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STATE OF WISCONSIN
CIRCUIT COURT
IOWA COUNTY
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STATE OF WISCONSIN,
Plaintiff,
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v.
THOMAS G. SMITH,
Defendant.
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12 CM 192
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JUDGE PRESIDING
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APPEARANCES:
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COURT REPORTER:
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THE COURT:
Appearances.
MR. ALLEN:
MR. AQUINO :
Thomas Aquino.
THE COURT :
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context.
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Mr. Smith was adding his own two cents about the situation,
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and also i t is also -- I'm also going to raise the point that
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--
the state.
THE COURT:
Mr . Allen .
MR . ALLEN:
posts.
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like , and stating that his response is that they will stand
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with asking the officer were there other posts, yes, but not
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going into what those other posts were , because I don't think
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MR. AQUINO :
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What
The disorderly
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context.
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erupts from that conver sation , I'm going to let you put it
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lot in.
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MR. AQUINO:
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conversation.
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Is this to be expected
MR . ALLEN:
No.
Okay.
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THE COURT:
It's
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well-founded .
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have been brought i n and testif i ed, that they are not on the
witness list.
distinction.
MR. AQUINO:
will be here.
THE COURT:
MR. AQUINO:
THE COURT:
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Yes .
Do I have to add that to the list of
witnesses?
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MR. ALLEN:
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MR. AQUINO:
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THE COURT :
Sure .
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MR. ALLEN :
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race because it is .
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they look like and his response is they will stand out
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of the
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THE COURT:
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MR . AQUINO:
Okay .
THE COURT:
You may .
MR. AQUINO:
Okay.
Thank you.
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THE COURT:
Case
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No . 12 CM 192.
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The
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MR . ALLEN:
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MR. AQUINO:
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THE COURT :
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civil case.
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complaint .
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guilt .
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doubt.
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MR. ALLEN:
Good morning.
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THE COURT:
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MR. AQUINO:
Mr . Aquino.
Well, good morning.
My name is Tom
Aquino.
area.
THE COURT:
MR. AQUINO:
THE COURT:
The
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The matter
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THE COURT:
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It's to determine
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We have a
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computers.
old-fashioned.
you now how your name got called and how you got in the box.
We're
THE CLERK:
MR. ALLEN:
MR. AQUINO:
THE CLERK:
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Winkers.
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Ryan Rux .
Jay Lindner.
THE COURT:
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BAILIFF:
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THE CLERK:
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Stanfield.
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Justin Davis.
Calvin Williams .
Brandon Starr.
Gary Leonard.
Lonnie Johnson.
Lanny
Catherine Price.
William Schrader.
MR . ALLEN:
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THE CLERK:
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Rosemary Mccrea.
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Nankee .
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Leah Houtakker .
John
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Jacob Peterson .
He is not here .
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Agreed.
Julie Roberts.
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Sheila Buchholtz.
Julie Gullickson.
Doreen Nichols.
Brian Miess .
THE COURT:
Mary
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MR. DAVIS:
Justin Davis.
MR. ALLEN :
MR. SCHRADER:
MR . AQUINO :
Mr. Schrader .
I have one question .
shirt .
MS . HOUTAKKER:
THE COURT:
Leah Houtakker.
We ' ll
Vair
dire shall be reported, and we'll have then four strikes per
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make note of the jurors who have responded with a yes answer
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have not yet been called into the box please pay attent ion so
As I ask my
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.---.
that your answers may be noted when you are called upon to
appear.
Have any of
you had any prior experience with Mr. Allen in any respect?
Would that
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not guilty?
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MS . GULLICKSON:
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THE COURT:
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MS. GULLICKSON :
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THE COURT:
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Is that -- I
to be fair?
MR. PETERSON :
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THE COURT:
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Yes .
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No, sir .
No .
it ' s him?
MR. PETERSON:
No.
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THE COURT :
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your conscience?
MR. PETERSON:
THE COURT:
THE COURT:
sir.
Yes, sir.
Did your contact in any way affect your
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THE COURT:
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follow-up on that.
No
it will not.
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I see no hands.
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MR. LINDNER :
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Yes.
Thank you
--...
defendant?
I see no hands .
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It doesn't seem
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rational
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case.
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of a feeling?
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If they
communication?
I see no hands.
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day.
Are there any -- is there any person among you who has
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No hands.
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to Mr. Peterson .
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defendant?
MR. PETERSON:
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Is there
fair?
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MR. PETERSON:
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THE COURT:
No, it wouldn't.
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people.
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time to time.
Right here
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we do.
MR. SCHRADER:
My hearing is failing.
My wife will
attest to that.
THE COURT:
MR. SCHRADER:
out of vanity I have not done it yet, but I'm going to have
THE COURT:
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MR. SCHRADER:
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THE COURT:
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MR . SCHRADER :
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MR. SCHRADER:
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THE COURT:
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Thank you.
Thank you
Your
We'll
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THE CLERK:
Terry Anderson.
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THE COURT:
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MR. ANDERSON:
No.
THE COURT:
THE COURT:
again.
hands.
No hands.
No
Anybody
No hands.
person?
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to?
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Please be sure that it's turned off, and in the course of the
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outgoing.
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gone into the jury room, and they get on the cell phone or
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and then the next thing you find out is they are asking
mean when you are in the jury panel, when you are in the jury
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THE CLERK:
Thank you.
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Gentlemen, this is our clerk of courts Lia Gust , and she just
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Those witnesses
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feel that you would give any greater weight or lesser weight
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to his testimony?
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MR . PETERSON :
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THE COURT:
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MR. PETERSON :
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THE COURT:
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MR. PETERSON:
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THE COURT:
Anybody
No.
What's that?
Anybody knows
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that name?
question.
MR . PETERSON:
THE COURT:
No.
We have s i x hands.
Now, is
to come out .
We have to
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gets more weight than what someone else might have to say?
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sure .
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immediate household?
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MS . ROBERTS :
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THE COURT:
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MS . ROBERTS :
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THE COURT :
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MS . ROBERTS :
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THE COURT:
Any of you
see no hands .
Do any of you
No hands .
I asked
In one case it is .
That's Juror Roberts.
Yes.
Would that be a husband or - Yes .
Do any of you feel that -- thank you for
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your observation .
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emergency medical teams that brings you i nto contact with law
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fair?
hands.
No hands.
No
think not .
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No hands.
MR. ALLEN:
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THE COURT:
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be asked .
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panel?
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of you votes one way and the other the other way just because
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THE COURT:
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No .
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Yes.
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Yes.
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THE COURT:
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be quite so heavy.
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experience.
jury before?
UNIDENTIFIED JUROR:
No .
UNIDENTIFIED JUROR:
No .
UNIDENTIFIED JUROR:
No .
UNIDENTIFIED JUROR :
No .
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THE COURT :
I did that
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I learned a lot.
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UNIDENTIFIED JUROR:
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UNIDENTIFIED JUROR:
(Indicates affirmatively . )
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UNIDENTIFIED JUROR :
(Indicates affirmatively . )
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UNIDENTIFIED JUROR:
(Indicates affirmatively . )
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THE COURT:
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THE COURT:
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I trust I
I would
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THE COURT:
MS. SCHWARTZ:
THE COURT:
have people on the jury who know somebody else, you know, you
Okay.
No one.
Thank you.
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shorthand way.
Have you or anyone close to you ever been accused of
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Several hands.
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embarrass you .
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citizen .
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be one of the jury panel members, and you will note in the
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course of this after selection that when you enter the room
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I don't want to
Do any
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you is there anyone who has any other reason at all for
very much.
Thank you
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No hands.
questions.
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Nicholas Zimpel.
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time.
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Ms.
Was that
It was twice.
trials?
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MS. SCHWARTZ:
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MR. ALLEN:
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I believe the
MS. SCHWARTZ:
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of the cases?
No .
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MS. SCHWARTZ:
MR. ALLEN:
Yes.
MS. SCHWARTZ:
MR. ALLEN:
the defense?
MS . SCHWARTZ:
MR . ALLEN:
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MS. SCHWARTZ :
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MR . ALLEN:
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The plaintiff .
Not guilty.
was?
MS. SCHWARTZ:
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molested him .
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MR . ALLEN :
that experience?
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MS. SCHWARTZ:
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MR. ALLEN:
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Thank you .
MR . STANFIELD :
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MR . ALLEN:
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on a jury?
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No .
Yes .
or criminal case?
MR. STANFIELD:
It
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was liable.
MR. ALLEN:
MR. STANFIELD:
MR . ALLEN:
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MR. STANFIELD:
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MR . ALLEN :
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jury.
I don't recall.
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MS. NICHOLS:
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MR. ALLEN:
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Right.
criminal action?
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MS. NICHOLS :
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MR. ALLEN:
Money.
Punitive .
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you find for the plaintiff or for the defense in those cases,
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if you recall?
MS . NICHOLS :
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jury?
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MS. NICHOLS:
MR. ALLEN :
that experience?
MS . NICHOLS:
MR . ALLEN :
No.
MR. STANFIELD:
MR. ALLEN :
No.
while back?
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MS. NANKEE :
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MR. ALLEN:
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MS. NANKEE :
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MR . ALLEN:
Yes .
What type of case was that?
That was similar to this one .
And do you recall whether the jury in
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guilty?
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MS. NANKEE :
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MR. ALLEN :
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MS. NANKEE :
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MR. ALLEN:
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MS. NANKEE:
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MR . ALLEN :
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on a jury?
Has anyone
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I'll try not to pry too much unnecessarily, but trying to get
are comfortable?
Mr . Stanfield.
And again,
MR. STANFIELD:
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MR. ALLEN:
enforcement at all?
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MR. STANFIELD:
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MR . ALLEN:
Yes, I did.
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MR. STANFIELD:
Yeah .
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MR. ALLEN:
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MR. STANFIELD:
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MR . ALLEN :
No.
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MR. STANFIELD:
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MR. ALLEN:
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MR . STANFIELD:
MR. ALLEN :
MR . STANFIELD :
MR . ALLEN :
It was in 1996.
A while ago?
A while ago , yeah .
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MS . GULLICKSON :
MR. ALLEN:
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MR. ALLEN :
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MS. GULLICKSON :
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MR . ALLEN :
incident?
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MS . GULLICKSON:
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MR. ALLEN :
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Can
Yes.
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MS. GULLICKSON :
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MR . ALLEN:
Yes .
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any way affect you r ability to hear the facts of this case
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MS. GULLICKSON :
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MR . ALLEN:
No.
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MS . GULLICKSON :
MR . ALLEN:
MS . GULLICKSON:
MR. ALLEN:
MS . GULLICKSON:
MR. ALLEN :
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Yes and no .
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MS. GULLICKSON:
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MR. ALLEN:
No.
Thank you.
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witness?
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an attorney or paralegal?
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nature?
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MS. GULLICKSON:
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MR. ALLEN:
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MS. GULLICKSON:
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Ms . Gullickson?
I don't know
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MS. GULLICKSON:
MR. ALLEN:
MR . ALLEN:
MS. GULLICKSON:
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at all?
MR. ALLEN:
today?
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MS. GULLICKSON:
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MR . ALLEN:
No.
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on charges of burglary.
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the case that we're here for today kind of springs from that
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village of Arena.
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MR. PETERSON:
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Yes .
Mr. Peterson?
it.
MR. ALLEN:
No.
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MR. ALLEN:
Thank you.
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MR. PETERSON:
MR. ALLEN:
MR. PETERSON:
MR. ALLEN:
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MR. ALLEN:
friend?
MR. PETERSON:
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MR. ALLEN:
you know her?
MR. PETERSON:
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MR. ALLEN:
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Acquaintance.
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seen him.
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infrequently?
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How do
She is my cousin.
Ms. Willey?
MR . PETERSON :
I don't know.
months or so .
MR . ALLEN:
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MR. PETERSON :
MR . ALLEN:
Yeah .
officers?
MR. PETERSON:
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cop .
It might.
Mr . Smith and Ms. Willey you think might lead you to come
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into this putting a little bit more weight on one than the
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other?
MR. PETERSON:
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know.
MR . ALLEN :
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MR . PETERSON:
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MR . ALLEN :
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MR . AQUINO :
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THE COURT :
Probably .
No object i on .
Mr . Peter son , you may stand please and
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tumbler .
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THE CLERK :
Kristen Staszak .
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THE COURT :
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from Arena.
THE COURT:
MS. STASZAK:
THE COURT:
MS. STASZAK:
THE COURT:
MS . STASZAK:
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THE COURT:
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MS. STASZAK:
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THE COURT:
Staszak.
If I may depart from the seriousness for
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We had a
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situation just like this when a juror was being excused and
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and he said yes, and I pursued it, and I said what is there
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fairness .
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MR. ALLEN:
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long .
quickly as we can .
Who here knows how to text message?
A fair number of
you .
If you don ' t text yourself how many of you have maybe seen
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computer phone.
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Lot of hands.
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Facebook account?
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but just to try to get some idea, Ms. Houtakker , how often do
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Is
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MS. HOUTAKKER :
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MR. ALLEN:
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for primarily?
UNIDENTIFIED FEMALE:
family.
track of family.
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click on?
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MS. STASZAK:
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MR. ALLEN:
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MS. STASZAK:
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MR. ALLEN:
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Anyone use it to
Ms . Staszak, what
Facebook page?
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MS . STASZAK:
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MR. ALLEN :
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Facebook yourself?
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MS. STASZAK:
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MR. ALLEN:
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Yes.
Myself .
And can you -- you can put posts on
Yes .
And can others post on your Facebook page
as well?
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MS. STASZAK:
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MR. ALLEN:
No.
Could you allow them to do that?
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MS . STASZAK :
MR. ALLEN:
MS . STASZAK :
MR . ALLEN :
Yes .
Do you post on other Facebook pages
MS. STASZAK:
MR . ALLEN :
Like can --
it?
Sure .
Is that generally how other people use
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with how you post on your page or you can comment on someone
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else's page?
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inappropr iate?
MR . STANFIELD :
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MR. ALLEN:
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Has
Mr. Stanfield .
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Everyone
Yes.
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MR. STANFIELD:
MR. ALLEN :
Mr. Stanfield?
MS . GULLICKSON:
Right .
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postings .
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Facebook page.
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may be some things that you don ' t get to hear or see all of.
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may be some things that you might want to hear about but
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can't?
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hear and not speculating about what else might be out there
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Is everyone
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contacts with me .
contacts were?
MR. LINDNER:
MR. ALLEN :
-._
Social interaction .
MR . LINDNER:
MR. ALLEN:
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No .
Any result of our interaction socially
those years ago or seeing each other on the street would that
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MR. LINDNER:
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MR . ALLEN:
No.
Now, after this case the judge will
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there anyone who would have trouble following the laws and
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with?
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might mean for the defendant that would prevent you from
Is
If there is a
Knowing
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are empaneled discussing the facts and the law and applying
So you
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case then?
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these days?
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level?
organization or group?
club or organization?
publ i c office?
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Three .
Three .
MS . NICHOLS :
One hand .
Anyone an officer of a
Two .
One .
Anyone
I was a
village clerk .
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MR . ALLEN :
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MS. NICHOLS:
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MR . ALLEN :
What village?
Ridgeway .
Has your experience in government as the
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village clerk do you think that would affect your view of the
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MS . NICHOLS :
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MR. ALLEN :
No .
Do you think you can hear the facts and
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that?
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MS . NICHOLS :
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MR . ALLEN :
Oh , yes .
Thank you , Ms. Nichols .
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understand the law and know that the other jurors understand
there is any question about the law that you don't understand
If during deliberations
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time.
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Anyone want to
All right.
Thank you.
As you might
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have guessed, Judge Dyke and Attorney Allen have covered most
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follow-up questions.
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will include the F word and the N word, and the comments are
I see no hands.
It
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issue here?
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enforcement community.
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MR. LINDNER :
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MR . AQUINO:
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Just briefly , I
Yes.
Can you describe what your relationship
is?
MR . LINDNER :
Is he a sheriff?
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MR. LINDNER:
I don't know what his actual position is with the - - it ' s not
the sheriff.
MR. AQUINO:
MR. LINDNER:
detective.
MR . AQUINO :
MR. LINDNER :
MR. AQUINO :
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He is not a deputy?
He could be a deputy.
MR. LINDNER:
I do know that .
summer.
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MR. AQUINO :
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ability to be fair?
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MR. LINDNER :
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MR. AQUINO :
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MS. ROBERTS :
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MR. AQUINO :
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MS. ROBERTS :
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MR. AQUINO :
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MS. ROBERTS :
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MR. AQUINO :
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MS. ROBERTS :
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MR. AQUINO :
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It could be a
I have no idea.
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No.
testimony?
No .
And Ms . Roberts, you indicated that your
Correct .
What office is he?
City of Mineral Point .
How long has he been a police officer?
Close to 20 years.
What is his position?
Sergeant.
Do you know if he has to ever give
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MS. ROBERTS:
MR. AQUINO:
MS. ROBERTS:
Yes .
MR . AQUINO:
MS. ROBERTS:
MR . AQUINO:
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MS. ROBERTS:
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MR. AQUINO:
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Possibly.
Well, Your Honor, in light of her answer
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MR. ALLEN:
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THE COURT:
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THE CLERK:
Randal Doescher.
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THE COURT:
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We thank you
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MR. DOESCHER:
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THE COURT:
No.
If you will be
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seated, please, and this is the time also to also remind the
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panel if you would like to speak to the court we'll take time
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to do that .
I'm assuming
MR . JOHNSON :
THE COURT :
THE CLERK:
Mark Lease.
THE COURT:
MR. LEASE:
Good morning.
THE COURT:
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MR . LEASE:
Yes.
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THE COURT:
You would?
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MR. LEASE:
Yes.
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THE COURT:
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serve as a juror?
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MR . LEASE:
No.
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THE COURT :
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THE COURT:
Not
I have had
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vote?
.--...,
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MR. LEASE:
No.
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THE COURT :
may.
Thank you .
MS . HOUTAKKER:
MR. AQUINO:
MS. HOUTAKKER :
MR. AQUINO:
11
MR. AQUINO:
14
MR. AQUINO :
No.
middle .
16
MR . DOESCHER :
17
MR. AQUINO :
18
MR . STARR:
19
MR. AQUINO:
20
MR . STARR:
21
MR . AQUINO :
Randy Doescher .
In f r ont of you.
Me.
What's your name?
Brandon Starr .
You indicated you have a
relationsh ~ p
23
MR. STARR :
24
MR . AQUINO :
25
Almost 15 years .
13
22
Oakland, California .
MS. HOUTAKKER :
15
Where?
10
12
Continuing on to
the police?
My cousin.
How long has she or he been a member of
46
1
MR . STARR :
MR. AQUINO :
MR. STARR:
Six years.
What office?
She has been with Ridgeway, Arena and
Barneveld.
MR. AQUINO:
MR . STARR:
MR. AQUINO :
MR. STARR:
MR. AQUINO :
10
11
Police Department?
12
MR. STARR:
13
14
MR. AQUINO:
15
MR. STARR:
16
MR . AQUINO :
17
18
MR. STARR:
19
MR. AQUINO :
Ms . Nichols?
20
MS. NANKEE:
Mrs. Nankee.
21
MR . AQUINO :
Yes, Nankee .
22
No .
relationship?
23
MS . NANKEE:
Yes .
My son.
24
MR. AQUINO:
25
MS. NANKEE :
In Evansville.
47
1
MR . AQUINO:
MS . NANKEE :
MR. AQUINO :
MR . AQUINO :
MS . NANKEE :
Eldest .
10
MR. AQUINO:
11
12
question to?
14
Okay .
13
MR . AQUINO :
16
UNIDENTIFIED MALE :
17
MR. AQUINO:
in this case?
19
UNIDENTIFIED MALE:
20
MR. AQUINO :
21
THE COURT:
22
Niece .
15
18
I don't believe so .
No.
23
MR. ALLEN:
No .
24
THE COURT:
25
process.
48
1
THE COURT:
not read then you may please return to the area of the bar .
If your name i s
10
11
THE COURT:
12
BAILIFF :
13
14
15
selected .
If your name was not read then you may sit down .
16
If you would please, bailiff , please seat them and add two to
17
the back row and add the balance here i n the front row .
18
19
20
Mr. Davis.
21
Nankee.
22
MS . PRICE:
Price .
23
THE COURT:
24
Schwartz .
Thank you .
25
49
1
MR . ALLEN:
THE COURT:
MR. AQUINO:
THE COURT:
Yes, we do .
We'll ask the jurors who are here in the
box please rise and our clerk will administer the oath .
THE COURT:
Please be seated.
we'll take a brief recess and I come back and provide some
10
11
right.
All
12
MR . ALLEN:
Good .
Thank you .
13
THE COURT :
14
15
16
excused , so you are very welcome to stay, but you are free to
17
go .
18
You are
19
20
21
THE COURT:
Mr. Rossing
22
23
24
25
50
1
door.
and if they have a need for use of the restroom raise their
we'll simply take a break to allow the juror to meet his need
or her needs.
10
11
12
13
MR. AQUINO:
I think it would be
14
15
16
17
18
19
THE COURT:
go for 11 as a jury?
MR. AQUINO:
20
21
22
participate.
23
THE COURT:
Sure.
The first
24
25
51
participate.
Should
We had
It might be
10
11
I agree.
12
13
THE COURT:
14
15
on?
16
MR . AQUINO :
I think
~e
17
18
client what he wants to do, but I think we can begin with the
19
voir dire.
20
THE COURT:
Okay.
21
22
23
THE COURT :
24
25
52
1
and so on .
needs to use the restroom raise your hand and you are on your
way.
anyway.
MR . DOESCHER:
10
THE COURT:
11
MR . DOESCHER :
12
THE COURT:
13
Si r ?
I'm fine .
proceedings?
14
MR. DOESCHER :
15
THE COURT:
16
Yes.
17
MR . DOESCHER:
No .
I'l l be fine .
18
THE COURT:
Mr . Allen.
19
MR. ALLEN :
No.
20
THE COURT:
Mr . Aquino .
21
MR . AQUINO :
22
23
MR. DOESCHER :
24
MR. AQUINO:
25
MR . DOESCHER :
No .
53
1
MR . AQUINO :
MR . DOESCHER :
MR. AQUINO :
I don't think so .
Well, for example, i s your anxiety of
the sort where it may be possible that you may want to end
participating?
MR . DOESCHER:
MR. AQUINO :
No.
Have you ever served on a jury before?
10
MR . DOESCHER :
11
MR . AQUINO :
No .
Do you have any other -- have you had
12
13
meetings?
14
MR . DOESCHER:
15
MR . AQUINO :
16
17
No .
Is that because it's something you avoid
Yes .
18
the time .
19
20
MR. AQUINO :
21
22
the record.)
23
MR . AQUINO :
24
25
Okay.
Okay .
Thank you .
questions.
THE COURT :
May we proceed?
54
1
THE COURT:
to read this, and the design is that it will help you in the
As you
We
10
11
12
the court.
13
14
15
16
17
18
19
20
21
22
23
24
them .
25
Don't begin
55
small courthouse .
party .
to do it is don ' t do it .
You can make eye contact , but don't even talk about
Just the best way
Don' t
10
11
12
13
14
presentation .
15
16
17
18
19
moment .
20
Why?
Because we want
21
You are to
22
23
at trial .
24
25
the witness.
56
You shouldn ' t draw any conclusions from the fact an objection
was made .
10
11
12
13
You are not required to do so, but you may take notes
14
during the tr i al .
15
16
17
18
19
20
21
22
The
23
Normally
24
25
If you are
57
2
3
these factors.
opportunity the witness had for observing and for knowing the
10
11
12
13
14
15
16
17
18
19
to you.
20
Instead use
Regarding your
21
verd i ct examine the evidence with care and caut i on and act
22
23
24
25
innocent.
58
10
11
12
13
14
15
16
affairs of life .
17
18
19
reasonable.
20
21
22
23
You are
24
25
59
MR . ALLEN:
THE COURT :
You may.
MR. ALLEN:
Good morning .
10
Fuck them
11
Not a dam
12
13
14
15
16
17
18
19
20
21
22
23
24
25
residents of Arena .
The officers'
60
those comments that were directed towards his thank you note
10
11
12
13
14
wanted to ask him about was the messages that he had posted
15
16
17
18
19
20
21
22
23
24
25
Mr. Smith
When Officer
61
see from the Arena PD's Facebook page they do reserve the
Mr . Smith.
6
7
10
11
12
of each charge .
Thank you .
13
THE COURT:
14
MR. AQUINO :
Thank you.
Mr . Aquino .
Good morning .
Mr. Allen
15
16
17
anything .
18
19
20
Sure.
21
22
23
24
that last year the Arena Police Department posted a thank you
25
Yes.
62
1
youths.
Now, as I believe Mr. Allen said also, there were
.--...
the community .
who will be testifying later, and her comment was "And don't
cop specifically what they look like and his response is they
then see it was after this comment and other comments that
You will
10
11
racism.
12
emphatic.
13
say they were fucking racist bastards and told them to fuck
14
15
He was more
he did
16
17
18
19
20
21
He wasn't yelling.
He wasn't
Well,
22
The
23
24
25
63
1
10
The state
There
No .
These were
11
12
13
threatening/profane message .
14
15
16
17
18
THE COURT:
Thank you .
19
MR. ALLEN:
20
THE COURT:
21
MR . ALLEN:
22
THE COURT:
23
24
25
Are
64
1
THE WITNESS :
THE COURT :
MR. ALLEN :
Your witness .
NICHOLAS STROIK ,
4
5
7
8
BY MR. ALLEN :
10
Police officer .
11
12
13
14
15
16
17
18
19
20
21
College .
22
23
24
25
65
1
page?
Yes, we do .
generally?
10
a Facebook page?
11
12
13
14
15
16
17
I could.
18
19
20
21
the department?
22
23
24
25
66
public?
Yes, it is.
Facebook page?
view.
10
11
12
13
the administrator?
14
15
16
17
page?
18
MR. ALLEN :
19
20
We do.
I show you what's been marked as
Exhibit 1.
(Exhibit No. 1 marked for identification . )
21
22
23
Yes , I do .
24
25
-~
67
1
Department.
respectful.
10
11
12
13
14
15
16
17
18
And have you in the past removed posts on the Arena PD's
19
20
I have .
21
22
23
24
25
Content
68
1
Yes, I was .
I did.
(Exhibit No . 2 marked for identification . )
-.
I do .
10
11
12
And can you read for the jury the content of that post?
13
14
Thomas Place and Lois Lane that assisted the Arena Police
15
16
males .
17
18
on Thursday.
19
juvenile male were also arrested later the same evening for
20
21
22
arrived .
23
24
25
Do you
Two of the
MR. AQUINO:
69
hearsay purposes .
I understand that's
THE COURT :
MR. AQUINO :
THE COURT :
It's part
10
Overruled.
11
BY MR. ALLEN:
12
13
14
15
16
neighborhood.
17
18
19
No .
20
21
22
23
I did .
24
25
No, sir .
70
1
That's correct.
recognize Exhibit 3?
Do you
10
Yes, I do.
11
What is that?
12
13
14
15
16
Thomas Smith .
17
Can you read the posts that were made by Mr. Smith?
18
19
20
21
you got on us .
22
23
as inappropriate?
24
That's correct.
25
What the
71
1
No, sir .
He is .
by
another user .
10
record.
11
12
Mr . Smith's post?
13
14
15
contact him?
16
17
contacted him.
18
19
20
Yes.
MR. ALLEN:
23
THE COURT :
24
MR. AQUINO:
21
22
25
Thank
you .
Yes .
72
CROSS-EXAMINATION
1
2
BY MR. AQUINO:
That's correct.
correct?
correct .
10
11
12
13
14
15
That's correct.
16
17
correct?
18
19
20
No, sir.
21
22
23
Before that?
24
25
Department.
73
-.
How long?
Two years.
Yes, sir.
public, right?
Yes , sir.
10
11
At times, yes .
12
13
Yes , sir.
14
15
16
17
18
19
right?
20
No, sir .
21
And when you read Mr . Smith's comments you did not seek
22
23
correct?
24
25
No, sir .
MR. AQUINO :
74
identification .
MR. AQUINO :
THE COURT:
to review that?
Yes, sir .
This is
10
11
comments on it .
12
13
page, I believe?
14
15
16
users, correct?
17
Correct .
18
19
20
That's correct .
21
22
Kim Marks .
23
Yes, sir .
24
25
MR . ALLEN :
Objection .
75
1
Honor .
THE COURT:
matter .
10
11
part of the milieu of the case I don ' t believe it's offered
12
for the truth of the same , and it's a saying that is actually
13
14
MR . ALLEN:
15
I'll let it in .
16
Yes.
17
18
19
20
21
22
23
24
was anyone else ' s kids pretty sure it would be a big deal .
25
Oh , wait though.
If that
Thanks to
76
everyone that made our town look like nothing but a racist,
that comment?
Yes , sir.
And the next comment from Dana Willey , that was made
Correct.
10
11
12
when I ask the cop specifically what they look like and his
13
14
here."
16
Do you see
17
MR. ALLEN:
15
Move it be stricken .
18
motion to strike .
19
20
21
22
That's correct.
23
24
25
77
minutes.
here.
exhibit was printed that those comments were made and the
10
11
12
Yes, sir.
13
14
15
16
that to mean that Mr. Smith, like the other commentors, was
17
18
19
Yes, sir.
20
21
22
A threat?
23
Right .
24
25
His first
You understood
78
1
Yes, sir.
Yes, sir.
correct?
10
11
12
13
that?
14
Yes, sir.
15
16
17
18
19
Sure.
20
in
It says
Do you see
21
MR . ALLEN:
Objection.
22
THE COURT:
Let me rephrase it .
23
24
time you read this comment that Mr. Smith intended to use
25
.-....
79
--
a racist manner?
MR. ALLEN:
Objection.
THE COURT:
Sustained .
MR. AQUINO:
his understanding .
THE COURT:
MR. AQUINO:
10
11
12
13
correct?
14
Yes , sir.
15
16
17
Yes , si r.
18
19
MR. ALLEN:
Objection .
20
THE COURT:
21
22
23
24
25
corr ect?
Overruled .
80
1
viewers .
difference maybe.
them?
Okay .
10
11
12
Yes, I did.
13
14
15
No, sir .
16
17
job .
18
19
Keep up the good work, Iowa County , " that was left up
That's correct .
20
MR . AQUINO :
I apologize .
21
22
MR . AQUINO :
23
THE COURT:
24
25
81
1
Yes, sir.
6
7
Thank you.
Thank you.
THE COURT:
10
Redirect.
Just to clear up on
11
12
BY MR. ALLEN:
13
14
That's correct .
15
16
as spam .
17
18
19
20
21
individuals?
22
That's correct.
23
24
did it?
25
No, sir .
No profanity.
82
1
No N word?
No, sir.
Correct .
And Mr. Smith's post was the first one that injected the
10
That's correct .
11
12
13
Department?
14
That's correct.
15
MR. ALLEN:
Thank you.
16
THE COURT:
17
MR. AQUINO:
Just to clarify.
RECROSS-EXAMINATION
18
19
BY MR. AQUINO :
20
21
22
That's correct.
23
And similarly his posts were not just the first but the
24
25
That's correct.
83
1
comments?
MR . AQUINO:
THE COURT:
Nothing further .
Thank you .
Thank you .
Thank you for your testimony , and you can leave the exhibits
there .
10
THE WITNESS:
11
THE COURT:
Is he excused?
12
MR. ALLEN:
13
14
15
16
19
20
21
MR . ALLEN :
witness?
17
18
THE COURT:
Zimpel.
MR. AQUINO :
I realize
22
23
24
25
MR. ALLEN :
84
can .
MR. AQUINO :
THE COURT:
That's fine .
Officer Zimpel , step up and be sworn and
THE COURT :
8
9
Z-i-m-p-e-1.
NICHOLAS ZIMPEL ,
10
11
12
13
14
BY MR. ALLEN :
15
16
17
18
19
20
21
And can you give the jury just a brief run down of your
22
23
24
25
........
85
2012?
Yes .
And did you make contact with the defendant Thomas Smith
I did .
10
11
I did .
12
13
14
15
I do .
16
17
Via telephone .
18
19
20
21
22
23
24
25
86
__......._
Facebook .
Yes.
10
No .
11
12
13
I did .
14
15
Yes.
16
MR . ALLEN:
17
THE COURT:
Cross .
Thank you .
CROSS-EXAMINATION
18
19
BY MR . AQUINO:
20
21
22
23
24
with you?
25
I believe i t was
When you spoke with Mr. Smith did he use any profanity
87
questions.
And when you spoke with him when you asked him to come
10
11
12
13
contact with me .
Correct .
No.
14
MR . AQUINO:
15
THE COURT:
Redirect.
16
MR . ALLEN:
17
18
THE COURT:
State.
19
MR . ALLEN:
20
MR . AQUINO :
Nothing further .
Thank you.
21
evidence I do have
22
THE COURT:
23
MR. ALLEN:
24
MR. AQUINO:
25
THE COURT:
Okay.
Well --
88
MR. AQUINO:
the record.
THE COURT:
What
we'll do then, Jury, we'll excuse you and you will come back
scheduling my witness .
If I can
THE COURT:
10
lunch.
11
anybody.
12
13
1 : 15.
Thank you .
14
15
16
THE COURT:
17
MR . AQUINO :
Okay.
18
19
20
21
22
THE COURT :
23
MR. AQUINO:
24
25
I'm sorry .
Well, okay.
first .
THE COURT :
Yes.
If you may .
89
MR. AQUINO:
grounds.
First is venue.
Iowa County.
10
11
12
statute.
13
14
issue.
15
16
Amendment exceptions.
17
18
19
this time.
20
THE COURT :
Mr . Allen.
21
MR. ALLEN:
22
23
24
25
90
10
language .
11
12
13
14
15
16
17
18
19
20
21
22
has been litigated multiple times in this case, and again for
23
24
25
necessary .
91
1
6
7
to add?
MR. AQUINO:
THE COURT:
10
11
12
13
14
15
16
17
18
19
20
21
22
23
At
24
25
92
1
offensive behaviors?
The
There is
10
11
two people.
12
13
internationally.
14
know .
15
us.
16
the Exhibit 3.
17
18
19
20
21
provoke a disturbance?
22
23
24
25
have received.
I don't
Is
What you
93
got on us?
That's
inviting a reply .
contemptuous attacks .
10
testimony at 1 : 15.
11
12
13
MR. ALLEN :
14
15
16
THE COURT:
17
18
MR . ALLEN:
19
Objection?
exhibits?
through
3.
MR . AQUINO:
20
22
23
24
context.
25
21
94
THE COURT:
It was , as we
the proceedings , that the milieu of the case would cause the
relevant, though they were not for the truth of the matter,
10
11
Exhibits 1 through 6.
Thank you .
12
MR. AQUINO :
13
THE COURT:
14
15
For lunch.)
16
17
18
19
20
21
22
23
24
25
Five.
Thank you.
95
THE COURT:
Appears we
point where, Mr. Aquino , you are going to call your first
witness .
MR. AQUINO :
10
THE COURT:
11
12
THE COURT:
13
record we'll ask you to tell us your name and spell your last
14
name.
15
THE WITNESS :
16
THE COURT:
17
MR. AQUINO:
Good afternoon.
DANA WILLEY ,
18
19
20
21
22
BY MR. AQUINO:
23
24
Yes.
25
96
Yes.
Daily .
And you just describe what you view on Facebook when you
are on Facebook?
statuses .
MR. AQUINO:
10
11
12
13
14
Yes.
15
16
17
18
19
Yes.
20
21
22
Yes.
23
24
25
like and his response is they will stand out because they
97
night.
10
news feed, and they were thanking the citizens of Arena for
11
12
13
police officers?
14
15
16
tell us what
17
Could you
18
19
He is
20
Be on guard as to hearsay .
21
22
23
testimony today .
24
that conversation .
25
Yeah .
98
MR. ALLEN:
THE COURT:
Sustained .
MR . AQUINO:
1
2
hearsay .
might have said at that point but just to show what happened
8
9
Your Honor .
10
THE COURT:
Sir .
11
MR. ALLEN:
12
already by Ms . Willey.
13
THE COURT :
14
MR . ALLEN :
15
MR . AQUINO :
Did you ask the police officer what the suspects looked
16
17
like?
18
Yes .
19
20
21
belong here."
22
23
Facebook?
24
25
99
1
Yes.
10
11
12
No, it is not.
13
14
No , I did not.
15
16
I do not .
17
MR . AQUINO:
18
THE COURT:
19
MR. ALLEN :
20
21
BY MR. ALLEN :
22
23
No .
24
25
No .
Thank you.
100
Arena PD?
Yes.
You agree that the Arena Police Department has the right
inappropriate?
MR. AQUINO :
THE COURT :
Objection.
Foundation.
Sustained.
10
11
Yes .
12
13
14
15
16
17
18
19
Right .
20
No.
21
22
23
24
25
Yes .
101
Yes .
You were not arrested for the posting that you made?
No.
No.
10
MR. ALLEN:
11
MR. AQUINO:
12
THE COURT:
13
go .
Thank you.
That's all.
No redirect.
Thank you for your help.
Sir .
14
MR. AQUINO:
15
THE COURT:
What we have to
16
17
18
19
then takes the testimony and offers you the basis for
20
comparison with what the testimony said and what the law is.
21
Since you are the trier of fact we have some more preparation
22
23
we could do it.
24
and you may be called back, but you are free to go to the
25
jury room.
10 2
1
THE COURT:
client.
MR. AQUINO:
Twenty-four.
10
11
I graduated.
12
13
Yes, sir.
14
15
against you?
16
Yes , sir.
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18
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Yes, sir .
20
21
Yes , sir.
22
23
No , sir.
24
25
that?
You know
103
1
Yes .
remain silent?
Yes, sir.
Yes .
Yes, sir .
10
Yes , sir .
11
12
Yes, sir.
13
14
15
Yes, sir .
16
17
Yes, sir.
18
And you have made your choice, and it was free and
19
20
Yes , sir .
21
It was?
22
Yes, sir .
23
24
your rights and that you are knowingly waiving your right to
25
testify?
104
1
Yes, sir.
Yes, sir.
THE COURT:
MR. ALLEN:
Yes, Judge.
THE COURT:
10
If we may, let's
11
12
instructions themselves.
13
14
drafted?
15
MR. ALLEN:
No, Judge.
16
MR. AQUINO :
17
THE COURT:
18
MR. AQUINO:
19
MR. ALLEN:
No objection .
20
THE COURT:
21
MR. AQUINO:
22
MR. ALLEN:
No objection.
23
THE COURT:
No objection.
Jury Instruction No . 100.
No objection.
No objection.
24
I'll
25
105
1
Right.
our position from early on in this case has been that the
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th i s case i t's again the state's pos i t i on has been that these
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this conduct fits within the statutes that they also have to
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words, otherwise you can have a case where the jury would
1 06
1
find that they are not fighting words but still because of
THE COURT:
Mr. Allen.
MR. ALLEN:
matter of law that the language used by the defendant was not
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conduct statute.
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1 07
paragraph 23 .
That's at
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THE COURT:
11
MR. AQUINO:
Last word.
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whether that was the reason why the court in that case had
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THE COURT:
In fact , the
108
1
as prepared by counsel.
proposed fit one another without opening the door to the hand
define it.
adequate for this case, for this case and for this trial , and
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court.
13
finds.
14
on it.
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community.
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I believe that all the things put together are such that,
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I ruled
If we may, let's
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MR. ALLEN:
THE COURT:
MR. AQUINO :
MR. ALLEN :
No objection .
THE COURT:
Now we go to 1900.
MR. ALLEN:
No objection .
Upon further
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THE COURT:
Yes.
In its
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It will be
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THE COURT :
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MR. AQUINO:
That addition?
Yes.
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f i ne.
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THE COURT:
25
MR. ALLEN:
No objection.
I read to them .
110
.---..
MR. AQUINO:
No objection.
THE COURT :
145, complaint.
MR. ALLEN:
No objection.
MR. AQUINO:
THE COURT:
Yes .
MR. ALLEN:
No objection.
MR. AQUINO:
Evidence, 103.
No objection.
10
THE COURT:
Improper questions .
11
MR. ALLEN:
No objection .
12
MR . AQUINO:
13
THE COURT:
14
MR. ALLEN:
No objection.
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MR . AQUINO:
16
THE COURT:
150, strike.
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MR. ALLEN:
Agreed.
No objection.
No objection.
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MR. AQUINO:
Agreed.
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THE CLERK:
Take it out?
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THE COURT :
Yes.
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MR. ALLEN:
No objection .
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THE COURT:
25
Exhibits.
111
1
counsel .
MR. ALLEN :
MR . AQUINO:
THE COURT:
Jurors knowledge .
language in parenthes i s.
MR. ALLEN :
MR. AQUINO:
THE COURT:
No objection .
Correct, Your Honor .
Picking up on page 14 after deleting the
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12
Welcome instruction.
13
MR. ALLEN:
14
MR . AQUINO :
15
THE COURT:
Closing arguments.
16
MR. ALLEN :
No objection .
17
MR. AQUINO:
18
THE COURT :
Closing instructions .
19
MR. ALLEN :
No objection .
20
MR . AQUINO:
21
THE COURT:
22
Remarks of
No objection .
No objection .
No objection .
No objections .
And a separate verdict form we addressed
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MR. AQUINO :
24
MR. ALLEN:
No objection .
25
THE CLERK:
484 is as is?
No. 515.
No objection .
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MR . AQUINO:
Yes.
THE COURT:
Okay.
No objection to 484.
Be there anything else at this
ti me?
MR . AQUINO:
MR. ALLEN:
previously stated .
THE COURT:
10
MR. ALLEN:
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12
system.
13
profane.
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THE COURT:
Yes.
1909.
It should be changed to
Oh, okay.
Thank you.
whi 1e those are being run and come back in about ten mi m~tes.
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THE COURT:
22
State v Smith.
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113
MR. ALLEN:
1
2
instructions.
submitted .
Yes, Judge.
THE COURT:
MR . AQUINO:
THE COURT:
Yes.
Thank you.
ordered.
10
needs?
11
MR. ALLEN:
12
MR . AQUINO:
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14
THE COURT:
Yes, Judge .
Yes, Your Honor.
I respect that.
Subject to the
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I will read the instructions and then you will have your
17
closing arguments.
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MR. AQUINO:
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THE COURT:
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MR. AQUINO:
24
THE COURT:
25
covered on that?
114
1
MR . AQUINO:
THE COURT:
THE COURT:
remind you that the arguments are not subject of your note
10
taking, and the jury instruction packet will follow you into
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wouldn't be fair .
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1
Apply that
law to the facts in the case which have been properly proven
by the evidence.
and from these alone guided by your sound reason and your
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only .
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profane language .
20
plea of not guilty which means the state must prove every
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116
1
cause a disturbance.
entered a plea of not guilty which mean the state must prove
doubt.
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language.
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were present.
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communication system .
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With intent to
In
117
1
elements of this offense had been proven you should find the
defendant guilty .
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language or both .
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disorderly conduct .
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included.
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oversensitive person.
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11 8
law requires only that the conduct be of the type that tends
conduct.
If you are
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11
guilty.
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offense to be innocent .
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the state.
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defendant is guilty .
25
The
The burden of
11 9
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guilty.
The term reasonable doubt means a doubt based upon
affairs of life.
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decision.
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doubt.
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acts.
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guilt.
22
The complaint is
th~
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the witness .
25
120
1
received at trial.
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by the court.
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121
1
each side.
evidence as a whole .
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witness had for observing and for knowing the matters the
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the testimony .
25
In determining
122
1
The defendant's
10
attorneys.
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who will go first , and then because they have the burden of
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MR. ALLEN:
19
Appropriate ,
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The facts of
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and the state has shown beyond a reasonable doubt that each
As a jury of
10
Mr . Smith's peers you make the call whether these posts have
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18
occurred .
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20
--...
First,
Mr . Smith
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12 4
1
Because
You should
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language.
19
That's
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Facebook page .
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25
..-....
125
intimidate someone .
He
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11
unpunished .
12
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posts and that he did not regret it and he meant the words
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the facts as you have heard them the burden of proof has been
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you retire to the jury room I would ask that you find
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23
.......
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THE COURT:
Thank you .
Your closing,
Mr. Aquino.
MR . AQUINO :
Soon
126
1
statutes.
sense about whether you think those comments should have sent
10
with.
11
case.
It's not just what words were said but when they were
12
13
14
15
16
17
words.
18
No.
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criminal statutes.
21
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25
127
that's true, and when you look at the comments they weren't
There
before you in the first part Mr. Smith's comment his first
No intimidation .
He is emphasizing
10
11
thought the police were racist, and he just don't like them.
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13
14
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17
language.
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19
So there is
There is no threatening
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25
experience you may be aware that the N word has been used in
128
1
the second comment Smith says, "What the you got on us.
to you that that doesn't make sense if that's what his intent
is, especially when his name is on the post and when you
10
11
their uniform.
12
13
The end of
Not
I will submit
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those words .
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You heard that when he was -- when the pol i ce officer spoke
129
8
9
He explained to the
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something on Facebook.
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not only was Mr. Smith's comments deleted, but so were the
24
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You
130
1
2
retire to the jury room and consider all the facts that you
Thank you.
THE COURT:
Thank you .
Mr. Allen .
MR. ALLEN:
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Mr . Smith.
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25
Mr. Smith is
131
1
telephone .
.-
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20
provoking a disturbance .
21
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25
This
1 32
Ms. Willey and Ms. Marks and those that rise to the level of
criminal conduct.
As the testimony indicated, the other comments
4
5
10
racism.
11
12
13
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15
sharpened and profane language used by Mr. Smith who was the
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18
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22
accountable .
23
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133
time .
THE COURT:
Now, members of
the jury , the duty of counsel and the court have been
10
performed.
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12
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14
15
16
or prejudice or passion .
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18
19
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21
charged .
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23
deliberations .
24
25
to you .
134
--..
complaint.
the complaint," and another reads "We the jury find the
10
11
12
13
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15
16
separately .
17
18
19
20
21
22
You
each
23
The presiding
24
25
135
note .
answer .
10
your verdict have i t signed and dated by the person you have
11
selected to preside .
12
13
14
the verdict will be read into the record i n open court and
15
the court may ask each of you if you agree with the verdict .
16
17
18
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20
21
22
THE COURT:
23
24
MR. ALLEN:
25
MR . AQUINO :
No .
No , Your Honor.
136
THE COURT:
MR. AQUINO:
jury room?
5
6
THE COURT:
MR. ALLEN:
make.
7
B
I think we shouldn't
10
THE COURT:
Say again.
11
MR. ALLEN:
12
unless requested.
13
THE COURT:
14
MR. AQUINO:
15
16
officer .
17
I think it's important they see them in the context they were
18
19
THE COURT:
20
The instructions
21
MR. AQUINO:
Fine.
22
THE COURT:
23
MR. ALLEN:
24
25
A number which
137
1
3
4
I think
10
11
12
THE COURT:
13
14
FOREPERSON:
15
THE COURT:
Please be seated.
We have.
Please hand it to the bailiff.
As I now
16
17
thank you.
18
an excellent jury.
19
excellent jury.
20
You were
Thank you.
21
22
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25
1 38
1
2
ALL JURORS:
THE COURT:
4
5
Yes.
Is that your -- it appears to be
unanimous.
As to Count No . II, we the jury duly empaneled and
10
11
12
ALL JURORS:
13
THE COURT :
14
ALL JURORS:
15
THE COURT:
16
MR. AQUINO:
17
THE COURT:
18
Mr . AQUINO:
19
THE COURT:
20
Yes.
So say you all .
Yes .
Is there a request to poll?
Yes, Your Honor .
There is?
Yes.
Juror No . 1 in the far corner back there,
21
JUROR GULLICKSON :
22
THE COURT:
23
JUROR:
24
THE COURT:
25
JUROR:
Yes .
Yes .
Yes.
139
1
THE COURT:
JUROR:
THE COURT:
JUROR:
THE COURT:
JUROR:
THE COURT:
Yes.
Juror No. 5, is this your verdict?
Yes.
Juror No.
6,
Yes .
No . 7, is this your verdict, Ms .
Schwartz?
JUROR SCHWARTZ : Yes .
10
THE COURT:
11
JUROR:
12
THE COURT:
13
JUROR:
14
THE COURT:
15
JUROR:
16
THE COURT :
17
JUROR:
18
THE COURT:
19
JUROR :
20
THE COURT :
21
MR. AQUINO :
22
THE COURT:
Yes.
No . 9?
Yes.
No . 10?
Yes .
No . 11?
Yes .
And Juror 12?
Yes .
It appears to be unanimous, si r.
Thank you.
Members of the jury, the final
23
24
No. 525.
25
You do not
140
1
questions about it .
It appears then
THE COURT:
I wi ll then
affirm the j udgment of the jury and have the docket shown
10
11
12
MR. ALLEN :
No .
13
THE COURT :
Sir .
14
MR . AQUINO :
15
THE COURT :
16
your help .
Is the r e
No , Your Honor.
Thank you for your help .
Thank you f or
17
MR . ALLEN :
18
THE CLERK :
19
THE COURT :
20
THE CLERK :
June 26.
21
MR . ALLEN :
22
THE CLERK :
23
MR. AQUINO :
24
THE CLERK :
25
MR . AQUINO :
141
1
THE CLERK:
MR . AQUINO:
THE CLERK :
Wednesday.
What about June 13?
No , Judge .
Wednesday.
8
9
No .
8 :45 on June 11 or 12 .
case .
10
THE CLERK :
11
MR. AQUINO :
12
MR. ALLEN:
Okay .
13
THE COURT :
14
15
16
17
18
19
20
21
22
23
24
25
June
June 10 at 11 :50.
That ' s fine .
142
C E RT I F I CAT E
2
3
STATE OF WISCONSIN
5
COUNTY OF IOWA
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)
)
SS
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