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FIRST JUDICIAL DISTRICT
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STATE OF MINNESOTA IN DISTRICT COURT
COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
State of Minnesota,
Plaintiff, File No. 19HA-CR-14-1019
Vs.
Donald Theodore Mashak,
Defendant.
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TRANSCRIPT OF PROCEEDINGS
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The above-entitled matter came on for
hearing before the Honorable Christian S. Wilton, Judge
of District Court, on the 26th day of February, 2015,
at the Dakota County Courthouse, Hastings, Minnesota,
commencing at approximately 9:00 a.m.;
The Plaintiff was represented by Benjamin
Colburn, Esq.; the Defendant appeared in person and was
represented by Alexander Rogosheske, Esq.; and the
following proceedings were had:
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I N D E X
WITNESS: DIRECT CROSS REDIRECT RECROSS
Michael Vai C-10 R-19 C-35, 45 R-38, 45
Mitchell Sellner C-48 R-57 C-63 R-65
Brenda Lightbody R-69 C-72 R-78
Ayrlahn Johnson R-80
Kimberly Sperling R-86 C-90
Dale Nathan R-92 C-94
Donald Mashak R-95 C-106 R-113
R = Mr. Rogosheske
C = Mr. Colburn
EXHIBITS: MARKED OFFERED RECEIVED
1 thru 7 -- 9 9
8 -- 18 18
9 -- 31 31
10 thru 13 -- 68 68
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FIRST JUDICIAL DISTRICT
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THE COURT: This is State of Minnesota
versus Donald Mashak. This is Court File
19HA-CR-14-1019. And, counsel, will you note your
appearances?
MR. COLBURN: Your Honor, good morning.
Ben Colburn for the City of Hastings.
MR. ROGOSHESKE: Alex Rogosheske on
behalf of the defendant who's present before the court,
Judge.
THE COURT: All right. Thank you. Mr.
Mashak, how are you today?
THE DEFENDANT: I'm okay.
THE COURT: Okay.
THE DEFENDANT: Under the circumstances.
THE COURT: All right. Mr. Mashak, you
and I had an opportunity the last time we met to have a
discussion about your right to have an attorney. And I
indicated to you that, when we reconvened, the first
question that I would ask you is whether or not you
wanted to represent yourself, or whether or not you
wanted Mr. Rogosheske to represent you. Is that your
recollection of our conversation?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And what would you
like to do today for representation?
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FIRST JUDICIAL DISTRICT
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THE DEFENDANT: I guess I'm going to have
to have Mr. Rogosheske represent me 'cause I have no
choice because the courts have allowed technicalities
of representing myself to go beyond what the normal
person's ability.
THE COURT: Okay. So you're choosing to
have Mr. Rogosheske represent you today?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Mr. Colburn, Mr.
Rogosheske, are you prepared to proceed?
MS. COLBURN: Yes, Your Honor.
THE COURT: Mr. Rogosheske, are you
prepared?
MR. ROGOSHESKE: Yes, Judge.
THE COURT: All right. I've received a
state's witness list and a defendant's witness list.
Is either party seeking sequestration of the witnesses?
MR. COLBURN: I think we jointly request
that, Your Honor.
THE COURT: Okay. I will grant that
motion. Mr. Rogosheske, go ahead.
MR. ROGOSHESKE: Excuse me, Judge. I
just have one additional witness. I talked to Mr.
Colburn, and he does not object. And it will be as a
rebuttal witness, Dale Nathan.
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FIRST JUDICIAL DISTRICT
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THE COURT: Okay. But as a rebuttal
witness?
MR. ROGOSHESKE: That's correct.
THE COURT: Nathan, N-A-T-H-A-N?
MR. ROGOSHESKE: Correct.
THE COURT: All right. Mr. Colburn, is
that correct?
MR. COLBURN: I guess, Your Honor. I was
informed of that a few minutes ago. I'm not certain
what the substance of Mr. Nathan's testimony,
anticipated testimony, would be, but I do not object.
THE COURT: Okay. All right. Ladies and
Gentlemen of the gallery, if you are on one of the
witness lists. I'm going to ask you to exit at this
time. Right now the witness lists include an Officer
Vai, Brenda Lightbody, Kimberly Sperling, Ayrlahn
Johnson, Mr. Sellner and Mr. Nathan. So if you've
heard your name, I'm going to ask you to go ahead and
step out of the courtroom, at least at this point.
All right. My understanding is is that
the issues to be litigated today are; first, probable
cause; and, second, in regard to an alleged video that
may or may not have recorded the alleged incident.
Mr. Colburn, are you ready to proceed?
MR. COLBURN: I am, Your Honor. As a
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FIRST JUDICIAL DISTRICT
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preliminary matter, if I may, briefly, I have -- well,
as to the alleged destruction of evidence, Your Honor,
to an extent that places either myself, my fellow
prosecutor, Mr. Fruegel, and, essentially, our office
in general, in an -- I suppose potential position of
being a witness in this matter, it is not my wish to
attain that status. However, to the extent that it
speaks to the relative time frame for requesting video
evidence in this case, I'm prepared to offer to the
court certain documents, which I have advised defense
counsel about, and this morning provided him with a
copy of, that I would be offering to the court from our
file as, essentially, business records or work product
that consists of seven documents. If I may, briefly,
review those or at least identify them for the record
once Mr. Rogosheske has been allowed to comment?
THE COURT: Thank you. Mr. Rogosheske,
any thoughts?
MR. ROGOSHESKE: On these documents,
Judge, we've looked at them. We have most of them.
And I've reviewed them. And I do not object to them.
THE COURT: Okay. Mr. Colburn, you want
to identify the seven documents for me? And I think
what we will do is -- do you want them marked
individually? Do you want them marked as one set?
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FIRST JUDICIAL DISTRICT
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MR. COLBURN: Perhaps, for identification
sake, and to the extent we're briefing or arguing in
the future, maybe we should identify them individually.
THE COURT: Okay. Let's do that.
MR. COLBURN: And perhaps -- shall I
identify them first and then approach the clerk, Your
Honor?
THE COURT: Let's get them marked first,
and then we'll do it that way.
MR. COLBURN: Thank you.
THE COURT: Mr. Colburn, you want to
identify the seven exhibits for the record?
MR. COLBURN: Thank you, Your Honor. As
No. 1, that is a letter from an Assistant Dakota County
Attorney Helen Brosnahan to Mr. Mashak dated June 10th,
2014.
THE COURT: Exhibit 2?
MR. COLBURN: Exhibit 2 consists of Mr.
Mashak's written request, handwritten request, to Mr.
Fluegel of our office, to which Mr. Mashak attached his
own prior correspondence, which, essentially, was a
data practices request. This represents Mr. Mashak's
first request of our office for video in this matter.
THE COURT: And do you have a date on
that document?
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FIRST JUDICIAL DISTRICT
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MR. COLBURN: Yes. June 11th, 2014.
THE COURT: Okay. Exhibit 3?
MR. COLBURN: No. 3, Your Honor, is a
letter, June 11th, 2014, from Mr. Fluegel of my office
to the sheriff's department of Dakota County.
THE COURT: Exhibit 4?
MR. COLBURN: Exhibit 4, Your Honor, is a
follow-up letter dated June 27th, 2014, from Mr.
Fluegel of my office to the Dakota County Sheriff's
Department.
THE COURT: Exhibit 5?
MR. COLBURN: Exhibit 5 is an email
chain, the last one dated July 16th, 2014, from Dakota
County Sheriff's Captain Jim Rogers.
THE COURT: And is that to somebody in
your office?
MR. COLBURN: It is, Your Honor.
THE COURT: Okay. Exhibit 6?
MR. COLBURN: Exhibit 6 is a letter dated
July 17th, 2014, sent to the defendant from my office
by Mr. Fluegel.
THE CLERK: What is the date on that?
MR. COLBURN: July 17th, 2014.
THE COURT: Exhibit 7?
MR. COLBURN: And Exhibit 7, Your Honor,
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FIRST JUDICIAL DISTRICT
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is a letter dated September 23rd, 2014, to defense
counsel, Mr. Rogosheske, again from Mr. Fluegel of my
office.
THE COURT: Okay. Mr. Rogosheske, any
objection to me receiving Exhibits 1 through 7?
MR. ROGOSHESKE: No objection.
THE COURT: All right. Exhibits 1
through 7 will be received for purposes of this
hearing.
MR. COLBURN: May I approach, Your Honor?
THE COURT: You may. Thank you. All
right. Mr. Colburn, you may call your first witness.
MR. COLBURN: Thank you, Your Honor. The
state would call Dakota County Sheriff's Deputy Michael
Vai. If I may retrieve him from the hallway?
THE COURT: You may.
MR. ROGOSHESKE: Hey, Judge, I -- I do
have a memorandum to submit. I don't know if you want
to do that now or at the end?
THE COURT: We'll do that at the end.
MR. ROGOSHESKE: Okay.
THE COURT: Deputy, if you want to come
all the way forward. I'll have you raise your right
hand.
MICHAEL VAI,
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - DIRECT 10
called as a witness, being first duly sworn, was
examined and testified on his oath as follows:
THE COURT: Please have a seat. As soon
as you're comfortable, I'll have you adjust the
microphone and state your full name, spelling each of
your names for the record.
THE WITNESS: Sure. My name is Deputy
Michael, M-I-C-H-A-E-L, Christopher,
C-H-R-I-S-T-O-P-H-E-R, Vai, V, as in Victor, A-I.
THE COURT: Thank you. Mr. Colburn.
MR. COLBURN: Thank you, Your Honor.
DIRECT EXAMINATION BY MR. COLBURN:
Q Deputy Vai, can you tell us how you are employed?
A I am currently employed with the Dakota County
Sheriff's Office. I am currently school resource
officer at Dakota Ridge School in Apple Valley.
Q Okay. And can you please, briefly, describe your
education and training?
A My education is I have a bachelor's degree in Criminal
Justice and Corrections from Hamline University. I
have a certification for -- well, peace officer out of
Hennepin Tech. And I've been provided here in Dakota
County an FTO process or field training process and
other classes.
Q Okay. Are you currently a licensed peace officer in
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - DIRECT 11
the State of Minnesota?
A Yes, I am.
Q How long have you held that distinction?
A 15 months.
Q Okay. How long have you been employed by the Dakota
County Sheriff's Office?
A 15 months.
Q And you're currently in good standing; is that correct?
A Yes, sir.
Q With the sheriff's office?
A Yes, sir.
Q Thank you. Deputy Vai, you described yourself
currently working as a -- I think you said a field?
A A school resource officer.
Q I beg your pardon. School resource officer. At one
time, were you working a courthouse detail?
A Yes, I was. From December until -- December 2013 until
-- or excuse me, December 2014 until December -- or
excuse me, May 2014, I was a bailiff with Dakota County
Sheriff's Office.
Q I just want to clarify. Are you saying December 2013
through May 2014?
A Yes, I am.
Q Okay. And were you on duty in your capacity as -- in
the courthouse here in Dakota County on March 12th,
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - DIRECT 12
2014?
A Yes, I was.
Q And, generally speaking, what were your duties on that
date?
A My duties on that date were I was assigned to the
courtroom here in Hastings, this courthouse, in
Courtroom 1D. I was a bailiff. And my job was just --
as the bailiff, is to maintain order in the courtroom,
to help with anything the judge or the staff needs, and
mostly -- and also for the safety of the courtroom, so
just presence.
Q Okay. And do you recall what time you were present in
Courtroom -- what was it, 1D; is that correct?
A Yes. One -- I believe it's 1D.
Q Okay. When were you on duty in Courtroom 1D on
March 12th, 2014?
A My day started at nine -- 0900 in the morning until
4:00.
Q Okay. And at some point during your duty in Courtroom
1D, did you have occasion to exercise your -- your --
in your capacity as security, was there an incident
that occurred?
A Yes, there was.
Q And what was the beginning of that incident?
A The beginning of the incident was I noticed a -- I
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - DIRECT 13
noticed people in the gallery talking during the court
proceedings. And part of my duty is to make sure
there's no talking in the gallery, especially while
we're on the record.
Q Do you recall, approximately, what time it was during
the day that you first -- that first came to your
attention?
A I do not recall the actual -- the actual time.
Q Okay. And you referred to the individuals as people
talking in the gallery, correct?
A Yes.
Q Okay. So, obviously, that implies more than one
individual; is that right?
A Yes, sir.
Q Okay. And were you able to -- well, what did you do in
response to your observations?
A Well, I -- I saw, when I approached the group, and I
told them to please refrain from talking while we're on
the record, and I gave them the "shh" sign putting my
finger up to my nose (indicating).
Q Okay. And prior to that moment in time, were you aware
of any prior issues in that courtroom?
A Not in that courtroom, but in the courthouse, yes.
Q What information did you have at that point?
A I was given information that a gentleman was in another
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - DIRECT 14
courtroom disrupting the proceedings, passing notes and
talking during -- while we were on the record.
Q And was that individual someone you also observed in
Courtroom 1D?
A Yes, sir.
Q Was that individual someone you observed that drew your
response to, essentially, "shh" the talking in the
gallery?
A Yes, sir.
Q And do you recognize that individual in the courtroom
here today?
A Yes, sir. I do.
Q Could you please identify that person?
A He's the defendant, Mr. Mashak.
MR. COLBURN: May the record reflect the
identification, Your Honor?
THE COURT: It shall.
BY MR. COLBURN:
Q Now, Deputy, you mentioned your attention being drawn
and your response to it. What occurred next?
A After I had asked them to stop talking, the defendant
rolled his eyes and continued. I told him it was not
tolerated. I then asked for him to follow me outside
the courtroom so we could talk more about what he was
doing. He had asked me for my badge number and such
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - DIRECT 15
after that. At that time I told him I will give it to
him outside of the courtroom. And he then followed me
outside the courtroom.
Q Now, you mentioned that there were a number of people
talking, but then your attention was drawn to the
defendant. Why is it -- why was your attention
focussed in that area in particular?
A Because he kept talking after I told him not to.
Q I see. So in response to requests to step out into the
hallway, what happened next?
A He followed me out to the hallway. I explained to him
that there was no talking permitted in the courtroom.
This was not the first time that he's been asked to
leave the courtroom. My intent was to have him come
with me to the lobby, talk to him more 'cause it
probably wasn't -- I wasn't ready to let him back into
the courtroom considering he's been warned before. He
asked me for my badge number and my name. I told him I
would give it to him once he started walking towards
the lobby. He, at that point, then started getting
loud and boisterous, noisy, trying to talk over me. I
asked him a couple of times, can we just walk this way
over here. And he refused. And after more than a
couple of times asking and him getting loud. And I
placed him under arrest and brought him upstairs.
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MICHAEL VAI - DIRECT 16
Q Now, your interactions with the defendant that you've
just described, where in particular did those
interactions occur?
A It happened right in front of the courthouse -- excuse
me, the courtroom door of 1D and 1C, I believe, right
in the corner downstairs, also in the waiting area for
other people who are waiting to go inside for their
proceedings or what have you.
Q Okay. And, to the best of your recollection, about how
long was your interaction with the defendant outside of
the Courtroom 1D before you made the determination that
you would arrest him?
A One to two minutes.
Q And was there -- were there any particular comments
that you recall the defendant making to you?
A No, just that he was not -- I don't recall what he was
saying. I do know he was getting loud and talking over
me and boisterous.
Q And why did that concern you at that time?
A It concerned me at that time because, where we were, it
was making a scene. I was worried that it was
disrupting other court proceedings and disrupting the
peace around us for the other people that were in the
lobby.
MR. COLBURN: Your Honor, may I approach
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - DIRECT 17
the clerk?
THE COURT: You may.
MR. COLBURN: Your Honor, at this time I
would like to offer to the court what's been identified
for -- or labeled for identification as Exhibit 8,
which it's my belief that there would be no objection
from the defense. This is a CD containing two videos,
video clips, recorded on surveillance from inside the
courtroom itself as well as the hallway outside the
courtroom on the date of this incident.
THE COURT: Mr. Rogosheske, any objection
to Exhibit 8?
MR. ROGOSHESKE: No objection, Judge.
Just a note that this video was just provided to us on
Monday.
THE COURT: All right. All right.
Exhibit 8 will be received.
MR. ROGOSHESKE: Judge, if I could just
add just a couple more quick comments?
THE COURT: Go ahead.
MR. ROGOSHESKE: Just provided to us on
Monday. And it's a fraction of the video that we have
requested.
THE COURT: Okay.
MR. COLBURN: Offering Exhibit 8, Your
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - DIRECT 18
Honor.
THE COURT: Exhibit 8 will be received.
BY MR. COLBURN:
Q Deputy Vai, were you on your own out in the hallway
with the defendant at the time that you interacted with
him? And, I guess what I mean by that, was there any
other courthouse bailiff present at that time?
A There were no other courthouse bailiffs present at that
time.
Q And how is it that you made the decision then to arrest
Mr. Mashak?
A I -- I made the decision based off my own personal
threshold I guess I would call it. I asked him several
times to lower his voice. I asked him several times
to -- to follow me. None of that was getting
compliance. And I made the decision just to -- at that
point.
Q And could you describe Mr. Mashak's tone of voice at
that point outside the door of Courtroom 1D?
A Loud, boisterous. Like I said, he was yelling over me
every time I tried to give him direction or to talk to
him, and obviously irritated.
Q And do you recall any other individuals being present
in the hallway or the common area of the courthouse at
that time?
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - CROSS 19
A Numerous bystanders and -- yes. I do, yes.
MR. COLBURN: Okay. That's all I have
for the deputy, Your Honor.
THE COURT: Thank you.
Cross-examination.
MR. ROGOSHESKE: Thanks, Judge.
CROSS EXAMINATION BY MR. ROGOSHESKE:
Q Deputy, you said that you've been on the job about
15 months --
A Yes, sir.
Q -- when this incident happened?
A Yes. Oh --
Q So you're hired in about November 2013, correct?
A No. I -- I may have misspoke. I've been a deputy for
15 months. I -- at that time maybe I'd been a deputy
for three or four months.
Q Three or four months. Have you had -- handled many
disorderly conducts?
A In my career or?
Q Yes, in your career.
A Yes, I have --
Q Okay. After just being on the force for three months,
you handled a bunch?
A Could -- I'm not positive. I thought you meant have I
-- have I just handled disorderly conduct in my
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - CROSS 20
15 months.
Q Correct. I'm sorry, that's a poor question. In your
-- in your capacity as a police officer, have you
arrested many people for disorderly conduct?
A In my 15 months, arrested, no.
Q Okay. Would this be -- would this have been your first
one?
A My first ever, yes.
Q And so this was your very first assignment being
assigned to the courthouse, correct?
A Yes, sir.
Q Okay. Were you present in the Courtroom 1D in the
morning session?
A No, I was not.
Q Okay. Where were you assigned in the morning; do you
remember?
A I do not recall.
Q Okay. At some point though you had an interaction with
Deputy Forrey; is that correct?
A Yes, sir.
Q Okay. And can you just walk us through that
interaction again?
A The interaction was around our -- around our break or
lunchtime. I found -- at that time we kind of had an
update what's going on in our courtrooms. And at that
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - CROSS 21
time Deputy Forrey had explained to us that there was a
gentleman in his courtroom. I don't recall what court
he was in, that that gentleman was talking and passing
notes to either the defendant or the prosecutor, but he
was being disruptive in a courtroom.
Q Okay. And so did he specifically name anyone?
A He did not name, but he showed a -- on the video he
showed who he was, pointed him out.
Q On --
A On our live surveillance.
Q Okay. And so back at the bailiff's station when you
were having lunch, Mr. -- my client was still in the
courtroom? People were still in the courtroom?
A I believe so, yes.
Q Okay. And so he walked you over to the camera, and
pointed out. He said, "This is the guy that's being
disruptive. This is the guy that passed the note."?
A I wouldn't say it happened exactly like that, but he
walked me over just to pat -- to point him out. I
think we were just in the area of that. And he was
just updating us and pointing him out.
Q Okay. So he never walked up to -- he never walked up
to my client and identified him, got his driver's
license or anything like that? He just pointed him out
to you on the video? He didn't name him specifically?
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - CROSS 22
A No, he did not.
Q Okay. In fact, in Deputy Forrey's report, he notified
-- he refers to a person causing a disturbance in the
courtroom as a heavyset, white male talking to several
individuals around him. Does that sound about right?
A That sounds about right.
Q How come Deputy Forrey wouldn't include that
information in his report, that he brought you over to
the video screen and identified him?
MR. COLBURN: Objection. Calls for
speculation.
THE COURT: Sustained.
BY MR. ROGOSHESKE:
Q All right. You talked previously that when you were in
the courtroom and you witnessed people talking, it was
a group of people, correct?
A Yes, sir.
Q How many people would you say were in the group?
A I don't recall. Maybe one or two -- or excuse me, two
to three.
Q Two to three. Do you want a glass of water or
anything?
A No. Thank you.
Q Yes?
A Oh, no. Thank you.
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Q Okay. So it was more than two people?
A I don't recall exact.
Q Okay. In your report, you refer to just Mr. -- Mr.
Mashak was talking?
A Yes. He was talking loudly.
Q Okay. But so now you're saying that other people were
talking back to him. Is there multiple people talking?
A Yes.
Q Okay. How come you didn't ask the other people to step
out of the courtroom?
A Because after I had told him to stop talking the first
time, they had stopped.
Q Okay. But it's your testimony that Mr. Mashak
continued talking?
A Yes, sir.
Q And one more thing I forgot to ask about the previous
incident with Mr. Mashak passing notes in the
courtroom. You previously testified, maybe you just
misspoke, that he was in a different courtroom, you
noticed him in a different courtroom. Was he in
Courtroom 1D that morning or was he in a different
courtroom?
A I don't recall what courtroom he was in.
Q Okay. Okay. So before you kicked Mr. Mashak out of
the courtroom, or asked him to come out of the
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MICHAEL VAI - CROSS 24
courtroom, what -- how long had he been in the
courtroom?
A I don't know how long he had been in the courtroom
prior. I know that he was there before I was.
Q And how long would you say the interaction was before
it? How long were you in the courtroom before he had
your interaction and asked him to step out?
A I don't recall exact time. I wasn't -- maybe three to
five minutes.
Q A short period of time?
A A short period of time.
Q Okay. Were other people in the courtroom disturbed?
A Could you rephrase the question?
Q When you saw Mr. Mashak talking in the courtroom, were
other members of the courtroom disturbed?
A I -- I don't know if they were disturbed or not.
Q Okay. Did the judge stop the proceedings?
A No, he did not.
Q At any time did he stop the proceedings and say, "Hey,
stop talking." Did he do that?
A No, he did not.
Q Did he hold anybody in contempt of court for talking?
A No, he did not.
Q Do you know if anybody was held in contempt in the
morning for talking or passing notes or doing anything?
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MICHAEL VAI - CROSS 25
A Not that I recall.
Q Okay. When you asked him to step out of the courtroom,
did he stand up and walk out of the courtroom?
A Yes, he did.
Q Did he give you -- did he say anything other than
asking your name and badge number in between walking
out of the courtroom and getting out into the lobby?
A No, he did not.
Q And when you're -- when you're out in the lobby -- in
your report you refer that he drew the attention of
every person in the lobby area. Have you seen the
video on this matter?
A I have.
Q You have? From watching the video, does it look like
the attention of every single person in the video is
drawn?
MR. COLBURN: Your Honor, I'm going to
object to that question. The evidence speaks for
itself and is before the court as an exhibit.
THE COURT: Sustained.
BY MR. ROGOSHESKE:
Q Did you talk to anybody whose attention was drawn by
this incident?
A Yes, I did.
Q Okay. Who did you talk to?
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MICHAEL VAI - CROSS 26
A I talked with Brenda Lightbody.
Q Okay. Anybody else?
A No.
Q Okay. Did you take any statements from anybody?
A I personally did not.
Q Do you know of other people that took statements?
A I do.
Q Okay. Who was that?
A Deputy Gonder.
Q Do you know who he took a statement from?
A From Brenda Lightbody.
Q Okay. Does that statement exist today? Because it
hasn't been provided to me.
A I -- I don't know where that statement is.
Q Okay. Did you make it a part of your file through this
investigation?
A I did not make it a part of my file.
Q Okay. So whose responsibility is that? Once a -- once
a statement is taken, I'm assuming you develop some
sort of a report. You developed this police report,
obviously. How does it get transferred from you, or
from whomever, to the city attorney?
A The -- after the statement was taken, it's usually
attached to the report of the person who took the
statement.
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MICHAEL VAI - CROSS 27
Q Okay. So is it your responsibility to send that
statement over?
A It would be my responsibility.
Q Okay. And so you knew of the statement existing;
however, it did not make it over to the city attorney?
A That's correct.
Q Does -- do you know where that statement is today?
A I do not.
Q So you don't -- through some investigation, you might
be able to find it, but you don't know?
A Through this investigation, I'm sure I could, but at
this time I do not.
Q Okay. And you don't know why it wasn't sent to us?
A I do not know why.
Q So you say that the client -- or excuse me, you say
that the defendant was hollering at you in the hallway,
correct?
A Yes, sir.
Q That's the word that you use in your report?
A Yes, sir.
Q And he was being loud and boisterous, correct?
A Yes, sir.
Q At any time did he swear at you?
A I don't recall.
Q Did he threaten to fight you?
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MICHAEL VAI - CROSS 28
A No, he did not.
Q Did he wave his arms and scream and yell at you?
A No, he did not.
Q Did he do anything to make you fear for your safety or
for the others around you, other than talking loudly?
A I did not fear for anyone's safety, no.
Q Did you -- did he use any abusive or obscene words?
A I don't recall.
Q Did he try to take off when he got out of the
courtroom?
A No, he did not.
Q Was he rude to you?
A Other than the shouting over me, no, he was not.
Q Okay. So you would say that he was pretty much
compliant as opposed to -- other than shouting at you?
A Well, I wouldn't say that, no, because I had asked him
to follow me out of the area so we could talk in the
lobby, and he refused.
Q Okay. So he's just staying as opposed to walking with
you down the lobby?
A Yes, sir.
Q And talking loudly?
A Yes, sir.
Q Did you ask him to leave at any point?
A You mean leave the courtroom, sir?
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MICHAEL VAI - CROSS 29
Q Leave the courthouse. Did you say, "That's it. Get
out of here. It's your time to leave the courthouse."?
A I did not tell him to leave the courthouse.
Q You just told him to walk away?
A Walk with me and to the lobby.
Q And you testified previously that it was your
intention, when you pulled him out in the hallway,
after talking to him it was -- it was your intention to
let him return to the courtroom?
A Not to 1D, no.
Q No. It was never your intention to allow him to
return?
A No.
MR. ROGOSHESKE: Okay. Judge, may I
approach?
THE COURT: You may.
BY MR. ROGOSHESKE:
Q Deputy, I'm showing you a document I previously
submitted to the court in my submission on February 6th
marked at Exhibit B. For identification purposes here
today, it's marked as Exhibit 009; is that correct?
A Yes.
Q And this document is a document dated May 8th. It's a
letter from Tim Leslie, the Chief Deputy Sheriff at the
time. And can you verify that this is, in fact, the
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MICHAEL VAI - CROSS 30
letter that I'm showing you?
A Yes, I can.
Q Okay. And I'll summarize it for you, but -- and take a
look and read through it, but this is a letter my
client filed, a citizen's complaint. And this is
Deputy Leslie's, after his investigation, his letter
back to my client in regard to that citizen's
complaint. So take a minute to take a look at that.
And I'm going to ask you about the underlined section
in the box part.
THE COURT: Mr. Rogosheske, I think your
witness is ready.
MR. ROGOSHESKE: Oh, sorry.
THE COURT: That's all right.
THE WITNESS: Sorry.
BY MR. ROGOSHESKE:
Q Okay. Have you had enough time to take a look at this?
A Yes, I have.
Q Okay. And you understand what's going on in the
letter?
A Yes, I do.
Q Okay. Can you read this underlined section here in
Paragraph 3?
THE COURT: Well, before you do that, do
you intend on offering the document?
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - CROSS 31
MR. ROGOSHESKE: I do. I would offer
Exhibit 009, Judge.
THE COURT: Any objection to Exhibit 9?
MR. COLBURN: No, Your Honor.
THE COURT: All right. Exhibit 9 will be
received.
MR. ROGOSHESKE: Hang on one second.
Judge, may we approach one second?
THE COURT: You may.
(WHEREUPON, a discussion was had at the
bench not recorded by the court reporter.)
THE COURT: All right. Exhibit 9 is
received.
MR. ROGOSHESKE: Sorry about that. Sorry
for the delay.
BY MR. ROGOSHESKE:
Q In Paragraph 3 there, can you read what's underlined?
A Sure. "The deputy stated that he wanted to allow you
to return to the courtroom had he agreed to abide by
the rules. "
Q And so did you ever ask him that?
A Ask him what, sir?
Q If he -- if he would abide by the rules?
A I tried to, but he was talking.
Q Okay. And so -- but you testified just before that, it
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - CROSS 32
was not your intention to allow him to return to the
courtroom?
A Not at the time, no. Not when we first walked out, not
at the time.
Q Okay. And then this box here it says, "From witness
statements," correct?
A Okay.
Q And can you read after that?
A "From witness statements, we learned that one witness
said that Deputy Vai was giving you every opportunity
to settle down, but you would not. Another witness
stated that 'if he would have calmed down, Deputy Vai
would have left him alone.'"
Q And so, from this letter, it's clear that -- is it
Deputy? Chief Deputy? How do you refer to him?
A At the time it would be Chief Deputy.
Q Chief Deputy Leslie reviewed some witness statements
before writing this letter, correct?
A Yes, sir.
Q And would you assume that those are the same statements
that -- that you were referring to earlier of Ms.
Lightbody?
A Yes. I don't want to assume but, yes.
Q Okay. Do you think that there are other statements out
there I guess is my point?
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MICHAEL VAI - CROSS 33
A Not that I would know of, no.
Q And you don't know, specifically, which ones he
reviewed for this letter?
A No, I don't.
Q And you did not submit them to him for his review, any
statements?
A I personally did not submit any.
Q One more thing on the -- when my client came out and he
asked you for your name and badge number. Do you have
a policy in place? Does the Dakota County Sheriff have
a policy in place if a citizen asks you for your name
and badge number, you're supposed to give it to them?
A Yes. We are supposed to give it to him. And I was
willing to give it to him, but just not right in the
middle of what we talked about.
Q Is there a policy on how many times they have to ask,
or is it just your discretion?
A I don't know how many times you have to ask.
Q Okay. You're not aware -- do you think there's a
policy that exists to that effect?
A I'm sure there is, yes.
Q Okay. If -- if you would have answered -- if you would
have answered and given your badge name and badge
number right away, today do you think we would be here
today?
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MICHAEL VAI - CROSS 34
MR. COLBURN: Objection. Speculation.
THE COURT: Sustained.
BY MR. ROGOSHESKE:
Q All right. At any time did you -- did you read my
client his rights?
A No, I did not.
Q Okay. Do you know if any deputy did?
A I do not know.
Q Okay. When he was in the courtroom and he was talking
loudly to another person, was it loud enough for a lot
of people to hear?
A It was loud enough for me to hear. I was a good couple
feet away from him.
Q Okay. About how far away were you?
A I'd say maybe five, six feet.
Q Do you know what he said?
A No, I do not.
Q It wasn't loud enough to be audible, but it was just
loud enough to know that he said something?
A Yes, sir.
Q And, again, no one at the counsel table turned around?
The judge didn't stop the proceedings? Nobody else
would have heard this except for yourself, correct?
A I don't know if the -- no one turned around from the
counsel table. I don't recall that. But the judge did
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MICHAEL VAI - REDIRECT 35
not stop the proceeding.
Q Did he arouse anger in anyone, do you think, in the
courtroom?
MR. COLBURN: Objection. Calls for
speculation.
THE COURT: Sustained.
MR. ROGOSHESKE: That's all the questions
I have for right now.
THE COURT: Mr. Colburn, any redirect?
MR. COLBURN: Thank you, Your Honor.
REDIRECT EXAMINATION BY MR. COLBURN:
Q Deputy Vai, you've described some of the events that
occurred outside of Courtroom 1D on the date of this
event. Are you -- at that time, were you familiar with
any of the surveillance or video recording practices or
-- that were going on in the courthouse that day?
A I was aware that we do have video surveillance. I
don't know if that answers your question or not.
Q And do you have any role in what gets recorded or
doesn't get recorded?
A No, I do not.
Q Were you aware of any video recording of the defendant
on the date of the incident?
A Other than of the actual incident, no, not anything
else, no.
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MICHAEL VAI - REDIRECT 36
Q And did you -- once you had arrested the defendant, did
you make any particular efforts to request that video
of the events of that day be preserved or become part
of this file?
A Yes, myself and another deputy.
Q And what -- what did you do?
A We made a phone call to -- I'm not too sure, off the
top of my head, the actual department, but we made a
phone call. And we requested that a -- certain cameras
and the times that we asked to be saved. And I don't
recall the actual cameras that we asked to be saved,
but it was the incident. It was what the -- the two
views from the incident.
Q Okay. And did you have any other action with regard to
the video recording other than the request that you --
you stated you made?
A After that I did not.
Q And you don't know who you spoke to with regard to that
request about the video?
A I didn't actually speak to anyone. I was being showed
how to request video.
Q Can you describe how that occurred, please?
A Another deputy had shown me to make a phone call to the
department, which I'm not aware, and request the tapes.
And we waited for the -- we requested the tapes, or the
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MICHAEL VAI - RECROSS 37
film, if it was put on CD, and the CD sent to us.
Q And do you recall receiving that CD that you just
referred to?
A I do -- I didn't get it personally, but I do remember a
CD being sent to the bailiff's office.
Q Okay. Do you know what the content of that particular
CD was?
A It was the -- the one of the right outside Courtroom
1D, my interaction with defendant. And then the other
one was a view from the juvenile courthouse, which is
just down the hall pointing in the same direction. Or
excuse me, juvenile courtroom.
Q And are you familiar with the general practices for
Dakota County with regard to the recording and
retention of courthouse common area and courtroom
video?
A No, I'm not.
Q That's not your department?
A No.
MR. COLBURN: Okay. That's all I have,
Your Honor.
THE COURT: Mr. Rogosheske, anything
additional?
MR. ROGOSHESKE: Yes. Thank you, Judge.
RECROSS EXAMINATION BY MR. ROGOSHESKE:
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MICHAEL VAI - RECROSS 38
Q How come you didn't ask to have the morning session
request -- or the -- excuse me, strike that. How come
you didn't ask to have the morning video preserved in
Courtroom 1D?
A I didn't find it was relevant to the incident that
happened that afternoon.
Q How could it not be relevant if you were put on a
mission, Mr. Mashak, for passing notes in the morning
and causing --
MR. COLBURN: Your Honor, I'm going to
object. That calls for a legal conclusion.
THE COURT: Sustained.
BY MR. ROGOSHESKE:
Q You previously testified that you were warned about Mr.
Mashak, correct?
A Yes, sir.
Q And that was due to his conduct in the morning session?
A Yes, sir.
Q And, because of that, would you say you were
hypersensitive to anything that Mr. Mashak might do in
the afternoon?
A Yes, sir. I would say -- I don't know hypersensitive.
I wouldn't say that. But I was aware of his conduct.
Q And so because you were put on -- put on alert because
of his conduct in the morning, don't you think that's
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MICHAEL VAI - RECROSS 39
relevant to include that video?
MR. COLBURN: Objection. Calls for legal
conclusion as well as speculation.
THE COURT: That's overruled. You can
answer if you think it was important or not.
THE WITNESS: At the time I didn't. No,
I didn't.
BY MR. ROGOSHESKE:
Q Do you have a different conclusion now?
A No, I do not.
Q Okay. The camera angles that you spoke about before
was from outside the juvenile courtroom, correct, 1A?
A I believe it's 1G.
Q Or 1G. Sorry. You're right. 1G. It's like the sky
cam, right? Because you're at the -- all the way at
the other end of the hallway 1D, correct?
A I didn't notice it.
Q It's a long way away?
A It's -- I wouldn't say it's a long way away, no, but
it's -- it's not right on top of you, no.
Q Is there another camera down at that end of the
courtroom? Or excuse me, the courthouse?
A There are other cameras in that -- in that area, yes.
Q And do you know why those camera angles weren't
preserved?
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MICHAEL VAI - RECROSS 40
A Because they didn't show the incident.
Q Okay. So this is the only camera that shows the
incident in front of 1D?
A No. These are not the only -- these are not the only
two incidents that -- the camera shows the incidents.
These are the only two that I felt were necessary to
build for me.
Q So would you say there's a blind spot in front of 1D?
A I -- I -- I don't know. I'm not familiar with all the
camera angles off the top of my head, no.
Q The ones that you reviewed. So were there other camera
angles that were closer to where you were?
A No, there were not.
Q Okay. So, again, so maybe I'm asking a poor question,
but --
A Let me --
Q So the camera from 1G is pretty far away?
A Yes.
Q How come there's not a camera -- or is there a camera
that's in front of 1D that would show a closer view of
you and the interaction of Mr. Mashak outside the
courtroom?
A I don't know. I don't know how the cameras are placed.
I know I used the camera from 1G because it showed the
people around turning and looking at us as they were --
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MICHAEL VAI - RECROSS 41
as our conversation was going.
Q Did you review a camera angle that was closer?
A I did. I guess I'm kind of confused because I
submitted two -- I submitted -- or there's -- we're
talking about two angles, so --
Q I'm sorry. So I'm talking about, specifically, that --
the two videos that I have are, one, in the courtroom,
Courtroom 1D, and then the second video is in the
courtroom outside, or in the courthouse in the lobby
outside of Courtroom 1D.
A Okay.
Q And so, specifically, I'm talking about the camera on
1G. And it seems like it's pretty far away. I'd say
it's probably 50, 60 feet away, wouldn't you, at least?
A At least.
Q My question is; did you review a camera that was closer
to the incident?
A I did, but there was no footage of the incident so I
did not use it.
Q Okay. So there are cameras that are closer; however,
the view was blocked?
A Yes, I believe.
Q So the only camera that you know of, just you, that you
know of, that shows a good view out in front of 1D is
this camera on that -- that you preserved?
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MICHAEL VAI - RECROSS 42
A That I know of?
Q Yes. I'm just talking about you, that you reviewed for
this file.
A Okay. Oh, yes. Yes.
Q I'm just talking about you.
A Yes.
Q Who showed you how to submit the request and who walked
you through the process?
A Deputy Tim Gonder.
Q Okay. And he was also involved in this incident, not
during the arrest, during the after -- the aftermath?
A Yes, sir.
Q And is he -- I know he's been on the force longer than
you have, but is he your supervisor?
A He -- he would not be a supervisor, no.
Q Just another deputy on call at that time, or working at
that time?
A He -- on a senior list, no, he wasn't, but he is not
considered a supervisor like a sergeant.
Q Okay. Did -- when you placed my client under arrest,
did he ask you to preserve the video?
A Do you mean did he ask me to preserve video to use, or
did he ask me if I did preserve video?
Q Either. Did he ask you -- did he say anything about
the video?
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MICHAEL VAI - RECROSS 43
A Yes. He recommended that we get video of the incident.
Q Did he say all the incident?
A All of the disorderly conduct.
Q Okay. And did he ever submit any writings to you
personally that you saw, asking to preserve the video?
A Any writings to me?
Q A letter. Did he submit a letter to you? Did you see
any letters requesting the video?
A He did not write anything to me, no.
Q But he did make a verbal request to you?
A He did not request anything from me, no.
Q Well, I thought you just testified that he did say to
preserve the video?
A Not from -- I guess I'm confused. He didn't ask me to
preserve. He recommended for me doing this report that
I should get the video of the incident.
Q Thank you. At the time of the arrest?
A Yes.
Q Okay. Thank you.
A I'm sorry.
Q That's okay. And so you may or may not know, the video
was just disclosed to us on Monday. Up until this
point, this case had been going on almost a year. We
were made aware of -- that no video existed, that the
video was either taped over or it wasn't available,
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - RECROSS 44
whatever the process, whatever happened. When you
requested the video, what's the process after you
request the video?
A The way that it was showed to me, that the video would
come in a CD, and then that would get forwarded to who
needed to be for that report.
Q Okay. When that CD came in, did you review it?
A I did not review it when the CD came in, no.
Q You just got the CD and shipped it out to the city or?
A I did not ship anything out.
Q Okay. So what's the process there? Once you get the
CD back, you got your report ready to go. Then what do
you do with it?
A My -- I should attach it to the report and send it.
Q It's your responsibility to send it to the city
attorney?
A Yes, it is.
Q Okay. And so when you sent a CD over -- you sent a CD
over?
A I did not send a CD over.
Q You just sent your report?
A Yes.
Q Okay. And so would that be the reason that we haven't
got the video to this point?
A That could be, yes.
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - REDIRECT 45
MR. ROGOSHESKE: Okay. Okay. Thank you.
THE COURT: Mr. Colburn, anything else?
MR. COLBURN: Very briefly, if I may,
Your Honor.
THE COURT: Okay.
REDIRECT EXAMINATION BY MR. COLBURN:
Q Deputy, I just want to be very clear. Now, you're the
individual who interacted with the defendant and made a
decision to arrest him and charge him with disorderly
conduct, yes?
A Yes.
Q Okay. Did the disorderly conduct charge that you wrote
up for the defendant arise out of his conduct you
observed inside the courtroom?
A Disorderly conduct came -- no. Disorderly conduct came
from our conversation outside the courtroom.
Q Outside of Courtroom 1G -- or pardon me, 1D?
A Yes, sir.
MR. COLBURN: Okay. That's all, Your
Honor.
THE COURT: All right. Mr. Rogosheske,
anything else?
MR. ROGOSHESKE: Yep. Just two quick
questions.
RECROSS EXAMINATION BY MR. ROGOSHESKE:
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - RECROSS 46
Q Did my client ever try and place you under citizen's
arrest?
A Yes, he did.
Q Okay. And then, also just again, three quick
questions. Did -- anything my client was doing, did it
anger you?
A No, it did not.
Q Okay. Did it -- did it anger anybody else around you
that he talked to?
MR. COLBURN: Objection. Calls for
speculation.
THE COURT: Sustained.
BY MR. ROGOSHESKE:
Q Did it 'cause alarm or resentment in you?
A When you say, "alarm", could you elaborate on that?
I'm sorry.
Q That's all right. Were you alarmed by anything that he
was saying?
A Not by anything he was saying, no.
MR. ROGOSHESKE: Okay. Thank you.
THE COURT: All right. Deputy, you may
step down.
(WHEREUPON, witness excused.)
THE COURT: Mr. Rogosheske, I need
Exhibit 9.
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FIRST JUDICIAL DISTRICT
MICHAEL VAI - RECROSS 47
MR. ROGOSHESKE: Judge, I did -- I did
submit it to the court. I don't know if that's 'cause
this is -- I get you.
MR. COBURN: And, Your Honor, I -- I --
before the court receives 9, Your Honor, may I see what
it actually is comprised of?
THE COURT: It is the -- simply the
two-page letter from Chief Deputy Sheriff Tim Leslie.
MR. COLBURN: Okay. Thank you.
THE COURT: Mr. Colburn.
MR. COLBURN: Thank you, Your Honor. The
state would call Mitchell Sellner.
THE COURT: Mr. Sellner, if you'll head
up to the witness stand. And I'll ask you to remain
standing and raise your right hand.
THE WITNESS: Yes, sir.
MITCHELL SELLNER,
called as a witness, being first duly sworn, was
examined and testified on his oath as follows:
THE COURT: Thank you. Please be seated.
MR. COLBURN: May I have just a moment,
Your Honor?
THE COURT: You may. All right. Mr.
Sellner, as soon as you're comfortable, I'll ask you to
speak into the microphone nice and loud and state your
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - DIRECT 48
full name, spelling your last name for the record.
THE WITNESS: Mitchell Sellner,
S-E-L-L-N-E-R.
THE COURT: Thank you. Mr. Colburn.
MR. COLBURN: Thank you, Your Honor.
DIRECT EXAMINATION BY MR. COLBURN:
Q Mr. Sellner, good morning. Can you tell us how you are
employed?
A I'm employed by Dakota County.
Q And what is your job title?
A Security consultant.
Q Are you able to describe, at least briefly, what your
responsibilities are in that capacity?
A Yes. My primary responsibilities are to maintain and
operate the security and life-safety systems within the
county.
Q And, as part of that, do you have some involvement with
the recording of video in courtrooms and common areas
of the courthouse?
A Yes.
Q What in particular do you have to do with that?
A All of the cameras within the county are recorded on
separate servers. And when video is requested to be
saved that has been recorded, I retrieve that video and
put it in a separate server so it doesn't get
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - DIRECT 49
overwritten.
Q I want to ask you about that. Is there a standard
practice for the recording and retention of video taken
in courtrooms and common areas of the courthouse?
A Yes. The practice is all of the still cameras are
programmed to be recorded on motion only. When they
depict motion, they record. And it's saved in the
server. The recorded video stays on a server for a
minimum of 30 days. And then it is -- once the server
reaches its capacity, it's overwritten.
Q And is the server, for lack of a more artful term,
programmed to do this recording and overwriting without
specific direction from you or any other person?
A Correct.
Q And you speak -- you spoke to a -- I think you said a
minimum of 30 days --
A Correct.
Q -- for retention of any recorded images or video; is
that right?
A That is right.
Q Now, when you use the term, "minimum of 30 days,"
should we understand that that -- whether it's 30 days
or, you know, 31 days or 40 days, is that determined
purely based upon the server capacity?
A Part of it. It's -- we use the server capacity. We
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - DIRECT 50
use the number of cameras that are on each server, the
different types of cameras, whether it is a still
camera or a moving camera. And then we then look at
the history to see what the average time frame is
that's saved on a server. And then we -- when we set
them up, we adjust how many cameras are on each server,
not, obviously, to exceed its capacity or fall under
30 days.
Q And so it's -- is it -- is it impossible to say that a
particular video would be kept for 30 days or 40 days?
That all sounds like somewhat variable; is that right?
A That's correct. It's very -- you don't know from one
month to another if it's going to be 30 or 40 days.
It's hard to say, depends on the recordings.
Q Okay. And, again, those recordings are done based on
motion sensitive equipment; is that right?
A Correct.
Q So some months there are -- there's more motion that is
sensed, and, therefore, more recordings, yes?
A Correct. Yes.
Q Okay. But you did say it's at least a 30-day period
for which -- before anything is overwritten on the
server; is that right?
A Yes.
Q Okay. Now, in your capacity with Dakota County, did
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - DIRECT 51
you receive any kind of request to preserve video
recordings that were made on March 12th of 2014 at the
Dakota County, Hastings, courthouse?
A Yes.
Q And do you -- are you able to speak as to when you
received that request?
A No.
Q Dumb question perhaps, but tell me why not?
A I do not maintain a running log of who requests the
video. I -- when I am requested, then I retrieve the
video and put it on a separate server and mark it,
particularly which camera it is and the date of the
recording.
Q And, again, being specific as to the date of
March 12th, 2014, did you receive a request to preserve
some kind of video that would have been recorded on
that date here at the Hastings courthouse?
A Yes.
Q And in response to that request, what did you do?
A I -- whatever the specification was, which would be
which camera it is, and a specified window of time, I
find the camera. I program in the time that I'm
looking for. It retrieves the video. And then it's
saved.
Q Okay. And then in this particular case it sounds like
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - DIRECT 52
you did do that; is that right?
A Yes.
Q Okay. Now, is there a standard practice then, once you
receive a request to preserve video recordings, for
what you would do with the saved recordings?
Essentially, what -- would you keep them in a filing
cabinet or would you send it to the requesting agency?
What -- what do you do with that saved recording?
A Always the saved recording is saved onto a separate
server from the video server itself so it does not get
overwritten or deleted. If there is a request for a
copy of the video, then I copy the file onto a DVD and
hand it over to the requester.
Q Okay. And did you receive a request for the video that
you saved from March 12th, 2014?
A Yes.
Q When did you receive that request?
A I believe that was last week from your office.
Q Okay. So, prior to that, it sounds as though you saved
this video based on a request from you don't recall
whom, correct?
A I don't recall from whom, but considering it was from
the courtrooms, more than likely from the sheriff's
department.
Q Okay. And then the next time then you said you got a
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - DIRECT 53
request from my office in the neighborhood of a week
ago for this video; is that right?
A Correct.
Q Okay. Never got a request from the sheriff's
department for a copy for -- to attach to their file?
A I don't recall if I -- not recently. I don't recall if
they requested one last year when this happened or not.
Q Okay. And, again, how is it determined -- now, there
are a lot of cameras in the courthouse, correct?
A Yes.
Q More than two, fair to say?
A Yes.
Q Okay. How is it determined what specific video you
save? Is that based upon the request that you receive?
A Correct.
Q Okay. And, in this case, you believe that was from the
sheriff's office?
A Yes.
Q Okay. And now you've provided two videos; is that
correct?
A To your office, correct.
Q Okay. And other than those two videos, was there
anything -- any other video recording from March 12th
of 2014 that you were asked by the sheriff's office to
preserve?
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - DIRECT 54
A There is one other file on -- on the saved server for
that date. And it is taken from the intake holding
here on the second floor.
Q Okay. And what became of that video?
A It's still saved. I have not turned it over to anybody
that I recall.
Q Is that video in the -- essentially, the holding area
by the bailiff's station?
A Correct.
Q Okay. Have you reviewed that video?
A Probably. I initially looked at it for about two
minutes. And I did not see anything on it pertaining
to this situation.
Q Mr. Sellner, I want to ask you a little bit about what
appears on the saved video recording from the courtroom
and the hallway. And you previously stated that the
recording is triggered by a motion sensor; is that
right?
A Correct.
Q Okay. Once the camera is triggered to start recording,
what -- what determines when it stops recording?
A When motion stops.
Q The instant motion stops it stops recording?
A No. The cameras are programmed, when they detect
motion, that -- they're constantly viewing, whether
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - DIRECT 55
they're recording or not. They're programmed. And in
this case they're programmed to start recording
15-minutes -- or 15 seconds before it detected motion.
And then same, when detection -- or when motion stops,
it records for another 15 seconds.
Q Okay. And then it would automatically --
A Stop recording.
Q I see. What type of motion is necessary to trigger
these cameras to start recording?
A Body movement.
Q Of? I mean, how far away are the cameras able to
depict body movements that would trigger their
recording?
A That can be adjusted as well, depending on the cameras.
Q So is that on a camera-by-camera basis that that would
be set up?
A Yes.
Q Have you viewed the recording of the incidents in this
matter that were down from the camera outside of
Courtroom 1G?
A Briefly.
Q So you're familiar, any ways, with the angle that that
records that; is that correct?
A Yes.
Q Okay. And on -- are you also familiar with the general
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - DIRECT 56
layout of the courthouse?
A I am.
Q Okay. Are you involved with the installation and --
and support of this camera and recording network?
A Yes.
Q Since you've been in the courthouse and have been
involved with this recording process, are you able to
estimate the proximate distance between the camera
outside of 1G and the area immediately outside the door
to Courtroom 1D?
A Yes.
Q What do you think -- how far is that?
A Oh, approximately 20 feet. Oops. I'm sorry, 1G?
Q Yeah.
A No. It's approximately 50, 60 feet.
Q Okay. And so if there's any gap in the -- the recorded
video that that camera would have recorded on
March 12th, 2014, would you be able to explain that?
A Yes.
Q Why?
A It stopped receiving motion or detecting motion.
Q Okay. And that's -- is that all controlled by the
camera or some other --
A It's all programmed into the camera. There's no
operation of it once it's programmed in.
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - CROSS 57
MR. COLBURN: Okay. Your Honor, I have
nothing further for Mr. Sellner at this time.
THE COURT: Thank you. Mr. Rogosheske.
MR. ROGOSHESKE: Thanks, Judge.
CROSS EXAMINATION BY MR. ROGOSHESKE:
Q Mr. Sellner, are you a big sports fan?
A Yes.
Q Do you watch football games?
A Yes.
Q Do you know the blimp shot? Are you familiar with that
when they show the stadium from overhead?
A Yes.
Q Okay. I, like in camera 1G, shooting something out of
1D to the sky cam, to the blimp cam. Are there cameras
that are closer to 1D than the camera at 1G?
A Yes.
Q Did you review any of those cameras --
A I did.
Q -- for -- okay. What was your conclusion?
A There was nothing. The angle of that camera which
we're talking about is outside 1F.
Q Okay.
A Specifically looks -- is looking at the center
stairwell. And, because of that, it misses the very
corner over by 1D.
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - CROSS 58
Q So would you say there's a blind spot at 1D?
A Yes.
Q Is that something that the court's working to correct
at all?
A The -- we, the county, are working to correct that,
yes, adding more cameras.
Q Did you receive a request for -- to preserve any video
in the morning of 1D, either inside the courtroom or
outside the courtroom?
A Yes.
Q You did?
A The -- the request?
Q Oh, I'm sorry. Let me ask the question again. The
recordings that you preserved were in the afternoon
session.
A Oh, I'm sorry. Okay.
Q Did you -- were you asked -- or did you preserve any
video from the morning session?
A No.
Q You were not asked?
A I do not have any saved video from the morning so I
presume I was not asked.
Q Do you have any discretion to preserve video that
you're not asked, or you just get the request, this is
what video I preserve, and then you put it on a
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - CROSS 59
different CD?
A That is correct.
Q No -- and you don't watch extemporaneous video just for
your own edification?
A No.
Q Probably don't have time, right?
A I do not.
Q A lot of video?
A Yes.
Q You talked earlier about gaps in the video. In this --
have you reviewed -- excuse me, you've reviewed the
video for today, correct?
A Yes.
Q In this particular video there is a gap, correct?
A Yes.
Q Specifically, it's about 20, 30 seconds?
A We're referring to the one outside of 1G?
Q Correct. Sorry.
A Yes.
Q And so, just for a quick recap, my client and Deputy
Vai come out of the court -- Courtroom 1D, and they're
standing outside of Courtroom 1D, and there's a little
bit of video. It's maybe ten seconds. Would you say
that's about right?
A Yes.
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - CROSS 60
Q And then it clips, and it moves to 20 to 30 seconds
later?
A Correct.
Q So that's because it detected no movement at all?
A Correct.
Q If my client was waving his hands, or if he was trying
to run off or other people were turning around and
walking towards my client and Deputy Vai, the camera
would have activated, correct?
A If we're talking specifically down in the corner by 1D,
possibly not. That's a great distance to -- for that
camera to depict motion.
Q So is that camera -- in particular, you talked about a
distance ratings. Is that camera, in particular does
it have a distance rating set on it?
A They don't have a distance rating per se. They have a
sensitivity level.
Q Okay. Can you tell me what the sensitivity --
A -- the sensitivity rating on the cameras is all set at
sensitive, at its the most sensitive point, which --
Q Okay.
A -- it will get out to approximately 30 to 35 feet on
its detection, best case.
Q So the fact that this camera was on at all, and got
anything outside of 1D, is a miracle?
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - CROSS 61
A No.
Q Okay. How -- so how come it picked it up?
A There were other people closer to the camera that were
triggering its motion.
Q Right.
A And, because of that, it was picking up your client on
the other end.
Q Correct. Or -- so it would be a coincidence,
basically, that people were moving around in front of
the camera, and it happened to catch my client and
Deputy Vai in the background?
A Yes.
Q And -- and, just for the record, you have no other
obligation to preserve any video except for the
processes that you laid out with Mr. Colburn that you
talked about before, and other than requests that come
in through you, correct?
A Correct.
Q Why don't you take down people's names or determine who
the request came from when people send them in?
A That's a good question.
Q I think that's pretty important, don't you?
A I do.
Q Okay. I would take a look at that policy. Are you
aware of any requests that my client made?
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - CROSS 62
A No.
Q Did he make any to you?
A No.
Q And sheriff's department didn't talk to you about
anybody that made any requests to them for video?
A No.
Q Do you know why the video didn't make it back to the
city attorney?
A I'm sorry?
Q Do you know why the video that you just disclosed to --
or gave to Mr. Colburn on Monday that was given back to
us, do you know why that video wasn't produced until
just now?
A I do not.
Q But you got the request, you preserved it, correct?
A Yes.
Q And then you never got another request to send that
video to somebody?
A I did not.
Q However, you got a request to -- about the detention
video?
A I would presume so since they're the same video, yes.
Q Did you get a request to send out that video?
A No.
Q Would it surprise you to know that we have that video,
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - REDIRECT 63
and we've had that video since day one?
A No.
Q Why not?
A Because I am not the only one that has access to the
video. The deputies also are viewing the cameras at
their station. And they have the ability to retrieve
recorded video off of the server, if necessary.
Q Okay. So, in this case Deputy Vai could have -- could
have pulled the same video that you supplied to us on
Monday off the server?
A Yes.
MR. ROGOSHESKE: Okay. That's -- that's
all I got.
THE COURT: Mr. Colburn, anything else
from Mr. Sellner?
MR. COLBURN: Just briefly, Your Honor.
REDIRECT EXAMINATION BY MR. COLBURN:
Q Mr. Sellner, is it a frequent occurrence that you're
asked to save courthouse common area or courtroom
video?
A Yes.
Q And where do those requests typically come from?
A Typically from the bailiffs on duty.
Q And once a request -- once you've received a request to
save video, you've described the process by which you
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - REDIRECT 64
would put it on an alternate server and essentially
preserve it, correct?
A Correct.
Q Is there a standard practice that you follow, once
you've preserved the video, for getting it back to the
requesting agency? I mean, do they have to follow up
with another request or would you automatically forward
a copy of that to them?
A If they do not request a copy, I don't -- I do not
provide a copy.
Q And have you ever received requests for -- for video,
other than in this file, from a prosecutor's office?
A I have not.
Q So is it a fair statement that your dissemination of
saved video would typically go to either the sheriff's
office or the law enforcement agency making the
request?
A Yes.
Q And in this case it's your testimony that -- or is it
your testimony that no -- no such request was made
before you received a request directly from my office
fairly recently; is that right?
A I do not recall a request prior to yours, no.
Q Okay. And -- and that's anomalous in your experience;
is that correct?
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FIRST JUDICIAL DISTRICT
MITCHELL SELLNER - RECROSS 65
A Yes.
MR. COLBURN: Nothing else, Your Honor.
THE COURT: Mr. Rogosheske, any
additional questions?
MR. ROGOSHESKE: Yep. Just two quick
ones, Judge.
RECROSS EXAMINATION BY MR. ROGOSHESKE:
Q So, just to confirm, police wouldn't have to contact
you to get that video? They have access to them,
correct?
A Yes.
Q Okay. And in -- with regards to the morning video,
again, you supplied the afternoon video, with regards
to any video in the morning, if you were asked to
preserve it, you would have preserved it?
A I would have preserved it, yes.
Q And you were not asked to do that in this case?
A It's not preserved so I would say, no.
Q It's up to the individual, arresting officer, bailiff,
whoever, to do so?
A Correct.
MR. ROGOSHESKE: Thank you.
THE COURT: Mr. Colburn, anything else?
MR. COLBURN: No, Your Honor.
THE COURT: Mr. Sellner, thank you for
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FIRST JUDICIAL DISTRICT
66
being here today. You may step down.
(WHEREUPON, witness excused.)
THE COURT: Mr. Colburn, any additional
witnesses at this time?
MR. COLBURN: Subject to rebuttal, no.
THE COURT: Okay.
MR. COLBURN: Sir, could you possibly
stick around for a moment.
THE WITNESS: Here or outside?
MR. COLBURN: Outside.
THE COURT: Counsel, why don't you
approach for just a moment.
(WHEREUPON, a brief recess was taken,
after which the following proceedings transpired.)
THE COURT: All right. We'll take a
15-minute recess, start again at 11:00.
THE BAILIFF: All rise.
(WHEREUPON, a brief recess was taken,
after which the following proceedings transpired.)
THE COURT: Mr. Rogosheske, do you have
some exhibits to offer?
MR. ROGOSHESKE: I do, Judge.
THE COURT: All right.
MR. ROGOSHESKE: First one is marked as
Exhibit 10.
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67
THE COURT: Okay. And what is
Exhibit 10?
MR. ROGOSHESKE: It's labeled, "Summary
Dismissal." And these are documents that were
submitted at our last hearing; however, it's unknown at
this time whether or not they were accepted. I just
want to submit them now to make sure that they are.
THE COURT: Okay. Is there a date on
that document?
MR. ROGOSHESKE: There is not. Oh, I'm
sorry, yes, there is. November 25th, 2014.
THE COURT: Okay. Exhibit 11?
MR. ROGOSHESKE: Exhibit 11 is a copy of
an arraignment transcript from June 11th, 2014.
THE COURT: Exhibit 12?
MR. ROGOSHESKE: Exhibit 12 is a request.
It's a document submitted by my client to the court,
request for order to produce video evidence allegedly
destroyed.
THE COURT: And do you have a date on
that?
MR. ROGOSHESKE: July 28th, 2014.
THE COURT: All right. Exhibit 13?
MR. ROGOSHESKE: 13 is another document
submitted by my client. Defendant's motion to remove
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FIRST JUDICIAL DISTRICT
68
judge for cause or, if not granted, free boot.
THE COURT: And a date?
MR. ROGOSHESKE: August 11th, 2014.
THE COURT: Exhibit 14?
MR. ROGOSHESKE: Last is -- and, again, I
don't know if you want this marked as an exhibit. This
is my memorandum in support of my motion.
THE COURT: Memorandum in support of what
motion?
MR. ROGOSHESKE: Exculpatory evidence
issue.
THE COURT: Okay. And what's the date on
that?
MR. ROGOSHESKE: I believe it's today,
Judge, 26th of February 2015.
THE COURT: Okay. Let's do this. I'll
-- let's not mark Exhibit 14. Mr. Colburn, any
objection to Exhibits 10 through 13 for the limited
purposes of this hearing?
MR. COLBURN: Your Honor, I --
ultimately, the answer is no. I mean, I find them of
questionable relevance, but I have no objection to the
court receiving and reviewing them.
THE COURT: Okay. Exhibits 10 through 13
will be received. All right. Mr. Rogosheske, you may
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FIRST JUDICIAL DISTRICT
BRENDA LIGHTBODY - DIRECT 69
call your first witness.
MR. ROGOSHESKE: Thanks, Judge. I'd like
to call Brenda Lightbody.
THE COURT: Okay. Ms. Lightbody, if
you'll walk up to the witness stand. And I'll have you
stay standing and raise your right hand.
BRENDA LIGHTBODY,
called as a witness, being first duly sworn, was
examined and testified on her oath as follows:
THE COURT: Thank you. Once you're
seated, I'll have you state your full name for the
record, spelling your last name.
THE WITNESS: Brenda Lee Lightbody,
L-I-G-H-T-B-O-D-Y.
THE COURT: Thank you. Mr. Rogosheske.
MR. ROGOSHESKE: Thanks, Judge.
DIRECT EXAMINATION BY MR. ROGOSHESKE:
Q Ms. Lightbody, where are you employed currently?
A I'm employed as an attorney with the public defender's
office, the Minnesota State Public Defender's Office.
And I'm assigned to work in the full-time office in
Dakota County here in Hastings.
Q Thank you. How long have you been doing that for?
A Since November of 2001.
Q And how long have you been a licensed attorney?
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FIRST JUDICIAL DISTRICT
BRENDA LIGHTBODY - DIRECT 70
A Since October, end of October, I believe, of 2001.
Q Good memory. Thank you. And you were previously Mr.
Mashak's attorney on this court file, correct?
A I believe that this file had been assigned to me in a
random -- in the way the random assignments go in our
office of individuals who come in on a misdemeanor
pretrial calendar. And if they have -- or the
arraignment calendar, and they apply for the services
of a public defender. It gets assigned to whoever the
attorney was that day. I believe it had originally
been assigned to me. And when I began to look at the
file, I discovered that I may have a conflict because I
had been -- potentially been a witness in this case.
Q Correct. And so because you were potentially a witness
in this case, which is why you're here today, then I
was assigned, correct?
A Apparently. I let management know. I don't know if it
was my immediate manager, Lisa Janzen, or the boss,
Steve Holmgren, but I let one of them know.
Q Okay. And the usual process in our office is that if a
full-time member has a conflict, then they ship it out
to a part-time public defender, correct?
A That's correct. Or it even could have been -- in this
case, yeah, that's correct, because it was a -- someone
else in the full-time office would have -- I think had
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FIRST JUDICIAL DISTRICT
BRENDA LIGHTBODY - DIRECT 71
a conflict. Those decisions are way above my pay
grade.
Q Okay. So you were present in the courthouse on
March 12th, 2014, correct?
A I was.
Q And in what capacity were you there?
A I was working as an attorney doing the pretrial
calendar on -- in Courtroom 1E during that afternoon.
I believe those were the -- the attorney -- or, I'm
sorry, the cases for Hastings and Rosemount.
Q Okay. So, coincidently, you could have been with Mr.
Colburn on that day?
A Coincidently, it could have been. I don't remember if
it was Mr. Colburn or his colleague Mr. Fruegel.
Q All right. So at some point during the afternoon you
left Courtroom 1E, correct?
A I routinely left Courtroom 1E.
Q And during your routine leaving Courtroom 1E, did you
see something going on -- on outside Courtroom 1D?
A What do you mean?
Q Did you see my client outside of Courtroom 1D?
A I did.
Q Okay. And he was having some sort of interaction with
a deputy?
A Yes. It looked like they were having a conversation.
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FIRST JUDICIAL DISTRICT
BRENDA LIGHTBODY - CROSS 72
Q When you walked by that conversation, did it arouse any
anger --
A No.
Q -- in you? Any alarm?
A No.
Q Any resentment?
A No.
Q So it's just two people having a conversation in the
courthouse as --
A Yes.
Q -- far as you were concerned?
A Obviously, the deputy was -- was talking to him. But I
witness deputies talking to individuals routinely in
the course of my job. I also experience people yelling
at me routinely in the course of my job, generally my
clients, sometimes others in the building.
MR. ROGOSHESKE: Thank you. That's it,
Judge.
THE COURT: Mr. Colburn.
MR. COLBURN: Thank you, Your Honor.
CROSS EXAMINATION BY MR. COLBURN:
Q Ms. Lightbody, in your observations that you made of
the defendant and his interaction with a deputy that
day, March 12th of 2014, did -- well, I guess I'm going
to ask you to describe, actually, did you stand there
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FIRST JUDICIAL DISTRICT
BRENDA LIGHTBODY - CROSS 73
and pay attention to this conversation, or what were
you actually doing?
A Because of the derth of conference rooms outside of
Courtroom 1E, I believe that's the 1E, I -- I -- I'm
fairly certain we had at least one law clerk with us
that day. And I believe the law clerk would have been
in that conference room with one of the clients. I
then -- editorial comment, these calendars are huge.
And so in the course of trying to meet with the
individuals who were there for court, we have to -- or
I have to talk to individuals in an -- either in that
courtroom conference room of 1E or another conference
room off of the other courtrooms. So in the course of
walking back and forth, I did observe -- did observe
the deputy talking to Mr. Mashak.
Q So you're engaged in your standard job duties on
March 12th of 2014 during the time frame in question;
is that correct?
A Yes, that's correct.
Q And, as you stated, that includes dealing with a -- is
it an intern? Or I don't know what the -- a student
attorney?
A A student attorney. And I -- if there -- I'm sure
there was one that day. And I don't remember who he or
she was. But I would -- and I shouldn't venture to
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FIRST JUDICIAL DISTRICT
BRENDA LIGHTBODY - CROSS 74
guess in my testimony, but I would guess that the
reason I was in the hallway was because I was talking
to a client either on the way to one of the other
courtrooms or a conference room there. That would be
my general practice.
Q Okay. And is it safe to say that the student certified
attorney who was assisting you was potentially under
your supervision?
A That's technically, I believe, how it's supposed to
work, yes.
Q Okay. And you were managing, as you use the word, huge
calendar; is that correct?
A Yes.
Q That involves you meeting with many people; is that
right?
A During the course of that afternoon, yes.
Q It involves you being in the courtroom?
A Yes.
Q It involves you being in the conference rooms?
A Yes.
Q It involves you being outside of the courtroom as well?
A Yes.
Q So safe to say you're pretty busy at that point, yes?
A Yes.
Q And so, as you noted, the defendant, in his interaction
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FIRST JUDICIAL DISTRICT
BRENDA LIGHTBODY - CROSS 75
with the deputy I guess my question is how long did you
stand there and actually observe what was going on, or
was it really something you observed in passing?
A It's a bit of both.
Q And you stated that it's normal or common for your
clients, and potentially even others, to yell at you as
you are performing your duties?
A Or yell at other people. Regrettably, many people
charged with crimes are unhappy to be in the judicial
system.
Q Indeed.
A And they view their attorney -- I get the opportunity
to say this on the record. They view their attorney as
public pretenders and public offenders. And so it's
just part of the job that I've developed skin as thick
as naugahyde to endure the -- to endure the destain and
yet get up every day and do this job with a passion and
a zeal for it.
Q I appreciate that. So even in your own words, you're
-- you're fairly, in a metaphorical sense, callused to
those types of heated interactions; is that right?
A I don't know if callused would be the correct word.
Q And I don't mean to imply any offense or anything like
that. I mean, it's common to you?
A Yes, it's common to me.
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FIRST JUDICIAL DISTRICT
BRENDA LIGHTBODY - CROSS 76
Q And to someone -- well, all right. So here's the
question. When you observed the defendant and the
deputy outside of Courtroom 1D, did you take any
particular action in regard to what you observed?
A No.
Q You went on doing your work that you were there to do;
is that right?
A Yes, sir.
Q Okay. And you stated it was a huge calendar so -- and
you were there. There were a lot of people around; is
that right?
A Out in the hallway were there a lot of people?
Q Well, I guess that's the first place we'll start, yes.
A I don't recall if there were a lot of people. I
believe there were more clients. I believe there were
more people in the courtroom as opposed to some of the
other days when there are a number of people mulling
around the hallway. I don't recall that that afternoon
that there were a number of people.
Q Okay. So do you recall if there were any other people
other than yourself, Mr. Mashak, and the deputy outside
of the area of Courtroom 1D that day?
A I don't know, sir.
Q Okay. Don't recall?
A I don't recall.
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FIRST JUDICIAL DISTRICT
BRENDA LIGHTBODY - CROSS 77
Q Okay.
A Well, I don't know. There could have been. There
could have been over by the windows. There could have
been other people sitting over there. I probably was
engrossed with reading the file trying to walk and talk
and think at the same time.
Q All right. You didn't -- it seems as though you
essentially observed this interaction in passing; is
that a fair statement?
A That's a fair statement.
MR. COLBURN: Nothing else for the -- for
Ms. Lightbody, Your Honor.
THE COURT: Ms. Lightbody, let me ask you
this. With your observations, did anybody raise any
voices? Is there anything that attracted you to what
you saw?
THE WITNESS: What -- what do you mean,
Judge?
THE COURT: Well, at some point you made
an observance of Mr. Mashak and a deputy speaking.
THE WITNESS: Yes.
THE COURT: And is there anything that
brought your attention to that?
THE WITNESS: No, other than I walked
right by them. And that that's not unusual for
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FIRST JUDICIAL DISTRICT
BRENDA LIGHTBODY - REDIRECT 78
deputies in the -- in this building to occasionally
talk to people. I've seen them execute warrants on my
clients. I've seen them ask -- I mean, in my
experience of, starting 14 years, if my math is
correct, apologies, Judge, I've seen a variety of
interactions with law enforcement in the courthouse.
THE COURT: Okay. And in this
interaction, what, if anything, did you see in regard
to raised voices by either party?
THE WITNESS: I think they both had their
voices raised a little bit, but it was nothing out of
the ordinary or that had caused me any more than just a
passing observation.
THE COURT: Okay. Thank you. Mr.
Rogosheske, any additional questions?
MR. ROGOSHESKE: Yes, just a couple,
Judge.
REDIRECT EXAMINATION BY MR. ROGOSHESKE:
Q Ms. Lightbody, you talked before about being not callas
but thick skinned. And you -- you've handled many
disorderly conduct cases in your career, correct?
A That's correct.
Q You can tell the difference between disorderly conduct
and non-disorderly conduct, correct?
A I don't know if that's -- answering this question, Mr.
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FIRST JUDICIAL DISTRICT
BRENDA LIGHTBODY - REDIRECT 79
Rogosheske, I don't know if that's a legal
determination. And I'm not sure I'm qualified to make
that. I've certainly represented individuals that have
been accused of that.
Q That's all right. I'll just ask again. You weren't
angered by anything that was going on?
A No.
Q You weren't alarmed?
A No.
Q You didn't form any sort of resentment based upon the
interaction that you saw between Mr. Mashak and the
deputy?
A No.
MR. ROGOSHESKE: Okay.
THE COURT: Mr. Colburn, anything
additional?
MR. COLBURN: No, Your Honor. Thank you.
THE COURT: Ms. Lightbody, thank you.
You may step down.
(WHEREUPON, witness excused.)
THE WITNESS: Am I free to leave?
MR. ROGOSHESKE: Thank you.
THE COURT: Mr. Rogosheske, your next
witness.
MR. ROGOSHESKE: Judge, I'm going to call
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FIRST JUDICIAL DISTRICT
AYRLAHN JOHNSON - DIRECT 80
-- I'm going to call Mr. Ayrlahn Johnson.
THE COURT: Mr. Johnson, if you'll take
the witness stand.
THE WITNESS: Sure.
THE COURT: And remain standing and raise
your right hand.
AYRLAHN JOHNSON,
called as a witness, being first duly sworn, was
examined and testified on his oath as follows:
THE COURT: Thank you. Please be seated.
As soon as you're comfortable, I'll ask you to state
your full name, spelling each of your names nice and
loud into the record.
THE WITNESS: Ayrlahn Johnson,
A-Y-R-L-A-H-N, Johnson, S-O-N.
THE COURT: Thank you. Mr. Rogosheske.
DIRECT EXAMINATION BY MR. ROGOSHESKE:
Q Mr. Johnson, thanks for coming today.
A Sure.
Q Were you -- first of all, are you a resident of Dakota
County?
A Yes, I am.
Q What do you do for a living, sir?
A I sell supplemental insurance to working families.
Q All right. Were you in the courthouse on March 12th,
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FIRST JUDICIAL DISTRICT
AYRLAHN JOHNSON - DIRECT 81
2014?
A I was.
Q And what were you doing there that day?
A I was observing the trial, or the hearing, of Kimberly
Sperling.
Q Okay. How come you were there at the trial? Do you
have any connection to the Sperling filing?
A Not really, no. Actually, my son was on trial in
another courtroom. And I was a witness there. And I
was actually not allowed to -- I was sequestered.
Q Okay. So you were just killing time, basically?
A Yeah. Yeah.
Q But no connection to my client or any of Ms. Sperling's
people involved?
A No.
Q Just a member of the public?
A Correct.
Q And you were there in the morning session, correct?
A I was.
Q Okay. Can you tell me a little bit about what
happened?
A Well, there was a lot of going back and forth between
Ms. Sperling and the judge and the -- Mr. Sperling's
attorney. And you just want me to tell the story of
what happened?
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FIRST JUDICIAL DISTRICT
AYRLAHN JOHNSON - DIRECT 82
Q Yep.
A And -- and we're just -- I'm sitting there right next
to Mr. Mashak. And the --
Q Excuse me, sir. I'll just hop in.
A Yeah.
Q Where were you sitting in the courtroom in -- if -- if
this was the courtroom that you were in, where were you
sitting in relation to counsel table?
A We were sitting pretty much two rows behind.
Q Okay.
A Not the front row but the next row.
Q Okay.
A And, as we're sitting there, you know, Don and I were
whispering back and forth occasionally. And the -- he
-- he wrote up a note that he wanted to get to Ms.
Sperling with some suggestions and some ideas. And I
don't even remember what the note said. I didn't
really read it. But I took the note, and I tried to
pass it to Ms. Sperling. And the deputy sheriff who
was there stopped me from doing that. And then I tried
to give the note to the deputy so he could deliver it
to them, and he refused to do that. So I actually
stood up to hand him the note and trying to get it.
And he -- he took the note -- he wouldn't take the note
from me, said I couldn't do that. So I sat back down,
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FIRST JUDICIAL DISTRICT
AYRLAHN JOHNSON - DIRECT 83
and handed the note back to Don, Mr. Mashak.
Q Okay. Do you know who the deputy was?
A He was an older fellow. I think with gray hair. And
he's got a kind of a beard thing going on. And I'd
certainly recognize him if I saw him. I did see him
when I came into the courthouse this morning. He was
at the -- at the front inspecting people.
Q Okay. And would you be surprised to -- to note that
the deputy that was -- his name Deputy Forrey?
A I'm sorry. Deputy?
Q Forrey?
A Okay. How do you spell that, just to help me out?
Q F-O-R-R-E-Y.
MR. COLBURN: Your Honor, I guess I'm
going to object. There's no question here. And it's
leading.
THE COURT: All right. Mr. Rogosheske,
next question.
MR. ROGOSHESKE: Thanks, Judge.
BY MR. ROGOSHESKE:
Q Would -- would you be surprised to note that in a
police --
MR. COLBURN: Objection. Leading.
THE COURT: Sustained.
BY MR. ROGOSHESKE:
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FIRST JUDICIAL DISTRICT
AYRLAHN JOHNSON - DIRECT 84
Q So it was you that passed the note, attempted to pass
the note, to Ms. Sperling, correct?
A That is correct.
Q Not Mr. Mashak?
A Not Mr. Mashak.
Q At any time did you see Mr. Mashak make any movements,
get up or try to make any contact with anybody involved
in the proceedings?
A No.
Q Did he disrupt the proceedings in any manner?
A Not at all.
Q Was he warned by a bailiff at all during the morning
session?
A Not that I observed when I was sitting next to him.
Q Okay. And you were there for the entire morning
session?
A Yes.
Q Were you there in the afternoon session as well?
A No.
Q So strictly in the morning session, did the bailiff --
did you see the bailiff warn my client about talking or
being involved?
A No, I did not.
MR. ROGOSHESKE: Thank you.
THE COURT: Mr. Colburn, any questions
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FIRST JUDICIAL DISTRICT
AYRLAHN JOHNSON - DIRECT 85
for Mr. Johnson?
MR. COLBURN: No, Your Honor.
THE COURT: All right. Mr. Johnson,
thank you. You may step down.
(WHEREUPON, witness excused.)
THE WITNESS: I don't have to leave
again, do I?
THE COURT: No, you can stay.
THE WITNESS: Okay.
THE COURT: Mr. Rogosheske, your next
witness.
MR. ROGOSHESKE: Thanks, Judge. Judge,
I'd call Kimberly Sperling.
THE COURT: Ms. Sperling, if you'll walk
up to the witness stand, remain standing and please
raise your right hand.
KIMBERLY SPERLING,
called as a witness, being first duly sworn, was
examined and testified on her oath as follows:
THE COURT: Please be seated. Ms.
Sperling, I'll ask you to state your full name for the
record, spelling each of your names. And if you would
speak nice and loud.
THE WITNESS: Kimberly Anne Sperling,
K-I-M-B-E-R-L-Y, A-N-N-E, S-P-E-R-L-I-N-G.
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FIRST JUDICIAL DISTRICT
KIMBERLY SPERLING - DIRECT 86
THE COURT: Mr. Rogosheske.
MR. ROGOSHESKE: Thanks, Judge.
DIRECT EXAMINATION BY MR. ROGOSHESKE:
Q Ms. Sperling, were you present in the courthouse on
March 12th, 2014?
A Yes, I was.
Q Okay. And what were you doing there that day?
A I had a court hearing.
Q Okay. What was -- what did the court hearing consist
of?
A It was a harassment hearing. I had filed for an Order
for Protection, which had been granted by Wright
County, which I had just moved to. And when I went to
pick up the kids from school --
Q I don't -- I don't need the -- I don't need the full --
the full -- you were just --
A Okay. So --
Q -- you were just there for an Order for Protection
hearing, correct?
A No. The judge from Dakota County and the Lakeville
police called there and intervened in my Order for
Protection. And then they sent my ex-husband in here
to file a harassment order against me wrongly --
Q Okay.
A -- which he did do, and it was granted.
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FIRST JUDICIAL DISTRICT
KIMBERLY SPERLING - DIRECT 87
THE COURT: Okay. Ms. Sperling, we're
not gonna -- we're not going to get into that.
THE WITNESS: Well, that's what the
hearing was for.
THE COURT: Okay. So you were here for a
hearing.
THE WITNESS: Then I was -- I had filed a
harassment hearing against him --
THE COURT: Okay.
THE WITNESS: -- so both of our hearings
were being heard on the --
THE COURT: Okay.
THE WITNESS: It ended up being the 12th
and the 13th.
THE COURT: All right.
BY MR. ROGOSHESKE:
Q You were here for a hearing, correct?
A Yes.
Q And you were there -- here -- there in the courtroom
the entire day, correct?
A Well, yes, except for lunch and breaks. And I had to
check on my daughter who was throwing up in the
bathroom.
Q Did -- was there any disturbance during the morning or
in the afternoon session?
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FIRST JUDICIAL DISTRICT
KIMBERLY SPERLING - DIRECT 88
A Not that I noticed. I mean, I -- I mean, other than it
was a little stressful and chaotic because it was the
first time that my daughter was back here since being
assaulted by an attorney, and --
THE COURT: Okay, Ms. Sperling, here's
the thing. You just have to answer his question.
Okay. So his question was; was there anything
disruptive in the morning or afternoon that you
noticed?
THE WITNESS: I wasn't disturbed by
anything.
THE COURT: Okay. Okay. Hold on. Next
question.
BY MR. ROGOSHESKE:
Q Did Mr. -- did Mr. Mashak 'cause any disturbances in
the courtroom?
A Not that I noticed. I didn't hear anything behind me
at all that --
THE COURT: Okay. Stop right there.
Next question.
MR. ROGOSHESKE: Thanks, Judge.
BY MR. ROGOSHESKE:
Q Did the judge stop the proceedings and call Mr. Mashak
out for disrupting the courtroom?
A Not that I recall.
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FIRST JUDICIAL DISTRICT
KIMBERLY SPERLING - DIRECT 89
Q Did he hold Mr. Mashak in contempt at all?
A No.
Q Did you hear Mr. Mashak talking in the background as
you were sitting at counsel table?
A I didn't, no.
Q In fact, he was there to help you, correct?
A Yeah. Everyone that was in the courtroom was for me,
right, so it was my support.
Q Did you see -- did you see the bailiff get up and
escort Mr. Mashak out of the courtroom?
A I did not.
Q And -- so you turned around --
A I don't --
Q -- at one time he was there, and the next time --
MR. COLBURN: Objection. Leading.
THE COURT: Sustained.
BY MR. ROGOSHESKE:
Q Did you see him in the courtroom in the afternoon?
A I don't recall seeing him after lunch. And I was
trying to remember what time we had lunch, if it was
later or when. He was in the morning. I recall that.
And we were all supposed to go to lunch. He wasn't at
lunch. And then I thought he was not there after
lunch. And I -- I actually didn't know where he had
gone 'cause he was supposed to meet us.
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FIRST JUDICIAL DISTRICT
KIMBERLY SPERLING - CROSS 90
THE COURT: Okay. Mr. Sperling, you just
-- you just have to answer the question. Okay?
THE WITNESS: Yeah.
BY MR. ROGOSHESKE:
Q Thank you. And so you never saw Mr. Mashak --
MR. COLBURN: Objection. Leading.
THE COURT: Well, finish your question.
MR. ROGOSHESKE: You never saw Mr. Mashak
have any interaction with the bailiff?
THE COURT: Sustained. Next question.
BY MR. ROGOSHESKE:
Q You didn't hear any disturbances in the courtroom from
Mr. Mashak?
A No. I mean, I --
THE COURT: Okay. You've answered the
question. Any other questions?
MR. ROGOSHESKE: That's it, Judge.
THE COURT: Mr. Colburn, any questions?
MR. COLBURN: Briefly, Your Honor. Thank
you.
CROSS EXAMINATION BY MR. COLBURN:
Q Ms. Sperling, you describe being at the court on
March 12th, 2014, for a Harassment Restraining Order
hearing that occurred over that and the next day; is
that right?
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FIRST JUDICIAL DISTRICT
KIMBERLY SPERLING - CROSS 91
A Yes.
Q And you were involved in that hearing as a party,
correct?
A Correct. There was two applications. I was a
petitioner and a respondent, and vice versa for Mr.
Sperling.
Q And you were represented by counsel or no?
A No, I was not.
Q And, during that time frame that you were in the
courtroom, you were sitting largely at counsel table;
is that correct?
A Yes, the majority of the time.
Q Involved in the hearing as it proceeded through its
normal course; is that correct?
A Yes. I had a huge stack of data and evidence and --
THE COURT: Okay. You've answered the
question.
THE WITNESS: Yes.
MR. COLBURN: That's all I have, Your
Honor.
THE COURT: Mr. Rogosheske, anything else
for Mr. Sperling?
MR. ROGOSHESKE: Nothing further, Judge.
THE COURT: Thank you, Ms. Sperling. You
may step down.
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FIRST JUDICIAL DISTRICT
DALE NATHAN - DIRECT 92
(WHEREUPON, witness excused.)
MR. ROGOSHESKE: Judge, I call Don
Nathan.
THE DEFENDANT: Excuse me, Your Honor, he
means Dale Nathan.
THE COURT: Okay. Are you Mr. Nathan?
THE WITNESS: Yes.
THE COURT: Good morning. Why don't you
walk all the way up to the witness stand. And as soon
as you're comfortable, I'll ask you to remain standing
and raise your right hand.
DALE NATHAN,
called as a witness, being first duly sworn, was
examined and testified on his oath as follows:
THE COURT: Please be seated. Mr.
Nathan, as soon as you're comfortable, I'll ask you to
state your full name for the record, spelling your last
name.
THE WITNESS: Dale, D-A-L-E, Charles
C-H-A-R-L-E-S, Nathan, N-A-T-H-A-N.
THE COURT: Thank you. Mr. Rogosheske.
MR. ROGOSHESKE: Yes, Judge.
DIRECT EXAMINATION BY MR. ROGOSHESKE:
Q Mr. Nathan, were you present in the courthouse, in this
courthouse, on March 12th, 2014?
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FIRST JUDICIAL DISTRICT
DALE NATHAN - DIRECT 93
A Yes.
Q What were you doing there that day?
A I was sitting in the trial as a -- in support of the --
of Kimberly Sperling, in support of her case.
Q Okay. And how's -- how are you connected to the case?
Are you friends with Ms. Sperling?
A Yes.
Q Do you know my client? Do you have any connection to
my client?
A It's -- we have a casual acquaintance.
Q Okay. Did you observe any disturbance in the courtroom
that day?
A There was none. I did not observe any. I did not see
any. The only -- the only event that I recall is that
Don and I were sitting close together. And at one
point he leaned over and whispered something. But he
whispered it so law -- low I could not hear it. And I
indicated I couldn't hear it. So he whispered once
again. But it was still so low that I couldn't hear
it. And that was all that I recall at the hearing.
Q And were you present for both the morning and afternoon
session?
A Yes.
Q Okay. And when did this whispering incident happened?
A I'm sorry?
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FIRST JUDICIAL DISTRICT
DALE NATHAN - CROSS 94
Q When --
A Well --
Q When did the whispering incident happened?
A Well, that happened in the morning at the first part of
the trial.
Q Okay. Did it also happen in the afternoon as well?
A No, it did not.
MR. ROGOSHESKE: Okay. All right. No
further questions.
THE COURT: Mr. Colburn?
CROSS EXAMINATION BY MR. COLBURN:
Q Mr. Nathan, I don't wish to intrude, but have you had
your hearing checked in any recent time frame?
A No, I have not.
Q Okay. As far as you know, it's good; is that right?
A As far as I know it's good, yes.
Q Okay. And you testified with regard to incidents
occurring in the courtroom; is that correct?
A That is correct.
MR. COLBURN: Okay. Nothing else for Mr.
Nathan, Your Honor.
THE COURT: All right. Mr. Rogosheske,
anything else?
MR. ROGOSHESKE: No, Judge.
THE COURT: All right. Mr. Nathan, thank
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - DIRECT 95
you. You may step down.
THE WITNESS: Thank you.
(WHEREUPON, witness excused.)
THE COURT: Mr. Rogosheske, anything
else?
MR. ROGOSHESKE: One last. I'd call my
client, Don Mashak, Judge.
THE COURT: Okay. Mr. Mashak, come on
up. And if you'll raise your right hand.
DONALD MASHAK,
called as a witness, being first duly sworn, was
examined and testified on his oath as follows:
THE COURT: Please be seated. Mr.
Rogosheske.
MR. ROGOSHESKE: Thanks, Judge.
DIRECT EXAMINATION BY MR. ROGOSHESKE:
Q Mr. Mashak, were you present in the courthouse on
March 12th, 2014?
A Yes, I was.
Q And what were you doing there that day?
A I was there as the member -- as a member of the press.
I'm kind of on a list of people that, whenever there's
a question, somebody's in legal problems and they want
people to show up, they call me 'cause they know I
write news articles about them. And in this particular
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - DIRECT 96
one I was interested because Ms. Sperling alleged that
the local police were complicit in the local drug
trade, and that her husband was getting preferential
treatment from the police and the judges because he was
their main drug supplier.
Q Okay. And were you present in the courtroom in both
the morning and the afternoon session?
A I was present all morning and for maybe ten minutes in
the afternoon.
Q Okay. In the morning session, did you 'cause any
disturbance that you're aware of in the courtroom?
A Absolutely not.
Q Okay. You heard the -- Mr. Johnson talk about the
note-passing incident.
A Yes.
Q Is that how you remember it?
A Well, his version is a little bit different than mine.
In the morning, the first thing the judge had done was
handed out a document that said: This is -- only thing
I care about -- about is harass -- or Harassment
Restraining Order --
MR. COLBURN: Your Honor, I'm going to
make an objection as to relevance of this line of
questioning.
THE COURT: Okay. I assume it's
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - DIRECT 97
background, but let's get to the point here.
MR. ROGOSHESKE: Yep. Absolutely, Judge.
BY MR. ROGOSHESKE:
Q Mr. Mashak, did you pass a note to Ms. Sperling?
A No, I did not.
Q What did you do with -- did you write a note?
A I wrote a note intending just to, if she turned around,
flash it saying: Ask for a break. And Mr. Johnson
noticed me writing it and offered to pass it.
Q So at no time in the morning did you have any contact
with the bailiff?
A Absolutely none.
Q He never --
MR. COLBURN: Objection. Leading.
THE COURT: Sustained. Rephrase.
BY MR. ROGOSHESKE:
Q Did you have any interaction with the bailiff in the
morning?
A Absolutely none.
Q Did the bailiff ever warn you about talking in the
courtroom?
A Absolutely none.
Q Okay. In the afternoon session, what time did you get
to the courtroom?
A At -- it's hard for me to know exactly. I came back
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - DIRECT 98
from lunch. We had got separated. And a couple of
times I came back to the courtroom. Other deals were
going on. And Ayrlahn had asked me to look in on his
son 'cause he couldn't. So I wondered up there to kill
time, as he had. And I intended to only stay till,
like, 1:45 and go down and check. And so I went back
and checked, and they were still doing something else.
I went back up to the courtroom where Ayrlahn's son was
having whatever was going on. And at 2:00 there was
something very -- that I found interesting so I told
myself: I got to leave at 2:05. And it was still
going on at 2:05. So I said: No matter what, I got to
leave at 2:10. 2:10 I started to walk down. I bumped
into somebody from the court gallery who said the
daughter was sick, and maybe this was going to get
continued to tomorrow. And so it was my thinking,
well, if it's going to go on to tomorrow, there's not
going to be relevant testimony that I'm interested in
'til tomorrow, I want to go.
So I didn't get there until as long as it
takes to walk from the second floor courtroom down to
the second -- first floor, talk to somebody about the
daughter being ill, and then entered the courtroom.
Q Okay. So maybe 2:12, 2:15 at the latest?
A Yeah.
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - DIRECT 99
Q How long were you in the courtroom before you had any
interaction with the bailiff?
A Under five minutes.
Q And do you know why you had that interaction with him?
A Based on my experience as a member of press having went
to more than 50 court cases throughout the State of
Minnesota and observed the decorum that judges require,
I saw no reason that I should have any interaction with
the bailiff. When he pointed out to me, I thought
somehow I'm being loud, but you heard Dale say he
couldn't even hear what I was saying. So I thought he
was just saying: Keep your voice lower. So I lowered
my voice even more. And that's the point he motioned
me out of the courtroom.
Q So you did whisper to Mr. Nathan --
MR. COLBURN: Objection. Leading.
BY MR. ROGOSHESKE:
Q Did you whisper to Mr. Nathan?
A Yes.
Q Two times?
A Two times.
Q In your estimation was it loud?
A Since Dale Nathan himself couldn't hear what I was
saying, I don't know how, if he couldn't hear it, the
bailiff could hear it. And, more importantly, if you
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - DIRECT 100
looked at the video, the one that they hid --
THE COURT: Well, Mr. Mashak, you just --
you just have to answer the question.
THE WITNESS: Okay. All right.
THE COURT: Okay. Let's get a new
question.
BY MR. ROGOSHESKE:
Q Is there something in the video that might corroborate
that?
THE COURT: Well, we're not going to
worry about the video. The video is in evidence.
Let's find out what Mr. Mashak saw, heard. And we'll
go from there.
MR. ROGOSHESKE: Thanks, Judge.
BY MR. ROGOSHESKE:
Q At any other point before the whispering, did the
bailiff warn you or did you have any interaction with
him?
A Absolutely none.
Q Did the court ever hold you in contempt?
A Absolutely not.
Q Did you disturb anybody else in the courtroom?
A Absolutely not.
Q When the deputy asked to you leave, did you get up?
A Yes.
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - DIRECT 101
Q And you followed him out of the courtroom?
A And my recollection is he motioned. He didn't really
ask.
Q I'm sorry. You complied with what he wanted you to do?
A Yes.
Q And you went out in the hallway?
A Immediately went out into the hallway despite him
saying that we had a long conversation in the
courtroom.
Q And so when you're out in the hallway, did you swear at
him?
A No.
Q What did you ask him?
A Well, first -- the first time -- first thing I said to
him was: You know, the foyer area. That's the first
time I said, "Can I have your card?" All right. 'Cause
I've repossessed more than 10,000 cars in my life so
I'm familiar with dealing with law enforcement. So I
-- I know the protocol. And so I asked him for his
card. And he said he didn't have one.
Q Then what happened?
A And then we went in the hall. And he said I had to
leave the building.
Q Do you know why he said that?
A I asked him why, and he gave me a nonresponsive
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - DIRECT 102
response.
Q Okay. At any time did you raise your arms?
A I -- at all times, I had a pen in one hand and a pad of
paper in the other hand. And I either had them at my
side, or if I thought he was about to give me his name
each of the five or six times I asked him for his name,
I raised them to the writing position. So that would
be the extent of any movement in my arms.
Q Okay. Do you think asking him multiple times what his
name and badge number is, do you think he could
consider that rude?
A He --
MR. COLBURN: Objection. Calls for
speculation. It's leading.
THE COURT: Sustained, both grounds.
BY MR. ROGOSHESKE:
Q Do you think you were rude to him?
A I think I was persistent. I don't think I was rude.
In my career of repossessing 10,000 vehicles, I only
owned one tow truck. And the majority of times I
didn't use the tow truck because I have the gift of
gab. And I used them on the officer, a conversation
control technique that I've learned in the process of
repossessing 10,000 cars.
Q Okay. Would you consider yourself disorderly?
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - DIRECT 103
A Absolutely not.
Q Do you think you arouse anger in other people in the --
in the -- outside the courtroom?
A I don't unless -- no, I did not. I was only asking the
man multiple times at varying levels of volume, in
accordance with my conversation control technique, to
give me his name and badge number. Because it's my
understanding that, upon the first request, they must
produce it, unless there's something like I'm fighting
him or something extraordinary is going on.
Q And none of that happened?
A And none of that happened.
Q And so at some point -- how long do you think the
interaction was?
A Two minutes.
Q And then what happened?
A I turned to leave. And, as I turned to leave, I said,
"What's your name?" again. And he said, "That's it.
You're under arrest."
Q And at that time he put you back in a holding cell?
A Right. And, as I turned to leave, that was to go out
of the building.
Q And sometime after that you made some requests for
video, correct?
A Multiple times to every officer I ran into, every court
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - DIRECT 104
personnel I talked to, anybody who I came into contact
to after I was arrested without being read my rights,
and before and during the interrogation in which I was
threatened with physical violence.
THE COURT: Okay. Mr. Mashak, you've
answered the question. Next question.
MR. ROGOSHESKE: Thank you.
BY MR. ROGOSHESKE:
Q So you made both verbal requests and then you also made
written requests, correct?
A This is correct.
Q And can you talk, very briefly -- we've submitted the
documents to the court, but if you could just run
through what they are?
A In the citizen's complaint, I made a specific request
for what was going on in the holding cell, thinking
that that would record voice and video, finding out
later it didn't. And I asked for what went on in there
and of my actual arrest outside of Courtroom 1D.
Cause, initially, I thought that was the only thing of
interest.
Q But at some point you made a request for all the video,
correct?
A That is correct.
Q And you made multiple requests for all of them?
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - DIRECT 105
A Multiple verbal requests followed up by the citizen's
complaint and then an email to, I believe it's Leko,
responsive email from Leko saying that he -- that the
video has been secured and placed in the court file or
case file or whatever; and then an additional letter I
sent just generically to the sheriff of the county
saying: I want all video of any place I traversed any
place in the courthouse on the day in question.
Q And why did you do that?
A People started telling me that I should be concerned.
And I started hearing that -- about something that went
on in the morning that just totally baffled me. And I
asked for everything because I didn't want them to zero
in on what it was exactly I was looking for that they
might edit or delete it.
Q And you wanted the -- you wanted the truth to be
preserved, the objective truth?
A You know, when I was in shock, I was just interested in
not being --
MR. COLBURN: I'm going to object. I
don't know that there was a question there, Your Honor.
THE COURT: Okay.
BY MR. ROGOSHESKE:
Q You wanted the video to speak for itself?
A I wanted the video to speak for itself. I believe
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - CROSS 106
that --
THE COURT: Okay. You've answered the
question.
BY MR. ROGOSHESKE:
Q During this course of that video -- or excuse me, have
you been provided any witness statements?
A The only thing I've seen is from sheriff deputies. I
haven't seen any witness statements from anybody else.
MR. ROGOSHESKE: Okay. Thank you.
THE COURT: Mr. Colburn,
cross-examination.
MR. COLBURN: Thank you, Your Honor.
CROSS EXAMINATION BY MR. COLBURN:
Q Mr. Mashak, you describe -- and I'm sorry, am I saying
it correctly?
A It's an argument in the family about the correct way to
say it, so have at it.
Q Okay. You describe the length of your interaction with
Deputy Vai outside the courtroom as being about two
minutes; is that correct?
A Two, three minutes, yeah.
Q Okay. And, during that time, you were engaged in some
kind of conversation with Deputy Vai; is that right?
A I believe, as I testified before, I asked him to -- he
said I had to leave. I asked him why. And the rest of
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - CROSS 107
the conversation was; what is your name?
Q So is it fair so say you were involved in a
conversation with Deputy Vai?
A Certainly.
Q Okay. And, as part of that conversation, is it fair to
say that your voice initially started out on a
conversational basis?
A Yes.
Q Okay. And at some point you made some requests of
Deputy Vai; is that right?
A The only request I made was for his name and badge
number and variations of that.
THE COURT: Mr. Mashak, this is
cross-examination. So when he asks you a question, if
you can answer yes or no, try and do that, okay?
BY MR. COLBURN:
Q And, in response to that question, your request for
name and badge, you were not satisfied with his
response; is that correct?
A That would be correct.
Q Okay. So you repeated your request; is that right?
A That is correct.
Q And you still were not satisfied with his response; is
that right?
A That is correct.
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DONALD MASHAK - CROSS 108
Q This went back and forth a number of times like that;
is that correct?
A Five to six times I asked him, and finally decided I'm
just going to leave because that's what he told me I
had to do. And, as I'm turning, I said, "What is your
name and badge number?"
Q And would you agree that the volume of your voice, by
the time you made your fifth or sixth request, was
louder than you made your first request?
A No. That's not the way my conversation control
technique works. Every person I've --
THE COURT: Mr. Mashak, you just have to
answer.
THE WITNESS: Okay. No.
THE COURT: He asked if that was true or
not, and you say?
THE WITNESS: No.
THE COURT: Okay. Thank you.
BY MR. COLBURN:
Q So you weren't loud? You're telling us you were not
loud in your interaction with Deputy Vai, correct?
A I'm telling you that I modulated my voice in accordance
with my conversation control technique that I've used
for 25 years.
Q I'm asking you, sir, if you were loud or not loud in
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - CROSS 109
your conversation?
A Yeah. And loud relative to what? I was no louder than
Deputy Vai.
Q Were there others present, to your recollection, in
that immediate vicinity as you were interacting with
Deputy Vai outside of Courtroom 1D?
A Not that I noticed.
Q So, as far as you recall, it was yourself and the
deputy and you don't remember other people being there;
is that fair to say?
A When I -- when I looked at the video --
Q Sir --
THE COURT: It's got to be based on your
recollection, not the video.
THE WITNESS: Again, it was a surreal
experience to me so I didn't notice.
MR. COLBURN: Fair enough.
BY MR. COLBURN:
Q Nothing else for -- oh, I beg your pardon. Mr. Mashak,
you gave some testimony with regard to making a request
for certain video recordings at the courthouse when you
were there, or at least the recording would have been
of your presence at the courthouse on March 12th of
2014; is that correct?
A That is correct.
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - CROSS 110
Q And, if I recall your testimony on direct examination
correctly, it sounds as though you made that request to
many, many people?
A Absolutely.
Q Okay. And, eventually, you were -- you made your first
appearance in court on the charge of disorderly conduct
on June 11th of 2014; is that correct?
A Yes.
Q Okay. And, at that hearing, you made a request of Mr.
Fluegel for disclosures in your case; is that right?
A I don't think that was the first time I made the
request, but yes.
Q Okay. Do you have -- if you believe that was not the
first time you made the request of Mr. Fluegel, can you
tell me when your first request to Mr. Fluegel or my
office would have been for disclosures in your case?
A Sometime in correspondence prior to that event.
Q So you don't know exactly?
A No.
Q But do you recall making that request on June 11th,
2014?
A I do remember we had a discussion about video, and that
the judge was pretty adamant that Mr. Fruegel present
this evidence. And I said, "Well, what happens if they
don't?" She said, "There's other avenues to address
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - CROSS 111
the destruction of that evidence." And at no time
during that hearing did Mr. Fluegel say --
Q Sir, I'm asking you if you recall making the request on
June 11th of Mr. Fluegel? That's the question.
A Yes.
Q And, as you sit here today, is it true to say that you
have received, and been able to view, the video
recordings of you in the holding area of the
courthouse?
A Yes.
Q Is it also true to say now that, on a far more recent
basis, but is it true to say that, as of today, you
have reviewed video that has been disclosed to you,
through your attorney, of your presence outside of
Courtroom 1D on March 12th, 2014?
A You mean the edited video?
THE COURT: Well, Mr. Mashak --
MR. COLBURN: I'm asking if you have
received video.
THE COURT: -- listen to the question.
THE WITNESS: Yes.
BY MR. COLBURN:
Q Okay. And have you also received and reviewed video of
some portion of the proceeding inside Courtroom 1D on
March 12th, 2014?
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - CROSS 112
A Some, but not all of the exculpatory portion.
Q Okay. But you have received some video; is that
correct?
A Seven months after the fact, yes.
THE COURT: Mr. -- Mr. Mashak --
MR. COLBURN: That's not my question,
sir.
THE COURT: Hold on a second. Mr.
Mashak, the question is yes or no.
THE WITNESS: Yes.
MR. COLBURN: Okay.
BY MR. COLBURN:
Q You were present for the testimony of Mitchell Sellner,
were you not?
A Yes.
Q As well as Deputy Vai, correct?
A Yes.
Q We've heard testimony, sir, of other individuals before
yourself here today that stated they were in the
courtroom with you for the -- what I will refer to as
the Sperling court hearing on March 12th of 2014,
correct?
A Correct.
Q Now, sir, I notice you're looking down at something.
May I ask what it is you're reviewing at the witness
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - REDIRECT 113
stand?
A Just my notes.
Q Okay. Notes are, I guess, your -- what -- what notes,
sir?
A Notes about stuff that I wanted to make sure that I got
a chance to say. But he's telling me I can only answer
yes or no so they're kind of useless to me.
Q I see. So you're refreshing your recollection then as
to the events of March 12th based on your notes; is
that what you're telling us?
A You know, it was -- there were other -- because I can
only answer yes or no, when you give me a chance to
answer other than yes or no, then I look to my notes to
see if I can work any of my key points if you must
know.
Q Okay.
MR. COLBURN: Nothing further for Mr.
Mashak, Your Honor.
THE COURT: Mr. Rogosheske, any
additional questions?
MR. ROGOSHESKE: Thanks, judge.
REDIRECT EXAMINATION BY MR. ROGOSHESKE:
Q Mr. Mashak, what missing video do you feel is
exculpatory?
A The -- again, I believe this all was they didn't want a
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - REDIRECT 114
member of the press covering this. And so the morning
video where they claim that I was the person that had
some interaction, and there's a long interaction
between me and this bailiff in the morning about
passing the note --
MR. COLBURN: Your Honor, I'm going to
object on relevance grounds. Quite frankly --
THE COURT: Hold on a second.
MR. COLBURN: -- Mr. Mashak testified
about, very directly, about what consisted of his
allegation of Mr. Mashak's supposed disorderly conduct.
THE COURT: Okay. I understand your
objection.
MR. COLBURN: Thank you.
THE COURT: Mr. Mashak, I want you to
limit your comments. Your lawyer just asked you a
question about what portions you think were
exculpatory. So I don't need a recitation of what
happened in the morning. I get that part.
THE WITNESS: Okay.
THE COURT: But the question is is what
portions do you think are not on there? Obviously,
there's no video from the morning.
THE WITNESS: There's no video of the
morning.
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - REDIRECT 115
THE COURT: Okay.
THE WITNESS: So that's Ayrlahn Johnson's
word against Vai's or the morning bailiff.
THE COURT: Okay. Just tell me what
portions.
THE WITNESS: The entire portion that
would show that it wasn't me that had any interaction.
And then there's some allegation that I had numerous
restraint going on. If you had that video, it wouldn't
just be my word. It would --
THE COURT: Okay.
THE WITNESS: -- show that I'm sitting
there with a pad in one hand and a pencil in the other
hand.
THE COURT: Okay. Fair enough.
THE WITNESS: And then Mr. Vai testified
that I was in the courtroom before he got in the
courtroom, which is false. Cause, as I told you, I
didn't leave the upstairs courtroom until 2:10. And I
think at 2:21 I'm in handcuffs.
THE COURT: Okay.
THE WITNESS: Right. I believe that's
exculpatory. And any of the video of any of the
courtroom gallery would be exculpatory because it would
just show you, Your Honor, that nobody was reprimanded
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - REDIRECT 116
by any bailiff.
THE COURT: Okay. And, Mr. Mashak, let
me -- I'm going to have your lawyer ask you another
question. But I want to make sure that you understand
the perimeters of what I'm looking at here when we talk
about exculpatory evidence.
THE WITNESS: Okay.
THE COURT: The only thing you're charged
with is what occurred outside of the courtroom you were
in. You're not charged with any behavior in the
morning. You're not charged with any behavior in the
afternoon that occurred inside the courtroom. The
only -- the only thing I have to deal with is what
occurred once you walked outside that courtroom and
were placed into handcuffs. I've heard testimony as to
what happened. And I have to place value on testimony.
I get that part.
THE WITNESS: Uh-huh.
THE COURT: But I want you to know that
even if there were video in the morning and in the
afternoon, the most that would do is to corroborate
what you've testified to, or the other witnesses.
THE WITNESS: Okay.
THE COURT: But what it wouldn't be is
exculpatory as to what occurred outside the courtroom.
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FIRST JUDICIAL DISTRICT
DONALD MASHAK - REDIRECT 117
Does that make sense?
THE WITNESS: I understand what you're
saying.
THE COURT: Okay. And now I understand
your concern, also. So I'm not discounting it.
THE WITNESS: Right.
THE COURT: But -- so let's stop right
there. All right. Next question.
THE WITNESS: All right.
BY MR. ROGOSHESKE:
Q Is there anything else that you would like to add?
A I would like to just -- I heard Vai say that he had a
heightened awareness of me based on some conversation
that never happened, or based on some event that never
happened. And I think that goes to the credibility of
this entire case.
THE COURT: Okay. But credibility is
different than having a piece of evidence that's
exculpatory.
THE WITNESS: Okay. And the other
missing data is, because of this seven-month allegation
that this video had been destroyed, I don't trust that
the video from the other camera did not, in fact, show
me.
THE COURT: Okay. And you have made that
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FIRST JUDICIAL DISTRICT
118
apparent to me. So I understand that part, too.
MR. ROGOSHESKE: Okay. No more
questions, Judge.
THE COURT: Okay. Mr. Colburn, I assume
no other questions?
MR. COLBURN: No, Your Honor. Thank you.
THE COURT: Okay. Mr. Mashak, thank you.
You may step down.
(WHEREUPON, witness excused.)
THE COURT: Mr. Rogosheske, any
additional evidence at this time?
MR. ROGOSHESKE: Judge, I'd like to
submit my memorandum.
THE COURT: Okay. We'll talk about that
in a second. Mr. Colburn, the defense has rested. Any
rebuttal testimony at least at this time?
MR. COLBURN: No, Your Honor.
THE COURT: Okay. Mr. Rogosheske, I know
that you have drafted a memorandum. And what I would
like to do is not accept that, at least as of today.
What I'd like to be able to do is have you incorporate
the testimony that's occurred here today into your
memorandum. And, so for that reason, I want to make
sure that I give you some additional time to do that.
If I -- we are today at February the 26th. My thought
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119
would be to give you until -- to give you, essentially,
two weeks, 'til March 13th, to get your brief in. Is
that doable?
MR. ROGOSHESKE: That would depend on
your court reporter for the transcript, Judge.
THE COURT: Okay. Are you going to order
a transcript?
MR. ROGOSHESKE: If that's not necessary,
if I can just go on my recollection.
THE COURT: It's completely up to you.
If you can order -- if you want to order a transcript,
you may do that. My guess is is that my court
reporter, probably within the next week, could have a
transcript completed if you want to order it.
MR. ROGOSHESKE: Could I just talk to Mr.
Colburn real quick?
THE COURT: Sure. Go ahead. We'll go
off the record.
(WHEREUPON, a discussion was had off the
record not reported by the court reporter.)
THE COURT: Okay. That means that on
March 27th I will receive Mr. Colburn's brief, and on
that date I will take this matter under advisement.
Now, Mr. Mashak, I want you to understand
that -- and I want you to talk to Mr. Rogosheske about
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what I'm going to decide. In other words, what the
issues are for me. I'm not a jury. This is,
essentially, a preliminary hearing.
The only issue that I decide today for
this motion is simply whether or not there is probable
cause. Okay. That's, essentially, the lowest standard
to get a case moving. Obviously, if this case proceeds
and we go to trial, that's proof beyond a reasonable
doubt, the highest standard we have in criminal court.
So I make no predisposition. I'm going to look at all
the evidence. I want to hear from your lawyer. I want
to hear from the state. Evaluate the testimony. But I
need you to understand what the perimeters are for this
initial hearing. Does that make sense to you?
THE DEFENDANT: Okay. Yes.
THE COURT: Okay. Now, Mr. Rogosheske,
my question to you is, I understand now at least that
you have the video of the incident from the one camera
we talked about, also from the camera inside the
courtroom. And I understand that you have a camera or
a video from the intake holding area; is that correct?
MR. ROGOSHESKE: That's correct, Judge.
And the video from inside Courtroom 1D.
THE COURT: Okay. And so are you still
making an argument for, essentially, spoliation?
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MR. ROGOSHESKE: Yes.
THE COURT: Okay. All right. I will
receive those briefs on the dates I've indicated. I
will take it under advisement as soon as I get Mr.
Colburn's brief.
Mr. Mashak, I would hope that within a
week or two after I get those briefs in I will have a
written order. Obviously, if I find no probable cause,
your case is over. If I find probable cause, that
simply means we move to the next stage. You understand
that?
THE DEFENDANT: Unfortunately, yes.
THE COURT: Okay. All right. Mr.
Colburn, anything additional we need to deal with
today?
MR. COLBURN: No, Your Honor. Thank you.
THE COURT: Mr. Rogosheske, anything
additional?
MR. ROGOSHESKE: No, Judge. Thank you.
THE COURT: All right. Thank you so
much. We'll be in recess.
* * * (END OF RECORD) * * *
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STATE OF MINNESOTA
CERTIFICATE
COUNTY OF SCOTT
I, Debbie L. Peterson, RPR, do hereby
certify that the witness was first duly sworn to
testify to the truth, the whole truth and nothing but
the truth relative to the matter under consideration,
and the foregoing pages 1 - 121 inclusive are a true
and correct transcript of my stenotype notes.
Dated at Shakopee, Minnesota, on this 6th
day of March, 2015.
/s/ Debbie Peterson
Debbie Peterson, RPR
Official Court Reporter
Scott Co. Judicial Center
200 West 4th Avenue
Shakopee, MN 55102
(952) 496-8223
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