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II -
211 1 Q.
Okay. And if you had seen something
like that happen, 2 you would remember it; is that
correct? 3 A.
Yes. 4 Q. If
you had seen that happen, would you have reported it 5 to the staff at Mountain Park? 6 A.
Yes, I would have. I would have told
Sam Gerhardt. 7 Q.
Very good. 8
MR. BRIGGS: That's all I have. Thank you. 9
THE COURT: Cross-examination. 10
CROSS-EXAMINATION 11 BY MR. STILLEY: 12 Q.
You're no longer employed by Mountain Park; is that 13 correct? 14 A.
Yes. 15 Q.
When did you cease employment? 16 A.
I believe it was around August of 2003. 17 Q.
And how long were you at Mountain Park? 18 A.
As a staff member? 19 Q.
In any capacity. 20 A.
Approximately five years. 21 Q.
And how did you arrive at Mountain Park? Did
you come 22 as a student? 23 A.
Yes, I did. 24 Q.
And how long were you a student? 25 A.
For approximately three years.
II - 212 1 Q.
And what happened after the three years? 2 A.
I graduated. 3 Q.
And did you -- after you
graduated you apparently then 4 became a staff member? 5 A.
Yes. 6 Q.
Were you told anything about a no-touch policy or 7 policy of that nature? 8 A.
Yes. 9 Q.
What were you told that that policy was? 10 A.
That under no circumstances any staff is to touch any 11 student in an aggressive manner. 12 Q.
All right. During the five years that
you were there, 13 did you ever see that policy violated? 14
MR. BRIGGS: Objection, Your Honor,
that's outside 15 the scope of direct. 16
THE COURT: Sustained. 17 BY MR. STILLEY: 18
Q. How much contact did
you have with Jordan Blair? 19 A.
I don't know, a lot I guess. 20 Q.
Give us a time frame of your contact. 21 A.
His whole enrollment. 22 Q.
How did it come to be -- you were in contact with 23 him, okay, his whole enrollment at
Mountain Park? 24 A.
I'm sorry? 25 Q.
Was it his whole enrollment at Mountain Park?
II
- 213 1 A.
Yes. 2 Q.
What about at Palm Lane, were you ever involved, did 3 you see him at Palm Lane? 4 A.
Yes. 5 Q.
And for how long did you see him at Palm Lane? 6 A.
Until he left Palm Lane. 7 Q.
You go to Palm Lane with him? 8 A.
Yes. 9 Q.
Has anybody told you what your testimony should be in 10 this case? 11 A.
No. 12
MR. STILLEY: Your Honor, can I have
just a moment? 13 Pass the witness. 14
MR. BRIGGS: We have nothing further,
Your Honor. 15
THE COURT: Thank you, Mr. Parrish. You may step 16 down. 17
MR. OLIVER: The defendant rests, Your
Honor. 18
MR. STILLEY: Your Honor, we do have
some rebuttal. 19 Can I have about 15 minutes? I cannot? 20
THE COURT: No. 21
MR. STILLEY: Okay. 22
THE COURT: Who do you have? Call it. 23
MR. STILLEY: Okay. Ray Palmer. 24
MR. OLIVER: He wasn't there during the
relevant 25 period of time. Anything he says is irrelevant.
II - 214 1
THE COURT: Has he got something to say
about this 2 battery? 3
MR. STILLEY: Judge, I don't want to
say things I 4 shouldn't in front of the jury. Can we please come up? I 5 don't want to say anything I shouldn't
say. 6
THE COURT: Come up. 7
(The following proceedings were held at the bench 8 and outside the hearing of the jury:) 9
MR. STILLEY: Let me explain what he
can testify to 10 and let you rule if I can put this on
or not. I'm not 11 trying -- 12
THE COURT: Fine. Tell me what he has got to say. 13 I don't need an explanation. 14
MR. STILLEY: While he was carrying the
wood there 15 was another kid and they told him he
was not carrying the 16 wood fast enough and he said I can't
carry it faster. And 17 they shoved him and shoved him into
the wheelbarrow that he 18 was using to carry the wood and put
about an inch long gash 19 in his leg. He asked for medical care on it and they didn't 20 give him any medical care, they just
slapped a little salve 21 on it.
And he's got about an inch long scar on his leg from 22 being shoved into that. 23
THE COURT: Fine. 24
MR. OLIVER: Your Honor, it's
irrelevant and not 25 relevant in time and place. It doesn't have anything to do
II - 215 1 with Bo Gerhardt. 2
MR. STILLEY: It's the policy. 3
MR. OLIVER: It's other acts. He can't prove -- 4
THE COURT: I am excluding that. That's excluded. 5
MR. STILLEY: Let me see what else I've got here, if 6 anything. 7
THE COURT: The pitching rotation. 8
MR. STILLEY: I understand, Judge, but
I'm just 9 about done here. 10
THE COURT: Fine. 11
MR. STILLEY: He said that Mr. Gerhardt
-- and these 12 are his words from an e-mail. He said one day he was 13 stacking wood and Mr. Gerhardt beat
the crap out of me 14 several times. And when this happens he takes me in a room 15 alone and starts hitting. He did this to me once in the new 16 boys' dorm and another time out back
near the school and also 17 when I first got there. And then he says I never really been 18 away from home. Can I put that on? 19
MR. OLIVER: Same objection, Your
Honor. 20
THE COURT: You know, here we got a
different act. 21 MR. STILLEY: I'm trying to prove that their 22 no-touch policy is not true. They say they have one. 23
THE COURT: They may have a policy. That doesn't 24 say that they still don't have the
policy. You're saying 25 that this witness said Mr. Bo Gerhardt
took him in the room
II - 216 1 so nobody could see, he didn't want
anybody to see he was 2 violating the policy according to your
proposed testimony. 3
MR. STILLEY: Correct. Correct. 4
THE COURT: That doesn't change the
fact that they 5 have a policy. Well, you know, a lot of people got a policy. 6
MR. STILLEY: They said they followed
the policy. 7 I'm trying to show they didn't follow
the policy. 8
THE COURT: That's why we got
courtrooms, police 9 officers and everything else because
some people sometimes 10 don't follow the policy. But we're talking about whether the 11 policy was followed with your client. 12
MR. STILLEY: That's the testimony I've
got. 13 THE COURT: Okay, him. That's
him. That's 14 Mr. Palmer. Who else you got? 15
MR. STILLEY: Well, I'm not even going
to try the 16 rest.
I'm not going to get the rest in. 17
THE COURT: You're a smart fellow. Are we resting 18 completely then? 19
MR. OLIVER: We're finished. 20
THE COURT: Fine. We'll do an instruction 21 conference shortly and have the jury
come back tomorrow 22 morning at nine and argue this case. 23
MR. STILLEY: Certainly, Judge. Judge, I hope you 24 understand. I appreciate the opportunity to -- 25
THE COURT: I understand. You are a fervent
II - 217 1 believer in what you're talking about. That's all good.
But 2 can't you see the fervency in which
they believe what they 3 are doing and then the fervency of you
over here. See, you 4 are an officer of the court. You see what I'm saying? It's 5 different. Now, you want to bad mouth somebody else and talk 6 bad about them about them doing some
things you fervently 7 believe aren't right that they are
doing, but those things 8 are not part of this case. And you're supposed to exercise 9 more control. You are a lawyer and an officer of this court. 10 That's the difference, okay. So then you are worse than 11 them, and you don't see that. You don't see it. 12
(The following proceedings continued within the 13 hearing of the jury:) 14
THE COURT: Both parties are resting,
ladies and 15 gentlemen ladies of the jury. We're going to adjourn for the 16 day and try to get some things
together so this show can go 17 along smoothly tomorrow morning
hopefully. 18
You all have a pleasant evening. Recall
the 19 admonition. See you -- return to your jury rooms at 9 a.m. 20 in the morning, okay. 21
(The following proceedings were held outside the 22 hearing of the jury:) 23
THE COURT: We're going to do this
instruction 24 conference now so that we can get
along smoothly here 25 tomorrow morning.
II
- 218 1
MR. OLIVER: Your Honor, would it be
easier for the 2 Court if I simply brought you an MAI
battery package start to 3 finish rather than going through and
fighting about it? 4
THE COURT: No. 5
MR. OLIVER: Okay. 6
THE COURT: Because if we wait till
tomorrow, there 7 will be problems. 8
MR. OLIVER: All right. 9
THE COURT: You know, it's like a song
a guy sings 10 called Raindrops, LaVert says, "I
got places to be and people 11 to see." See, if I delay, it will get bad. So I got to get 12 you all locked in now. 13
Now, this is what we need to do. We
need to put a 14 clean copy and a citated copy of
instructions together. And 15 we will have a stack of agreed and a
little bitty stack of 16 disagreed. You know, because there was another guy, he was a 17 great philosopher from California, his
name was Rodney King, 18 he said, "Can't we all just get
along, please?" 19
See, so we're going to try to get along and have 20 this small stack of instructions. And, you know, of course 21 it's going to start with the
instruction I gave at the 22 beginning of the trial will not be
repeated here. Do we have 23 all that stuff in here, these stacks? Do we have those 24 instructions, the basic boilerplate? 25
MR. OLIVER: Judge, I'd be glad to take
all of those
II - 219 1 and sort them out for you and get you
when you we get them 2 sorted out. 3
THE COURT: That's what I'm talking
about, but 4 you'll need Mr. Stilley's stack so you
have a very small 5 stack of disagreed, because we're
going to make this record 6 today. 7
MR. OLIVER: Judge, I don't have --
yes, sir. 8
THE COURT: I'm going to give you all
mine. Now, do 9 you have those initials in there and
the last one will be 10 giving the jury directions about
unanimity and so forth. 11
MR. OLIVER: I know the only thing
that's not typed 12 that's good is a form of verdict. 13
THE COURT: Well, we can figure out how
that should 14 be and that will make it very simple
tomorrow morning because 15 we will have agreed upon that. 16
You can join him over there, Mr. Stilley. 17
(Court in recess from 5:15 p.m. until 5:38 p.m.) 18
THE COURT: I'm going to go through all
those you 19 have agreed. Proposed Instruction No. 1 is a Model Jury 20 Instruction 3.01, which starts with,
"Members of the jury, 21 the instructions I gave at the
beginning of the trial and 22 during the trial remain in effect, I'm
now going to give you 23 some additional instructions." That would be No. 1. Any 24 objection to that? 25
MR. STILLEY: No objection.
II - 220 1
MR. OLIVER: None, Your Honor. 2
THE COURT: Proposed No. 2 is MAI --
Model Jury 3 Instruction 3.02, which begins with,
"Neither in these 4 instructions nor in any ruling,
action, or remark that I have 5 made during the course the trial have
I intended to give any 6 opinion or suggestion as to what I
think your verdict should 7 be." Any objection to that? 8
MR. STILLEY: None. 9
MR. OLIVER: No, sir. 10
THE COURT: No. 3 is the credibility
instruction of 11 the Model Instructions 3.03. It starts with, "In deciding 12 what the facts are, you have to decide
what testimony you 13 believe and what testimony you do not
believe." Any 14 objection to that? 15
MR. STILLEY: None. 16
MR. OLIVER: No, Your Honor. 17
THE COURT: Okay. Proposed Instruction No. 4 is 18 3.04 of the Eighth Circuit Model
Instructions, about burden 19 of proof. It starts, "In these instructions you're told
your 20 verdict depends on whether you find
certain facts have been 21 proved," and then goes on to what
the burden is, of greater 22 weight or preponderance of the
evidence. 23
MR. STILLEY: No objection. 24
THE COURT: Okay, fine. Proposed Instruction No. 5 25 is the verdict director relative to battery. It's MAI then |
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