1 IN THE CIRCUIT COURT OF THE STATE OF OREGON 2 FOR THE COUNTY OF WASHINGTON 3 4 STATE OF OREGON, ) ) 5 Plaintiff, ) ) 6 vs. ) No. C940322CR ) 7 RANDAL LEE SCHWARTZ, ) ) 8 Defendant. ) 9 10 11 TRANSCRIPT OF PROCEEDINGS 12 13 BE IT REMEMBERED THAT on the 27th 14 day of September, 1994, the above-entitled matter 15 came on for Hearing before the HONORABLE ALAN C. 16 BONEBRAKE, a Circuit Court Judge. 17 18 APPEARANCES 19 MR. THOMAS J. TINTERA Deputy District Attorney 20 Representing the Plaintiff 21 MR. MARC SUSSMAN Attorney at Law 22 Representing the Defendant 23 24 25 2 1 MORNING SESSION 2 BEGINNING AT 9:45 A.M. 3 SEPTEMBER 27, 1994 4 5 MR. TINTERA: Time set for hearing 6 in State of Oregon v. Randal Schwartz, on case 7 number C940322. Mr. Schwartz is present, appearing 8 with counsel, Marc Sussman. 9 This hearing comes on by way of 10 defendant's motion in regard to seeking judicial 11 sanction for subpoenas. 12 THE COURT: All right. I have 13 briefly, in chambers, read the motion for issuance 14 of subpoenas that's been filed by Mr. Sussman. I 15 think it's self-explanatory. Is there anything 16 additional on that regard, Mr. Sussman, you wish to 17 say or do you wish to -- should we let Mr. Tintera 18 make whatever comments he wishes? 19 MR. SUSSMAN: The only thing that I 20 would want to add, first a minor thing, there is a 21 typographical error that the court caught, I'm 22 sure. 23 THE COURT: I'm sure I didn't. 24 MR. SUSSMAN: In citing the 25 authority to you in the memorandum at Page 5, I 3 1 indicated that the reference should have been ORS 2 136 -- and the typographical said 135 -- .580, 3 which is the statute on subpoenaing when books, 4 papers and documents are required. 5 THE COURT: That's at Page 5? 6 MR. SUSSMAN: That's right. Should 7 be 136.580. 8 THE COURT: Let me make a comment 9 after reading it briefly so that we're all on the 10 same wavelength here and what I think the issue is 11 at this hearing. 12 The issue at this hearing, I 13 believe -- you gentlemen jump in and correct me if 14 you think I'm wrong, but the issue at this hearing, 15 I believe, is not -- I'll start by saying what it 16 isn't. It's not what is appropriately discoverable 17 by the defendant for the purpose of his trial. 18 When we talk about -- for instance, 19 I notice in your motion, evidence favorable to the 20 defendant, constitutionally required, statutorily 21 required, that sort of thing. I don't believe 22 that's what the issue is. I believe the issue at 23 this hearing, what I would like to narrow it to is, 24 having read your motion to controvert and the 25 affidavit in support of it, what points do you make 4 1 in your motion to controvert based upon specific 2 allegations of fact, that you need evidence in a 3 hearing to prove? And what evidence is material 4 and relevant to those allegations made in your 5 motion to controvert? It's narrower than evidence 6 that might be discoverable for purposes of trial, I 7 believe. 8 MR. SUSSMAN: Your Honor, perhaps I 9 misunderstood then what we were trying to 10 accomplish when we set this proceeding and I agreed 11 to file the motion. I wanted to accomplish two 12 purposes. I agreed that one of the issues in terms 13 of the subject of the subpoena simply for the 14 omnibus hearing would have been what would have 15 been material to those particular issues. However, 16 we also have a trial coming up and the position 17 that the State was taking on behalf of the State 18 and on behalf of Intel, this required us to file a 19 motion with the court to go through the procedure 20 to have under Subsection 2 in order to request the 21 additional materials that may not have been 22 specifically material and relevant to the motions 23 hearing, but also that would have been material and 24 relevant to the trial defense. And I had 25 understood when we adjourned last week that we 5 1 would deal with that issue so that the court could 2 address the issue of the subpoena to produce the 3 evidence on both matters which would also produce 4 the material that we needed for the motions hearing 5 so that this all could be done in a sufficiently 6 timely manner and Intel could respond to the 7 subpoenas, both for the motions hearing and for the 8 trial at the same time. 9 So it's a long way of saying that I 10 -- if we were only talking about the subpoena for 11 the motions hearing, the conclusion of the omnibus 12 hearing at this point, I would agree that's what we 13 were talking about. I thought we were going to 14 deal with the entire matter of those things which 15 we had argued about trying to segregate for the 16 hearing and those which we thought would have been 17 more relevant for trial, and since we had adjourned 18 and couldn't deal with it last week, I'd present 19 the motion to have the subpoena so that we could 20 produce the whole thing at once and then save 21 additional hearing time. 22 THE COURT: Mr. Tintera. 23 MR. TINTERA: Your Honor, like the 24 record to reflect that I agree with Mr. Sussman's 25 analysis. 6 1 THE COURT: I'm reading the statute 2 now again and I think that probably -- I'm glad we 3 covered this because originally, I was thinking we 4 were only dealing with things that were relevant to 5 the motion to controvert, the allegations that were 6 contained there. But in reading the statute and 7 hearing the argument, I will correct my thinking in 8 that this isn't an appropriate time for the court 9 to consider the matter and enter an order that 10 might be appropriate for evidence that's relevant 11 not to just the motion to controvert, but issues 12 that may arise at the time of trial as well. Thank 13 you. I stand corrected. 14 MR. SUSSMAN: Thank you, Your Honor. 15 Now with that, the only thing I did want to add, 16 I've also reviewed the statute and the procedure 17 here. It seems to me that what we are actually 18 trying to accomplish by the purpose of -- by filing 19 this motion is asking the court to establish a 20 separate either hearing or time for which we can 21 return in response to the subpoena so that we can 22 examine the material that's produced pursuant to 23 that subpoena. That's the -- that seems to be the 24 clear line that -- 25 THE COURT: I agree because there 7 1 would be no sense in having it delivered to the 2 court pretrial unless it was for the purpose of 3 having the parties examine it. 4 MR. SUSSMAN: Right. As long as we 5 make a reasonable showing, as I believe we have in 6 our motion, that the evidence is discoverable or is 7 material relevant to the defense and this is, 8 again, where the reference to the rights of 9 compulsory process and confrontation do arise, that 10 these things would be, would implicate those rights 11 in order to produce material that we believe is 12 essentially for preparing our defense. That the 13 only issue then is, is there sufficient showing to 14 authorize the hearing? 15 Let me back up. I think we should 16 be able to issue the subpoena -- 17 THE COURT: I made notes of what we 18 talked about last time and I reviewed them before 19 coming out, and we talked about having this hearing 20 where the court would hear arguments whether the 21 subpoena was in the form that you wanted it issued. 22 Then we would have a subsequent hearing where the 23 court would hear any motion that might be filed and 24 quashed, particularly by Intel, and there was 25 attorney/client privilege or so-called work product 8 1 of non-party issues and those sorts of things. And 2 then after we've gone through that process, the day 3 would be chosen for the materials to be brought in 4 and counsel could review them. Then at some date, 5 we will then proceed on with the omnibus hearing, 6 the motion to controvert, that sort of thing. So 7 we're looking at several steps here. Probably at 8 least three more before the trial date. We're all 9 on the same wavelength there then. 10 MR. SUSSMAN: That's fine. 11 THE COURT: Mr. Tintera, do you take 12 issue with anything that they've requested in their 13 motion to issue the subpoena? 14 MR. TINTERA: I think we need to 15 look at the framework of this particular statute 16 and what it was intended to accomplish. The court 17 is aware that the discovery statute, 135.805, 18 applies to the defendant and the State or items 19 that are in the possession of the district attorney 20 or in control of the district attorney. 21 Defense counsel has likened this 22 statute to a discovery statute for private parties 23 or private individuals or corporations, whatever, 24 and I believe that is extremely broad and not 25 supported by the legislative intent of ORS 136.580. 9 1 That statute was enacted to allow, as it says in 2 its own language, books, papers, documents that are 3 to be offered in evidence. It is not an avenue for 4 wholesale broad discovery of private individuals, 5 either, of everything that a private individual or 6 private corporation or public corporation, for that 7 matter, may have. That was not the intent of the 8 statute to make this a discovery statute for 9 private individuals and I think that's a very broad 10 interpretation. 11 As the court would agree, this is an 12 avenue for discovery. This is an avenue that was 13 put in so that -- I think it was primarily 14 addressed at medical records, things that it was 15 only addressed to subpoena them to court to be 16 opened at the time of the trial and I think all 17 parties recognized that was counter productive to 18 smooth judicial administration and that this 19 statute was enacted to cure that problem. This 20 statute was not enacted as a discovery tool for the 21 defense or for the prosecution, for that matter. 22 I suppose if the court would rule 23 that this is a way that we can subpoena private 24 individuals into court to get whatever they may 25 have, that may or may not be relevant to an issue 10 1 at trial, then that sword would be carried by both 2 parties, but I think that's an extremely -- I don't 3 think it's an interpretation of the statute -- 4 well, I suppose it's a broad legislative enactment 5 of the statute. I don't think that's what this 6 statute has in mind. I think it's very limited. 7 THE COURT: Is there some 8 legislative history on this? 9 MR. TINTERA: Your Honor, I checked 10 and it's the type of thing where you can get 11 summaries of testimony, but it's not the type of 12 thing where you can get the transcript without 13 ordering it from Salem and I have not done that. 14 THE COURT: The only thing that 15 seems maybe inconsistent with what you've said is, 16 I'm looking at my handbook version of the code here 17 now where it's down in Subsection 2 about next to 18 the last line where it talks about permitting the 19 books, papers or documents to be inspected and 20 copied by the State or defendant. 21 MR. TINTERA: Right. 22 THE COURT: Well, in inspection, 23 there is an inference that I guess, in my mind, if 24 you already knew what the documents were and you 25 just wanted to subpoena them so that they would be 11 1 here, you knew prior to trial, ready for you to 2 have exhibit stickers on them and put them into 3 evidence, if that's only what this statute permits, 4 then there wouldn't be any need to inspect them, I 5 guess unless -- well, arguably, to make sure they 6 are authentic and the parties complied with the 7 subpoena and that sort of thing. 8 MR. TINTERA: You really do, Judge, 9 because there may be some -- well, I see what 10 you're saying. I still think this statute was 11 addressed to a very small -- this was not the 12 defense counsel's or state counsel's discovery 13 statute for private individuals. I don't think 14 that was the legislative intent and I think the 15 statutory language supports that. It's strict to 16 items, books, papers, documents that are to be 17 offered in evidence. That's what it says, so 18 that's what we're talking about, things that 19 Mr. Sussman is going to be offering into evidence, 20 according to the statute. That's the limit of the 21 statutory authority or the framework with which we 22 should view these subpoenas. 23 With that in mind, I've gone through 24 and I did this in regard to -- bear in mind, this 25 is a new statute for me, too, and it's sometimes 12 1 difficult to narrow your analysis as strictly as 2 perhaps the statutory language is, but I attempted 3 to do that and I figured with the three of us going 4 through each of Mr. Sussman's, if the court is 5 ready or if you would like to hear argument from 6 Mr. Sussman on what the statute actually means, 7 then we can get to the meets and boundaries of the 8 subpoena request. 9 THE COURT: Sure. Let's do that. 10 Mr. Sussman, you've heard Mr. Tintera describe a 11 narrow interpretation of the statute. Not 12 necessarily indicating that I agree with it, but 13 seems consistent with the language. Do you think 14 the statute and the legislature contemplated 15 something other than that at the time the statute 16 was adopted? 17 MR. SUSSMAN: The problem I have 18 with the State's argument is this: Discovery under 19 the reciprocal discovery statute addresses 20 specifically material which is in control of the 21 defense and the State. It requires broad 22 disclosure of materials to the defense which are in 23 the control of the State. 24 Now, that's certainly appropriate 25 and fair, but it has interesting implications in 13 1 terms of the way this case is involved in discovery 2 and with the history that we have of this and where 3 you have generally material which is in the control 4 of private parties which has not been disclosed to 5 the State. If we accept -- 6 THE COURT: Even if disclosed, the 7 State doesn't have copies of it. 8 MR. SUSSMAN: Or doesn't have 9 control of it. 10 THE COURT: We frequently, and 11 Mr. Tintera has run into this with medical records, 12 hospital records, that sort of thing, of assault 13 victims, murder victims, that the defense believes 14 are relevant, want the documents, the State doesn't 15 have them and the dilemma is how do you get them so 16 that you can see them? And you believe there may 17 be some basis for belief that there is something in 18 them that is relevant that you want to offer in 19 trial, more frequently just to see, to search for 20 relevance. 21 MR. SUSSMAN: It clearly is a 22 problem where the materials is in the possession of 23 the third party and it's not, doesn't fall within 24 the purview of the criminal discovery statute 25 because it's not within the control of the State. 14 1 So if we accept traditionally, then, the defense 2 means of obtaining the material, investigating and 3 obtaining the material that it needs to prepare 4 it's defense, it would either be simply to ask the 5 third party, 'would you mind giving this to us'? 6 And if they say no, we're being left with the 7 alternative of saying, 'well, we'll do without it', 8 or finding some means to compel the production of 9 that information. 10 Now, unlike the civil discovery 11 statutes, which in some respects are broader 12 because in a case like this, we could file a motion 13 to compel production on the party, we could do a 14 records deposition or some other, something within 15 the discovery statutes which would not only allow 16 us to request a broad range of documents that would 17 be relevant to the case, but anything which could 18 lead to the production -- 19 THE COURT: I was thinking of that, 20 too. 21 MR. SUSSMAN: -- of discoverable 22 material. In effect what you have, then, is a 23 peculiar situation where we have civil discovery 24 vehicles which are broader than the discovery 25 available to the criminal defendant, particularly 15 1 if we read the statutes as narrowly as the State 2 would have it, because then we would be precluded 3 from using a subpoena power which is 4 constitutionally guaranteed to produce evidence 5 which the defense believes and can show -- would be 6 materials that are relevant to the defense and 7 necessary to the preparation of the defense. 8 THE COURT: You can always subpoena 9 it for trial. This statute only deals with 10 pretrial examination of the documents? 11 MR. SUSSMAN: That's correct. But 12 the statute doesn't say just for trial. 13 THE COURT: Well, there is nothing 14 that would prevent you from serving a subpoena 15 duces tecum on all of these people, that I know of, 16 asking them to bring material to trial. Only 17 question is whether or not you can examine that 18 stuff pretrial because there is nothing of the 19 court pretrial forcing disclosure of pretrial, in 20 criminal cases, for documents, papers, et cetera 21 that are solely in the possession of non-party 22 witnesses. 23 MR. SUSSMAN: And going back to 24 where we started with this argument, it is our 25 position that the subpoena statutes and the 16 1 compulsory product simply allow the defendant to 2 use the subpoena duces tecum to require to produce 3 documents. 4 THE COURT: There is no mechanism, 5 but, arguably, this statute, up until about the 6 time of this statute, so now we have to decide 7 what's the scope of the statute. 8 MR. SUSSMAN: Yeah. And it had 9 been -- the position that we started arguing last 10 week was that we could -- If there was a hearing 11 which witnesses legitimately needed to appear, that 12 we could use the subpoena to produce -- to ask them 13 to bring the documents. 14 The State's argument is this 15 statute, which sets up a permissive vehicle for 16 pretrial examination of documents, is the only 17 vehicle then for the examination of these documents 18 prior to trial or hearing and where I see we are is 19 at the point where we can agree that this, that the 20 hearing, the vehicle set up under 580 Sub 2 is an 21 appropriate forum for dealing with the issues to be 22 raised by the request for examination of these 23 documents, both to deal with the motion to quash 24 and to allow us the inspection of the materials to 25 sort out what is specifically relevant to the 17 1 omnibus hearing and what is specifically relevant 2 to trial and to allow everybody to look at those at 3 a time and place which will avoid the interruption 4 of the hearing itself, the evidentiary hearing 5 itself and the trial itself. 6 And so to that extent, I agree with 7 the State that it would make sense for us to ask 8 the court to set -- file the motion for such a 9 hearing and ask that we then have Intel produce 10 documents under the subpoena to this hearing and we 11 took it a step further and under, I think, the 12 requirement that we see in State v. Heisler that we 13 make some showing that the evidence that we're 14 asking for is either discoverable under 136.580 or 15 is material relevant to the defense, so that that 16 can be -- so that subpoena can issue for production 17 of documents at such a hearing. 18 THE COURT: Well, this is all real 19 interesting, but the question is, is it, the 20 interpretation that Mr. Tintera gives it, that is 21 under this statute, this procedure, this motion, 22 this procedure available to the parties was not 23 available prior to the adoption of this statute in 24 the last session of the legislature. And is 25 discovery, I'll call it discovery -- Mr. Tintera is 18 1 going to argue it really isn't discovery, it's just 2 a mechanism to have the documents be produced 3 pretrial, but for lack of better word, I'll call it 4 discovery -- is the discovery contemplated by the 5 statute, permitted by the statute, limited simply 6 to books, papers, documents that a party believes 7 that they are going to offer into evidence, or is 8 the scope wider than that? 9 We don't know for sure what you're 10 going to offer into evidence until the time of 11 trial and we have to have this hearing before the 12 time of trial so, arguably, it would be a 13 representation by the party that we believe this 14 evidence exists. It's in the hands of the private 15 party. 16 If it exists, and we believe it 17 does, we intend to offer that evidence at the time 18 of trial, so we wanted to subpoena it before the 19 trial so we can inspect it, have it ready to offer. 20 I'm reading through a lot of what 21 you requested the witnesses to bring and seems like 22 if it exists, books, papers, documents, that is the 23 sort of evidence that you wish to offer. 24 MR. SUSSMAN: It is. 25 THE COURT: Either as evidence or 19 1 impeachment if the witness testifies to the 2 contrary, substantive evidence or for impeachment 3 purposes, I can understand that. I think that's 4 ultimately where we yet get to that point. 5 The question I'd like to hear from 6 you on, I think I have, the question is, at this 7 point, does this statute permit what I'm going to 8 call discovery, as we've known it to be in the 9 past, of books, papers and documents of a non-party 10 witness even without a showing that you intend to 11 offer it into evidence? 12 Mr. Tintera says this language here 13 in Subsection 2 is important to the interpretation 14 of the entire section, that is where it says, "Upon 15 the motion of the State or the defendant, the court 16 may direct that books, papers or documents 17 described in the subpoena be introduced before the 18 court prior to the trial or prior to the time when 19 the books, papers or documents are to be offered in 20 evidence." Actually, there is an or in there, 21 Mr. Tintera. 22 MR. SUSSMAN: Yes. 23 THE COURT: When you read these 24 outloud, you hear things you don't hear when you 25 read them to yourself. Says prior to the time of 20 1 trial or, which seems to contemplate like an 2 omnibus hearing or something like that. 3 MR. SUSSMAN: Right. The position 4 we're in with the State, the State can subpoena 5 these things to grand jury, documents and papers, 6 that it needs either for evidentiary purposes or in 7 the course of its investigation. 8 It may be overly broad to talk about 9 this in discovery, but we believe these materials 10 that we would likely want to offer at trial in this 11 statute, the subpoena allows us to subpoena those 12 documents. This hearing is a convenient way of 13 allowing it to be inspected before trial so that 14 everything can be weeded out and it can be properly 15 used in advance of trial for adequate preparation 16 as well. 17 THE COURT: Mr. Tintera, anything 18 else? 19 MR. TINTERA: I disagree. This is 20 not a broad scale discovery statute and I'd like to 21 emphasize that point. The State, in its continued 22 position of free discovery and disclosure, has 23 already provided to defense counsel a list of 24 witnesses and many of the witnesses that he's asked 25 for, he wants copies of any and all reports, 21 1 memorandum and notes, communication, documents, 2 whatever kind or nature, hard copy, electronically 3 stored, generated by you or directed to be 4 generated by you, and essentially addresses the 5 people that are on the State's witness list. 6 Now, would the court permit -- 7 should they generate a witness list for me -- me to 8 file a motion to subpoena all the defense witnesses 9 to bring everything that you have about this trial 10 into court so I can take a peak at it before trial? 11 If you agree with Mr. Sussman's 12 interpretation of this statute, I would be entitled 13 to do that. I don't think that's what the 14 legislature had in mind. When they say or, it's 15 documents that are going to be offered into trial 16 or at other hearings. That makes sense. That the 17 legislature -- if, for instance, documents are 18 necessary at an omnibus hearing, that's what the or 19 is for. They didn't want to give a laundry list of 20 all the various types of possible hearings there 21 could be, so they put trial or some other hearing. 22 THE COURT: I think I'm ready to 23 rule on that. I don't think what the legislature 24 intended when they adopted this statute -- I don't 25 have a lot for guidance, but if they had intended 22 1 to make it the same as the civil discovery statute, 2 in other words, to make it just a statute that 3 permitted wholesale discovery of books, papers and 4 documents in the possession of non-parties in a 5 criminal case, they could have said it a lot 6 clearer than they did here. 7 We know the scope of the civil 8 discovery is much greater. It's been pointed out, 9 not things that are just relevant but things that 10 could lead to the discovery of relevant evidence. 11 I don't think that's what the legislature intended 12 here. If they had intended that, they should have 13 put it in clear language. Looks to me like they 14 are intending something more limited than that and 15 that is books, papers and documents that a party 16 genuinely believes exists and are admissible at the 17 time of trial or hearing, like medical records and 18 such. 19 I will say quite a few of the 20 things, which it looks like you've asked for in 21 your subpoena, probably as well, because they are 22 the types of things that you -- if they exist, are 23 documents, papers, that sort of thing that you 24 would want to offer into evidence at the time of 25 trial. So I'm going to limit the scope of the 23 1 statute to that, that is books, papers and 2 documents that you can represent to this court 3 because you haven't seen some of them yet. 4 I know Mr. Tintera has represented 5 that he's shown you a number. I think that's 6 correct. I think we discussed that before, books, 7 papers and documents that you believe exist that 8 contain the information that you're representing 9 you believe exists in the documents and that based 10 upon that, you would intend to offer those books, 11 papers or documents into evidence. I don't see 12 anything here that would limit it just to 13 substantive evidence, but it could be books, papers 14 or documents that you might offer into evidence for 15 impeachment purposes as well. In other words, if a 16 witness testifies, you believe a witness is going 17 to testify contrary to that, then the books, papers 18 and documents that have been prepared by that 19 witness might be offered to impeach that witness, 20 too. That's going to be my ruling on the 21 interpretation of the statute. 22 So the threshold question here is, 23 on each of these items then, are these books, 24 papers and documents that you believe exist contain 25 information that you believe that's in them, that 24 1 you can, at this point, represent to this court 2 that you will, if they exist in that form with that 3 information, that you will offer into evidence? 4 That's much more limited than the civil discovery 5 statute and much more limited, I think, even than 6 the general criminal discovery statute. That's my 7 interpretation. 8 Now, we need to go through this with 9 that test, I guess, and if there are some portions 10 of it the State concedes, you have no problem with 11 it, fine, but if you have a problem with it, I need 12 to make a decision on it. 13 MR. SUSSMAN: At this point, I'm not 14 sure the State is a party to that. The subpoena is 15 directed to a third party. This is evidence that's 16 not in the control of the State and it would seem 17 to me, then, the appropriate way to respond to that 18 would be twofold: One would be the motion to quash 19 issued by the recipient of the subpoena, and the 20 second would be if there is a question about 21 whether or not these documents really are material 22 to the defense and relevant and meet that standard, 23 then the next procedure would be perhaps more 24 appropriately done by way of in-camera inspection 25 by the court, as has been done in other cases where 25 1 there is a question as to whether or not records 2 would -- 3 THE COURT: I might have to hire a 4 computer expert to assist me. The defendant has 5 just volunteered. Any objection? 6 Mr. Sussman is suggesting that the 7 State should not have an opportunity to be heard 8 on, but only those private individuals that the 9 books, papers and documents are being subpoenaed 10 from. 11 MR. TINTERA: I ran into that before 12 when I filed a motion to quash that Judge Alexander 13 heard. He posed the same question. If I see abuse 14 of the subpoena power, it's my obligation to bring 15 it, especially since I'm a party to the action, 16 bring that to the court's attention. I do that as 17 an officer of the court. 18 I don't agree that I'm not a party 19 to the actions. I'm not sure in a criminal case 20 you could have a motion in this case in an ex parte 21 setting without Mr. Sussman having some pointed 22 inquiry by the bar -- 23 THE COURT: I think the logical 24 interpretation is that things that might be the 25 subject of a motion to quash filed by the private 26 1 party are things that logically, when we're talking 2 about the motion to quash, I'm thinking of 3 privilege, I'm thinking of the so-called 4 confidential work product, I haven't ironed out, 5 things like that, things that appropriately would 6 be heard in a hearing where the private party and 7 the defense were primarily involved. But on the 8 initial motion as to whether the subpoena should be 9 issued at all and in the form that it's requested, 10 the State has a right to be heard on that. 11 Having decided that, Mr. Tintera, 12 are there portions of this that you wish to be 13 heard on? 14 MR. TINTERA: Well, Judge, I think, 15 Based on your limited ruling, I think the proper 16 procedure would be for Mr. Sussman to indicate to 17 the court whether these are things that he 18 intends -- believes exist and intends to offer at 19 the trial or the hearing. 20 THE COURT: Are you prepared to do 21 that, Mr. Sussman, or is that taking you by 22 surprise and you need time to go through this to 23 look at it? 24 MR. SUSSMAN: I believe by and large 25 that's been outlined in my memorandum. At the risk 27 1 of being redundant, let me reiterate a couple 2 points. The requests that are directed to all of 3 the subpoenaed witnesses for any of the -- 4 THE COURT: Is Stonehedge Consulting 5 Service an organization that Mr. Schwartz was 6 involved with? 7 MR. SUSSMAN: That's Mr. Schwartz' 8 business name. 9 THE COURT: So when you say either 10 of them, that's the same thing? 11 MR. SUSSMAN: Yes. 12 THE COURT: I'm looking, for 13 instance, at your No. 1 item under Richard Pierce. 14 Give me a chance to read that. 15 MR. SUSSMAN: Perhaps I could -- 16 THE COURT: Basically, there, you 17 are talking about any employment type contracts 18 between your client or his company and Intel. Is 19 that something, if produced, you're going to offer 20 that into evidence? 21 MR. SUSSMAN: I would expect so 22 because it would be relevant to the issue of the 23 scope of Mr. Schwartz' access to information, his 24 activity in the past, activities at the time this 25 was occurring and what sort he had been given in 28 1 the past and -- 2 THE COURT: I assume, correct me if 3 I'm wrong, as part of the defense in this case, you 4 intend to show that he had authority to do 5 everything that the State is going to allege that 6 he did. 7 MR. SUSSMAN: Well, the State has to 8 prove that he did, that he acted without 9 authorization, at least as far as the first count 10 of the indictment. So the issue of what Mr. -- the 11 evidence of what Mr. Schwartz had been authorized 12 to do, what he had access to, both at that time and 13 in the past, we believe to be relevant to and we 14 would offer to show to that issue of both what he 15 was authorized to do and what Mr. Schwartz believed 16 he was authorized to do. 17 THE COURT: Mr. Tintera, I'm just 18 dealing with No. 1 to see how I'm going to do this. 19 MR. TINTERA: That's fine. I agree 20 with counsel that that may be proper. Just seem to 21 me that memorandum, notes or documents of whatever 22 kind or nature reflecting are relevant to any 23 agreement between Randal Schwartz, relevant to any 24 agreement. What I think it should be limited to is 25 actual signed agreements, contractual type 29 1 agreements between Intel and the defendant. What 2 this seems to imply is if anybody wrote a memo 3 about some contract that they had, but Mr. Schwartz 4 was not a party to it. This subpoena request seems 5 to encompass that. 6 THE COURT: Let me read it again 7 here. (Pause) Thank you. Go ahead. 8 MR. TINTERA: It's irrelevant to 9 what is -- that seems to be a very broad request by 10 the defendant. I think the legitimate request 11 would be actual contractual agreements between the 12 parties, not anything that may be relevant to any 13 contractual agreements to the parties. 14 THE COURT: Well, just using this as 15 a hypothetical, what if it was a memorandum by 16 someone in authority, let's say Mr. Pierce, about a 17 discussion that he had had with Randal Schwartz 18 over some provision of the contract that maybe was 19 less than clear, there was some discussion about 20 interpretation, wouldn't that -- if he's going to 21 testify as a witness, would not that be something 22 that could be admissible? Let's say it's favorable 23 to the defendant's interpretation of the contract. 24 That's one of the problems we get involved in is, I 25 don't know for sure what the documents are going to 30 1 show and it would seem to me that something less 2 than formal documents signed by the parties could 3 be relevant, could be admissible as evidence if Mr. 4 Pierce testifies. I'm assuming he's going to. 5 All right. Well, I was just dealing 6 with No. 1 just as kind of a test to see how we -- 7 a test of how my ruling is here and how we're going 8 to proceed. 9 MR. TINTERA: Gets easier after No. 10 1, Judge. 11 THE COURT: Does it? 12 MR. TINTERA: Yes. Yeah. 13 MR. SUSSMAN: I thought it was 14 easiest because it was dealing with matters of 15 contracts and employment. 16 THE COURT: Well, in that I have to 17 do it, I'm going to rule that a subpoena for the 18 documents requested in No. 1 is appropriate. At 19 least we're talking about -- I'll call it first cut 20 here, and that still leaves Mr. Pierce the option 21 of moving to quash on any basis that he thinks is 22 appropriate. 23 What about No. 2? 24 MR. TINTERA: That seems all right 25 to me. 31 1 THE COURT: Two is allowed. Three? 2 MR. TINTERA: Okay. 3 THE COURT: Allowed. Four? 4 MR. TINTERA: I don't have any 5 objection. 6 THE COURT: Five? 7 MR. TINTERA: No objection. 8 THE COURT: Six? 9 MR. TINTERA: No objection. 10 THE COURT: Seven? 11 MR. TINTERA: I wasn't sure about 12 this one. 13 THE COURT: Let me read it. 14 Okay, I've read it. What's your 15 concern? 16 MR. TINTERA: I'm not sure I quite 17 understand what they want here, but I have a 18 question mark in the margin and says probably okay. 19 THE COURT: Mr. Sussman, I'll pull 20 rank on you here. It would seem to me if one of 21 the theories of the State is that he somehow 22 exceeded what he was permitted to do in obtaining 23 access to information from Intel, proprietary 24 confidential information, that documents, 25 printouts, data, et cetera, regarding, if extra 32 1 privileges means something in addition to what he 2 was given under the contract, that could be 3 relevant to that issue. 4 MR. TINTERA: I don't have any 5 objection to that. 6 MR. SUSSMAN: Not only that, but 7 just to clarify, that request was generated by 8 material that was disclosed to us in discovery on 9 Intel policy manuals involving security of its 10 computer systems and there are certain additional 11 requirements for systems administrators in terms of 12 the kinds of activities they can perform. 13 Mr. Schwartz had been employed as a systems 14 administrator and so this becomes specifically 15 relevant to -- 16 THE COURT: All right. Mr. Tintera 17 has indicated now that he has no problem with it, 18 so seven is allowed. Eight, Mr. Tintera? 19 MR. TINTERA: No. 20 THE COURT: Nine? 21 MR. TINTERA: No objection. 22 THE COURT: Ten? 23 MR. TINTERA: This is just a 24 discovery request. 25 THE COURT: Any document revealing 33 1 the identity of the site information security 2 manager at Hawthorne Farms site on October 11. 3 That's looks like a discovery request. That's what 4 Mr. Tintera said. Can you represent that will be 5 produced and you will offer it into evidence? 6 MR. SUSSMAN: No, Your Honor, I 7 can't. In fact, what I had indicated in the 8 memorandum I would represent to the court is that 9 the policy manual given to us indicates that there 10 are cite information security managers who would be 11 a source of the evidence as to what was permitted. 12 THE COURT: That's like the civil 13 discovery statute. You think if you got that, it 14 could lead to relevant -- 15 MR. SUSSMAN: Precisely. That's 16 what we said in the memorandum, that it would 17 produce evidence. 18 THE COURT: So I will deny that one 19 then. 20 MR. TINTERA: Judge, in regard to 21 11, as long as counsel is intending to offer these 22 things, I don't object to them. 23 THE COURT: Twelve? 24 MR. TINTERA: This is just discovery 25 again. 34 1 THE COURT: Allow me to read it 2 again here. 3 MR. SUSSMAN: We believe that at 4 least on one of those occasions, we can't tell 5 which, we're not sure which, Mr. Schwartz had, in 6 fact, run with authorization a crack program and 7 we'd want to produce the records that would show 8 that. 9 THE COURT: Let me read it again. 10 May I read into this, then, add the language where 11 it says "to have authorized the running of the 12 crack program by Mr. Schwartz"? Doesn't say that 13 here. Just said authorized. That's what you're 14 asking for, isn't it? That's what you said. You 15 said you believe that one of these documents -- 16 documents involving one of these days would show 17 that he was authorized to run -- 18 MR. SUSSMAN: We believe -- We know 19 that he ran a crack program once before with 20 authorization and we'd want to produce documents 21 that would tend to support that. 22 THE COURT: That showed that he was 23 permitted to run it? 24 MR. SUSSMAN: And that he actually 25 ran the program. 35 1 THE COURT: Twelve doesn't say that 2 he ran it. It would include anyone that had been 3 authorized to run it on those occasions. 4 MR. SUSSMAN: That's correct. It is 5 broader than that. 6 THE COURT: I'll permit, based on 7 what you have said, because there is an uncertainty 8 as to the specific date, the subpoena for, but it 9 will be limited to -- I'm looking now down at 10 Paragraph 12, "copies of any documents, printouts 11 or data or a list reflecting the identity of the 12 systems manager who authorized the running of the 13 crack program by Randal Lee Schwartz on the 14 following occasions." 15 No. 13. 16 MR. TINTERA: Judge, my reaction to 17 this was, this was just a discovery request. 18 THE COURT: Mr. Sussman, can you 19 represent if those are disclosed that you intend to 20 offer them as evidence? 21 MR. SUSSMAN: Yes. In fact, in Page 22 9 of the memorandum says this related directly to 23 the matters contained in the reports of Mark 24 Morrissey, who is the primary witness investigating 25 Mr. Schwartz' activities and those printouts would 36 1 reveal what was actually occurring during the 2 running of that particular machine, which is the 3 machine on which the crack program was done and, as 4 I indicated, I believe that those documents could 5 tend to show whether or not there was anything in 6 those runs which would indicate whether passwords 7 had been compromised and how those files would have 8 been used. I think that's something that is very 9 specifically relevant to the issues in the pretrial 10 hearing on the motion to controvert and it would be 11 relevant in trial. 12 THE COURT: Anything else on that, 13 Mr. Tintera? 14 MR. TINTERA: Well, in regard to the 15 motion to controvert, he's referring to Mark 16 Morrissey. As the court may be aware, you could 17 not use a motion to controvert to attack the 18 veracity of the people that are giving the 19 information to the affiant and I would rely on 20 State v. Darroch, 117 Or Ap 185, 1992, and State v. 21 Hitt 305 Oregon 458, 1988. I don't have anything 22 to add beyond that. 23 THE COURT: Obviously, only if it's 24 disclosed to the affiant in the affidavit. 25 You make good argument, Mr. Tintera, 37 1 but at this point, I'm going to err on the side of 2 widening the loophole a little too wide and yet 3 there is the opportunity to file a motion to quash. 4 I'll allow that based on the representations made 5 by Mr. Sussman. So 13 is permitted. 6 Fourteen. 7 MR. TINTERA: This one, again, is 8 wholly directed at pretrial discovery. 9 THE COURT: Does look like you did 10 your job and after you got through with 13, you 11 looked at it and said is there anything that I've 12 forgotten? 13 MR. SUSSMAN: No. 14 was in the 14 subpoena to Mr. Pierce and was basically the same 15 as the duces tecum request to the other witnesses. 16 And that is, there were a number of witnesses, 17 people who were involved in this investigation by 18 Intel who generated reports and materials regarding 19 Mr. Schwartz' activities and the running of that 20 particular crack program. And we -- we believe 21 that there will be documents, in terms of what can 22 be produced through this, that would be like police 23 officers' notes that would be produced, material 24 that could be relevant either for impeachment 25 purposes at trial or at the hearings. 38 1 THE COURT: Only distinction I'm 2 going to make here is police officer notes are 3 within the control of the State so there is a 4 different consent. 5 MR. SUSSMAN: That's true. If the 6 private party who has prepared the investigation, 7 which is turned over to the State, withholds that, 8 does not disclose that to the State, so it's not in 9 the State's power to produce it, then if we accept 10 that limited ruling, then we cannot ask them to 11 produce any of the materials, notes and the papers 12 regarding that investigation which was turned over 13 short of that which would permit us to examine 14 those things to cross-examine those witnesses in 15 the proceedings. 16 THE COURT: I think that's the 17 interpretation I made. I don't think this is an 18 all encompassing general discovery statute that 19 permits the same sort of discovery from private 20 individuals that is permitted under, to the State. 21 I think Mr. Tintera's argument was intended to even 22 the balance a bit by permitting, by requiring 23 disclosure by private individuals to the State or 24 the defense, books papers or documents that they 25 had in their possession. Again, we're talking 39 1 about non-parties in a criminal proceeding, when 2 the party can represent that you intend to offer 3 them into evidence. But this is not something that 4 just permits you to search through their records in 5 hopes of finding something that you are going to 6 use at trial. You have to be able to represent 7 that you believe that it exists and you want it for 8 evidence in the case and you want to have it 9 brought in ahead of time so you can look at it. 10 MR. SUSSMAN: Your Honor, what we 11 have specifically asked for in those requests would 12 be these materials that are specifically related to 13 the investigation of Mr. Schwartz and Mr. Schwartz' 14 activities. We believe that there will be material 15 that was not produced that may very well be 16 exculpatory. 17 For instance, one thing we heard Mr. 18 Pierce mention on the witness stand last week was 19 they had an investigator and there was reports by 20 the investigator about Mr. Schwartz' activities. 21 The central allegation here is that 22 Mr. Schwartz was at one point using material, using 23 resources that he didn't have authorization to, but 24 the key thing is that he was cracking password 25 files with the intent of committing theft of this 40 1 important information here and there is a great 2 deal of questioning about industrial espionage and 3 we believe these records and investigation of those 4 activities would show an absence of any of that, 5 indications of that on Mr. Schwartz' part. 6 I strongly believe that we would be 7 entitled to subpoena any of those documents to the 8 trial to examine to determine to use for 9 impeachment purposes. That is clearly within the 10 right of compulsory -- 11 THE COURT: There is no question in 12 my mind that you are entitled to subpoena those 13 documents for trial. The issue today is what can 14 you see before trial? What can you require 15 witnesses, non-party witnesses to disclose prior to 16 trial? 17 You could issue, I think, 18 Mr. Tintera may argue with this, you could issue a 19 subpoena to every one of those people listing 20 everything that you have on this document to appear 21 the first day of trial, to appear here for trial. 22 But the question is, can any of these private 23 individuals be required to disclose this material 24 to you, to the defense, prior to trial, prior to 25 the time they are on the stand here and sworn to 41 1 tell the truth? That's really the issue. 2 Up until this statute was adopted, 3 there was no procedure for permitting primarily the 4 defendant to do any of this. 5 MR. SUSSMAN: Prior to trial. 6 THE COURT: And looks like the 7 statute has eased the burden a bit and permits you 8 to require private individuals to bring in 9 documents pretrial to be inspected when you can 10 show the court that you believe those documents to 11 exist and you intend to offer them at the time of 12 trial. 13 The problem I have with what you 14 have here for Richard Cower, John Kent, Mark 15 Morrissey is that those are just sort of catchall 16 descriptions of the types of things that you are 17 looking for, and what I would permit you to do for 18 those, if you can tell me in some form what you 19 believe they actually have. In other words, an 20 averment that based upon information that you 21 believe that he has some particular document or 22 whatever that shows this, then we might get to that 23 point, but these are just general discovery 24 requests and I don't think the statute permits you 25 to go that far. 42 1 MR. SUSSMAN: The discovery reveals 2 that there were meetings that occurred among these 3 individuals prior to the time the police were 4 called and Mr. Schwartz' activities were reported 5 as -- complaint was made that he was involved in 6 allegedly unlawful activities. The basis for that 7 complaint, we believe, would be disclosed in those 8 documents and the basis for that would be in terms 9 of what was found in terms of the computer runs 10 that were being examined. 11 Now, in addition, we believe that 12 there would be materials relating to Mr. Schwartz' 13 activities at Intel which would show what he was 14 authorized and not authorized to do and what was 15 discovered in terms of Mr. Schwartz' activities by 16 this internal investigation. We believe that this 17 could produce information which would either be 18 exculpatory or would show what was conveyed to the 19 police or not conveyed to the police. 20 THE COURT: I don't have as much 21 difficulty with what you are saying as I do with 22 what you have written down in your motion. Your 23 motion is all-encompassing and would require them 24 to bring everything, some of which you may offer, 25 some of which may be relevant to the case and some 43 1 of which you may intend to offer. I'd suggest -- 2 and I'm not permitting it in this form. 3 I'd suggest that, instead, you go 4 back and try to identify, for instance, reports of 5 certain conversations, memoranda of certain 6 meetings, notes made in telephone conversations 7 with a particular individual on a particular day. 8 I know that's difficult because you don't know 9 everything they may have, but I still think that's 10 your burden, to show particular memoranda, 11 particular report, particular note, particular E 12 mail communication or document that you believe 13 exists. You can represent that you believe that it 14 exists and you would offer that document into 15 evidence. We can't do it with absolute certainty, 16 but you have to make a representation that you 17 believe that, I think. 18 What you're asking them for here is 19 for them to bring in their desk with everything in 20 it so you can search through it and find something 21 that you believe is helpful and I don't think the 22 statute permits that. I think Mr. Tintera has 23 argued that. Am I correct? 24 MR. TINTERA: Yes. 25 THE COURT: The distinction here is 44 1 you believe, and I agreed after reading the statute 2 during argument, this is not an all-encompassing 3 general discovery statute such as exists in civil 4 law. This sort of thing could be permitted in a 5 civil case. I don't think that's what they 6 intended. If they intended that, they would have 7 written that. This is much less in scope. It's 8 more than criminal defendants had before but less 9 than what civil allows. 10 MR. SUSSMAN: Where I take issue 11 with that is precisely where the civil law allows 12 more and the defendant is entitled to compulsory 13 process and to put on his defense. It would be a 14 violation of his rights under the compulsory 15 process and right of due process to prepare defense 16 to deny that to the defendant through the available 17 vehicles that are in the statute. 18 THE COURT: If I was doing that at 19 trial, yes. We're not talking about trial. We're 20 talking pretrial. 21 MR. SUSSMAN: My position is simply 22 that because the statute says you may allow it 23 before trial, it's permissive and does permit you 24 to do precisely what we ask in a broader sense as 25 well as the narrower sense at such a hearing. I'm 45 1 not asking you -- I just want to make sure -- 2 THE COURT: I understand. You're 3 making good argument. It's helpful. But there is 4 a big distinction in my mind between what you are 5 permitted to do in trial and what you are permitted 6 to do pretrial. 7 I'm going to deny the subpoena, as 8 you've described, for the documents of each of 9 the -- Paragraph 14 for Mr. Pierce and the 10 paragraph of documents that you are requesting for 11 Cower, Kent, Morrissey, because I think those are, 12 again, not contemplated by the statute. General 13 discovery request not permitted of non-parties in a 14 criminal matter. 15 I will permit you to amend those or 16 modify them, though, in going through there if 17 there are particular reports or particular 18 memoranda or notes or E mail communications or 19 documents that you can represent that you believe 20 exist that are relevant and you would offer them 21 into evidence in the case, assuming they exist, and 22 you can ask for those particular documents. 23 I think the easiest way would 24 certainly to be to identify the reports, 25 memorandum, notes, E mail communication or 46 1 documents by the date of them or the persons 2 present when the conversations occurred or the 3 subject matter of them or something like that, but 4 they have to be, I believe, identifiable reports, 5 memoranda, notes, communications, documents, 6 et cetera, and what I see here is just, again, a 7 general discovery request and not asking for 8 particular documents. 9 That's my order. I think that takes 10 care of it for today. 11 We need to have a discussion about 12 timing and future hearings and all that sort of 13 thing. Was there anything else on this issue? 14 MR. SUSSMAN: No. We'll just need 15 then to reissue the subpoenas in light of the 16 court's ruling and the modifications. 17 THE COURT: I'd like to expedite 18 this. Did you have drafts of the subpoenas? I 19 have your motion for issuance of subpoenas. Did 20 you submit drafts of those subpoenas, too? 21 MR. SUSSMAN: Well, we had the 22 subpoenas that were served on the witnesses prior 23 to the omnibus hearing. 24 THE COURT: That's right. 25 MR. SUSSMAN: And what we had here 47 1 was for convenience was to put it all in the body 2 of the motion. So those subpoenas have been issued 3 and so I can reissue the subpoenas with the 4 modifications that you've suggested and that can be 5 done -- 6 THE COURT: The only question is, if 7 Mr. Tintera -- he may yet object to some of the 8 language that you may have, especially to these 9 other individuals, other than Pierce, and if he 10 does, he needs to have an opportunity -- 11 MR. TINTERA: I don't object to 12 counsel following the court's order in regard to 13 what has been modified in regard to Mr. Pierce. 14 But in regard to Paragraph 14 or Mr. Cower, Kent or 15 Morrissey, I believe we do need more discussion. 16 THE COURT: I think you need an 17 opportunity to be heard on that. We need to 18 expedite this. I had contemplated handling this 19 case. It's an interesting case and I'd like to 20 have the opportunity to do it and this is one of 21 those cases that would be helpful for the judge 22 ruling on this to also be the trial judge, but I'll 23 be running into problems here if we don't get this 24 all resolved fairly soon. 25 MR. TINTERA: I'm not giving up on 48 1 trying this on November 1st, but I have to tell you 2 that my personal assessment is that we will not be 3 ready at that point. This is not the kind of case 4 that moves fast. I'm not giving up on that, but -- 5 MR. SUSSMAN: Sure. And the other 6 potential problem that will make that even more 7 difficult is, I have -- I will be starting a murder 8 trial in Multnomah County on October 17. It's a 9 case that is going to have to be tried. 10 THE COURT: If everyone sort of 11 acknowledges that there is a fair possibility we 12 won't be starting trial on November 1st, let's 13 continue on and try not to delay it unnecessarily, 14 but do it in an orderly fashion, and if we are not 15 done by November 1st, we'll have to have a new 16 trial date. Have you talked with your client about 17 that? 18 MR. SUSSMAN: I have and, in fact, 19 he has no problem with that. In fact, it would 20 make burdens on him easier if we worked around that 21 schedule. 22 THE COURT: Then with that in mind, 23 then I'm not that concerned about scheduling. The 24 problem I had, though, if we were going to proceed 25 on the first is that basically, I'd only have like 49 1 the next two weeks to get this all resolved. 2 Otherwise, I couldn't do it. 3 Then let's not be that concerned 4 about the trial date right now. Let's leave it on 5 and I can confer with counsel later on. 6 Let's go ahead then and have you 7 redraft what you were requesting here for paragraph 8 14 and for Cower, Kent, Morrissey requesting 9 particular documents, et cetera, as I've suggested, 10 in trying to identify them by date or subject 11 matter or something, and then I'll review that. 12 Once we've had that hearing, then 13 you can issue your subpoenas and we'll give the 14 individuals at Intel an opportunity, if they wish, 15 to file motions to quash if they think it's 16 appropriate. 17 MR. SUSSMAN: Do you want me to 18 redraft Paragraph 12 regarding the crack program 19 runs? 20 THE COURT: I think I ruled on that. 21 MR. SUSSMAN: You did and there was 22 a modification in that paragraph. 23 THE COURT: Well, as long as on the 24 subpoena you change the language. We've handled 25 that. 50 1 MR. TINTERA: Right. 2 THE COURT: What's your pleasure on 3 having the next hearing? 4 MR. SUSSMAN: I would think we could 5 have this redrafted by the end of the week and 6 filed properly by Friday. 7 THE COURT: Then why don't we see if 8 we can find a date next week? 9 MR. TINTERA: That would be fine. 10 THE COURT: How about Thursday the 11 6th? 12 MR. TINTERA: I won't be out of 13 trial on the 6th. The trial starts on the 5th on 14 Joshua Nelson. The 7th or the 4th. 15 THE COURT: This isn't going to take 16 that long next time. 17 MR. TINTERA: I don't think it will 18 take more than a half hour even if I'm late. 19 THE COURT: I don't think it will 20 take to long. 21 3:00 o'clock on Friday, the 7th, 22 will that be okay? 23 MR. SUSSMAN: That would be fine. I 24 know normally we'd want to have Mr. Schwartz here 25 and he has, has been asked to do a program to do 51 1 some work on for some of his contract work in New 2 York City and he could be out of town for that 3 hearing. Can we excuse him for that particular 4 hearing? 5 THE COURT: Any objection to that? 6 MR. TINTERA: No. 7 THE COURT: It's not done yet, 8 Mr. Schwartz. I'm considering not requiring you to 9 be present on that hearing, that would be Friday, 10 the 7th, at 3:00 o'clock. You have an absolute 11 right to be present at every hearing. Do you 12 understand that? 13 THE DEFENDANT: Yes, I do. 14 THE COURT: You can waive that right 15 if you want to and if I permitted, you would not 16 need to be here. Is it your request that you not 17 be here next Friday, the 7th, at 3:00 o'clock? 18 THE DEFENDANT: Yes, it's my 19 request. 20 THE COURT: You would permit your 21 counsel to be here and argue the matter in your 22 behalf? 23 THE DEFENDANT: I do. 24 THE COURT: You've had a chance to 25 talk with him about that, have you? 52 1 THE DEFENDANT: Yes. 2 THE COURT: Do you understand what 3 you might be giving up? There should be the 4 subject matter of some of these memos that might 5 come up and if he'd wish to confer with you on what 6 your belief is on what the documents contain and if 7 you are not here, you can't do that. So I will 8 hear his argument and I'll rule. Do you understand 9 that? 10 THE DEFENDANT: Yes. 11 THE COURT: I'm saying because if I 12 permitted you not to be here on Friday at 3:00 13 o'clock, October 7th, if I accept this one, it will 14 be this one only and you should not infer that you 15 are allowed to miss any other hearing. I would 16 presume that you would understand that you need to 17 be here at other hearings. Do you understand that? 18 THE DEFENDANT: Yes. 19 THE COURT: What's your request? 20 THE DEFENDANT: I'd like to be 21 excused. 22 THE COURT: I'll permit you to be 23 excused for that particular hearing only on Friday, 24 October 7, at 3:00 o'clock. 25 Thank you. We are in recess. 53 1 STATE OF OREGON ) ) ss. 2 County of Washington ) 3 4 5 I, Frank R. Rosales, CSR, the 6 undersigned, do hereby certify that on the date so 7 stated in the before-captioned matter, I was an 8 Official Court Reporter for the Twentieth Judicial 9 District of the State of Oregon and that as such, I 10 did make a record by means of Stenotype of the 11 before-captioned matter and that the foregoing 12 transcript is a true and accurate record of said 13 proceedings. 14 DATED this 14th day of January, 15 1996. 16 17 18 ____________________________ 19 Frank R. Rosales, CSR Official Court Reporter 20 21 22 23 24 25