* Day 34: Monday, September 9 * Day 37: Thursday, September 12 * Day 35: Tuesday, September 10 * Day 38: Friday, September 13 * Day 36: Wednesday, September 11
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Abbreviations used in notes:
DC = Don Campbell (Defense)
SF = Shelagh Franklin (Defense)
GW = George Wool (Defense)
ST = Sheldon Tate (Defense)
MA = Manuel Azevedo (Defense)
HR = Harry Rankin (Defense)
LB = Lance Bernard (Crown)
JF = Jennifer Fawcus (Crown)
J = Judge
Without jury. GW - Wants to take jury up to Gustafsen Lake and suggests it be soon before the weather turns. Also wants to discuss bail for OJ whenever possible. Jury in.
The next witness is called, but missing for a few minutes.
LB - Next witness (#29): Darryl Recollet (DR) - Employee with the Ministry of Forests. Auxiliary firefighter for four and a half years. One of his duties is dangerous snag faller which is to knock down anything dangerous to the rest of the crew. Uses a chainsaw. Manager is Morris Shelton, workmate is Thomas Lee. Was working in 100 Mile House area in Aug. of 1995.
On Aug. 27th, he was called at 1:30 or 2:00 p.m. by Shelton to do some bucking work. Didn't tell him where or circumstances. He went that day at 2:30 at unit crew base outside of 100 Mile House. Shelton was there at time. Lee was staying with DR so both went to work that afternoon. At base, he was told they were going to Gustafsen Lake to buck trees, but he couldn't get anyone else to do it so he said sure. Brought chainsaw and safety chaps for legs. Took three chainsaws. Used two tone blue Ministry of Forests one ton crew cab with an open box. Chainsaws in back. Shelton, Lee and him travelled together. Truck marked with Ministry decals on doors. Several trucks like that in area. Went out to Gustafsen Lake. Got stopped at checkpoint on 1000 Road. Met police at checkpoint where they were told to wait until they got an escort. Waited 10-15 minutes. Two police Suburbans led them in as Shelton drove. Police 50-100 feet ahead. He received no specific instructions from police. Saw trees laying on road 100 feet up from lakeshore intersection just beyond 35 km marker. Police vehicles parked on right side of road. Passed two vehicles. A third police vehicle was parked near trees - it was already parked there. They waited in area for a few minutes to make sure area was secure. Police told them to start bucking then. Police officers were out of vehicles on west side of road, spread out.
Saw two pine trees on road, five feet from each other. First tree was 1.5 - 2 feet in diameter. Next tree was one foot in diameter. Trees had been felled from west side. Branches still on the trees. Could tell freshly cut from overnight. Had been cut with a chainsaw. Says that with his experience, it would have taken him five minutes to drop trees if he had felled them. DR was chainsaw worker. Other two cleaned up debris that he cut off tree. From size of tree, they knew they would have to use winch to pull tree off road. Cut tree into three pieces and then hooked up winch and used power of truck to pull them out of the way on east side of road. Took about 20 minutes to clear first tree. Worked quicker than normal just because that's how he works.
Second tree was done the same way as first. On second tree, he ran into wire on other side of tree. This dulled the saw. Wire was black rubber coated copper wire. Wire was stapled to tree. Says chainsaw can cut through wire, but it gets dull quick. This is his first time he ran into a wire like that and can't think of the purpose for it. Boss tried to remove wire, but DR just cut around it. Second tree was moved off with winch and truck again.
Ministry truck was positioned the same way they had parked. Didn't see any people there, but saw a yellow dog. Police also had dogs there, but this yellow dog wasn't one of theirs. Yellow dog came from east side above from where they were cutting about 50 feet away. Didn't see any person with the dog. Saw dog just as they threw off last log to side of road. Removing both logs took 30 minutes total. When he saw dog, he put equipment in rear of truck. A little after seeing dog, an officer said "pack your gear and go." He threw his saw in and the three got in the truck. Shelton was driving, Lee in passenger seat, DR behind Shelton. Backed truck up to west and when they were perpendicular to road, heard gunfire. At least five shots. He is only familiar with .22 rifles because he had fired those as a kid. This bang was louder than .22. As soon as he heard fire, he laid down under seat as did Lee. They were just pulling forward to the left when the fire began from behind them. Shelton was sticking his head just above the dash to drive. Didn't sound like any of it struck the truck. As they drove away, he heard more fire - less than a dozen shots altogether. They drove away fairly fast. When shots were first heard, police were still out of their vehicles, but making for their Suburbans. Drove to checkpoint. Two Suburbans caught up to them when they pulled over about 5-7 km away to put stuff away. Police told them to keep driving to checkpoint. From checkpoint, they were given a police escort to 100 Mile House where he gave a statement. He never saw anyone fire any weapons - "It's kind of hard to see when you're laying under the seat."
There are no questions for cross-examination. LB asks that if there are no questions, they would like some notice. J doesn't blame him basing that on past witnesses. J stands down jury for ten minutes until next witness is available. GW asks J to consider canvassing the jury regarding going up to Gustafsen lake. J prefers to hear positions of other Defense counsel and Crown.
JF - Next witness (#30): Thomas Lee (TL) - employed as auxiliary firefighter since 1993. Got call to go with Recollet. Shelton said they didn't have to go if they didn't want to. DC wonders if we need to hear this. TL was told they would be bucking trees near Gustafsen Lake. Went with Shelton, Recollet and himself in 4x4 Ford pickup, rental for Ministry of Forests. This was the first time out to Gustafsen Lake area. They didn't meet anyone until reaching RCMP checkpoint. From there they were escorted by two marked cars and one Suburban. Went down 1000 Road. Stopped short of trees until police called them. They waited for a few minutes. One car stayed with them, but he couldn't see what other police were doing because they were out of sight. Trees were four feet across diameter and laying west to east. They stopped a few feet short of tree. Once limbs were removed, he moved limbs to side of road. Says that during sawing, there was only one officer with them. Others were out of sight in the bush next to road. Once first tree was bucked and moved, they proceeded to second tree. He removed limbs again to side of road. Still only saw one officer with them. Says he didn't see other officers until they drove out. Once second tree finished, they put gear into back of truck. Other cops came running out of bush looking back from where they came from. Cops running towards workers. Got to bank and ducked down into a ditch then faced back in direction they came from.
Officer with workers told them to head back to checkpoint and not to stop until they got there. Just as they were turning around, he heard a rifle shot. He got down under seat. A second shot and Shelton was still turning around. More shots. He said to crew, "we're caught in a crossfire" and they all started laughing. Shelton got down too. Shots came from northwesterly direction. Says shots coming from 100 feet away or so. First couple of shots, he couldn't say which direction they came from.
He has experience with weapons hunting and "I saw a buddy get blown away by a 300 Savage one time." Handled 30.30, 410, 12 gauge, 303, 22. Shots he heard sounded louder than a .22 - "lets put it that way." Vehicle moving when he heard shots. Before he ducked, he saw police were 30 feet away. Second set of shots were from southwest. These sounded not as loud and fairly rapid fire. Sounds from a generally westerly direction. Says it was hard to tell which direction he was in because he was staring at dash. Reference to being caught in crossfire was because as vehicle was pointing west, they could hear shots to the right and the left.
They drove back north and were stopped by RCMP a few miles down the road. Says there were two marked cars with RCMP that escorted them to checkpoint. Guess that they were on road cutting trees for half an hour to an hour before hearing shots. They proceeded from checkpoint to 100 Mile House where they gave statements. When asked about other shots other than two groups of shots, he says "it was all happening so fast, we just wanted to get out there."
No questions from the Defense. Jury stood down. LB says it's wonderful not having questions, but would like to have some notice in the future. Next witness not available until 1:30 p.m.
HR - says that LB need only talk to Defense beforehand to determine if there will be any cross-examination. "It's only a matter of talking."
GW with respect to visiting Gustafsen Lake, he has talked to LB who is opposed and is prepared to deal with it after morning break. HR suggests that J canvass idea with the jury to decide this. J would still like to hear submissions because he has to decide on this.
MB/ GW - looking at Sec. 652 where a J may, in the interest of justice, allow a view of the crime scene. GW says there is an important interest of justice here for the jury to view. GW notes that he used terms with witnesses like "isn't this a vast area?" or "couldn't anyone get in or out undetected?" Says he set the seeds. Says that the aerial photo on the wall is a distortion of size and doesn't accurately portray the scale of the area. GW says that the key to the Defense will be identification and the Crown will not be able to identify anyone to any shootings. On map, GW shows tree falling site. Says that Crown will say that it had to be someone from the camp, but a view of the scene will show that it could have been anyone who escaped into the bush.
Will say that the RCMP failed to close this area off on Aug. 18 and instead put their energy into making a media event to create an invitation to people from all over or with an axe to grind with the RCMP to come in. A view will help the jury assess the evidence. GW says he will tell the jury that the RCMP created a calculated invitation to anybody and everybody to come into the area and if they only base it on the map on the wall, a jury member may say that by looking at the picture, it's obviously people from the camp. But GW will say that the jury member has never been there and couldn't say that for sure. A view would make it harder for the jury member to realize that.
Likewise regarding the Sept. 11, "gun battle". GW has been there and you can't even see the area where the truck was blown up from the camp. GW says the RCMP started a battle by disabling the truck, killing the dog and beginning a firefight. A jury member standing on the road will see that the distance from the truck to the camp will be so great, they will see that the truck was not going out to shoot anyone. "The killing of the dog was completely unprovoked and indicative of the police's provocative nature."
Regarding the 1000 yard shot at a person walking along the lake, the jury would have to go there to see that it would be ridiculous to say that this person was going to swim over and get them. What really happened was that the RCMP were mad at what happened the day before and wanted to get even by getting permission from a superior to take a shot. GW's reaction to going out there was "What? Fighting over a 20 acre spot in a million acres?!" Isn't satisfied that flowery words would be adequate to describe the vastness of the area. The jury should see what the camp looks like and what the cabin site looks like. They might want to see what the barb wire fence looks like. GW suggests that only by going there, will the jury be able to assess the evidence accurately.
Finally, there has never been a trial like this and it is very unique. We shouldn't be thinking of this in terms of money to the public purse, we should be thinking in terms of getting a thorough look at the evidence. It would also let the jury see where the checkpoints were, where 100 Mile House is, etc. Suggests that three days might be necessary. It takes six hours to get up there and "I haven't got a ticket yet." Also notes that a view would be good because of the timing of Sept. 11 coming up and the foliage would be similar to that of last year. Also, snow is coming. HR - says that views were common in serious scenes in the first 15-20 years of his career. Agrees that it presents some inconvenience, but it gives them a flavour of the area. He hasn't been to the site and the jury hasn't either. Says that you have to be careful about how to use the time and would need to schedule the time correctly. He would like to see the 1000 yard shot or how cattle couldn't be moved. If it was carefully planned, it would assist the jury tremendously and those organizing the trip. ST - Cites some case law that touches on this. He has been to the site and following some of the testimony he's heard, he's been left thoroughly confused. DC - Says that being out at the site, it was of significant benefit to understand the disclosures. He suggests that it would be as beneficial to the jury regarding the testimony. Says that he and GW walked only a 50th of the aerial photo and a day was more than adequate to get a feel for it.
MA - says that costs should not be a consideration since it was the Crown that moved the case down here. LB - Says that the test to apply is not whether it's of assistance to the jury. Says nothing of GW's comments of the scenes is necessary to validate the testimony because none of it is reliant on seeing something from a specific area that would require a view. Says that HR's comments that views were common in the past reflects an older era. Modern technology has made re- creations of the scene much better than in the past. LB says that GW's notion that vastness of area would suggest others could have engaged in the various scenes doesn't contradict anything the Crown has said because they never claimed that the area was sealed off. Doesn't see how distance from the blown up truck to the camp is relevant nor where the dog was killed. Likewise doesn't see why 20 acres being fought for within a million acres should be made an issue.
Says there is more than just an aerial photograph, there are also videotapes, photos, etc. Also concerned that the wrong impressions will be led because the scene is not the same as last year. Holes have been filled, structures have been removed, the Sundance circle has "been put to rest", and there has been an increase of growth than that of a year ago. Doesn't think any of the things put forward is critical for the case. Does bring up time and money this would take and doesn't think this will be in the interest of justice. HR - re: use of technology to improve things - recalls that there has been endless photographs, black and white video that hasn't helped anyone. A surveyed map would have been a lot more helpful than this aerial mapwhich cost millions to produce. "I don't want to sound like an old fogey, but this technology isn't helpful." Money has been spent here lavishly by the state. GW - if LB isn't taking into account identification, than why are we dealing with testimony like we heard today. Re: the foliage changing, GW says that these high altitude near-desert-like conditions aren't like the Lower Mainland. Things don't change much there and the scene will be nearly the same as last year.
J - Would like to canvass the jury. Says he has spent much time in a courtroom in the past looking at maps so has an advantage the jury might not have. Would like submissions on this.
ST, HR and GW agree that to canvass the jury would be good.
LB - says that he can't agree and if the jury says yes, than the J would be placed in a tough position if he then decided against it.
HR - says the only judge for this is the J himself.
J says that he'll decide over the lunch hour and if he says yes, then he will draft a question that all counsel can look at.
L/ LB - Next witness (#31): Cst. Lorne Marshall Clelland (LC) (this guy kissed the bible) - 19 years on force. Currently stationed in Langley. Became ERT member in Surrey in 1981. In August 1995, he was team leader of Prince George ERT. Not currently ERT member because Langley's ERT team is full. On Aug. 25, '95, he was called in by SubDivision ERT commander to go to Gustafsen Lake. Went to 100 Mile House with team and began duties on evening of Aug. 25th.
Aug. 26th, he was assigned to Checkpoint 1. Worked whole day that day. He was with Rob Hardy, fellow Prince George ERT member and two general duty members. A map, Ex. 5, passed out to jury members. LC points out Gustafsen Lake, 1000 Road. "Elephant" refers to 1100 Road. Also references to Monkey, Lion, Tiger, Bear and other names corresponding to roads on map. On the 26th, LC worked on Checkpoint (?), the media checkpoint. He was working again with Hardy and two general duty officers. They were there to assist general duty officers for back up. Later in the day on the 26th, he travelled from Checkpoint F to Checkpoint E around 6 p.m. He doesn't recall if anyone else was with him. He went to Checkpoint E to check that members there were happy with the position - "just a regular team leader thing to do." Cst. Feeler was there and Vancouver ERT member was there. Sarich and Montague were also there - waiting for team of persons to come out of the camp area, believes this was Ovide Mercredi and others. He was there when Mercredi came out. Mercredi, Sarich and Montague spoke and then LC went to Checkpoint 3.
Mercredi, people with him, Sarich and Montague drove ahead of LC. At this time, 7:00 p.m., going from E to C, he saw no fallen trees.
On Aug. 27th, he went to Checkpoint 3 and he was responsible for back up. Cst. Hardy and Feeler assigned to south of Checkpoint E with two general duty members. At mid-morning (10-11 a.m.) he received information that trees had been felled on the 1000 Road. He went to area and saw two trees laying on road. Then turned around and returned to report this. On return to Checkpoint 3, he spoke to Section NCO, Staff Sgt. Porter, to discuss ways of clearing the felled trees on the road because members south of logs couldn't use road. They decided that Forestry workers would be used. Workers arrived at 2 p.m. LC told workers that they would go to area and clear the trees. If there were any problems, workers would take instructions from LC to clear area. Molendyk and Kohut were in one vehicle, Barry Morrison and dog in own vehicle, and workers in theirs. He wore standard blue ERT combat gear including "Beast" armour. LC wore Sig Saur pistol and HK MP5 9mm sub-machine gun. Molendyk had pistol and M-16. Kohut had M-16 and pistol. Morrison had pistol.
A quarter kilometre from trees, he stopped vehicles and told Forestry workers to wait there. Molendyk and Kohut took up positions on high side of area in bush line. LC and Morrison checked trees with dog and when they cleared area, LC went back and got forestry workers. On small aerial map, LC points to general area where trees were fallen. Says that from second tree, he could see lakeshore intersection. When workers were removing trees, Molendyk and Kohut maintained observation of surrounding area. Morrison was with dog on camp side of road. LC stayed with workers.
Shortly after workers had cleared second tree with winch, Morrison was yelling at him. LC looked up and saw tan yellow dog running along bluff. LC spoke to Morrison and then saw person running through bush parallel to roadway away from the camp. Dog was 30 feet away from person. "We were trying to shoo the yellow dog away." Dog was on camp side of road. LC told Morrison to take his dog to road and said they were going to leave the area. LC told Molendyk and workers they were going to leave. LC and Molendyk stayed with vehicle and told Morrison and Kohut to take second Suburban.
Forestry vehicle was between two trees when LC got there to tell them to leave. Vehicle had to jockey back and forth three or four times to turn around. Kohut and Morrison had to do the same. As soon as workers were going forward to leave, LC and Molendyk got in - LC was driving. He then heard shots being fired in the distance from camp side of road. Not very close nearby, but nearby. Decided not to turn around, but back up. Sounded like semi-auto fire being squeezed off very quickly. LC and Molendyk were out of vehicle when they first heard shots. He got "small" and used mirrors to back up. Shots got louder as they backed up. Then heard glass breaking and pinging. He then told Molendyk to begin firing. LC then began firing out open window in front of Molendyk because it sounded like fire was coming from east side. Broken glass he heard was from passenger side rear door. Glass on other side of back door then shattered and that was when he began firing too.
He heard more than one firearm. First shots were rapid fire. Others were single booms like a shotgun or large calibre weapon. Figures about three or four different shots heard before they fired back. Partner told him he was hit. LC asked if he was okay and Molendyk said yes. Then LC felt impact on back and told Molendyk that he was hit. Molendyk looked at his back and told him he was okay.
They drove backwards as fast as he could for about a kilometre. Figures vehicle was hit a dozen times before they returned fire. As he drove, he knew that he had a flat tire, but didn't know which one. He radioed to command centre that they had taken fire and that they were hit, but that they were okay. They drove up and met Morrison and Kohut. LC told them to continue up to checkpoint. They continued up road and met with Forestry workers. LC checked out workers and workers checked out cops. All were okay and then LC checked vehicle. He observed flat tires, shattered glass and the gas tank which was leaking. He decided it was too dangerous to keep driving. He removed shotgun, tools and equipment bags and put them into another Suburban. Says Suburban they were in was unmarked grey, with normal equipment inside including silent partner which makes it possible to transport prisoners. LC got into Morrison's dog wagon, Molendyk got into Kohut's truck, and Forestry workers went ahead of them. Just short of Checkpoint 3, Emergency ambulance attendants checked them out. At 100 Mile House, he also was checked at the hospital where photos were taken and his bulletproof vest and weapon was seized by Cst. Leslie. Says the bruise he received at its biggest was as big as a ten pin bowling ball. In photo album, he IDs self and photos of his bruise. Photo 1 is of his front and photo 3 is of his back. He says the marking in photo 67 was taken a few days after incident and #3 was taken right after incident. Says afterwards, bruise increased. He IDs Molendyk in a photo. In photos 9-12, he identifies Suburban he was in at location they parked it at. He identifies other photos of the Suburban windows and doors with holes and shattered glass. Shredded tires.
AB/ (GW is asking MA's articling student if she knows how to milk a cow - he milks his every day. She says no and he wonders what kind of law students are being taught these days. She explains that she does know how to milk a goat, which appeases GW somewhat.) LB - asks LC to remove bulletproof vest from exhibit bag. He recognizes it as his. He says that the tear on the radio pouch is consistent with the bruise on his back. Says that he wore a toque that day. When asked what he was wearing on his lower part of his body, he says "nothing...just my pants."
After Sept. 17, he was at the Gustafsen Lake site patrolling the camp area perimeter, keeping it clear. HR - He points out that LC had said that the "Beast" protects vital organs and then was asked what he wore above that to which he responded a toque. "Don't you consider the head a vital organ?" Some snickers in the courtroom.
LC says there was no particular reason he chose an unmarked vehicle - it was that which was made available to him. Says that all the vehicles involved that day did not have police insignia. When asked if this was a policy, he responds "Those were just the vehicles we were assigned." Says dog vehicle is traditionally not marked. Ministry of Forests vehicle was marked. He was advised through Command Post that trees had been felled. He explains that the ERT members near there didn't have equipment to remove trees. When he left checkpoint, there were still other general duty personnel there commanded by Cpl. Harrison. Saw dog when Morrison hollered at him just as second tree was cleared. He reiterates that Morrison and dog were not roving around - they were stationary on bank above area where trees were being cleared.
He had been told by Morrison that to the best of his understanding of his dog, there were no people in the area at the time. He describes tan and white dog being sort of like a Lab and German shepherd.
He then saw "what appeared to be a person" running through the bush. He says that it "appeared to be a person" because the area was thick bush and the view was obstructed. HR wonders if the description of the person could be revised now to be a person or not. He says he believes it was a person. When he went up to hill side, he was close enough to dog to touch him. Then Cst. Kohut came running down the road - he said he had seen a person standing on the road yelling. LC figures 10, 15 or 20 shots were fired. LC won't look at HR's eyes and almost looks ready to cry. Says he had an HK MP5 9mm sub-machine gun with a 30 round magazine. Says their weapon is only "pinned" to fire at semi-autofire. He thinks he fired nine rounds. He figured that out by counting the remaining bullets in the magazine. Molendyk carried Colt M-16, but isn't sure how many rounds he fired. Says other officers were armed, but doesn't believe they fired any shots at all because they advised him later of that. LC didn't see anyone firing at him and doesn't believe anyone else saw anyone either. Says that at least more than one type of weapon was firing judging by sound. Figures about four or five persons were firing. Says bursts of fire could have come from semi-auto weapon fired quickly. There was another rapid fire sound from a heavier calibre as well as single shots from a shotgun or large calibre weapon.
Initially, he heard fire coming from rear on the encampment side of the road. Then he felt fire was also coming from the other side of the road. He says he fired in front of Molendyk while backing up as fast as he could. He was firing single shots. Then he began firing out the left side of the vehicle concluding that they were taking fire from both sides. Flat tire was right tire. Molendyk said he took a round and that was the only way he knew something had happened.
Tassell took his statement later. He knew of mark on vest when he was checked out in ambulance. This is how he was able to relay information to investigator. There is a reference in his statement to "KKK". He doesn't know what that referred to - it might have been a sound he made when the statement was made like "quack quack quack".
Estimates that 12-15 rounds hit the vehicle by looking at it. His own memory is of 12 to 15 hits on the vehicle. Guesses total rounds fired was upwards of 50 rounds. "My estimate might be low. I don't believe it is high." "It was very exciting, tense time. There was a lot of adrenalin flowing, I can tell you." Doesn't say that the 50 rounds were fired at him. Just the total fired. This doesn't include what they fired. He believes that all of the officers made statements, but he never read theirs. He has discussed the incident. That night in Kamloops, they had a "critical incident briefing" where they relayed incident to Dr. Carmichael, an RCMP doctor who conducted a critical incident debriefing session. This is for people who have been in stressful situations. The people could vent their frustrations and as a psychologist he helped prepare the members for expected physical results. "It allowed us to realize after a few days that we're okay." HR suggests this sounds more like trauma counselling than a debriefing. LC maintains that it was a debriefing. HR wonders if he had ever been in a debriefing where a psychologist was used. LC says yes and describes an incident where the Surrey ERT shot a suspect and arrested them. Following this, they had a similar debriefing.
ST - Agrees that Prince George ERT was to supplement members at checkpoints manned by general duty officers. He had seen map of different checkpoints following his second time out there, but isn't sure of exact date because this map was updated all the time. Checkpoints 1, 2 and 3 were used during the early stages of the standoff. He had been to all checkpoints. Says shooting episode happened around 3:00 p.m. Agrees that all vehicles were equipped with police radios. Says there were three repeater channels available: one for communications to Williams Lake, one to 100 Mile House and one to Kamloops. During the incident, he's not sure of who he contacted because as they drove, they hit various dead spots, making only some of the radios available.
ST wonders what the "hanging tree" referred to on the radio logs. Says he thought it was near Checkpoint 3 which looked like a hanging tree in a Western. Checkpoint 3 was past camp, 2 km beyond lakeshore intersection. When he visited Checkpoint 3 on Saturday, it was in a flat area near a cattle grate. The next day, he understands it was moved to higher ground.
ST notes that in radio reports, there was a comment that "we're all freaking out here." LC doesn't think it's fair that that radio transmission be put to him because he doesn't know what ST's describing. Agrees that he wasn't calm, cool and collected. Figures they were taking rounds for 45-55 seconds. J doesn't know what "freaking out" means. J says kids use that phrase, but he doesn't know what it means. LC agrees that his heart was beating the most it has ever in his life and would never want to return to that scene ever again.
* Day 34: Monday, September 9 * Day 37: Thursday, September 12 * Day 35: Tuesday, September 10 * Day 38: Friday, September 13 * Day 36: Wednesday, September 11