!I :5 THE COURT: LADIES MADAM FORELADY, AND GENTLEMEN ...

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PAGE 857
(CONVENED AT 12:20 AM)
THE COURT: MADAM FORELADY, LADIES
AND GENTLEMEN, THANK YOU VERY MUCH. YOU MAY
BE SEATED. WE'LL COMMENCE THE DEFENSE CASE.
THE CLERK: MR. ALOISE.
MR. ALOISE: DEFENDANT WOULD CALL
MR. JOHN HAYES. DOWN THE END OF THE HALL.
BAR?
MR. BALL: COULD WE BE HEARD AT SIDE
THE COURT: YES.
(SIDE BAR NOT TAKEN)
(JOHN HAYES, A WITNESS CALLED BY THE
DEFENDANT, WAS SWORN AND TESTIFIED AS
FCLLOWS: )
BY MR. ALOISE:
DIRECT EXAMINATION
SIR, WOULD YOU PLEASE IDENTIFY YOURSELF FOR
THE COURT AND JURY, AND SPELL YOUR LAST NAME
FOR THE RECORD AND TRY TO KEEP YOUR VOICE UP
SO EVERYBODY CAN HEAR YOU IN A BIG ROOM?
JOHN HAYES, H-A-Y-E-S.
YOU GOT TO DO BETTER THAN THAT?
JOHN HAYES, H-A-Y-E-S.
WHERE DO YOU LIVE, MR. HAYES?
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6 WEST LAKE STREET.
WHERE?
WORCESTER, MASSACHUSETTS.
WITH WHOM DO YOU LIVE?
WITH MY FATHER.
HOW OLD ARE YOU, MR. HAYES?
22 .
ARE YOU CURRENTLY EMPLOYED?
YES, I AM.
AND WHERE ARE YOU EMPLOYED?
I WORK AT A CARPET CLEANING BUSINESS,
PELLIGRINO CARPET CLEANING.
PAGE 858
CARPET CLEANING. AND, SIR, COULD YOU TELL ME
BEFORE -- SOME WEEKS AGO, WEEK AND A HALF, TWO
WEEKS AGO, DID YOU RECEIVE A SUBPOENA TO
APPEAR HERE TODAY?
YES.
DID YOU BRING A COpy OF THAT SUBPOENA WITH
YOU?
YES, I DID.
CAN I SEE IT, PLEASE.
(COMPLYING) .
AND FROM YOUR REVIEW OF THAT SUBPOENA DOES IT
HAVE MY NAME AND OFFICE ADDRESS AND TELEPHONE

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NUMBER ON IT, SIR?
YES, IT DOES.
THE FLOOR?
MR. BALL:
THE COURT:
MR. BALL:
THE COURT:
MR. BALL:
OBJECTION.
PAGE 859
IS THERE AN OBJECTION ON
YES.
HERE UNDER SUMMONS ALWAYS.
THE COURT:
WHAT DO YOU SAY?
MR. ALOISE:
BAR, YOUR HONOR?
THE COURT:
MR. ALOISE:
WHAT IS YOUR OBJECTION?
OBVIOUSLY WITNESSES ARE
THANK YOU. MR. ALOISE,
MAY I APPROACH THE SIDE
YES.
(SIDE BAR CONFERENCE)
THERE IS A FOUNDATION
QUESTION TO ESTABLISH THAT MR. HAYES BEFORE
THIS INCIDENT NEVER KNEW MR. ELBERRY OR MR.
KING OR ME OR ANYBODY ELSE, ANTICIPATING SOME
QUESTIONS BY MR. BALL.
THE COURT:
MR. ALOISE:
JUST ASK HIM THAT.
I THOUGHT HE MIGHT
OBJECT ON LEADING AND I DECIDED TO LAY A
FOUNDATION QUESTION. BUT THAT IS ALL IT WAS,
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1 NOTHING ELSE.
2 THE COURT: YOU CAN ASK HIM 'WHO
3 SUMMONSED HIM. I GOT NO PROBLEM WITH THAT.
PA 860 ,I
4 MR. BALL: HE ALREADY DID. .ARE WE
5 GOING TO INTRODUCE THE SUMMONS OR WHAT?
6 MR. ALOISE: NOT REALLY.
7 THE COURT: I DON'T KNOW WHAT YOU
8 ARE TRYING TO DO. THAT IS OKAY. I WILL TELL
9 YOU WHAT, LET'S TRY TO ABBREVIATE AS MUCH AS
10 POSSIBLE.
11 MR. BALL: ASK HIM IF HE EVER KNEW
12 ANYBODY.
13 THE COURT: IF HE OBJECTS, YOU MAY
14 HAVE TO GO BACK. BUT LET'S TRY IT THAT WAY
15 FIRST.
16 (SIDE BAR ENDED)
17 THE COURT: JUST ONE SECOND,
18 PLEASE.
19 COURT OFFICER: (CONFERRING WITH A
20 JUROR) .
21 THE COURT: OKAY. MR. COURT
22 OFFICER, SIDE BAR, PLEASE.
23 (SIDE BAR CONFERENCE)
24
THE COURT: LET THE RECORD REFLECT

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PAGE 861
1 THAT THE FOREPERSON OF THE JURY ASKED THE
2 COURT OFFICER TO COME OVER AND WHISPERED
3 SOMETHING TO HIM. NOW WE WERE AT SIDE BAR.
4 COURT OFFICER: SHE SAYS THAT THEY
5 CLAIM THAT HE WAS HERE LISTENING TO TESTIMONY
6 YESTERDAY. THEY SAW HIM IN HERE LISTENING TO
7 TESTIMONY YESTERDAY.
8 THE COURT: OKAY. WHAT DO YOU SAY,
9 MR. ALOISE?
10 MR. ALOISE: I HAVE NO KNOWLEDGE OF
11 HIM BEING HERE.
12 MR. BALL: I THINK WE SHOULD
13 INQUIRE.
14 THE COURT: I THINK WE SHOULD. WHAT
15 WE'LL DO AT THIS POINT IS TAKE THE JURY OUT
16 AND HAVE A VOIR DIRE. FOR THE RECORD I HAVE
17 NO MEMORY OF THE GENTLEMAN BEING HERE.
18 COURT OFFICER: I AM ONLY HERE FOR
19 HALF A DAY.
20 MR. ALOISE: DEPENDING ON THAT
21 ISSUE, THEN I MAY WANT YOU CONSIDERING
22 QUESTIONING THE JUROR WHETHER OR NOT THAT
23 EFFECTS THEM AT ALL. ASSUMING THAT HE WAS NOT
24 HERE, AND I HAVE NOT KNOWLEDGE THAT HE WAS, I

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1 MET HIM FOR FIRST TIME A HALF HOUR AGO.
A COUPLE OF THEM THAT THEY SEEN HIM IN HERE.
THE COURT: SO THEY HAVE TALKED
ABOUT IT. WELL, OKAY. LET'S CROSS THAT
PAGE 862
2 COURT OFFICER: SHE SAID THERE WERE
3
4
5
6 BRIDGE WHEN WE COME TO IT. I'LL ACCEPT YOUR
7
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8 yOU.
SUGGESTION IF WE HAVE TO GO THAT ROUTE. THANK
9 (SIDE BAR ENDED)
10 THE COURT: LADIES AND GENTLEMEN,
11 THANK YOU FOR YOUR VIGILANCE AND I AM GOING TO
12 ASK yOU TO LEAVE THE COURTROOM NOW WHILE WE
13 ADDRESS THE MATTER. OKAY. AND I WOULD ASK
14 yOU NOT TO DISCUSS THIS MATTER OR ANYTHING TO
15 DO WITH THE CASE AMONG YOURSELVES WHEN YOU GO
16 UPSTAIRS IN THE HOPEFULLY BRIEF PERIOD OF TIME
I
17 ' IT TAKES TO US EXAMINE THE QUESTION. OKAY.
18 THANK YOU VERY MUCH.
19
20 I
(JURORS LEAVING COURTROOM)
THE CLERK: MAY THE RECORD REFLECT
21 THAT THE JURY HAS LEFT THE ROOM.
22 THE COURT: ALL RIGHT. MR. ALOISE,
23 THIS IS YOUR WITNESS, AND COUNSEL ARE
24 RESPONSIBLE UNDER THE SEQUESTRATION ORDER. SO

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I THINK WE'LL LET YOU HEAD OFF WITH ANY
PAGE 863
QUESTIONS YOU MIGHT CARE TO ASK AT THIS POINT,
ANY NON-LEADING QUESTIONS.
DIRECT EXAMINATION BY MR. ALOISE
MR. HAYES, PRIOR TO THIS MORNING OR PRIOR TO
APPROXIMATELY 10:30, QUARTER OF ELEVEN THIS
MORNING, HAD YOU COME TO THE COURT HOUSE HERE
PRIOR TO THIS MORNING TO APPEAR FOR THIS CASE?
NO.
WHAT TIME DID YOU ARRIVE HERE THIS MORNING,
SIR?
THE COURT: I AM NOT SO SURE THAT
CLOCK IS ACCURATE. DON'T PAY ATTENTION TO THE
CLOCK ON THE WALL.
IT WAS FIVE OF TEN. AND I WASN'T LOOKING AT
IT.
WERE YOU HERE YESTERDAY?
NO.
COULD YOU TELL US, SIR, WHETHER OR NOT YOU
CAME HERE AT 10 O'CLOCK THIS MORNING OR
THEREABOUTS FOR ANY PARTICULAR REASON? WERE
YOU CONTACTED BY MY OFFICE IN ANY WAY?
YEAH. YOUR SECRETARY CALLED AND TOLD ME TO BE
HERE FOR 10 O'CLOCK. SHE CALLED ME A LITTLE

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PAGE 867
1 CLEAR THE EVIDENCE IS THAT HE WAS NOT HERE.
2 THE COURT: YES.
3 !
MR. ALOISE: AND I AM SURE THAT IT
4 IS AN HONEST MISTAKE ON THE PART OF THE
5 JURORS, BUT I'M CONCERNED. WHAT I WOULD LIKE
6 TO ASK THE COURT TO DO IS TO CONDUCT AN
7 INDIVIDUAL VOIR DIRE OF EACH OF THE JURORS
8
9
SEPARATELY AND TELL THEM FIRST THAT -- THAT IT
HAS BEEN FOUND THAT HE WAS NOT HERE, THAT THEY
10 ARE MISTAKEN, IF THAT IS WHAT THEY FELT, AND
11 THAT THEY ARE ORDERED TO DISREGARD THAT; AND
12 ASK THEM WHETHER OR NOT THEY CAN DISREGARD
13 THEIR NO DOUBT HONEST BELIEF THAT HE WAS HERE,
14
15
16
BUT HE WAS NOT. IF THEY CAN'T DO THAT, THEN
THEY OUGHT TO LET YOU KNOW RIGHT NOW. I'M
CONCERNED THAT THIS IS A PRINCIPAL WITNESS FOR
17 THE DEFENSE. AND IF THEY HAVE A BELIEF,
18 MISTAKEN THOUGH IT MAY BE, THAT EFFECTS THEIR
19 ABILITY TO ACCEPT THIS EVIDENCE, IT IS HIGHLY
20 PREJUDICIAL TO THE DEFENDANT.
21 THE COURT: WHAT DO YOU SAY?
22 MR. BALL: I AGREE. I THINK IT WAS
23 JUST A MISTAKE ON THE PART OF THE JURORS THAT
24 THEY THOUGHT THIS PERSON WAS HERE. I HOWEVER

I DON'T SEE WHERE IT WOULD EFFECT THEIR
PAGE 868
,
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2 HIGH CONCERN. I THINK IT WAS MORE THE JURORS
3 JUST KNOWING THAT THERE WAS A SEQUESTRATION
4 ORDER AND WANTED TO BRING IT TO THE COURT'S
5 ATTENTION. I HAVE NO OBJECTION, IN FACT, I
6 WOULD ASK THE COURT ALSO TO TELL THE JURORS, I
7 DON'T THINK AN INDIVIDUAL VOIR DIRE IS
8 NECESSARY, TO TELL THE JURORS THAT I'M IN
9 AGREEMENT, THE COURT IS IN AGREEMENT, MR.
10 ALOISE IS IN AGREEMENT, WE ARE ALL IN
11 AGREEMENT HE WAS NOT HERE AND THEY HAVEN'T
12 HEARD ANY OF HIS TESTIMONY YET. KNOWING THAT,
13
14
15
16
17
18
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ABILITY TO DECIDE THE CASE, AND I DON' ']'SEE
HOW -- I THINK BY STRETCHING IT OR BY BRINGING
THAT UP, IT MIGHT CAUSE THEM TO THINK OF SIDE
ISSUES. BUT I THINK THEIR CONCERN WAS JUST TO
LET THE COURT KNOW THAT THEY THOUGHT HE WAS
HERE, NOT THAT THEY BELIEVE OR DISBELIEVE --
20 THE COURT: I DON'T THINK IT WOULD
21 EFFECT THEM. I AM CONCERNED THAT AN
22 INDIVIDUAL VOIR DIRE TENDS TO ELEVATE THE
23 IMPORTANCE, AND IT MAY BE IMPORTANT, I HAVE NO
241
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IDEA -- LET ME FINISH, MR. ALOISE. IT MAY BE

I
PAGE 869
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L- 1 IMPORTANT. BUT I THINK THAT AN INSTRUCTION TO
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1 WITNESS AT THE CONCLUSION OF HIS OR HER
PAGE 870
2 TESTIMONY REGARDING THE SEQUESTRATION ORDER I
3 HAD ASK YOU TO DO IN MY MOTION, TO THE EXTENT
4 THAT ANY JUROR THINKS THAT I PLAYED A PART IN.
5 MR. BALL: JUDGE, I DON'T WANT TO
6 INTERRUPT. JUST LOOKING AT THE WITNESS, I NOW
7 RECALL SEEING SOMEONE IN THE BACK OF THE
8 ROOM. I THINK I KNOW WHO IT WAS THAT THEY
9 BELIEVE HE RESEMBLES. THERE IS KIND OF A
10 RESEMBLANCE. I THINK HIS NAME IS JOHN
11 KENNEDY.
12 THE CLERK: HE WAS HERE TODAY.
13 THE COURT: YOU ARE CORRECT.
14 I MR. BALL: I WILL BRING HIM DOWN AND
15 LET HIM SIT IN THE COURTROOM SO THEY'LL SEE
16 HIM, AND I THINK THEY WILL BE ABLE TO SEE THAT
17 IT WAS -- IT SEEMS TO ME IT IS A PRETTY EASY
18 MISTAKE TO MAKE. I WILL GO UPSTAIRS AND BRING
19 HIM DOWN RIGHT NOW.
20 THE COURT: ARE WE GOING TO HAVE A
21 LINE-UP FOR THE JURY?
22 MR. BALL: LET HIM SIT THERE,
23 JUDGE. I THINK WHEN YOU TELL THEM THEY MADE A
24
MISTAKE --

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MR. ALOISE: RIGHT.
MR. BALL: YES.
THE COURT: OKAY. THANK YOU.
MR. BALL: NO.
MR. ALOISE: NO.
PAGE 872
1 GENTLEMAN WAS HERE YESTERDAY, THEY ARE NOT TO
2 LET THAT IMPACT OR INFLUENCE THEIR DECISION.
3 MR. ALOISE: DOES ANYONE FEEL THAT
4 THEY ARE, IN FACT, INFLUENCED BY THIS
5 PERCEPTION, NO MATTER HOW MISTAKEN IT MAY HAVE
6 BEEN.
7 THE COURT: WHAT DO YOU SAY?
8 MR. BALL: FINE.
9 THE COURT: AND THEN WE BRING THEM
10 OVER TO THE SIDE BAR IF WE HAVE TO.
11
12
13
14 FIVE THINGS. NOW I THINK WE'LL ASK THE
15 GENTLEMAN TO LEAVE THE COURTROOM.
16 MR. ALOISE: YES. I WAS GOING TO
17 REQUEST THAT WE DO SO.
THOSE
18 THE COURT: ANYTHING FURTHER AT THIS
19 TIME?
20
21
22
THE COURT: ALL RIGHT. THANK YOU.
23 (SIDE BAR ENDED)
24 THE COURT:
THANK YOU. WE'RE BACK

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PAGE 873
1 ON THE RECORD ALTHOUGH THE JURY IS NOT HERE.
2 MR. HAYES, I AM GOING TO ASK YOU TO LEAVE THE
3 ROOM FOR SHORT PERIOD OF TIME. I AM GOING TO
4 REMIND YOU OR TELL YOU FOR THE FIRST TIME
5 SINCE YOU WEREN'T HERE BEFORE, YOU ARE
6
7
8
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SEQUESTERED. WHICH MEANS YOU MAY NOT DISCUSS
ANYTHING YOU SEE OR HEARD IN THIS COURTROOM
WITH ANYBODY ELSE EXCEPT THE TWO ATTORNEYS IF
THEY SHOULD TALK TO YOU OUT IN THE CORRIDOR.
10 WE'LL NOT BE TOO LONG, SIR. SO I JUST ASK YOU
11 TO WAIT OUTSIDE FOR A BIT OF TIME. WHY DON'T
12 YOU TAKE THAT WITH YOU. ALL RIGHT. THANK
13 YOU. OFFICER, MAY WE HAVE THE JURY DOWN,
14 PLEASE.
15 (JURY ENTERING COURTROOM)
16
17
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THE COURT: OKAY. IF THE JURY COULD
PLEASE BE SEATED. MADAM FOREPERSON, LADIES
18 AND GENTLEMEN, FIRST OF ALL, LET ME AGAIN
19 THANK YOU FOR YOUR VIGILANCE. THE FACT THAT
20 YOU ARE ALERT AS TO EVERYTHING THAT IS
21 HAPPENING IN THE COURTROOM IS SOMETHING THAT
22 IS COMMENDABLE. I KNOW THAT BOTH SIDES ARE
23 HAPPY THAT YOU ARE REALLY PAYING ATTENTION.
24 LET ME SAY ALSO THAT WE HAVE
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PAGE 874
1 DISCUSSED THIS MATTER AT SIDE BAR, AND WE HAVE
2 MADE APPROPRIATE INQUIRIES, AND BOTH ATTORNEYS
3 AND I AGREE THAT YOU WERE MISTAKEN. WITH ALL
4 DUE RESPECT I SAY THAT. WE ALSO -- ALL THREE
5 OF US REMEMBERED, I THINK THE CLERK MAY ALSO
6 REMEMBER --
7 THE CLERK: YES.
8 THE COURT: -- THAT THERE WAS AN
9 INDIVIDUAL IN THIS COURTROOM YESTERDAY WHO WAS
10 WELL-KNOWN TO US. IN FACT, HE IS AN ASSISTANT
11 DISTRICT ATTORNEY, BUT HE IS NOT INVOLVED IN
12 THIS CASE AT ALL, WHO BEARS A REMARKABLE
13 LIKENESS TO MR. HAYES AS COINCIDENCE WOULD
14
15 I
HAVE IT. AND WE ALL SAID, GEE, THAT MUST BE
THE GUY THAT WAS IN HERE YESTERDAY, AND WE ALL
16 REMEMBERED THAT HE WAS IN HERE YESTERDAY. SO
17 I THINK THAT MAY BE WHAT THE JURY WAS THINKING
18 ABOUT.
19 I WILL SAY TO YOU AT THIS POINT THAT
20 YOU ARE NOT TO LET THIS PARTICULAR INCIDENT
21 THAT AROSE INTERFERE AT ALL WITH YOUR FACT
22 FINDING FUNCTION, WITH YOUR VERDICT RETURNING
23 FUNCTION OR WITH YOUR DELIBERATIONS. IF ONE
24 OR MORE OF YOU STILL THINKS THAT THE

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PAGE 875
1 INDIVIDUAL WHO WAS HERE YESTERDAY WAS INDEED
2 MR. HAYES, I AM NOT GOING TO TELL YOU THAT,
3 YOU KNOW, THAT YOU SHOULD CHANGE YOUR BELIEFS
4 AND PRINCIPLES AT ALL. BUT I WILL TELL YOU
5 IF, IN FACT, YOU STILL HOLD TO THAT VIEW,
6 NOTWITHSTANDING WHAT WE HAVE SAID TO YOU NOW,
7 YOU SHOULD NEVERTHELESS PAY NO ATTENTION TO
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THAT PARTICULAR PRINCIPLE OR VIEW AS YOU GO
INTO THE FACT FINDING FUNCTION, THE
DELIBERATION FUNCTION AND THE RETURN OF
VERDICTS. YOU SHOULD LET IT HAVE NO IMPACT
12 UPON YOUR DETERMINATIONS OF THIS CASE.
13 IF ANY JURORS FEELS AT THIS TIME
14 THAT THE PARTICULAR INCIDENT CONCERNING WHICH
15 WE ARE NOW DISCUSSING WOULD HAVE AN IMPACT
16 UPON HIS OR HER DELIBERATIONS AND DECIDING OF
17 THE FACT ISSUES IN THIS CASE, I WISH YOU WOULD
18 RAISE YOUR HAND RIGHT NOW? NOBODY --
19 THE JUROR: DOESN'T HAVE IMPACT --
20 THE COURT: SAY NOTHING, SIR. IF
21 YOU HAVE A CONCERN, SIR, I WOULD LIKE YOU TO
22 GO COME OVER HERE AND TELL US WHAT IT IS.
23 (SIDE BAR CONFERENCE)
24 THE CLERK:
MR. AUDET, SEAT NO. 9 .

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EXAMINATION BY THE COURT
PAGE 876
IT DOESN'T HAVE AN IMPACT. I AM JUST SAYING I
DIDN'T SEE HIM HERE YESTERDAY. I EARLIER SAW
HIM THIS MORNING. HE WAS SITTING IN THE
MIDDLE SECTION, FIRST -- LIKE THE FIRST SEAT.
OKAY.
I AM NOT SAYING IT HAS AN IMPACT. I WAS JUST
SAYING TO CLARIFY THAT HE WAS SITTING HERE
THIS MORNING, NOT YESTERDAY.
OKAY. I UNDERSTAND, SIR.
I DON'T KNOW IF THAT WOULD HAVE ANY IMPACT OR
NOT.
WELL, LET ME ASK YOU THIS, SIR. WOULD IT HAVE
AN IMPACT ON YOU, SIR, IF WE WERE TO OR SAY
THAT YOU WERE TO HAVE NO -- THAT IT IS NOT TO
HAVE AN IMPACT ON YOU, DO YOU FOLLOW ME, SIR?
IN OTHER WORDS, CAN YOU FOLLOW MY DIRECTIONS?
IF IT CHANGES HIS OPINION, IF HE HEARD
INFORMATION THAT MIGHT CHANGE HIS TRAIN OF
THINKING, THEN POSSIBLY MIGHT CHANGE ME. BUT
I MEAN I DON'T KNOW IF IT IS GOING TO CHANGE
HIS WAY OF THINKING.
I UNDERSTAND, SIR. LET ME ASK YOU THIS, SIR.
IS IT YOUR MEMORY NOW THAT SOME TIME TODAY THE

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PAGE 877
GENTLEMAN WAS IN THE COURTROOM WHEN YOU FOLKS
WERE HEARING EVIDENCE FROM THE OTHER WITNESS
THAT WAS HEARD TODAY?
YES.
THANK YOU, SIR.
THE COURT: NOW, WHAT I WOULD -- DO
YOU WISH TO ASK THE JUROR ANY QUESTIONS, MR.
ALOISE?
MR. ALOISE: I WOULD LIKE FIRST TO
CONSULT WITH THE COURT IF I COULD?
THE COURT: THANK YOU. DO YOU WISH
TO ASK THE GENTLEMAN ANY QUESTIONS?
MR. BALL: NO.
THE COURT: JUST A SECOND. I AM
GOING TO ASK YOU TO STAND OVER BY THE COURT
OFFICER WITH THE BLUE SHIRT. THANK you.
(JUROR LEAVING SIDE BAR)
MR. ALOISE: JUDGE, I AM CONCERNED
AND I AM GOING TO ASK YOU TO EXERCISE YOUR
DISCRETION AND EXCUSE THIS JUROR SO THAT THERE
IS NO CONTAMINATION OF THE REST OF THE
JURORS. HE IS NOT CONCERNED BECAUSE HIS
BELIEF, PROBABLY HONEST BELIEF, DOESN'T MATTER
WHETHER IT IS RIGHT OR WRONG, HE SAID IT WOULD
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PAGE 878
2 INDIVIDUAL HAD GLEAMED ANY INFORMATION. AND I
3 THINK THAT GOES TO THE HEART OF THE
4 CREDIBILITY ISSUE HERE.
5 THE COURT: MR. BALL, WHAT DO YOU
6 THINK?
7 MR. ALOISE: WE HAVE AN ADDITIONAL
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MR. BALL: RIGHT. I KNOW WE HAVE.
10 BUT I'M CONCERNED NOW THAT -- I BELIEVE THIS
11 JUROR AND I'M CONCERNED THAT THE WITNESS I
12 THINK WAS HERE --
13 THE COURT: WELL, I TH1NK AT A
14 MINIMUM, I AM GOING TO EXCUSE THIS JUROR.
15 MR. BALL: OKAY.
16 THE COURT: WE'LL MAKE THE
17 APPROPRIATE COMMENTS TO THE PRESENT JURY. AND
18
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ARE YOU REQUESTING A FURTHER VOIR DIRE OF THE
INDIVIDUAL?
21 SHOULD.
MR. BALL: I THINK PROBABLY WE
22 THE COURT: I AM TRYING TO REMEMBER
23 THE QUESTION THAT WAS ASKED OF HIM.
24 MR. BALL: I DON'T -- I ASKED HIM IF

THE COURT: YES.
MR. BALL: HE CLEARLY SAID NO.
PAGE 879
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MR. ALOISE: THE ONLY TESTIMONY,
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8 NOT --
9 MR. ALOISE: HE WILL HAVE NOTHING TO
10 DO WITH ANYTHING. HE CAME UPON THE SCENE
11 AFTER MR. ELBERRY WAS BEING RESTRAINED.
12 THE COURT: I SEE WHAT YOU ARE
13 SAYING. IT MAY BE APPLES AND ORANGES. BUT IS
14
15 I
ANYONE REQUESTING ME TO DO ANYTHING NOW OTHER
THAN EXCUSE THIS JUROR?
16 MR. ALOISE: I AM NOT. BECAUSE I
17 DON'T KNOW IF IT IS GOING TO BLEW UP ANY
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19 THE COURT: YOU ARE NOT ASKING ME TO
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21 MR. ALOISE: NO. ONLY THING I AM
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23 THIS JURY THAT THEY SHOULD NOT GLEAM ANYTHING
24 IN THAT AT ALL.

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4 THEIR MIND THAT THE GUY THAT CAME OVER HERE IS
5 NOW MISSING.
6 MR. BALL: I UNDERSTAND THAT.
7 THE COURT: I THINK I'D RATHER DO IT
8 RIGHT NOW.
9 THE CLERK: OKAY.
10 THE COURT: QUESTION IS DO WE
11 EXCLUDE THE JURY AGAIN OR DOES THAT MAKE TOO
12 BIG A DEAL OUT OF IT? DOES ANYBODY HAVE ANY
13 OBJECTION IF I BRING HIM OVER HERE AND TELL
14 HIM HERE?
15 MR. ALOISE: NO.
16 THE COURT: THANK YOU.
17 THE CLERK: BRING HIM OVER, JUDGE?
18 THE COURT: YES.
19
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20 THE COURT: MR. OFFICER, MAY I SEE
21
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YOU, TOO, PLEASE.
(JUROR APPROACHING SIDE BAR)
THE COURT: SIR, I WANT YOU TO KNOW
24 THAT YOU HAVE DONE ABSOLUTELY NOTHING WRONG.

ALTERNATE JURORS. I POINT OUT WE HAVE TWO
EXTRAS.
PAGE 882
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PAGE 883
1 TO DO AT THIS POINT NOW IS TO GO WITH THE
2 COURT OFFICER AND HE'LL PUT YOU IN A ROOM
3 UPSTAIRS. AND JUST SIT THERE FOR A MOMENT
4 UNTIL WE GET BACK TO YOU. IT WON'T BE TOO
5 LONG I CAN ASSURE YOU.
6 MR. COURT OFFICER, I AM GOING TO ASK
7 YOU TO TAKE THE REST OF THE JURY UP AND PUT
8 THEM IN A SEPARATE ROOM. IF YOU WILL DO THAT
9 NOW, SIR. PLEASE, I AM GOING TO ASK YOU NOT
10 TO HAVE ANY CONTACT WITH THE JURY. IT IS NOT
11 THAT YOU ARE SICK OR ANYTHING. WE GOT TO DO
12 THESE THINGS, SIR. YOU UNDERSTAND, SIR?
13 THE JUROR: YES.
14 THE COURT: NO HARD FEELINGS?
15
16
17
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THE COURT: THANK YOU.
(SIDE BAR ENDED)
18 THE COURT: MADAM FOREPERSON AND
19
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20 SEPARATED FROM THIS JURY. AS I TOLD MR.
21 AUDET, IT IS NOTHING THAT HE SAID OR ANYTHING
22 THAT HE SAID WAS WRONG, AND CERTAINLY THE REST
23 OF YOU SHOULD NOT FEEL THAT WAY EITHER. BUT
24 IT IS IN THE INTEREST OF ASSURING THAT THE

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MR. BALL: RIGHT.
PAGE 885
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PAGE 886
THE COURT: THANK yOU. NOW, MR.
BALL, MAY I HAVE A SUGGESTION FROM YOU AS TO
HOW WE SHOULD NEXT PROCEED?
MR. BALL: I ASK MR. BERGMAN TO COME
TO THE WITNESS STAND.
OBJECTION?
WITNESS.
THE COURT: MR. ALOISE, ANY
MR. ALOISE: NO, JUDGE.
THE COURT: YOU MAY CALL YOUR
THE CLERK: MR. BERGMAN, PLEASE COME
FORWARD AND RAISE YOUR RIGHT HAND.
DIRECT EXAMINATION BY MR. BALL
STATE YOUR NAME, PLEASE?
MORRIS A. BERGMAN.
WHERE DO YOU WORK?
(WITNESS DULY SWORN)
ASSISTANT DISTRICT ATTORNEY FOR THE MIDDLE
DISTRICT IN WORCESTER.
YESTERDAY DID YOU HAVE OCCASION TO BE IN THIS
COURTROOM DURING THIS TRIAL?
I WAS IN THE COURTROOM YESTERDAY AND THE DAY
BEFORE.
YESTERDAY DID YOU HAPPEN TO SEE A PERSON THAT

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PAGE 887
JUST -- WERE YOU HERE EARLIER TODAY WHEN THE
LAST WITNESS WAS CALLED BY THE DEFENSE?
I WAS.
AND DID YOU RECOGNIZE THAT PERSON?
I DID.
WHERE DID YOU RECOGNIZE HIM FROM?
I RECOGNIZED THAT PERSON FROM SEEING HIM IN
THE COURTROOM EITHER YESTERDAY AND/OR THE DAY
BEFORE.
WHERE?
HE WAS SEATED IN THE SECOND ROW ON THE LEFT
SIDE OF THE COURTROOM AS I FACED IT.
ALL RIGHT. WHERE WERE YOU SITTING?
I WAS SITTING IN THE SECOND ROW CENTER OF THE
COURTROOM AS I FACE IT.
ARE YOU ABSOLUTELY CERTAIN THAT THAT PERSON
WAS IN THE COURTROOM WHILE THE JURY WAS SEATED
IN THE JURY BOX DURING THIS TRIAL?
THERE IS NO QUESTION. THE ONLY PARAPHRASE I
WOULD ADD TO THAT IS HE WAS EITHER IN THE
COURTROOM YESTERDAY AND THE DAY BEFORE, OR THE
DAY BEFORE AND YESTERDAY. ONE OR BOTH DAYS I
SAT NEXT TO HIM. HE SAT AT THE END OF THE
MIDDLE ROW, LEFT SIDE, AND I SAT AT THE END OF

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PAGE 888
THE MIDDLE ROW CENTER AISLE. ALTHOUGH WE ARE
NOT IN THE SAME BENCH, WE SAT NEXT TO EACH
OTHER. I WOULD ALSO ADD HE WAS WEARING
SIMILAR OR THE SAME CLOTHES THAT I SAW HIM
STANDING BEFORE THE COURT A FEW MINUTES AGO.
MR. BALL: ASK THAT PERSON TO BE
BROUGHT INTO THE ROOM AT THIS TIME?
QUESTIONS.
THE COURT: NO. NOT AT THE MOMENT.
MR. BALL: I DON'T HAVE ANY FURTHER
THE COURT: ALL RIGHT. THANK YOU.
MR. ALOISE, ANY QUESTIONS?
CROSS-EXAMINATION BY MR. ALOISE
MR. BERGMAN, HOW MANY PEOPLE WERE IN THE
COURTROOM THE DAY BEFORE YESTERDAY BY THE TIME
YOU ARRIVED?
MY APPEARANCES IN HERE WERE INTERMITTENT
WAITING FOR CASES TO BE CALLED. I WOULD SAY
ROUGHLY YESTERDAY WERE LESS THAN THE SAME
PEOPLE -- LESS THAN THE AMOUNT OF PEOPLE THAT
ARE HERE TODAY. THE DAY BEFORE ROUGHLY THE
SAME AMOUNT.
THAT ARE HERE RIGHT NOW?
YES.

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PAGE 889
WOULD YOU AGREE WITH ME THAT NOW WE HAVE NINE
PEOPLE IN THE COURTROOM?
THAT'S CORRECT. THE DAY BEFORE THERE WERE
MORE. BUT THEY ARE SCATTERED ABOUT AND I WAS
SITTING IN A GROUP AS THEY ARE TODAY.
YOU HAD NO CONTACT WITH THIS INDIVIDUAL, DID
YOU?
ABSOLUTELY NOT.
MADE NO PARTICULAR NOTE OF HIM FOR ANY REASON
OTHER THAN THE FACT THAT YOU CAME INTO THE
ROOM AND OBVIOUSLY LOOKED AROUND?
I DID MAKE NOTE OF HIM BECAUSE HE WAS
LISTENING, LEANING OVER THE EDGE, UNLIKE OTHER
PEOPLE WHO SEEMED TO BE SEATED HERE WAITING
FOR OTHER MATTERS TO BE CALLED. HE WAS SEATED
OVER THE EDGE LISTENING TO THE CASE AS I WAS.
AND I QUESTIONED IN MY MIND AS TO WHAT HIS
RELATIONSHIP WAS WITH THE DEFENDANT.
Q. DID YOU SEE THIS PERSON COME INTO THE
A. NO.
COURTROOM?

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PAGE 890
OFFICER WAS OR INQUIRED OF HIM AS TO WHO HE
WAS?
NO. I DIDN'T SEE THAT.
MR. ALOISE: NOTHING ELSE, JUDGE.
REDIRECT EXAMINATION BY MR. BALL
YOU ALSO KNOW JOHN KENNEDY, OF COURSE?
YES.
AND YOU WOULDN'T MISTAKE THAT PERSON FOR JOHN
KENNEDY, WOULD YOU?
IN MY MIND THERE IS NO CONNECTION BETWEEN THE
TWO.
MR. BALL: NOTHING FURTHER.
THE COURT: ALL RIGHT. MR. BALL, WE
ARE ALL KNOW MR. KENNEDY, AND I KNOW YOU KNOW
MR. KENNEDY. AND LET ME ASK YOU THIS, SIR.
DO YOU SEE A RESEMBLANCE BETWEEN MR. KENNEDY
THIS GENTLEMAN?
THE WITNESS: NO. I WOULD ADD,
JUDGE, WHEN YOU MADE REFERENCE TO THE JURY
THAT YOU FELT THEY MAY HAVE BEEN CONFUSED, I
THOUGHT YOU WERE SPEAKING OF OTHER DISTRICT
ATTORNEYS. NO WAY IN MY MIND DID I THINK YOU
WERE TALKING ABOUT KENNEDY. AS A MATTER OF

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2 ABOUT MR. LANDRY.
MR. BALL: NO.
MR. ALOISE: NO.
THE COURT: NOW, MR. BALL HAS
PAGE 891
3 THE COURT: FOR THE RECORD -- I AM
4 NOT SURE WHERE WE ARE GOING WITH THIS. I WILL
5 SAY FOR THE RECORD I STILL THINK THAT MR.
6 KENNEDY LOOKS REMARKABLY LIKE THIS GENTLEMAN,
7 ALTHOUGH MR. KENNEDY HAS ABOUT SIX OR EIGHT
8 INCHES OF HEIGHT ON THIS GENTLEMAN. BUT STILL
9 FACIALLY AND CUT OF THE HAIR THERE IS A
10 SIMILARITY. I KNOW MR. KENNEDY WAS IN AND OUT
11 AS YOU WERE, MR. BERGMAN, THE LAST COUPLE OF
12 DAYS, AT LEAST YESTERDAY.
13 OKAY. ARE THERE ANY OTHER FURTHER
14 QUESTIONS OF MR. BERGMAN?
15
16
17
18 SUGGESTED THAT WE HAVE THE GENTLEMAN COME BACK
19 IN THE COURTROOM AND SEE IF MR. BERGMAN
20 RECOGNIZES HIM. IS THERE ANY OBJECTION TO
21 THAT? I AM NOT SURE WHAT WE ARE GOING TO GAIN
22 BY THAT.
23 MR. ALOISE: I DON'T KNOW IF WE ARE
24 GOING TO GAIN MUCH ON THAT. IT WOULD BE IN

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PAGE 893
1 WAS IN THE COURTROOM UNDER -- WHEN THERE WAS A
2 SEQUESTRATION ORDER.
3 MR. ALOISE: WELL, THAT IS A BIG
4 ASSUMPTION. I SAY THAT IS NOT CLEAR. I DON'T
5 THINK THE MANIFEST NECESSITY IS THERE FOR A
6 MISTRIAL, NOR IS IT THERE TO PREVENT THE
7 WITNESS FROM TESTIFYING. HE HAS TESTIFIED
8 UNDER OATH HE WASN'T HERE. HE HAS TES']'IFIED
9 HE RECEIVED A PHONE CALL THIS MORNING. IF YOU
I
11 I
WANT ME TO BRING MY SECRETARY DOWN, I WILL DO
SO. AND I WILL EXPECT HER TO TESTIFY THAT SHE
12 HAS HAD AT MY REQUEST MADE NUMEROUS PHONE
13 CALLS TO MR. HAYES AT HIS HOME OVER THE LAST
14
15 !
I
SEVERAL DAYS, JUST INFORMING HIM AND ALL OF
THE OTHER WITNESSES AS TO TIME SCHEDULING. I
16 INSTRUCTED HER YESTERDAY AFTERNOON AT ABOUT
5:15 TO CALL MR. HAYES BEFORE SHE LEFT FOR
WORK AT 5:30, AND INFORM HIM THAT HE WAS TO BE
HERE AT 10 O'CLOCK THIS MORNING. AND 'I'HAT I
ASKED HER THIS MORNING JUST BEFORE LEAVING FOR
COURT HERE, THAT SHE DO THE SAME THING TO MAKE
SURE THAT HE WAS HERE.
MR. BALL.
THE COURT: OKAY. WELL, GEN'I'LEMEN,
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PAGE 894
1 MR. BALL: I DO HAVE A SUGGESTION,
2 YOUR HONOR, IF I COULD?
3 THE COURT: SURE.
4 MR. BALL: YOU HAVE EXCUSED MR.
5 AUDET, THE JUROR. I ASK THAT WE PUT HIM ON
6 THE STAND AND ASK HIM IF HE RECALLS WHAT THAT
7 PERSON WAS WEARING YESTERDAY OR THE DAY
8 BEFORE. IN WHICH CASE, WE WOULD KNOW WHETHER
9 OR NOT THAT IS A PERJURED -- WE HAVE A
10 PERJURER NOW ON THE STAND OR WE HAVE AN HONEST
11
12
13
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MISTAKE MADE BY ONE OF THE INDIVIDUALS OR AT
LEAST A BETTER IDEA.
THE COURT: WELL, LET ME THROW THIS
OUT TO YOU, GENTLEMEN. IF WE DO NOTHING AND
RELY UPON THE JURY'S RESPONSE ALREADY, AND
16 THEY OF COURSE HAVEN'T HEARD MR. BERGMAN'S
17 TESTIMONY, JURY'S.
18 RESPOND THAT THEY CAN CAST THE
EPISODE OUT OF THEIR MIND AND NOT BE
INFLUENCED BY THE, SINCE WE HAVE NOW
SEGREGRATED THE ONE JUROR WHOM WE FELT COULD
NOT DO THAT, NAMELY MR. AUDET, IF WE CONTINUE
WE'LL DO SO WITH A WITNESS WHO MAY BE
IMPEACHABLE ON CROSS-EXAMINATION BY QUESTIONS
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PAGE 895
1 CONCERNING WHETHER HE WAS IN THE COURTROOM AND
2 HEARING TESTIMONY YESTERDAY. AND IF HE
3 PERSIST IN HIS STATEMENT THAT HE WAS NOT, IT
4 MAY BE THAT MR. BALL WOULD WANT TO CALL MR.
5 BERGMAN BEFORE THE JURY TO TESTIFY TO THAT
6 POINT.
7 OBVIOUSLY, THIS IS SOMETHING THAT
8 HAS ALL BEEN SPRUNG ON US IN THE LAST TEN
9 I
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MINUTES OR SO. SO, I AM NOT SURE WHETHER THAT
PARTICULAR LINE OF CROSS-EXAMINATION I WILL
11 ULTIMATELY PERMIT. BUT IT DOES SEEM TO ME TO
BE SOMETHING THAT WOULD HAVE TO BE EXPLORED.
BECAUSE THERE IS AT LEAST A COLORABLE REASON
GIVEN MR. BERGMAN'S TESTIMONY TO SUGGEST THAT
MR. HAYES HAS NOT BEEN TOTALLY FORTHCOMING.
WHEN WE ADD THAT TO THE MIX, WHAT DO YOU SAY,
MR. ALOISE?
IS YOUR WITNESS.
MR. ALOISE: WELL, JUDGE, THE --
THE COURT: BEARING IN MIND, SIR,
MR. ALOISE: BEFORE WE GET TO THAT
POINT, JUDGE, I SUPPOSE I WOULD LIKE TO MAKE
INQUIRY -- I WILL NEED SOME TIME TO DO IT, I
WANT TO MAKE INQUIRY TO GET MARK PINKHAM IN
IT
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PAGE 896
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PAGE 897
THE DISTRICT ATTORNEY AND HIS OFFICE CAN BE
PERSUADED THAT THEY ARE MISTAKEN, THEN IT
WOULD NOT BE EVIDENCE THAT THEY WOULD SEEK TO
INTRODUCE AT THE TRIAL BEFORE THE JURY.
KEEPING IN MIND THAT MY OFFER OF PROOF ON THIS
WITNESS IS THAT HE IS ONLY TESTIFYING
REGARDING MATTERS THAT OCCURRED AFTER EVERY
OTHER WITNESS MADE OBSERVATIONS. SO THAT
DESPITE THE ISSUE OF THE SEQUESTRATION, AND I
ASSUME AND I SAW THE COURT OFFICERS INQUIRING
OF PEOPLE WHO THEY DIDN'T KNOW AS TO WHO THEY
WERE. I CAN'T IMAGINE THAT THEY WOULD HAVE
ALLOWED THIS PERSON TO SIT IN HERE. AND
UNLESS ANY COURT OFFICER NOW IS PREPARED TO
SAY THAT THEY HAD A CONVERSATION WITH THIS
INDIVIDUAL WHO REPRESENTED THAT HE WAS NOT
INVOLVED IN THE CASE, THEN I THINK THAT IS
ANOTHER ISSUE. IT WAS THE RESPONSIBILITY OF
THE COURT OFFICERS, RIGHTFULLY SO, TO CARRY
OUT THE SEQUESTRATION ORDER WHILE COUNSEL AND
THE COURT WERE ENGAGED IN THIS TRIAL, AND THEY
WERE DOING IT. BUT MY OBSERVATION --
THE COURT: THE TWO COURT OFFICERS
WHO WERE PRESENT IN THE COURTROOM NOW, WERE
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DON'T KNOW --
PAGE 898
1 NOT PRESENT THE ENTIRE DAY YESTERDAY. THERE
2 WAS ANOTHER COURT OFFICER, AND MAYBE MORE, WHO
3 SERVED AS COURT OFFICERS YESTERDAY, TOO. SO
4 INQUIRING OF OUR PRESENT TWO COURT OFFICERS
5 WOULD NOT ADVANCE THE CAUSE AT ALL.
6 MR. ALOISE: I DIDN'T MEAN TO LIMIT
7 TO THESE TWO COURT OFFICERS. I UNDERSTAND
8 THAT ONE WAS BRUCE MULLIN I BELIEVE AT SOME
POINT YESTERDAY AND THE DAY BEFORE THAT, AND
THE OTHER ESCAPES ME. WELL, THE OTHER ESCAPES
11 ME AT THE MOMENT. BUT YEAH, THERE WERE AT
12
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16 OUT, JUDGE.
THE COURT: BRUCE WAS HERE AND I
COURT OFFICER: BRAIN WAS IN AND
17 THE COURT: ALL RIGHT.
18 MR. ALOISE: OBVIOUSLY IF THE COURT
19 IS INCLINED AT SOME POINT TO ALLOW MR. BALL TO
20 BE GET INTO THIS ISSUE AND TO CALL ANOTHER
21 ASSISTANT DISTRICT ATTORNEY, THEN OBVIOUSLY
22 THAT IS A SITUATION THAT WILL BE INTOLERABLE
23
24 I
TO THE DEFENSE. THIS HAS BEEN CAUSED -- NO
EVIDENCE HERE THAT HAS BEEN CAUSED IN ANY WAY

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PAGE 899
1 EITHER BY MYSELF OR IMPORTANTLY BY MY CLIENT.
2 IF THE COURT FURTHER WANTS TO INQUIRE OF MR.
3 HAYES, I WILL DEFER TO THE COURT TO ASK
4 WHATEVER QUESTIONS YOU SEE FIT.
5 THE COURT: WELL, IT IS NOT SO MUCH
6 WHETHER OR NOT MR. HAYES WAS OR WAS NOT HERE,
7
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IT IS WHAT THE JURY WILL DO WITH THAT THAT IS
IMPORTANT. WOULD YOU AGREE, MR. BALL?
MR. BALL: YES.
10 THE COURT: THE JURY HAS ALREADY
TOLD US, WITHOUT HESITATION, EXCEPT FOR THE
ONE INDIVIDUAL, THAT IT WILL NOT BE IMPACTED
BY THIS MATTER. ANYTHING FURTHER, GENTLEMEN?
MR. BALL: NO.
THE COURT: MR. BALL, YOUR MOTION
FOR MISTRIAL IS DENIED. I AM INCLINED TO
RESUME THE TRIAL. YOU MAY CALL YOUR WITNESS,
SIR. AND WHETHER OR NOT MR. BALL SEEKS TO
IMPEACH HIM IS MR. BALL'S CHOICE, AND WE WOULD
HAVE TO CROSS THAT BRIDGE WHEN WE COME TO IT.
ANYTHING FURTHER, GENTLEMEN?
MR. ALOISE: NO, JUDGE. EXPECT I
WOULD LIKE A MOMENT TO CONFER WITH MR. BALL.
THE COURT: WHY DON'T WE TAKE A
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PAGE 901
(CONVENED AT 12:25 PM)
THE COURT: WELCOME BACK. LADIES
AND GENTLEMEN, I WOULD REMIND YOU AGAIN THAT
YOU ARE NOT TO CONSIDER ANY OF THE MATTERS
WHICH HAVE ENGAGED US OVER THE PAST HOUR OR SO
CONCERNING OBSERVATIONS THAT YOU MADE AND THAT
WE DISCUSSED BEFORE AS IN ANY WAY IMPACTING
UPON THE ISSUES THAT YOU ARE TO DECIDE THIS
CASE BY. YOU ALREADY -- NO ONE RAISED THEIR
HANDS IF I ASKED IF IT WOULD HAVE AN IMPACT
UPON YOU. SO I AM GOING TO HOLD YOU TO THAT
PROMISE THAT YOU WILL MAKE EVERY EFFORT AND
THAT YOU ARE CAPABLE OF FOCUSING UPON THE FACT
ISSUES IN THIS CASE WITHOUT BEING DIVERTED BY
THE OCCURRENCES OF THIS MORNING. I THANK YOU
VERY MUCH. AND MR. ALOISE.
MR. ALOISE: MAY WE HAVE THE
PREVIOUS WITNESSES, PLEASE.
THE CLERK: MR. HAYES, PLEASE.
DIRECT EXAMINATION BY MR. ALOISE
MR. HAYES, BEFORE WE BROKE I HAD ASKED YOU A
COUPLE OF TIMES TO MAKE SURE TO KEEP YOUR
VOICE UP SO EVERYBODY CAN HEAR YOU. OKAY?
YES.
J