UNITED STATES OF AMERICA et al v. MICROSOFT CORPORATION
Filing
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. DARRYL M. WOODFORK, Defendant ................ : : : : : : : : Criminal No. 06-182 November 2, 2007 10:00 a.m. ............
TRANSCRIPT OF VICTIM IMPACT HEARING BEFORE THE HONORABLE JAMES ROBERTSON UNITED STATES DISTRICT JUDGE APPEARANCES: For the United States: MICHAEL BRITTIN, AUSA UNITED STATES ATTORNEY'S OFFICE 555 Fourth Street, NW Washington, D.C. 20530 MITCHELL MARK SELTZER, ESQUIRE 717 D Street, NW Suite 310 Washington , DC 20004 (202) 347-2333
For the Defendant:
Court Reporter:
REBECCA STONESTREET, RPR, CRR Official Court Reporter Room 6511, U.S. Courthouse Washington, D.C. 20001 (202) 354-3249
Proceedings reported by machine shorthand, transcript produced by computer-aided transcription.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT:
PROCEEDINGS This matter is under seal? Well, it's
under seal -- I mean, the case is under seal, but this is a victim impact proceeding. MR. DAVIS: I have no objection to unsealing the On behalf of Mr. Nelson,
testimony in this matter, Your Honor. Christopher Davis. MR. BRITTIN: proceeding. THE COURT: MR. DAVIS:
We would request that this be a public
We're missing a lawyer, aren't we? I just noticed that.
(OFF THE RECORD.) THE COURT: Mr. Seltzer and Mr. Dale, everybody except
you has been heard on the subject of whether or not these proceedings should be under seal. should not be under seal. and it should be public. MR. SELTZER: THE COURT: The consensus, I think, is it
This is a victim impact proceeding, Any objection?
No, Your Honor.
Let's open it up, open the door.
Will the clerk please call the cases. COURTROOM DEPUTY: Yes, Your Honor.
Criminal action 06-182, United States of America versus Darryl M. Woodfork. Michael Brittin for the government,
Mitchell Seltzer for the defense. And criminal action 06-165, United States of America
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versus Anthony J. Nelson.
Michael Brittin for the government,
Christopher Davis for the defense. THE COURT: This is a victim impact hearing conducted
under statutory authority requiring and permitting victims of violent crime to be heard so that the Court can take their statements into consideration when fashioning an appropriate sentence in the case. I see a number of people here in the courtroom. I'm
not quite sure whether they're all going to testify, or whether some are here to testify and some are here to listen, but Mr. Brittin, you may proceed. MR. BRITTIN: Thank you, Your Honor. Judge Robertson,
a fraction of the victims that figure into these cases are in your courtroom here today. 25 individuals here. We initially expected between 20 and
Some victim impact statements have been
received and submitted to the probation officers that you have assigned to prepare presentence reports for these two defendants, and we expect several others to be submitted between now and sentencing. There were some victims who could not attend, there were some victims who chose not to attend, and there were some victims who were afraid to attend. But all of the victims with
whom we had contact and who are not present today asked that I begin by expressing their appreciation to the Court for allowing them to be heard either through their victim impact statements
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or through an appearance before the Court. With the Court's permission, this is how the government would plan to proceed. And I've had a brief opportunity to I will call
discuss this with my colleagues for the defense:
forth individuals, roughly in chronological order pertaining to the crimes that figure into the respective pleas; I will briefly try to provide some context for the Court, because these pleas were rather comprehensive, and also make clear whether or not Mr. Woodfork, Mr. Nelson, or both figure into the crimes about which the victim is giving a statement; and then I will simply ask the victim, if this is acceptable with the Court, to approach the podium here and make whatever statement he or she would like. THE COURT: Fine. Your Honor, we fully expected at this
MR. BRITTIN:
hearing to have James Stevens, the father of Jerome Swales, or Jerry, present. We spoke to him as recently as yesterday, and
we're not sure -- he's an elderly gentleman, and we're not sure if he's simply delayed or not. January 23rd, 2003. Mr. Swales was killed on
Mr. Woodfork was not involved in that
crime; that murder was committed by Anthony Nelson. Detective Bernard Nelson from the Prince George's County police department was the lead investigator on that particular murder, and he joined a task force that put this whole case together. He is here, and in the absence of
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Mr. Stevens, I would ask the Court if it would allow Detective Nelson to say a word or two about the impact that this loss had on the family of Jerome Swales. MR. DAVIS: Your Honor, I didn't know that we were My
going to be doing this in that fashion this morning.
recollection -- and I haven't looked at the statute lately, but my recollection is that victim impact is limited to statements from the immediate family, and I'm a little bit cautious about allowing a law enforcement official to testify on behalf of the family for purposes of this hearing. Maybe in another context, maybe at sentencing, but for the purposes of a victim impact, I -- and again, I apologize. just didn't know we were going to be doing this -THE COURT: Well, I didn't know either. Do you have I
any authority for the proposition that the detective should be permitted to testify about the impact on the family, Mr. Brittin? You know, as interested as we all are in giving
the family the opportunity provided by statute to express themselves and their own feelings and the impact upon themselves, what we get from a police officer is not quite that. MR. BRITTIN: That's right, Your Honor. And the
governing statute, of course, is 18 U.S.C. Section 3771, and it defines a crime victim pretty much as counsel has suggested. says: "For the purposes of this chapter, the term 'crime It
victim' means a person directly and proximately harmed as a
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result of the commission of a federal offense or an offense in the District of Columbia." I take his objection, Your Honor, as well founded, and I'll move forward. THE COURT: Go ahead. Thank you, Your Honor.
MR. BRITTIN: Judge -THE COURT: objection. MR. BRITTIN: THE COURT:
I mean, I hear you to have conceded the
Yes, Your Honor. Go ahead.
So fine.
MR. BRITTIN:
Judge, on April 23, 2003, there was a
shooting at the heart of the Taft Terrace neighborhood outside the home of a captain with the Metro Transit Police. is William Malone. His name
Captain Malone and his wife Sandy Malone,
both of whom were victimized in that case, are present in the courtroom. This particular incident, Your Honor, figured into the plea by Mr. Woodfork. The government did not ask Mr. Nelson to
accept responsibility for this, although in debriefing he admitted his involvement in it in this sense: He provided a
gun, a .45-caliber revolver that in fact he had used just three months earlier to kill Jerome Swales, to Darryl Woodfork; Darryl Woodfork used that gun to shoot a car outside of Mr. and Mrs. Malone's home. Mr. Woodfork was accompanied by an
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individual by the name of Dominick Flowers, who also shot the car with a sawed-off shotgun. He was separately prosecuted
successfully in Superior Court. The context for this crime, Your Honor, is that Captain Malone and his then girlfriend, now wife, Sandy Malone, had just purchased a home in the Taft Terrace neighborhood, had moved in. Captain Malone, who was a very senior official with
the Metro Transit Police, discovered that there was a good deal of organized drug trafficking, and took it upon himself to attempt to disrupt that sometimes. retaliation for those activities. Captain Malone, would you step forward, please? MR. MALONE: THE COURT: MR. MALONE: THE COURT: MR. MALONE: Good morning, Your Honor. Good morning, sir. How are you today? I'm great. I'm good. How are you? This was an act in
I'm here today because I want to, number one, express appreciation to the United States Attorney Office for prosecuting these cases and really helping out our neighborhood. When we first moved into the neighborhood, there was illegal drug trade on several different corners. I'm the
evening watch commander for the Metro Transit Police, and my hours were 4:00 o'clock in the afternoon until about 2:00 o'clock in the morning. I noticed that my unmarked police
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vehicle that was assigned to me had a detrimental effect to this drug trade. And when I had spare time or when I started to go
on the street in the afternoons, that if I parked in certain locations, it would certainly disrupt the drug trade, and if not impact them one way or another, it would scare the customers coming to the neighborhood to buy the drugs. I had a couple of
encounters with motorcyclists who were racing around the neighborhood that were, I believe, involved in this also. wife was -- or then girlfriend, but now wife, was harassed verbally in front of our lawn while she was out doing garden work. On the night in question that they shot my truck, I was downtown at our headquarters building a few blocks from here. Sandy, she called me on the phone and said, "They're shooting at our house." She had been upstairs in our house working - she My
worked from home - and my truck was parked in front of the house. A car pulled up and they fired six rounds of handgun and
one blast from a sawed-off shotgun into the side of my truck, right in the driver's door area. This to me was an obvious
threat for me to back off or to quit being proactive in the neighborhood, calling the police or strategically parking my vehicle. This had an impact on our life tremendously. From that
day forward, if I walked to the car, if I cut the grass, if we used my hot tub in the back of the house, I kept a gun with me
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at all times.
Obviously, bold enough to shoot a police
officer's vehicle, bold enough to come after me. It also affected my wife greatly, and she'll tell you about that in a little bit. It kept us in the house, it kept us
from doing yard work, it put me on guard, and had an effect. But what really bothered me the most is I'm a police officer; I can be armed in the District of Columbia. neighbors can't. My
And they're at the will and mercy of the good
nature of the criminals in our neighborhood, and they're running around scared with absolutely no way to protect themselves. And
this is something that once people were starting to be arrested in our neighborhood, the people started coming back out and feeling much better about our neighborhood, and now today it's just tremendously better than it was when we first moved in. The removal of people from the street by the U.S. Attorney's Office and the federal prosecutors and the criminal justice system has had a tremendous impact. I just
want to assure you that the neighbors are behind the police and the U.S. Attorney's Office, and we would like to see these gentlemen sentenced to the maximum amount allowable by your sentencing guidelines and the law. remain nice. Now, I'm retiring 29 years after the police department. I'm going to Puerto Rico. I still have an interest in the We want our neighborhood to
neighborhood, and I want it to be good for my neighbors who are
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still living there.
So please see fit to give him what you feel
is appropriate, but I would stress the maximum amount allowable by law. THE COURT: Thank you, Captain. Judge Robertson, Sandy Nelson, who was in
MR. BRITTIN:
the house at the time of this incident, is also present and has asked to address the Court. THE COURT: MS. NELSON: All right. Sandy Nelson? I bought
Thank you for this opportunity.
my first home in the Taft Terrace neighborhood.
We weren't
married yet, and I bought it for myself and I was so excited about it. We had only been there a couple of months and we
started to notice there were some problems up on the corner. And we were greeted like heroes when we moved into the neighborhood, because our neighbors were so excited to have a cop on the block. They're, like, "oh, yeah" -- we said, "we When the weather got good, the
don't see any problems."
problems started, and the neighbors are, like, "there's a police officer on the block." And we moved in, and it was my first house, and I was so excited, working in the yard. And it was April, we had only
been there two months, and it was 11:00 o'clock at night, and I'm home alone every evening because my husband works. protecting these people and their families. He's out
And I'm home alone,
11:00 o'clock at night, I watch the news, it was lame, I changed
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the channel.
It was about 11:04, 11:05.
All of a sudden I
heard bang, bang, bang, bang, bang, bang, and then boom. Now, I grew up in Potomac, okay? And I've lived on
Capitol Hill and heard gunshots, but when it's coming right at your house, it's a different sound. And I was in a side window,
and I looked and I saw the flash from the shotgun, and everything kind of came together at once and I hit the deck, I got under my desk. It was one of those, like, cartoon scenes; I
I'm reaching on the top of the desk trying to find a phone. swept everything off the desk, grabbed the phone, called 911, they put me on hold.
And as I'm on hold, I'm calling my husband, going, "Oh, my god, they're shooting at us." what's going on. I'm trying to explain to 911 I
"Ma'am, are they still shooting at you?"
mean, I had heard car tires squealing away; I don't know what's going on outside. But I'm home alone, I've heard smashing
glass; we have a big bay window in the front of the house, and I didn't know if that had gone, I didn't know what had broken. was scared to death. And I called 911, and the minute I hung up the phone, my neighbor called and she said, "Sandy, they're shooting at you. Get in the stairwell because it's the only place without So I hid in the stairwell until the police arrived. And I went I
windows."
And I've never been so happy to hear sirens.
outside, and -- he was talking about they shot at the cars.
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Well, they did shoot at the cars, but they also hit our house, they also hit our next door neighbor's house. bullets out of the air conditioning unit. We were digging
They shot at -- they
could have very easily shot us, they could have shot the dog in the window; absolutely no care whatsoever for what was going on. And, you know, I hadn't done anything to these people. The police investigated, and first they arrested Dominick Flowers, and for a long time Darryl Woodfork was out there. D. We didn't know who he was, we just knew he was known as I
I couldn't garden, I couldn't go out in my yard alone.
can't carry a gun, but I couldn't go any place without my husband because we didn't know what to do. The D.C. Police sent in a threat assessment team. They
had us spend $3,000 upgrading our security system, and they told us to move because they hadn't caught this guy yet, and there are murders all over the neighborhood and it's not safe to be there. It's like I spent $270,000 on this house, I have an FHA
loan, which means I can't sell it for two years and I can't rent it for two years; I have to live it in for the first two years. We had no choice. I had to be medicated on Valium and Xanax, which I've never been on that kind of medicine in my life. I was afraid to
take a shower when my husband wasn't home because I was afraid I wouldn't hear something if something happened. We had built a fabulous back deck and put in a
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10-person hot tub with the intention of doing a lot of entertaining, and it's not a lot of fun to entertain when your husband has to have his gun sitting next to the hot tub the whole time. afraid. Our friends wouldn't come to our house. People are
The neighbors that had children sort of shied away.
They were still glad we were there, but they were scared, because now, instead of scaring away the bad guys, we were actually drawing gun fire. horrible. I didn't sleep for months. a lobbyist with a large corporation. It affected my job. I was It was horrible. It was absolutely
Thanks to the corporation,
I made it through with my job intact, but barely. And all this because we decided to move into the city because my husband thinks it's important that some of the police officers in the city actually live in the city. And most of the
actual officers can't afford to live in the city, so if officials don't do it, there's no cops. And it never got better for us. You know, for several
months after -- you know, the other guy, Dominick Flowers, we kept seeing him around our house and in the neighborhood even though he had a stay-away order. We didn't know who this other
guy was, and we finally found out he was in jail for killing people. Well, that sent me back into the shrink's office. It's been a horrible experience. We decided that we
were going to sell the house as soon as we could because it's
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not going to get better.
You don't get over that.
Being home
alone at night -- I didn't know if Bill was coming in the door and somebody had shot him on the front steps on the way in. didn't know what had happened. I
In that five-minute period where
I was waiting for the police to get there, my entire world collapsed. And my husband, we made a decision before we -- first off, that we would get the hell out of there as soon as we could; but secondly, that we would definitely sell the house or leave one way or the other before he retired. Because even
though he can keep a weapon now that they've passed H.R. 218, that's fine, but I want an arsenal in our house. So he's retiring December 1st and we're closing on our house this afternoon. We're leaving. We tried. And I have had
neighbors actually cry because we're leaving; like, oh, my god, it's all going to go to hell again. what? And I said, no, you know
No, it's not, because an awful lot of these people have
been arrested and they're going to jail and they are never getting out. And I've made that promise to my neighbors, and I I'm really sad
don't want the last three years to go to waste. that we're leaving. up. I feel like we quit.
I feel like we gave
You know, my neighbors all joked, "Oh, my god, you're pioneers, white people moving in on the block, a cop in the neighborhood." The neighborhood has gotten so much better, and
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it's integrated and it's diversified and there's older people and there's people with little children, and it's gotten so much better. But what these people have done is they've created a And everyone is afraid. They have absolutely no redeeming
culture of fear.
And you know what? social value.
They don't contribute to society, they're not
doing anything positive in this world, and all of us are working and trying to buy homes and live happily. So I just urge you to do everything in your power to make sure that these men never make it out. be put back into society. after what they've done. They never should
They shouldn't be allowed to live They've done much worse things to
other people than me, and I am a strong woman with several degrees and a serious career. I own my own company now, and
just thinking about this -- I haven't slept all week knowing I had to do this today, and I feel the same way as we go into the next phase of this. So I just urge you to do everything possible to try and make people feel a little safer in their neighborhoods. THE COURT: Thank you very much, Ms. Nelson. Judge Robertson, the next crime that will
MR. BRITTIN:
be the subject of this hearing took place in North Carolina on December 24th, Christmas Eve, 2003. Both Mr. Woodfork and
Mr. Nelson as a racketeering predicate acknowledged responsibility for traveling to that state and committing with
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others down there a burglary. The victim of the burglary was Darryl Woodfork's paternal aunt, who was visiting his mother and father here in the Washington area at the time. That predicate act was framed
as an interstate travel in aid of racketeering, and again, involved both defendants. The Court will ultimately receive a number of victim impact statements. I wanted for the record at this hearing --
because it leads directly into the individuals you're going to hear from next, I wanted to read into the record some of the statements made by Diann Jarrell Faulcone, who was the woman whose home was burglarized. She's an elderly woman, Your Honor, and her health did not permit her to travel. But she wanted to be heard. And in
her statement, she told the Court this: "This crime was real scary and fearful for me. experienced anything like this before. I came up to While I never
Washington, D.C. to visit my brother for Christmas 2003.
I was in Washington, my brother's stepson, Darryl Woodfork, traveled to my home in North Carolina and burglarized my home. He stole old money, a gun, a pistol, a rifle, jewelry, two safes - one with important papers, another with money - and a Playstation. He took many physical possessions from my home, but most importantly he took my sense of safety. He stole the
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window air conditioner, he shot at the home, he shot at the freezer. The hole is still there. That is the point: He stole
from my home and he shot at the back of my home and made two holes, one on the top of the freezer and the other on the wall in the back room. I thought the people or persons who did this were going to come back and get me. This is a horrible feeling to have.
I've lived in my house for 30 years and I live in a quiet neighborhood, mostly around my family. I tried to put this This was the first
crime behind me unless someone mentions it.
and only time in my life that I've been victimized. After this crime I had nightmares and I had to be hospitalized. The nightmares and the fear caused my head to be
stressed, and I had to be put in the hospital for two weeks. I'm on disability because of my heart, and I am a senior citizen and I was a senior citizen in 2003." As I indicated, Your Honor, this occurred on December 24, 2003. By December 25, 2003, Mr. Nelson and One of the
Mr. Woodfork were back in the District of Columbia.
items they obtained in the burglary was a Colt .32-caliber revolver, and that particular gun was one of four weapons that was used to kill Damian May, who was killed on January 7, 2004. Both Mr. Woodfork and Mr. Nelson accepted responsibility for that murder. guns. Each one was armed with two
Mr. May was killed, Your Honor, because he was suspected
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of having committed a crime in the Taft neighborhood on December 28th, 2003, some 10 days earlier. And the evidence
developed and acknowledged by both defendants here is that after that date, December 28th, there was an ongoing hunt to find Damian May and to kill him for his offense to the Taft enterprise and committed in the Taft neighborhood. Damian May, Your Honor, was the only child of Joanne Washington, and Ms. Washington, who has an interesting story to tell in her own right about her own life, is here to advise the Court about the impact that the loss of her son has had on her life. THE COURT: I'll hear from Ms. Washington.
Good morning, ma'am. MS. WASHINGTON: Good morning, Your Honor. My name is I'm
Joanne Washington, this is my fiance' Gerald Archie (ph). the mother of Damian Edwin Washington May. I apologize to the Court and all of you.
I'm very nervous, so
But I stand here before you today to speak on behalf of my son, Damian May, whose life you took at an early age. do this because I know Damian would want me to speak. speaking on behalf of his three young children. And I
I'm also
The youngest
never had a chance to hear his father's voice or to feel his touch, and because of you, his children will never see or hear him again. Three years ago, when you took Damian from our family,
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you destroyed my reason for living.
Not only did you kill my I
only child, but sometimes I feel like you killed me as well. have a big hole in my heart, and I feel like I can't go on without Damian in my life.
There are times when I remember his
smile and his expression telling a silly joke, and because of you I will never see or hear him again. Damian was a very good Christian young man, so I know in my heart which direction he went when you took him away from us, and that eases my pain. Like a lot of black men in our
city, he had his struggles, and like most parents, I pray for an end to the violence that is killing our young people. I'm a Christian woman, and I know that I should forgive you, but I can't find it in my heart to do so yet. I hope you
get the maximum sentence possible for taking my son away from his children and my family. Given the violence in this city, we
must make an example out of people like you who kill without caring about the life of another human being. I do pray for your family, and I pray for other parents who lose loved ones because of the violence committed by individuals like you. You took my son, and because of you I Thank you.
will never feel his hug again. THE COURT:
Thank you, Ms. Washington. Judge Robertson, Ms. Washington advised
MR. BRITTIN:
the Court that Damian May had three young children, one of whom was born after he died. The mother of his three children is
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named Coriana (ph) Hughes, and she is present as well. THE COURT: Does she wish to speak? Yes, she does.
MR. BRITTIN: THE COURT: MS. HUGHES:
Ms. Hughes? Good morning. My name is Coriana Hughes.
I am the mother of Damian Edwin May's three children. When I got the phone call January 7th, 2004, I was four months pregnant with the youngest child. kept saying, "No, it's not. I fell to my knees and When I got there,
It's not him."
the detectives and police officers, everyone just tried to calm me down. I was really, really upset. I fell out, I passed out.
I mean, I was going through -- I've been through so much since he's been gone. since he's been gone. not complete. happen. He was my world. My three kids will no longer be able And it's hard. It's hard for I've actually been through too much
Without him, I feel like my life is just
I'm still trying to figure out how could this
to see their father ever again.
me to actually believe that -- he never took anyone's life, so for someone to take his life, I could never understand it. will never understand it. I'm still not at ease with this. I
I am pleased with the sentence that these gentlemen will get, but it's hard for me. It is very hard for me. I'm
only 24 years old with three kids, no kids' father. care of them on my own.
I must take
I'm pleased with the sentence that
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these young men will get. Thank you. THE COURT:
Hopefully we will have justice.
Thank you, ma'am. The shooting in the Taft Terrace
MR. BRITTIN:
neighborhood on December 28th, 2003 that triggered the conspiracy that took the life of Damian May also resulted in the murder of Clabe Walker. Members of the Taft enterprise, in
talking about the offense committed in that neighborhood on December 28th, concluded, or at least some of them concluded, that Clabe Walker also had a role in that and had to pay with his life. Their supposition in that regard was incorrect. Mr. Walker had nothing at all to do with the offense in the Taft neighborhood on the night of December 28th, 2003, and so his murder is particularly tragic. Your Honor, Clabe Walker's
parents, Doris and Clabe Walker, are present in the courtroom. They had three children. murdered in 2001. Their first son, Kenny Walker, was Clabe Walker was
That case is still open.
killed less than 24 hours after Damian May in the early morning hours of January 8, 2004. I also want to recognize Clabe Walker's girlfriend, Prashita (ph) Johnson, who is present, but has advised me that she is too nervous to address the Court. Doris Walker, Your Honor, would like to address the Court.
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THE COURT: MS. WALKER: THE COURT: MS. WALKER: THE COURT: MS. WALKER:
I will be happy to hear from Doris Walker. Good morning, Your Honor. Good morning, Ms. Walker. I'm nervous, so bear with me for a minute. Take your time. Your Honor, my family has been through a
lot, from my husband becoming handicapped when my kids were young, to me losing my first son at just 24 years old. than three years later, I lost another son, Clabe. Less
That was a I have a
senseless, senseless act that has destroyed my family.
10-year-old who has lost two brothers, and he's constantly reminding me he wants a brother, he wants -THE COURT: MS. WALKER: He wants to what? He wants a brother. He can't understand
why he don't have his brothers. never see their father.
I have four grandkids who will
I feel that Mr. Woodfork should be sentenced to the full extent of the law. For what he's done to my family, he
should never ever be allowed to set foot outside of a jail again. Because it was just -- it was senseless. There's no
excuse for what he did. That's all I have to say. Do you have anything you want to say? MR. WALKER: Your Honor, I would like to see him get
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THE COURT:
I understand.
Thank you.
MR. BRITTIN:
Judge Robertson, on behalf of the
victims, or their representatives who are present in your courtroom today, and also those who are not present - and there are many in that category - the government thanks you for the Court's time and attention. And that is all the evidence or
statements that we have to offer today. THE COURT: All right. Well, I don't think it's
appropriate for me to say anything at this point about the sentencing. The sentencing is the next step of this procedure.
But I do want the victims to know that I have heard them clearly, and respect what they've said. I don't know if the defense has anything to say at this point, or wishes to be heard about anything. MR. DALE: Your Honor, if it please the Court,
Mr. Woodfork would very briefly like to say through the Court to the victims how sorry he is while they're here. DEFENDANT DARRYL WOODFORK: I know I've committed the I
worst possible sin by taking the life of your loved ones. come in front of you and recognize I have caused you great, great pain.
There is no way I can truly understand the full
weight of that pain on you, but I know I was very -- I mean, I was very wrong. I have now learned to act nonviolently and to react to I wish I had learned to do so earlier in my life. From
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the bottom of my heart, I am truly sorry and ask for your forgiveness. Thank you. Anything further from the defense side? Nothing further, Your Honor. Well, this is a remarkable kind of a court It may seem to you to be We're
THE COURT: MR. DAVIS: THE COURT:
proceeding, ladies and gentlemen. remote and cold. adjourned. It's not.
Thank you very much.
(BENCH CONFERENCE ON THE RECORD.) MR. DAVIS: Your Honor, I wanted to approach the Court
outside of the presence of the victim's family because I don't think this is appropriate to do on their day in court here. But last week, on October 22nd, there was a mitigation hearing held on behalf of Mr. Nelson, and at that time there was reference to a social history and neglect file that existed with respect to Mr. Nelson which to a large degree the sentencing memorandum was based on. And at this time I would like to move this as an exhibit. I have a CD with those records on it, and I would like
to have it labeled as a Defendant's Exhibit, whatever the next exhibit was from that hearing, and move it into the evidence, with the understanding that this will remain sealed. THE COURT: The CD will remain sealed, will be given an Thank
exhibit number, and will be received for the record, sir. you.
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(END BENCH CONFERENCE.) THE COURT: You had another matter, Mr. Seltzer? Yes.
MR. SELTZER: THE COURT:
I think the people from the community, the
victims that are here, should understand that these little side-bar conferences with the husher on do not change or affect anything that has just happened here. They're about technical,
administrative sides of the case that you don't need to hear. But I don't want you to think that we're doing something in secret up here, it's just that it's an administrative part of the case. (BENCH CONFERENCE ON THE RECORD.) MR. SELTZER: Good morning, Your Honor. And I
apologize, I haven't really had a chance to talk to Mr. Brittin. But earlier in the case I had a neuropsychologist examine my client, who did a lot of testing and came to a lot of conclusions; at that time did not put it in writing. I have since talked to her. She thinks given that
those tests took place a year, a year and a half ago, that she would like to repeat some of the tests. She did make findings,
and there is materially on the record that he at one time was classified as mildly retarded and that he may have some left brain dysfunction. I know this is no longer a death proceeding,
but obviously there is a lot at stake and a lot of different factors.
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For all those reasons, I'm going to request a postponement. She's also not available on the day set for the
mitigation hearing, and I would probably have her testify. For all those reasons, I think I'm going to need about another 60 days to have her come in. There may possibly be I just want
another neurologist to look at him briefly, also. to make sure we have everything before the Court. I will say that I have -THE COURT:
Well, she did an examination a year ago.
What effect, if any, on the sentence would any change after a year -MR. SELTZER: Well, I guess in theory it could go to It's also, frankly -- it's
whether he's being rehabilitated. more confirmatory.
I mean, for instance, I think typically, if
she were a witness in a contested proceeding - this proceeding may or may not be contested - that would be something the other side would jump all over, this sort of old material. I mean, you previously, frankly, approved her for -she's only used a tiny fraction of her hours. THE COURT: Yeah, I know. But we had a mitigation
MR. SELTZER:
No, we didn't.
That's what I'm saying.
We never had a mitigation hearing. THE COURT: We did not have a mitigation hearing? No. That's what I'm talking about. So
MR. SELTZER:
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this is in anticipation of a mitigation hearing. THE COURT: Which is set for when? It's set for December 7th. What I'm
MR. SELTZER:
saying is we need about two more months than that. I will also say that I have worked closely with Ms. Panzer, who is here. She has interviewed Darryl. I think
she's probably going to need more time to talk to him again to also review some of these materials. So this is not an attempt to delay anything. want this over. We all
But on the other hand, I don't think it's
realistic that we'll be ready for mitigation on December 7th. THE COURT: position? MR. BRITTIN: Judge, we would not expect to vigorously Mr. Brittin, what's the government's
contest proof presented by the defense in support of mitigation, if we would contest it at all. Having said that, we do not object, Your Honor, if the Court deems this additional information necessary for the purposes of sentencing. THE COURT: Well, I don't deem it necessary for It has yet to be shown to me that it
purposes of sentencing.
has really much at all to do with sentencing. She can testify based on what she's already done, can she not? MR. SELTZER: First of all, as a purely technical
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matter, she's not available on that date, period. THE COURT: How about the day after that? Well, it's a Friday.
MR. SELTZER:
But with all due respect, Your Honor, everybody here has tried to do everything expeditiously, this case was resolved, fortunately, with a lot of good help from Mr. Brittin, keeping in mind my client did also cooperate. I mean, frankly, if it turns out he has some type of serious brain dysfunction and we don't get to introduce that, then you're starting to talk about issues of ineffectiveness on our part. I'm just asking the Court just to be patient with us
for about another 60 days -THE COURT: the wrong day. MR. SELTZER: THE COURT: I know. I know. Well, your problem is you're asking me on
I've just heard from victims who are here
asking for justice, and they don't -MR. SELTZER: Well, they know Mr. Woodfork is not going
anywhere, and frankly, to be really candid about it, it's all the more reason he's entitled to a full hearing. We've heard
the really ugly side of it; we're entitled to present his background, including any brain dysfunction and/or mental health issues. land. I mean, Mr. Woodfork knows he's not walking in and out That's going to be, we hope, critical to where you
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of any doors in the near future. having the full picture.
This is just a matter of you
I frankly anticipated that this was
not a good day to ask about this, but as a practical matter we have to ask today because it's only a few weeks down the line. THE COURT: MR. DALE: Have we set a date for sentencing? We have, Your Honor. December 14th.
MR. SELTZER:
The idea was on the 7th -- we have not On the 7th we have the mitigation What I'm
had any mitigation hearing.
hearing, and a week later the actual sentencing.
saying is there's no way we'll be ready for the mitigation hearing. I would ask the Court if they would like to inquire of probation, because frankly I think they also need additional time to have this matter ready. THE COURT: MS. PANZER: This is not the ordinary --
How much time do you need, Ms. Panzer? We're getting some of the reports from the I mean, it's due for
psychologist today from defense counsel. disclosure next week.
If the Court -- would I like to have more time?
Sure.
But certainly we'll comply with whatever the Court's order is. THE COURT: longer. All right. This is not a capital case any
I'll give you a continuance, but it's not going to be a I don't have 60 days. I'm going to be gone
60-day continuance.
the entire month of February, and we're going to get this done in January.
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MR. SELTZER: THE COURT:
Very well.
You work out a date, two dates for
mitigation and then sentencing in January, and work them out with Mr. Brittin, and we'll reset it when my courtroom deputy gets back. He's not here today. You can work with him next
week and we'll set up two dates in January. MR. SELTZER: MR. DALE: Very well. Thank you.
Just for my scheduling purposes, I can use
those two dates we have now for other matters? THE COURT: Yes.
(END BENCH CONFERENCE.) THE COURT: adjourned. If there's nothing further, we are
Thank you once again to the members of the community
and the family who came down here to speak this morning. (Proceedings adjourned at 11:00 a.m.)
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CERTIFICATE OF OFFICIAL COURT REPORTER
I, Rebecca Stonestreet, certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.
_______________________________ SIGNATURE OF COURT REPORTER
_________ DATE
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