[00:00:32] Speaker 01:
is that I believe that there was no exigent circumstances requiring the summary proceeding that was engaged in.

[00:00:42] Speaker 01:
I believe in that respect my due process rights were violated as I was not given any opportunity to be heard.

[00:00:49] Speaker 01:
In advance, there was at least an hour between the time Judge Oda left the bench and the time she came back and helped me in criminal contempt that I could have at least had that time to

[00:01:21] Speaker 02:
court relied on Pounders.

[00:01:24] Speaker 02:
So if we deem this to be a violation of the court's order, I know that's your first issue.

[00:01:30] Speaker 02:
In Pounders, the court held a law in contempt after she employed a line of questioning discussing punishment after the court had ordered co-counsel not to cover the issue.

[00:01:43] Speaker 02:
And we held that that was not enough, and the Supreme Court reversed us and said, no, this was an exceptional circumstance.

[00:01:52] Speaker 02:
Can you distinguish pounders?

[00:01:54] Speaker 02:
Why doesn't pounders require us to uphold the district court's ruling?

[00:02:00] Speaker 01:
Well, I think there are two things in pounders.

[00:02:02] Speaker 01:
One was, again, what the court said, a knowing violation of a clear and specific direction from the trial judge.

[00:02:10] Speaker 01:
In that case, the trial judge had said,

[00:02:37] Speaker 01:
it anyway.

[00:02:39] Speaker 01:
In this case, I don't know how there could possibly be prejudice since it was all in evidence.

[00:02:47] Speaker 02:
The district court flag prejudice is an issue.

[00:02:50] Speaker 02:
In the order, it said that Jeffrey intentionally violated an order not to highlight certain prejudicial information to the jury.

[00:03:01] Speaker 02:
She did so in the presence of the jury, endangering the fairness of the proceedings.

[00:03:06] Speaker 02:
As the court had

[00:03:12] Speaker 02:
Just although, unlike in pounders, the court didn't make a finding of prejudice, that the jury were prejudiced, the district court certainly indicated that that was the issue, was prejudice to the jury.

[00:03:26] Speaker 01:
Well, I guess the problem we have with that, Your Honor, is that throughout the trial, from the opening statement through closing, those homophobic, horrific terms were in front of the jury.

[00:03:41] Speaker 01:
how could the jury be, and there were documents the jury was going to receive, did receive that were in evidence that as an aside were actually introduced and marked by the plaintiff that had those terms in them.

[00:03:56] Speaker 01:
So it's difficult for me how to imagine there could be prejudice from evidence, from hearing evidence that the jury already had heard multiple times and was going to have in front of them.

[00:04:13] Speaker 01:
It wasn't, and I also was not, I think the distinction from Pounders is in, I think it's Pounders, excuse me, was that the lawyer was intentionally trying to put out to the jury, here's why you should do this because there's going to be a sentence that's bad for you.

[00:04:33] Speaker 01:
In our case, I wasn't using the document

[00:04:45] Speaker 01:
manipulated the entire incident and that the timing corresponded with my argument and for that the best evidence was the document which had specifically referred to last week

[00:05:13] Speaker 01:
It was not striking the evidence.

[00:05:16] Speaker 01:
The plaintiff's counsel said in argument that he understood the documents were going to the jury and he had no difficulty with that.

[00:05:27] Speaker 01:
So I was using the document for a different reason.

[00:05:44] Speaker 01:
I believed that the order prohibited me only from using those words.

[00:05:50] Speaker 00:
So why did you put it on the Elmo projector and then start reading the sentence and then stop and point your finger at the words that the district court told you she didn't want to hear again?

[00:06:03] Speaker 01:
I would have to dispute that part of the record, Your Honor.

[00:06:06] Speaker 01:
I was reading the sentence and in trial, when it documents that Elmo, I'm following along with the sentence.

[00:06:20] Speaker 01:
term, I truly did not think that I was violating the court's order, or I wouldn't have done it.

[00:06:32] Speaker 01:
Many times during trial, the court said, move on from that.

[00:06:37] Speaker 01:
There was a specific line of questioning with Dr. McKnight, and every time she said, move on, I moved on.

[00:06:43] Speaker 01:
I did not intentionally violate

[00:07:46] Speaker 00:
set her off as I read the transcript.

[00:07:53] Speaker 01:
Yes, I think that's what happened, but again, it wasn't my intent.

[00:08:12] Speaker 01:
The court didn't inquire.

[00:08:51] Speaker 01:
Frankly, why would one of the Deputy Attorney Generals have helped me make a PowerPoint in violation of the order if they had understood the order to have precluded that?

[00:09:01] Speaker 01:
That makes no sense at all to me.

[00:09:03] Speaker 01:
So I think that's – I think the order is very unclear because – for a number of reasons.

[00:09:39] Speaker 01:
to strike any evidence, the court is saying that no one is going to refer to it in closing argument.

[00:09:46] Speaker 01:
And then I inquired, I said, what is the it?

[00:09:50] Speaker 01:
I'm not allowed to use the word, the phrase, FF, that this man used.

[00:09:55] Speaker 01:
Is that what the court's specific order is?

[00:09:57] Speaker 01:
And she says, yes.

[00:10:00] Speaker 01:
So that's how I understood it.

[00:10:02] Speaker 01:
And I guess I would add, not having a written

[00:10:15] Speaker 01:
solved whatever issue she believed there was by simply calling aside what her issue often did during trial and saying, don't use those documents.

[00:10:27] Speaker 01:
Instead of, you know, breaking in the middle of my closing argument, I don't believe there were any exigent circumstances holding me in contempt and then saying, okay, I'll continue your argument.

[00:11:30] Speaker 00:
opposed to the other side but assuming that she had characterized it as a civil sanction and imposed a $4,000

[00:12:08] Speaker 01:
this is unique.

[00:12:11] Speaker 01:
You give notice and you let the lawyer say whatever their excuse is, whatever their reason is.

[00:12:17] Speaker 01:
Again, I would have explained that I certainly didn't understand the order that way.

[00:12:23] Speaker 01:
I didn't intend to violate it.

[00:12:24] Speaker 01:
I mean, I had a half an hour left or whatever of closing argument.

[00:12:29] Speaker 01:
I wasn't, I had no need to

[00:12:40] Speaker 01:
jury in a case that was relatively complicated given the number of the defendants and the number of causes of action and the number of different claims.

[00:12:49] Speaker 01:
I felt, at least in my judgment, that looking at the documents was going to be the best thing to sort of sear the dates in their minds.

[00:12:57] Speaker 01:
And that's what I was trying to do.

[00:13:14] Speaker 02:
And our last case is Alan Jean Lau and Amber Woodhill Lau.