURT: All right, sir. You may press the button Officer, and proceed.

MR. STEUBER: He asked me to run back two sentences before, which I did, and it is about to start now.

I will manipulate the volume, if I may, if you will indicate whether you want it quieter or a little more.

“Q. All right. Now, did you ever hear him say anything about the Tate killing or anything like that?

“A. Well, sort of, you know.

He never mentioned anything to me about it, you see, but I know one time I came in the kitchen, you know. I was doing some heavy work outside, and after it was all done, you know, they were sitting down on the porch, just watching. There was a whole bunch. And after I got through, I went in the kitchen and I fixed something and I sat down. And there was some more girls in there, you know.

“So he came in and he went like that, you know.

“So everybody went outside, you know, and placed themselves outside.

“Then he was looking at me real funny.

“Then I started to get back down to where I was eating.

“And then he grabbed me by the hair like that, and he put a knife by my throat.

“He said, ‘You son-of-a-bitch, I am going to kill you.’

“I said, ‘Well, I can’t do nothing about that,’ you know.

“And then he says, ‘Don’t you know I am the one who is doing all the killings,’ you know.

“Q. ‘Don’t you know I am the one that is doing all the killings’?

“Now, when would this have been about, Juan?

“A. Well, I can’t recall too well whether it was before or after the raid, you know.

“Q. Uh-huh.

“A. But he says, ‘Are you going to come with me to the desert?’

“I says, ‘Well, I am not planning to do it. I am right here. Here is where I am doing my work.’

“He says, ‘I am going to kill you, you son-of-a-bitch.’

“And then he turned around and he gave me the knife, you know, and I said, ‘Well, I don’t have no use for that.’

“And then he says, ‘Well, I will kill you,’ you know.

“He was going through this emotional thing, you know, act.

“And then he says, ‘Well, if you are ready to die, or if you are dead, I want you to go down the creek and make love to my girls,’ you know.

“So I said, ‘No,’ you know, ‘I am not going to do nothing.’

“And then, you know, I kept doing what I was doing, and he stood there for a minute, and he turned around, and I guess he walked out or something.

“Q. He wanted you to go down to the creek and make love to the girls there. Okay.

“A. Yes.

“Q. Now, he said he was the one that was doing all those killings?

“A. Yes.

“Q. Did you ask him what killings he meant or anything?

“A. No, no. I, you know —

“Q. Were you a little afraid of him?

“A. Well, I wasn’t afraid of him, you know, but if the man means what he talks about, you know.

“Q. Yes.

“A. I don’t want to find out and put myself in a spot.

“Q. Sure. Sure.”

MR. STEUBER: At this point, Deputy Ward from Inyo County Sheriff’s Office came to the door and entered, and that is why I introduced myself to Deputy Ward.

THE COURT: That is the end of what you want?

MR. BUGLIOSI: Yes.

THE COURT: All right.

MR. KANAREK: Your Honor —

THE COURT: We are not doing anything except recording through the reporter now, Mr. Kanarek, so there is no reason to make any objection or anything else. Nothing is being offered.

MR. KANAREK: I understand.

THE COURT: So let’s not clutter up the record with any speeches.

MR. KANAREK: No. I am just making a point. I hope it is helpful. I don’t know. I certainly intend it to be.

I recall in the Huey Newton case, where Charles Geary was the lawyer, I remember in that case, one word in a tape recording played back to a jury, I think it had something to do with “Yes” or “No,” or something like that, that had a critical effect on the trial, as I recall reading it in the paper, and your Honor probably does too, and the jury — there was a question as to what this one word meant, and it had a very critical effect, and the jury came back and wanted it.

THE COURT: Get to the point.

MR. KANAREK: What I am getting at, I think this tape should be in custodia legis.

MR. FITZGERALD: Oh, no.

MR. KANAREK: Just a minute.

Mr. Fitzgerald can object, but I would like to be allowed to finish.

What I am saying is this: I don’t know, and I would say, especially after Mr. Bugliosi’s statements about the reporters being only human, I could not hear all the words in that tape.

I am sure that your Honor will agree that there are spots there where your Honor would not be able to say he heard the words, the English, fully enunciated.

I say there is a problem there. I am not going to stipulate to this record being a true reproduction of all the words that were uttered.

MR. FITZGERALD: This is just an incredible waste of time.

Could we get on, your Honor?

THE COURT: We are going on.

MR. FITZGERALD: There is nothing improper here. Tape recordings have been played before.

THE COURT: That will be all, Mr. Kanarek. You have made your position clear a number of times.

MR. HUGHES: I want to make one point.

THE COURT: If you mention Miss Van Houten again, Mr. Hughes, I am going to be a little upset.

MR. HUGHES: I want to make the point that on this tape recording, purportedly of Juan Flynn, he has decidedly less of an accent than Mr. Flynn had on the witness stand today, in my estimation.

THE COURT: That will be enough.

You can stop right there, Mr. Reporter, because we are going on to a new subject now.

MR. KANAREK: May I just have a ruling, your Honor?

THE COURT: A ruling on what?

MR. KANAREK: That the Court keep custody of this tape?

THE COURT: The motion is denied.

MR. KANAREK: Very well. I was just making the motion.

THE COURT: You make many motions, Mr. Kanarek, whether they make sense or not.

MR. BUGLIOSI: I hate to waste time, but I am wondering now if you did get the crucial part there, Mr. Reporter, about his saying he is the one that is doing all those killings?

Could you look at your transcript?

MR. KANAREK: Mr. Bugliosi is interrogating the reporter now.

MR. BUGLIOSI: This is informal.

THE COURT: He took down what was played. I assume he heard it or he wouldn’t take it down.

All right. Then, as to this witness, Officer Steuber, when do you want him to resume?

MR. BUGLIOSI: Monday morning.

MR. STEUBER: Your Honor, I am under subpoena for a court in Anaheim on a prelim there, with a number of witnesses. I have the subpoena.

THE COURT: You are in this court now.

MR. STEUBER: Oh, boy. They are hurting. There are about 20 people.

THE COURT: So are we.

MR. STEUBER: Mr. Bugliosi, is there any way that my being here could be delayed or you could put on another witness?

MR. BUGLIOSI: I would like to put you on this afternoon, Dave, and I would ask the Court again to permit him to play this tape recording this afternoon.

The Court has heard the recording. It is Mr. Flynn’s precise testimony on the witness stand. It is classic textbook rehabilitation under Section 791.

Irrespective of what else is on the tape, that part is admissible. No matter what else is on the tape.

So, we could wait for five years, and there could be all types of other things, but the particular prior consistent statement would be admissible.

THE COURT: Well, there is a question in my mind as to whether or not because of the limitations of this particular recording machine, whether all of the jurors and alternates will be able to hear it when it is played.

Now, one other suggestion which you gentlemen can think about. We can have copies made of the transcript taken down by Mr. Mehlman, our reporter, and a copy of the transcript could be given to each of the jurors —

MR. BUGLIOSI: Yes, I was going to suggest that.

THE COURT: — during the course of the playing of the tape.

MR. BUGLIOSI: In fact, they could keep that.

MR. SHINN: That would be prejudicial.

MR. BUGLIOSI: They could keep the written transcript under People vs. —

THE COURT: The transcript would be taken away from them after the playing of the tape recorder.

MR. SHINN: You mean after they —

THE COURT: For use only to assist them in hearing the recording while it is being played. It would then be taken away from them.

MR. BUGLIOSI: People vs. Sears and Ketchel, your Honor, 59 Cal. 2d 503. The Court permitted the written transcript of the tape recording to be marked as an exhibit —

THE COURT: I’ve already done this.

MR. BUGLIOSI: — introduced into evidence —

THE COURT: It was done in the Jerry Weber case, for example.

MR. BUGLIOSI: Right.

THE COURT: Extensive use of the transcript.

MR. BUGLIOSI: Taken into the jury room during deliberations.

THE COURT: We didn’t permit them to take it into the jury room.

MR. BUGLIOSI: I am just saying that the Supreme Court of California does permit the jury to have these transcripts back in the jury room.

THE COURT: I don’t think it’s necessary. They have to rely on their memory just as they have to rely on their memory of any conversations. The transcript isn’t for the purpose of reenforcing at some future date their memory. It’s simply for the purpose of helping them listen to a tape which is not as clear as the conversation of a witness from the witness stand. That’s all.

MR. KANAREK: Well, your Honor, I would object to that. I would request that they listen to just the tape.

Now, it’s my position that there are words, I’m sure, that —

THE COURT: Well, the words will be taken down — have been taken down.

Now, if the testimony is received, or if the tape is played to the jury, then any party will always have the right to refer to the transcript and the record of that recording.

MR. KANAREK: Well, I would —

THE COURT: So you are not going to argue, Mr. Kanarek, that he didn’t say what he said.

MR. KANAREK: Well, you see —

THE COURT: You can argue the meaning.

MR. KANAREK: I understand, your Honor. But what I’m saying is I believe that a motion to correct the transcript is conceivably in order. I haven’t seen the transcript, of course, yet.

THE COURT: Well, we won’t do it, then. I’m not surprised, but we won’t do it.

MR. MUSICH: Your Honor, I think the Court would have to play this through the speaker.

MR. BUGLIOSI: This holds that we can actually produce the written transcript.

MR. KANAREK: What I mean is, your Honor, I think there are some infirmities in that tape recording that should allow us to have an independent word for word —

THE COURT: Well, you will have an opportunity to argue that at the appropriate time, Mr. Kanarek.

MR. BUGLIOSI: The Court does not desire that this be played this afternoon; is that correct, your Honor?

THE COURT: I can’t see any possible ground for excluding it. I think we have wasted enough time talking about it. I see no reason why it should not be played at this time. So I’m going to do it.

MR. FITZGERALD: Can it come in subject to a motion to strike?

THE COURT: Yes.

MR. FITZGERALD: Pending any subsequent relevant and germane evidence or argument we can present to the Court on Monday.

THE COURT: All right. I’ll let it come in subject to a motion to strike and it will not be necessary for any of you gentlemen to renew these motions and objections in open court. They will all be deemed incorporated into the proceedings in front of the jury as to this taped conversation. So it will expedite the procedure.

MR. SHINN: In other words —

MR. KANAREK: Well, then — very well, your Honor. Very well.

THE WITNESS STEUBER: Your Honor, may I set the tape back to the beginning to this conversation regarding to “What do you know about the Tate — ”?

THE COURT: Yes.

I really don’t think the jury is going to be able to hear all of this the one time. I don’t think it’s loud enough.

Is that the full volume?

WITNESS STEUBER: The batteries are weak in the set. It sounds to me as though the batteries are weak. I think with fresh batteries it’s somewhat clearer than this. However, I’m not an electronic or tape recorder expert.

THE CLERK: Your Honor, we could put the movable mike — it might amplify it a bit.

THE COURT: Well, we can try it.

MR. KANAREK: Then — very well, your Honor. All of my utterances are deemed —

THE COURT: Do you gentlemen want a recess before we resume?

MR. KANAREK: May we, your Honor?

MR. HUGHES: May we, your Honor?

THE COURT: Ten minutes.

MR. KANAREK: Thank you, your Honor.

THE COURT: The record will show counsel and the jurors are present.

Mr. Kanarek, has Mr. Manson indicated his willingness to come back into court and to conduct himself in the proper manner?

MR. KANAREK: Well, your Honor, I haven’t spoken with him since we have been in chambers, your Honor.

THE COURT: Well, whenever that is the case, let the Court know, and he will be brought back immediately.

The same is true with each of the other defendants.

MR. KANAREK: Yes, your Honor.

May I enunciate an objection — I don’t know if I have — on materiality and relevancy as well as the other points that we have advocated to the Court in connection with this witness’ testimony and matters occurring while this witness is on the stand, your Honor.

May I have that?

THE COURT: You are asking for a continuing objection?

MR. KANAREK: Yes, your Honor.

THE COURT: Very well.

MR. KANAREK: Thank you, your Honor.

THE COURT: You may proceed, Mr. Bugliosi.

Q: Just going back a little bit, Mr. Steuber, this conversation, you say was on December 19, 1969, in Shoshone, California?

A: That is correct.

Q: Between yourself and one Juan Flynn?

A: That is correct.

Q: And the conversation was tape recorded?

A: That is correct.

Q: You say there was a portion in the tape-recorded conversation that pertained to a knife incident between Mr. Flynn and Mr. Manson; is that correct?

A: That is correct.

Q: And you have the tape recorder and the tape with you in court here today?

A: That is correct.

Q: And you have already played the tape?

A: Yes, I have.

Q: And you find it to be an accurate reproduction of your conversation?

A: It is.

Q: And nothing has been added or deleted?

A: No, sir.

Q: And you recognize your voice on the tape?

A: Yes, I do.

Q: You recognize Mr. Flynn’s voice on the tape?

A: I do.

Q: All right, sir. Would you please play the particular portion of the tape pertaining to the knife incident. Play that portion for the Judge and the jury.

You might increase the volume on the recorder as high as you can.

“VOICE: They mentioned it a couple of times (unintelligible.)

“VOICE: All right. Now, did you ever hear him say anything about the Tate killing or anything like that?

“VOICE: Well, sort of, you know.

“He never mentioned anything to me about it, you see, but I know at one time I came in the kitchen, you know. I was doing some heavy work outside, and after it was all done, you know, they were sitting down on the porch, just watching. There was a whole bunch of them, you know. And after I got through, I went in the kitchen and I fixed something and I sat down. And there was some more girls in there, you know.

“So he came in and he went like that, you know.

“So everybody ran outside, you know, and placed themselves outside.

“Then he was looking at me real funny. Then I started to get back down to where I was eating.

“And then he grabbed me by the hair like that, and he put a knife by my throat.

“He said, ‘You son-of-a-bitch, I am going to kill you.’

“I said, ‘Well, I can’t do nothing about that,’ you know.

“And then he says, ‘Don’t you know I am the one who is doing all the killings?’ you know.

“VOICE: ‘Don’t you know I am the one that is doing all the killings’? Now, when would this have been, about, Juan?

“VOICE: Well, I can’t recall too well whether it was before or after the raid, you know.

“He says, ‘Are you going to come with me to the desert?’

“I says, ‘Well, I’m not planning to do it. I’m right here. Here is where I am doing my work.’

“He says, ‘I’m going to kill you, you son-of-a-bitch.’

“And then he turned around and he gave me the knife, you know, and I said, ‘Well, I don’t have no use for that.’

“Then he says, ‘Well, I’ll kill you,’ you know.

“He was going through this emotional thing, you know, act.

“And then he says, ‘Well, if you are ready to die, or if you are dead, I want you to go down the creek and make love to my girls,’ you know.

“So I said, ‘No,’ you know, ‘I’m not going to do nothing’

“And then, you know, I kept doing what I was doing, and he stood there for a minute, and he turned around, and I guess he walked out or something.

“VOICE: He wanted you to go down there to the creek and make love to the girls there. Okay.

“VOICE: Yes.

“VOICE: Now, he said he was the one that was doing all those killings?

“VOICE: Yes.

“VOICE: Did you ask him what killings he meant or anything?

“VOICE: No, no. I — you know.

“VOICE: Were you a little afraid of him?

“VOICE: Well, I wasn’t afraid of him, you know, but if the man means what he talks about, you know, I don’t want to find out and put myself in a spot.”

Q BY MR. BUGLIOSI: Is that it, sir?

A: That’s correct.

Q: The particular portion about the knife incident?

A: That’s correct.

Q: And that was yourself talking to Mr. Flynn?

A: Yes, sir.

Q: And this tape will be made available for the defense to listen to in toto?

MR. KANAREK: Your Honor, I’ll object to that question, I mean, that question —

MR. BUGLIOSI: I’ll withdraw the question.

THE COURT: It will be, so there is no secret about it, Mr. Kanarek.

MR. KANAREK: Well, your Honor, in the context of these proceedings I don’t think that’s a proper question.

THE COURT: Anything further?

MR. BUGLIOSI: I’ll withdraw the question.

Q: You just heard the conversation now, yourself; is that right, sir?

A: That’s correct.

Q: And you recall that the conversation you heard on tape, was that the actual conversation that took place at Shoshone, California, on December 19, 1969, between you and Mr. Juan Flynn?

A: That’s correct.

MR. BUGLIOSI: Thank you. No further questions.

MR. FITZGERALD: No questions.

THE COURT: Mr. Shinn?

MR. SHINN: Yes, your Honor, I have a few questions.

Q: Officer, when you talked to Mr. Flynn, was he in custody?

A: No, he wasn’t.

Q: How did you happen to meet him?

A: I had interviewed other witnesses in this case I was working and they had brought Mr. Flynn’s name into the case as a potential witness.

Q: And how did you contact Mr. Flynn?

A: I went to Shoshone with the express purpose of interviewing Crockett Postin and Watkins, and Mr. Flynn was there working in the cafe at the time and was also available.

MR. SHINN: I have nothing further, your Honor.

THE COURT: Mr. Kanarek.

MR. KANAREK: I have no questions, your Honor.

MR. HUGHES: No questions, your Honor.

MR. BUGLIOSI: Just one more question.

Q: You said you had been interviewing witnesses in this case. You are not referring to the Tate-LaBianca murder case, are you?

MR. KANAREK: I’ll object to that, your Honor, as calling for a conclusion on the part of this witness. Because at that time — if we may approach the bench, your Honor? I don’t think —

THE COURT: Overruled. You may answer.

THE WITNESS: I was not investigating the Tate-LaBianca. It was another situation pertaining only to Inyo County.

Q BY MR. BUGLIOSI: All right. Had nothing to do with these murders.

A: No.

MR. KANAREK: Calling for a conclusion, your Honor.

THE COURT: Overruled.

MR. BUGLIOSI: Thank you. No further questions.

MR. KANAREK: Officer, at the time — may I inquire, your Honor?

THE COURT: Mr. Fitzgerald, do you have any questions?

MR. FITZGERALD: No, your Honor.

THE COURT: Mr. Shinn?

MR. SHINN: No, your Honor.

THE COURT: You may.

Q: On December 19th, 1969, Officer, is it a fair statement that Mr. Manson was in custody?

MR. BUGLIOSI: It’s irrelevant.

MR. KANAREK: Well, your Honor —

MR. BUGLIOSI: Also calls for a conclusion.

MR. KANAREK: Counsel raised this issue about this case, is what he’s asking, your Honor, and I’m questioning in connection with the issue that Mr. Bugliosi raised.

THE COURT: Objection is sustained.

Q BY MR. KANAREK: Officer, on December 19, 1969, you purported to interrogate Mr. Flynn about the Tate-LaBianca murders; is that right?

A: And other matters on the case I was working on, sir.

Q: Well, Officer, if I may — is it a fair statement, Officer, that you spoke to Mr. Flynn concerning the Tate-LaBianca murders?

A: That is correct.

Q: So-called, right?

A: Right.

Q: And so no matter what else you may have interrogated him on, you were interrogating concerning the very matters that we’re in this courtroom for; is that correct?

A: That is also correct, sir.

Q: And so you were a law enforcement officer on the California Highway Patrol?

A: That’s correct.

Q: What was your rank, Officer?

A: A traffic officer.

Q: And you were doing this at the instigation of the District Attorney of Inyo County?

A: This is correct.

Q: Mr. Fowles?

A: Mr. Frank Fowles.

Q: How do you spell that, sir?

A: F-o-w-l-e-s.

Q: And was your state of mind, Officer, such that you were attempting to get evidence in connection with the very case that we’re here before Judge Older on?

A: My primary concern was the case pending in Inyo County, sir. This was of a secondary nature.

Q: Directing your attention to December of 1969, as a matter of fact, this case was more important, was more important to law enforcement officers, than the very matters that you are alluding to; is that correct?

MR. BUGLIOSI: It’s irrelevant, your Honor, and also conclusionary.

THE COURT: Sustained.

Q BY MR. KANAREK: Now, is it a fair statement, Officer, that you knew when you were interrogating Mr. Flynn that Mr. Manson was being accused of the very matters that we’re in this courtroom for?

MR. BUGLIOSI: It’s irrelevant.

MR. KANAREK: This is the tape.

MR. BUGLIOSI: It’s irrelevant, your Honor.

MR. KANAREK: It’s most relevant because this is — Mr. Bugliosi has brought this tape to the courtroom. Otherwise, your Honor, why are we having this tape?

MR. BUGLIOSI: To hear the conversation.

MR. FITZGERALD: The jury has been instructed on the limited purposes for which this tape has been received.

THE COURT: That’s right. And the jury is again reminded of that limited purpose which I stated to you this morning, which is simply on the question of whether or not Mr. Flynn made these statements to this officer. And the testimony as contained on the tape recording is not received for any other purpose. It should not be considered as evidence of the truth of the matters contained in that conversation.

The objection is sustained.

Q BY MR. KANAREK: And so, Officer, it is a fair statement that you knew of this very case that we’re trying before Judge Older when you conducted this interrogation?

MR. BUGLIOSI: Irrelevant.

THE COURT: Sustained.

MR. KANAREK: What?

THE COURT: Sustained.

MR. KANAREK: Very well, your Honor.

I want to make a motion to the Court in connection with this and I wondered, I don’t want to do it in the presence of the jury unless your Honor wishes me to.

THE COURT: No, I do not wish you to.

MR. KANAREK: Very well. May I approach the bench, then, your Honor?

THE COURT: Have you finished your examination?

MR. KANAREK: Yes. I finished except for a motion I’d like to make to the Court perhaps while this witness remains.

THE COURT: All right. Do you have any questions, Mr. Hughes?

MR. HUGHES: No questions, your Honor.

THE COURT: Do you have any further questions, Mr. Bugliosi?

MR. BUGLIOSI: No, your Honor. But I was wondering if the Court could inquire of the jury if they all heard the tape, if there is any one of them that would like to hear it again if they didn’t hear it the first time?

MR. KANAREK: Your Honor, if I may, I would object to that. This evidence is no different than any other evidence. I think the jurors would raise their hands if they wished to hear it, like any other evidence, your Honor.

THE COURT: I assume so. I hope none of you will sit there and not let us know if you can’t hear anything because we will have it replayed or restated, if that is the case. All you have to do is raise your hand at any time if you do not hear anything or you do not understand anything that has been said.

All right. You may approach the bench, Mr. Kanarek.

MR. KANAREK: Thank you, your Honor.

MR. KANAREK: Your Honor, in order —

THE COURT: Make your motion.

MR. KANAREK: Yes, your Honor. My motion is that your Honor tell the jury directly that this evidence is not to be used against Mr. Manson for any purposes; that it only goes as to the state of mind of Juan Flynn. I think that will — that is the motion that I make.

THE COURT: The motion is denied.

THE COURT: You may step down, Officer.

THE WITNESS: Your Honor, may I be excused from this courtroom?

THE COURT: Yes, you may.

MR. KANAREK: Subject, your Honor, to — in case — may I just inquire whether the officer is going on vacation or something like that in the next foreseeable future?

THE COURT: Very well.

Q BY MR. KANAREK: Officer, are you — if we need you, are you available in the next foreseeable future? Are you going on vacation or anything like that?

A: There’s two sides to this question. Number one, I’m subpoenaed to another court for Monday, and perhaps Monday and Tuesday. And then I, hopefully, will be going on a vacation that I missed last year. I’m planning on hunting in Idaho starting the 15th of this month through November 1st. But I would make myself available, break my vacation, if you will just let me know.

MR. KANAREK: Thank you, Officer.

THE WITNESS: Your Honor, am I excused?

THE COURT: Yes, you are excused.

MR. BUGLIOSI: Your Honor, may we talk to the witness, the attorneys, just for a short period of time?

MR. FITZGERALD: Yes, may we have a moment?

MR. BUGLIOSI: Your Honor, the People’s next witness is Virginia Graham. I believe there will be some legal discussion back in chambers on it.

THE COURT: As soon as counsel have finished talking to Officer Steuber.

Will counsel approach the bench, please.

THE COURT: I take it from what you have said a moment ago, Mr. Bugliosi, that you now want to proceed with Roni Howard and Virginia Graham.

MR. BUGLIOSI: Right. And they are both here, as I understand it.

THE COURT: All right. Now, previously we discussed

MR. FITZGERALD: Oh, Mr. Shinn is referring to his motion to suppress statements on other grounds.

THE COURT: Yes, now, you do have pending a motion to suppress.

MR. SHINN: Yes.

THE COURT: However, I think that the proper procedure is to first determine whether or not the statements are admissible, apart from your motion, and whether or not effective deletion can be made, if it’s required. Because it may well be that your motion will become moot.

Then if it’s determined by the Court that all or a portion of the statements are admissible, then we can hear your motion to suppress.

Is that agreeable?

MR. SHINN: Yes, that’s satisfactory, your Honor.

MR. KANAREK: Your Honor, it’s not on this point, it’s on a slightly different — or a different point. I wonder if the ground rules are changed in view of the fact that your Honor, over objection, allowed the tape recording and the officer to testify, Officer Steuber. May we not have to during this weekend, use the time, because I have other things to do, in connection with the 12 hours of tape?

THE COURT: Mr. Kanarek, I don’t care if you ever listen to the tape recordings. It doesn’t make the slightest bit of difference to me.

MR. KANAREK: Right. Your Honor, may I say this:

Your Honor indicated in chambers that we were to do it and I was prepared to sacrifice some personal —

THE COURT: That was in a different context. That was if the testimony of the officer was going to be deferred until Monday.

MR. KANAREK: Right.

THE COURT: I didn’t want to wait until Monday and have you tell me you hadn’t listened to the tapes, since that was going to be the reason for the continuance.

MR. KANAREK: Right. Now —

THE COURT: Since he’s already testified, it doesn’t make any difference to the Court whether you ever listen to the tapes.

MR. KANAREK: Right. I was just going to say, there are some matters, personal and otherwise —

MR. BUGLIOSI: Let’s not take up the Court’s time on that. That’s between you and me.

MR. KANAREK: I have just one further request.

The officer turned the tapes over to Mr. Bugliosi. Will your Honor at this time make the order that those tapes be made available to us?

THE COURT: Well —

MR. KANAREK: They are obviously tapes which —

MR. FITZGERALD: He’s agreed to make them available.

MR. BUGLIOSI: We will furnish them.

THE COURT: This is something you can work out between yourselves.

MR. BUGLIOSI: Your Honor, now, Virginia Graham is here. Do you want me to bring her back into chambers?

THE COURT: Yes. We will go back into chambers.

We are going to excuse the jury, since we won’t have any use for them for the balance of the day.

MR. KANAREK: I have one request, your Honor.

MR. FITZGERALD: Let’s answer the Judge’s question.

No, we are not going to have any need for the jury this afternoon. Are we, gentlemen?

MR. BUGLIOSI: It’s twenty to 4:00 and we’ve got a lot of issues to discuss.

MR. KANAREK: May I just have Mr. Bugliosi tell us how many tapes the officer turned over.

MR. BUGLIOSI: I believe five, but I think only two pertained to Juan Flynn.

MR. KANAREK: But all five are available?

MR. BUGLIOSI: All five are available.

MR. HUGHES: I want it clear that my earlier position remains.

THE COURT: (To the jury:) Ladies and gentlemen, we are going to adjourn at this time so far as the jury is concerned and the Court and counsel have some matters to take up in chambers.

Again, I remind you not to converse with anyone on any subject relating to the case, nor to form or express any opinion regarding the case until it is finally submitted to you.

The Court will adjourn until 9:45 Monday morning.

MR. KAY: Do you want the witnesses in?

MR. FITZGERALD: One at a time. Roni Howard first.

THE COURT: That was my understanding of what Mr. Bugliosi wanted to do.

MR. FITZGERALD: We discussed this with him, and he is going to bring in Roni Howard first, and Virginia Graham second.

As a matter of fact, he told her she could be excused until Monday morning.

MR. KANAREK: Your Honor —

THE COURT: Let’s wait until Mr. Bugliosi comes in, Mr. Kanarek, so he can hear whatever it is you have to say.

THE COURT: The record will show that all counsel are present.

This is Roni Howard?

MR. BUGLIOSI: Yes, that is Roni Howard.

This is Judge Older, Roni.

THE COURT: Is it Miss or Mrs.?

RONI HOWARD: Miss.

MR. BUGLIOSI: I was going to bring Virginia Graham back but —

THE COURT: Perhaps you should state, Mr. Bugliosi, what you plan to do.

Let me change that. I will state what my understanding is, and you gentlemen can comment if you don’t agree.

I had suggested the procedure in connection with the possible Bruton-Aranda problems involving the testimony of this witness that rather than go over various, perhaps, somewhat disjointed written statements of her testimony, that it would be simpler and more effective to bring her into chambers and have her testify just as she would testify but for the problems in open court, and then with the transcript in hand, the Court and counsel could, Monday, or some other day, determine what the problems are, and if there are Bruton-Aranda problems, if effective deletions can be made.

I do not anticipate that there will be anything in this proceeding other than the bare questioning of the witness by Mr. Bugliosi.

There is no need for any cross-examination since, if her testimony is admissible in whole or in part, it will be testified to by her in open court in front of the jury, and the opportunity for cross-examination will exist.

Does anyone disagree with that?

MR. BUGLIOSI: The only thing that I am a little concerned about, the defense have been given her statements with the Los Angeles Police Department and her conversation with me. They have that.

THE COURT: Yes?

MR. BUGLIOSI: Now she is going to give it once again.

This is just something the defense can use as impeachment. There has to be inconsistencies in words and clauses. It is just another opportunity, basically, for the defense to impeach her once she takes the stand.

They have the statement from the LAPD and my prior conversation with her, and now this conversation back in chambers.

I am wondering, your Honor, whether the defense is entitled to that?

They are entitled to the two statements that have already been given, one to LAPD, and one to me. They have been given that.

Now, in effect, this is a third statement, and I am just wondering whether we could get around it some other way by my relating what I think she will testify to, and maybe she can say, “Substantially that is what I am going to testify to.”

If there is any significant departure, then she can advise. But otherwise, it will just be a third statement.

MR. MUSICH: It would be a problem if the defense were allowed to impeach, under the circumstances, with times, place and persons present. It might have some detrimental effect for one side or the other with the jury, depending on what the type or manner or area of impeachment was.

MR. BUGLIOSI: I would say this is kind of unusual for the defense to have another shot at a prior inconsistent statement.

I am not implying that any witness that would be called to the stand would deliberately state a falsehood, but in human nature, people make mistakes in relating an incident. I mean, every time they relate it, it comes out slightly different. We are all human beings. If she tells the story ten times, basically, you will have ten slightly different versions. The defense can then avail themselves of every one of the versions for impeachment purposes.

So, I am just a little concerned about that aspect of it.

MR. SHINN: Your Honor, may I make a suggestion?

THE COURT: The difficulty with what you have handed me in the past, Mr. Bugliosi, let’s say, in respect to this witness, Roni Howard, I have here a typed statement which says “Statement of Roni Howard,” but it really isn’t a statement of Roni Howard, it is somebody else’s statement of what they think she is going to say or what they heard her say.

That is the problem.

MR. BUGLIOSI: It shouldn’t say “Statement” on there, your Honor. It is not a statement of Roni Howard.

THE COURT: That is exactly the point.

MR. BUGLIOSI: What this is right here, your Honor, is what I expect her testimony to be, based on her conversation with the LAPD, which the Court has right here, I believe — yes, right there — also based on the statements she made to me.

MR. SHINN: Your Honor, may the witness be excused while we discuss this?

THE COURT: That is not necessary.

MR. SHINN: It is not necessary? Very well, your Honor.

MR. BUGLIOSI: Also, based on a conversation that she had with me, which I think I gave the Court a copy of.

Based on those two things, I reduced those conversations to tentative questions and answers.

Basically, your Honor, you have here the expected answers that she is going to give to my questions.

The two statements are the LAPD statement and the conversation she had with me. That is, with the LAPD, and my statement here. This one right here.

These lines that are crossed out. I always do that. I am converting my interviews into tentative questions and answers, and after I go over a certain area and I am through with it, I cross it out.

Now, there is one issue that I think we can resolve right now, your Honor.

Mr. Shinn, apparently, has some evidence, or he is making an allegation that Roni Howard was an agent of the Los Angeles Police Department.

MR. SHINN: It is not an allegation. We have a right to go into that.

MR. BUGLIOSI: I am not questioning that.

Maybe we can handle it right here.

THE COURT: Let’s not confuse the two.

Mr. Shinn does have a pending motion to suppress the testimony of this witness along with that of Virginia Graham. We have just covered that at the bench not 10 minutes ago as to how we were going to handle it.

MR. BUGLIOSI: Right.

THE COURT: So I don’t think we need to take it up at this time.

You will have an opportunity to go into that fully, Mr. Shinn.

MR. SHINN: Yes, your Honor. I understand that.

THE COURT: Now, are you saying that you don’t want to proceed in this way, Mr. Bugliosi, or what?

MR. BUGLIOSI: It wasn’t my idea to bring her back in chambers. The defense wanted to bring her back.

MR. SHINN: No. No, we didn’t.

MR. FITZGERALD: No.

THE COURT: The suggestion was mine originally, and it seemed agreeable with everyone.

I went through and asked you again several times if that was agreeable, and the indication was in the affirmative.

MR. BUGLIOSI: Why don’t I read into the record what I expect her testimony, essentially, will be. I would like to have it in my words, not her words. Then I can ask her: Miss Howard, is this essentially what you expect to testify to?

If I have her using her words, the defense just has another statement for them to impeach her with.

I don’t think we should be forced to give them a third crack at it.

THE COURT: I think you are making a lot out of nothing

MR. BUGLIOSI: They have two.

MR. FITZGERALD: Actually, we have more than that.

MR. BUGLIOSI: You do?

MR. FITZGERALD: Yes.

We have statements that she made to her attorneys and also we have been trying for a number of months to get letters that Susan Atkins allegedly wrote to her that are in the possession of Mr. Stovitz, that we know the contents of, but we have been unable to get copies.

MR. BUGLIOSI: I want to talk to her about the letters myself.

But here we have two statements, the LAPD statement and her statement to me, and I have no other knowledge of any statements she made.

That is the point that I am trying to make. Her exact articulation of this conversation I don’t think is necessary at this point.

THE COURT: The point that I have tried, to make to you, Mr. Bugliosi, on a dozen occasions is that I see no way that the Court is in a position to evaluate the Bruton-Aranda problems and to know whether effective deletion can be made unless I see her testimony. Not your testimony, hers.

MR. BUGLIOSI: This is the statement she made right here.

THE COURT: That is part of it.

MR. BUGLIOSI: No, that isn’t the statement she made. This one with the blue back, the statement that she made to the LAPD; and this one here is the statement that she made to me.

THE COURT: I can’t read your notes, to begin with. That doesn’t tell me anything. It isn’t testimony, it is notes. Unintelligible notes.

Now, I would suggest, for your own good as prosecutors in this case, that you make abundantly clear to the Court what this witness is going to testify to.

I don’t care whether we follow this procedure or some other, but there is a very grave danger that there is going to be a serious problem here.

MR. BUGLIOSI: That sheet right there is what I expect her to testify to. That sheet right there, your Honor.

THE COURT: This is not her testimony, as I pointed out and as you admitted several times. This is apparently something prepared by you.

MR. BUGLIOSI: I got this from those two documents.

THE COURT: I can’t make it any clearer than I have, Mr. Bugliosi.

MR. SHINN: Your Honor, the Aranda rule doesn’t permit the prosecutor to condense the original confession of the defendant, your Honor.

If Mr. Bugliosi can show me a case that permits it?

THE COURT: That is correct, if you are talking about what goes to the jury. We are not going to hand this condensed statement to the jury and say that is the testimony of Roni Howard. That is perfectly true.

MR. SHINN: Correct.

MR. BUGLIOSI: To save time, I have my tentative questions and answers, may I ask her the questions now?

THE COURT: You may.

THE CLERK: Shall I swear the witness?

THE COURT: Yes.

MR. BUGLIOSI: I don’t think it is necessary. She is not testifying under oath right now.

MR. FITZGERALD: Unsworn isn’t any good.

MR. BUGLIOSI: It is like the other two statements. They were not sworn.

THE COURT: With Bruton-Aranda situations, the Court is always looking at unsworn statements to determine where the deletions are going to be. The witness has not testified.

MR. FITZGERALD: But there is nothing to prevent her from getting on the witness stand and testifying to something entirely different.

THE COURT: Is there any reason why she shouldn’t be sworn?

Swear the witness.

THE CLERK: Would you please stand one moment.

Would you raise your right hand.

Would you repeat after me?

I do solemnly swear —

MISS HOWARD: I do solemnly swear —

THE CLERK: — that the testimony I may give —

MISS HOWARD: — that the testimony I may give —

THE CLERK: — in the cause now pending —

MISS HOWARD: — in the cause now pending —

THE CLERK: — before this court —

MISS HOWARD: — before this court —

THE CLERK: — shall be the truth —

MISS HOWARD: — shall be the truth —

THE CLERK: — the whole truth —

MISS HOWARD: — the whole truth —

THE CLERK: — and nothing but the truth —

MISS HOWARD: — and nothing but the truth —

THE CLERK: — so help me God.

MISS HOWARD: — so help me God.

THE CLERK: Would you state your name.

MISS HOWARD: Roni Howard.

THE COURT: Keep your voice up, please, so everyone in the room can hear you.

MR. SHINN: May the record state, are you offering this as the proposed deleted form of the confession now? Is that right?

MR. BUGLIOSI: Yes.

Miss Howard —

THE COURT: No. No.

MR. SHINN: Proposed, I said, your Honor.

THE COURT: Let’s make sure we are not talking about different things.

If it is going to have any value at all, this must be the complete statement of this witness as to the complete conversation that she had with Susan Atkins.

MR. BUGLIOSI: I am not prepared to do that. I am not even prepared to do that with her.

MR. FITZGERALD: That is the whole point.

THE COURT: How can I possibly pass on the Bruton-Aranda problems if I don’t have the entire picture?

MR. BUGLIOSI: I am not even prepared for that because from the very beginning, when I spoke to her I was aware of the Aranda problem, and I didn’t concern myself with anything that she said that Susan Atkins told her about other people. It was worthless to me. I didn’t concern myself with it because I knew it was valueless.

I only concerned myself with what she told me that Susan told her that she did.

MR. FITZGERALD: The whole point was that we were going to get together and we were going to determine what she knew, in toto, so we could determine what could be edited sufficiently within the realm of Bruton-Aranda.

As a matter of fact, we suggested earlier that the Judge conduct the questioning. The Judge suggested that he had to know what she was going to say in toto so that he could have something from which he could decide what the probabilities or possibilities of Aranda error creeping in could be.

MR. BUGLIOSI: What I would suggest is this: That I go over with her now what I expect her testimony to be on the stand.

Now, the defense has access to a statement that she gave the LAPD, if they find anything in that statement which they feel is favorable to their clients, then we can discuss that particular issue.

THE COURT: That doesn’t do it, Mr. Bugliosi. You don’t seem to get the point.

MR. BUGLIOSI: There is her whole statement to the LAPD, that blue one. That is the whole statement she gave. That implicates other parties.

THE COURT: That isn’t all her testimony. She talked to you.

MR. BUGLIOSI: There is only a little extra, which will come out right now.

As I say, from the very beginning, my only concern was —

THE COURT: The whole purpose of the proceeding, Mr. Bugliosi, and let’s review it once again, in determining whether the admission or confession of a co-defendant comes within Bruton and Aranda, the Court has to review everything that the witness knows in the way of the conversations that were purportedly had with the declarant defendant, for the reason that no matter how you may think they are being edited, as Mattola, the opinion in People vs. Mattola, points out, the error may be made not on direct examination but on cross-examination or redirect examination or recross examination, and I have to look at the entire statement of what this witness purportedly heard from Susan Atkins to determine whether there are any of those problems present and, if so, whether there can be effective deletions.

It isn’t going to help me one bit if all you do is ask her your edited version of what she heard, because that isn’t going to stop the co-defendants’ counsel, all defense counsel, from going on, on cross-examination, and finding out what else she heard.

MR. BUGLIOSI: I can say this, then. Every person in this room is just as capable of asking her what Susan Atkins told her, just as capable as I am, I am more capable than anyone in this room of asking her what I expect her testimony to be at this trial.

But if the Court wants the whole statement, anyone can ask her exactly what Susan Atkins told her. The Court could or anyone.

THE COURT: Then ask it. That is all.

MR. BUGLIOSI: When I spoke to her at the very beginning I told her: Don’t concern yourself with anything that Susan Atkins said other people did. Just tell me what Susan Atkins said she did.

And this is all that I know. I wasn’t even concerned with other people.

THE COURT: That doesn’t solve the problem, unfortunately.

MR. BUGLIOSI: Do you want me to just ask her to relate the entire —

THE COURT: I want everything that the witness claims that Susan Atkins told her.

MR. BUGLIOSI: All right.

MR. FITZGERALD: The Judge has asked the question. Can she answer it?

MR. BUGLIOSI: I will nominate myself to ask.

MR. SHINN: Why can’t she tell it in a natural way? I think the questions you are going to ask will be leading.

THE COURT: What I would suggest you do is lay the foundation as to time, place, and persons present, and then just let her state everything that was said by Susan Atkins without any deletions whatever.

MR. BUGLIOSI: All right.

Have you ever been incarcerated at Sybil Brand Institute for Woman here in East Los Angeles?

MISS HOWARD: Yes.

MR. BUGLIOSI: During what period of time were you incarcerated?

MISS HOWARD: From September to about February.

MR. SHINN: I can’t hear.

MISS HOWARD: I am sorry. I have a cold.

THE COURT: Turn the air conditioning down.

MISS HOWARD: From September, I think it was, until about February.

MR. BUGLIOSI: September of ’69 to February of 1970?

MISS HOWARD: Yes.

MR. BUGLIOSI: What dormitory were you in over there?

MISS HOWARD: In the working dorm.

MR. BUGLIOSI: 8000?

MISS HOWARD: 8000.

MR. BUGLIOSI: Do you know the Defendant Susan Atkins?

MISS HOWARD: Yes.

MR. BUGLIOSI: Did you know her as Sadie Glutz?

MISS HOWARD: Yes.

MR. BUGLIOSI: Was she with you in dormitory 8000?

MISS HOWARD: Yes.

MR. BUGLIOSI: And that consisted of several beds there in the dormitory?

MISS HOWARD: Yes.

MR. BUGLIOSI: Where was her bed in relation to your bed?

MISS HOWARD: Next to mine. Right next to mine.

MR. BUGLIOSI: Did Miss Atkins, or did Sadie, ever say anything to you with respect to the fact that her bed was next to yours?

MISS HOWARD: Just that she felt we were put next to each other for a reason.

MR. BUGLIOSI: Did you ever have conversations with Susan Atkins which — with respect to murders of any kind whatsoever?

MISS HOWARD: Yes.

MR. BUGLIOSI: Did you have several conversations with her with respect to murders?

MISS HOWARD: Quite a few.

MR. BUGLIOSI: More than one?

MISS HOWARD: Uh-huh, yes.

MR. BUGLIOSI: How many, approximately?

MISS HOWARD: Maybe six.

MR. BUGLIOSI: During what period of time?

MISS HOWARD: I started just before she went for arraignment on the Hinman case, which was probably the last week in October, I imagine. Somewhere around there.

MR. BUGLIOSI: That was your first conversation with her?

MISS HOWARD: About the murders.

MR. BUGLIOSI: Well, about all murders; is that correct?

MISS HOWARD: Yes.

MR. BUGLIOSI: We are not just talking about the Tate-LaBianca murders now, we are talking about all murders.

MISS HOWARD: Yes.

MR. BUGLIOSI: If she did, in fact, talk about other murders.

MISS HOWARD: Yes.

MR. BUGLIOSI: Would you please relate, then, all of your conversations that you had with Susan Atkins, commencing with the first one in late October, ’69, pertaining to murders of any kind whatsoever and her involvement in them, if any.

MISS HOWARD: Well, it started off we were talking about the Hinman case.

She told me that the police had it all backwards and everything, because she said that, “Imagine, how can they figure a little girl like me could hold a man almost 200 pounds.”

So I was sympathizing with her, and that is why we were talking about that.

I mean, shall I just tell you briefly? We don’t have to go into details, do we?

THE COURT: I am afraid so.

MISS HOWARD: I mean, it is so long.

THE COURT: I understand that but, unfortunately, it is necessary.

MISS HOWARD: You want me to go into all the details?

THE COURT: Yes.

Will you tell us each time you go into a new conversation, will you tell us, if you can, approximately when it occurred and who was present, if there was someone other than just the two of you present.

MISS HOWARD: I will try.

We were alone the first time.

I was trying to help her figure out how to defend herself against the Hinman case.

And she went on to tell me how she and this other girl and this guy were in the house, and they were going to tear the house up and make it look as if a fight had been there and everything, so it would like somebody had robbed Gary, or something.

Anyway, they wanted some money out of Gary, and he wouldn’t give it to them.

Anyway, that is why they killed him.

Anyway, from there we went on to — we were talking about LSD, or something, one time.

And anyway, she was telling — Sadie told me that she done everything that there is to be done, and she was thinking, she said, “There is nothing that would shock her or anything.” She said she had done just about everything there is to do.

And I said, “Oh, really?”

And she said, “Oh, yes.”

And anyway, that is when she went on to tell me about — she says, “Well, you know about the Tate murder.”

I said, “Yes.”

She said, “Well, we are the ones that did it.” And I said — I didn’t believe her at first — I said, “Oh, really?”

And she said, “Oh, no, really. We did it.”

I said, “Well, anyone can say that.”

MR. BUGLIOSI: May I interrupt her now for a point?

MISS HOWARD: I wish you would ask me what you want because it is such a long detailed thing.

MR. BUGLIOSI: Excuse me.

May I read this report, your Honor, because I recall something a little different.

MISS HOWARD: It was so long and detailed.

MR. BUGLIOSI: I realize that.

MISS HOWARD: I can’t remember all of the details.

MR. BUGLIOSI: I want to find the place in here where you are talking about the murders.

MR. FITZGERALD: Maybe we can ask her to relate any conversation she had with Susan Atkins where Susan Atkins mentioned other persons, and then we could get right to the heart of the Aranda problem.

MISS HOWARD: I see what you mean. Okay.

For example, the Tate case?

MR. FITZGERALD: The Tate case.

MISS HOWARD: Okay.

THE COURT: Well, I am not sure that would necessarily solve all the problems. I think the entire conversations have to be considered together.

It is 4:15 now, gentlemen. We obviously aren’t going to finish with Miss Howard this evening.

MISS HOWARD: I think I know the point that you mean.

You mean regarding other persons? Isn’t that what you mean?

THE COURT: I think we had better adjourn at this time and resume on Monday morning.

Will you gentlemen have any objection to starting this proceeding, say, at 9:00 o’clock on Monday morning rather than 9:45, since we are going to be in chambers and there isn’t any problem of the jury being here.

MR. KANAREK: I know, your Honor. I could do it a day later.

Your Honor indicated that 9:45 was the starting time. If we could do it a day later?

THE COURT: I don’t understand.

MR. FITZGERALD: I don’t either.

MR. KANAREK: Well, your Honor, I hadn’t planned on being here at 9:00 o’clock Monday morning.

MR. KAY: There is no objection from me.

These two witnesses, Roni Howard and Virginia Graham, are the next two witnesses. So we have to clear this matter up before they can go on.

So, your Honor, 9:00 o’clock is fine.

THE COURT: I am afraid this may take longer than we anticipate, and I want to get on with it and use as much time every day as possible.

MR. BUGLIOSI: To save time, your Honor, here was the statement she made when it was still relatively fresh in her mind, November 25th. It is a complete statement to the LAPD.

In addition to this, there were a couple of other little points that I forgot when I spoke to her.

I am wondering if she has to go through — here we have 50 pages.

MR. MUSICH: Maybe it would be possible that we could take a statement over the weekend, or whenever we can, take a complete statement as to everything Susan Atkins told her.

MR. BUGLIOSI: What is the purpose of that?

MR. MUSICH: That is what we are doing here.

MR. BUGLIOSI: That is what the police did.

THE COURT: All you need is a supplement to this present statement. Why don’t you prepare the supplement, then, over the weekend, in testimony form, not your version of what she said, but the actual questions and answers?

MR. BUGLIOSI: That is not my version right there.

What I put down on the paper is what she told me, her words.

THE COURT: Put it in question and answer form.

MR. BUGLIOSI: I have that right here. I have it in question and answer form, what she told me.

THE COURT: All right.

Then we can have her indicate if that is the complete record of the conversations that she had with Susan Atkins, and Monday, if so, that will obviate the necessity of having her testimony to it all over again.

I just want to make sure that whatever I am considering in connection with this problem is the total testimony of this witness with respect to those conversations and not just selected portions.

MR. BUGLIOSI: All right. I already have written out here in question and answer form what I believe her testimony will be.

What I have on that sheet, your Honor, are the answers taken from this page. I don’t have the questions but I have the answers.

THE COURT: Do you need this sheet back?

MR. BUGLIOSI: No, no, you can have it.

THE COURT: All right.

MR. BUGLIOSI: I’ve got the answers right here.

THE COURT: Is that agreeable, then?

MR. BUGLIOSI: In fact —

THE COURT: To prepare a supplement —

MR. BUGLIOSI: What I can do is just photostat this and give everyone a copy of it.

MR. KAY: The Judge has a hard time reading your handwriting.

THE COURT: It doesn’t have the answers on it.

MR. BUGLIOSI: It has the answers. I asked the question, “What dormitory?”

Parenthesis “8,000”

Do you want this in typewritten form, your Honor?

THE COURT: I’ve said it so many times I’m —

MR. BUGLIOSI: Do you want this in typewritten form?

MR. KAY: Yes, he does.

THE COURT: Yes. I want it in testimony form, not shorthand, not condensations, not paraphrasing, but the actual questions and the actual answers this witness gives to those questions.

MR. BUGLIOSI: All right.

MR. MUSICH: Our questions?

MR. SHINN: May I make a suggestion, your Honor:

I believe the safest way to do it is to let her read the tape recordings that we have and let her refresh her memory to it, your Honor, and then she can read it and study it and then we can ask her if this was the answer that she gave on a particular day, your Honor. And then Mr. Bugliosi could try to delete from that, your Honor.

Because this way we’d have three different versions here.

THE COURT: She can do the same thing with the transcript.

MR. FITZGERALD: Logistically I will estimate that we will not be in front of the jury at all on Monday. If we conduct a proceeding in regard to Roni Howard and with Virginia Graham and we hear in open court outside the presence of the jury Mr. Shinn’s motion, it’s likely to take the balance of Monday.

MR. MUSICH: If we could do away with the sworn testimony and prepare statements of the witnesses as to everything Susan Atkins told, present that to her, in addition, is there anything that isn’t in the statements that Susan Atkins told her, put that in, and put them all together, and if the witness could be sworn if that’s substantially the same, or if that is substantially all that she heard Susan Atkins tell her, maybe that would eliminate the need to have her go through the question and answer and the statement under oath.

THE COURT: I think it probably would. That might alleviate some time. No necessity to duplicate anything that’s already been done if, in fact, that is all that’s been done.

MR. BUGLIOSI: Well, I have the questions and answers here. I will type this up and give a copy to the Court and the defense attorneys. Questions and answers I expect her to testify to at the trial.

THE COURT: In the meantime, hopefully before Monday, she will have had a chance, if she hasn’t already, to review everything that you are preparing, or have prepared, and then be prepared to testify that that is —

MR. MUSICH: Refresh her memory and if there is anything else —

THE COURT: — that that is all of the conversations that she had with Susan Atkins.

MR. SHINN: Vince, you have one other alternative.

MR. BUGLIOSI: What is that?

MR. SHINN: Admit the confession.

MR. BUGLIOSI: I knew you were going to say that.

THE COURT: Miss Howard, I do want to remind you, if you are not already aware of it, that there is a publicity order which the Court put out in connection with the proceeding which covers all witnesses, not only those who have testified but those who will testify, which includes you. And you are not to discuss the substance of your testimony with anyone other than the lawyers in this case, and specifically members of the media, —

THE WITNESS: I understand.

THE COURT: — television, newspapers and so forth. Anything else, gentlemen, before we adjourn?

MR. SHINN: Is it 9:45 or 9:00? I did not —

THE COURT: Let’s make it 9:00 o’clock, gentlemen.

I don’t think that’s unreasonable.

MR. KANAREK: Well, your Honor, I depended upon the Court’s being at 9:45, your Honor.

MR. BUGLIOSI: For clarification purposes, will I be satisfying what I’m supposed to do by typing up the questions and answers — the questions I intend to ask her, or want to ask her, and the answers I expect her to give me on the witness stand?

MR. MUSICH: Your Honor, may I —

THE COURT: No.

MR. MUSICH: — state that the Court wants the witness to look over the statement she made, the statement that she told Mr. Bugliosi, and the Court wants to know if there is anything else in addition to those that the Defendant Susan Atkins told her in regard to these incidents.

THE COURT: And, if there is, then we will either have to have her testify to it or it should be included in the supplemental that you prepare —

MR. MUSICH: Some report.

THE COURT: — in the form of her actual testimony.

It’s the only way that I can consider the Bruton-Aranda problems. If you examine the cases, that’s exactly what the Court has to do. I can’t simply take an edited version and anticipate the problems. I have to know everything that this defendant allegedly told this witness to be able to anticipate the possible problems that may come out not just in your examination on an edited version but their cross-examination on everything that was said.

MR. MUSICH: This is basically the sum and substance of what was said.

MR. KANAREK: Very briefly, your Honor, I think just for the record, if I may, hopefully, to convince the Court, I believe that the prosecution, your Honor, has waived their right to use any of these statements by virtue of the fact that they did not take down all the words that were uttered. They had the power to, if I may, your Honor, if I may, they had the power to tape record and take down all the words that were uttered, or at least stenographically record. As a result, we have an editing by a biased — obviously an advocate. So, therefore, it’s a violation of due process and a fair trial.

THE COURT: Didn’t you hear what I just said, Mr. Kanarek?

MR. KANAREK: It isn’t your Honor’s fault.

THE COURT: We are not talking about fault. I just told them that there must be a complete statement of her testimony relating the conversations in full.

MR. KANAREK: Right, your Honor. And I’m — what I’m saying is that if this is possible, that’s one thing. If it isn’t, then I believe that there is no alternative but that it cannot be used at all.

We also have a 1204.5 problem.

THE COURT: Well, you have had either tapes or transcripts of these conversations for months, haven’t you?

MR. KANAREK: Oh, yes, your Honor, purportedly. But what I’m saying is —

THE COURT: Well, what’s the objection?

MR. KANAREK: The objection is, your Honor, that the only thing that’s put down, the only thing that’s put down is Mr. Bugliosi — Mr. Bugliosi, for instance, has interrogated the lady and he has not made a tape or a word for word statement by a stenographic reporter.

As far as it went, it was perhaps okay. But he has spoken —

THE COURT: You are saying that the prosecution has some duty to anticipate questions that defense counsel may want to ask a witness?

MR. KANAREK: No, your Honor. I suggest that the prosecutor, being a sophisticated person, and especially in the posture that they have in this case, or in any case, they have an obligation not to edit, not — but they have an obligation to take down all the words that are uttered. This is what I’m suggesting.

Your Honor is the one to rule.

I say there is a 1204.5 Penal Code problem also.

THE COURT: This court is now adjourned until 9:00 o’clock Monday morning.

MR. SHINN: 9:00.