Nancy Brophy murder trial: Day 27, morning session | Live stream

maxfield yes good morning your honor lisa maxfield also here with ms brophy my bar number is 844-337 and my last name is spelled m-a-x-f-i-e-l-d so let's there's a few things to take up before we bring the jury in uh yesterday defense had an objection to the form of the verdict form and i understand the sides have not reached an agreement on modifications that may or may not need to be made so i guess i'll have miss maxfield remind me of what the issue is you know we were concerned that the verdict form didn't have the 10-2 for not guilty counsel informs me that because there's a there's an instruction that does advise the jury of that that this is how the state typically does that so if it's how it's usually done well there is an instruction i was thinking about it this morning myself and to be honest i i don't actually remember so i i'm not saying one way or the other i don't actually remember there being language on most verdict forms at all about how many jurors need to agree on something but i having said that i may just not remember but the very last instruction i'm going to give is to inform them about how many jurors need to agree for a guilty finding how many need to agree for a not guilty finding as well as even though it's apparently not really an issue in the case how many jurors need to agree on the yes or no questions um so i mean i think as long as there's an instruction okay maybe maybe it was much of doom about nothing all right uh mr overstreet uh your honor i think we're this idea of language on the verdict form comes from is before uh unanimous verdicts were required and the reason i say that is because there was never an instruction for the crime itself on the verdict form but there was a further instruction to explain if you have these questions these enhancements right that needed to be questioned the instruction was that 10 of the people that found the individual guilty had to also be the same 10 people right answered yesterday's question so i think the confusion is this language that's in the middle of this verdict form does give instructions on the for the questions um and it's probably unnecessary because of the uh instructions that are given to the jury i think that you could take out that middle language you're talking about the sentence in order for the jury to return a finding of yes on these allegations all 12 jurors must agree that the state has proven the allegations below yes so i mean it might just read better if we take that out and i give the instructions on what's required for each of the findings right so that would be my suggestion is basically the second half of that paragraph okay and if that if that works for defense that's what we'll do before we get this to the jury um i did want to raise two other matters uh the first is we've gotten i think you both have seen juror number 15 has forwarded an email exchange oh you haven't seen it oh all right so so let me explain what you're about to see juror 15 apparently sent an email to their supervisor informing them just sort of how much longer they would potentially be here uh the supervisor sends an email back which makes an inappropriate comment uh and the juror has brought it to our attention just as i instruct jurors to do if anyone tries to talk with them about the case it does not seem like the juror is in any way shape or form engaging with supervisor about the case but the supervisor has made this comment which you'll see on page one the second email uh and so i at least want to afford the attorneys an opportunity if they think it's necessary to question this juror outside the presence of others to see if there was any further conversation uh or if any way this you know anything the lawyers would like me to ask so that i'm the one asking instead of them i'm happy to do so so back row third from the far end meaning third from the right oh yeah that's fine so uh but just again just if you guys look up there uh i don't know if it's male or female but okay probably should what do you think chris yeah i think we probably should all right the reference is lost on me i don't know who carol baskin is well yeah um that's fine i think a lot of people may uh i i guess the questions i would ask is whether this uh manager has attempted to speak to her or communicate with her in any other fashion about this case and whether or not this comment would have any influence on the jurors deliberative process i'm not sure what else to ask which is why i wanted to see if either side has any suggestions i guess we could i i mean i guess if we were just doing bordeaux and we knew that that she had a boss with these thoughts we'd want to know whether she might feel pressured to return to work okay sure yeah because i and i don't know uh you know i don't know exactly what the supervisory relationship is here so i'll ask about that too so why so before we call in that juror though uh you know yesterday i had asked the sides to consider whether or not you would stipulate to if during deliberations a juror becomes unavailable we hope that won't happen but if it does have the side had any thought process further on whether or not they would stipulate one of the alternates replacing that juror okay i see defensa shaking their head affirmatively we would also stipulate your honor all right i just want to make sure i'm sure she does understand this but i want to make sure that mrs brophy understands this so even though i'm sure your attorneys have explained it to you i'm going to explain it as well we have four alternate jurors and i think we were all under the assumption that if one of the regular jurors fell ill during deliberations or had some sort of circumstance happen where they couldn't return that one of the alternates would come back they'll be instructed not to discuss the case or look anything up but an alternate would come back and they would have to start the deliberations all over again but there would be a potential replacement for the juror who left there's a statute which actually says that kind of stipulation is supposed to happen if it's gonna happen uh before the trial starts and it didn't so the question i have posed to the attorneys and to you as well is whether or not despite that statute uh decides would agree to that because if the answer is no and we wind up losing the juror during deliberations it would lead to a mistrial and the whole thing would you know be retried uh well i mean unless the sides agree to a jury of 11 people over 12. so that's what we're discussing and i want to ask you whether or not you agree that a alternate could be used in that way i do okay all right okay so with that then let's bring back juror 15. [Music] okay okay everyone can be seated juror 15 thank you for bringing the email exchange to our attention it's exactly what we would want a juror to do to let us know if there's been attempts at outside communication i just wanted to ask you a few questions other than this email has this individual tried to communicate with you in any other way about the substance of the case and how what kind of supervisory position does this person have to you at work different projects okay so it's sure and all right well that may answer what i'm going to ask next but i'm going to ask it anyways do you feel any particular pressure as a result of this to decide this case one way or the other uh going back to work knowing he feels this way apparently and i should ask does this communication impact your thinking at all one way or the other about how you'll evaluate the case all right i'm going to just see if the attorneys have any questions we'll start with the state i do know defense have any questions all right okay again thank you for bringing it to our attention we'll we'll take you back to the other jurors and bring everyone in soon uh yeah why don't you leave it running just um you can stay sane if you want but you don't have to i know it's up and down but uh it's fine to sit until the jury comes back oh okay all right we are right uh anything else before we call for the jury no all right let's call for the jury uh and mr overstreet when you're ready thank you ron you can all breathe a sigh of relief this is the last time you're going to hear from the lawyers i promise i don't want to take up too much time this morning in fact i had hoped to do this last night but it seemed a little constrained for time but i do want to cover some areas this is this is not the opportunity for me to go back and re-argue the entire case that's not what i'm doing what i'm doing is responding to what defense said yesterday and we feel the need to respond because defense once again has twisted words and made their own statements and they even supplement the evidence at times what i mean by that is when there's a hole when there was no evidence on a particular matter the defense awareness would just say something to fill it and as you've heard over and over again have i urged you to be cautious when listening to defense counsel when it's not things that are based in evidence i have a list of things i want to talk to you about as evidence of that and this list is not exhaustive we just simply don't have the time to go through all of it but what defense was saying is that they're not really acknowledging that nancy was turning off of 17th avenue onto jefferson apparently they didn't listen to their own defendant's testimony that's exactly what she said she said it was me that is me turning off of 17th unto jefferson but defense can never commit to that miss weinmiller said that they decide i'm sorry that the brophy's decided to live in vernon or in that area and that their money would go a lot farther there that real estate's a lot cheaper out there now there may be some common sense to that but you heard no evidence in this courtroom about what they were looking for in what price range and whether they could even afford it in fact what miss weinmiller stood up here and said is they were going to get probably over 400 000 of course they could afford something in the vernon area but the reality is the house sold for 565 thousand dollars even after the yard was cleaned up and the house was ready for sale that's not four hundred thousand dollars in profit they were maybe looking at getting about two hundred thousand dollars in profit so just use your own common sense on what in the world they think they're gonna buy with land for two hundred thousand dollars and own it outright but again no evidence of what that would look like she then stated that well miss gway only looked at the tower in vernon the one servicing vernon that's simply not true miss gway testified and told you that she checked a few towers in the area that could potentially service the vernon area did she go wide out 20 miles no of course not but i think she testified that within 10 miles she checked those towers and there was no activity other than the activity on highway 26. so once again defense doubles down on this idea that that's exactly what nancy's out there doing and there's actually no evidence of that defense was clearly confused about the dates of march 26th and 27th she gave a presentation yesterday about how we are asserting that miss brophy went out there on the 26th shot her gun and then went to lunch that's simply a false statement that wasn't the evidence that's not what i told you the 26th is the day that she went to lunch that's also the day that i said she didn't have enough time to shoot she went out there probably doing recon like nancy always does and then went to lunch it was the next day that she had plenty of time to go out and shoot a gun plenty again defense is up here saying i think her words were amazing amazing precision of the shooter that this person who shot dan brophy had amazing amazing precision a couple things about that there is evidence that this was very close range despite defense saying there isn't what's the evidence that this happened at close range the trajectory of the bullet alone tells you it's at close range the person who shot dan brophy wasn't standing at the door shooting across the room we would have had a much different trajectory the person was standing almost directly behind dan brophy the bullet that went in his back went slightly to the left of the center of his back when it tried to exit his chest so the person standing behind him had to be nearly directly behind him to accomplish that type of shot well what was behind dan brophy those two big silver tables that you saw so the shooter either had to be in front of those tables very close to dan or in between the tables just another maybe two feet farther away from him that alone tells you that this happened at a very close range and miss jacobs told you that miss brophy disclosed that whether she was admitting that she was the shooter or not but miss jacobs was saying that miss brophy was indicating that it was an arm's length away now what does this mean well defense goes back to this idea that's such a precision shot how could somebody without hardly any gun experience do this well first of all we don't know that that's the first time nancy shot her gun that's the evidence that i have that nancy shot her gun because we're relying on real evidence in this courtroom not speculation but nonetheless what it does show you is that nancy had the opportunity to be very close to dan and shoot him and again even if he knew she was there he wouldn't be startled this is somebody he loves somebody he trusted would turn his back to to continue his work once again a reason why it's so unlikely that this could be somebody else somebody gets that close and dan doesn't know dan probably knew that nancy was there even though defense again asserts over and over and over that we claimed that he didn't know he didn't know about a lot of things it's not true and think about it if we're talking an arm's length distance and this is where dan brophy's standing and i'm assuming i have a bigger wingspan than miss brophy but let's use mine anyway we're here i'm shooting and it's such it's so unbelievable that i would hit my target this isn't the world's luckiest shot as defense would have you believe this was calculated now did she intend to sever his spine intended to go through his heart or lungs or anything i don't know but she squared up and shot him straight through the back and the second shot there's no precision at all when dan's laying on his back paralyzed she just walks over to him right through his chest what kind of precision is that anybody could make that shot defense then doesn't stop there with their statements and assertions they go on and say that somebody claimed that nancy brophy abandoned the brophy family i don't know where you heard that nobody said that and in fact i would argue of course she didn't abandon the brophy family that would seem awfully suspicious you're the grieving widow and you just disappear you don't talk to the family anymore of course she continued to talk to the family but defense claimed that they that she didn't or that there was a claim that she didn't the defense attorney also asserts claims that dan and nancy were that we're asserting that dan and nancy were secretly planning a divorce don't know where you heard that that wasn't in evidence i never said that i don't believe dan and nancy were secretly planning a divorce dan certainly wasn't dan had no intentions of leaving this marriage no evidence that he had any intention of leaving this marriage nancy on the other hand wasn't planning a divorce either but instead planning the murder that's her way out there are no plans for divorce but yet defense attorneys they continue to stand up here and say that's what the state's asserting to you and it's just false defense also asserts that the state claimed that dan would force his wife to work so that he could have this precious yard in his garden you didn't hear that either i didn't say that there was no evidence of that in fact i would argue the opposite i don't think dan would do that i don't think there's any evidence to support that but defense doesn't stop there they assert that we proposed that dan didn't even know about the storage unit i never said that no witness ever said that all you heard was that nancy rented the storage unit that does not mean dan did not know about it defense then asserts that they that we claimed that dan didn't know about the yard cleanup that's ridiculous of course he knew about it he has eyes he lives there he can see that there's yard cleanup being done he may even had his hand in it where we disagree with the fence on this is not that he didn't know about it but what the purpose was for because the story now is we're cleaning it up so we can subdivide it and now you know the subdivision story is garbage and not true so dan clearly wasn't thinking that but even the sale of the house being imminent i don't know that dan knew that i don't think there's any evidence that supports that dan was really on board with this plan that they're selling the house now because look at the house and look at the physical evidence that you had that was described to you nobody was starting to get that house ready for sale nobody all they did was a little bit of yard work because remember most of that yard work happened after dan died but look at the rest of the house and look how much help had to be brought in and how long it took to get that house ready that summer they spent three months with all that help that's what it took to get that ready for sale so at the pace that dan and nancy were going they were not heading for a sale of that house ms weinwellis stood up here and said that dan must have signed for the slide and barrel that was delivered on february 28th they said that they actually said they're opening that they would prove that to you and then she sat up here yesterday stood up here yesterday and said that dan had to have signed for it because nancy wasn't home that day again what is defense doing here completely ignoring what the actual evidence was patrick cowan the gentleman who sold the slide barrel on ebay to miss brophy sat right there and said no signature was required the postal service could have actually just put it in their post box so why would defense stand up here and say no signature was required dan must have known about it other than just to mislead you and confuse you ms weinmiller went on then to tell you that nick white also thought that the blackberries needed to be cut first of all he never talked to the brophys so i don't know how he would know that the blackberries would need to be cut and what he did say is if i did encounter blackberries on the property i would have cut them myself to gain access no need to go spend 21 thousand dollars to james denney to clear these blackberry bushes to start the plan for subdividing ms weinman also told you that nancy didn't sleep the night before because before the murder because she was working on her story nancy testified that she stayed up later than dan and that was normal she didn't tell you that she was writing but it has to fit the narrative everything the defense counsel gets up here and says has to fit their narrative and what she did miss what miss brophy actually told the detectives too about that night was that she couldn't sleep and because she could didn't know why so you heard three different versions of events miss weinmiller then told you that dan would have had to bring in those two carts and she showed you pictures he would have to bring in those two cards that morning that would have taken more time problem that is miss weinmiller apparently didn't listen to miss brophy's testimony when miss brophy said that dan brought the carts down the day before on top of the misleading statements that miss weinmiller and mrs maxfield have made during this trial they fed you several red herrings now defense counsel mentioned red herrings yesterday i'm not sure that everybody knows the definition of a red herring so i just want to cover that the oxford dictionary defines the red herring as something that is intended to be misleading or distracting that's what defense counsel is trying to do here they don't actually have evidence to counter the state's evidence so they just throw out a bunch of stuff to distract you and are asking you to not to look at the evidence look at this look at this other thing so what are the red herrings that they sent to distract you with again not an exhaustive list just a few examples talked about suspicious people in the area what relevance does that have because they want you to believe without any evidence whatsoever that well it must have been them because they're suspicious and what's suspicious about them they're walking they also say that there's a person who appears to be a lookout i don't know if you remember the video but i believe the person that they're talking about is a guy who's kind of standing near a wall nearby about a block away but if he's a lookout this is after the murder this is after the police arrived so what's he look out for it's a red herring even the term lookout is a red herring weinmiller sat up here stood up here and talked about a book of mushrooms that dan owned what does that mean nothing she talked about a red bag missing from the culinary institute but we don't actually know that because nancy if you talk listen to her doesn't actually know if dan brought a red bag that morning or not she would know either way the only time you heard about a red bag is from nancy brophy during the death notification that she thought that dan should have a red bag with him that's it not what's in it anything of value nothing else it's designed to distract you maybe to to suggest that this this was a robbery this person stole dan's red bag not his money not his wallet not his phone not his keys not his car some random red bag but you heard nothing else about that nothing they also talked about general homelessness in the area and they tried very hard if you recall with every witness who had experience in that area to get them to say that homeless people were scary in that area but yet one after one each person came in here and told you ah i mean they're there it's not that bad never been assaulted never heard of anybody being assaulted down there in fact you did hear from two gentlemen that defense counsel brought in here and that was fred heartbet and francisco jaramillo who worked at the bmw across the street what they told you is yeah there's homeless people in the area and we were there that morning coming in and out and we saw nothing out of the ordinary not suspicious people not anything concerning these two guys who are very familiar with that area sounds like they've worked down there for decades but defense wants you to believe that there was a homeless problem when witness after witness basically said there wasn't and then finally oh how many times did you hear about a waffle iron and saw pictures of a waffle iron did you ever make sense of that why were they showing you pictures of a waffle iron why did they ask so many questions about a waffle eye this is a prime example of a red herring get you thinking about a waffle iron what does it mean was it there was it not there who knows there was pictures of waffle iron at the crime scene seemed to be fully intact and just sitting there where people said that it always was what does it mean they're just trying to distract you so defense goes on to explain the finances i am not going to spend more than a minute talking about this because clearly they were in financial trouble i don't know who they paid to come in here to tell them that their finances were perfectly sound but that is ridiculous their finances were awful miss weinmiller claimed that dr rubinson i'm sorry mr rubinson said that dan was worth more to nancy alive than dead even after i just gave the closing argument and showed you how that's not true she still stood up here and said no he's worth more alive but dr rubinson mr rubinson said 1.13 million dollars over the course of 17 years dan dead now is 1.6 million dollars now well 1.2 million dollars now and another 400 000 paid out over time i don't know what trial the defense team was watching but those numbers don't work dan was not worth more to nancy monetarily then she missed weinrealer goes well how do we even know miss brophy knew about the workers comp that 400 000 that she'd get over time how do we know she even knew about it she owned a business she better know about workers comp she ran a catering company had 25 employees she better know about workers comp and how it works but again it's not about the money it's the lifestyle that nancy desired partially driven by the amount of money she would get but she needed a different lifestyle as we've said that dan could not give her but then defense points out well why would nancy make all these purchases with their onpoint account a joint account clearly dan would have access to that clearly dan would know about these purchases and have questions well first of all who cares if he knew nancy would just say oh it's for writing dan and dan being dan would probably like whatever and move on so who cares if he knew but i am going to argue to you dan had no idea what was going on in that bank account dan didn't even really know it was gone in his own bank account i'm going to show you what's marked as states exhibit 86 this is a long record so you have to go down to page 530 and what you'll see there is that dan brophy hasn't had a debit card to this account since 2016. so we know he's not spending out of this account using his debit card because he doesn't have one you also can think back to the pictures that you saw of dan's wallet contents there is not an on point debit card in there you can also listen to what nancy brophy told detectives that morning when she rattled off what should be in his wallet and she does not mention an onpoint debit card and it's because he doesn't have one and does not use that account how do we know he doesn't use that account because he also doesn't write checks out of it there's no checks written from dan out of the onpoint account there is also no deposits from dan's employment going into that account this is a joint account sure could dan use it yeah he has a legal right to it but for all intents and purposes nancy used that account and dan had no idea what was going on in it now you can look to dan's actual account the wells fargo account where his money is being deposited where he does make expenses from and i would argue to you he doesn't even really know what's going on in that account why do we know that because he texts nancy and says hey did my check hit my account yet nancy is management she manages the funds she manages the household dan checks in with her about the finances and there's further proof of that in the dearest dan letter that you heard about clearly this guy mr brophy does not use online banking and we know that because nancy brophy wrote to him how to access it she had to she had to instruct him on how to open the computer and get it started so he clearly wasn't doing any online banking mr brophy as you've heard as i've stated over and over is a pretty simple guy not one to use technology and if he did he would have to be instructed on defense counsel then moves on and talks about the window of opportunity she first said well it's only a four and a half minute window on june 2nd for the murder to happen but then she corrects it says it's five and a half minutes but then she sort of questions the window altogether and kind of well dan had to do so many things in there and that would take too much time uh and so you know the time that nancy was there she wouldn't have had enough time to kill him i think is what they're asking you to the implication to be but the things they rattled off would maybe add up to a couple of minutes walking a cart from the cooler to the back hitting the button on the coffee pot maybe or maybe not gets the money out of the piggy bank and then now he's back over filling up water when he's killed that doesn't take very long nancy probably did wait for that or she was there with him and he was undisturbed by her and she was waiting for an opportunity where he turned his back to her but nonetheless the interest the argument is interesting from defense because they're suggesting that that window maybe was much more narrow making it even more unlikely that this would be a random person the breakdown of that morning is actually that the alarm was taken down at 7 20 2 30. you've heard that over and over miss weinmiller said well the next person gets there about 7 33 7 35 or something that is wrong miranda bernhard got out of her uber at 7 29 that's where that six minute window comes in and if you think about 729 as opposed to 728 and some change we're talking seconds after nancy brophy drove away from the culinary institute that miranda bernhard arrives remember how she arrives she gets out of the uber on the corner of 17th and jefferson and she walks right by that roll-up door she's not reporting anything suspicious at that time so at 7 29 it is reasonable to believe that dan has already been shot and killed so that window is five and a half six minutes long and think about this they miranda bernhard is also the same person that when she arrives she walks around the corner and she sees the person that she thinks looks or i'm sorry that has the same characteristics as the person that's been identified as oscar taylor across the street up the street a little bit uh madison up by the met up by the admin building where all those cans are so if defense is asserting that nancy actually didn't have time to kill dan in that window of time neither did oscar taylor by their own argument then defense switches gears and they say well why would nancy drive her own van down there fair question i suppose but what is she supposed to drive you rent a car locally that's awfully suspicious rent a car day before your husband is murdered that seems awfully suspicious so would borrowing a car you borrow a car the day before the murder but why did she drive her own van as i stated yesterday nancy is smarter than everybody she's done her research she's been to the culinary institute knows there's no cameras she's probably driven that street and thinks there's no cameras because what are the cameras that sunk her interior cameras in businesses you saw numerous she didn't know those were there she probably looked up that street and said there are no cameras out here i'm fine now interestingly defense proposes that well there's cameras on the bmw building the old property room that were obvious okay if nancy knew those were there does that not just bolster my argument to you that nancy did not go all the way up to madison street that she actually stayed in front of the culinary institute because if she's afraid if she goes too far up that street she might be seen by those cameras then she's not going to do it so she either didn't know the cameras were there didn't notice them or she did know they were there and that's why she stayed in front of the culinary institute knowing she would be out of the view of the cameras defense then goes on to explain guns to you and why nancy purchased the guns and what the purpose was but i think what became painfully obvious is that defense counsel has no knowledge of firearms as evidenced by the fact that they stated that they had no knowledge of firearms before they would question witnesses about guns i believe miss maxfield said that at least twice i don't know anything about guns but here i go because yesterday miss weinmiller stood up and gave you a completely incoherent explanation for why the slide on the gun show gun was out of battery what do i mean by that she stood up here and said well sometimes the slide is forward if there's a if there's a zip tie sometimes the slide is back off the gun if there's a zip tie in it and uh i will tell you that's not how it works as you saw and as the actual people who know things about guns testified to if you put a zip tie through that gun and it is seated properly on the frame that slide barrel is sticking off the back of the gun because the zip tie creates a gap and it pushes the slide off the back of the gun but miss winemiller said well sometimes it's forward no it's not that's not true at all and then she explains well the guy at the gun show who sold it to her mr glen dinning he was manipulating it to show nancy how to do it well first of all this guy knows how to put a slide barrel back on a frame and he sent nancy out with a properly seated slide and barrel but defense wants you to believe well maybe he messed it up somehow now this is where the wires get crossed on defense the original story given to you was that nancy told the police that she put the gun away and never touched it never handled it after that because it was ugly and heavy and all that stuff but then nancy got up on the stand and said no no i played with it i messed with it i removed the slide and barrel i don't know if miss weinmiller missed that part of the testimony but she completely ignored it yesterday in her argument because if nancy removed the slide and barrel then she's the one that manipulated and caused that slide and barrel to be unseated or out of battery as you heard but miss weinmiller was trying to get you to believe that it's possibly the people at the gun show which makes no sense they forgot the narrative and they're telling you different stories speaking of different stories you heard miss weinmiller stand up an opening and say miss brophy bought that sliding barrel on ebay because she saw a pop-up badge just couldn't help herself and she still needed a slide even though she already had two failed to explain why she needed it and so she just went ahead and bought it miss brophy told you on the stand i bought it intentionally i went to ebay intentionally and purchased it and when i said well wasn't it a papa bat of some sort that's what your lawyer said she turned to her lawyer and said did you say that they had a script that they were trying to follow a narrative that they needed you to believe and they messed it up over and over and over because it's all lies it's not based in evidence so then they go well we can't just not explain why nancy remembers because that will sound ridiculous we're going to bring in some doctors to tell you why she doesn't remember and i'm going to address the two things that miss weinmiller addressed yesterday one not attending the idea here being that miss brophy was just driving around lost in her world thinking about writing now they said she was writing and jotting down notes but she doesn't do that she doesn't jot down notes she's she sat there and told you she writes whole books in her head but now she's jotting down notes but there are no notes it gets a little confusing right so nonetheless she's not attending because she's so busy doing this writing stuff even though there's no evidence of that the problem with that is that dr best stood up here sat up here and told you somebody who's not attending is more likely to attend and would be expected to attend when they're doing something out of the ordinary so yes if nancy drove downtown every single day she might block out part of that drive because she's used to it just like all of you have probably done but she doesn't do that every day she goes to her local drive-through starbucks she comes home and she writes so partially getting dressed and driving downtown would seem a little out of the ordinary for miss brophy and she should have attended but it doesn't matter because even dr reesberg their own expert got up here and said that well when you don't attend specifically he gave an example of driving it doesn't mean you don't remember driving you just don't recall specific parts of the driving just like you all have experienced i'm sure what dr riesberg did not say is that well when you're attending you must just black out a certain section of time and you have no memory of what you were even doing at all and think about your own experience when driving and doing that sort of zoning out for a minute do you ever look back and go gosh i don't even remember driving i don't remember getting in my car i don't remember getting home you don't remember anything no because it's not real so they also told you well okay so she's not attending so she's not committing things to memory so she just blocks that out and then she has this trauma which prevents her from encoding these memories but besides that we're going to go ahead and pile on and say must also be retrograde amnesia remember these are two separate theories but they're just kind of throwing the kitchen sink at you and hoping you bite the problem with that is dr riceberg specifically talked about rebel's law if you remember he said 30 minutes before a trauma is where you would expect that sort of problem developing memories 30 minutes and then you go back in 30 minute increments and you expect the memory to get better and better and better and better the farther away you get away from the trauma that was rebo's law well when miss brophy's receiving the news that her husband's dead it's almost 11 o'clock in the morning 11 o'clock so if she's going to have let's give her the benefit of that let's say 10 30 go back a half an hour to 10 then her memory should start getting better nine thirty nine eight thirty eight seven thirty seven gotta go back even farther right because she left her house at six thirty so you gotta go all the way back to 6 30. you actually have to go before that because she had to get dressed to leave so six o'clock in the morning almost five hours before rebo's law says what what's no we'd expect you to have some memory of that but no complete blackout but then when faced with the idea well you can't have just a complete blackout because that would sound ridiculous to this jury well okay no i do remember some stuff from that morning now all of a sudden she remembers that she woke up that she talked to dan about a leak that he carried some towels downstairs she partially got dressed then black out none of this makes sense if you're trying to make sense of it in your head and you go i don't get it i can't fathom these stories it's because they're all designed to make you confused because defense is hoping that your confusion somehow equals reasonable doubt and i can assure you confusion is not reasonable doubt to try to support the idea that nancy okay she's downtown they're willing to accept that now but then she got home and she just carried on about her day she doesn't remember this but she used her computer apparently now when they had their expert up here talking about a computer he said well i saw activity about 8 48 in the morning looks like she's doing some insurance stuff then she looks like she was working on some writing and miss maxfield said yesterday for quite some time was her direct quote this brophy was on that computer manipulating a flash drive and some files for 18 minutes not writing a book in fact there's no evidence she wrote a thing the expert told you there was movement from files onto a flash drive and it looks like one of them was opened can't tell if she wrote a single thing the poor alibi it's a terrible alibi but nonetheless nancy brophy's attempt at an alibi now what i found interesting about that testimony is they didn't ask their own expert well when did the activity start that morning because they didn't want you to know they wanted you to assume there was activity on that computer earlier that morning so i asked and he said oh yeah computer wasn't turned on till 8 31. oh no activity before that so she's not up writing she's not up in bed writing she's not on our computer 8 31 think about that timeline she leaves downtown at 7 28 she's home by about 7 38 give her a couple minutes for traffic let's call it 7 40. her neighbors are out at 7 45 to 8 o'clock and they see miss brophy pulling up frantic so miss brophy drives home she sees her neighbors wants to make sure she's seen for her alibi addresses them with the dog issue no dogs in sight she goes back home switches out that slide barrel and then she jumps on her computer defense couldn't couldn't pass on the opportunity to double down on oscar taylor yesterday they want you so badly to believe oscar taylor's murderer i'm not going to rehash why you should be offended by that but you know the narrative is that oscar taylor navigated this maze of the culinary institute which he's never been in before murdered dan then he apparently went over to the restaurant where the wine is kept and stole from the restaurant now what i want to point out if it's not all already obvious how ridiculous that sounds where the restaurant is so oscar taylor apparently came through the storeroom found his way this way went back here murdered dan for no reason whatsoever didn't take his money didn't take anything else as you've heard then he somehow goes either this way into here or he comes back and goes down this way somehow has to make it back to the kitchen where the wine is stored assuming it's not locked up and what does oscar taylor take apparently takes a bottle of cabernet and for good measure he's going to take a candle that's their argument for oscar taylor miss weinmiller said absurd a few times yesterday i can't think of anything more absurd than this oscar taylor theory specifically when you think about defense's own argument about the time frame that oscar taylor waited for dan to do a few things before he went in and murdered him for no reason whatsoever and then he basically had a couple of minute window and then he goes in he happens to have the same exact making caliber of gun that nancy brophy does he executes dan brophy then he walks out with a bottle a cab and a candle and goes right back to canning that's what you have to believe and you have to believe that was all done while nancy brophy was there it's ridiculous that is not reasonable doubt finally defense once again couldn't help themselves they had to address angie drake andrea jacobs if you recall i didn't even bring her up in my closing argument you don't have to believe her the evidence is still the evidence you don't have to believe her but defense just like they did when she was on the stand went on the attack i'm not defending andrea jacobs i can assure you that i'm a prosecutor she committed crimes she also pled to those crimes and is serving a prison sentence what i want you to consider when you think about andrea jacobs and whether you believe her or not is consider her motives as you're instructed to consider her motives and consider the manner in which she testified what were andrea jacobs motives to testify here remember she didn't come forward she had this conversation with nancy over a year ago she didn't come forward she didn't come forward looking for a deal then she bring it up she didn't bring it up this year either in april when detective merrill found her and went and talked to her knowing that she had been housed with nancy brophy and seeing if she had anything to say she told detective meryl what had happened and then we drug her up here against her will she told you how many times i don't want to be here now all she said was that nancy had a slip of the tongue they're having a discussion nancy of course being the chatter that she is can't help herself but talk about her case so she's talking and they're relatively i think jail friends is probably the best way to put it whatever kind of friendship that can be but they nonetheless talked to each other and miss jacobs told you well nancy was explaining to me how far away the shot was and she said it was uh this far away and she says well i was this i mean wait it was this far away a slip of the tongue that's what she told you is the slip of the tongue so hard to believe after you watch nancy brophy's testimony i would argue that it's probably not that much of a stretch for you to say yeah i could see that i must confess to you all that when we say that andrea jacobs didn't get anything for her testimony that's not true and did she get a benefit in her case no is she hoping to get a benefit for some case that maybe she's going to be prosecuted for she said no we told her she wasn't getting anything for it but she is getting something she got two sheriff's deputies to come down and pick her up from texas and give her a free plane ride to portland so that she could sit here and be publicly shamed and badgered by miss maxfield this maxwell went at her hard don't you must admit you must admit let's talk about your crimes let's talk about your convictions for the world to see this woman who wanted nothing to do with this case had to sit up there and take that so she got that free ride she got to be publicly shamed and most of all she got threats to her safety and her well-being that's what she got in exchange for her testimony you should consider that when you consider whether you believe her or not and consider the fact that defense counsel was so afraid of her testimony so afraid of it that not only did they badger on the stand then they brought in several people to call her a liar they brought in two doctors just as many doctors as they had to testify about nancy brophy's memory and and her uh what kind of person she is they brought in just as many doctors to call miss jacobs a liar that's how scared they were that you would believe miss jacobs i'm wrapping this up i promise i do want you to remember that reasonable doubt is actually based on common sense and reason right it's not beyond all doubt as you've heard although i think defense counsel's characterization would like you to lean that way but that is not the law we've given you the puzzle pieces to put together the picture there might be a puzzle piece missing that you might want to know about but you when you take a step back from that puzzle and you look at it and there's a puzzle piece missing you can still see the picture you know what is there most of the excuses and reasons that you heard from the defense counsel throughout this case and during closing arguments came from nancy herself self-serving statements developed over the course of almost four years the other places that information came from was from defense experts like about the retirement plan the only people you heard about it from or they came from those supplemental statements from the lawyers themselves or from their questions none of that none of those are evidence miss weinmiller told you that the last time nancy saw dan was that morning when they talked about the leak the reality is the last time nancy saw dan was when she stood over him and looked him in his eyes as he's breathing in his last last bit of life paralyzed injured but he wasn't dead yet so she looked into his eyes and pulled that trigger one last time that's the last time she saw him that sparkle in nancy's eye that defense council gave you several adjectives for that sparkle was not nancy having fond memories of dan you saw a sparkle in our eyes it was the crocodile tears conjured up to get your sympathy just as nancy told you on the stand anyone is capable of murder anyone that would include nancy brophy during her last rambling rant on cross-examination she blurted out this sentence how do you defend against the truth whoops you can't can't defend against the truth nancy is guilty of murdering her husband and is now up to you to to deliver the justice for chef dan brophy and the rest of the brophy family i am asking you to return a verdict of guilty thank you all right i'm going to give you your final instructions before you head to the jury room to deliberate and when you return to the jury room select one of your members to act as a presiding juror the presiding juror has no greater voting weight but is to preside over your deliberations and be the spokesperson for the jury you should then deliberate and find your verdict if it becomes necessary during your deliberations to communicate with me do so in writing i will consult with the parties before responding and miss liu will give you her contact information so you can reach her and no one except for you the jurors is to be involved in your deliberations therefore do not tell anyone including me how many of you are voting not guilty or guilty until a lawful verdict or have been discharged guilty verdicts must be unanimous which means that each and every juror must agree on a guilty verdict but not guilty verdicts may be non-unanimous at least 10 jurors must agree on a not guilty verdict if you're divided nine to three for example you do not have a not guilty verdict now the rule is different regarding the alleged additional facts which you will decide only if you reach a guilty verdict in order to answer yes that an additional fact has been proved alterers must agree that the additional fact has been proved beyond a reasonable doubt however if any juror finds the additional fact has not been proved beyond a reasonable doubt the answer would be no for example if you're divided 11 to 1 in favor of an additional fact you do have an answer on that fact and the answer is no now when you have arrived at a verdict the presiding juror will complete and sign the appropriate verdict form and after you have reached your verdict you'll signal miss liu the court will then receive your verdict and i will read it now the moment i'm going to announce the alternates i do want to thank you again for your service there is of course no way to know in a trial of this length at length how many jurors we could potentially lose and i would point out that we have already lost two in this case so there is one last instruction that i need to give to the alternate jurors before i announce them you are not yet discharged from the case you must still refrain from talking about the case or looking up any information on the case until a verdict is reached although it's unlikely the possibility exists that one of the regular jurors could begin deliberations and not be able to complete them for some reason if that were to occur an alternate could potentially be called to replace that juror that's why it's imperative that you not yet discuss the case or look up information on it we will notify the alternates when a verdict is reached and they have been discharged from the case at that point you'll be free to discuss the case with whoever you'd like and look up any information you want on the case so here are the four alternates uh numbers and i assume by now you all know your numbers but numbers 54 58 59 and 61. so when you go back with the rest of the jurors to the jury room you can collect your things and go i know it may be disappointing and again i'm sorry but we do appreciate the fact you were here and that you could potentially still be called to come back so with that in a moment i'm going to swear miss liu and my judicial assistant but we need to get her so i have the two of you raise your right hand you solemnly swear or affirm that you'll take charge of this jury and keep them together until they've reached their verdict that you will not unless by order of the court allow any communication to be made to the jury except to ask them if they have agreed on a verdict that you'll not communicate to anyone the state of their deliberations or the verdict agreed on and that you'll perform these duties to that most of your ability all right then miss lua i'll have you take the jury back but let's leave the record going okay give me just one second okay thank you uh all rise for the jury gravity what i wanted to ask the attorneys and also to let them know and everyone can be seated thank you um if we get a jury question i would ask the the attorneys remain within 15 minutes or so from the court so that we can get everyone here to go over the question uh i'll ask defense and maybe you don't know until you see what the question is but do you know whether or not mrs brophy would want to be present for any jury question yes she would be here all right uh um i would you like me to mark this email exchange as soon as it's redacted as court exhibit a yes uh we are going i wrote on this one we are going to mark just so the sides are aware a copy of the email exchange earlier pertaining to juror 15 a redacted version of it and marked this quartz exhibit a so it'll be in the record okay um we will go on record well hold on a sec let me see it looks like both sides have something we do need to make an exception to the court's failure to give the uh inference instruction the defense requested okay and then for the state your honor this is just more logistical for uh interested parties um when a verdict is reached is your honor uh going to set a time in order to receive that verdict or do you plan to receive it immediately well i mean it'll are you asking like a certain cushion of time yes uh primarily um there are a lot of family members that would like to be present and sure of course i think if it's today it's not necessarily as big of a deal but if we move on into multiple days i don't think that they're going to sit at the courthouse understand you know i guess i could give a cushion of a half hour but i don't want to go any further than that because if we get a verdict that's towards the end of the day there's other logistical considerations so i can give a half hour cushion i know the court has no control over this but if ms brophy could be housed at mcdc it would make it easier for us to we can move her in and out and i think what's that i don't think we have right i mean i can certainly i recommend that and i and i do but as you know i don't have much control if any over where she's housed uh but we'll make the recommendation anything else then all right we will be in recess you

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Keywords: brophy closing arguments, brophy kgw, brophy trial, brophy trial live, brophy trial portland, kgw news, nancy brophy, nancy brophy day 27, nancy brophy trial, nancy brophy trial day 27, nancy brophy trial live

Id: 1NS_g3BlL8Q

Length: 74min 49sec (4489 seconds)

Published: Tue May 24 2022