MLK Consipiracy Trial Transcript

THE CIRCUIT COURT OF SHELBY COUNTY, TENNESSEE

THIRTIETH JUDICIAL DISTRICT AT MEMPHIS

_____________________________________________

CORETTA SCOTT KING, MARTIN

LUTHER KING, III, BERNICE KING,

DEXTER SCOTT KING and YOLANDA KING,

Plaintiffs,

Vs. Case No. 97242-4 T.D.

LOYD JOWERS and OTHER UNKNOWN

CO-CONSPIRATORS,

Defendants.

_____________________________________________

BE IT REMEMBERED that the

above-captioned cause came on for Trial on

this, the 15th day of November, 1999, in the

above Court, before the Honorable James E.

Swearengen, Judge presiding, when and where

the following proceedings were had, to wit:

VOLUME I

DANIEL, DILLINGER, DOMINSKI,

RICHBERGER, WEATHERFORD & PARKER

COURT REPORTERS

22nd Floor, One Commerce Square

Memphis, Tennessee 38103

(901) 529-1999

DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD

(901) 529-1999

- APPEARANCES -

For the Plaintiffs:

MR. WILLIAM PEPPER

Attorney at Law

575 Madison Avenue, Suite 1006

New York, New York 10022

(212) 605-0515

For the Defendant:

MR. LEWIS K. GARRISON, Sr.

Attorney at Law

100 North Main Street, Suite 1025

Memphis, Tennessee 38103

(901) 527-6445

For The Commercial Appeal:

MR. LUCIAN T. PERA

Attorney at Law

Armstrong, Allen, Prewitt, Gentry

Johnston & Holmes, PLLC

80 Monroe Avenue, Suite 700

Nashville, Tennessee 38103

(901) 524-4948

Reported by:

MS. MARGIE J. ROUTHEAUX

Registered Professional Reporter

Daniel, Dillinger, Dominski,

Richberger & Weatherford

2200 One Commerce Square

Memphis, Tennessee 38103

DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD

(901) 529-1999

P R O C E E D I N G S

THE COURT: Mr. Garrison, are

you all ready?

MR. GARRISON: Ready.

THE COURT: Let me see the

lawyers in chambers before we get started.

(Brief break taken.)

THE COURT: All right. Are we

ready to proceed?

MR. GARRISON: Yes, sir.

THE COURT: If there are any

members of the media, we're going to ask you

to excuse yourself until after the jury

selection process. All right, Mr. Sheriff,

you can get us some jurors.

THE COURT: All right,

Mr. Pepper, who are these additional people

with you?

DR. PEPPER: They're all with

us, part of our team.

THE COURT: Are they going to

participate in the trial?

DR. PEPPER: Only as assistants,

that's all.

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THE COURT: I normally introduce

those parties who are going to participate.

And if they are, I need their names.

DR. PEPPER: You want me to

write them down for you, Your Honor?

THE COURT: That has dual

purposes -- for my convenience and then, in

addition to that, once we have called their

names, we're in a position to ask the jurors

if they're familiar with their names.

DR. PEPPER: Sure.

(Brief break taken.)

MR. PERA: Your Honor, for many

years -- and I should first say, Your Honor,

that all I know about this situation is what

I've learned in the last 15 minutes. But as

I say, for the record, I do represent The

Commercial Appeal. I'm a little out of

breath. But my name is Lucian Pera. And

since at least 1984 when the Supreme Court

decided the Press Enterprise case -- Press

Enterprise versus Superior Court of

California. And the cite on that I can give

you which is 464 U.S. 501.

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In 1984 the Supreme Court has

made it clear, as has virtually every court

in the nation -- has addressed the issue that

there is a constitutional right on the part

of members of the public and, therefore,

members of the press to attend jury voir dire

proceedings in court. I would add, Your

Honor, that in Tennessee there have been at

least two cases on this point -- I believe

three.

The first one of which is State

versus Drake which is a 1985 case which

squarely follows the analysis in what are

called the quartet of cases of which Press

Enterprise is a part from the U.S. Supreme

Court. And that case requires that if there

is a closure of any part of a trial that

there must be under the constitution specific

findings by the Court on a motion by a party

that there will be prejudice if there's not a

closure and specifically how the closure is

tailored as narrowly as possible to meet the

compelling interest of preventing prejudice.

The Supreme Court of Tennessee

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requires written findings. There have been

at least two other cases since then, Your

Honor. I don't -- I can't cite you the

precise name on this short of notice, but I

will remind the Court of one the Court may be

familiar with arising from this county. I

believe it was in front of a criminal court

judge across the street. And essentially

what happened is that there was -- it was a

rather horrible gang-related murder case.

In fact, it was one in which I

believe the victims were literally buried

alive. There were claims of misconduct

ongoing in the midst of the trial. In fact,

the Court itself was under 24-hour armed

guard at home and at the office -- at the

court. During the course of that trial, the

judge heard testimony from witnesses

obviously. And one of the witnesses who had

testified was to testify again.

The Court imposed a gag order

essentially closing the trial implicitly and

saying that the reporters might not print the

name of that witness who had already

DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD

(901) 529-1999

testified in open court and who was to

further testify as a rebuttal witness. The

Court expressed very specific concerns about

safety, that the witness might flee, that the

trial might be jeopardized for that reason.

And the Court of Appeals -- excuse

me, I think it was the Court of Criminal

Appeals -- specifically and flatly and firmly

reversed that ruling and said that what goes

on in open court is open, and the

constitution requires that it be so, and

again reaffirming State vs. Drake relying on

Press Enterprise.

So, Your Honor, with that thought in

mind -- again, I've not been privy to the

discussions here about what the problem were

that were sought to be addressed, and I

apologize to the Court for not being prepared

in that respect. But I would urge the Court

to not close this hearing to members of media

including my client, The Commercial Appeal.

THE COURT: All right.

MR. PERA: And, Your Honor, I

might finally request that in compliance with

DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD

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State versus Drake, whatever the Court's

decision there, that there be specific

findings of fact tailored to address the

issues under Press Enterprise.

THE COURT: All right. First of

all, I would like to refer you to Supreme

Court Rule 30, Media Guidelines, under

Section C(2) which reads as follows: "Jury

selection. Media coverage of jury selection

is prohibited."

MR. PERA: Your Honor, it's

my -- am I interrupting? I can look at the

rule, Your Honor, but it's my impression that

Rule 30 addresses television coverage and

similar media coverage. To the extent that

that rule, Your Honor, either says or is

interpreted to mean that voir dire may be

closed by a court without constitutional

foundation, the specifics which are very

clear -- I can cite them to the Court if I

can get my hands on State versus Drake.

If that rule says that or means that

or the Court interprets it to mean that, then

it is unconstitutional, Your Honor.

DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD

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THE COURT: Well, let me further

refer you to Section D, and that section

deals with limitations. And under 2 it says:

"Discretion of Presiding Judge." That's me.

"The presiding judge has the discretion to

refuse, limit, terminate or temporarily

suspend media coverage of an entire case or

portions thereof in order to 1.) Control the

conduct of proceedings before the Court.

2.) Maintain the quorum and prevent

distraction. 3.)" -- and this one I am

concerned with --"Guarantee the safety of any

party, witness or juror."

This case is such that I feel that

the jurors should be protected from public

scrutiny and that the public shall not be

aware of who they are. I don't want -- and

I'm going to assure them when we voir dire

them that they will remain anonymous. And

for that reason they will feel free to

participate in the trial process. That's my

ruling.

MR. PERA: Your Honor, may I be

heard on this point?

DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD

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THE COURT: No. I've ruled. I

have ruled.

MR. PERA: Okay. Your Honor,

meaning no disrespect, may I ask -- may I ask

a question?

THE COURT: Yes, sir.

MR. PERA: Has this Court

considered or has it been proposed to the

Court that the jurors remain anonymous and

therefore that proceedings be allowed to take

place in open court with, for example,

members of the public and/or media present

but nevertheless with the jurors remaining

anonymous? Has that been considered, Judge?

THE COURT: No, sir, because I

don't feel that that's a viable solution.

MR. PERA: May I ask a further

inquiry, Your Honor?

THE COURT: Yes, sir.

MR. PERA: Is it the Court's

ruling that the entire trial is going to be

held in secret?

THE COURT: No, sir. Once the

jury selection process is completed, then it

DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD

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will be open to the media as prescribed by

court rules with cameras and with reporters

and all of that. This court is not excluding

the media from the trial proceeding, but it

is excluding them from the jury selection

process.

MR. PERA: Well, Your Honor,

again -- the Court knows me, and the Court

knows that I'm not inclined to argue with a

ruling once it's been made. But since I'm

getting into this so late, Your Honor, I have

to inquire further. Your Honor, if -- I'm

not at all sure I understand how this is

tailored narrowly under the guidelines of the

constitution.

I mean, for example, Your Honor,

if -- if the identities of the jurors is what

the Court is trying to protect, then -- and

not, for example, their answers to the

questions of one of the parties as to their

particular biases or lack of biases, it seems

to me that the Court might consider having

the jurors, as has been done across the

country, I think the Court is probably aware

DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD

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of this -- having the jurors remain anonymous

and have the parties to the case and the

Court refer to them in whatever way would do

so anonymously but, nevertheless, allow the

questioning that goes to, for example,

bias -- their views on particular subjects to

be explored in open court as the constitution

requires.

I would urge that upon the Court as

a remedy that has been used elsewhere. And

it would not trample on the First Amendment

but it would, nevertheless, meet the Court's

concerns.

THE COURT: I'm going to deny

your request.

MR. PERA: Your Honor, when --

you're ruling then that until voir dire is

complete and the jury is sworn that this

hearing is closed both to members of the

press and the public?

THE COURT: I'm not excluding

the public, no, sir.

MR. PERA: So I can sit here for

example?

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THE COURT: You may, yes, sir.

But if you do, then you would be under a gag

order. As an officer of the Court you could

sit, yes, sir.

MR. PERA: But another member of

the public could be present and not be under

some sort of gag order?

THE COURT: I'm going to exclude

all members of the public, as a matter of

fact, during the jury selection process. I'm

not going to let reporters come in here and

say, at this time I'm not a reporter, I'm

just a member of John Q. Public.

MR. PERA: Okay, Your Honor. I

just wanted to make sure I understand your

ruling then. The hearing is closed to

members of the press and the public until the

jury is sworn.

THE COURT: And the public. And

the public, yes, sir.

MR. PERA: May I -- I assume

that what has transpired here so far, I'm

under no gag order; is that correct, Your

Honor? Because I may well be instructed by

DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD

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my client to pursue appellate relief.

THE COURT: You are free to do

that.

MR. PERA: Okay. I just want to

make sure that we understand each other.

Thank you. Appreciate it, Your Honor.

MR. GARRISON: In the Court's

ruling I think Your Honor did the proper

thing.

(Brief break taken.)

(By Order of the Court, the Jury

Selection portion of the trial was not

transcribed.)

* * *

MR. PERA: I would like to apply

for permission to appeal under Tennessee Rule

of Appellant Procedure 9 from the Court's

earlier ruling.

THE COURT: Oh, yes. Of course.

MR. PERA: Thank you, Your

Honor. I assumed so. Your Honor, may I

present an order on that either this

afternoon or in the morning?

THE COURT: You may.

DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD

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MR. PERA: Thank you, Your

Honor.

(Lunch Recess.)

(Jury Selection resumed.)

THE COURT: All right. Ladies

and Gentlemen, we have completed our

process. We have 12 jurors now and two are

alternates. So the rest of you I'm going to

excuse and thank you for your patience, and

you can report to the main jury room tomorrow

at 9:30.

All right. Now that we have

selected or jurors and alternates, we would

ask to you please stand and take the official

oath as jurors in the case.

THE CLERK: Ladies and

Gentlemen, please raise your right hand.

(Whereupon the jury was sworn

in.)

THE CLERK: Okay. Please be

seated.

THE COURT: All right. Normally

at this stage we would begin our trial which

would be the rendering of an opening

DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD

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statement by the lawyers. That is they would

tell you what they expect the proof to be as

it develops in the case, and then we would

start to hear the witnesses in the case. But

because of the hour, I'm going to excuse you

and ask you to be here tomorrow at 9:45 so

that we can get started promptly at 10

o'clock, reminding you that you should not

speak with the lawyers or the witnesses or

anyone else involved in the case and that you

should have no contact with the media.

I think -- I'll have some additional

instructions for you tomorrow before we start

to hear the proof. You should not go back to

the main jury room for any reason. You come

directly here from now on which means that

you don't report at the regular 9:30 thing

over there. Just come right here. Mr. James

will show you our jury facility back here,

and that's where you should congregate until

you come out as a group.

We would ask you -- sometimes the

jurors would sit out in the hall and do

things of that sort before the trial begins

DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD

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in a normal case. But because of the nature

of this one and because we don't want you to

be exposed to the media, we would ask you to

please not congregate in the hallways out

there. If there are smokers in the crowd,

then during our breaks, you can feel free to

go down and do your smoking or whatever else

just as long as you don't have any contact

with the media.

If we -- if for any reason we need

to take a comfort break on your behalf, we're

very considerate, we'll do that. We want

this to be a pleasant experience for you.

But it's a serious matter, and let's not

forget that. All right.

(Court adjourned until 11/16/99

at 10:00 a.m.)

DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD

(901) 529-1999