Judge: Since 404b material is fresh on our minds from the hearings yesterday, he would prefer to do that first. He asks counsel if they are ready and prefer to do that. He then recognized Backstrom’s lawyer Frank Trapp, who said, “I just wanted to say good morning, your honor. I’m so far down here I wanted to make sure you could hear me.” There was general laughter.
Keker began the argument about 404(b). If the evidence is probative, the question is whether allowing it in outweighs the risks, which are basically the risks covered in 403.
Here Keker was citing two Federal Rules of Evidence—404(b) is about using other crime-type character evidence, which was the question here. 403 involves excluding evidence where its tendency to unfair prejudice outweighs any value as proof. What Keker is saying to the judge is that he’s not going to concede whether the evidence is probative at all, but go straight to the question of whether the evidence is so unfairly prejudicial t to the defendants that the prejudice calls for not allowing the evidence in.
Keker then says the evidence is from Wilson v. Scruggs. Keker describes Balducci’s testimony yesterday in an effective way, saying that it started with Balducci saying he had “bribed” DeLaughter, and then on further question it was revealed that in fact no money was paid to DeLaughter. Langston will say that no money was paid.
Judge Biggers: How do we know what Mr. Langston would say.
Keker answered by starting to talk about the Langston plea and slightly inaccurately described the nature of the immunity Langston got. The judge immediately corrected him with the actual language from the plea agreement. Keker then described the Langston plea evidence.