5 JuryTrialTranscripts
5 JuryTrialTranscripts
5 JuryTrialTranscripts
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MASTER INDEX
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Jury Trial
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Kimmel G. McDiarmid, RPR
Official Court Reporter - District 15-B
POB 1384, Pittsboro, NC 27312
919-270-6078 ** kimmel.g.mcdiarmid@nccourts.org
526
MASTER INDEX
WITNESS: PAGE
Ross Barbee
Mark Shiver
WITNESS PAGE
Ross Barbee
Terri Phoenix
EXHIBITS
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TRANSCRIPT, Volume I of IV
Pages 1 - 30
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Jury Trial
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Kimmel G. McDiarmid, RPR
Official Court Reporter - District 15-B
POB 1384, Pittsboro, NC 27312
919-270-6078 ** kimmel.g.mcdiarmid@nccourts.org
A P P E A R A N C E S
INDEX
2 12:04 p.m.)
9 that were filed if -- maybe that the bailiff may have given
11 continuance.
21 a second.
9 the same page here. I have a motion to amend that the NCAOC
16 nonexistent.
20 the law, the NC General Statute, and the code are all
10 document. So I --
19 that's different.
12:08:13 22 Madam Clerk, you can find this faster than I can.
23 Can you find the district court judgment in this case for
24 me, please?
12:08:20 1 MR. FULLER: And you are going to see why it's
3 this case.
7 Hang on. We will find it. Bear with us. Because I want it
12:09:12 11 MR. FULLER: And I don't know if you heard me, but
20 district court?
23 subsection (b)(2).
3 a number of subsections.
17 statute.
12:13:33 21 All right. First, you have asked that the North
24 reference?
11 it.
16 check.
19 clerk.
12:15:11 20 THE COURT: The clerk says that that code that
21 that's been ongoing since April the 4th that is before Judge
22 Flanagan that is --
1 this.
4 your disability?
7 current matter.
15 is.
12:17:04 2 THE COURT: Well, all you have to do, sir, is tell
4 can approach the bench and let me know if you don't want the
5 jury to know --
8 I will give you all the time you need to do that. That's
9 easy.
11 helpful.
23 and I will promise you that I'm not going to get excited
5 life.
12:18:21 7 THE COURT: But it's not the most important case
8 in mine.
6 has come in. So some people said they are not going to
10 got yesterday?
21 that video out, and they have been fighting this. Since the
24 that --
7 judge made the ruling on July the 11th. Did he sign your
12:20:56 12 THE COURT: Okay. And how many subpoenas have you
18 fight them.
12:21:30 24 THE COURT: All right. And why haven't you done
25 that yet?
14 Okay.
16 the subpoenas.
21 five judges to court, and it has been going now for about
10 aware of that.
12:23:12 11 THE COURT: Does that mean that the State case
16 of this crime --
24 harass somebody.
3 elements?
6 had -- I have been, you know, told never to come back to the
8 that's separate --
11 the first reason, the need for more time to obtain the
21 for two charges out of that July 20th. And I have never
4 trial de novo, you wipe that clean; but when you are
14 you issue subpoenas and all that. But anyway, I have got a
19 December.
3 court date.
5 of the court that only the person who has the floor is
13 case, having this case heard. The lay witnesses are taking
18 particular week. Mr. Fuller has had ample notice that this
14 subpoenaed.
17 some fashion that they are not coming. And that's not
19 they come and file a motion to quash and we have some sort
20 of ruling on that.
1 from The New Hanover sheriff's office. They have sent that
9 to quash.
22 the case until I hear the motion to quash and sort of find
3 you.
5 tomorrow?
11 scholarship, so --
12:32:58 16 THE COURT: Well, this one was dated -- this one
12:33:01 18 MR. FULLER: You want the one that's going to have
19 this fellow's name, Brent (sic) Berne. It's sort of the new
20 and improved version, and that's not that one. That was a
21 previous version.
23 file?
12:33:25 1 MR. FULLER: And could I just point out one thing?
11 that delayed the case for about six months, and I couldn't
14 me.
16 this. Do you have another copy of the motion that you would
24 control, but...
6 about?
9 again.
11 copy as well.
2 at 9:30 then.
8 Given how long these hearings might take and how long jury
1 yes.
10 Thank you.
12:37:06 12 (A recess was taken for the purposes of this matter at 12:37
13 p.m.)
12:37:06 14
16:12:57 15 (Volume One ends here on page 30. The trial transcript
19 Volume Four.)
20
21
22
23
24
25
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TRANSCRIPT, Volume II of IV
Pages 31 - 137
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Jury Trial
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Kimmel G. McDiarmid, RPR
Official Court Reporter - District 15-B
POB 1384, Pittsboro, NC 27312
919-270-6078 ** kimmel.g.mcdiarmid@nccourts.org
A P P E A R A N C E S
INDEX
7 papers up.
18 my counsel for the first time under Judge Bryan; and then we
21 two years.
2 talking.
10 Judge.
14 bailiff might take this to the judge, this is -- has all the
19 code in getting --
10 proceed.
12 Mr. Fuller gets organized, then I will ask the State which
18 I would ask the Court to order that Mr. Fuller not record
24 provided in the past note takers for me, and it's very
22 placed within the Court file; but if not, a copy for you --
5 that --
20 to me so I can see what they are and then I will let you
22 and I told him that I would accept service, which I did last
23 Wednesday.
09:44:30 4 You can see, from the subpoena that was issued to
09:45:52 22 I -- I say this out loud to you and for the record
3 Board of Commissioners.
13 office.
09:47:02 14 Mr. Fuller has, over the last year or so, sent me
16 for this. And the first six or eight times he sent me that
20 objection -- it states:
3 an order of release.
9 it's what the law is. And I told Mr. Fuller many times --
14 the clerk of court's office and ask them for the forms; and
15 he could fill out the forms and that would begin the
24 that hearing, and I probably a year ago given him the CD.
09:49:37 25 This is the only thing that he has asked for that
18 a big word that came out on the 3rd of August allowing the
7 summons.
18 pocket, like I have now; and I have medicine for the mental
25 that got out of control in this arrest and all this stuff.
8 there was another person that has the exact same number
7 Court finds that the subpoenas are not -- that they do not
15 any other lawsuit that you might have. This ruling only
18 any more subpoenas. But, Mr. Fuller, unless you are able
24 do it. Okay.
09:56:03 1 THE COURT: Thank you. What's next for the State?
3 motion to dismiss.
09:56:12 5 MR. COURLANG: And the State would ask that that
6 be heard.
10 oral arguments.
12 first.
22 stand up here.
6 written.
16 cool guy.
21 arguments.
2 you did argue this motion before Judge Holt. She, I think,
6 against her; and she decided that she should recuse herself
15 through this, some ground rules that I would hope maybe the
18 real upset and do not wish that any of the e-mails that I
1 anything that you did or didn't do. And the other one is
12 hoping.
20 three are all based on facial reasons, and I think the last
21 one was as applies. So the first one -- and I'm just going
1 important --
9 want you to feel under the gun. We are not in any hurry, so
17 observing.
23 here -- let me stop for a moment, and I will give you the
10 interests.
24 because you send out 600 e-mails and only one person
25 saying.
8 in notions of communications.
21 once it's sort of made sense in our own mind, that's when
24 notice, that when we think about this law, the way it's
3 where you would have a man and woman break up and the guy
13 the male has bought, but the woman's got it, and then the
18 that, except for this: That you are going to annoy someone
3 and it turns out under the statute law that they are the
19 unconstitutionally vague.
21 being too broad. Okay. And -- and the issue here is you
5 very broad.
10:10:54 23 And in that case, the story about semen being good
24 for women's health was reported all over the world. And
25 NBC, the BBC, they all covered this story. And on that
5 found that that statute was not void for vagueness, that it
21 quiet enjoyment.
23 open it. When you choose to open it, you are choosing to
1 just get the e-mail. You are choosing to open it up. And
11 wanted to send you an e-mail and track when and where you
12 opened it. It's -- and this is done all the time. People
15 you don't even see; but it's named like "Judge Collins."
20 image that has that person's name on it, I know that he has
24 case -- but some of the people might have opened them 900
7 angry.
10:15:56 8 But back to the point you bring up, the telephone
4 deported.
9 speak English very well, and his family had been deported.
14 not --
5 e-mail?
9 Mr. Fuller said, you can choose to open an e-mail. You can
11 the same way you can just open the e-mail or not to answer
8 thoughts or ideas.
21 embarrass a person one time and not come under the purview
2 this statute.
21 last name.
6 new arguments. I have read your brief, too; but if you want
14 case law in the Internet, and I'm quite familiar with it.
15 And I will just bring up one of them that I was quite amazed
19 this case.
10:24:27 20 And when the Internet first sort of came out and
2 struck down for very good reason, and that you are actually
22 repeatedly.
18 over-breadth is denied.
10:27:15 19 I'm also going to find that the statute does not
10 you did that for innocent reasons, you are not guilty of a
11 crime. If you did that to annoy the person, then you are.
6 don't know what they are yet, and you asked me not to get
14 about that you didn't send the same e-mail twice goes to
25 that's the expert's finding. This guy has been before the
2 state.
14 recess.
23 sure and share that with him and see if we have any argument
24 about that.
12 today.
19 of Evidence.
3 way, he was paid for the State (sic). He was not someone I
4 went to see.
19 this group, --
22 years --
25 organization.
5 modulated manner.
20 continue is denied.
15 jury and would ask that that not be put in front of the
20 think that any argument that you make or testimony that you
24 proper. You may not ask this jury to decide that this
5 make me crazy.
8 because --
10:56:36 12 THE COURT: That they may not find you -- I will
10:56:56 18 So I'm going to let him say what his intention was
20 bit too far into asking this jury to sort of -- let's see,
6 file.
4 cost or disbursements.
11:01:30 18 THE COURT: That's not what the court file says.
24 this, I see the plea being not guilty and the verdict being
25 guilty.
4 there was a mixup in the shucks when the clerk recorded it.
15 And the one concerning Ms. -- how do you pronounce that last
16 name, Zerden --
11 Mr. Fuller was given proper notice of which case and which
20 this case, and I'm not guilty of it. It's -- it's very
13 17~CR~50341.
17 dismiss is denied.
21 else in this case until 2:00 when we have the jury coming.
23 between now and then, Mr. Fuller, you are excused until
24 2:00 o'clock.
11:08:28 1 (A recess was taken for the purposes of this matter at 11:08
2 a.m.)
4 2:01 p.m.)
14 arraigned?
18 2017.
23 sir.
1 upset earlier that we spent all this time with this 50-page
3 some subpoenas for you? You haven't done that yet. I'm
7 print them out for me, even though the website says it's one
9 me.
16 and know me well. All have so far refused because their day
3 come.
7 first.
10 thing, that that report, which the State funded -- I'm just
11 terrified I'm going to get into the trial and it's going to
12 get thrown out because he's not here to testify. It's the
13 State's own witness who has already said that it's his view
22 received this report, has not seen this report, and would
24 to be entered.
3 you made these communications and that you were doing it for
5 one thing.
18 another --
20 of what?
16 yesterday that you chose not to serve some of them. And the
17 reasons were not clear to me. But you have had the ability
21 now three different lawsuits and that the -- there has been
23 in, they would say this is absolutely crazy. But the State
9 that point.
14:11:36 17 And when you say that you are going to choose not
21 and follow -- follow the court. But having read and being
10 I just think when I come in here and there's all these gay
13 media here again. It's just going to be too much for me.
16 fine line here because I'm not trying to get you to disclose
13 the priest here, he, you know, the State would make motions
17 defense that shows that I'm very religious and have been
19 Rome. And I have a copy of his speech that says, "You have
22 evidence as well as, you know, the fact that I'm real
4 I'll just be frank -- about the judge, that you already not
3 see him. I went four times to visit him. Every time -- one
6 stuff; and they did this huge report; and I would like it to
9 State, even though they -- they are the ones that -- it was
13 rule at the time whether you have laid the proper legal
21 denied.
1 someone could print out the form, I can fill it out; and we
14:17:49 12 THE COURT: I will give them to you, and you can
13 pay the fee at the first break. And I'll make sure that the
16 line.
19 have looked over the superior court judges' bench, you know,
10 playing.
24 putting on the U.S. DOJ has said that you must make
16 disagree with that. I would say the U.S. DOJ has filed
24 let us know. I'm just going to do the best I can with what
25 I have got.
11 in.
16 collaboration.
14:22:08 21 MR. FULLER: And so I can play the game too, and
22 I'm doing it. And so -- anyway, I'm just saying I'm trying
2 And, see, then that creates worry with me; and it's more
12 be.
17 the courtroom.
4 harassing communications.
21 we go ahead and get her to agree to come back and serve her
9 then the jury is turned over to the State. They get to ask
11 You don't have to ask anybody any questions until such time
22 it will take about -- between three and four hours for the
23 State's evidence.
14:26:35 1 THE COURT: All right. And, again, I'm not trying
4 think that it's safe for me to predict for this jury that we
13 when they walk in, I want to be very clear that this being
14:27:27 16 THE COURT: I will note that for the record. And
18 denied.
16 it's very important that when folks are talking that they
17 speak loudly and clearly and slowly and that we only have
24 the back is --
9 that you may see around the courthouse, and they will try to
10 help you. And if they can't, they will find somebody who
11 can.
17 I will let you leave your cell phone on vibrate; but please
21 your time and not waste any of your time, but I do want to
15 basically means that you are going to decide this case; I'm
17 in your duties.
22 law that you are to apply to the facts as you find the
23 facts to be.
25 the Court, nor the parties, nor the witnesses, nor the
2 during this trial. They all know they are not allowed to
24 in your convictions.
11 jury nor a trial jury in the State courts during the last
12 two years.
18 were raised.
2 student and being here all week would cause you to miss an
4 can't get your money back, those sorts of things. I'm not
14 week, be careful what you ask for. You may come back for
18 just can't be here for the rest of the week and you want me
22 name so the clerk can account for you. That's fine. Right
9 another week.
14:39:11 11 THE COURT: I hope that doesn't work out badly for
20 your duty not to talk about this case while it's going on.
22 obvious: It's also your duty not to talk with each other
25 you keep an open mind, that you not start -- that you not
3 here, and one side gets to go first, but you need to not
7 It's also not proper for you to deliberate with each other
8 unless all 12 of you are in the jury room, having heard all
11 talking with each other about the case, then you might
13 fine for you to talk to each other; just don't talk about
14 the case.
17 this case with an open mind and who agree to keep their
1 just to find out some basic information about you. I'm not
4 are not trying to get deep into your affairs; but we just
10 an impartial jury.
14:41:37 11 Now, there may have been some publicity about this
13 fact, I'm almost sure that there has been some. But you
14:42:10 21 You must exclude all that you have seen, heard, or
23 brought out in court and the law that I will give you in my
5 set aside any such feelings, fairly consider the law and
15 case.
18 ask of you this week is that you use the same good judgment
14:47:00 4 THE COURT: Thank you very much, Madam Clerk. And
7 service and didn't get called into the box to please pay
12 up here.
14 attorney has called for trial the case entitled the State of
21 you. I'm going to ask you if you know any of these folks;
22 okay?
2 assume that there are other people here who may have some
17 Shiver, S-H-I-V-E-R.
6 all the evidence has been presented and after you have
11 to you and not as you think the law is or as you might like
14 way and have the same law applied in each such case. At
15 this point, you are not expected to know the law. The
16 parties should not question you about the law except to ask
17 whether you will accept and follow the law as given to you
18 by the Court.
11 Mr. Fuller. The mere fact that he has been charged with a
14 brought to a trial.
19 guilty."
21 they all are because it's just a very few. And I'm going
25 seats differently.
15:14:32 13 (The jury left the courtroom at 3:14 p.m., and the
15 the jury.)
3 deliver these to Mr. Fuller; and let me know if you need any
4 more.
15 him and make sure he gets his subpoenas served today once he
15:16:29 18 THE COURT: All right. Make sure that the folks
7 back?
20 with her --
24 towards her.
15:32:50 25 THE COURT: You can address your issues with her
3 you may not contact her. If you speak to her again in the
15:33:27 17 MR. FULLER: When the jury walks down this hall,
9 Your Honor.
13 just stay for a moment so that I can deal with the bailiffs
20 close?
24 clerk.)
5 do.
7 there.
19 expressions.
2 emotions.
15:36:16 3 THE COURT: I will let you move your chair to that
15:36:24 8 THE COURT: I'll even let you get in the middle of
9 the courtroom.
17 let's --
19 in advance.
21 it that you would like to ask this jury that you are afraid
24 it -- I'm going to try to stand and like write down the ones
5 not allowed to go into the facts of the case, and you are
8 peremptory challenges.
15:37:31 14 THE COURT: One thing that I'm a little bit afraid
20 friend?"
15:37:59 5 THE COURT: You get six total. So if you use all
6 six of them this time, you're stuck when they come back. So
13 You get six total. So you have to decide for yourself how
20 peremptories.
22 this?
15:38:37 23 THE COURT: Until we get 12. Plus you get one
25 probably will pick one alternate. But you can't use that
2 these 12.
9 opinions --
21 good. Okay?
15:39:31 23 (The jury came back into the courtroom at 3:39 p.m.,
25 of the jury.)
4 chair that they were in. So if you guys will just stand up
6 easier.
22 the jurors for the day. I'm sorry that some of you have to
3 ready to proceed or be --
8 courtroom.
16:12:54 9 (The jury left the courtroom at 4:14 p.m., and the
11 the jury.)
13 Honor.
25 are not even related to this suit, that have gotten into his
14 doubt that your intention for doing that was to harass her.
19 two issues.
21 bias, to show that the real object of this case was merely
22 to punish me for views that they did not like and they
23 hated. And it's all in discovery how much they hate the
24 Roman Catholic Church and they hate people like me. It's in
2 allowed to --
16:17:05 9 THE COURT: But that's not what -- that's not the
14 mean, you can question witnesses about if they have any bias
22 State passes HB2. So now you have a problem where you have
7 you want to. And then if you call that person as a witness
8 and -- I will address the issues that might arise from that
10 right?
14 I'm not -- I'm going to give you plenty of time to get your
18 your condition.
21 me; but I would rather err on the side of caution and make
22 sure that you are in the proper state of mind and that
23 your -- that you have your faculties about you. And you
1 cool off.
7 am kind of in my --
9 that you are not a lawyer and there's things about this that
16 don't think you have done a thing in the world today that's
16:20:32 2 THE COURT: I'm all for you coming in here and
5 concerned. Okay?
16:21:06 17 MR. FULLER: For the record, the State would lodge
22 jurors from the panel on the basis of race. Since then, the
3 I'll just dismiss one." We would just like to put that into
16:22:06 15
16:22:06 16 (Volume Two ends here on page 137. The trial transcript
20 Volume Four.)
21
22
23
24
25
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Jury Trial
-----------------------------------------------------------
Kimmel G. McDiarmid, RPR
Official Court Reporter - District 15-B
POB 1384, Pittsboro, NC 27312
919-270-6078 ** kimmel.g.mcdiarmid@nccourts.org
A P P E A R A N C E S
INDEX
WITNESS: PAGE
Ross Barbee
Mark Shiver
EXHIBITS
EXHIBITS
2 a.m.)
9 jury?
09:31:47 10 MR. COURLANG: Yes, Your Honor, one thing from the
20 just ask the Court to order Mr. Fuller not to write any
25 unlawful.
09:32:37 8 THE COURT: I didn't say you have done it. I'm
12 for a jury?
14 me.
16 that's true or not; and I'm just telling you not to do it.
1 witnesses in my favor.
4 are all state employees. You know, it's just one of those
09:33:59 12 MR. FULLER: That would be: Gary Bowen, the Dean
21 was here yesterday, and she was one of the State's witnesses
4 (sic) and --
12 Phoenix.
3 subpoena has been issued yet for Mr. Ellis, but I would
19 if they are not here when it's time for you to call
2 comes in.
5 Andrew.
1 lawsuit?
8 bias.
09:40:36 10 THE COURT: But I'm not going to let you get into
11 it in jury selection.
16 get into?
18 all. I mean, this is the time for you to ask them questions
20 jury selection.
4 ten jurors who have been passed by both sides are present in
8 number ten.
14 juror.
16 chair?
20 of you who were selected for jury service and have not been
21 selected for this case, I have good news for you. We don't
22 have any other jury trials in this district this week so you
23 have completed your jury service for the next two years.
24 You are free to go. You don't have to go; but if you are
2 9:51 a.m.)
11 evidence any more weight than if the objection had not been
12 made.
19 ask you to go the jury room for just a few minutes. Don't
24 courtroom.
4 decide the facts from the evidence. You and you alone are
6 and attentive during the trial. You will see and hear the
7 evidence and decide the facts. You will then apply the law
14 crime unless and until the State proves his guilt beyond a
15 reasonable doubt.
09:56:10 19 First, you must not talk about the case among
21 in the jury room and then only after you begin your
24 tell people that you are on the jury, what your schedule
25 is, how long you think you are going to be here, that sort
6 the courtroom yet. And you don't know who they are; they
7 don't know who you are. So please wear those jury badges,
16 about this trial until it's over; and that includes Twitter
09:57:31 20 Third, you have to keep your cell phone turned off
23 call while you are in the jury room, knock on the door and
25 telephone in the jury room, but you can use it outside the
1 public. And one of the ways that we open the courts to the
09:59:35 9 Seventh, you must not visit the scene or the place
10 that's the subject matter of this trial, and don't make any
09:59:52 14 I find that this is the rule that's the most often
16 are good reasons, and they do it with a good heart, but let
17 me tell you why you can't do that. If you hear a word that
24 Don't get on Google and try to figure out what these words
25 mean. You simply must decide this case based only on what
19 Zerden.
4 tomorrow. You are going to hear from three people from the
12 e-mails." Mr. Fuller did not comply with that and kept
10:02:49 14 You are going to hear from Dr. Lisa Zerden, the
18 please.
10:03:15 20 (A bench conference was held off the record and out of
24 Dr. Zerden did not know who Mr. Fuller was prior to
2 e-mails, did not solicit these e-mails. The only reason she
10:04:23 10 You are also going to hear from Mr. Mark Shiver.
14 Mr. Fuller's own words why he sent these e-mails, what was
2 connection.
23 time. You are here, taking time out of your work, out of
24 your life, away from your family to serve on this jury; and
14 statement now.
17 them here.
10:08:04 24 THE COURT: Mr. Fuller, you are not allowed to put
2 if are you not going to testify, you can't testify now. All
3 right. Go ahead.
5 Catholic?
21 positions.
2 e-mails; but I will just say from the outset that, when you
6 actually go and get the text and get the pictures off
8 that's ever been put forth. I have been told I can't say
10 me --
10:10:03 11 THE COURT: Mr. Fuller, I told you that you can't
15 talking.
6 Duke Lacrosse lynch mob, that you had some e-mails that
8 creating more and more outrage and more people saying this
19 evidence.
2 in this case?
16 jail. And I have tried very hard to show you the video of
10:12:54 19 THE COURT: Mr. Fuller, you may not get into
4 abridging --
10:13:21 8 MR. FULLER: They don't even want the jury to even
13 continue.
16 freedom of speech.
25 process of law.
11 mind, and we will get into this, and -- and you can
15 statement.
18 evidence.
10:15:08 19 (A bench conference was held off the record and out of
25 that.
8 are not watching them. And also, be aware that the notes
13 method for that. I'm not going to let you take notes on
16 not going to let anybody see them but you. And when the
19 notepads.
1 will collect them and keep them safe while we are not in
2 session.
12 first witness.
15 Ross Barbee.
5 Police Department.
10 enforcement experience?
16 department?
2 particular allegations?
9 sorry.
10:19:19 10 Q. Okay.
15 and with the Court order they were able to tell us who
16 registered the site, who was paying the bill for it.
19 out of Wilmington.
21 did you find the e-mails had come from multiple addresses?
2 antitranny.org.
10:20:34 3 Q. And did you review numerous e-mails that were sent
17 e-mail.
10:21:49 7 Q. Okay. And did you run Mr. Fuller's name through
17 particular person?
14 this way.
16 the jury room back there. We are talking about this jury
10:23:54 18 (The jury left the courtroom at 10:23 a.m., and the
20 the jury.)
6 And these were clearly done over state lines, and they would
15 And I would contend that magistrate does have the power for
25 School of Government --
13 I'm sorry.
15 Honor?
10:27:47 1 Go ahead.
10:27:59 8 THE COURT: But what you got with that particular
12 please.
10:28:22 13 (The jury came back into the courtroom at 10:28 a.m.,
15 of the jury.)
10:28:44 19 THE COURT: We'll wait until they are all back.
20 Hang on.
25 objection is sustained.
23 disturbing to her.
3 January 18th. Did you speak with someone from the Orange
8 He is kind of the --
10:31:06 9 THE COURT: Sir, make sure you are answering the
10:31:13 13 Q. Yeah.
10:31:34 20 THE COURT: Have you shared that with Mr. Fuller?
22 copy.
25 identification.)
4 Honor?
14 Mr. Fuller.
10:32:10 15 Q. And what date did you send this to Mr. Fuller?
10:32:26 18 Q. Okay.
20 ask that --
10:32:34 22 A. 2017.
10:32:34 23 Q. Okay.
7 copy.
19 right now?
10:34:12 5 Q. Okay.
8 on -- and...
11 cease and desist into the record for the Court, slowly,
12 please.
23 publicrecordsatunc.edu.
9 U.S. Mail.
13 me directly at ross_barbee@unc.edu or
20 desist, did you receive a phone call from Mr. Fuller that
21 day?
2 himself.
4 Mr. Fuller?
10:37:30 13 After you sent this cease and desist, did you
18 particular?
1 point.
10:38:19 4 Q. Have you had any other contact with Mr. Fuller
10 document.
16 after that?
2 show Mr. Fuller's intent. You may not consider them for any
3 other purpose.
9 overruled.
10:39:34 10 Go ahead.
10:39:41 14 A. Fifty.
2 question yet.
10:40:46 12 Q. Okay.
14 Your Honor.
20 Mr. Fuller?
3 prior to today?
10:41:58 11 Q. Okay.
23 organized?
10:42:28 24 MR. FULLER: Oh, no, no, no, no. We are going to
25 start with the general background; and then we'll get into
10:42:37 3 THE COURT: The rules are that you are to examine
6 permission.
21 departments.
24 testimony.
10:43:37 6 THE COURT: Hang on. You can continue to ask him
9 cross-examination. Go ahead.
10:44:11 17 THE COURT: Now, if you would like to hand him the
18 statute and have him read it and then answer your question,
25 Carolina -- do you know who that person is? Can you name
1 them?
6 Honor --
10:44:52 7 THE COURT: Hang on. Let him finish his question.
10 transgender discrimination?
16 get to ask your question. And you did. And his answer is:
17 I don't know.
20 that she has stated under oath in federal court that the
10:46:22 5 Go ahead.
13 the fifth month and the 27th day of the year 2016 that the
16 false statement?
10:47:54 21 Q. Can I repeat that oath and you can tell me true or
25 false? I -- I --
2 state it.
4 second.
10:49:43 21 A. Slightly.
3 case. Keep an open mind. And we will see you back here in
10:50:09 5 (The jury left the courtroom at 10:50 a.m., and the
7 the jury.)
11 know all the rules. I don't think it ought to give you any
21 was.
25 case. If you make that argument, that opens the door for
12 speech is. Even though the statute refers to it, they never
10:53:16 23 THE COURT: No, no, no, that's not what I'm --
9 to follow the law and that you didn't have any intention of
11 going to try to argue to this jury that what you did was
7 has some bearing on what your intention was. I'm not going
9 That's not the proper place for that. You have sued them;
10 and you can do all that you want to in federal court, but
11 not here.
19 people.
10:55:52 24 (The jury came back into the courtroom at 10:56 a.m.,
1 of the jury.)
10:57:06 14 (The jury left the courtroom at 10:57 a.m., and the
16 the jury.)
11:15:37 24 THE COURT: Let the record reflect that Mr. Fuller
11:16:18 5 (The jury came back into the courtroom at 11:16 a.m.,
7 of the jury.)
11 on cross-examination.
21 identification.)
13 means I can't --
11:19:00 17 THE COURT: No, Mr. Fuller, I need to you sit down
20 all right.
24 minute.
6 Ross."
18 sir?
21 James to you?
11:20:37 4 THE COURT: Have you -- have you moved this into
5 evidence?
12 jury.
14 evidence.)
16 or...
11:21:02 17 THE COURT: I don't need one now, but I have seen
24 Napier Fuller?
10 question.
12 question?
11:21:59 17 Q. When the ADA was asking you questions, you used a
20 true statement?
3 was when -- was in connection with why Dr. Zerden had came
7 correct?
12 Ms. Zerden made to the extent that you find they corroborate
15 record.
18 them this Kermit the Frog? I just think it's kind of silly.
12 complete.
16 released --
11:25:20 17 THE COURT: All right. Mr. Fuller, when you are
21 to let the jury see it or not. You need to let the State
25 identification.)
2 document.)
11:27:22 18 A. Okay.
11:27:29 20 THE COURT: Hang on. Are you moving this into
21 evidence?
1 evidence.)
11:27:41 2 THE COURT: Now you can ask him questions about
3 it.
8 and to who the e-mail is and then the short comments that
9 you made.
11:28:26 15 It says:
11:28:27 16 [as read] Sorry. Here are two with the recipient
23 incorrect to say at the date you wrote that, you were not
8 says "thank you." And -- and tell us who wrote that or who
11 me. It says:
21 diesel_dykes@unc.edu.
8 who are these other people? I mean, you have -- just a lay
12 e-mails had been sent to. They were not all solely
17 me?
11:32:24 18 A. In -- themselves?
11:32:26 19 Q. Yes.
24 different?
7 it all different?
11:33:16 10 Q. Uh-huh.
11:34:15 25 [as read] Can you determine who the diesel dykes
3 anything.
9 to talk about?
11:34:48 10 A. Yes.
11:34:49 11 Q. Do we?
13 anything --
15 argumentative.
11:35:19 21 THE COURT: If you want to ask about them, you can
2 them.
11:35:47 8 THE COURT: That's not true. You can ask him
13 discuss the e-mails because they have not come into evidence
9 the header from the e-mail, which tells where it came from,
18 them?
11 false?
13 or false format.
16 State?
11:38:56 17 A. No.
21 no?
11:39:11 22 A. Yes.
3 this case?
9 then.
1 it. Can you just tell us a little bit about what Ray did in
2 this case?
9 point, we do not.
13 50/50, 75/25?
16 him instead of you, because you are the only one here but,
22 how much?
25 case?
11:42:12 4 Q. Okay. Are you familiar with the UNC Chapel Hill's
18 those streets, like, let's say we had someone that was maybe
23 public streets?
19 e-mail?
24 digital transmissions.
1 personal definition?
11:45:29 12 Q. Okay.
11:45:30 13 A. It's not -- it's not all three; it's any one of
14 the three.
21 would be residing?
11 about how you would process things that have been forwarded
16 investigate?
20 from.
25 be referring to?
10 and we've actually got some people here from Duke University
12 things.
17 yet.
22 that.
1 are -- you may step down. You are still under subpoena.
10 there.
11:50:03 22 Q. Could you please state your name and spell your
1 victor?
6 moment?
11:50:37 12 A. Yes.
16 Napier Fuller?
18 lot of news media covering this case, and I don't think it's
25 overruled.
11:51:12 3 THE COURT: We are not going to get into any kind
9 And yes.
14 identification.)
19 Mr. Shiver was the host and you were the guest.
24 all of it.
11:52:11 25 THE COURT: You are free to get into that when
11:52:16 2 Overruled.
4 Honor.
11:52:36 11 A. Yes.
13 disc?
11:52:40 14 A. Yes.
11:52:52 19 A. Yes.
11:52:56 21 A. Yes.
11:52:56 22 Q. Yes?
5 minutes.
11 e-mails.
14 it, and then we will take our recess. All right. Go ahead.
25 it as it plays?
2 any narration.
19 for my computer?
21 this is playing.
4 42 seconds.
12:10:08 8 (A bench conference was held off the record and out of
12:24:07 22 (A bench conference was held off the record and out of
1 seconds.
12:31:31 8 Q. Mr. Shiver, if you recall, was that the end of the
10 interview?
17 in its entirety.
22 at 2:00 o'clock.
1 me?
3 Sorry.
5 be dismissed.
12:33:11 10 (The jury left the courtroom at 12:33 p.m., and the
12 the jury.)
15 State?
18 cross-examine him?
25 his choice.
2 like to --
12:33:49 5 THE COURT: Mr. Fuller, I'm not going to put him
8 him.
12:33:57 9 THE COURT: Okay. You are free to go. You are
10 free to stay.
20 of the jury.)
4 don't get the impression from that statement that she meant
7 jurors.
10 been impacted by that in any way that might cause you not
14:02:59 16 THE COURT: Okay. All I'm asking you is: Now
17 that you know that the alternate juror has reported that to
18 the sheriff --
22 this jury?
14:03:17 25 MR. COURLANG: The State would ask that the Court
6 questions.
14:05:05 9 MR. FULLER: And the -- and -- and one more thing,
17 that as fact.
20 evidence yet.
8 please.
13 And I could hear him talking about his case. I don't know
14 what he was talking about; but I know that the person that
14:06:54 19 THE COURT: Okay. Did you get the sense that he
21 jurors?
1 that makes you think that you can't put whatever you heard
2 and saw outside your mind and decide this case based only on
14:07:31 11 THE COURT: Did you get the sense that either of
16 know.
14:07:43 17 THE COURT: Okay. Thank you for bringing that up.
14:07:58 1 THE COURT: Hang on. Hang on. All I did is ask
3 it.
5 comment.
14:10:16 11 THE COURT: All right. All the jurors are present
12 in the courtroom.
17 who they are. They are wearing name -- they are wearing
22 really careful who is around you when you are talking about
23 the case.
10 it you said?
13 "dottore."
16 is overruled.
4 Social Work at UNC Chapel Hill. I have been with UNC Chapel
14:12:30 8 A. Sure.
15 to the jury room. And then I will call you back when we are
16 finished.
18 chairs, please.
14:13:26 19 (The jury left the courtroom at 2:13 p.m., and the
21 the jury.)
9 addresses?
16 similar content?
18 e-mail addresses.
14:14:51 21 Q. Uh-huh.
14:15:06 24 Q. Okay.
14:15:41 9 A. Yes.
12 with the e-mail addresses -- and when his full name was not
14:16:10 18 Q. Okay.
20 identification.)
9 compare these and maybe the Court could use its time while
3 testified to?
9 show me the indications that they are all sent from one
14:18:09 11 A. Sure.
14:18:40 1 THE COURT: Are you talking about the pages at the
3 I see. I see.
25 argument?
4 like other ones." Nine, ten, and eleven, I have looked at.
7 one has just assumed I'm the only person in there, which I
16 e-mails, based on --
11 name?
7 7:03 p.m.
11 e-mail?
17 means?
20 that. I think that's why you are not seeing my name, but it
22 this period.
14:25:28 8 (The jury came back into the courtroom at 2:25 p.m.,
10 of the jury.)
14:25:53 20 Q. And how many did you receive in that time period?
22 e-mails.
14:26:04 25 A. Yes, they did. The first one I received was from
1 antitrannypac@gmail.com.
14:26:13 2 Q. Okay.
4 napierfuller.alum.mit.edu.
11 .mit.edu@mail74.ATL51.srsgsv.net --
14:27:13 16 Q. Okay.
14:27:18 19 A. Okay.
21 that the same person was sending these e-mails from the
14:27:27 23 A. Yes.
9 specifically mean.
23 talking about.
14:28:33 1 A. Yes.
4 Exhibit Number 3.
14:28:44 5 A. Uh-huh.
14:28:47 7 A. Okay.
21 contention -- well...
14:30:49 4 (The jury left the courtroom at 2:30 p.m., and the
6 the jury.)
9 evidence?
11 to Dr. Zerden?
14:31:25 16 A. Sure.
14:31:26 17 Q. And can you tell the Court what this is?
14:33:40 5 (The jury came back into the courtroom at 2:33 p.m.,
7 of the jury.)
20 renderings.
22 overruled.
5 need for the jury to read the whole thing right now; right?
23 number 1, could you tell us what date and time you received
24 this e-mail?
14:36:26 4 Q. And who was this e-mail sent from, which address?
14 Social Work and 300 students, and that's why I was also
3 line?
9 acts.
14:39:25 6 A. Yes.
11 received.
13 to e-mail number 3?
14:39:39 14 A. Sure.
14:39:42 17 Q. -- version?
14:39:50 20 Q. Okay.
14:40:07 25 THE COURT: Where were you when you opened up the
24 the victim.
14:41:19 1 A. Yes.
14 of diesel dykes.
4 towards women.
14:43:30 21 A. Sure.
5 offended.
13 says:
3 you?
14:46:02 12 A. No.
14 cc is?
18 privately, and you can't see who the other recipients are.
1 is offensive.
9 Morocco.
13 he says:
9 in this e-mail?
13 number 5?
15 2:46 p.m.
22 says:
25 HB2.
18 8:32 p.m.
14:51:53 2 [as read] UNC SSW Ethics 101. Can a minor ward
4 order?
18 this one.
14:53:30 1 A. This was received that same day, so this was the
10 church's teachings?
14:54:15 11 A. No.
21 that.
14:54:47 22 Q. Okay.
2 really bizarre.
14:55:07 3 Q. Okay.
12 political_outreach@antitranny.org.
22 allowed.
2 harassing?
14:56:34 9 [as read] Let us pray that the holy and pure
14:57:23 21 Q. Who was this sent from? Which e-mail address was
4 messages.
15 disorder.
5 from?
16 found to be harassing?
14:59:59 17 A. This e-mail was graphic and had detail about male
23 Work.
3 11:01 a.m.
12 work inbox?
14 came after the cease and desist order had been issued, and
23 napier@alum.mit.edu.
15:04:09 6 Q. Okay. And does it say who that cease and desist
10 napier@alum.mit.edu.
12 hearsay.
18 morning.
4 national universities.
15:06:18 16 And --
18 right now --
15:06:29 19 Q. Yes.
24 had received the cease and desist, so you can see that there
1 I was still receiving these e-mails and have still been the
7 are many.
13 himself from the News and Observer, which I had seen. There
1 good for women's health and how the birth control pill
3 diesel dykes.
15:09:09 7 Q. Okay.
15:09:39 15 Q. Okay.
3 General Assembly.
15:10:42 7 A. Uh-huh.
9 MailChimp is?
19 MailChimp. And --
15:11:24 20 (Sneeze.)
24 to our faculty and staff, who did not like these messages, I
1 as the Senior Associate Dean and why I was asking for this
8 harassing e-mails.
11 testified to?
15:13:01 20 I will also just like to say that the reason I was
3 attention to this e-mail 13. What date did you send this
15:13:41 6 Q. Okay.
1 these e-mails?
4 several faculty, staff, and students did block him and put
6 e-mails.
8 e-mails?
12 these e-mails?
19 Pittsboro Street.
15:15:22 1 A. Yes.
3 e-mails?
15:15:52 11 Q. Okay.
13 Honor.
20 makes sense?
15:16:43 24 Q. Sure. And you said you can view your e-mails on
4 Orange County?
12 one minute?
17 Dr. Zerden.
15:18:29 2 Q. Okay.
13 courtroom.
15:19:09 14 (The jury left the courtroom at 3:19 p.m., and the
16 the jury.)
15:35:00 25 THE COURT: Thank you very much. Let the record
5 absent.
7 back?
1 advance --
12 fall off the wall in how many times people open these
19 But I wanted to ask them: How many times do you think you
20 have opened it? And then I'm going to tell them the truth,
4 that they forwarded it, I'm not sure how that goes to the
5 issue; but I will hear what you have to say about that.
10 out once. But then you get the timeline of adjectives, and
15:38:28 2 And it's hard for the State to prove what your
5 convince the jury what your intent was, and so are you. I
9 what they are for is to find that fact. That's not my job.
10 All right.
12 And I want that to be made clear to the jury, that it's not
15 jury.
23 bowling for abortions and all this stuff that just drives
1 involved in litigation.
11 that may or may not give the State an argument that since
12 your blood was boiling that you were more inclined to harass
24 her response, when she finds out that I suffer from mental
2 flash points.
14 have now asked me to give you advice, and I'm not going to
15 do that.
15:42:24 24 THE COURT: You let me know when you are ready to
15:44:33 6 (The jury came back into the courtroom at 3:44 p.m.,
8 of the jury.)
12 cross-examination.
5 Sustained.
8 on, sir?
16 to the ADA.
19 identification.)
22 objection.
24 evidence.)
1 the witness?
6 Thank you.
15:46:03 8 MR. FULLER: And the origin of this comes from the
18 evidence, so you can -- you can read from it or ask her to.
15:46:35 22 A. I do.
15:46:36 23 Q. Okay. Can you tell us what this site is and just
7 what I said.
16 course of action.
9 welcome?
14 "disturbing"?
22 harassed, why would you ask how many hundred people to then
15:50:37 10 Go ahead.
17 did.
21 statement?
24 question again.
15:51:23 25 THE COURT: Mr. Fuller, you may not argue with the
9 statement?
14 or "false."
19 false?
21 Mr. Fuller.
3 that you wrote this on the blog. And now you said you don't
18 trying to understand.
24 see it.
6 Your Honor.
12 question.
23 to Boston University?
15:56:53 3 THE COURT: Well, Mr. Fuller, I'm going to let her
15:57:22 11 Go ahead.
15:57:53 1 THE COURT: Well, then, why don't you just ask her
2 that?
4 understand, but --
15:58:13 9 A. Let's.
11 or false?
14 dysregulation"?
15:58:27 16 Q. Are you aware that the defendant in this case has
15:58:35 19 Q. Are you aware that the ADA Title II, as it applies
1 question --
15:59:04 2 A. Yes.
16 not going to give you the definition based on the DSM, the
19 do clinical work.
16:00:14 24 Q. Can you tell us, your research, have you done
1 prostitution?
6 would like to read my papers, you can find them; but I don't
16 more.
21 a social worker?
1 choices or what they are doing, I'm going to help give them
4 ways.
11 degree.
2 oath?
6 and now I'm being slammed with a $9.75 million lawsuit from
7 this individual.
10 purpose --
13 it --
15 it up.
13 lawsuit .
21 you just mentioned. Can you name any lawsuit in which the
16:05:28 23 A. I don't know the details, but I know that you have
6 slow down for the -- you just -- I'm going to ask you a
13 Orange County?
18 involved in?
23 don't answer.
4 the evidence for the day, and I'm going to spend the rest of
7 case with each other. Don't talk about the case with
16 courtroom.
18 (indicating)?
16:09:17 21 (The jury left the courtroom at 4:09 p.m., and the
23 the jury.)
1 things.
5 using that you have ready at this point that I might need to
18 say, I don't know how they say it other than there has been
25 times that it was opened, the way it was described, all that
2 case?
10 someone that does choice theory can then create one based on
11 their responses. And they are the ones that keep opening
8 subpoena.
19 to someone.
25 down that road any further, Mr. Fuller has in the past been
6 fault.
10 evidence?
20 intervention.
22 ordered.
3 this court.
23 properly.
16:16:12 12 THE COURT: I'm not going to let you use this
15 those matters are not material to this case. They are not
11 jury that we can go ahead and do while they are not here to
17 on?
23 can't somehow show the blind carbon copy. You have got all
24 these CS people. They are doing all these thing with the
9 evidence that shows they were doing all that and then going
16:18:28 11 THE COURT: Well, I will let you ask her questions
16 received them. If you have some things that you think might
17 impeach her that show that she didn't receive them, you can
18 certainly go down that line with her; but I'm not going to
24 now.
8 favor.
22 There has been -- I think you are the ninth one involved;
7 least.
16:20:54 12 THE COURT: The reason for that is, if you are
20 mad at all. I'm just doing the best I can to follow the
21 law.
3 in the morning.
16:21:46 5 (Volume Three ends here on page 321. The trial transcript
9 Volume Four.)
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********************************
********************************
TRANSCRIPT, Volume IV of IV
********************************
Jury Trial
-----------------------------------------------------------
Kimmel G. McDiarmid, RPR
Official Court Reporter - District 15-B
POB 1384, Pittsboro, NC 27312
919-270-6078 ** kimmel.g.mcdiarmid@nccourts.org
A P P E A R A N C E S
INDEX
WITNESS: PAGE
Ross Barbee
Terri Phoenix
EXHIBITS
6 of the jury.)
10 schedule.
13 this motion.
17 when she has said -- and she did yesterday under oath --
21 standing.
23 with the Trump family. And then I sort of put those into a
3 with you.
23 corrected as well as, you know, this media has been kind of
09:38:42 22 THE COURT: All right. And the Court will note
23 that Dr. Zerden made it clear in her testimony that she does
4 elicited by you.
6 suppose.
10 for the jury to find; and -- and you can examine her about
11 those things.
15 those briefly, and then I will come off of them. But in the
09:40:16 24 THE COURT: You are free to confront her, but I'm
25 going to ask you not to get combative. And I trust that you
1 won't.
7 really are, even though they are closely related, they are
19 it was.
23 purpose was. But I'm not going to let you go very far down
24 the road of how many times it was forwarded, and who it was
25 forwarded with, and what they did with your e-mails because
2 was. That goes to what their purpose is. And that's for a
3 different lawsuit.
7 inflamed because --
11 have to this evidence and set it aside and follow the law.
13 that. And the law presumes that they are telling us the
15 I will remind them before it goes to the jury that they are
19 appellate purposes.
1 up please.
7 hand that to the witness. Let the record reflect the jury
8 is still absent.
09:44:04 11 (The jury came back into the courtroom at 9:44 a.m.,
13 of the jury.)
15 Welcome back. Thank you for being here. Let the record
19 cross-examination.
25 false statements?
3 correct?
23 testify.
8 Trump family.
09:48:36 13 Q. Yeah. I'm reading from the DSM. And being that
15 shrinkage --
4 family.
09:49:54 18 Q. But now you are saying -- true or false: Now you
2 number 11 on page 3?
4 Your Honor.
09:50:36 6 Sustained.
9 rule that that question is not proper. You may ask your
10 next question.
16 with the Trump family, including both with Ivanka and with
3 yesterday.
09:51:41 4 A. Certainly.
09:51:42 5 Q. Again, you made those under oath. And they seem
13 yes or no.
17 sent these e-mails and what kind of intentions and acts you
09:52:57 1 (A bench conference was held off the record and out of
6 to give this.
18 to --
09:53:49 20 Q. For equality, I'm not going to call you that. I'm
09:54:51 3 (The jury left the courtroom at 9:54 a.m., and the
5 the jury.)
4 degrees.
7 from her.
21 composure?
09:57:35 7 THE COURT: All right. Let's bring the jury back
8 please.
09:57:50 9 (The jury came back into the courtroom at 9:57 a.m.,
11 of the jury.)
09:58:38 23 (The jury left the courtroom at 9:58 a.m., and the
25 the jury.)
9 of the jury.)
10:16:05 10 THE COURT: Thank you very much. Let the record
17 am cheerful.
4 a break.
7 you.
13 to ask her any more questions if you don't want to. That's
14 up to you; okay?
17 exhibit in?
10:18:21 18 THE COURT: Wait until the jury gets back please.
24 on number 4.
10:20:52 3 (The jury came back into the courtroom at 10:20 a.m.,
5 of the jury.)
8 handcuffs?
19 order.
21 is an abortionist --
24 court order?
4 of it is, like, if my wife was raped and she was shy to come
8 the question.
10:24:10 23 Q. Is it true or false that you are the only one here
10:24:19 25 THE COURT: Mr. Fuller, you are about to open the
5 sorry.
9 I say?
10:24:37 10 THE COURT: Well, right now you just move to admit
14 what it is.
22 identification.)
4 decide.
10 the top. Is this an e-mail you sent? Does this look like
23 have these files that show how many times that these e-mails
24 were opened.
2 here.
5 Judge.
19 that's why --
21 criminal complaint?
1 this." And that's why you are seeing me here today and not
2 Ronni Zuckerman.
5 that --
12 inside.
14 talking.
19 understand --
23 role -- what was that again?-- the -- you have all these
25 was it?
21 e-mails when we are well into the case in the timeframe, but
24 your own -- talking to your own colleagues, you use just the
10:30:01 6 Q. Can you tell us the title of the e-mail that you
18 antitranny.org.
21 rephrase that.
25 false statement?
9 for the e-mails you sent to me? That's what this is about,
10 Mr. Fuller.
14 courtroom. You don't. If you would like to, the way you
2 of --
10:32:17 3 A. False.
10:32:19 4 Q. Can you tell us about the one other person that
7 defendant's favor?
12 that has a claim that has not already ended in favor of the
13 defendant?
16 Honor.
10:33:01 21 A. Certainly.
2 issue at hand.
5 you the title here. I just want to make sure that you
14 article?
17 quick. Go ahead.
19 student. And the first author was Dr. Hahm. It was her
25 abstract, engaging in --
3 slowly.
9 you like. But I can just read it real quick. It's all
10 right?
18 there.
6 Honor.
11 of North Carolina?
10:36:00 14 Q. Are you familiar with the laws about lobbying the
23 about this.
3 number 5?
5 identification.)
12 first --
15 objects.
25 let you ask her questions about it, and I will decide
10:38:03 2 Go ahead.
4 all the evidence that he has given me. It's all forwarded
5 in the exact same manner that he just objected to. All the
10:38:19 10 THE COURT: Hang on. I'm going to let him ask you
13 give her --
10:38:42 23 Q. Yeah.
5 you, there are two plaintiffs. I'm one of them. Who is the
4 any.
12 question.
12 That's a legal --
16 mind?
22 I have got the -- I'm just going to read a little bit from
4 relevance.
6 first.
15 Your Honor.
23 me.
1 have been unwanted, and they have been numerous. There have
2 been many people involved in this case. You have wasted our
6 get you to stop, and you have not. And so I'm very sorry,
8 hope that you are held very accountable for your heinous
9 actions.
13 great detail.
22 offensive.
10:44:47 7 A. You are on trial for the 12 e-mails that you sent
14 last question?
19 hand, you say that it's your free speech and you have the
21 you don't know who sent them. Those are two totally
22 different arguments.
24 who sent them. You have used this wonderful thing called a
4 the e-mails?
6 Honor.
14 Honor.
23 Honor, yesterday.
10:47:07 3 Q. Have you been credible with the jury and with --
8 question.
11 "yes."
10:47:29 12 A. Not under a court of law and not under oath. And
18 by being here.
25 Your Honor.
10:48:02 2 Q. Have you ever received any spam e-mail you didn't
16 much, and you open them so many times? You just open them
19 Honor.
4 condition.
16 I --
10:49:49 17 THE COURT: I'm not going to let you get into
18 that.
20 want to get -- I'm sure that there are a few more matters
21 here.
25 boards?
10:50:07 1 A. Yes.
3 rights advocacy?
5 Reduction Coalition.
10:51:05 19 Q. I -- I --
25 that website.
6 not.
9 wonderful thing --
7 issues are in this case, and I have just about decided that
13 topic --
17 different topic.
21 just want to kind of get the lay of the land of who all
24 e-mail chains.
10:54:17 25 A. Certainly.
3 Work.
6 comments. I'm not going to get into them all. But can you
8 thing?
14 at UNC.
17 be encouraging my prosecution?
2 Counsel.
10:55:22 7 Q. So you -- you know that she did not get fired.
8 That's interesting.
25 disregard that.
5 do. Would that be correct, that you were kind of his boss?
10:56:25 8 Q. Can you estimate how -- how many e-mails you sent
10 less than 12? You get 12 e-mails; how many you going to
8 Office.
10:58:13 17 Q. Does the defendant have his own police force that
2 it clear --
6 jury has them to read. I'm not going to allow you to read
7 them all into the record, but I will certainly allow you to
10:59:43 24 (The jury left the courtroom at 10:59 a.m., and the
1 the jury.)
18 completely up to you.
24 And I think that the -- the hour audio tape made it pretty
12 dismiss?
1 a.m.)
21 about this. I'm not going to make it read into the record,
23 always did that because you force people -- they won't read
2 think that will be it. And I guess the State will rest its
19 complete --
22 which means that I will confer with you and the State and
24 be.
1 this?
5 charge conference; and then I will hear from you about what
6 the jury instructions should be. I will hear from the State
7 about what the jury instructions will be, and then I will
10 arguments.
25 advisory rulings.
3 we are doing. But other than that, I rule when I rule; and
11:17:34 6 (The jury came back into the courtroom at 11:17 a.m.,
8 of the jury.)
11:18:27 1 MR. FULLER: It will have the file on it. She can
11:18:27 3 THE COURT: No, we are not going to put a USB into
11:18:34 6 THE COURT: Can you -- can you hook up your laptop
7 to our system?
9 going to connect.
12 tell you.
24 audio-visual technology.
11:19:13 1 THE COURT: Somebody else always does that for me.
4 I'll pull it up here and maybe I can just show it? You can
5 see it in color.
15 of these.
18 to.
10 identification.)
12 evidence.)
14 witness --
11:20:50 15 THE COURT: Yeah, hang on. Let them look at it,
11:20:58 19 You can go ahead and pass that one around too so
6 Honor.
11 in anti-transgender activism?
15 in that group.
21 be a part of.
23 transgender."
11:22:54 5 In this case, this was not a debate. This was not
8 me. I did not engage back. I did not respond. I did not
13 cyberstalking.
19 Sustained.
11:23:34 20 Q. Can -- can you expound upon what you said that you
23 that you did respond. You explain in your own words how you
9 channels somehow that are pushing this. Can you -- can you
12 it?
15 me, and I told him what was happening, and Detective Barbee
11:24:54 21 Q. Would you say that -- that that friend that you
23 channel too?
1 chain or chart.
8 when they are bossy? Did you understand that there are
9 people that exist in the world that kind of just don't like
11 of social matters?
24 have hierarchy.
9 is a legal entity.
13 e-mails along.
15 over an issue.
11:28:20 17 (A bench conference was held off the record and out of
22 Ms. Campbell.
11:29:45 1 (All jurors except Juror Number One left the courtroom
11:29:48 4 THE COURT: All the jurors except Ms. Campbell are
5 absent.
11:29:50 6 Ms. Campbell, have you been awake the whole time
11:29:55 9 THE COURT: All right. Were there times that you
14 attention?
11:30:04 16 THE COURT: And you have heard all the evidence?
19 the jury room for just a minute. Thank you very much.
11:30:14 21 (Juror Number One left the courtroom and the following
23 jurors.)
1 believed that Ms. Campbell, because she had her eyes closed,
4 except Ms. Campbell and asked her the questions that I just
5 asked her and got the responses that I got. The defendant's
7 alternate is denied.
11:30:57 9 (The jury came back into the courtroom at 11:30 a.m.,
11 of the jury.)
13 courtroom.
22 criminal complaint?
6 since --
10 as I previously explained.
4 statement?
6 conclusion.
11:33:28 9 A. Mister --
14 individual e-mail.
16 in that one.
18 the --
11:34:34 6 A. Yes.
15 from you.
21 really did get your goat. We'll skip over that one and go
4 you read --
7 Yes.
11:36:21 14 Q. Continue.
18 statement?
11:38:55 9 THE COURT: Mr. Fuller, just so you will know, you
24 you to do that.
11:39:38 1 Q. Can you just read the first paragraph and the
3 loud?
16 section F64.
23 mental illness.
10 based on, their leanings and what kind of groups these are.
19 e-mail number 6?
1 involving cross-dressing.
22 DSM from 1994; and there has been a revision to the DSM so
23 it's not even using the current evidence available and the
14 But anyway, can you read where it says -- it's just that two
11:45:09 1 A. No.
3 make you read the Latin here, but I could if I was on the
9 the --
12 could read that in Latin and then the English. It's just a
20 Mr. Fuller.
25 religious in nature?
11:46:24 1 A. Yes.
9 how there was a similarity with all of them and how Napier
13 yesterday.
16 you opened them; and I'm not going to ask another question.
24 are rendered, and we can't even read them, but that's the
4 and actually read this article, this IRS (sic). But because
6 But I will ask you to read the headline where it says San
16 or no?
18 and you can tell that they are engaging in different sexual
19 positions.
11:49:59 20 Q. How can you tell that? Maybe it's dry humping?
11:50:05 23 Q. All right. We are wrapped up. You can get off
24 the stand.
11:50:15 3 THE COURT: All right. Dr. Zerden, you may step
9 time.
19 Remember all the rest of the rules, and we will see you in
11:51:04 21 (The jury left the courtroom at 11:51 a.m., and the
23 the jury.)
11:52:08 7 THE COURT: Right now I'm not. Right now I'm
17 eventually.
4 Judge?
6 contends it is.
8 put on that hour tape. And so there has been a whole lot of
13 one can know what goes on in my brain but me, and that's the
14 evidence that's been put into the record, and there has been
19 use some profane language just for fun, but I won't because
23 message.
9 dismiss the case because that's the only thing that has
24 on page 243:
4 speech.
7 harassment. And even though they might have taken the form
11:55:57 12 First, we have the fact that Mr. Fuller did indeed
19 Dr. Zerden did not know of, did not ask for, did not
6 562 U.S. 443. Your Honor, I do have a copy for the Court,
7 if Your Honor --
3 record.
16 religious allusions.
19 said. I'm not going to get too deep into exactly what the
22 the State has put on, given the -- Mr. Fuller's own words
24 ask that you find that Mr. Fuller's conduct was harassment,
8 isn't about the law. It's about how the facts fit within
12:00:07 13 THE COURT: Well, Mr. Fuller, you have hit the
14 nail on the head; and that is, it's your contention that the
16 question for the jury to decide. I'm not going to make any
24 them, and if they find that his purpose in doing that was to
9 speech.
18 activity.
25 for the jury to find all four of the elements. Would you
12:03:28 12 THE COURT: It would be that you ask that the case
15 that --
22 I'm not doing this just because you don't have a lawyer. I
12:04:02 3 THE COURT: The first is that you have the right
4 to testify in your own defense and you also have the right
6 and you ask me to, I will instruct the jury that they may
7 not hold that against you. Do you understand the right that
12 are --
12:04:37 19 THE COURT: Okay. And the next right that you
20 have, you have the right not to put on a defense at all and
22 you also have the right to call witnesses for your defense.
1 do?
9 to obtain witnesses --
11 Amendment.
12:05:46 1 THE COURT: -- you know the Court has fairly broad
8 Dr. Zerden or of --
13 to say.
16 have looked at this, the best people in the world; and they
22 go into next week, and that's the way it's going to be.
12:07:33 8 Now, you have had notice of this trial date since
12 people as my attorney.
19 indigent and have also done that. I went on the stand and
12:08:30 5 THE COURT: Okay. And then you had your subpoenas
11 understand.
15 to do it.
12:09:40 5 THE COURT: I'm not going to argue with you about
10 will take it from there. All right. Bring the jury back
11 in.
17 you --
22 court --
12:10:57 3 (The jury came back into the courtroom at 12:11 p.m.,
5 of the jury.)
7 thing I said.
14 2:00 o'clock.
12:11:43 22 (The jury left the courtroom at 12:11 p.m., and the
24 the jury.)
5 2:00 o'clock.
7 2:00 o'clock.
14 of the jury.)
18 jury?
1 the evidence.
14 rules.
14:01:56 15 THE COURT: I tell you what: I'm going to let you
16 do that before you rest your case. But right now we got a
14:03:28 22 (The jury came back into the courtroom at 2:03 p.m.,
24 of the jury.)
6 Public Safety.
14 please.
16 identification.)
14:04:32 17 THE COURT: If you have got an extra copy for me,
21 relevance grounds.
14:05:15 2 THE COURT: All right. I'm going to let you try
14 case?
23 sorry.
10 file a complaint.
13 and I can print it out. But I was going to ask you, were
17 review?
24 listed here?
4 second.
7 results.
15 this way: Did you become angry to learn that there had been
14:08:48 20 A. No, sir. It's just a part of the job for me.
22 time.
1 captain.
5 that fast.
14:09:30 17 Q. But you can recall -- would you -- can you tell us
19 years?
23 against him and that for whatever value that might have
12 patient here.
14:10:39 15 A. Yes.
18 data?
2 correct.
6 revealed to you?
10 California?
20 personal knowledge.
23 again that when you are evaluating the evidence, that the
4 his Gmail data that might have included his private attorney
15 as you pointed out. But did you contact them shortly after
17 federal court?
14:13:49 25 A. I don't know, sir; but I'm human so I'm not going
1 to do anything perfect.
5 evidence?
14:14:06 6 A. I did not seize any digital evidence and did not
14:14:56 24 A. I don't --
12 don't know.
16 position that there was no such -- and I remind you, you are
20 you might have a different way to phrase it, but it's some
23 to do that?
4 communications?
8 places, as it became evident that the case went on, that the
13 Carolina trustees?
24 of minors?
4 Safety --
14:17:44 10 A. I'm not familiar with any hotline for that that
14:18:21 23 Q. Well, it's relevant in the fact that you had some
24 complaints and you didn't get punished for it. But let's go
25 on here.
4 honestly look towards the jury and say that the defendant is
7 face?
13 Amendment rights?
19 answered.
14:19:32 25 Q. Have you been served legal notices that you will
14 referring to --
16 referring to --
1 question.
5 way of not turning up. In fact, we have one guy even had an
9 be here.
11 people that are not here. And I just wanted to -- these are
12 all people that have been e-mailing you. What is the role
19 Counsel's office.
21 happened to her?
23 university.
7 her on this?
9 you.
19 involvement.
24 Remember all the rest of the rules, and we will call you
14:22:59 1 (The jury left the courtroom at 2:23 p.m., and the
3 the jury.)
19 please.
14:24:31 20 (The jury came back into the courtroom at 2:24 p.m.,
22 of the jury.)
7 identification.)
11 the record. It's from Mr. Gary Bowen to Ross Barbee and a
24 of this?
10 the page or the one that's more toward the middle of the
11 page?
19 somewhere?
14:27:50 1 THE COURT: What are you talking about, the one up
2 at the top?
5 hearsay. You can ask him what he says, but you can't ask
8 ahead.
14:28:06 11 Q. But why would a dean write you a letter and say:
18 a beef with someone at UNC, could I call you up and get them
22 relevant.
3 conversation?
7 precedes this.
14:29:03 8 A. Uh-huh.
10 and desist letter. Did the cease and desist letter prevent
13 false?
20 Exhibit Number 1?
14:29:58 22 THE COURT: For the record, that is the cease and
23 desist letter.
11 with any force behind it. It's simply a tool that we use in
19 there it is?
6 publicrecords@unc.edu.
21 me directly at Ross_Barbee@unc.edu or
22 (919)962-0564.
1 to me like it did.
12 charges.
14:33:23 18 Q. No, no, no. You didn't include that because you
9 Go ahead.
12 and --
15 be?
22 identification.)
8 and me.
10 first.
14:35:14 12 THE COURT: All right. I'm going to the find that
14 that time?
25 identification.)
9 recommendations on how --
14 to Courlang.)
16 ahead.
14:38:50 22 Q. Okay.
19 covered under ADA and explained all that? You are saying
22 warrant for you, I did not know that you had any type of
12 cross-examination --
25 that correct?
14:41:58 18 A. Yes.
20 no?
14:42:05 21 A. Yes.
25 irrelevant.
10 jury what happened. I guess they may never find out, but it
21 that website?
25 on microaggression?
14:43:49 17 THE COURT: No, you are not going to point out
14:44:03 24 (The jury left the courtroom at 2:44 p.m., and the
1 the jury.)
4 the record.
12 not sure I wouldn't agree with you; but I'm not. So if you
13 are not going to call any more witnesses, then the next
14 thing that would happen, if you want to, you can announce in
15 the presence of the jury that you have rested your case or
16 you can just not do that and we will move into the next
14:45:25 21 THE COURT: I'm happy for you to call any witness
23 I'm not trying to provoke you. If you don't have any more
25 can call your witnesses now or you can rest. That's your
1 choice.
5 rebuttal?
8 closed.
17 conference.
19 have got a copy for each of you, and that's -- that's sort
23 3:00 o'clock.
14:46:39 25 THE COURT: I'm going to bring the jury back, let
1 them go --
14:46:42 3 THE COURT: -- and then I'll let you talk some
4 more; okay?
14:46:45 6 (The jury came back into the courtroom at 2:46 p.m.,
8 of the jury.)
11 is complete.
19 check back in with you at 3:30 and let you know how we are
23 Keep an open mind. Remember all the rest of the rules, and
14:48:22 25 (The jury left the courtroom at 2:48 p.m., and the
2 the jury.)
5 and then we will have the charge conference, and I will hear
7 you.
15:00:17 14 THE COURT: Let the record show that Mr. Fuller is
20 instructions.
24 the statute. The State believes that Mr. Fuller might make
1 limiting instruction.
5 the second to the last page. It's four paragraphs from the
24 to the jury.
2 because he doesn't know the rules -- the same rules that I'm
15 object.
21 carefully and will first of all say that the jury must be
10 there.
12 things about that. One, the law requires you to give the
13 State notice of --
9 just denied --
18 all the judges, this is why they are all being sued because
19 they misunderstand the law. I'm sorry, but you do. You are
22 you don't fall under state law. That's why the immunity has
25 that, you are now pulled into the federal suit because you
1 have just said you will not apply the ADA law and all this
2 case law that says you have to do that. And I just have to
3 point it out to you one more time. You are welcome not to
2 that.
17 person.
4 that you think would make the deal fairer for me; and I will
9 going to jail. You know good and well I can't put you in
10 jail, and I'm not going to; okay? You are allowed under the
12 for the crime you are charged with, and I will continue
14 that.
20 lawsuit with the state in 2012, and I'm covered under it.
24 lot of this, and that's why the judges are now going to be
2 But -- but there's immense case law that says the jury
3 should be informed that the State has already paid for this
17 friends, my wife; and no one even knows that the expert has
19 own expert that goes before the Supreme Court has already
20 said that. And yet you -- you block it up, and you won't
8 I'm going to hold you to this law. What I will tell them
15:11:13 13 And since you are not a lawyer, I'm going to say
9 issue.
25 those issues are not for the jury to decide. They are to
6 process.
8 that you might ask me, "Well, what are you going to do to me
11 going to tell the jury that that's not proper for their
12 consideration. Okay?
19 I just like to talk about how I feel and about the work that
23 crazy.
15:14:42 5 THE COURT: I will let you -- I will let you get
9 you can't get into some of your evidence with this jury,
18 into it.
24 each side to one hour. You don't have to take an hour, but
25 can't take more than an hour. All right. And we will bring
1 the jury --
5 are all out there, bring them on back because we are ready
6 for them. As soon as they are all back, just bring them on
15:21:59 10 (The jury came back into the courtroom at 3:21 p.m.,
12 of the jury.)
19 instruct you on the law in this case; and then you will be
22 hour.
15 evidence.
23 to look at you all and tell you a little bit about why I'm
5 process" itself.
13 different.
17 truth. It's just one side wanting to win and all these
19 would just boil your blood in this case, but you will never
24 object.
4 interrupt --
15:26:48 8 Go ahead.
10 was very, very sick and I had an infection. And I sent the
14 drive all the way up here. It's about 20 times I have done
20 get involved."
24 of Mr. Fuller.
3 forever.
15:27:40 4 THE COURT: Mr. Fuller, I'm going to find that you
6 with my order.
10 Honor.
15:28:02 13 MR. FULLER: It's the first case like this that's
17 wanted.
25 how I feel? You have heard -- that lady sat there for a
1 bunch of times and tells us how mad she is. How about how
6 the jury room. I will call you back when we are finished.
15:29:31 10 (The jury left the courtroom at 3:29 p.m., and the
12 the jury.)
15:30:52 22 (The jury came back into the courtroom at 3:30 p.m.,
24 of the jury.)
6 matter. So when you look at the case law for this, like
14 get divorced. Maybe the guy bought the dog, but then the
15 wife gets the dog, and the guy threatens to kill the dog.
19 You are going to get charged under the statute and you
24 don't even want to get into that because I know you will
25 tell me to stop.
5 another thing that I get annoyed that they think you are so
9 all I can talk about -- and it's him is the one that said
12 Honor.
18 where it was sent from. And they have never proved where it
24 over this.
3 that's come in. There is a reason for that, but they won't
4 tell you why. You are never going to know why. I'm not
8 have heard a lot of evidence from this one witness that she
12 not. You have heard from her own mouth that she is acting
13 on others' behalf.
19 That's what -- that's what they told me. I don't know from
21 And I can tell you they are a whole lot nicer than they
22 usually are when only I'm around. That's one of the things
24 so nice. But when they get around you in private, they are
15:35:18 1 And I'm not allowed to tell you the plea bargains
9 tape -- I don't know why the guy put the tape on there.
12 He's -- he's --
14 Honor.
19 But they love to get a win so they get 100 percent. Still
21 can put that in the check box. But this is something I just
23 use profanity here. I have -- and by the way, when you talk
6 think that I'm someone that just goes out and does things
9 been a good deal. This thing has been going about two years
14 cases?
16 is so go ahead.
20 to stop me, but I will try to be very fair about it. Having
7 that the NCDOJ has put in, and they have not gotten it
17 one is ongoing.
15 you have heard someone says, "I don't know, maybe about
17 then you can say, "Well, how the hell do you remember all
21 you answer.
23 don't know what her deal is -- but she gets kind of wound
25 things. And when you do that enough, she went over the
3 Again, you can't hear all the details about that. But that
22 case.
25 more chance.
7 They have been working on this for about two years, but
11 evidence.
7 learned?"
15:42:51 10 When the police are against you, they don't get --
19 haven't seen. I get confused on what you have seen and not
20 seen. But at one point, I think the State has argued that
21 I just make all this stuff up, that I'm religious and this
22 and that. It's all made up. It's all this facade, that
8 still today.
22 time for you to stop. Let the record reflect that I find
10 already been here for three days. At this point, you have
13 podcast in which Mr. Shiver was the emcee, Mr. Fuller was
21 today.
25 Investigator Barbee.
12 to harass.
3 too long. I want to thank you for serving these past few
10 explain the law to you. I'm going to ask you not to take
11 notes while I'm doing that because I'm going to give you a
14 paying attention.
20 what the facts are. You must then apply the law, which I'm
11 my candy.
12 case.
14 law gives the defendant this privilege. This same law also
15:53:00 19 There are two types of evidence from which you may
12 part, you should treat what you believe the same as any
1 of not guilty.
23 your jury service? Do any of you feel like you are getting
2 raised.
15:58:10 12 (The Alternate Juror left the jury box and was seated
13 in the gallery.)
21 like this. I'm going to send it back there with you. And
22 it reads:
1 guilty.
5 envelope.
8 put a blank legal pad and a pen. The purpose for the blank
9 legal pad and the pen is: If you find that you have
21 have a rule for that. You just have to decide that on your
13 but not your -- not your exhibits, just your notebooks. You
16:01:11 22 (The jury left the courtroom at 4:01 p.m., and the
24 the jury.)
16:01:26 4 MR. FULLER: I'm still mad you didn't put the
7 record.
16:01:54 13 THE COURT: Oh, sorry. Ms. Freeman, you are now
16:02:24 23 THE COURT: Mr. Fuller and Mr. Courlang, you are
16:02:36 2 Now, Ms. Freeman, thank you for your service. You
6 a verdict. You are now free to talk about the case if you
7 want to. You are also free not to talk about the case if
11 duties.)
16:27:27 24 (The jury came back into the courtroom at 4:27 p.m.,
1 of the jury.)
7 Thomas Dunder.
14 verdict form?
16:28:34 16 THE COURT: Have you dated it, signed it, and put
5 this time because I'm not going to tolerate it. All right.
19 right hands are raised. You may put your hands down.
21 from your jury service. Thank you for your service. You
22 have seen firsthand how our court system works, seen when
24 and 12 citizens resolve them for us; and you have done
25 that.
2 are free to talk about this case, but you are also free not
13 to sentencing.
18 sentencing.
25 request?
10 recommended treatment.
16:32:55 25 THE COURT: I'm going to hear what you have to say
2 what he wants, and then I'm going to hear what you want, and
9 health thing.
16:33:29 10 THE COURT: I'm going to hear what you have to say
16:34:05 19 Now, Mr. Fuller, I will hear what you have to say
20 about sentencing.
2 they never -- that was shielded from the jury. That's what
4 things.
10 your mental health issues other than whether you were able
16:34:58 14 So, you tell me that you have taken -- that you
16:35:38 4 THE COURT: You don't have to, but I'm just
5 asking.
7 discretion.
15 that.
15 think, if the jury was able to see that, they would have
24 this information out, the State then said, "Well, no, you
25 can't."
6 Okay?
16:39:03 22 THE COURT: What are they? Do you have the latest
23 iteration of them? Was it Judge Holt who did the last one?
2 Release that was filed May the 10th of 2018 -- is that the
7 benefit to make sure that you understand what they are and
13 with the DA's Office. It says that the only contact that
16:40:34 2 THE COURT: Okay. I got it. That order says that
4 with UNC's School of Social Work and the UNC LGBTQ Center by
11 district trial?
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