transcript of 02/26/2015 evidenciary hearing before judge christian s. wilton - state of mn vs don...

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FIRST JUDICIAL DISTRICT

1

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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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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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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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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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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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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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.


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.


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.


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.


MR. COLBURN: And Exhibit 7, Your Honor,

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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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.


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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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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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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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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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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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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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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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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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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MR. COLBURN: Objection. Speculation.


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?


speculation.


MR. ROGOSHESKE: That's all the questions

I have for right now.

THE COURT: Mr. Colburn, any redirect?


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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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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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 --


object. That calls for a legal conclusion.


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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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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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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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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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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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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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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MR. ROGOSHESKE: Okay. Okay. Thank you.

THE COURT: Mr. Colburn, anything else?

MR. COLBURN: Very briefly, if I may,

Your Honor.

THE COURT: Okay.


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.


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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?


speculation.


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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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,



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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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.


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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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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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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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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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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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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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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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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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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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.


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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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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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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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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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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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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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.


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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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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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.


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?


THE COURT: Mr. Sellner, thank you for

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66

being here today. You may step down.


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.


MR. ROGOSHESKE: Exhibit 11 is a copy of

an arraignment transcript from June 11th, 2014.


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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68

judge for cause or, if not granted, free boot.

THE COURT: And a date?

MR. ROGOSHESKE: August 11th, 2014.


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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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,


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.



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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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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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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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.


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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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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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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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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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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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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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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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.


THE WITNESS: Am I free to leave?


THE COURT: Mr. Rogosheske, your next

witness.

MR. ROGOSHESKE: Judge, I'm going to call

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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,



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.



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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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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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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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.


next question.


BY MR. ROGOSHESKE:

Q Would -- would you be surprised to note that in a

police --

MR. COLBURN: Objection. Leading.


BY MR. ROGOSHESKE:

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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.


THE COURT: Mr. Colburn, any questions

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for Mr. Johnson?


THE COURT: All right. Mr. Johnson,

thank you. You may step down.


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,


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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KIMBERLY SPERLING - DIRECT 86

THE COURT: 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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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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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.


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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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 --



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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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 --


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.


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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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 --


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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DALE NATHAN - DIRECT 92


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,



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.


MR. ROGOSHESKE: Yes, Judge.


Q Mr. Nathan, were you present in the courthouse, in this

courthouse, on March 12th, 2014?

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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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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?


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.


anything else?

MR. ROGOSHESKE: No, Judge.

THE COURT: All right. Mr. Nathan, thank

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DONALD MASHAK - DIRECT 95

you. You may step down.

THE WITNESS: Thank you.



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,



THE COURT: Please be seated. 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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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 --


make an objection as to relevance of this line of

questioning.

THE COURT: Okay. I assume it's

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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 --


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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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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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 --


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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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.


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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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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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 --


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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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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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.


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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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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DONALD MASHAK - CROSS 106

that --


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.



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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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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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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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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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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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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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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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.


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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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 --


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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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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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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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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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?


THE COURT: Okay. Mr. Mashak, thank you.

You may step down.



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?


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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120

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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121

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?



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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122

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

transcript of 02/26/2015 evidenciary hearing before judge christian s. wilton - state of mn vs don...

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