Non-jury discussion - media and witnesses Dinsmore and Melton

Michael Travesser / Wayne Bent at sunset

Judge hears arguments with jury not present -concerning media (including Beyond90seconds) and prosecution witnesses Dinsmore and Melton

All attorneys participate. Defendant is in the courtroom. Jury is absent.

Judge Baca: Alright. It's five minutes of twelve. We will break at this point in time for lunch. We will return and commence with evidence at one thirty. So that means that the jury is free to leave at this point in time. Please come back ready to start at one thirty. Please stand for the jurors.

Judge Baca: Alright, you may be seated. Alright. Let me ask you before we break for lunch, have the attorneys gotten together on the uniform jury instructions?

Emilio Chavez: Yes we have, your Honor. I believe we have agreed on the majority of the general instructions.

Judge Baca: Ok.

Emilio Chavez: But there will be some discussion with the Court on the underlying charges.

Judge Baca: Alright. And the second issue is, what is the line up for this afternoon?

Tomas Benevidez: Your honor, the lineup for this afternoon is Dr. Elizabeth Dinsmore and Dr. John Gordon Melton.

Judge Baca: Ok. How long do you anticipate that they’ll take?

Tomas Benevidez: I wouldn’t anticipate they would take, on direct, any longer than about an hour or two.

Judge Baca: Together?

Tomas Benevidez: Together.

Judge Baca: Ok. Alright, are you ready to start after this afternoon?

Ms. Montoya: Well, your Honor, we’re going to object to the use of Dr. Elizabeth Dinsmore and Gordon Melton, because we don’t believe they can assist the State in proving any of the elements of the charges. We fail to see the relevancy of their testimony.

Judge Baca: Well, at this point in time, I’m not going to actually take up that issue. If we want to argue extended about that particular issue, let’s come back at one fifteen and we’ll take it up then. Ok? Alright. Anything else that we need to address at this point in time?

Tomas Benevidez: No, your Honor. I’ll be allowed to lay my foundation to the expert witnesses and their testimony.

Judge Baca: Alright, anything else on behalf of the Defense at this point?

Ms. Montoya: No, your Honor.

Judge Baca: Alright, then, we are in recess until one fifteen for Counsel, one thirty for the jury to commence at.

Lunch Break

Judge Baca: We are on the record in the matter of State versus Wayne Bent. We are out of the hearing of the jury, to pick up a few issues before the jury returns from its noon recess. Also for the record, counsel for the State is present, counsel for the defendant is present and the defendant is present in person.

Before we take up the issue with counsel, I’ve been told that the jurors have been told or have seen themselves on TV.

Here, there was a discussion regarding the issue of jurors being shown on TV. The judge addresses this issue with the media in the Court room.

Judge Baca: Alright. Anything else?

Tomas Benevidez: Your honor, just the issue of the "gag order."

Judge Baca: Alright. I’ve read as much as I could. The Blackmere opinion, do the parties wish to discuss that issue at this point?

Tomas Benevidez: Yes, your Honor.

Judge Baca: Ok.

Tomas Benevidez: Blackmere basically states that if there’s a... if the Court finds, based on a factual foundation that there’s a finding of substantial argument or prejudice or a clear and present danger to fair and impartial trial. And what the State is arguing here, this is a high profile case. We have international coverage. It was seen on Good Morning America this morning, I’ve been told. Reporters are... one reporter tried to talk to me after lunch. I told him I couldn’t. Ms. Montoya was seen with a reporter. I don’t know if that was a friendship or not, or if she was talking about the case. I don’t know your Honor, but our concern is because of the high profile... this being a small community, everybody is interested in it. It’s being played on the news. It’s on the internet. People are talking about it. The jurors aren’t sequestered anymore. They’re allowed to go home and talk to their family members, that we’re afraid by all the buzz, that if the members of both the Defense and State are allowed to talk to the press that there is going to be additional information that may taint the jury.

And so we are, we believe that there is a current and present danger to a fair and impartial trial. And in addition to that I believe, prior to the trial starting, Ms. Montoya gave a interview to Ninety Seconds in which she basically laid out her case for about thirty minutes and we’re just concerned that that happens again before the jury... this is allowed to go to the jury, that we may have a present danger to a fair and impartial trial.

Judge Baca: Alright.

Tomas Benevidez: And after closing, I believe it’s fine, because then they go and deliberate anyway. So we’re asking that the gag order continue and find that there is a factual foundation for a substantial likelihood that prejudice clear and present danger to a fair and impartial trial.

Judge Baca: Alright. Thank you sir. Ms. Montoya?

Ms. Montoya: First of all, your Honor, as to Good Morning America, we told the Court in Las Vegas, when the gag order was issued, when you were on the bench that day, that Mr. Bent had given two interviews that had not yet been used and I had a suspicion that they would be used, once the trial began and that the interview, he gave, was prior to the gag order being issued. The interview, I gave to beyondninetyseconds was prior to the gag order being issued and I did not lay out my case your Honor. If I had...

Judge Baca: What is Beyond Ninety Seconds?

Ms. Montoya: It’s an internet site, where there’s audio and video.

Transcriber note: For students of the case, here is access to that internet site:

Ms. Montoya: Thirdly, and most importantly, the anti-Lorites, who are here in town, have had their way paid by The National Geographic Channel and they are being interviewed by the news media outside the Courthouse. They’ve given interviews. Prudence Welch, Allen Armstrong, Johnny Miller have all given interviews. Johnny Miller’s interview was on the news.

And if there is any prejudice in this case, it’s the prejudice of the fact that we can’t correct the inaccuracies that are being sent out. There is no danger of prejudice. The jury has been sat. And if we are clear that they have been admonished and we are trusting that they are not watching news reports... I’m unclear how they learned they were on TV, if they were not watching TV. So, if we are trusting that they are following the Court’s admonishment, then there is no danger of prejudice.

And we are asking that pursuant to Blackmere that that gag order be lifted. And I think, technically, your Honor, it shouldn’t be in place, actually at this point. So, I am asking that the Court say something out-loud or issue something in writing that releases us from that obligation under the oral gag order that was issued. And I think maybe Mr. Benevidez followed it up in writing. I don’t know. I don’t recall.

Judge Baca: There was an actual order in place.

Ms. Montoya: I think there was. And so I would like the Court to issue an order releasing us from that at this time. My understanding was that once the jury was sat, that we would be able to discuss this case, even if it’s amongst ourselves. Even the conversations that I had with some of the church members at the end of the day yesterday, because the news media was in the room... They didn’t know what I was talking to them about and it was completely mischaracterized on the evening news and on the web. So, I’m asking that this be lifted at this time, because there’s a lot of misinformation being disseminated because they aren’t... because the media isn’t allowed to talk to us. And so for that reason, we would like to see it lifted.

Judge Baca: But, we’re not going to try this case in the media.

Ms. Montoya: No, your Honor. But the problem is the media does not know what’s going on. So then, they go and file reports that are totally inaccurate. And I think that’s misleading and as a public service, they should be allowed to give accurate information.

Judge Baca: You’re still under your obligation under the Rules of Professional Conduct, specifically rule 16306, that governs trial publicity. Is that correct?

Ms. Montoya: Correct.

Judge Baca: Alright. And everybody that’s associated with this case, either attorneys or law enforcement agencies, investigative agencies or employees of attorneys are under that obligation. Do we understand that? Is that correct? Is that true? Do we agree with that?

Tomas Benevidez: Yes your Honor.

Judge Baca: Ok.

Tomas Benevidez: The other thing that the State is concerned about is if the Grand Jury... I’m sorry, if the jury is finding out that they are on Good Morning America, are they watching TV? And then, there’s another factor.

Judge Baca: They’ve been told... The information I have received was that they had been told, they were on TV. Someone saw them.

Tomas Benevidez: And that’s my argument, exactly. Is maybe, they are not watching TV, but people are telling them possibly what’s going on and what they are seeing on TV. And that would interfere with...

Judge Baca: Well, I’ve been told probably a hundred times. My family and friends have seen me on TV, without discussing the case. So that certainly doesn’t happen. Tomas Benevidez: Well, human nature is they will discuss the case. Your family understands.

Judge Baca: And I’ll... I will stress at each and every break, the admonishment that they not discuss this case amongst themselves, with other members or with anybody else outside of this process, until they are told that they can deliberate and then they can discuss the case in the deliberation room.

So it will be asked, after reading the case, Blackmere and considering the facts and circumstances of this case, the purpose for the original gag order was to insure that after a change of venue, that the venire in this jurisdiction would not be contaminated to the point that we couldn’t seat a jury. Seems that we have achieved that goal and that there really no longer a need for a gag order, except that the parties, counsel, their employees and any investigative agencies associated with this proceeding will strictly adhere to Rule 16-306 of the Rules of Professional Conduct, which I will read.

Judge reads the Rules of Professional Conduct. It can be read here

This seems to go toward the same goal. We are to try this case on the facts, as they develop here in Court and not in the media. If there’s inaccuracies in the media, I guess the Defense attorney or State’s attorney, if they’re asked about procedural issues, can discuss those things and clear them up. But certainly, I don’t want people volunteering to go and say what happened and their take on what happened. That’s for the jury to decide. And if you do that, then you’re putting out information that may not be accurate. It might just be your interpretation of the evidence and the only people that should be interpreting the evidence in this matter are the jurors in this case.

Alright. So Ms. Montoya, sometime during the course of this trial, when you get a free moment, let me ask you to do an order to that effect.

Ms. Montoya: Thank you, your Honor.

Judge Baca: Ok, anything else that we need to take up?

Tomas Benevidez: No, your Honor.

Judge Baca: I think there was an issue with respect to the upcoming witnesses that Ms. Montoya wanted to discuss.

Tomas Benevidez: Your honor, at this time, since the jury is not in, do we want to deal with jury instructions?

Judge Baca: Not right now. We’ll deal with that a little bit later.

Ok. Ms. Montoya, you had an issue with respect to the expert witnesses that were coming up. You had objections?

Ms. Montoya: Yes, your Honor. The State has an obligation to prove its case beyond a reasonable doubt, based upon the law and we will discuss, of course, the jury instructions that will go to the jury, which outline the elements of the crime, which the jury must find in order to convict. Nothing about expert witnesses, nothing that they can testify to is going to bolster the State’s case in any way. Neither of the expert witnesses were present when the occurrences took place at Strong City in two thousand and six. There’s nothing they can testify to that will add to the State’s case. So we believe that they are irrelevant and that they should be stricken, so that we can move forward.

Judge Baca: Ok. Thank you. Alright, Mr. Benevidez.

Tomas Benevidez: Yes, your Honor. Thank you. The State has two more witnesses in its Case in Chief, to present. One is Dr. Elizabeth Dinsmore and the other one is Dr. John Gordon Melton. They have both been available to the Defense to interview them. Dr. Dinsmore has evaluated A.S. and an attempted evaluation was done on L.S. She did not... she said she did not want to participate in it. So, a final diagnostic report was not done, forensic evaluation.

However, though, Dr. Dinsmore, she has read L.S.’s diaries. She has read other materials and she has also read postings that L.S. had. She has reviewed and listened to and been here and present in Court, while both girls testified and she will testify to the opinions in both the reports she did and testify for the purpose of the report. They go towards the relevance of the two children, where their cognitive abilities are at the time that the alleged crime occurred and whether or not there was an effect of any influence over them by the defendant.

Judge Baca: Is that going to the issue of coercion?

Tomas Benevidez: Coercion and a person and authority.

Judge Baca: Alright. And that’s Ms. Dinsmore. And the other witness?

Tomas Benevidez: The other witness is Dr. Gordon Melton. He will talk about... He is an expert in religious history and Theology. He will discuss with the Court. He’s also reviewed the web sites, the writings of the defendant. He has reviewed all the documentation that the State has in their files. He has reviewed, he’s listened to the testimony of the intended witnesses that the Defense has and he will testify to what type of religious organization this is, how it’s structured and who the person of authority is from a religious perspective. He will also state how religion gets entangled with sexual mores within these type of new religious groups and how those mores differ from regular mainstream society.

Judge Baca: Alright. Anything else?

Ms. Montoya?

Ms. Montoya: Yes, your Honor. It’s apparent that Dr. Elizabeth Dinsmore is relying on what the Court has already characterized and the State had ruled is hearsay. Postings from the internet, a diary that was written two years after the fact, as to L.S. She never performed a forensic...

Judge Baca: Let me stop you there. Isn’t it normal for experts to rely on hearsay?

Ms. Montoya: Yes, your Honor, but what I’m saying is she did not have an evaluation of L.S. at all. There is no scientific basis for any of her opinions, because she never did the evaluation on L.S. So as to L.S., she should not be allowed to testify at all.

And as to A.S., she cannot testify as to the person in authority or coercion, because the girls themselves testified about that. Mr. Benevidez says she’s going to testify about their cognitive abilities, as they were at the time that the incident occurred. She can’t do that. She didn’t interview them in two thousand and six.

Judge Baca: If she’s a psychologist, she has that training and knowledge and experience about what I guess the, quote, unquote, "normal person," would be at what stage and that age what their cognitive abilities would be expected to be at that point in time. That’s probably appropriate.

Ms. Montoya: Correct. But it’s two years after the fact. So, I don’t believe it’s relevant to the elements of the crime. The girls are the only ones that can testify to that.

And as to Dr. Gordon Melton, he can’t testify who the person was in authority. He didn’t live at Strong City. He didn’t live under their rules. He doesn’t know and he did not interview anybody from Strong City. He didn’t speak to any of the people that are part of this church. He’s basing his opinion on other new religious organizations, not upon this religious organization.

Judge Baca: Well, I think that’s proper fodder for cross examination. If they’re able to establish a foundation that he somehow has specialized knowledge or has gained some knowledge about his inner workings of this particular group and it will assist the trier in fact in resolving the issues as to whether or not there was an authority figure or not. I think it is appropriate for him to testify and then you can challenge him on his opinions.

Alright. So at this point in time, having received the offer of proof and reviewed the Rules of Evidence 702, it appears clear that expert testimony is permitted. Whatever their knowledge, skill, experience, training or education that they may have will assist the trier of fact in determining the fact of an issue. And so that seems to be what is being offered. At this point in time, the Court will be looking closely to see if that’s what actually happens, but at this point in time, I will allow those witnesses to appear and testify.

Tomas Benevidez: Thank you, your Honor.

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