Jury selection is scheduled to begin at 9 a.m. today.
We'll begin posting updates here as soon as the jury is selected and seated.
While we wait for the trial to begin, here are a few links to our previous coverage of the case.
@Smolin Joe: Prosecutors often charge people with conspiracy when more than one person are alleged to have been involved in a plan to carry out an action. A "conspiracy" charge is the same level of offense, so in this case, conspiracy to commit murder carries a maximum of life in prison without parole just like a murder charge. Also in this case, both defendants are charged with two counts for allegedly conspiring to murder two people, even though only one person died.
It sounds like we have a jury.
Selected jurors are now taking their seats in the jury box.
The jurors have been sworn in. We'll break for lunch until 1:30.
We're back in the courtroom waiting for opening statements to begin. Jurors are being called back into the jury box now.
The judge is giving his instructions to the jury. Jurors were sworn in before the lunch break.
There are 12 jurors and 1 alternate (8 men and 5 women).
The judge is Bruce Romanick.
Both defendants are charged with two counts of conspiracy to commit murder (one for Timothy Padilla and one for Michael Padilla). If the jury finds them not guilty of this offense, they must consider whether they are guilty of reckless endangerment instead. Romanick is explaining both of these offenses to jurors.
Here's the definition of a criminal conspiracy from the North Dakota Century Code:
12.1-06-04. Criminal conspiracy.
1. A person commits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and any one or more of such persons does an overt act to effect an objective of the conspiracy. The agreement need not be explicit but may be implicit in the fact of collaboration or existence of other circumstances.
2. If a person knows or could expect that one with whom he agrees has agreed or will agree with another to effect the same objective, he shall be deemed to have agreed with the other, whether or not he knows the other's identity.
3. A conspiracy shall be deemed to continue until its objectives are accomplished, frustrated, or abandoned. "Objectives" includes escape from the scene of the crime, distribution of booty, and measures, other than silence, for concealing the crime or obstructing justice in relation to it. A conspiracy shall be deemed abandoned if no overt act to effect its objectives has been committed by any conspirator during the applicable period of limitations.
4. It is no defense to a prosecution under this section that the person with whom such person is alleged to have conspired has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice.
5. Accomplice liability for offenses committed in furtherance of the conspiracy is to be determined as provided in section 12.1-03-01.
6. Conspiracy is an offense of the same class as the crime which was the objective of the conspiracy.
The prosecutor, Ladd Erickson, will now begin his opening statement.
Pros is using a whiteboard to aid him in defining terms central to the state's case.
Pros: In the days before the shooting, the defendants were talking about going over to the Padilla apartment and taking their drugs.
Pros: "Bad blood" had developed between Whitman and the Padillas.
Pros: About 4:30 on the day of the shooting, an angry phone all took place between Whitman and Michael Padilla. He put it on speaker phone so all in room could hear. About 6:30, another call took place. During this phone call, Whitman is more conciliatory.
Pros says this "conciliatory" phone call was to put Padillas at ease.
Pros goes over the witnesses that will testify to all of this information.
Pros: Whitman said during second phone call that he would like to come to Padilla apt. to reconcile their differences.
Pros: It wasn't a surprise to see Whitman at the door around 7:30.
Pros: Whitman entered apt with a pistol. Another man wearing a ski mask enters the apt with what witnesses will describe as an assault rifle. Whitman begins ordering occupants in apt to "get on the ground."
Pros: What I don't think will be disputed, is that's at some point, the Padillas stand up and face the defendants. They do not get on the ground.
Pros: At some point, a struggle for the guns begins.
Pros says one of his witnesses will testify that Michael Padilla is shot twice by Whitman using a .22 pistol.
Pros: Michael Padilla dies shortly after falling to the floor.
Pros: Tim Padilla is shot in the back with .22 while struggling with masked man (who he will later identify as Borner) for assault rifle.
Pros: Tim Padilla wrestles gun from masked man and points it at Whitman and Borner. He attempts to fire. Gun is jammed.
Pros says he will not call the Padillas' mother to testify because he did not think she can handle reliving the incident.
Pros is now going over the actions of the police officers who arrived at the apartment following a 911 call at 7:42 p.m.
Pros is now going over the actions of the defendants following the shooting and which witnesses will testify to these events.
Pros has wrapped up his opening statement.
Steve Simonsen will make his opening statement. He is Cody Borner's atty. Travis Finck is Richard Whitman's atty. He will make his own opening statement.
Simonsen says a conspiracy needs an objective. Says his client's objective was not murder. He says witnesses will testify that Whitman and Borner went to the apartment, but never conspired to cause the death of anyone.
He is finished. Finck is up next.
Finck begins by saying that a person's perception is often different than reality. Also says Whitman and Borner had both been consuming alcohol.
Finck says only two witnesses will be able to testify to the events leading up to the incident at the apartment. Says witness will testify that defendants discussed buying marijuana and possibly stealing video games. Says witness will never testify to any discussion about causing harm to anyone.
Finck calls the conspiracy allegations a "leap of faith."
Says there is no direct evidence of any conspiracy.