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Subject: TRANSCRIPT - 6/16/95 - 160k
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LOS ANGELES, CALIFORNIA; FRIDAY, JUNE 16, 1995
9:06 A.M.
DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE
APPEARANCES:
(APPEARANCES AS HERETOFORE NOTED,
MAYA HAMBURGER, ALSO APPEARING
ON BEHALF OF MARGUERITE THOMAS.)
(JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.) (CHRISTINE
M. OLSON, CSR NO. 2378, OFFICIAL REPORTER.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, OUT OF THE
PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON
MATTER.
THE DEFENDANT IS AGAIN PRESENT BEFORE THE COURT WITH
COUNSEL, MR. COCHRAN, MR. BAILEY, MR. THOMPSON.
AND WE HAVE MISS HAMBURGER HERE THIS MORNING FOR THE
WITNESS.
THE PEOPLE ARE REPRESENTED BY MISS CLARK, MR. DARDEN
AND MR. GORDON.
ALL RIGHT.
GOOD MORNING, MISS HAMBURGER. HOW ARE YOU TODAY?
MS. HAMBURGER: GOOD MORNING, YOUR HONOR.
MAYA HAMBURGER REPRESENTING MARGUERITE THOMAS. MRS.
THOMAS WAS SCHEDULED FOR TODAY, YOUR HONOR, AND MR. DARDEN AND I
AGREED TO POSTPONE HER APPEARANCE UNTIL JULY 12TH, WITH THE
COURT'S PERMISSION.
THE COURT: ALL RIGHT.
THEN THE PREVIOUSLY ISSUED BODY ATTACHMENT WILL
REMAIN ISSUED AND HELD UNTIL WEDNESDAY, JULY 12, 9:00 A.M.
THANK YOU, COUNSEL.
MS. HAMBURGER: THANK YOU, YOUR HONOR.
THE COURT: ALL RIGHT.
MR. THOMPSON, DO YOU HAVE A MATTER?
MR. THOMPSON: YES, YOUR HONOR.
THE COURT: WHAT IS THAT?
MR. THOMPSON: GOOD MORNING.
WE NEED TO BRIEFLY REVISIT THE ISSUE OF THE
STATISTICS TO BE PRESENTED IN CONNECTION WITH THE DNA MIXTURES,
AND EARLIER THIS WEEK THE COURT DIRECTED THE PROSECUTION TO LET
US KNOW WHAT THEIR INTENTIONS WERE WITH REGARD TO THESE
STATISTICS AND PARTICULARLY WHETHER THEY WERE INTENDING TO
PRESENT LIKELIHOOD RATIO STATISTICS WHICH ARE A NOVEL FORM OF
STATISTICAL PRESENTATION ON THIS MATTER.
YESTERDAY -- LATE YESTERDAY MR. CLARKE LET US KNOW
THAT THE PROSECUTION DOES INDEED INTEND TO PRESENT LIKELIHOOD
RATIO STATISTICS, THAT THEY ARE INTENDING TO PRESENT THEM NEXT
TUESDAY THROUGH THEIR WITNESS, DR. BRUCE WEIR, AND THAT THE
DEFENSE WILL NOT BE GIVEN A FINAL COPY OF DR. BRUCE WEIR'S REPORT
UNTIL LATE NEXT MONDAY.
THIS REVELATION RAISES THREE ISSUES THAT I WOULD LIKE
TO RAISE AND DISCUSS WITH THE COURT AT THIS -- AT THIS POINT.
THE FIRST ISSUE IS WHETHER THE PROSECUTION SHOULD BE
ALLOWED TO PRESENT NOVEL UNPRECEDENTED FORM OF STATISTICAL
EVIDENCE ON MIXTURES AT THIS JUNCTURE IN THE CASE, GIVEN THE
POSTURE OF THE EVIDENCE AND GIVEN THE COURT'S PREVIOUS RULINGS ON
THIS SUBJECT.
THE SECOND ISSUE IS THE NEED FOR A 402 HEARING IN THE
EVENT THAT THE COURT ENTERTAINS LETTING THE PROSECUTION ESTABLISH
THE ADMISSIBILITY OF THIS NEW KIND OF STATISTICAL EVIDENCE.
WE FEEL VERY STRONGLY THAT A 402 HEARING IS REQUIRED
AND WE NEED TO DISCUSS BRIEFLY THE SCOPE AND PARAMETERS OF SUCH A
HEARING.
THE THIRD ISSUE IS THE NEED BY THE DEFENSE FOR MORE
TIME.
THE FACT THAT WE ARE GETTING THE FINAL REPORT THE
NIGHT -- ESSENTIALLY THE NIGHT BEFORE THE PROSECUTION INTENDS TO
PRESENT THIS NEW EVIDENCE JUST SIMPLY DOES NOT GIVE US ENOUGH
TIME TO PREPARE.
WE HAVE RECEIVED A PRELIMINARY REPORT FROM DR. WEIR,
BUT IT DOES NOT INCLUDE DATA OR CALCULATIONS; IT MAKES CITATIONS.
IT SAYS THAT IT IS A CALCULATIONAL APPROACH BASED ON SCIENTIFIC
ARTICLES WHICH ARE NOT CITED. THEY DON'T GIVE US THE CITATIONS
TO THE ARTICLE. WE HAVE BEEN UNABLE TO FIND THEM.
AND WE WILL NEED -- REGARDLESS OF WHETHER HAVE WE
HAVE A 402 HEARING OR NOT, WE WILL NEED ADDITIONAL TIME TO
PREPARE AND WE WOULD LIKE A WEEK.
AND SO THOSE ARE THE ISSUES. I CAN TAKE THEM IN ANY
ORDER THAT YOU PLEASE.
THE COURT: DO YOU NEED TO SAY MORE ABOUT THEM?
MR. THOMPSON: WELL, I AM PREPARED NOW TO GIVE YOU AN
ARGUMENT ON THE FIRST POINT AS TO WHY WE FEEL THAT THE
PROSECUTION SHOULD SIMPLY BE PRECLUDED FROM PRESENTING THIS KIND
OF EVIDENCE.
WE THINK THE -- WE HAVE NO OBJECTION, YOUR HONOR, TO
THE PRESENTATION OF AGGREGATE STATISTICS IN THE FORM RECOMMENDED
BY THE NATIONAL RESEARCH COUNCIL, WHICH WE HAVE DISCUSSED EARLIER
IN THIS CASE.
IT IS A VERY SIMPLE FORM OF STATISTICAL CALCULATIONS
WHICH SIMPLY ADDS UP THE FREQUENCY OF ALL THE GENOTYPES THAT
WOULD MATCH WITH THE MIXTURE. WE HAVE NO OBJECTIONS TO AT ALL.
WE THINK IT IS SIMPLE AND EASY TO UNDERSTAND.
WE HAVE A SERIES OF VERY STRONG OBJECTIONS WHICH WE
STATED IN OUR PAPERS AND IN PREVIOUS ARGUMENTS.
BUT BASICALLY OUR POSITION IS THAT THE EFFORT TO
PRESENT A NOVEL FORM OF STATISTICAL ANALYSIS ON THE MIXTURES AT
THIS POINT SHOULD BE PRECLUDED IN LIGHT OF THE COURT'S PREVIOUS
RULINGS AND THE POSTURE OF THE EVIDENCE IN THIS CASE.
WHEN THE COURT RULED IN MAY THAT THE PROSECUTION MUST
PRESENT STATISTICS ON THESE MIXTURES, I THINK EVERYBODY
CONTEMPLATED THAT THEY WOULD BE FREQUENCY STATISTICS WHICH WERE
THE SAME SORTS OF STATISTICS PRESENT ON ALL THE OTHER DNA
EVIDENCE.
THE COURT: WELL, MR. THOMPSON, LET ME PERHAPS GIVE YOU
INSIGHT INTO THE COURT'S THINKING ON THIS.
AND ARE YOU AWARE OF ANY APPELLATE CASE THAT
ADDRESSES THE ADMISSIBILITY OF LIKELIHOOD RATIOS IN A CRIMINAL
PROSECUTION CASE ANYWHERE IN THE UNITED STATES?
MR. THOMPSON: NONE AT ALL.
THE COURT: THE ONLY THREE LIKELIHOOD RATIO CASES, REPORTED
CASES NATIONWIDE, DEAL WITH LIKELIHOOD RATIOS IN PATERNITY CASES,
WHICH IS OBVIOUSLY NOT THE SITUATION WE ARE DEALING WITH HERE.
MR. THOMPSON: I AGREE COMPLETELY.
THE COURT: MIXTURES, ET CETERA, ET CETERA.
MR. THOMPSON: YES. IF I UNDERSTAND YOU CORRECTLY, YOU ARE
SAYING YOU VIEW THIS AS AN UNPRECEDENTED MATTER. WE DO AS WELL.
THE COURT: I THINK IT IS FROM BEYOND NOVEL TO BEING
UNIQUE.
MR. THOMPSON: YES.
THE COURT: ALL RIGHT.
MR. THOMPSON: ALL RIGHT. SO IF I --
THE COURT: AND I MADE A RULING BACK IN JUNE THAT I THINK
WAS PRETTY CLEAR.
MR. THOMPSON: ALL RIGHT.
SO IT SOUNDS LIKE YOUR THINKING COINCIDES WITH OURS,
THAT THE PROSECUTION SHOULD SIMPLY BE PRECLUDED FROM PRESENTING
STATISTICS IN THE LIKELIHOOD RATIO FORM AT THIS JUNCTURE.
THE COURT: WELL, I THINK AT THE VERY MINIMUM, IF THEY
INSIST ON PROCEEDING WITH THAT, I THINK WE NEED A 402 HEARING OUT
OF THE PRESENCE OF THE JURY.
MR. THOMPSON: ALL RIGHT.
WELL, LET'S PROCEED TO THAT. IN THE EVENT WE HAVE
SUCH A HEARING, THE DEFENSE WOULD INTEND TO CALL ONE AND POSSIBLY
TWO WITNESSES IN ORDER TO EXPLAIN WHY WE FEEL STATISTICS
PRESENTED IN THAT FORM ARE INAPPROPRIATE AS A SCIENTIFIC AND
STATISTICAL MATTER ON THE ONE HAND, AND ON THE OTHER HAND, WHY
THIS FORM OF STATISTICAL PRESENTATION IS LIKELY TO BE GROSSLY
MISLEADING TO THE JURY.
I ESTIMATE WE WOULD NEED APPROXIMATELY TWO HOURS OF
EXPERT TESTIMONY TO ESTABLISH THOSE POINTS.
THE COURT: ALL RIGHT.
MR. THOMPSON: BUT WE -- IN ORDER TO PREPARE FOR SUCH A
HEARING WE NEED MORE TIME THAN OVERNIGHT AFTER GETTING THE FINAL
REPORT WHICH SHOWS WHAT THE PROSECUTION IS GOING TO PRESENT, SO
WE WOULD LIKE TO PUT IT OFF FOR A WEEK, IF POSSIBLE.
THE COURT: ALL RIGHT.
THANK YOU, MR. THOMPSON.
MISS CLARK, GOOD MORNING.
MS. CLARK: THANK YOU, YOUR HONOR.
WE FIND OURSELVES IN THIS UNIQUE POSTURE BECAUSE THE
DEFENSE HAS INSISTED ON DOING SOMETHING THAT IS SCIENTIFICALLY
UNSOUND, AND THAT IS TO APPLY FREQUENCY RATIOS TO A MIXTURE.
THAT IS NOT DONE IN SCIENTIFIC CIRCLES. IT IS NOT AN
ACCEPTED SCIENTIFIC PRACTICE TO ASSIGN NUMBERS TO BLOODSTAIN
MIXTURES.
THE COURT: ISN'T THAT WHAT THE NRC REPORT RECOMMENDS AT
PAGE 69?
MS. CLARK: NO, NOT AS TO MIXTURES IT DOESN'T.
YES, IT SAYS THAT WE SHOULD ASSIGN FREQUENCIES TO
TYPE RESULTS, BUT I DON'T BELIEVE THERE IS ANY PLACE I HAVE EVER
SEEN IN THE NRC REPORT WHERE IT SPECIFICALLY SAYS THAT MIXTURES
SHOULD BE REPORTED WITH NUMBERS.
AND THE PROBLEM IS, IF YOU WANT TO DO SOMETHING
SCIENTIFICALLY UNSOUND AS TO PUT A NUMBER TO A MIXTURE STAIN,
THEN THE MOST SCIENTIFICALLY ACCEPTABLE OR ACCURATE METHOD OF
DOING SO IS TO ASSIGN IT A LIKELIHOOD RATIO.
WE UNDERSTAND THE COURT'S CONCERN, BECAUSE IT IS
SOMETHING UNUSUAL. THE CIRCUMSTANCES ARE THEMSELVES.
THE COURT: YOU AGREE IT IS UNIQUE?
MS. CLARK: I DO, ABSOLUTELY.
THE COURT: ALL RIGHT.
MS. CLARK: THAT IS WHY WE ARE MORE THAN HAPPY TO PRESENT
DR. WEIR'S TESTIMONY TO THE COURT. I THINK IT IS ENTIRELY
APPROPRIATE. THERE IS NO QUESTION ABOUT THAT.
THE COURT: WELL, COUNSEL, WHAT I INDICATED TO MR. THOMPSON
IS THAT IF YOU FEEL THAT THAT IS THE WAY IT NEEDS TO BE
PRESENTED, THEN I THINK WHAT WE ARE LOOKING AT IS A 402 HEARING.
MS. CLARK: AND I -- THE PEOPLE AREN'T ARGUING WITH THAT.
THE QUESTION IS THE TIMING, YOUR HONOR.
THE COURT: OKAY.
WELL, WHEN WOULD YOUR EXPERT BE AVAILABLE? WHEN IS
DR. WEIR AVAILABLE?
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
MS. CLARK: WEDNESDAY. WE HAD ANTICIPATED PRESENTING HIS
TESTIMONY ON WEDNESDAY AND SO HE HAS ARRANGED TO BE HERE ON THAT
DATE.
AND I -- WE ALL DON'T WANT TO TAKE THE JURY'S TIME
UP.
THE COURT: I KNOW, BUT WE MAY HAVE TO, BUT SEEING AS HOW
WE AVOIDED A EIGHT-WEEK -- SIX TO EIGHT-WEEK KELLY-FRYE HEARING,
YOU KNOW, MAYBE A DAY OR TWO OUT, WE CAN TAKE THEM TO DISNEYLAND
OR SOMETHING. I'M SURE WE CAN FIND SOMETHING FOR THEM TO DO.
MS. CLARK: YEAH.
THE COURT: ALL RIGHT.
BUT MY OTHER CONCERN, THOUGH, IS I THINK THAT SINCE
THIS IS A NOVEL ISSUE, BECAUSE THE COURT'S RESEARCH INDICATES
THAT LIKELIHOOD RATIOS HAVE NOT BEEN PRESENTED IN ANY CRIMINAL
PROSECUTION THAT I HAVE BEEN ABLE TO FIND, AT LEAST AT THE
APPELLATE LEVEL.
THERE MAY BE SOME ON A TRIAL COURT LEVEL, BUT I'M NOT
AWARE OF ANY AT THIS POINT, BUT I AM WILLING TO LOOK AND SEE.
MS. CLARK: OKAY. YEAH.
WE WILL PRESENT TO THE COURT EVERYTHING THAT WE
GATHER ON THIS AND I'M SURE DR. WEIR IS AWARE OF WHERE THAT HAS
BEEN PRESENTED BEFORE.
THE COURT: THE ISSUE IS ALSO TIMING BECAUSE I THINK THE
DEFENSE IS ENTITLED TO SEE DR. WEIR'S REPORT AND KNOW WHAT
LITERATURE HE IS REFERRING TO AND THEN HAVE REASONABLE TIME TO
PREPARE.
MS. CLARK: OF COURSE.
THE COURT: SO THAT IS SOMETHING THAT -- I WOULD ASK THAT
MR. HARMON AND MR. THOMPSON, WHILE WE ARE CONTINUING WITH THE
GLOVE EVIDENCE, CONFER AS TO AVAILABILITY OF THEIR WITNESSES
KNOWING THAT IF THE PROSECUTION WANTS TO PRESENT LIKELIHOOD
RATIOS WE WILL PROBABLY NEED A 402 HEARING.
MS. CLARK: OKAY. UMM --
THE COURT: AND IT SOUNDS TO ME LIKE HALF A DAY TO A DAY
BECAUSE WE ARE TALKING ABOUT STATISTICAL METHODOLOGY IS WHAT WE
ARE TALKING ABOUT.
MS. CLARK: RIGHT. THAT DOES SOUND RIGHT, YOUR HONOR.
THE COURT: OKAY.
MS. CLARK: THEN QUESTION I HAVE IS IF WE TURN OVER THE
REPORT, AND I UNDERSTAND WE CAN DO SO MONDAY AFTERNOON, IF WE
PRESENT THE TESTIMONY ON WEDNESDAY FOR THE 402, WOULDN'T THAT BE
SUFFICIENT TIME FOR THE DEFENSE TO READ THE REPORTS AND BE READY
TO CROSS-EXAMINE DR. WEIR AND PRESENT THEIR TESTIMONY?
THE COURT: COULD BE.
MS. CLARK: OKAY. OKAY. I WILL JUST WAIT AND SEE.
THE COURT: ALL RIGHT.
WHY DON'T -- LET ME HAVE MR. THOMPSON AND MR. HARMON
CONSULT SINCE THEY ARE BOTH HERE TODAY AND JUST FIND OUT
SCHEDULES AND WHO IS AVAILABLE WHAT DAYS AND THEN WE WILL TAKE
>FROM IT THERE.
MS. CLARK: OKAY.
THE COURT: ALL RIGHT.
NEXT ISSUE IS THE DEFENSE MOTION FOR AN EVIDENTIARY
HEARING, AND MISS CLARK, YOU HAD LEFT COURT YESTERDAY, BUT MR.
DERSHOWITZ WAS HERE, AND GIVEN THE CONFLICT THE SCHEDULES, IT WAS
HIS PROPOSAL THAT THE DEFENSE BE ALLOWED TO MAKE THEIR ARGUMENT,
WHICH HE ESTIMATED FIFTEEN MINUTES OR SO, TODAY, ALLOW YOU TO
HEAR THE ARGUMENT AND THEN RESPOND NEXT WEEK, AS I UNDERSTAND AS
YOU ARE REQUESTING.
MS. CLARK: AT WHAT TIME WOULD THEY PROPOSE TO DO THAT?
THE COURT: SOMETIME TODAY, SOMETIME THIS MORNING.
MS. CLARK: THIS MORNING?
THE COURT: YES.
MS. CLARK: OH.
THE COURT: THAT WAS DISCUSSED WITH MR. DERSHOWITZ AND MR.
DARDEN YESTERDAY AFTERNOON IN CHAMBERS AT THE CONCLUSION OF THE
COURT DAY.
MS. CLARK: WELL, IF THEY -- IF WE RECESS IN TIME, I CAN
RESPOND TODAY, TOO.
WE WERE GOING TO PRESENT A RESPONSIVE DECLARATION. I
DON'T KNOW IF THAT IS, UMM --
THE COURT: WELL, LET ME ASK MR. DARDEN.
MR. DARDEN, HOW MANY MORE WITNESSES DO YOU HAVE THIS
MORNING?
MR. DARDEN: WELL, WE WOULD LIKE TO RECALL MR. RUBIN BACK
TO THE STAND FOR A SHORT WHILE.
MR. ACOSTA IS ENROUTE TO TESTIFY. WE WOULD LIKE TO
CALL MISS REDFERN OR MR. AGUILERA SOMETIME THIS MORNING, TIME
PERMITTING.
THE COURT: ALL RIGHT.
SO YOU HAVE ENOUGH WITNESSES TO FILL UP THE MORNING?
MR. DARDEN: (NO AUDIBLE RESPONSE.)
THE COURT: WELL, THEN I THINK WE OUGHT TO HEAR THE
ARGUMENT NOW AND PROCEED WITH THE WITNESSES AFTER WE HEAR THE
ARGUMENT ON THIS MOTION.
MS. CLARK: OKAY.
THE COURT: ALL RIGHT.
MR. DERSHOWITZ: THANK YOU, YOUR HONOR. I WILL TRY TO KEEP
THE ARGUMENT BRIEF IN LIGHT OF THE --
THE COURT: I THINK MR. BAILEY WANTED TO SAY SOMETHING TO
YOU.
MR. DERSHOWITZ: ALL RIGHT.
MR. BAILEY: IF IT PLEASE THE COURT, A LITTLE BEFORE TEN
O'CLOCK CENTRAL DAYLIGHT TIME THIS MORNING OFFICER RODNEY TILLEY
OF THE PANAMA CITY POLICE DEPARTMENT APPROACHED MARIANNE
BARBIERI, THE MOTHER OF PAULA BARBIERI WHOSE NAME HAS SURFACED IN
THIS CASE, AND AS A MESSENGER, ALLEGEDLY FOR DETECTIVE TOM LANGE,
SAID, "NOW THAT THE RELATIONSHIP BETWEEN MR. SIMPSON AND YOUR
DAUGHTER HAS CHANGED, WOULD YOU FIND OUT IF SHE WOULD LIKE TO
TALK TO US?"
MISS BARBIERI HAS HIRED A LAWYER, MADE IT KNOWN TO
THE PROSECUTION THAT SHE CAN BE REACHED THROUGH HER LAWYER, AND
ONLY THAT WAY, AND WE WOULD LIKE TO MAKE THIS A MATTER OF RECORD,
BECAUSE IF IT HAPPENS AGAIN, WE WILL ASK FOR SANCTIONS.
I AM IN TOUCH WITH HER ON A REGULAR BASIS. THERE IS
NO CHANGE IN THE RELATIONSHIP. IT IS EVERY BIT AS STRONG AS IT
WAS ON JUNE 12, 1994, AND WE WOULD ASK THAT SHE NOT BE
SURREPTITIOUSLY APPROACHED BY THE POLICE.
THANK YOU.
THE COURT: THANK YOU, COUNSEL.
MR. DARDEN: YOUR HONOR, MAY I INQUIRE OF
MR. BAILEY, IS MRS. GERCHAS A WITNESS ON YOUR WITNESS LIST?
I'M SORRY, MRS. BARBIERI, IS SHE A WITNESS FOR THE
DEFENSE?
MS. CLARK: I HAVE NEVER HEARD THAT NAME INCLUDED AS A
WITNESS FOR THE DEFENSE.
MR. BAILEY: SHE HAS NOT BEEN INCLUDED SO FAR.
MR. DARDEN: OKAY.
AND WE ARE FAMILIAR WITH FLORIDA STATE LAW AS IT
RELATES TO WITNESSES AND DEPOSITIONS IN CRIMINAL CASES AND WE
WILL ACT ACCORDINGLY.
THE COURT: ALL RIGHT.
BUT THE CONTACT WITH HER IS TO BE THROUGH HER COUNSEL
IF SHE IS REPRESENTED BY COUNSEL.
ALL RIGHT. THAT GOES WITHOUT SAYING.
ALL RIGHT. MR. DERSHOWITZ.
MR. DERSHOWITZ: GOOD MORNING.
THANK YOU VERY MUCH, YOUR HONOR, FOR ACCOMMODATING MY
SCHEDULE. I WILL TRIAL TO KEEP IT VERY BRIEF KNOWING THAT THE
JURY IS OUT THIS MORNING.
WE ARE VERY CONCERNED ABOUT THE POSSIBLE SPECTRE OF A
MISTRIAL HANGING OVER THIS VERY LENGTHY TRIAL.
THE DEFENDANT, O.J. SIMPSON, HAS THE RIGHT TO HAVE
HIS CASE DECIDED BY THIS JURY AND NOT SOME SUBSEQUENT JURY.
YESTERDAY'S INCIDENTS AND EVENTS MAKE IT AS CLEAR AS ANY EVENTS
COULD EVER MAKE IT WHY THE PROSECUTION WOULD BENEFIT IF THEY HAD
A SECOND OPPORTUNITY TO TRY THIS CASE.
IF THE PROSECUTION HAD A SECOND OPPORTUNITY, IF THEY
COULD DO WHAT WE WHEN WERE KIDS WE CALLED A DO-OVER, OBVIOUSLY
THEY WOULD TRY THIS CASE RATHER DIFFERENTLY.
I DOUBT THAT WE WOULD SEE O.J. SIMPSON BEING ASKED TO
TRY ON HIS GLOVES. I DOUBT THAT WE WOULD SEE DENNIS FUNG BEING
CALLED AS A WITNESS.
THAT IS PRECISELY WHY THE DOUBLE JEOPARDY CLAUSE,
BOTH UNDER THE UNITED STATES CONSTITUTION AND IN ITS MORE
EXPANSIVE VIEW, UNDER CALIFORNIA LAW, GIVES THE PROSECUTION
SIMPLY ONE SHOT, NOT ANOTHER CHANCE.
AND WE ARE VERY CONCERNED, BECAUSE WE ARE DOWN TO TWO
ALTERNATE JURORS, THAT THE PROSECUTION IN ONE RESPECT HAS A NO
LOSE SCENARIO THAT THEY MAY BE ATTEMPTING. NAMELY, THAT THEY
ARE TRYING TO RESHAPE THE JURY TO ITS ADVANTAGE BY STRIKING
JURORS SELECTIVELY AND THEY KNOW THAT THE WORSE CASE SCENARIO IS
THAT THERE WILL BE A MISTRIAL, AND IF THERE IS A MISTRIAL THEY
GET TO TRY THE CASE A SECOND TIME.
THAT IS PRECISELY WHAT THE DOUBLE JEOPARDY CLAUSE
PREVENTS THE STATE FROM DOING.
THEREFORE, WE, IN AN EFFORT TO PREVENT THIS FROM
OCCURRING, MAKE TWO MOTIONS:
ONE, THAT NO FURTHER JURORS BE STRUCK FOR ANY REASON
WHATEVER, AND THAT AS PART OF THAT MOTION, AT THIS POINT THIS
TIME, AS PART OF THAT MOTION, THAT ONCE JURORS ARE DOWN TO A
NUMBER LIKE 14, 13, 12, IN THE CONTEXT OF A CASE LIKE THIS, THAT
THE STANDARD OF REMOVING JURORS IS NO LONGER GOOD CAUSE UNDER
CALIFORNIA LAW.
IT RISES TO MANIFEST NECESSITY. THAT IS, THE SUPREME
COURT OF CALIFORNIA, IN A SERIES OF CASES, DAVIS, LARIOS, 1970
GENRE ERA CASES, MADE IT VERY, VERY CLEAR THAT THERE IS A
DIFFERENCE BETWEEN THE CRITERIA FOR STRIKING A SINGLE JUROR AND
STRIKING A JURY, AND THAT WHEN YOU GET CLOSE TO THE LINE THAT BY
STRIKING A SINGLE JUROR YOU MAY BE REQUIRING THAT A NEW JURY COME
IN, THAT THE STANDARD IS ELEVATED, THE STANDARD BECOMES NOT GOOD
CAUSE, BUT MANIFEST NECESSITY.
INDEED SEVERAL CASES IN THE CALIFORNIA SUPREME COURT
MAKE IT CLEAR THAT THERE ARE REALLY THREE VERY DIFFERENT
STANDARDS.
ONE STANDARD BEFORE JEOPARDY ATTACHES FOR RECUSING A
JUROR FOR CAUSE, ANOTHER STANDARD WHILE JEOPARDY HAS ALREADY
ATTACHED FOR REMOVING AN INDIVIDUAL JUROR WHEN THERE IS NO
LIKELIHOOD THAT THE REMOVAL OF THAT INDIVIDUAL JUROR MAY RESULT
IN A MISTRIAL, AND A VERY DIFFERENT AND HIGHLY ELEVATED STANDARD
WHEN THE REMOVAL OF A SINGLE JUROR OR A SERIES OF JURORS MAY
RESULT IN A MISTRIAL.
AND WE THINK THAT THIS COURT SHOULD HAVE AND SHOULD
>FROM NOW ON CERTAINLY BE USING A MANIFEST NECESSITY STANDARD
RATHER THAN A GOOD CAUSE STANDARD FOR STRIKING ANY JURORS.
AND WE SUGGEST AND PROPOSE AND MOVE THAT IN THE EVENT
THERE ARE ANY FURTHER JURY PROBLEMS, PARTICULARLY PROBLEMS OF
INDIVIDUAL JUROR DISQUALIFICATION, THAT THE COURT HOLD THOSE IN
ABEYANCE UNTIL SUCH TIME AS THE CASE -- CASE HAS REACHED ITS
FINAL POINT, THE JUDGE HAS INSTRUCTED THE JURY AND THE JURY IS
GOING INTO DELIBERATE.
AT THAT POINT EITHER SIDE COULD THEN MOVE TO HAVE A
JUROR REMOVED FOR GOOD CAUSE AND IF THE ISSUE THEN CERTAINLY
SIMPLY IS THE SUBSTITUTION OF ONE JUROR FOR ANOTHER, RATHER THAN
THE DISMISSAL OF A JURY, THEN THE COURT CAN GO BACK TO A GOOD
CAUSE STANDARD, RATHER THAN THE MANIFEST NECESSITY STANDARD.
SO THAT IS THE PROPHYLACTIC MOTION THAT WE ARE
MAKING, THE PREVENTIVE MOTION THAT WE ARE MAKING TO ASSURE THAT
THIS JURY DECIDES THIS CASE, BECAUSE STATISTICALLY THERE IS
ALWAYS THE POSSIBILITY THAT THERE COULD BE DEATH, THERE COULD BE
INJURY, THERE COULD BE ILLNESS, THERE COULD BE FAMILY PROBLEMS
THAT ARE BEYOND THE CONTROL OF THE COURT.
WHAT'S UNIQUE ABOUT THIS CASE, YOUR HONOR, IS THAT
THE TEN JURORS THAT HAVE BEEN DISQUALIFIED UP TO NOT -- NOT A
SINGLE ONE, WELL POSSIBLY ONE, BUT MORE THAN ONE, HAS BEEN
DISQUALIFIED FOR WHAT WOULD BE THE CONVENTIONAL REASONS LISTED BY
THE CALIFORNIA SUPREME COURT AS CONSTITUTING GOOD CAUSE IN THE
CONTEXT OF MANIFEST NECESSITY.
THEY HAVE NOT BEEN TRADITIONAL CASES OF ILLNESS OR
DEATH OR FAMILY PROBLEMS, MORE IN THE AREA OF JUROR MISCONDUCT
PROBLEMS WHICH WE BELIEVE ARE IN THE AREAS OF LAW, WHICH THE
COURT HAS SAID DISMISSAL OF JURORS ON MISTAKE OF LAW DOES NOT
CONSTITUTE MANIFEST NECESSITY.
SO THAT IS STEP 1 OF OUR MOTION.
AND THE SECOND STEP IS A RATHER MORE DELICATE ONE,
AND THAT IS, YOUR HONOR, WE MOVE THAT IN THE EVENT THIS JURY DOES
NOT REACH A VERDICT, FOR WHATEVER REASON, WHETHER IT BE A HUNG
JURY OR A DISMISSED JURY OR IF IT ACHIEVES A VERDICT OF GUILTY,
WHICH WE HOPE AND PRAY IT WILL NOT, THAT WE ASK NOW FOR A RULING
THAT WE CAN HAVE AN EVIDENTIARY HEARING WHICH WE WOULD LIKE TO
BEGIN PREPARING FOR, AT WHICH WE CAN SUMMON THE VARIOUS PERSONNEL
WHO HAVE BEEN INVOLVED IN THE DISQUALIFICATION AND RECUSAL OF
JURORS.
BECAUSE WE BELIEVE THAT THERE IS A BASIS ON THE
RECORD FOR OUR SUSPICION THAT THE PROSECUTION HAS TARGETED
JURORS, HAS SELECTIVELY INVESTIGATED JURORS IN AN EFFORT TO SHAPE
THE JURY TO ITS LIKING.
AND THAT, TOO, IS NOT PROPER UNDER THE DOUBLE
JEOPARDY AND DUE PROCESS CLAUSES OF THE CONSTITUTION.
AND SO WE WOULD LIKE TO KNOW IN EACH CASE FOR EACH
JUROR THAT WAS REMOVED WHAT THE BASIS FOR THE INVESTIGATION WAS,
WHO COMMENCED THE INVESTIGATION, WHAT THE SOURCES OF THE
INFORMATION WERE.
WE WOULD ALSO LIKE TO KNOW WHETHER THERE WAS
INFORMATION ON THE RECORD ABOUT OTHER JURORS, JURORS WHO THE
PROSECUTION FELT WERE TO THEIR LIKING WHICH WAS NOT BROUGHT TO
THE ATTENTION OF THE COURT, BECAUSE AS WE ARGUED EARLY ON IN
TIME, THE STRUCTURAL PROBLEMS OF THE WAY IN WHICH JURORS ARE
MONITORED IN THIS JURISDICTION CREATE A REAL POTENTIAL FOR
PROSECUTORIAL ABUSE.
WE HAVE NO INVESTIGATIVE RESOURCES. WE DON'T HAVE
ACCESS TO THE SHERIFF'S DEPARTMENT. THE SHERIFF'S DEPARTMENT IS
STATE ACTION, IT IS LAW ENFORCEMENT. WE WORRY VERY MUCH THAT THE
SHERIFF'S DEPARTMENT CAN BE CONSCIOUSLY OR UNCONSCIOUSLY A
CONDUIT TO THE PROSECUTION OF INFORMATION ABOUT JUROR ATTITUDES,
A CONDUIT OF INFORMATION ABOUT POTENTIAL MISCONDUCT WHICH THEN
CAN BE SELECTIVELY INVOKED.
AND IF THERE HAS BEEN ANY SELECTIVE INVOCATION OF
ALLEGATIONS OF MISCONDUCT FAVORABLE TO THE PROSECUTION, WE THINK
WE ARE ENTITLED TO MAKE A RECORD ON THAT AND IF NECESSARY BRING
IT TO THE ATTENTION OF AN APPELLATE COURT.
AS YOUR HONOR IS AWARE, THE ISSUE OF DOUBLE JEOPARDY
IS AN ISSUE THAT CAN BE PRESENTED TO THE APPELLATE COURT ON A
WRIT OF PROHIBITION AND CAN SERVE AS A BARRIER TO A SUBSEQUENT
TRIAL BECAUSE JEOPARDY HAS ATTACHED.
AND AS THE COURTS OF CALIFORNIA HAVE SAID REPEATEDLY,
ONCE JEOPARDY HAS ATTACHED, IF A JURY VERDICT IS NOT REACHED,
THAT IS LEGALLY TANTAMOUNT TO AN ACQUITTAL IN THE ABSENCE OF
CONSENT BY THE DEFENDANT, WHICH IS NOT FORTHCOMING, OR MANIFEST
NECESSITY WHICH WE BELIEVE WOULD NOT EXIST IN THIS CASE IF THERE
WERE A MISTRIAL CAUSED BY JURORS BEING INSUFFICIENT IN NUMBER TO
RENDER A VERDICT IN THIS CASE.
SO YOUR HONOR, WE ASK FOR THOSE TWO REMEDIES. WE
HAVE IN THE PAST ASKED FOR ANOTHER REMEDY, NAMELY, WE BELIEVE AND
WE HAVE BELIEVED FROM THE VERY BEGINNING, THAT THE STRUCTURAL
ISSUE, NAMELY, THE SHERIFF'S DEPARTMENT LAW ENFORCEMENT STATE
ACTION OF A PROSECUTORIAL -- WITH A PROSECUTORIAL BENT, BEING THE
PEOPLE SUPERVISING THE JURY, BEING THE CONDUIT TO YOUR HONOR,
BEING THE CONDUIT TO THE PROSECUTION, RAISES STRUCTURAL PROBLEMS,
AND WE HAVE BELIEVED FROM THE VERY BEGINNING THAT SOCIAL WORKERS,
NEUTRAL OFFICIALS OF THE COURT, NOT LAW ENFORCEMENT PERSONNEL,
SHOULD BE THE CONDUIT, SHOULD BE THE PEOPLE SUPERVISING THE JURY
IN THIS CASE.
WE RENEW THAT REQUEST.
BUT THE PRIMARY REQUEST THAT WE ARE MAKING HERE
TODAY, AND I WILL SIMPLY FINISH WITH THIS, IS THE TWO THAT I HAVE
PREVIOUSLY ALLUDED TO, A RULING THAT THERE BE NO FURTHER
DISQUALIFICATION AT THIS POINT OF TIME OF ANY JURORS WITHOUT A
SHOWING OF MANIFEST NECESSITY, THAT SUCH ISSUES BE PUT OFF UNTIL
THE END OF THE TRIAL.
AND THAT IN THE EVENT THAT THERE IS LESS THAN A
VERDICT OF ACQUITTAL, OTHER THAN A VERDICT OF ACQUITTAL IN THIS
CASE, WE ASK FOR AN EVIDENTIARY HEARING TO BE HELD SO THAT WE CAN
ESTABLISH A RECORD OF JUROR TARGETING, THAT WE CAN ESTABLISH A
RECORD OF HOW THE PROSECUTION MAY HAVE TAKEN ADVANTAGE OF THE
POTENTIAL FOR ABUSE THAT EXISTS IN THIS SYSTEM.
IF THERE ARE NO FURTHER QUESTIONS, YOUR HONOR, I MADE
MY POINT.
THE COURT: THANK YOU.
MISS CLARK.
MS. CLARK: THANK YOU, YOUR HONOR.
OF ALL OF THE MOTIONS MADE BY THE DEFENSE, I FIND
THIS ONE THE MOST OFFENSIVE, GROUNDLESS AND BASELESS.
THIS WAS A MOTION FILED DELIBERATELY FOR INFLAMMATORY
EFFECT. IT HAS NO LAW IN ITS SUPPORT. IT HAS NO FACTS IN ITS
SUPPORT. THIS IS A SCURRILOUS ATTEMPT TO INFLAME THE COMMUNITY,
IF NOT THE VERY JURY ITSELF.
IT MAY BE CONSTITUTIONALLY PROTECTED SPEECH, YOUR
HONOR, BUT CONSTITUTIONALLY PROTECTED DOES NOT MEAN MORAL, DOES
NOT MEAN ETHICAL AND DOES NOT MEAN TRUTHFUL.
AND THE GROUNDLESS, BASELESS, INFLAMMATORY
ALLEGATIONS CONTAINED IN THIS MOTION ARE THE LOWEST TACTICS I
HAVE SEEN YET IN THIS CASE.
THE DEFENSE KNOWS PRECISELY WHY EACH OF THE JURORS
WERE EXCUSED. THEY KNOW PRECISELY WHERE THE INFORMATION CAME
FROM. THEY KNOW THE PROCEDURE THAT HAS BEEN IMPOSED BY THIS
COURT IN TERMS OF JUROR INVESTIGATION.
AND ALL INVESTIGATIONS ARE CONDUCTED BY THIS COURT,
NOT BY THE PROSECUTION AND NOT BY THE DEFENSE.
AND MR. DERSHOWITZ DOES NOT KNOW HOW THE INFORMATION
CAME TO LIGHT ABOUT JUROR 353? WHY? DOESN'T HE TALK TO MR.
COCHRAN? MR. COCHRAN BROUGHT OUT THE ANONYMOUS LETTER SENT TO
HIS OFFICE, THE PHONE CALLS MADE TO HIS OFFICE, BECAUSE THEY WERE
TARGETING JUROR 353 FOR MONTHS.
WE ALL KNOW THIS.
MR. COCHRAN: THERE WAS NO ANONYMOUS LETTER SENT TO MY
OFFICE, YOUR HONOR. THIS IS WRONG.
THE COURT: THERE WAS NO LETTER.
MR. COCHRAN: NO LETTER.
MS. CLARK: MR. COCHRAN SHOWED ME THE PHONE LOGS FROM HIS
OFFICE, YOUR HONOR.
THE COURT: NO, SIR.
MS. CLARK: AND MR. COCHRAN, DON'T BE DISINGENUOUS WITH THE
COURT. IT IS VERY CLEAR THAT THEY WANTED THAT JUROR EXCUSED FOR
QUITE A LONG TIME.
AND FOR MR. DERSHOWITZ TO STAND BEFORE THIS COURT AND
MAKE SUCH ALLEGATIONS THAT THE PROSECUTION IS TARGETING JURORS IS
SIMPLY OFFENSIVE AND UNETHICAL AND UNSUPPORTED IN ANY FACTS.
AND THE DEFENSE POSTURE, THEIR VERY PREMISE IS ABSURD
THAT WE WOULD LIKE TO TRY THIS CASE AGAIN BECAUSE WE WOULD TRY IT
DIFFERENTLY. WE WOULD NOT CALL MR. FUNG.
I WOULD LIKE FOR MR. DERSHOWITZ, A LAW PROFESSOR, TO
EXPLAIN TO US HOW WE COULD PUT ON EVIDENCE WITHOUT PROVING
SOMEONE CRITICAL IN THE CHAIN OF CUSTODY? HOW DO WE PRESENT
EVIDENCE WITHOUT SHOWING THE JURY HOW IT CAME INTO THE POLICE
CUSTODY?
MR. FUNG COLLECTED IT. NOW, HOW DO WE PRESENT THAT
EVIDENCE WITHOUT CALLING HIM?
IF MR. DERSHOWITZ HAS AN IDEA, I WOULD SURE LIKE TO
HEAR IT. I HEARD NO STIPULATION FROM THE DEFENSE CONCERNING
CHAIN OF CUSTODY. I THINK IT IS OUR BURDEN.
THEIR PREMISES IS ABSURD.
BUT I WILL OFFER MR. DERSHOWITZ ONE THING.
I WOULD LIKE TO DIRECT THE COURT TO THE REMARK MADE
BY MR. DERSHOWITZ IN WHICH HE STATED THAT HE THOUGHT WE WOULD TRY
THE CASE DIFFERENTLY, AND I QUOTE, "I DOUBT THAT WE WOULD SEE
O.J. SIMPSON BEING ASKED TO TRY ON HIS GLOVES."
THE PEOPLE SO STIPULATE.
AND IF THAT IS WHAT THE DEFENSE IS OFFERING IN THE
CONTEXT OF THIS MOTION, WE ARE GLAD TO ACCEPT.
NOW, THE PREMISE IS ALREADY RIDICULOUS FROM A LEGAL
POINT OF VIEW. NO FURTHER JURORS BE EXCUSED FOR ANY REASON AT
ALL? IS THAT SO?
IF MR. DERSHOWITZ WERE TO KNOW OF A JUROR PRESENTLY
SEATED WHO SAID HE IS GUILTY AND NOBODY IS GOING TO CONVINCE ME
OTHERWISE, I'VE GOT MY MIND MADE UP, WHERE IS HIS ARGUMENT THEN?
YOU THINK MR. DERSHOWITZ WOULD STAND BEFORE THIS COURT AND SAY
THAT VERY THING? NOT ON YOUR LIFE.
IT IS LEGALLY ABSURD. THERE IS NO LEGAL PRECEDENT
FOR IT.
NOT ONLY THAT, BUT MR. DERSHOWITZ TAKES THE CONCEPT
OF MANIFEST NECESSITY AND STANDS IT ON ITS HEAD.
MANIFEST NECESSITY HAS NEVER BEEN A STANDARD EMPLOYED
IN THE CONTEXT OF JUROR EXCUSALS, YOUR HONOR. MANIFEST NECESSITY
IS USED AS A SHIELD, NOT A SWORD.
MANIFEST NECESSITY PERMITS A RETRIAL WHERE OTHERWISE
JEOPARDY WOULD HAVE ATTACHED; NOT THE REVERSE.
MR. DERSHOWITZ HAS THE LAW STANDING ON ITS HEAD.
AND THE CASE OF ILLINOIS VERSUS SUMMERVILLE, WHICH
DISCUSSED MANIFEST NECESSITY, DISCUSSED IT IN THE CONTEXT OF THE
DEFECTIVE INDICTMENT, AN INDICTMENT SO DEFECTIVE THAT THE CHARGES
COULD NOT BE UNDERSTOOD, THE ELEMENTS COULD NOT BE UNDERSTOOD,
AND SO THE CASE WAS SET ASIDE, ALTHOUGH JEOPARDY HAD ALREADY
ATTACHED, AND MANIFEST NECESSITY WAS INVOKED TO PERMIT THE
RETRIAL WHERE ORDINARILY IT WOULD NOT HAVE BEEN PERMITTED.
THAT IS WHERE MANIFEST NECESSITY BELONGS, NOT IN THE
CONTEXT OF JUROR EXCUSAL.
MR. DERSHOWITZ CANNOT POINT THIS COURT TO ANY LEGAL
AUTHORITY TO JUSTIFY INVOKING SOME NEW STANDARD BECAUSE WE HAVE
SOME SPECIAL DEFENDANT.
THERE IS A STANDARD THAT APPLIES TO EVERYONE,
EVERYONE, ALL DEFENDANTS, AND ALL PROSECUTIONS IN THIS STATE, AND
THAT IS GOOD CAUSE AND THIS IS NOT A DIFFERENT CASE AND THIS IS
NOT SOME SPECIAL CASE.
THIS IS A MURDER TRIAL WHERE THESE JURORS ARE GOING
TO BE HELD TO THE SAME STANDARD THEY ARE IN EVERY OTHER TRIAL.
GOOD CAUSE IS OUR STANDARD AND THAT IS THE STANDARD
WE LIVE BY.
AND WHEN GOOD CAUSE IS SHOWN, AS IT WAS IN EACH AND
EVERY INSTANCE IN THIS CASE, THEN THEY MUST BE EXCUSED.
AND MR. SIMPSON DOES NOT GET SOME HIGHER STANDARD FOR
THE JURORS HE LIKES OR DOESN'T LIKE.
NOW, WITH RESPECT TO THE JURORS THAT WERE EXCUSED, AT
NO TIME HAS THE PROSECUTION MADE ANY EFFORT TO SEEK OUT
INFORMATION AS TO ANY PARTICULAR JUROR.
IN EACH AND EVERY INSTANCE MEMBERS OF THE PUBLIC HAVE
COME FORWARD TO THIS COURT OR TO THE PROSECUTION, AND IN THE
EVENT THAT THEY HAVE COME TO THE PROSECUTION, WE HAVE TURNED IT
OVER TO THE COURT.
MANY OF THE INSTANCES THE INFORMATION CAME DIRECTLY
TO THE COURT AND THEN HAD TO BE INVESTIGATED.
THE COURT FULFILLED ITS OBLIGATION, AS IT IS REQUIRED
TO UNDER THE LAW, AND AS WE ARE VERY WELL AWARE, UNDER BERGNER
AND ITS PROGENY, WHEN ANY INDICATION OF JUROR MISCONDUCT IS
BROUGHT TO THE ATTENTION OF THE COURT IT IS OBLIGATED, IT IS
MANDATORY LANGUAGE IN THOSE CASES -- I KNOW THE COURT IS AWARE OF
THAT -- THAT YOU SHALL INVESTIGATE. YOU CANNOT REFRAIN FROM
DOING SO.
AND IT HAS ONLY BEEN WHEN THE MISCONDUCT HAS BEEN SO
EGREGIOUS THAT IT WAS CLEAR THAT THE JURORS COULD NOT BE DEEMED
TO BE FIT JURORS, EITHER BECAUSE OF CONTRADICTORY INFORMATION IN
THE QUESTIONNAIRE BASED ON WHAT WE LATER LEARNED WAS NOT -- WE
LEARNED IT WAS LATER PROVEN NOT TO BE TRUE, OR BECAUSE OF CONDUCT
ON THIS VERY JURY.
WITH RESPECT TO THE EXCUSAL OF JUROR 1489, SEVERAL
JURORS CAME FORWARD TO THIS COURT TO COMPLAIN. THAT WAS NOT ONE
PERSON COMPLAINING. COUNSEL WILL HAVE -- WOULD IT SEEM THAT THE
PROSECUTION IS FUNNELING INFORMATION HERE AND GOING OUT AND
DIGGING UP INFORMATION ON THESE PEOPLE.
NOTHING WOULD BE FURTHER FROM THE TRUTH.
AND THE COURT STAFF THAT -- THAT THE COURT HAS DOING
THE INVESTIGATION IS NOTHING MORE THAN RESPONSIVE, REACTIVE.
THE DEPUTIES INVOLVED IN THE INVESTIGATION ARE GIVEN
INFORMATION FROM THE PUBLIC AND REQUIRED TO INVESTIGATE IT.
SO THIS MOTION IS IN DEROGATION TO REALITY. IT IS IN
DEROGATION OF THE TRUTH AND OF THE FACTS.
WE HAVE TEN JURORS THUS FAR EXCUSED; FIVE AT THE
BEHEST OF THE DEFENSE. I THINK THAT THAT PROBABLY SPEAKS VOLUMES
RIGHT THERE.
THE COURT IS AWARE OF THE PROCEDURES THAT IT HAS
IMPOSED IN THIS CASE, AND TO EVEN ENTERTAIN THIS THING THAT
DOESN'T EVEN -- SHOULDN'T EVEN BE DIGNIFIED WITH THE TITLE OF
"MOTION," I DON'T THINK I HAVE EVER SEEN LAW PRACTICED THIS WAY.
THESE ARE -- THESE -- THESE ARE REALLY BASELESS
ALLEGATIONS. THE DECLARATIONS FILED BY MR. COCHRAN HAVE
ABSOLUTELY NO MERIT AND I MEAN THEY HAVE NO RELEVANCE.
BRENDA POSTEL MAKES SOME REMARK ABOUT SOME REMARKS
MADE TO HER BY SOME OTHER DEPUTY THAT HAS NOTHING TO DO WITH THE
ALLEGATIONS THEY ARE MAKING. THEY HAVE -- I MEAN, I EAGERLY
AWAITED WHAT WAS GOING TO BE IN THEIR DECLARATIONS.
WHEN I FINALLY SAW IT I WAS SHOCKED. THERE IS NOTHING
THERE. THERE IS NOTHING THERE.
SO THE COURT REALLY HAS TO ASK ITSELF WHY IS SUCH A
MOTION BEING MADE? IS IT TRUE THAT THE DEFENSE REALLY WANTS TO
AVOID A MISTRIAL? IS THAT TRUE? I WONDER. I REALLY WONDER.
I THINK IT IS THE DEFENSE THAT IS LOOKING FOR A
MISTRIAL IN THIS CASE, YOUR HONOR, AND I THINK THAT THIS IS
NOTHING MORE THAN POINTING FINGERS AT EVERYBODY ELSE TO AVOID THE
LIGHT OF SUSPICION THAT SHOULD BE APPROPRIATELY CAST ON THIS SIDE
OF COUNSEL TABLE, ON THE DEFENSE SIDE OF COUNSEL TABLE.
THIS IS A BASELESS MOTION. THIS IS A LAWLESS MOTION.
THIS IS A FACTLESS, EVIDENTIARYLESS MOTION. IT SHOULD BE NOT
ONLY DENIED, BUT I THINK THAT COUNSEL SHOULD BE ADMONISHED
AGAINST MAKING SUCH DELIBERATELY INFLAMMATORY MOTIONS.
IT IS IRRESPONSIBLE AND IT IS UNETHICAL.
THE COURT: THANK YOU, COUNSEL.
MR. DERSHOWITZ: YOUR HONOR, I'M NEW TO THIS COURTROOM, BUT
I WILL TELL YOU RIGHT NOW I AM NOT UNDER ANY CIRCUMSTANCES EVER,
WHILE I STAND UP HERE TODAY, GOING TO RESPOND TO ANY OF THE AD
HOMINEM. I SIMPLY AM NOT GOING TO PLAY THAT GAME. I AM SIMPLY
GOING TO JUST TALK TO THE MERITS OF THE ISSUE.
HAVING SAID THAT, I WOULD URGE THE COURT TO READ THE
CASE OF PEOPLE VERSUS LARIOS WHICH IS IN DIRECT SUPPORT FOR OUR
PROPOSITION THAT ONCE THE JUROR NUMBER GETS DOWN TO THE CRITICAL
POINT WHERE A MISTRIAL MAY HAVE TO BE DECLARED, THE LEGAL
CRITERIA IS MANIFEST NECESSITY, LEGAL NECESSITY.
LET ME READ TO THE COURT ONE PARAGRAPH:
"THE FACT THAT A JUROR'S ACTIONS OR BELIEFS WOULD
PROVIDE GOOD CAUSE FOR HIS REPLACEMENT IF AN ALTERNATE WERE
AVAILABLE DOES NOT MEAN THAT THIS IS LEGAL NECESSITY FOR A
MISTRIAL WHERE NO ALTERNATE IS AVAILABLE."
THE COMPTON CASE AS WELL CERTAINLY SUGGESTS THE
SLIDING STANDARD AND THE SLIDING STANDARD MAKES ENORMOUS SENSE.
IF THE COURT HAS THE LUXURY OF A LARGE NUMBER OF
ALTERNATE JURORS, THEN GOOD CAUSE --
THE COURT: I HAVE NO LUXURY.
MR. DERSHOWITZ: UNFORTUNATELY THAT LUXURY NO LONGER
EXISTS.
AND SO WE ARE AT A POINT WHERE MANIFEST NECESSITY
MUST BE THE CRITERIA.
LET ME RESPOND DIRECTLY TO THE QUESTION PUT, "WHAT IF
WE WERE TO FIND A JUROR THAT SAID WE BELIEVE O.J. SIMPSON IS
GUILTY?" -- AN UNLIKELY EVENT, I THINK, AFTER YESTERDAY'S
PROCEEDINGS -- BUT IF WE WERE TO FIND SUCH A JUROR, IT WOULD BE
OUR CHOICE AND OUR CHOICE ALONE WHETHER OR NOT TO SEEK A
MISTRIAL.
AND THAT IS WHAT LARIOS SAID PRECISELY. IF THE JUDGE
WERE TO IMPOSE A MISTRIAL, IF THE PROSECUTION WERE TO SEEK A
MISTRIAL, AT THAT POINT JEOPARDY WOULD ATTACH.
AS THE COURT SAID IN A SERIES OF OPINIONS, UNIQUELY
WITHIN THE DEFENDANT'S MIND AND THE DEFENDANT ALONE, IT IS HIS
TACTICAL DECISION WHETHER OR NOT TO RISK A SECOND TRIAL, WHETHER
HE HAS THE RESOURCES FOR A SECOND TRIAL, WHETHER HE HAS THE
EMOTIONAL WHEREWITHAL TO SIT THROUGH A SECOND TRIAL.
AND THE UNITED STATES SUPREME COURT AND THE
CALIFORNIA SUPREME COURT DO NOT BALANCE EQUALLY.
THE DEFENDANT IS ENTITLED TO MAKE THESE TACTICAL
DECISIONS; THE PROSECUTION IS NOT.
THIS IS NOT A LEVEL PLAYING FIELD UNDER THE DOUBLE
JEOPARDY CLAUSE. THE PROSECUTION IS NOT ALLOWED TO MAKE TACTICAL
DECISIONS PREFERRING A SECOND TRIAL TO A FIRST ONE.
THE DEFENDANT IS ENTITLED TO MAKE PRECISELY THOSE
VERY TACTICAL DECISIONS.
NOW, MISS CLARK TALKS ABOUT TACTICAL DECISIONS THAT
SHE MIGHT MAKE. SHE CHALLENGES THE DEFENSE TO ASK HOW POSSIBLY
THIS CASE COULD HAVE BEEN TRIED WITHOUT THE PRIMARY FACT WITNESS,
DENNIS FUNG, BEING CALLED.
WELL, WE LEARNED VERY WELL FROM THE PROSECUTION.
LOOK AT WHAT THEY DID WITH DR. GOLDEN. THEY FIGURED OUT A WAY OF
GETTING AROUND CALLING DR. GOLDEN AND THEY WOULD TRY TO FIGURE
OUT A WAY OF GETTING AROUND CALLING DENNIS FUNG.
THAT IS PRECISELY WHY REHEARSALS ARE NOT PERMITTED BY
THE PROSECUTION IN CRIMINAL TRIALS. ON BROADWAY PLAYS OPEN IN
NEW HAVEN AND IN BOSTON TO SEE HOW THEY RUN.
IN COURTS OF LAW ONE TIME IS ALL YOU GET. THE
PROSECUTION HAS HAD ITS TIME.
MAY I FORMALLY CORRECT THE RECORD, WHEN I REFERRED TO
"HIS GLOVES," OBVIOUSLY I WAS TALKING ABOUT THE PROSECUTION'S
THEORY THAT THEY ARE HIS GLOVES. THE EVIDENCE YESTERDAY PROVED
DRAMATICALLY THAT THEY ARE NOT HIS GLOVES.
AS FAR AS OUR BASIS FOR THIS MOTION, THE BASIS IS
VERY CLEAR. IF YOUR HONOR DIDN'T SEE, EVERYBODY ELSE IN THE
COUNTRY SAW MARCIA CLARK WALKING OUT AFTER ONE OF THE JURORS WAS
DISQUALIFIED GIVING ANOTHER PROSECUTOR A THUMBS UP SIGN.
WE HAVE AN AFFIDAVIT HERE THAT MR. DARDEN TOLD MR.
COCHRAN "WE GOT YOUR BOY."
WE HAVE EVIDENCE IN THE RECORD THAT THE LAPD IS
CURRENTLY INVESTIGATING FOR THE PROSECUTION WITNESS' -- I'M SORRY
-- JURORS WHO ARE NOW SITTING.
THE PROSECUTION MAY DENY THAT. THAT IS WHY WE HAVE
HEARINGS, PRECISELY TO RESOLVE THESE KIND OF DISPUTES.
IF AND WHEN THIS CASE GETS TO AN APPELLATE COURT,
YOUR HONOR, THEY ARE NOT GOING TO BE ABLE TO TAKE MARCIA CLARK'S
WORD ON THE FACT THAT THERE WERE NO INVESTIGATIONS ONGOING.
THEY WILL WANT TO SEE A RECORD MADE. THEY WILL WANT
TO SEE WITNESSES SWORN UNDER OATH. THEY WILL WANT TO SEE
EVIDENTIARY RULINGS, EVIDENTIARY CONCLUSIONS.
DEFERENCE WILL BE OBVIOUSLY ACCORDED TO YOUR HONOR'S
FINDINGS. WE ARE AWARE OF THAT AND WE WANT A HEARING AT WHICH WE
CAN CALL OUR WITNESSES, THEY CAN CALL THEIR WITNESSES.
WE DON'T HAVE TO EXCHANGE AD HOMONYMS. THE FACTS WILL
PREVAIL. IF THE FACTS GO OUR WAY, WE WILL WIN. IF THE FACTS GO
THEIR WAY, THEY WILL WIN. THAT IS WHY WE HAVE EVIDENTIARY
HEARINGS.
YOUR HONOR -- EXCUSE ME ONE SECOND.
WELL, I HAVE TO REPEAT WHAT ONE OF MY CO-COUNSEL SAYS
-- I WAS NOT HERE AND I CAN'T MAKE THIS REPRESENTATION -- BUT A
VERY RESPECTED REPORTER SAID THAT MARCIA CLARK LEFT THE COURT
AFTER THE JUROR WAS DISQUALIFIED, QUOTE, "IN A DANCE STEP."
NOW, I'M NOT SURE THE COURT WANTS TO
TAKE JUDICIAL NOTICE OF THE LEVEL OF HAPPINESS THE PROSECUTION
HAS EXPRESSED, BUT THERE IS NO
QUESTION -- AND YOUR HONOR, I'M AT A DISADVANTAGE HERE BECAUSE
ALTHOUGH I HAVE READ EVERY WORD OF ALL THE SEALED TRANSCRIPTS
REGARDING THE DISQUALIFICATION OF EVERY SINGLE JUROR, BECAUSE
THEY ARE SEALED I AM NOT FREE TO MAKE ARGUMENTS IN PUBLIC THAT I
WOULD MAKE IF WE HAVE AN EVIDENTIARY HEARING, AND ON THE BASIS OF
SEALED RECORDS, ABOUT THE METHOD BY WHICH JURORS HAVE BEEN
SELECTIVELY DISQUALIFIED IN THIS CASE.
AND THE FACT THAT FIVE MAY HAVE BEEN JURORS WHO WERE
FAVORABLY DISPOSED, ACCORDING TO THE PROSECUTION, TO THE DEFENSE
AND FIVE, ACCORDING TO THE PROSECUTION, FAVORABLY DISPOSED TO
THEM, DOES NOT ENTER INTO THE DOUBLE JEOPARDY CONSIDERATIONS.
YOUR HONOR, I DO HAVE TO ACKNOWLEDGE THAT THIS IS IN
MANY RESPECTS A CASE OF FIRST IMPRESSION.
WE HAVE FOUND NO CASE ANYWHERE IN THE UNITED STATES
WHERE WE'VE HAD A SITUATION OF TWELVE ALTERNATE JURORS, TEN OF
WHOM ARE DISQUALIFIED FOR REASONS THAT ARE NOT TRADITIONAL
REASONS, AND THEN WE GET DOWN TO TWO WITH A POTENTIAL FOR A
MISTRIAL.
COURTS HAVE NOT HAD TO CONSIDER, EXCEPT THE TWO CASES
THAT I HAVE MENTIONED, THE INTIMATE RELATIONSHIP AND SUBTLE
RELATIONSHIP BETWEEN GOOD CAUSE DISQUALIFICATION OF INDIVIDUAL
JURORS AND MANIFEST NECESSITY AS THE CRITERIA FOR AVOIDING THE
RIGORS OF DOUBLE JEOPARDY.
BUT WHEN YOUR HONOR THINKS ABOUT IT, AS A SIMPLE
MATTER OF COMMON SENSE, AND AS I SAY SUPPORTED BY COMPTON AND
SUPPORTED BY LARIOS, THAT SLIDING SCALE EXISTS.
AND THAT IF THIS COURT WERE, FOR EXAMPLE, GOD FORBID,
TO GET TO A SITUATION WHERE IT WAS DOWN TO THE LAST JUROR, SAY,
IT WAS DOWN TO TWELVE JURORS AND THERE WERE TO BE THEN AN ISSUE
OF POTENTIAL RECUSAL OF THAT JUROR, SURELY MY DISTINGUISHED
OPPONENT WOULD ACKNOWLEDGE THAT AT THAT POINT THE CRITERIA IS NOT
GOOD CAUSE.
THE CRITERIA AT THAT POINT IS MANIFEST NECESSITY.
THAT IS THE HOLDING OF LARIOS; NOT DICTUM. THAT IS THE HOLDING
OF THAT CASE.
AND SO AS A MATTER OF SIMPLE LOGICAL EXTENSION, MOST
OF THESE CASES DEAL, A, WITH SHORT TRIALS. B, IN MOST OF THESE
CASES IT IS THE DEFENDANT WHO IS SEEKING THE MISTRIAL AND THE
PROSECUTION WHO IS SEEKING NOT TO HAVE A MISTRIAL.
WHEN YOU HAVE A SITUATION RELATIVELY UNIQUE IN
AMERICAN JURISPRUDENCE, A LENGTHY TRIAL OF THIS KIND, TWELVE
ALTERNATES, AND THEN WE GET TO A SITUATION WHERE NONETHELESS WE
MAY HAVE A MISTRIAL, OVER THE STRONG OBJECTION OF THE DEFENDANT,
MANIFEST NECESSITY BECOMES THE CONSTITUTIONAL CRITERIA, BOTH AS A
MATTER OF CALIFORNIA LAW AND AS A MATTER OF FEDERAL
CONSTITUTIONAL LAW.
AND IN ORDER TO DETERMINE MANIFEST NECESSITY WE HAVE
TO KNOW ON THE RECORD WHAT HAPPENS AND WE DON'T HAVE A FULL
ENOUGH RECORD AT THIS
POINT -- I WILL CONCEDE AND ACKNOWLEDGE AND ASSERT THAT MY
OPPONENT IS CORRECT, AT THIS POINT IN TIME WE DON'T KNOW
EVERYTHING THAT HAPPENED.
THAT IS PRECISELY WHY WE ARE SEEKING A HEARING.
WE ARE NOT CALLING OUR OPPONENTS NAMES. WE ARE SIMPLY
SEEKING A HEARING.
AND THAT IS THE WAY I WOULD LIKE THE RECORD TO
REMAIN.
WE ARE RESPECTFULLY SEEKING AN EVIDENTIARY HEARING AT
WHICH WE CAN CALL OUR WITNESSES IN ORDER TO ESTABLISH THAT IF
THIS JURY GETS BELOW TWELVE IT WILL NOT HAVE BEEN THE RESULT OF
MANIFEST NECESSITY.
IF THAT IS TRUE, DOUBLE JEOPARDY APPLIES, MR. SIMPSON
IS DEEMED INNOCENT AND HE CANNOT BE RETRIED.
THANK YOU, YOUR HONOR.
THE COURT: THANK YOU, YOUR HONOR.
MR. DERSHOWITZ: MAY I HAVE ONE MOMENT WITH MY COUNSEL
BEFORE I CONCLUDE?
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. DERSHOWITZ: YOUR HONOR, JUST ONE FURTHER POINT.
WE DO NOT WANT OUR SILENCE TO BE TAKEN AS AN
ACKNOWLEDGMENT IN REFERENCE TO JUROR 353 THAT MISS CLARK'S
CHARACTERIZATION OF THE GROUNDS UPON WHICH THAT DISQUALIFICATION
OCCURRED IS TRUE.
WE DISPUTE THAT. WE, BECAUSE THE RECORD HAS BEEN
SEALED, ARE NOT RIGHT NOW IN A POSITION TO PUBLICLY DISPUTE THAT,
BUT WE WILL FILE A SEALED STATEMENT AS TO WHAT OUR POSITION IS ON
353, 1427 AND 1489.
WE HAVE VERY STRONG VIEWS ABOUT THE RELATIONSHIP
BETWEEN THE DISQUALIFICATION OF THOSE THREE JURORS AND WHY THE
DISQUALIFICATION OF 1489 WAS NOT AN APPROPRIATE DISQUALIFICATION,
NOT UNDER GOOD CAUSE, NOT UNDER MANIFEST NECESSITY.
WE NEED NOT LITIGATE THAT AT THIS TIME, BUT WE DO
NOT WANT OUR SILENCE IN ANY WAY TO BE TAKEN AS AN ACKNOWLEDGMENT
THAT WE ACCEPT THE CHARACTERIZATIONS OF MISS CLARK.
THANK YOU VERY MUCH, YOUR HONOR.
THE COURT: ALL RIGHT. THANK YOU, COUNSEL.
MS. CLARK: VERY BRIEFLY, YOUR HONOR, IF I MAY?
THE COURT: VERY.
MS. CLARK: THANK YOU, YOUR HONOR. I APPRECIATE IT.
PEOPLE VERSUS LARIOS HAS BEEN MISCITED BY COUNSEL AND
MISCHARACTERIZED BY COUNSEL.
PEOPLE VERSUS LARIOS MEASURES THE ENTIRE PROCEEDING,
NOT ANY SINGLE EXCUSAL. IT LOOKS THROUGH THE ENTIRE RECORD TO
DETERMINE WHETHER OR NOT GOOD CAUSE WAS ESTABLISHED FOR THE
EXCUSAL OF THE JURORS IN GENERAL, WITH RESPECT TO EACH AND EVERY
ONE, AND THEN OVERALL WHETHER THERE WAS MANIFEST NECESSITY FOR
THE MISTRIAL.
AND THAT IS WHERE LARIOS STANDS.
LARIOS AT NO POINT SAYS THAT MANIFEST NECESSITY IS
THE STANDARD BY WHICH EACH INDIVIDUAL JUROR MUST BE EXCUSED.
AND LARIOS GOES ACTUALLY TO A SEPARATE ISSUE WHICH IS
WHETHER A MISTRIAL SHOULD OR SHOULD NOT BE DECLARED.
AND IN THAT VEIN COUNSEL IS ALSO INCORRECT. COUNSEL
CITES TO THE COURT THE FACT THAT ONLY THE DEFENSE CAN CHOOSE TO
PROVOKE -- OR CHOOSE TO HAVE A MISTRIAL.
IT IS TRUE THAT ONLY THE DEFENSE CAN MAKE THE MOTION
FOR A MISTRIAL; HOWEVER, THE DEFENSE CANNOT DECLARE THE MISTRIAL.
THE DEFENSE CANNOT DETERMINE OR PROVOKE THE MISTRIAL.
AND THERE ARE CASES RIGHT ON POINT THAT STATE THAT
EVEN WHERE THE DEFENSE CREATES A RUCKUS IN THE COURTROOM, WHERE
THE DEFENDANT HAS ATTACKED HIS LAWYER IN THE COURTROOM OR
ATTACKED A WITNESS IN THE COURTROOM, WITH A DELIBERATE POINT
BEING TO PROVOKE A MISTRIAL, THAT THE COURT IS WITHIN ITS
DISCRETION TO REFUSE TO GIVE THEM THE BENEFIT OF THEIR -- OF
THEIR MISCONDUCT.
IT IS WITHIN THE COURT'S DISCRETION TO DECLARE THE
MISTRIAL. THE COURTS DECIDE WHEN A MISTRIAL SHOULD BE GRANTED.
WE HAVE NOT REACHED A POINT YET WHERE WE HAVE TO MAKE
A DECISION WHETHER WE SHOULD PROCEED WITH FEWER THAN TWELVE, BUT
I CAN TELL THIS COURT THAT IT WILL BE CERTAINLY MY POSITION THAT
WE SHOULD.
I HAVE NO DESIRE TO SEE THIS CASE GO TO RETRIAL. I
HAVE NO DESIRE TO SEE THIS CASE GO THROUGH A MISTRIAL. I WANT A
VERDICT OUT OF THIS JURY.
AND I KNOW THAT I SPEAK ON BEHALF OF ALL OF MY
COLLEAGUES ON THE PROSECUTION, WE WANT THIS JURY TO REACH A
VERDICT. THAT IS WHAT WE WANT.
AND IF THAT MEANS THAT AT SOME POINT WE HAVE TO COME
-- WE HAVE TO DECIDE TO ACCEPT FEWER THAN TWELVE, WE WILL MAKE
THAT DECISION AT THAT TIME, BUT WITH A VERY STRONG LEANING IN
FAVOR OF GOING ALONG WITH THAT, BECAUSE THAT IS NOT WHAT WE WANT.
MR. DERSHOWITZ, IN THE COURSE OF SAYING WE ARE NOT
GOING TO CALL OUR OPPONENTS NAMES, DOES THAT VERY THING. I LOVE
THAT KIND OF DISINGENUOUS STUFF.
LET'S BE HONEST. THAT IS WHAT HE IS DOING.
AND HE IS GOING TO CITE A REPORTER'S HYPERBOLE THAT I
DID SOME DANCE STEP. THAT IS NONSENSE. THE REPORTERS HAVE TO
SELL STORIES. THEY ARE GOOD WRITERS. IT IS FUN TO READ, SOME OF
THEM.
ALL RIGHT. I SEE THE COURT ROLLING ITS EYES. THAT
DOESN'T APPLY TO ALL, BUT SOME ARE. I ENJOY READING THEM.
THEY HAVE TO SELL COPY. IT SOUNDS A LOT MORE
EXCITING TO HEAR THAT THE DEFENSE SAID THAT THE PROSECUTION IS
OUT THERE DANCING THAN IT DOES TO SAY MISS CLARK WALKED OUT AND
SEEMED TO HAVE A SMILE ON HER FACE. OH, BOY, THAT IS REAL FUN.
SO THEY'VE GOT TO WRITE SOMETHING THAT IS GOING TO
GRAB PEOPLE'S ATTENTION. AND WE'RE GOING TO CITE THAT TO THE
COURT AS A BASIS FOR SAYING THAT THE PROSECUTION IS TARGETING
JURORS? THAT IS FINE.
LET ME ALSO THEN ADD TO THE RECORD MR. COCHRAN'S
BEAMING FACE LAUGHTER AND LAUGHTER AT THE EXCUSAL OF JUROR NO.
353. LET ME ALSO ADD TO THE RECORD MR. COCHRAN'S NEGATIVE
REMARKS ABOUT THE FEW REMAINING WHITE JURORS ON THIS PANEL.
MR. COCHRAN: YOUR HONOR, I RESENT THAT. I RESENT THAT.
MS. CLARK: NO, NO. MR. COCHRAN REALLY CANNOT AFFORD TO
RESENT THAT. THAT IS WHAT HE PUT IN HIS DECLARATION.
THE COURT: WAIT, WAIT, WAIT.
MR. COCHRAN, HAVE A SEAT. I WILL DEAL WITH THIS.
MR. COCHRAN: I DON'T --
THE COURT: I DON'T THINK THAT IS NECESSARY, MISS CLARK.
MS. CLARK: LET ME ADDRESS IT IN THE CONTEXT OF THE MOTION,
YOUR HONOR.
MR. COCHRAN PUT INTO HIS MOTION A DECLARATION --
THE COURT: I DON'T THINK YOU CAN HONESTLY BELIEVE THAT I
WOULD EVER CONSIDER EXTRAJUDICIAL COMMENTARY, NEWSPAPERS, THE
SOURCES OF INFORMATION THAT WOULD CAUSE THIS COURT TO TAKE ANY
ACTION, AT LEAST IN THIS CONTEXT.
MS. CLARK: THEN I WON'T -- I WILL NOT MENTION THAT AGAIN.
I WAS REFERRING TO MR. COCHRAN'S DECLARATION --
THE COURT: ALL RIGHT.
MS. CLARK: -- IN WHICH HE CITES AN OFFHAND REMARK MADE
PRIVATELY IN JEST BETWEEN MR. DARDEN AND MR. COCHRAN AS A BASIS.
THAT ALONE, THAT DECLARATION ALONE, TELLS YOU THAT
THIS HAS NO MERIT, THERE IS NO SUBSTANCE TO THESE ALLEGATIONS.
BUT THE COURT IS IN POSSESSION OF ALL OF THE FACTS.
THE COURT KNOWS, AS THE DEFENSE KNOWS, TOO -- MR.
DERSHOWITZ PERHAPS HIMSELF DOESN'T KNOW, BUT THE REST OF HIS TEAM
IS VERY WELL AWARE HOW THE INFORMATION CAME TO LIGHT IN THIS
CASE.
THEY ARE VERY WELL AWARE OF WHO REPORTED WHAT, WHAT
TRANSPIRED IN CHAMBERS, WHAT THE COURT'S RULINGS WERE, WHAT THE
INVESTIGATIONS TURNED UP. THEY KNOW THAT.
THAT IS WHAT MAKES THIS MOTION SO HOLLOW, SO EMPTY.
AND NONE OF THE CASES CITED BY COUNSEL IS AT ALL ON
POINT OR SHOULD CAUSE THE COURT TO ALTER A STANDARD THAT HAS BEEN
IN PLACE IN CALIFORNIA FOR MANY, MANY YEARS.
THE BOTTOM LINE OF THIS MOTION IS THAT IT IS OKAY
WHEN YOU EXCUSE JURORS WE DON'T LIKE, BUT WE DON'T WANT YOU TO
EXCUSE THE JURORS THAT WE DO LIKE.
THAT IS WHAT THIS MOTION IS ABOUT BY THE DEFENSE.
YOU CAN ONLY EXCUSE JURORS WHEN WE SAY IT IS OKAY.
OBVIOUSLY THAT IS NOT STANDARD, THERE IS NOTHING
LEGAL ABOUT THAT. THERE IS NO PRECEDENT FOR IT AND THERE IS NO
LOGIC TO IT.
AND THAT IS BASICALLY WHERE THIS MOTION STANDS.
THE COURT: THANK YOU, COUNSEL.
MR. DERSHOWITZ: YOUR HONOR, JUST ONE SECOND PLEASE.
I KNOW YOUR HONOR READ THE LARIOS DECISION. I CAN'T
BELIEVE THAT MISS CLARK WAS ACTUALLY CITING THAT CASE, BECAUSE
THAT CASE INVOLVED ONE JUROR, NOT MANY JURORS, AND THE COURT MADE
EXACTLY THE STATEMENT THAT I SAID IT MADE ABOUT ONE JUROR, WHEN
THAT ONE JUROR BECOMES THE CRITICAL JUROR.
SO THE LAW IN CALIFORNIA, YOUR HONOR, IS CLEARLY ON
OUR SIDE. THIS IS NOT A CASE WHERE THE ISSUE IS SHAPING JURORS
BY THE DEFENSE.
THIS IS A CASE WHERE THE DEFENSE, BEFORE THE LAST
THREE JURORS WERE DISQUALIFIED, FILED THE MOTION MAKING PRECISELY
THE SAME POINT.
ALL WE'VE DONE NOW IS ELABORATE ON THAT MOTION,
INCLUDING WHAT WAS DONE SINCE THAT PERIOD OF TIME.
SO OUR MOTION WAS MADE EVEN BEFORE THE LAST THREE
JURORS WERE DISQUALIFIED. WE WERE CONCERNED ABOUT THIS FROM THE
VERY EARLIEST POINT IN TIME. OUR CONCERN HAS ONLY BEEN ENHANCED.
AND WE WILL PROVIDE THE COURT, AS I SAID, WITH A
SEALED ARGUMENT REGARDING THE LAST THREE JURORS WHICH WE THINK
SUPPORT OUR POSITION.
THANK YOU VERY MUCH, YOUR HONOR.
THE COURT: ALL RIGHT.
THANK YOU, COUNSEL.
THIS IS A FASCINATING SITUATION WITH STARTING A TRIAL
WITH TWELVE ALTERNATES. I MEAN THAT IS SOMETHING HIGHLY UNUSUAL,
EVEN IN THIS COURTHOUSE.
I SPOKE TO JUDGE POUNDERS THE OTHER DAY, WHO TRIED
THE TWO AND A HALF YEAR MC MARTIN CASE, AND HE TRIED THAT CASE
WITH SIX ALTERNATES, AND I WAS CRITICIZED BY SOME OF MY
COLLEAGUES FOR HAVING STARTED THIS CASE WITH TWELVE ALTERNATES,
FOR HAVING TOO MANY PEOPLE, AND THAT IT WOULD INCREASE THE COST
OF SEQUESTRATION ENORMOUSLY, WHICH WAS FASCINATING IN AND OF
ITSELF, THAT DISCUSSION.
BUT I HAVE NEVER SEEN A SITUATION WHERE INDIVIDUAL
JURORS HAVE BEEN THE SUBJECTS OF SUCH GREAT PUBLIC SCRUTINY.
AND THAT IS ONE OF THE INTERESTING ASPECTS OF THIS
CASE THAT WE WILL HAVE TO THINK ABOUT WHEN THIS CASE IS ALL OVER.
ALL RIGHT.
COUNSEL, I'M GOING TO TAKE YOUR MOTION UNDER
SUBMISSION. I WILL READ THE DECLARATIONS THAT HAVE YET TO BE
FILLED AND I WILL ISSUE A RULING AS SOON AS THAT HAS BEEN
COMPLETED.
ALL RIGHT.
LET'S HAVE THE JURORS.
I'M SORRY, THERE IS ONE OTHER MATTER.
MR. DARDEN, YOU INDICATED YOU WISHED TO REOPEN WITH
MR. RUBIN?
MR. DARDEN: YES, YOUR HONOR.
I BELIEVE I INDICATED THAT IN CHAMBERS LATE YESTERDAY
AFTERNOON.
THE COURT: WHAT AREA ARE YOU GOING TO GO INTO?
MR. DARDEN: SHRINKAGE PRIMARILY.
MR. COCHRAN: MAY I BE HEARD, YOUR HONOR?
THANK YOU, YOUR HONOR.
TWO THINGS:
I WOULD LIKE IF WE COULD HAVE AN OFFER OF PROOF WITH
REGARD TO THE OPENING, YOUR HONOR. THE WORD "SHRINKAGE" IS NOT
PARTICULARLY REVEALING, AS THE COURT HAS INQUIRED IN THE PAST,
AND IN THE LIST OF MR. WITNESSES THAT MR. DARDEN INDICATED -- WE
MAY NOT GET TO IT TODAY -- BUT I HAVE A PROBLEM WITH ONE OF THE
WITNESS, MISS REDFERN, WHO MAY HAVE BEEN ON THE WITNESS LIST.
BUT IN THE DISCUSSION ABOUT DOMESTIC DISCORD, IF THE
COURT RECALLS, I DON'T THINK THE COURT WAS EVER ASKED TO DEAL
WITH THAT PARTICULAR ISSUE, AND I THINK THAT WE WOULD AT A
MINIMUM HAVE A RIGHT TO A 402 HEARING ON THAT PARTICULAR -- THE
SUBJECT MATTER OF HER TESTIMONY.
SO BEFORE HE RECALLS HER OR ANNOUNCES HER NAME, I
WOULD ASK THE COURT TO ALLOW US THAT AND I COULD ASK FOR AN OFFER
OF PROOF AS TO WHY RUBIN WAS BEING RECALLED.
I THOUGHT WE WERE FINISHED WITH HIM WITH THE
EXCEPTION OF OUR BRIEF CONVERSATION IN CHAMBERS AFTER COURT
YESTERDAY, YOUR HONOR.
THE COURT: ALL RIGHT.
AS TO THE ISSUE OF RECALLING MR. RUBIN, WHAT IS YOUR
TIME ESTIMATE ON THE RECALL?
MR. DARDEN: FIFTEEN MINUTES OF DIRECT.
THE COURT: ALL RIGHT. I WILL ALLOW IT.
MR. DARDEN: AND ON THE ISSUE OF REDFERN, YOUR HONOR, CAN
WE -- CAN WE ARGUE THAT ISSUE THEN TODAY? THAT IS OUR 1101(B)
MOTION.
THE COURT: YES, I THINK YOU NEED TO.
MR. DARDEN: FINE.
THE COURT: BECAUSE ALL THE EIGHTY ODD INCIDENTS THAT WERE
PRESENTED TO THE COURT BACK IN I BELIEVE, JANUARY, THE COURT -- I
MEAN WE HAD AN EXTENSIVE HEARING AND ARGUMENT, AND MY
RECOLLECTION THE COURT ISSUED AN EIGHT OR NINE-PAGE RULING ON
THAT ISSUE, AND THIS IS NOT AN INCIDENT THAT I AM FAMILIAR WITH.
MR. GORDON.
MR. GORDON: YOU ARE ABSOLUTELY CORRECT.
AND WHEN WE HAD DONE THAT MOTION WE HAD INDICATED TO
THE COURT THAT WE WERE STILL RECEIVING INFORMATION WITH REGARD TO
VARIOUS INCIDENTS THAT WERE OCCURRING, AND UPON RECEIPT OF ANY
INFORMATION WE WOULD PROVIDE THE DEFENSE WITH THOSE REPORTS IN
DISCOVERY AND PLACE THOSE WITNESSES ON THE WITNESS LIST, WHICH WE
DID WITH THESE WITNESSES IN THAT ADDENDUM AND INDICATED TO THE
COURT THAT IF WE CAME UP WITH ANY FURTHER INCIDENTS THAT WERE NOT
KNOWN TO US AT THE TIME THAT WE LITIGATED THAT MOTION, THAT WE
WOULD, A, ATTEMPT TO SEE THAT THEY CONFORM WITHIN THE COURT'S
RULING, AND B, THAT -- MAKE THE COURT AWARE AT THAT TIME WE
SOUGHT TO INTRODUCE THEM AND THAT IS EXACTLY WHAT WE HAVE DONE
WITH THIS ADDENDUM, INDICATED TO THE COURT WHERE THEY FIT WITHIN
THE COURT'S RULING.
AND NO. 2, OUT OF COURTESY TO THE DEFENSE, THEY HAVE
ALREADY BEEN GIVEN OVER IN DISCOVERY AND PUT ON THE WITNESS LIST
BACK IN APRIL, AND WE BRING IT TO THE COURT'S ATTENTION, BUT
THESE WITNESS WERE DISCOVERED POST-LITIGATION OF THAT MOTION OR
THEY CERTAINLY WOULD HAVE BEEN INCLUDED WITHIN THAT MOTION.
THE COURT: MR. COCHRAN.
MR. COCHRAN: ONE OTHER PROBLEM, YOUR HONOR.
THERE WAS AN INDICATION YESTERDAY THE PEOPLE HAD
FILED A MOTION IN THIS DOMESTIC DISCORD AREA. I HAVE NOT
RECEIVED A COPY OF IT, IT WAS NEVER RECEIVED IN HERE, AND I HAVE
NOT SEEN IT, WAS NOT RECEIVED IN MY OFFICE, AND I HAVE NOT
RECEIVED IT AND I HAVE NOT SEEN THE MOTION.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEPUTY DISTRICT ATTORNEY
AND DEFENSE COUNSEL.)
THE COURT: ALL RIGHT. AT THIS POINT --
MR. COCHRAN: I HAVE NOW BEEN HANDED A COPY. I WILL TRY TO
READ IT, BUT WE WILL BE BUSY WITH OTHER THINGS.
THE COURT: WHO DO YOU HAVE, MR. DARDEN, AFTER MR. RUBIN?
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
MR. DARDEN: I BELIEVE THAT MR. ACOSTA WILL BE HERE BY THE
TIME WE COMPLETE THE ADDITIONAL TESTIMONY FROM MR. RUBIN.
THE COURT: ALL RIGHT. WHO IS MR. ACOSTA?
MR. DARDEN: HE IS ONE OF THE INCIDENTS THAT YOU APPROVED
UNDER 1101(B).
THE COURT: WHICH INCIDENT?
MR. DARDEN: THE LIMOUSINE DRIVER.
THE COURT: I RECOLLECT.
AND WHAT DO YOU HAVE AFTER THAT?
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
MR. DARDEN: WE ARE ATTEMPTING TO LOCATE MR. AGUILERA,
VICTORIA BEACH INCIDENT.
THE COURT: YES. ALL RIGHT. I AM FAMILIAR WITH THAT ONE.
THE COURT: ALL RIGHT.
THEN WE WILL PROCEED WITH RECALLING MR. RUBIN, THEN
WE WILL GO TO MR. ACOSTA, AND I THINK MR. COCHRAN IS ENTITLED TO
A REASONABLE AMOUNT OF TIME TO READ YOUR MOTION, GO OVER THE
REPORTS BEFORE RESPONDING TO WHETHER OR NOT THAT WILL BE
INCLUDED, THESE ADDITIONAL INCIDENTS.
ALL RIGHT.
DEPUTY MAGNERA, LET'S HAVE THE JURORS, PLEASE.
MR. DARDEN: I SHOULD INDICATE THAT I'M GOING TO BE USING
THE DEFENDANT'S GOLF BAG BRIEFLY WITH THE WITNESS.
MR. COCHRAN: MAY WE HAVE AN OFFER OF PROOF REGARDING THAT,
YOUR HONOR?
THE COURT: FOR WHAT PURPOSE?
MR. DARDEN: GOLF GLOVES SIZE.
MR. COCHRAN: YOUR HONOR, MAY WE HAVE A FURTHER OFFER OF
PROOF REGARDING THAT, BECAUSE AS THE COURT RECALLS YESTERDAY,
THAT MR. DARDEN CONTINUED TO TALK.
DURING THE PROCESS YOU HAD ALLOWED CERTAIN THINGS AND
HE ADDED SOME THINGS AND I WAS OBJECTING AND THE COURT DID
SUSTAIN SOME OF THOSE OBJECTIONS, BUT THIS SO-CALLED
DEMONSTRATION BY AMBUSH CAN AND DOES VERY FREQUENTLY BACKFIRE.
BUT IN ORDER TO OBVIATE THAT, MAY WE HEAR WHAT THE
LATEST PROSECUTION DEMONSTRATION IS GOING TO BE THIS MORNING?
THE COURT: ARE WE JUST GOING TO BRING OUT THE GOLF BAG AND
SEE WHAT SIZE GOLF GLOVES ARE IN THE GOLF BAG?
MR. DARDEN: ABSOLUTELY.
THE COURT: WE ARE NOT DOING ANY OTHER DEMONSTRATIONS WITH
MR. SIMPSON?
MR. DARDEN: NOT TODAY, YOUR HONOR.
THE COURT: ALL RIGHT.
MR. COCHRAN: WELL, YOUR HONOR, IS THAT A REPRESENTATION?
I'M JUST TRYING TO FIND OUT WHERE WE ARE GOING.
THE COURT: ALL RIGHT. THAT DOESN'T SEEM INAPPROPRIATE.
ALL RIGHT.
DEPUTY MAGNERA, LET'S HAVE A JURORS, PLEASE.
(BRIEF PAUSE.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, IN THE
PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT. THANK YOU, LADIES AND GENTLEMEN.
PLEASE BE SEATED. LET THE RECORD REFLECT THAT WE
HAVE BEEN REJOINED BY ALL THE MEMBERS OF OUR JURY PANEL.
GOOD MORNING, LADIES AND GENTLEMEN.
THE JURY: GOOD MORNING.
THE COURT: MY APOLOGIES FOR HAVING KEPT YOU IN THE SMALL
ROOM FOR SO LONG THIS MORNING. SOME MATTERS CAME UP THAT I
NEEDED TO DISCUSS WITH THE ATTORNEYS AND IT TOOK US A LITTLE
LONGER THAN I THOUGHT IT WAS GOING TO.
AND WE WILL GET RIGHT BACK TO THE WITNESSES.
ALL RIGHT. MR. -- LADIES AND GENTLEMEN, THE
PROSECUTION HAS REQUESTED PERMISSION FROM THE COURT TO RECALL MR.
RUBIN FOR A FEW BRIEF QUESTIONS.
SO MR. RUBIN, WOULD YOU -- SINCE WE RELEASED YOU AS A
WITNESS, WE WILL HAVE TO HAVE MRS. ROBERTSON RESWEAR YOU.
MRS. ROBERTSON.
RICHARD RUBIN,
RECALLED AS A WITNESS BY THE PEOPLE, HAVING BEEN PREVIOUSLY
SWORN, RESUMED THE STAND AND TESTIFIED FURTHER AS FOLLOWS:
THE CLERK: PLEASE RAISE YOUR RIGHT HAND.
YOU DO SOLEMNLY SWEAR THAT THE TESTIMONY YOU MAY GIVE
IN THE CAUSE NOW PENDING BEFORE THIS COURT, SHALL BE THE TRUTH,
THE WHOLE TRUTH AND NOTHING BUT THE TRUTH, SO HELP YOU GOD.
THE WITNESS: I DO.
THE CLERK: PLEASE HAVE A SEAT ON THE WITNESS STAND AND
STATE AND SPELL YOUR FIRST AND LAST NAMES FOR THE RECORD.
THE WITNESS: IT IS RICHARD RUBIN, R-U-B-I-N.
THE COURT: MR. DARDEN.
DIRECT EXAMINATION
BY MR. DARDEN:
Q GOOD MORNING, MR. RUBIN.
A GOOD MORNING.
MR. DARDEN: GOOD MORNING, LADIES AND GENTLEMEN.
THE JURY: GOOD MORNING.
Q BY MR. DARDEN: MR. RUBIN, YESTERDAY YOU TOLD US THAT
YOU WERE INVOLVED FOR SEVERAL YEARS IN THE DESIGN AND MANUFACTURE
OF LEATHER GLOVES; IS THAT CORRECT?
A YES, IT IS.
Q YOU CONSIDER YOURSELF AN EXPERT IN GLOVES?
A YES, I DO.
Q NOW, YESTERDAY AFTER THE DEMONSTRATION YOU STATED
WHILE ON THE WITNESS STAND THAT ORDINARILY THE DEFENDANT'S HANDS
--
MR. COCHRAN: OBJECT TO THIS AS ASKED AND ANSWERED.
THE COURT: OVERRULED.
Q BY MR. DARDEN: SHOULD HAVE FIT INTO THE GLOVES; IS
THAT CORRECT?
A THAT'S CORRECT.
Q WHAT DID YOU MEAN BY THAT?
A THE GLOVES IN THE ORIGINAL CONDITION WOULD EASILY GO
ONTO THE HANDS.
MR. COCHRAN: YOUR HONOR, I OBJECT TO THIS.
SPECULATION. I OBJECT.
THE COURT: OVERRULED.
THE WITNESS: WOULD EASILY GO ONTO THE HANDS OF SOMEONE OF
MR. SIMPSON'S SIZE.
Q BY MR. DARDEN: THE GLOVES YOU SAW YESTERDAY, DID
THEY APPEAR TO BE IN THEIR ORIGINAL CONDITION?
A NO, THEY DID NOT.
Q AND WHAT WAS DIFFERENT ABOUT THEM?
A THE PRIMARY DIFFERENCE WAS THE FACT THAT DUE TO THE
TREMENDOUS AMOUNT OF LIQUID THAT HAD BEEN ON THE GLOVES FOR A
CERTAIN PERIOD OF TIME, THE GLOVES APPEARED TO BE SHRUNKEN IN
SIZE FROM THEIR ORIGINAL CONDITION.
MR. COCHRAN: I OBJECT TO THIS RESPONSE, YOUR HONOR.
COULD THE COURT ALLOW US A BRIEF TIME AT SIDE BAR?
THE COURT: OVERRULED.
Q BY MR. DARDEN: THE LIQUID YOU ARE REFERRING TO, IS
THAT BLOOD?
THE COURT: EXCUSE ME, COUNSEL.
THE WITNESS: I'M NOT A TECHNICAL --
THE COURT: HOLD IT. HE IS NOT QUALIFIED TO ANSWER THAT
QUESTION.
MR. DARDEN: OKAY. THANK YOU.
THANK YOU, YOUR HONOR.
Q SO THE GLOVES APPEARED TO HAVE SHRANK SOMEWHAT?
A THAT'S CORRECT.
Q OKAY. HOW MUCH?
MR. COCHRAN: I OBJECT TO THAT, YOUR HONOR.
THE COURT: OVERRULED.
MR. COCHRAN: CALLS FOR SPECULATION, YOUR HONOR.
THE COURT: OVERRULED.
THE WITNESS: IT WOULD APPEAR, BASED UPON MY KNOWLEDGE OF
WHAT WOULD OCCUR WHEN GLOVES ARE SUBJECTED TO LIQUID SUCH AS
WATER, THAT GLOVES COULD SHRINK APPROXIMATELY 15 PERCENT FROM ITS
ORIGINAL SIZE.
Q BY MR. DARDEN: OKAY.
AND THE GLOVES THAT YOU SAW HERE IN COURT YESTERDAY,
DID THEY APPEAR TO HAVE SHRANK APPROXIMATELY --
MR. COCHRAN: LEADING AND SUGGESTIVE, YOUR HONOR.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. DARDEN: WHAT PERCENTAGE OF SHRINKAGE, IF ANY,
DID YOU NOTICE?
MR. COCHRAN: ASSUMES A FACT NOT IN EVIDENCE, YOUR HONOR.
THE COURT: OVERRULED.
THE WITNESS: SINCE I DIDN'T PERSONALLY TRY THE GLOVES ON
AT ANY POINT IN TIME, I WOULD ESTIMATE THE SHRINKAGE OF
APPROXIMATELY 15 PERCENT.
MR. COCHRAN: YOUR HONOR, I MOVE TO STRIKE THAT. NO
FOUNDATION FOR THIS RESPONSE, IF THE COURT PLEASES.
THE COURT: OVERRULED.
Q BY MR. DARDEN: YOU COULD BE MORE PRECISE IF YOU WERE
TO TRY THE GLOVES ON?
A YES, I COULD.
Q NOW, YOU ALSO TOLD US YESTERDAY THAT YOU FELT THAT
THE DEFENDANT'S HAND WAS WHAT SIZE? WHAT SIZE DID YOU SAY?
A BETWEEN A LARGE IN SOME STYLES AND AN EXTRA LARGE IN
OTHER STYLES.
Q IN YOUR REVIEW OF HIS HAND SIZE HE IS AN EXTRA EXTRA
LARGE?
A NO.
Q ARE YOU CERTAIN OF THAT?
A YES.
Q AND THE GLOVES WE HAD HERE IN COURT YESTERDAY, THE
ROCKINGHAM AND THE BUNDY GLOVE, WERE THEY DESIGNED TO FIT SNUGLY?
A YES, THEY WERE.
Q WERE THEY DESIGNED TO STRETCH?
A ALL LEATHER GLOVES HAVE SOME STRETCH.
Q WHAT SIZE WOULD YOU SAY THE GLOVES ARE NOW TODAY,
THAT IS, IN THEIR PRESENT CONDITION?
MR. COCHRAN: CALLS FOR SPECULATION, YOUR HONOR.
THE COURT: SUSTAINED. HE SAID HE HASN'T TRIED THEM ON.
MR. DARDEN: OKAY.
Q NOW, YOU TOLD US THAT MR. SIMPSON'S HAND SIZE WAS
LARGE TO EXTRA LARGE -- STRIKE THAT.
LET ME SHOW YOU A GOLF BAG. I BELIEVE THIS IS
DEFENDANT'S 1053, YOUR HONOR.
DO YOU PLAY GOLF AT ALL?
A ON RARE OCCASION.
Q YOU HAVE BEEN OUT TO THE GOLF COURSE?
A YES, I HAVE.
Q DO GOLFERS TEND TO WEAR GLOVES?
A YES, THEY DO.
Q ARE GOLFING GLOVES DESIGNED TO FIT SNUGLY ON THE
HAND?
A YES, THEY ARE.
MR. DARDEN: FOR THE RECORD, YOUR HONOR, I'M OPENING THE
OUTER BAG.
Q MR. RUBIN, IF YOU WILL, COULD YOU STEP DOWN FROM THE
WITNESS STAND.
A (WITNESS COMPLIES.)
Q CAN YOU LOOK INTO THE GOLF BAG AND TELL US WHETHER OR
NOT THERE IS A COMPARTMENT THAT CONTAINS GOLF BALLS?
A YES.
Q ARE THERE ALSO GOLFING GLOVES IN THAT BAG?
A YES.
Q HOW MANY GLOVES?
A THREE.
Q I'M GOING TO ASK YOU TO RETAKE THE WITNESS STAND, IF
YOU WILL, PLEASE, AND TAKE THE GLOVES WITH YOU.
A (WITNESS COMPLIES.)
Q WHAT SIZE OF THOSE GLOVES, SIR?
A (NO AUDIBLE RESPONSE.)
Q BY THE WAY, BEFORE YOU DO THAT, THE FIRST GLOVE YOU
HAVE IN YOUR HAND IS WHAT BRAND?
A ACTUALLY IT APPEARS LIKE A PALM TREE. I THINK IT
MIGHT ACTUALLY BELONG TO ONE OF THE POLO CLUB COUNTRY CLUBS WHERE
IT WAS MADE ESPECIALLY FOR THEM.
MR. COCHRAN: YOUR HONOR, I MOVE TO STRIKE AS NOT
RESPONSIVE TO THE QUESTION.
THE COURT: SUSTAINED.
THE ANSWER IS STRICKEN.
Q BY MR. DARDEN: DOES THAT GLOVE HAVE A PALM TREE
EMBROIDERED ON IT?
A YES, IT DOES.
Q IS IT WHITE IN COLOR?
A YES, IT IS.
Q DOES IT APPEAR TO BE WORN?
A YES.
MR. DARDEN: YOUR HONOR, MAY THAT GLOVE BE MARKED PEOPLE'S
3 --
THE COURT: LET'S ACTUALLY MAKE THIS 1053 -- DEFENSE
1053-A.
MR. DARDEN: OKAY.
THE COURT: SINCE IT IS COMING OUT OF 1053.
(DEFT'S 1053-A FOR ID = GOLF GLOVE)
MR. DARDEN: OKAY.
Q YOU ARE TRYING THE GLOVE ON, ARE YOU?
A YES, I AM.
Q IS THERE A SIZE INDICATION SOMEWHERE ON THAT GLOVE
MARKED 1053-A?
A YES, IT SAYS PXL.
Q PXL.
AND IF YOU WILL TAKE ANOTHER GLOVE, PLEASE.
THE COURT: IS THAT A LEFT OR RIGHT HAND GLOVE?
THE WITNESS: IT IS A LEFT HAND GLOVE.
THE COURT: THANK YOU.
Q BY MR. DARDEN: COULD YOU DESCRIBE THAT SECOND GLOVE
FOR THE RECORD, PLEASE.
A THIS IS ACTUALLY A FOOTJOY GOLF GLOVE WITH AT LOGO FJ
ON THE PATCH.
Q OKAY. IT IS ALSO LEATHER?
A YES, IT IS.
Q IS IT WHITE IN COLOR?
A YES, IT IS.
Q ARE YOU TRYING THAT GLOVE ON?
A YES.
Q OKAY.
IS THERE A SIZE INDICATION ANYWHERE ON THAT GLOVE?
A THIS GLOVE IS MARKED CXL.
Q OKAY.
AND THE THIRD GLOVE, COULD YOU TELL US THE NAME OF
THE MANUFACTURER OF THAT GLOVE?
A THERE IS A RUNNING DOG ON THIS. I THINK THIS LOGO IS
THAT OF SLAZENGER.
MR. COCHRAN: YOUR HONOR, I WILL MOVE TO STRIKE, YOUR
HONOR, WITHOUT A FURTHER FOUNDATION.
THE COURT: SUSTAINED.
MR. DARDEN: YOUR HONOR, MAY THE THIRD GLOVE BE MARKED
1053-C AND THE SECOND 1053-B.
THE COURT: YES. THE COMMENTS AFTER BY MR. RUBIN AFTER "IT
HAS A RUNNING DOG ON IT," THAT REMAINDER OF THE ANSWER IS
STRICKEN AS SPECULATION.
MR. DARDEN: OKAY.
(DEFT'S 1053-B FOR ID = GOLF GLOVE)
(DEFT'S 1053-C FOR ID = GOLF GLOVE)
THE WITNESS: I FOUND ON THE BUTTON THE NAME SLAZENGER IN
ANOTHER LOCATION.
Q BY MR. DARDEN: OKAY. AND THAT GLOVE, WOULD YOU TRY
THAT GLOVE ON.
A (WITNESS COMPLIES.)
YES.
Q THERE IS A SIZE INDICATION ANYWHERE ON THAT GLOVE?
A RXL.
Q NOW, HAVING PLACED EACH OF THOSE GLOVES ON YOUR HAND
--
A YES, I HAVE.
Q -- AND IRRESPECTIVE OF THE SIZING INDICATION
CONTAINED IN EACH OF THE GLOVES, CAN YOU TELL US WHAT SIZE THOSE
GLOVES ARE?
MR. COCHRAN: YOUR HONOR, I OBJECT WITHOUT A FURTHER
FOUNDATION.
THE COURT: OVERRULED.
THE WITNESS: THESE GLOVES ARE EXTRA LARGE.
Q BY MR. DARDEN: NOT DOUBLE EXTRA LARGE?
A NO.
Q AND IS THIS MORNING THE FIRST TIME THAT YOU HAVE EVER
SEEN THOSE GLOVES?
A YES.
Q RIGHT HERE ON THE WITNESS STAND?
A RIGHT HERE.
Q ON THE ISSUE OF DOUBLE EXTRA LARGE GLOVES, WHAT
PERCENTAGE OF THE POPULATION, IF YOU KNOW, WOULD FIT A DOUBLE
EXTRA LARGE GLOVE?
A LESS THAN ONE PERCENT.
Q AND THAT ONE PERCENT OF THE POPULATION, WOULD YOU
EXPECT THEM TO SHARE SOME COMMON PHYSICAL CHARACTERISTICS IN
TERMS OF SIZE, PHYSICAL SIZE?
MR. COCHRAN: YOUR HONOR, THIS CALLS FOR SPECULATION.
THE COURT: SUSTAINED. I DON'T THINK THERE IS A FOUNDATION
FOR THIS.
MR. DARDEN: OKAY.
Q WELL, WHEN YOU WERE WITH ARIS ISOTONER YOU PRODUCED
DOUBLE XX LARGE GLOVES?
A SMALL QUANTITY.
Q AND WHY DID YOU ONLY PRODUCE A SMALL QUANTITY?
A THERE WAS NO CONSUMER DEMAND FOR THE PRODUCT.
Q AND WHEN THERE IS NO CONSUMER DEMAND, DOES THAT MEAN
THAT THERE IS NO ONE OUT THERE WEARING DOUBLE EXTRA LARGE GLOVES?
A VERY FEW.
Q YESTERDAY I ASKED YOU WHETHER OR NOT WEARING LATEX
GLOVES MIGHT IMPEDE SOMEONE'S ABILITY TO PLACE A PAIR OF LEATHER
GLOVES ON THEIR HANDS.
DO YOU RECALL THAT QUESTION?
A YES, I DO.
Q OKAY.
AND YOU SAID YOU HAD NEVER TRIED TO PLACE LATEX
GLOVES ON OR DIDN'T PLACE GLOVES ON TOP OF THE LATEX GLOVES?
A THAT'S CORRECT.
Q OKAY.
BUT YOU DID THAT LAST NIGHT; IS THAT CORRECT?
A YES, I DID.
Q AND YOU TRIED ON A PAIR OF GLOVES?
A YES.
Q YES?
A YES, I DID.
Q THAT WAS AFTER YOU PUT THE LATEX GLOVES ON?
A YES.
Q AND THE PAIR OF GLOVES THAT YOU TRIED ON, WERE THEY
YOUR OWN GLOVES?
MR. COCHRAN: YOUR HONOR, I'M GOING TO OBJECT TO THIS. I
WASN'T PRESENT. I WOULD LIKE TO APPROACH, IF THE COURT PLEASE.
THE COURT: OVERRULED.
MR. DARDEN.
MR. DARDEN: THANK YOU.
Q THE GLOVES THAT YOU PLACED ON ON TOP OF THE LATEX
GLOVES LAST NIGHT, WERE THEY YOUR OWN GLOVES?
A YES, THEY WERE.
Q AND WHAT EFFECT, IF ANY, DID THE LATEX GLOVES ON YOUR
HAND HAVE IN TERMS OF YOUR ABILITY TO PLACE YOUR OWN GLOVES ON?
MR. COCHRAN: BEFORE HE ANSWERS THAT, YOUR HONOR, I WOULD
LIKE TO OBJECT.
THE COURT: NOTED.
MR. COCHRAN: DISCOVERY.
THE COURT: NOTED. OVERRULED.
MR. COCHRAN: THANK YOU.
THE WITNESS: I HAD MORE DIFFICULTY IN GETTING THE PERSONAL
GLOVES ONTO MY HAND WITH THE LATEX GLOVE ON MY HAND THAN I
NORMALLY WOULD.
Q BY MR. DARDEN: NOW, LEATHER GLOVES DO HAVE SOME
DEGREE OF ELASTICITY TO THEM; IS THAT CORRECT?
A YES, IT IS.
Q OKAY.
AND WHEN WE SAY ELASTICITY IN THE CONTEXT OF LEATHER
GLOVES, WHAT ARE WE TALKING ABOUT?
A IN THE PROCESS OF PRODUCING LEATHER FOR THE GLOVE
INDUSTRY, A FAT LIQUOR TYPE MATERIAL IS PUT INTO THE LEATHER
WHICH CREATES ELASTICITY.
OVER TIME, WHEN PEOPLE MOVE THEIR HANDS BACK AND
FORTH OR WHEN THE GLOVES GET WET, THAT FAT LIQUOR REALLY CREATES
ELASTICITY AND IT IS PART OF THE TANNAGE PROCESS TO MAKE GLOVES
FIT BETTER.
Q SO WHEN GLOVES GET WET WHAT EFFECT OR IMPACT DOES
THAT HAVE ON THE ELASTICITY?
MR. COCHRAN: OBJECT TO THE FORM OF THE QUESTION, YOUR
HONOR.
THE COURT: OVERRULED.
THE WITNESS: WHAT HAPPENS WHEN GLOVES GET WET, THE WATER
OR WHATEVER IT IS THAT ACTUALLY WETS THE GLOVE ABSORBS SMALL
AMOUNTS OF THE FAT LIQUOR WHICH CREATES SHRINKAGE.
OVER TIME, AS THE GLOVES TRY NATURALLY, THE GLOVES
ACTUALLY CAN COME BACK VERY CLOSE TO ITS ORIGINAL SHAPE, BUT THEY
WILL NEVER COME BACK TO THE ORIGINAL SIZE, BECAUSE ONCE A CERTAIN
PERCENTAGE OF THE FAT LIQUOR DISAPPEARS, THE GLOVE LOSES A LITTLE
OF IT'S ELASTICITY.
Q SO THEN, MR. RUBIN, IS THERE A WAY TO MANIPULATE THE
GLOVES WE HAVE HERE IN EVIDENCE, THE ROCKINGHAM AND THE BUNDY
GLOVE, SO THAT THEY CAN RETURN TO THEIR ORIGINAL SIZE AND SHAPE?
A THESE GLOVES WILL NEVER RETURN TO THE ORIGINAL SIZE
AND SHAPE IN THE CONDITION THEY ARE IN CURRENTLY.
Q OKAY.
HOW CLOSE CAN WE GET THEM TO THEIR ORIGINAL SIZE AND
SHAPE.
MR. COCHRAN: I OBJECT. THAT CALLS FOR SPECULATION, YOUR
HONOR. I DON'T MEAN TO MAKE A SPEAKING OBJECTION, BUT IT IS
SPECULATION.
THE COURT: SUSTAINED.
Q BY MR. DARDEN: DO YOU KNOW OR DO YOU HAVE AN OPINION
AS TO HOW CLOSE WE CAN GET THESE GLOVES BACK TO THEIR ORIGINAL
CONDITION?
MR. COCHRAN: SPECULATION, YOUR HONOR. HE DOESN'T KNOW HOW
LARGE THEY WERE ORIGINALLY.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. DARDEN: YOU HAVE SEEN GLOVES WET BEFORE; IS
THAT CORRECT?
A MANY TIMES.
Q OKAY. YOU LIVE BACK EAST IN NEW YORK,
DO YOU?
A THAT'S CORRECT.
Q IT SNOWS THERE?
A YES.
Q YOU WEAR GLOVES IN THE SUMMER -- I MEAN, IN THE
WINTER?
A IN THE WINTER, YES.
Q YOU DON'T WEAR THEM IN JUNE?
A NO, I DO NOT.
Q OKAY.
THEY GET WET IN THE WINTER, DON'T THEY?
A YES, THEY DO.
Q AND AFTER THE WINTER HAS COME AND GONE YOU DO PUT
YOUR GLOVES IN STORAGE, DO YOU?
A YES.
Q OKAY.
AND YOU TAKE THEM OUT OF STORAGE TO PUT THEM ON AGAIN
THE FOLLOWING WINTER; IS THAT CORRECT?
A THAT'S CORRECT.
Q OKAY.
YOU HAVE DONE THAT MANY TIMES?
A MANY TIMES.
Q AND ON THOSE OCCASIONS ARE THE GLOVES IN THE SAME
CONDITION AS THEY WERE WHEN YOU PURCHASED THEM?
A WHEN THEY WERE PURCHASED?
Q YES.
A FROM THE TIME THEY ARE PURCHASED
OVER TIME --
MR. COCHRAN: JUST A MOMENT. I OBJECT TO THIS
HYPOTHETICAL, YOUR HONOR. IT DEPENDS.
THERE IS TOO MANY FACTORS THAT ARE MISSING JUST IN
THAT SCENARIO.
MR. DARDEN: IS THIS A STANDING OBJECTION?
MR. COCHRAN: OKAY.
THE COURT: HAVE A SEAT, MR. COCHRAN.
MR. COCHRAN: THANK YOU.
THE COURT: OVERRULED.
THE WITNESS: FROM THE TIME THE GLOVES ARE INITIALLY
PURCHASED, AT THAT POINT IN TIME THEY ARE IN THEIR LARGEST
POSSIBLE CONDITION.
OVER TIME, IF THEY GET WET AND DRY NATURALLY, THEY
WILL GRADUALLY GET SLIGHTLY SMALLER.
NOW, WHAT I MEAN BY "SMALLER" IS NOT NECESSARILY 10
OR 15 PERCENT IF THEY ARE DRENCHED IN SOME TYPE OF LIQUID.
TRADITIONALLY IN THE NORMAL USE OF A DRESS GLOVE, THE
GLOVE MIGHT BE EXPOSED TO SOME SNOW OR RAIN OR A CAR HANDLE,
SOMETHING LIKE THAT WHERE IT WOULD GET WET, AND THEN IT WOULD
GRADUALLY DRY AND IT MIGHT LOSE TWO, THREE PERCENT OF ITS SIZE.
IT WOULDN'T BE A TREMENDOUS AMOUNT OF SIZE, BUT IF
YOU WERE TO DRENCH THE GLOVES AND HAVE THEM DRY NATURALLY, THAT
IS WHERE YOU WOULD GET THE 10 TO 15 PERCENT SHRINKAGE.
Q OKAY.
AFTER HAVING HANDLED GLOVES THAT HAD SHRANK SOME TWO
TO THREE PERCENT BECAUSE OF MOISTURE AND THE LIKE, HAVE YOU
ATTEMPTED TO MANIPULATE THOSE GLOVES TO GET THEM AS CLOSE TO
THEIR ORIGINAL FORM AS POSSIBLE?
A I HAVE.
Q ON HOW MANY OCCASIONS?
A IT IS REALLY PART OF THE PROCESS OF JUST WEARING THE
GLOVES AGAIN. THE GLOVE EVENTUALLY LOOSENS UP AND RETAINS PRETTY
MUCH ITS ORIGINAL SHAPE.
Q YOU TOLD US ALSO THAT YOU HAVE MANUFACTURED GLOVES,
CORRECT?
A YES, I HAVE.
Q YOU HAVE DESIGNED GLOVES?
A YES, I HAVE.
Q AND IN DESIGNING GLOVES DO YOU TAKE INTO
CONSIDERATION THIS FACTOR OF THAT SHRINKAGE DUE TO MOISTURE?
A NOT REALLY.
Q WELL, DO YOU ASSESS OR EVALUATE WHAT MIGHT HAPPEN TO
A PAIR OF GLOVES IF THEY BECOME WET?
A IF THE GLOVES ARE CONSTRUCTED PROPERLY FROM THE
BEGINNING, THE FACT THAT THEY MIGHT SHRINK TWO TO THREE PERCENT
OR EVEN FIVE PERCENT WOULDN'T REALLY HAVE AN EFFECT ON THE
CONSUMER THAT WAS USING THEM.
Q OKAY. HOW ABOUT 15 PERCENT?
A THAT COULD HAVE EFFECT.
Q WELL, BASED ON YOUR OWN PERSONAL EXPERIENCE WITH
GLOVES AND THE FACT THAT YOU HAVE DESIGNED GLOVES AND
MANUFACTURED THEM AND CONSIDERED WHAT HAPPENS TO GLOVES WHEN THEY
GET WET --
MR. COCHRAN: OBJECT, YOUR HONOR.
THE COURT: I HAVEN'T HEARD A QUESTION YET.
DID YOU NOT HEAR THE QUESTION?
MR. COCHRAN: I COULDN'T HEAR THE QUESTION.
THE COURT: WOULD YOU RESTATE THE QUESTION, PLEASE.
Q BY MR. DARDEN: MR. RUBIN, GIVEN YOUR EXPERTISE IN
MANUFACTURING AND DESIGNING GLOVES, YOUR OWN PERSONAL EXPERIENCE
WITH WET GLOVES, YOUR OWN PERSONAL EXPERIENCE IN TRYING TO
MANIPULATE GLOVES BACK INTO THEIR ORIGINAL POSITION AFTER THEY
HAVE BEEN WET, DO YOU HAVE AN OPINION AS TO HOW CLOSE WE CAN COME
TO RESHAPING THE BUNDY AND ROCKINGHAM GLOVE BACK TO THEIR
ORIGINAL CONDITION?
MR. COCHRAN: YOUR HONOR, I OBJECT.
THAT QUESTION WAS ASKED BEFORE, YOUR HONOR. I OBJECT
TO THE FORM OF THAT QUESTION.
THE COURT: OVERRULED.
THE WITNESS: I DON'T THINK THAT THOSE GLOVES IN THAT
CONDITION COULD GET BACK CLOSER TO NINETY, NINETY PERCENT OF ITS
ORIGINAL SIZE AT THIS POINT IN TIME.
Q BY MR. DARDEN: YOU SAID NINETY PERCENT?
A APPROXIMATELY NINETY PERCENT.
MR. DARDEN: OKAY.
MAY I HAVE ONE MOMENT, YOUR HONOR?
THE COURT: CERTAINLY.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
Q BY MR. DARDEN: YOU TALKED ABOUT FAT LIQUOR A FEW
MINUTES AGO, MR. RUBIN.
WHAT EXACTLY IS FAT LIQUOR?
A FAT LIQUOR IS A CHEMICAL THAT IS PUT INTO THE TANNING
PROCESS TO GIVE THE LEATHER THE STRETCH AND ELASTICITY IN THE
FINISHED PRODUCT.
THE COURT: HOW DO YOU SPELL THE "LIQUOR" PART?
THE WITNESS: L-I-Q-U-O-R.
THE COURT: THE SAME AS --
THE WITNESS: YES.
Q BY MR. DARDEN: MR. RUBIN, WHEN YOU MEASURE GLOVES,
DO YOU MEASURE GLOVE SIZE FROM PALM TO FINGER?
A NO, WE DO NOT.
Q HOW DO YOU MEASURE GLOVE SIZE?
A AROUND THE HAND, RIGHT BELOW THE KNUCKLE AREA, AROUND
THE BODY OF THE HAND.
Q OKAY.
YOU HAVE NEVER MEASURED MR. SIMPSON'S HAND?
A NO, I HAVE NOT.
Q OKAY.
NOW, YOU TOLD US YESTERDAY AS WELL THAT THESE LEATHER
LIGHT GLOVES ARE NO LONGER IN PRODUCTION; IS THAT CORRECT?
A THAT'S CORRECT.
Q DO YOU KNOW WHETHER OR NOT ARIS ISOTONER HAS ANY IN
STOCK?
A I CAN'T ACTUALLY SAY THAT I KNOW FOR SURE THAT THEY
HAVE ANY OF THE ORIGINAL VERSION IN THEIR POSSESSION.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
Q BY MR. DARDEN: AND THE SIZE EXTRA LARGE, HOW MANY
INCHES AROUND THE HAND WOULD CONSTITUTE A GLOVE HAND THAT IS A
SIZE EXTRA LARGE?
MR. COCHRAN: YOUR HONOR, I OBJECT TO THE QUESTION WITHOUT
FURTHER FOUNDATION.
THE COURT: OVERRULED.
THE WITNESS: IT WOULD BE IN THE RANGE OF NINE AND A HALF,
NINE AND THREE QUARTERS TO TEN AND A QUARTER, DEPENDING UPON THE
STYLE, THE LINING.
Q BY MR. DARDEN: AND A LARGE GLOVE, WHAT SIZE OF HAND
WOULD FIT INTO A LARGE GLOVE?
A NINE, BETWEEN NINE TO NINE AND A HALF.
Q AND SO THEN A HAND THAT CAN FIT INTO AN EXTRA LARGE
GLOVE MAY BE ABLE TO FIT INTO A LARGE GLOVE AS WELL; IS THAT
CORRECT?
A YES. AS I ACTUALLY SAID YESTERDAY, YOU COULD
ACTUALLY GET ANYTHING FROM A SIZE MEDIUM THROUGH AN EXTRA LARGE
POSSIBLY ONTO THE HAND OF SOMEONE WHO REALLY SHOULD WEAR AN EXTRA
LARGE, BUT THEY WOULD BE MOST COMFORTABLE WITH AN EXTRA LARGE.
Q NOW, YOU WATCHED THE DEMONSTRATION YESTERDAY; IS THAT
CORRECT?
A THAT'S CORRECT.
Q AND YOU ARE AN EXPERT IN GLOVES?
A YES.
Q OKAY.
WAS THERE ANYTHING ABOUT THAT DEMONSTRATION THAT
CAUSED YOU TO CONCLUDE THAT THE DEFENDANT --
MR. COCHRAN: YOUR HONOR, I OBJECT TO THE FORM OF THE
QUESTION; ARGUMENTATIVE.
THE COURT: HOLD ON.
MR. COCHRAN: OBJECT TO THE FORM OF THE QUESTION;
ARGUMENTATIVE.
THE COURT: SUSTAINED.
Q BY MR. DARDEN: YOU SAW THE DEFENDANT'S HANDS
YESTERDAY?
THE COURT: LET ME SEE COUNSEL WITH THE REPORTER, PLEASE.
MR. COCHRAN: THANK YOU.
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: OVER AT THE SIDE BAR.
MR. DARDEN, I THINK YOU WERE ABOUT TO ASK THIS
WITNESS IS THERE ANYTHING ABOUT THE WAY THAT HE PUT ON THE GLOVES
THAT SEEMED UNUSUAL TO YOU OR SOMETHING LIKE THAT, WHICH COUNSEL,
THE JURORS GOT TO SEE WHAT WENT ON.
MR. DARDEN: OKAY, OKAY.
MR. COCHRAN: JUDGE, THAT QUESTION --
THE COURT: AND I'M SURE THAT WHEN WE COME TO FINAL
ARGUMENT I'M SURE YOU WILL TROT OUT THE VIDEOTAPE.
MR. COCHRAN: I WILL BE TROTTING IT OUT, TOO.
THE COURT: I'M SURE YOU WILL.
MR. COCHRAN: BUT JUDGE, JUDGE --
THE COURT: I'M SUSTAINING THE OBJECTION.
MR. COCHRAN: VERY WELL.
MR. DARDEN: CAN WE HAVE ONE MOMENT?
MR. COCHRAN: JUDGE, I NEED A COUPLE MINUTES.
(DISCUSSION HELD OFF THE RECORD.)
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
MR. DARDEN: ANYWAY, I NEED HIM TO PUT THE GLOVES ON AND
TELL US WHAT SIZE THEY ARE NOW.
MR. COCHRAN: WHO?
MR. DARDEN: HIM.
THE COURT: ARE YOU GOING TO DO THAT WITH OR WITHOUT LATEX
GLOVES?
MR. COCHRAN: WAIT A MINUTE, JUDGE.
MR. DARDEN: WITH LATEX GLOVES FOR HIM.
MR. COCHRAN: JUDGE --
MS. CLARK: HE CAN SIZE THEM.
MR. COCHRAN: WE OBJECT TO THAT QUESTION. HE CAN'T TELL US
WHAT SIZE THEY ARE. I MEAN THIS IS --
MR. DARDEN: WHAT ARE YOU TALKING ABOUT?
MR. COCHRAN: HE HAS BEEN GONE SINCE 1990 FROM THIS PLACE.
WE ARE ALLOWING IN ALL THIS STUFF. HE IS GOING TO TELL US. THE
SIZE SAYS EXTRA LARGE.
THAT IS SPECULATION. HE CAN TRY THEM ON.
MR. DARDEN: WE HAVE GOTTEN GLOVES OUT OF O.J.'S MASTER
BEDROOM AND OUT OF HIS DRAWER AND THEY ARE ALL EXTRA LARGE, SOME
ARE ACTUALLY LARGE, BUT WE WILL GET INTO THIS LATER.
MR. COCHRAN: I LOVE WHEN YOU GUYS GET INTO STUFF.
THE COURT: AT THIS POINT THE COURT SUSTAINS THE OBJECTION
TO THE LAST QUESTION.
YES, YOU CAN HAVE HIM TRY ON THE GLOVES.
MS. CLARK: THANK YOU, YOUR HONOR.
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT:)
THE COURT: LADIES AND GENTLEMEN, WE ARE GOING TO TAKE A
BREAK AT 10:30. I NEED TO CHANGE THE REPORTERS. YOU REALIZE WE
HAVE BEEN HERE ON THE RECORD SINCE NINE O'CLOCK.
THE COURT: MR. DARDEN.
MR. DARDEN: THANK YOU, YOUR HONOR.
Q MR. RUBIN, BECAUSE THE GLOVES WE HAVE HERE IN COURT
TODAY, AND THAT IS THE ROCKINGHAM AND BUNDY GLOVE, BECAUSE THOSE
GLOVES ARE DESIGNED TO FIT SNUGLY, IS THERE A PARTICULAR WAY THAT
THEY OUGHT TO BE PUT ON?
MR. COCHRAN: OBJECT TO THAT, YOUR HONOR.
THE COURT: SUSTAINED.
Q BY MR. DARDEN: IS THERE AN APPROPRIATE WAY THAT THEY
SHOULD BE PUT ON?
MR. COCHRAN: I OBJECT TO THAT, YOUR HONOR.
THE COURT: SUSTAINED.
Q BY MR. DARDEN: YOU HAVE SEEN PEOPLE PLACE GLOVES ON
THEIR HANDS MANY TIMES; IS THAT RIGHT?
A YES, I HAVE.
Q HAVE YOU NOTICED THAT THERE IS A COMMON MANNER WHICH
GLOVES ARE PLACED ON THE HAND?
MR. COCHRAN: I OBJECT TO THAT, YOUR HONOR.
THE COURT: SUSTAINED. I THINK IT IS A MATTER OF COMMON
SENSE.
LET'S NOT WASTE THE JURY'S TIME WITH THIS.
Q BY MR. DARDEN: IN ANY EVENT, MR. RUBIN, I ASK THAT
YOU TAKE A LOOK AT THE GLOVES RECOVERED AT BUNDY AND ROCKINGHAM
AND PLACE THEM ON YOUR HAND AND GIVE US AN INDICATION AS TO WHAT
SIZE YOU BELIEVE THE GLOVES NOW ARE?
MR. COCHRAN: OBJECT TO THE FORM OF THAT QUESTION, YOUR
HONOR.
THE COURT: OVERRULED.
MR. DARDEN: LET ME HAND YOU ITEM 9, THE ROCKINGHAM GLOVE.
AND THIS IS PEOPLE'S 164-A, YOUR HONOR.
THE COURT: ALL RIGHT. THAT IS THE RIGHT HAND GLOVE.
MR. DARDEN.
Q BY MR. DARDEN: WHAT SIZE WOULD YOU SAY THAT GLOVE IS
NOW?
MR. COCHRAN: I OBJECT TO THE QUESTION AS TO WHAT SIZE IT
IS.
THE COURT: OVERRULED.
THE WITNESS: AS IS, IN THIS CONDITION RIGHT NOW, THIS IS A
LITTLE BIT ABOVE A LARGE, BUT WELL BELOW AN EXTRA LARGE AT THIS
POINT IN TIME.
THE COURT: MISS CLARK, DO YOU WANT TO ASSIST MR. DARDEN?
MR. DARDEN: LET ME SHOW YOU
PEOPLE'S 77, LAPD ITEM 37, THE BUNDY GLOVE.
IS THERE ANY POINT TO HAVING MR. RUBIN CHANGE LATEX
GLOVES AT THIS POINT?
THE COURT: I THINK AT THIS POINT, NO.
THE WITNESS: OKAY. FOR STARTERS, THE LINING IN THIS
PARTICULAR GLOVE HAS BEEN DISLODGED. I CAN'T GET MY HAND IN IT
AT ALL.
Q BY MR. DARDEN: OKAY.
A I WOULD HAVE TO GET A PEN OR SOMETHING.
ONE OF THE FINGERS, WHERE THE LINING IS ACTUALLY
TACKED TO THE END OF THE FINGER, IS BROKEN AWAY.
MR. COCHRAN: YOUR HONOR, IS THERE A QUESTION?
THE COURT: NO.
MR. DARDEN: LAST QUESTION, YOUR HONOR.
Q THAT IS, MR. RUBIN WITH REGARD TO THE GOLFING GLOVES
THAT YOU LOOKED AT HERE THIS MORNING, ARE THE SIZE OF THOSE
GLOVES CONSISTENT WITH THE SIZE OF THE DEFENDANT'S HAND, IN YOUR
OPINION?
A THESE PARTICULAR GLOVES?
Q YES.
A YES, THEY SHOULD FIT HIM.
MR. DARDEN: THANK YOU. THANK YOU.
THE COURT: ALL RIGHT.
WE ARE GOING TO TAKE -- YOU ARE STILL SUBJECT TO
CROSS-EXAMINATION.
SO WE ARE GOING TO TAKE A RECESS AT THIS TIME, LADIES
AND GENTLEMEN, FOR FIFTEEN MINUTES.
PLEASE REMEMBER ALL MY ADMONITIONS.
MR. RUBIN, YOU CAN STEP DOWN. RETURN IN FIFTEEN
MINUTES.
THE WITNESS: MAY I TAKE THESE OFF?
THE COURT: YES, YOU CAN TAKE THOSE OFF.
(RECESS.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, OUT OF THE
PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT.
BACK ON THE RECORD.
ALL PARTIES ARE AGAIN PRESENT.
MR. DARDEN, IS THERE SOMETHING?
MR. DARDEN: YES, YOUR HONOR, THERE IS SOMETHING.
THE COURT: WHAT IS THAT?
MR. DARDEN: YOU KNOW, I DON'T TALK MUCH, YOUR HONOR. I
HAVEN'T ASKED A LOT OF QUESTIONS OVER THE LAST SEVERAL WEEKS, BUT
I NEED TO REOPEN AGAIN, JUST ASK A FEW MORE FOLLOW-UP QUESTIONS
WITH MR. RUBIN.
THE COURT: AGAIN?
MR. DARDEN: AGAIN.
THE COURT: WHAT'S YOUR OFFER?
MR. DARDEN: DURING THE BREAK, MR. RUBIN TURNED ONE OF THE
GLOVES INSIDE OUT, AND IT APPEARS THAT THE LINING IN THE FINGERS
WERE KNOTTED AND THAT THAT MIGHT HAVE IMPEDED --
THE COURT: KNOTTED?
MR. DARDEN: KNOTTED.
THE COURT: MAY I SEE THAT, PLEASE?
MR. DARDEN: IN ANY EVENT, THE LINING DID NOT EXTEND ALL
THE WAY THROUGH THE FINGERS AS THEY NORMALLY WOULD, WHICH MIGHT
HAVE PROVIDED AN EXCUSE OR IMPEDIMENT FOR THE DEFENDANT NOT TO
BE ABLE TO PLACE HIS HAND ALL THE WAY INTO THE GLOVE.
THE COURT: WELL, YOU DON'T HAVE TO TELL ME WHAT THE
SIGNIFICANCE IS, BUT I WOULD LIKE TO SEE WHAT IT LOOKS LIKE.
MR. RUBIN, WOULD YOU TURN THE GLOVE INSIDE OUT FOR ME
SO I CAN SEE THAT?
MR. DARDEN: MR. RUBIN HAS BEEN -- MR. RUBIN DURING THE
BREAK TURNED THE GLOVE INSIDE OUT AND NOTICED IT AT THAT TIME.
AND I THINK --
MR. RUBIN, DID YOU --
THE COURT: WHICH GLOVE IS THIS, MR. RUBIN?
THE WITNESS: THE LEFT.
MR. DARDEN: 77?
MR. RUBIN, DID YOU REPLACE ANY OF THE LINING INTO THE
FINGERS DURING THE BREAK?
THE WITNESS: NO.
THE COURT: WHY DON'T YOU JUST PUT IT ON THE BAG THERE, AND
I CAN SEE.
(THE WITNESS COMPLIES.)
THE WITNESS: BASICALLY, THE FINGERS ARE NOT IN THE
FINGERS TO THE POINT YOU CAN PUT THIS HAND INTO THE LINING. SO
YOU COULDN'T GET YOUR HAND IN THE GLOVE ALL THE WAY (INDICATING).
THE COURT: ALL RIGHT.
IT APPEARS --
MR. DARDEN, YOU SAID IT WAS KNOTTED. IT APPEARS TO
ME THAT IT'S MERELY -- THAT THE FINGERS -- THE LINING PORTION OF
THE FINGERS IS MERELY OUT OF THE FINGERS THEMSELVES, NOT KNOTTED.
THE WITNESS: THAT'S CORRECT.
MR. DARDEN: NOT KNOT SITUATION, YOUR HONOR. YES, THE
LINING IS OUT OF THE FINGERS.
THE COURT: WELL, KNOTTING IMPLIES SOMETHING SIGNIFICANTLY
MORE SINISTER THAN MERELY THE LINING NOT BEING IN THE FINGERS.
MR. DARDEN: NOT TO ME. BUT I UNDERSTAND THE DISTINCTION,
YOUR HONOR. IN ANY EVENT, THE LINING WAS OUT.
THE COURT: SO YOU'RE GOING TO ASK THE QUESTION OF MR.
RUBIN:
"OVER THE RECESS, DID YOU HAVE THE OPPORTUNITY TO TURN THE
GLOVE INSIDE OUT TO SEE WHAT IF THERE'S A PROBLEM WITH THE
LINING?
"ANSWER: YES, I DID.
"QUESTION: WHAT WAS THAT?
"THE LINING IS PULLED OUT OF THE FINGERS.
"WHAT PROBLEM DOES THAT CREATE?
"IT MAKES IT HARD TO GET YOUR HAND IN."
THREE QUESTIONS, RIGHT?
MR. DARDEN: FOUR. LET'S MAKE IT FIVE JUST TO BE SAFE.
THE COURT: FIVE QUESTIONS.
MR. COCHRAN.
MR. DARDEN: JUST FIVE.
MR. COCHRAN: MAY MR. SHAPIRO ADDRESS THIS, BECAUSE HE HAS
SOME RELEVANT QUESTIONS, YOUR HONOR?
THE COURT: YES.
MR. SHAPIRO: YOUR HONOR, YESTERDAY WHEN MR. DARDEN
INFORMED US BEFORE THE BREAK THAT HE WAS GOING TO ASK MR. SIMPSON
TO TRY ON THE GLOVES, HE SHOWED THE GLOVES TO MYSELF AND MR.
COCHRAN. HE ASKED -- HE ALLOWED US TO LOOK AT THEM. HE ASKED US
TO DO THAT WITH RUBBER GLOVES ON.
I PUT THE GLOVES ON EACH HAND. MR. COCHRAN PUT IT ON.
THERE WAS NO OBSTRUCTION. I PUT THE GLOVE ON.
AFTER THE COURT BROKE LAST NIGHT, THE COURT ALLOWED
US AN OPPORTUNITY TO FURTHER EXAMINE THE GLOVES. WE DID THAT
WITH DR. BADEN, MYSELF AND MR. SIMPSON; AND AT THAT TIME, DR.
BADEN TOOK THE GLOVE, TURNED IT INSIDE OUT, TOOK OUT THE LINING
TO MAKE A VISUAL COMPARISON OF THE LINING.
SO I CAN TELL THIS COURT AS AN OFFICER OF THE COURT
THAT WHEN I PUT THE GLOVE ON RIGHT BEFORE MR. SIMPSON DID, THERE
WAS NO OBSTRUCTION. AND IF THERE IS ANY OBSTRUCTION NOW, IT
RESULTED FROM THE GLOVE BEING TURNED INSIDE OUT AND EXAMINED
AFTER THE COURT SESSION YESTERDAY WHICH I TOLD MR. RUBIN AND MR.
COCHRAN.
IS THAT CORRECT, SIR?
THE WITNESS: YES.
MR. SHAPIRO: THANK YOU, YOUR HONOR.
JUST ONE MOMENT, PLEASE.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. DARDEN: YOUR HONOR, WE'RE NOT THE ONES THAT CREATED AN
OBSTRUCTION INSIDE THE GLOVE IF THERE WAS ONE CREATED LAST NIGHT.
AT ANY EVENT, THE WITNESS WAS BEFORE THE JURY AND HE WAS UNABLE
TO PLACE HIS HAND THROUGH THE GLOVE TO GIVE US AN ASSESSMENT AS
TO THE SIZE OF THE GLOVE AT THIS PRESENT TIME. SO HE OUGHT TO BE
ALLOWED TO DO THAT.
MR. SHAPIRO: YOUR HONOR, I THINK CLEARLY AT THIS POINT IN
TIME, THAT THE DEMONSTRATION HAS BEEN DONE AND THAT CLEARLY THIS
GLOVE HAS BEEN SUBJECT TO EXAMINATION AFTER THE FACT THAT HAS
CHANGED THE CONDITION OF THE GLOVE AND ALSO STRETCHED IT OUT.
MR. DARDEN: I'M NOT ASKING TO HAVE MR. SIMPSON PUT THE
GLOVE ON TODAY. WE INTEND TO SECURE AN ORIGINAL PAIR AND HAVE
HIM PUT THOSE ON AT A LATER DATE. I JUST WANT THE WITNESS HERE
TO BE ABLE OR ALLOWED TO TELL THE JURY THE SIZE OF THE GLOVE IN
ITS PRESENT STATE TODAY.
THE COURT: ALL RIGHT.
THEN ALL YOU WANT TO DO THEN IS HAVE MR. RUBIN
REPLACE THE LINING --
THE WITNESS: I CAN'T GET THE LINING BACK IN WITHOUT SOME
INSTRUMENTS. IT COULD TAKE ME SOME TIME. MAYBE I'D GET LUCKY.
I'LL TRY.
MR. SHAPIRO: YOUR HONOR, I THINK THE RECORD SHOULD
INDICATE THAT MR. RUBIN DID HAVE THESE GLOVES ON THIS MORNING.
THE COURT: NO.
MR. DARDEN: I'M SORRY.
THE COURT: I AGREE THIS DISLODGING OF THE LINING IS NOT
ATTRIBUTABLE TO YOUR CLIENT SINCE IT APPEARS THIS GLOVE HAS BEEN
HANDLED SEVERAL TIMES SINCE.
MR. COCHRAN: CAN THE JURY BE INSTRUCTED REGARDING THAT,
YOUR HONOR?
THE COURT: NO, BECAUSE THIS OBSTRUCTION HAS NOT BEEN SHOWN
TO THE JURY YET. BUT WHAT WE CAN DO IS HAVE MR. RUBIN SEE IF HE
CAN REPLACE THE LINING APPROPRIATELY AND TELL US WHAT SIZE THIS
GLOVE IS. THAT HE CAN DO.
MR. COCHRAN: I OBJECT AGAIN.
THE COURT: NOTED.
(BRIEF PAUSE.)
THE COURT: THIS IS BECOMING PART OF MY 1026 PROCEEDING.
MR. COCHRAN: YOUR HONOR, THERE'S ANOTHER ISSUE. MAY MR.
THOMPSON ADDRESS THE COURT?
THE COURT: CERTAINLY.
MR. THOMPSON: YOUR HONOR, IT APPEARS WE'RE AT AN IMPASSE
ON THE TIMING OF THE 402 HEARING ON THE MIXTURE STATISTICS. THE
PROSECUTION HAS PROPOSED THAT WE DO IT NEXT WEDNESDAY. MY
PROPOSAL IS THAT WE DO IT A WEEK FROM MONDAY.
THE REASON THAT WEDNESDAY IS BAD IS, I HAVE AN
APPEARANCE IN ANOTHER MATTER IN ANOTHER COURT ON THAT MORNING,
AND ALSO I DON'T FEEL THAT GIVES US ENOUGH TIME TO PREPARE.
THE PROSECUTION HAS JUST PROVIDED US WITH A REFERENCE
TO THE SCIENTIFIC AUTHORITY ON WHICH DR. WEIR IS PREPARING THESE
REPORTS. IT'S A RATHER LENGTHY BOOK OF OVER 200 PAGES FULL OF
DENSE STATISTICAL FORMULAS.
WE APPARENTLY WILL BE ABLE TO GET THAT BOOK ONLY THIS
WEEKEND, PERHAPS TOMORROW, BUT IT'S GOING TO TAKE SOME TIME FOR
OUR EXPERTS TO LOOK THROUGH THIS BOOK, TO COMPARE IT WITH DR.
WEIR'S REPORT, WHICH WE'RE NOT GOING TO GET UNTIL MONDAY EVENING
APPARENTLY; AND HAVING A SINGLE DAY, TUESDAY, TO PREPARE FOR A
402 HEARING IS JUST NOT ENOUGH. SO I'M ASKING FOR MORE TIME THAN
THAT AND PREFERABLY THROUGH THE WEEKEND UNTIL THE NEXT MONDAY.
THE COURT: WELL, EXCUSE ME. LET ME FINISH THIS
DISCUSSION.
MR. HARMON.
MR. HARMON: WELL, IF YOU RECALL, YOUR HONOR, THIS WAS
THEIR REQUEST TO FORCE US TO DO THESE MIXTURE CALCULATIONS, AND
NOW THEY CLAIM THEY WANT TO CONTEST THE WAY THAT WE'VE DONE THEM,
WHICH WAS THE ISSUE ALL ALONG. WE'D BE HAPPY TO DROP THE WHOLE
MIXTURE STATISTICAL CALCULATION JUST SO THEY DON'T HAVE TO
PREPARE.
BUT WE ARE GETTING TO THE END OF THE CASE. THAT IS
MERELY ONE REFERENCE AMONG MANY OF THE REFERENCES THAT'S IN DR.
WEIR'S REPORT OR THE INITIAL DRAFT REPORT. SO IF WE LOSE THE
HEARING, THEN WE DON'T CALCULATE THE FREQUENCY MIXTURE OR THE
MIXTURE ESTIMATES.
I JUST POINT THAT OUT AS AN OBSERVER IN THIS EVENT.
SO -- WE ARE RUNNING OUT OF COURT DAYS THAT THE PROSECUTION CASE
WILL TAKE AND WE HAVE TRIED TO STRUCTURE THE LAST WITNESSES IN A
WAY THAT MAKES SENSE TO CONCLUDE THIS CASE, YOUR HONOR.
THE COURT: ALL RIGHT.
MR. THOMPSON, WOULD YOU PROVIDE ME WITH A COPY OF THE
-- OF DR. WEIR'S DRAFT REPORT SO I CAN HAVE SOME FEELING FOR WHAT
IT IS THAT WE'RE TALKING ABOUT, AND THEN I'M GOING TO ASK BOTH
SIDES TO GIVE ME A LIST OF THE AVAILABILITY OF THE EXPERTS THAT
THEY ANTICIPATE FOR THE 402.
I'LL MAKE MY OWN ASSESSMENT AS TO HOW DIFFICULT THIS
IS TO UNDERSTAND AND PREPARE FOR AND TAKE INTO CONSIDERATION THE
AVAILABILITY OF BOTH SIDES' WITNESSES AND I'LL SET THE DAY.
MR. HARMON: OKAY.
DR. WEIR WILL BE AVAILABLE TUESDAY AND WEDNESDAY AND
--
THE COURT: WELL, FIND OUT HIS EXTENDED AVAILABILITY.
MR. HARMON: OKAY.
THE COURT: ALL RIGHT.
MR. HARMON: YOUR HONOR, THE OTHER RELATED POINT IS, GARY
SIMS WILL BE BACK HERE IN ANTICIPATION OF TESTIFYING ON WED -- ON
TUESDAY RATHER. THE REPORT THAT COVERS THE RESULTS THAT HE'LL BE
PRESENTING, I'LL BE DELIVERING THAT TO THE COURT MONDAY MORNING.
DR. BLAKE HAS ALREADY REVIEWED MANY OF THOSE RESULTS.
I UNDERSTAND HE HAS AN APPOINTMENT TODAY OR TOMORROW TO RE-REVIEW
THEM. SO I JUST WANT TO ALERT THE COURT.
AND WE'VE TALKED TO MR. NEUFELD ABOUT THIS, THAT THE
MOST SUBSTANTIVE RESULT IS ONE THAT THE DEFENSE TRIED TO ELICIT
THEMSELVES ON CROSS-EXAMINATION ABOUT 117, AND YOU SUSTAINED MY
OBJECTION AT THAT POINT. SO IT WOULD APPEAR THAT THESE RESULTS
ARE NOT SOMETHING THAT THEY INTEND TO CHALLENGE, AND WE'D LIKE TO
PROCEED WITH MR. SIMS' TESTIMONY ON TUESDAY.
I HAD BEEN ADVISED A COUPLE DAYS AGO THAT MR. NEUFELD
OR MR. SCHECK MIGHT NOT BE HERE TUESDAY, AND I JUST ADVISE YOU
THAT. WE INTEND TO PROCEED WHETHER THEY'RE HERE OR NOT BECAUSE
THEY'RE PART OF THE TEAM. SO THAT'S JUST A LITTLE HEADS UP, YOUR
HONOR.
THE COURT: MR. COCHRAN.
MR. COCHRAN: MAY I BE HEARD IN THAT REGARD, YOUR HONOR?
THE COURT: YES.
MR. COCHRAN: THAT'S ONE OF THE PROBLEMS I'VE BEEN SAYING
CONSISTENTLY. MR. HARMON HAS BEEN ON VACATION FOR A COUPLE WEEKS
NOW AND PERHAPS HE HASN'T BEEN DOWN HERE.
BUT I'VE BEEN SAYING CONSISTENTLY, WE HAVE LAWYERS
SPREAD OUT AROUND THE COUNTRY. MR. SCHECK AND NEUFELD, AS FAR AS
I KNOW, ARE BOTH IN NEW YORK. WE NEED TIME FOR THAT.
FOR HIM TO TELL US ON FRIDAY AT 11:00 O'CLOCK HE'S
GOING TO BRING IN A WITNESS IN ON TUESDAY THAT EITHER ONE OR BOTH
OF THEM WILL BE WORKING TOGETHER ON, WE NEED A LITTLE MORE TIME,
YOUR HONOR. AND WE'VE SAID -- I'VE BEEN SAYING CONSISTENTLY TO
THE COURT I NEED TO KNOW THIS IN ADVANCE.
IT VIOLATES OUR THREE-DAY RULE AMONG OTHER THINGS AND
SO WE CAN MOVE RIGHT AHEAD, THERE WOULD BE NO DELAYS BECAUSE YOU
SAID YOU DON'T WANT A DELAY. SO WE NEED A LITTLE MORE TIME THAN
THAT.
THE COURT: WELL, WHAT IS THE AVAILABILITY OF MR. SCHECK
AND MR. NEUFELD? AND THIS IS A CASE IN PROGRESS. SO THIS SHOULD
TAKE LEGAL PRECEDENCE OVER ANYTHING ELSE, ANY OTHER ENGAGEMENTS
THAT THEY HAVE.
MR. COCHRAN: IT SHOULD, YOUR HONOR. BUT THE COURT IS
AWARE THEY LIVE IN NEW YORK AND THEY'VE BEEN OUT HERE FOR ABOUT
SIX MONTHS OFF AND ON. AND SO I HAVE TO SPEAK WITH THEM, YOUR
HONOR.
BUT WE HAVE A THREE-DAY RULE AND I'M HEARING THIS
NOW. IT VIOLATES THAT RULE. SO WE NEED A LITTLE MORE TIME.
OBVIOUSLY, WE'RE GOING TO TRY TO ACCOMMODATE THE COURT'S
SCHEDULE, BUT WE NEED A LITTLE MORE TIME IN THAT REGARD. THEY
BOTH ARE --
MR. HARMON: YOUR HONOR, THAT -- PERHAPS MR. COCHRAN WAS ON
VACATION WHEN MISS CLARK ANNOUNCED ON TUESDAY MORNING WHAT THE
NEXT SEQUENCE OF WITNESSES WILL BE.
MR. COCHRAN: I WAS NOT ON VACATION. IT CHANGES EVERY DAY.
THE ORDER CHANGES EVERY DAY.
MR. HARMON: THAT HASN'T CHANGED.
THE COURT: WAIT. COUNSEL, ONLY ONE OF YOU GETS TO TALK AT
A TIME.
MR. HARMON: THAT HASN'T CHANGED. WHAT I HAVE JUST
DESCRIBED IS CONSISTENT WITH MISS CLARK'S -- IF THE TRANSCRIPT
WILL BEAR US OUT. AND WE HAVEN'T JUST ANNOUNCED THIS TODAY.
MR. NEUFELD WAS ADVISED TWO DAYS AGO. SO TWO PLUS TWO IS FOUR.
AND I THINK WE'RE WELL IN COMPLIANCE WITH THE THREE-DAY RULE.
MR. COCHRAN: WELL, LET ME SAY THIS, YOUR HONOR.
THE PROSECUTION HAS CHANGED THEIR LIST OF WITNESSES
ON A DAILY BASIS. IN FACT, THEY TOLD US LAST WEEK WE'D SEE
SOMETHING ELSE. WE WERE GOING TO HAVE HAIR AND TRACE NEXT OR
BODZIAK NEXT.
WE'RE NOT CLEAR WHAT WE'RE HAVING. I HAVE A LIST
>FROM MR. DARDEN NOW. IT DOESN'T HAVE ANYTHING AT ALL ABOUT GARY
SIMS ON IT.
BUT AT ANY RATE, IF WE'RE GIVEN A CHANCE TO SPEAK
WITH MR. SCHECK AND NEUFELD, I'LL REPORT BACK TO THE COURT. BUT
I'M JUST SAYING THAT COULD BE A PROBLEM, AND THAT'S WHY I WANTED
TO BRING IT TO THE COURT'S ATTENTION.
THE COURT: ALL RIGHT.
I'M AWARE IT MAY BE A PROBLEM.
ALL RIGHT.
MR. THOMPSON: AND, YOUR HONOR, I WILL NEED SOME TIME TO
CONTACT EXPERTS AND FIND THE SCHEDULING INFORMATION, AND PERHAPS
I COULD NOTIFY THE COURT LATER THIS AFTERNOON.
THE COURT: THAT WILL BE FINE. AND YOU HAVE THE COURT'S
FAX NUMBER?
MR. THOMPSON: YES.
THE COURT: ALL RIGHT.
THANK YOU.
ALL RIGHT.
MR. RUBIN.
THE WITNESS: I'M HAVING SOME DIFFICULTY. CAN YOU GIVE ME
JUST ONE OR TWO MORE MINUTES HERE?
THE COURT: SURE.
DOES YOUR CURRENT COMPANY MAKE GLOVES AS WELL?
THE WITNESS: WALLETS.
THE COURT: WALLETS. GOOD.
(BRIEF PAUSE.)
THE COURT: THAT'S DOING IT THE HARD WAY.
THE WITNESS: THE LINING IS SLIGHTLY TORN AWAY AT THE
BACK. IT WAS TORN ANYWAY. BUT THE LINING IS NOW INSERTED INTO
THE GLOVE.
THE COURT: ALL RIGHT.
MR. COCHRAN: YOUR HONOR, MAY WE HAVE SOME INDICATION --
BECAUSE HE DID IN FACT SAY SOMETHING ABOUT, "I CAN'T GET THIS
ON," THAT I DON'T WANT IT TO BE AT OUR DETRIMENT. SO I WOULD ASK
THE COURT TO HAVE SOME CLARIFYING QUESTIONS OR WHATEVER IN THAT
REGARD. THE COURT CAN ASK A CLARIFYING QUESTION.
THE COURT: ALL RIGHT.
DO WE WANT TO STIPULATE THAT BETWEEN THE TIME THAT
MR. SIMPSON TRIED THE GLOVE ON IN FRONT OF THE JURY, THAT IT WAS
EXAMINED BY MR. -- BY COUNSEL FOR THE DEFENDANT AND BY DR. BADEN?
MR. COCHRAN: AND IT WAS FURTHER EXAMINED ACCORDING TO THE
CLERK BY MR. RUBIN THIS MORNING BEFORE COURT STARTED.
MR. DARDEN: NOT TRUE.
MR. COCHRAN: SOMEBODY LOOKED AT IT FROM THE PROSECUTION
SIDE. WE CAN ASK THE CLERK TO COME OUT.
MR. DARDEN: NOT TRUE.
MR. COCHRAN: MAY WE ASK DEIRDRE, YOUR HONOR? I WOULD LIKE
THE STIPULATION TO INCLUDE EVERYBODY WHO LOOKED AT THE GLOVE AND
EXAMINED IT.
THE COURT: AND, MR. RUBIN, WHAT SIZE IS THAT GLOVE NOW?
MR. COCHRAN: I OBJECT TO THAT QUESTION, YOUR HONOR.
THE COURT: WE DON'T HAVE A JURY IN FRONT OF US, DO WE?
THE WITNESS: RIGHT NOW?
THE COURT: YES.
THE WITNESS: THIS IS ACTUALLY CLOSER TO A LARGE THAN AN
EXTRA LARGE AT THIS POINT.
THE COURT: MRS. ROBERTSON, THIS MORNING, WITH REGARDS TO
THE TWO EVIDENTIARY GLOVES, WERE THEY INSPECTED BY ANYBODY?
THE CLERK: THE GLOVES?
THE COURT: YES.
THE CLERK: THEY WERE JUST TURNED OVER WHEN I GOT THEM OUT
OF THE CLOSET.
THE COURT: ALL RIGHT.
SHE INDICATES NO.
ALL RIGHT.
DEPUTY MAGNERA, LET'S HAVE THE JURORS, PLEASE.
AND, MR. RUBIN, WHY DON'T YOU JUST REMAIN SEATED.
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, IN THE
PRESENCE OF THE JURY:)
THE COURT: THANK YOU, LADIES AND GENTLEMEN. PLEASE BE
SEATED.
LET THE RECORD REFLECT WE'VE BEEN REJOINED BY ALL THE
MEMBERS OF OUR JURY PANEL.
MR. RICHARD RUBIN IS AGAIN ON THE WITNESS STAND
UNDERGOING DIRECT EXAMINATION.
MR. RUBIN, YOU ARE REMINDED, SIR, YOU ARE STILL UNDER
OATH.
MR. DARDEN, YOU MAY CONCLUDE YOUR REDIRECT
EXAMINATION.
MR. DARDEN: THANK YOU, YOUR HONOR.
Q BY MR. DARDEN: MR. RUBIN, JUST BEFORE THE BREAK, YOU
TESTIFIED THAT YOU COULD NOT EXTEND YOUR HAND THROUGH THE GLOVE
MARKED EXHIBIT 77; IS THAT CORRECT?
A THAT'S CORRECT.
THE COURT: AND, LADIES AND GENTLEMEN, I SHOULD TELL YOU,
MR. RUBIN DID TESTIFY THAT HE COULD NOT GET HIS HAND INTO THE
LEFT-HAND GLOVE.
OVER THE EVENING HOURS OUT OF YOUR PRESENCE, THE
GLOVE WAS EXAMINED BY A NUMBER OF PEOPLE WITH THE COURT'S
PERMISSION, AND THE GLOVE WAS TURNED INSIDE OUT AND WAS EXAMINED.
SO THAT EXPLAINS HOW THE LINING IS DISLODGED FROM THE FINGERS.
ALL RIGHT.
MR. DARDEN.
Q BY MR. DARDEN: AND HAVE YOU ATTEMPTED AS BEST YOU
COULD TO REPLACE THE LINING IN ITS PROPER POSITION?
A YES, I HAVE.
Q AND YOU CAN EXTEND YOUR HAND INTO THE GLOVE NOW?
A YES, I CAN.
Q OKAY.
AND YOU HAVE THE GLOVE ON?
A YES, I DO.
Q AND WHAT SIZE IS THE GLOVE NOW TODAY?
MR. COCHRAN: YOUR HONOR, MY CONTINUING OBJECTION TO THIS
SPECULATION.
THE COURT: NOTED.
OVERRULED.
YOU CAN ANSWER THE QUESTION.
THE WITNESS: IT'S CLOSER TO A SIZE LARGE THAN AN EXTRA
LARGE.
Q BY MR. DARDEN: BUT WHEN MANUFACTURED AND PURCHASED,
IT WAS AN EXTRA LARGE?
A YES, IT WAS.
MR. COCHRAN: ASKED AND ANSWERED.
THE COURT: OVERRULED.
MR. DARDEN: THANK YOU.
THE COURT: MR. COCHRAN.
MR. COCHRAN: THANK YOU VERY KINDLY, YOUR HONOR.
THE COURT: YOU'RE WELCOME, SIR.
CROSS-EXAMINATION
BY MR. COCHRAN:
Q GOOD MORNING, MR. RUBIN.
A GOOD MORNING, MR. COCHRAN.
Q I THOUGHT YOU WERE LEAVING YESTERDAY.
A SO DID I.
Q IN FACT, I GUESS THE EVENTS --
MR. DARDEN: OBJECTION, YOUR HONOR.
MR. COCHRAN: I HAVEN'T ASK ANY QUESTIONS, YOUR HONOR.
THE COURT: ASK A QUESTION, MR. COCHRAN.
MR. COCHRAN: MAY I ASK A QUESTION?
Q BY MR. COCHRAN: AS YOU WERE LEAVING YESTERDAY, DID
YOU SAY SOMETHING TO MR. SIMPSON?
MR. DARDEN: OBJECTION.
THE COURT: OVERRULED.
THE WITNESS: I WISHED HIM THE BEST OF LUCK.
Q BY MR. COCHRAN: YES.
AND AT THAT TIME, YOU THOUGHT YOU WERE GOING BACK TO
NEW YORK; IS THAT RIGHT?
A THAT'S CORRECT.
Q YOU LIVE IN NEW YORK, NEW JERSEY AREA, DO YOU, SIR?
A YES.
Q ALL RIGHT.
YOU'RE STILL WITH US, AND JUST BRIEFLY, I'D LIKE TO
ASK YOU SOME QUESTIONS.
NOW, AS I UNDERSTAND YOUR TESTIMONY, YOU LAST WORKED
FOR THE ARIS GLOVE MANUFACTURERS BACK IN ABOUT JULY 1990; IS THAT
CORRECT?
A THAT'S CORRECT.
Q AND IN YOUR PRESENT WORK, YOU'RE NOT WORKING WITH
GLOVES PER SE NOW, ARE YOU?
A NO, I'M NOT.
Q SO I'D BE CORRECT THEN THAT YOU FOR THE LAST FIVE
YEARS OR SO HAVE BEEN DOING SOME OTHER KIND OF WORK; IS THAT
CORRECT?
A THAT'S CORRECT.
Q ALL RIGHT.
AND WITH REGARD TO GOLF GLOVES, HAVE YOU EVER WORKED
IN GOLF GLOVES, THE MANUFACTURE OF GOLF GLOVES?
A YES, I HAVE.
Q AND WHEN WAS THAT?
A 1990 AND PRIOR.
Q AND THAT WAS -- ARIS MAKES GOLF GLOVES ALSO?
A ON OCCASION, YES, THEY HAVE.
Q ALL RIGHT.
BUT WITH REGARD TO THE THREE SETS OF GOLF GLOVES --
MR. COCHRAN: IF I CAN GET THEM, YOUR HONOR?
THE COURT: YES.
MR. COCHRAN: I SAW THEM OVER HERE.
THE COURT: JUST LOST MRS. ROBERTSON.
DEPUTY MAGNERA -- MRS. ROBERTSON, WE NEED THE GOLF
GLOVES.
Q BY MR. COCHRAN: WITH REGARD TO THESE THREE GOLF
GLOVES WHICH YOU WERE ASKED ABOUT ON RE-RE-REDIRECT EXAMINATION,
YOU NEVER WORKED FOR ANY OF THESE COMPANIES, DID YOU, THE
COMPANIES THAT MADE THESE PARTICULAR GLOVES?
A I ACTUALLY WAS INVOLVED WITH ONE OF THE COMPANIES
THAT MADE ONE OF THE GLOVES, BUT I DID NOT WORK FOR THAT COMPANY.
Q ALL RIGHT.
SO THE ANSWER TO MY QUESTION IS, YOU DID NOT WORK FOR
ANY OF THESE COMPANIES, RIGHT?
A NO, I DID NOT.
Q AND DO YOU PLAY GOLF?
A ON A RARE OCCASION.
Q ALL RIGHT.
AND HAVE YOU EVER PURCHASED A GOLF GLOVE?
A NO. I JUST TOOK THEM OUT OF INVENTORY.
Q NO. NO, I WANT -- DID YOU REPORT THAT?
A IT'S PART OF THE PERKS.
Q I UNDERSTAND.
SO WITH REGARD TO TAKING THEM OUT OF INVENTORY, YOU
ARE AWARE AS A GOLFER, A SOMETIME GOLFER THAT GOLF GLOVES ARE
WORN VERY, VERY TIGHTLY; ISN'T THAT CORRECT?
A THAT'S CORRECT.
Q AND YOU'RE AWARE ALSO, AREN'T YOU, IF YOU WERE A
GOLFER THAT AFTER YOU'VE PLAYED WITH A SET OF GOLF GLOVES FOR
MORE THAN ONE OR TWO ROUNDS, YOU DISCARD THEM BECAUSE THEY BECOME
LOOSE; ISN'T THAT CORRECT?
A NOT NECESSARILY.
Q HOW MANY TIMES -- HOW MANY ROUNDS OF GOLF HAVE YOU
PLAYED IN THE LAST YEAR?
A ONE OR TWO.
Q SO YOU'RE NOT -- YOU DON'T PLAY MUCH GOLF, DO YOU?
A NO, I DON'T.
Q IN THE LAST FIVE YEARS, HOW MANY ROUNDS OF GOLF HAVE
YOU PLAYED?
A 10.
Q SO IN THIS NEW JOB, YOU DON'T PLAY MUCH GOLF, DO YOU?
A NOT AT ALL.
Q ALL RIGHT.
SO YOU'RE NOT AN EXPERT IN THAT AREA, ARE YOU?
A AS FAR AS GOLF GLOVES OR PLAYING GOLF?
Q YES. I'M TALKING ABOUT THE USAGE OF GOLF GLOVES
WHILE PLAYING GOLF.
A I AM EXTREMELY KNOWLEDGEABLE CONCERNING THE USAGE OF
GOLF GLOVES, YES.
Q YOU ARE.
AND IS IT YOUR TESTIMONY THAT GOLFERS USE GOLF GLOVES
INDEFINITELY AND PLAY AS MANY ROUNDS AS THEY WANT WITH A SET OF
GOLF GLOVES AND NEVER THROW THEM AWAY?
A NO. THAT'S NOT TRUE.
Q ALL RIGHT.
AND, IN FACT, GOLF GLOVES ARE -- THEY FIT VERY
TIGHTLY, DON'T THEY, SIR?
A YES.
Q AND THAT'S ONE OF THE REQUIREMENTS AS YOU SWING THE
GOLF CLUB; ISN'T THAT CORRECT?
A CORRECT.
Q AND ONCE THEY LOSE OR THEY STRETCH AND THEY LOSE THAT
TIGHTNESS, YOU GENERALLY DISCARD THEM; ISN'T THAT CORRECT?
A CORRECT.
Q GOLF GLOVES AREN'T VERY EXPENSIVE, ARE THEY, SIR?
A YOU WANT TO KNOW THE PRICES OF THOSE GOLF GLOVES?
Q YEAH. DO YOU KNOW THEM?
A THOSE GLOVES RANGE FROM --
Q THIS GLOVE HERE, HOW MUCH IS THIS GLOVE?
A THAT WAS MOST LIKELY A GIFT, BUT --
Q WELL, ISN'T THAT SPECULATION?
A -- IN GENERAL --
Q WAIT A MINUTE.
HOW DO YOU KNOW THAT?
A BECAUSE OF THE LOGO ON THE TAB. THAT GLOVE WAS NOT
NECESSARILY SOLD. THAT MOST LIKELY, IT WAS GIVEN AWAY AS A GIFT.
Q YOU CAN TELL THIS JURY BY LOOKING AT THIS TAG THIS
GOLF GLOVE WAS MOST LIKELY A GIFT? YOU CAN TELL US THAT?
A IT COULD VERY WELL BE. MOST OF THE TIMES THEY'RE
CUSTOM MADE, THEY'RE USUALLY PART OF PROMOTIONS OR BENEFITS
DURING GOLF OUTINGS, ET CETERA. IT COULD HAVE BEEN A GIFT. THE
OTHER TWO ARE TRADITIONALLY PURCHASED.
MR. DARDEN: EXCUSE ME, YOUR HONOR. WHICH GLOVE IS COUNSEL
REFERRING TO?
MR. COCHRAN: AND FOR THE RECORD, COUNSEL IS CORRECT.
Q BY MR. COCHRAN: WHICH ONE ARE WE TALKING ABOUT, SIR?
I'LL LET YOU TELL US.
A THE ONE WITH THE PALM TREE ON IT.
Q YES. DO YOU KNOW WHAT COMPANY MAKES THIS?
A NO, I DO NOT.
Q SO YOU HAVE -- YOU HAVE NOT SEEN ANY SALES RECORDS.
YOU DON'T KNOW IF MR. SIMPSON OR ANYONE ELSE BOUGHT THIS, DO YOU?
A I DO NOT.
Q THAT'S JUST RANK SPECULATION, ISN'T IT, ON YOUR PART?
A CORRECT.
Q ALL RIGHT.
NOW, WITH REGARD TO THIS PARTICULAR INSIGNIA, YOU HAD
SAID THAT -- AND I'M TRYING TO -- THE ONE WITH THE PALM TREE THAT
YOU CALLED IT HAD A "PXL" THEREON; IS THAT CORRECT?
A YES.
Q AND DO YOU KNOW WHAT THE "PXL" STANDS FOR?
A I DO NOT KNOW WHAT THE "P" STANDS FOR. I BELIEVE THE
"XL" STANDS FOR THE SIZE.
Q ARE YOU AWARE THAT THE "P" STANDS FOR PALM EXTRA
LARGE? ARE YOU AWARE OF THAT?
A I'VE NEVER HEARD THAT TERMINOLOGY.
Q WOULD YOU BE SURPRISED AT THAT?
A YES.
Q YOU'D BE SURPRISED?
A YES.
Q AS AN EXPERT IN THE FIELD, YOU'D BE SURPRISED IF
SOMEBODY WALKS IN THIS COURTROOM AND SAYS THAT THIS GOLF GLOVE
HERE WITH THE PALM TREE THEREON, THAT THEY MAKE A PALM EXTRA
LARGE. YOU WOULD BE SURPRISED AT THAT, WOULD YOU?
A YES, I WOULD.
Q ALL RIGHT.
NOW, LET'S LOOK AT THE OTHER ONE, THAT YOU SAID THERE
WAS A -- THERE WAS A "CXL" ON THE FOOTJOY I THINK; IS THAT RIGHT?
A YES.
Q AND DO YOU KNOW WHAT THE "C" STANDS FOR?
A I BELIEVE IT ACTUALLY STANDS FOR CADET EXTRA LARGE.
Q YOU THINK THAT'S WHAT IT STANDS FOR?
A YES.
Q AND WHAT IS YOUR BASIS FOR THAT INFORMATION?
A TRADITIONALLY, IN THE MANUFACTURING OF ALL GLOVES,
THE FINGER LENGTH IS PRETTY SPECIFICALLY NORMAL BASED UPON THE
SIZE OF THE HAND. BUT ON OCCASION, THEY MAKE SOME PRODUCTION
WITH A SLIGHTLY SMALLER FINGER LENGTH WHICH IS INDICATED BY A "C"
OR USED UNDER THE TERMINOLOGY, CALLED CADET.
Q ALL RIGHT.
HAVE YOU EVER WORKED AT FOOTJOY?
A NO.
Q ALL RIGHT.
AND YOU'VE NEVER CHECKED ANY RECORDS WITH REGARD TO
WHETHER OR NOT THIS PARTICULAR GLOVE THAT I HAVE IN MY HAND WITH
THE "FJ" ON -- AS A LOGO THEREON WAS PURCHASED BY MR. SIMPSON OR
ANYONE ELSE, DO YOU?
A NO.
Q AND YOU'RE NOT SURE WHAT THE "C" STANDS FOR, BUT YOU
BELIEVE IT STANDS FOR CADET, EXTRA LARGE?
A I BELIEVE SO.
Q ALL RIGHT.
NOW, WITH REGARD TO THE THIRD GLOVE WE'VE BEEN
TALKING ABOUT THAT HAS -- IT LOOKS LIKE SOME KIND OF A RUNNING
ANIMAL.
A YES.
Q IS THAT YOUR INDICATION? BUT IT HAS SOMETHING SAYING
SLAZENGER.
A SLAZENGER.
Q S-L-A-Z-E-N-G-E-R.
WITH REGARD TO THAT --
MR. DARDEN: I'M SORRY. CAN WE GET THE EXHIBIT NUMBER,
YOUR HONOR?
MR. COCHRAN: CERTAINLY, COUNSEL.
1053-C, COUNSEL.
Q BY MR. COCHRAN: WITH REGARD TO 1053-C, AGAIN, YOU
HAVE NO INFORMATION, YOU HAVEN'T TALKED TO THIS COMPANY, HAVE
YOU?
A NO, I HAVEN'T.
Q ALL RIGHT.
AND WITH REGARD TO THE "RXL," DO YOU KNOW WHAT THE
"R" STANDS FOR?
A IF I HAD TO SPECULATE, IT WOULD BE REGULAR XL.
Q OKAY.
BUT THAT'S SPECULATION, ISN'T IT?
A YES, IT IS.
Q BECAUSE YOU HAVEN'T CHECKED THAT OUT, HAVE YOU?
A NO.
Q ALL RIGHT.
NOW, WITH REGARD TO GOLF GLOVES, THEY'RE NOT LINED
EITHER, ARE THEY?
A NO, THEY'RE NOT.
Q SO THEY'RE NOT -- THEY'RE DESIGNED TO FIT SNUGLY FOR
USE IN GOLFING; IS THAT CORRECT?
A THAT'S CORRECT.
Q AND PRIOR TO YESTERDAY'S DEMONSTRATION BY MR.
SIMPSON, WERE YOU EVER SHOWN THESE GOLF GLOVES BY THE
PROSECUTORS?
A NO, I WAS NOT.
Q WHEN WERE YOU FIRST SHOWN THESE GOLF GLOVES?
A WHEN THEY CAME OUT OF THE BAG.
Q THIS MORNING?
A WHEN I TOOK THEM OUT OF THE BAG RIGHT HERE.
Q IN COURT?
BUT YOU AT SOME POINT WERE TOLD YOU WERE GOING TO BE
ASKED TO STAY OVER, WEREN'T YOU, FROM NEW YORK?
A YES.
Q WHEN WERE YOU TOLD THAT?
MR. DARDEN: OBJECTION. IRRELEVANT, YOUR HONOR.
THE COURT: OVERRULED.
THE WITNESS: I GUESS IT WAS APPROXIMATELY AN HOUR OR SO
AFTER COURT CLOSED YESTERDAY.
Q BY MR. COCHRAN: WERE YOU STILL UPSTAIRS TALKING
ABOUT WHAT HAD HAPPENED DOWN HERE?
A YES.
Q AND YOU WERE ASKED TO STAY OVER UNTIL TODAY; IS THAT
CORRECT, SIR?
A THAT'S CORRECT.
Q AND YOU WANT TO GO HOME, DON'T YOU?
MR. DARDEN: OBJECTION, YOUR HONOR.
THE COURT: OF COURSE HE WANTS TO GO HOME.
Q BY MR. COCHRAN: YOU WANT TO GO HOME, DON'T YOU?
A YES, I DO.
Q ALL RIGHT.
WE'LL TRY TO GET YOU OUT OF HERE.
ALL RIGHT.
NOW, WITH REGARD TO YOUR STAYING OVER, YOU SPENT SOME
TIME TALKING WITH THE DISTRICT ATTORNEYS ABOUT YOUR TESTIMONY
TODAY; ISN'T THAT CORRECT?
A YES.
Q AND WHO DID YOU TALK TO?
A I SPOKE PRIMARILY WITH MR. DARDEN.
Q AND WHO ELSE WAS THERE? TELL US ALL THE PEOPLE WHO
WERE THERE.
A MR. DARDEN, BILL HODGMAN, DAVID WOODEN. THERE WERE
ALSO SOME OFFICERS.
Q SOME INVESTIGATORS OF THE D.A.'S OFFICE?
A YES.
Q ALL RIGHT.
DID YOU EVER SEE THE D.A., MR. GIL GARCETTI? POKED
HIS HEAD IN ALSO, DID HE?
A HE PUT HIS HEAD IN THE DOOR ONCE.
Q HE CAME IN TOO, DIDN'T HE?
A YES.
Q ALL RIGHT.
AND THIS MEETING STARTED WHAT TIME?
MR. DARDEN: OBJECTION. ASSUMES FACTS NOT IN EVIDENCE.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. COCHRAN: THIS CONFERENCE, WERE YOU ALL
TOGETHER?
MR. DARDEN: SAME OBJECTION.
THE COURT: SUSTAINED.
Q BY MR. COCHRAN: WHEN YOU ALL GOT TOGETHER, WHAT TIME
WAS IT?
A I THINK IT WAS APPROXIMATELY QUARTER TO 6:00.
Q AND THAT GET TOGETHER LASTED HOW LONG?
A APPROXIMATELY AN HOUR AND 15 MINUTES.
Q AND YOU WERE FINISHED AT WHAT TIME?
A APPROXIMATELY 7:00 O'CLOCK.
Q AND DID YOU COME BACK AGAIN THIS MORNING AND HAVE
SOME FURTHER CONVERSATION?
A YES, I DID.
Q AND WHAT TIME DID YOU GET BACK HERE THIS MORNING?
A 7:30.
Q 7:30 A.M.?
A YES.
Q AND -- NOW, FIRST, LET'S BACK UP FOR A MOMENT.
IN THE HOUR AND 15-MINUTE MEETING THAT YOU HAD LAST
NIGHT, WHOSE OFFICE WAS THAT IN?
A MR. DARDEN'S.
Q AND SO WERE THERE ANY OTHER D.A.'S, DEPUTY D.A.'S YOU
CAN TELL US ABOUT WHO WERE PRESENT OTHER THAN THE ONES YOU TOLD
US; MR. WOODEN, BILL HODGMAN, THE DISTRICT ATTORNEY HIMSELF STUCK
HIS HEAD IN? ANYBODY ELSE THAT YOU CAN RECALL?
A I DON'T -- I DON'T REMEMBER ALL THEIR NAMES. THERE
WERE PEOPLE IN THE HALLWAY --
Q PEOPLE ALL AROUND?
A PEOPLE ALL AROUND.
Q OKAY.
DID YOU SEE THIS GENTLEMAN HERE SOMEWHERE AROUND?
A YES.
Q AND THIS GENTLEMAN BY THE -- FOR THE RECORD, HIS NAME
IS SCOTT GORDON. YOU SAW HIM AROUND?
A YES.
Q DID YOU SEE THE LADY IN THE MIDDLE, MISS MARCIA
CLARK, ANYWHERE AROUND?
A I SAW HER WALK BY THE HALLWAY. SHE DIDN'T COME IN
THE OFFICE.
Q ALL RIGHT.
AND THERE WERE OTHER PEOPLE, YOU JUST DON'T KNOW
THEIR NAMES; IS THAT CORRECT?
A I JUST DON'T REMEMBER THEIR NAMES.
Q OKAY.
I UNDERSTAND, MR. RUBIN.
AND THEN YOU RETURNED THIS MORNING BY PREARRANGEMENT
I PRESUME AT 7:30 A.M.; IS THAT CORRECT?
A THAT'S CORRECT.
Q AND WHERE DID YOU GO AND -- WHERE DID YOU TALK AND
MEET THIS MORNING?
A IN MR. DARDEN'S OFFICE.
Q ALL RIGHT.
AND THE MEETING STARTED AT 7:30?
A YES, IT DID.
Q AND TELL US WHO WAS PRESENT AT 7:30 THIS MORNING WHEN
YOU STARTED THAT MEETING.
A MR. DARDEN, MR. HODGMAN, THIS GENTLEMAN HERE
(INDICATING).
Q MR. SCOTT GORDON?
A YES. PRIMARILY IT.
Q ALL RIGHT.
ANYBODY ELSE COME IN DURING THAT MEETING?
A MIKE STEVENS.
Q MR. MIKE STEVENS IS ONE OF THE DISTRICT ATTORNEY
SENIOR INVESTIGATORS?
A YES.
Q ALL RIGHT.
A I THINK TOM LANGE CAME IN.
Q LAPD DETECTIVE TOM LANGE?
A YES.
Q OKAY.
ANYBODY ELSE THAT YOU RECALL?
A THERE WERE SOME OTHER PEOPLE PASSING BACK AND FORTH,
BUT I DON'T REMEMBER THEIR NAMES.
Q ALL RIGHT.
AND THAT MEETING STARTED AT 7:30, AND HOW LONG DID IT
LAST?
A UNTIL ABOUT QUARTER TO 9:00.
Q SO RIGHT BEFORE COURT?
A YES.
Q SO AGAIN, YOU MET THEN ABOUT ANOTHER HOUR AND 15
MINUTES MORE?
A THAT'S CORRECT.
Q AND DURING THAT TIME, YOU TALKED ABOUT YOUR TESTIMONY
THAT YOU WOULD BE GIVING HERE TODAY; IS THAT CORRECT, SIR?
A NO.
Q YOU DIDN'T TALK ABOUT YOUR TESTIMONY AT ALL?
A NOT AT ALL.
Q YOU DIDN'T DISCUSS WHICH QUESTIONS MR. DARDEN HAD
TYPED UP TO ASK YOU?
A OH, YOU MEAN TODAY'S TESTIMONY?
Q YES, SIR.
A YES, WE DISCUSSED TODAY'S TESTIMONY.
Q ALL RIGHT.
YOU TALKED ABOUT TODAY'S TESTIMONY?
A YES.
Q THAT'S ONE OF THE REASONS YOU WERE HAVING THAT
MEETING, WASN'T IT?
A CORRECT.
Q ALL RIGHT.
AND HE TOLD YOU WHAT HE WAS GOING TO BE ASKING YOU;
IS THAT CORRECT?
A YES.
Q ALL RIGHT, SIR.
NOW, THEN YOU CAME DOWN HERE TO COURT SHORTLY BEFORE
9:00 O'CLOCK, IS THAT CORRECT, TO TAKE THE STAND?
A THAT'S CORRECT.
Q ALL RIGHT.
AND YOU WERE TOLD, WERE YOU NOT, THAT YOU WERE GOING
TO BE ASKED --
THE COURT: EXCUSE ME, COUNSEL.
MR. COCHRAN: YES, YOUR HONOR.
THE COURT: IS THERE SOMETHING GOING ON WE NEED TO KNOW
ABOUT BACK THERE?
(BRIEF INTERRUPTION DUE TO
THE NOISE IN THE AUDIENCE.)
THE COURT: ALL RIGHT.
PROCEED, MR. COCHRAN. SORRY FOR THE INTERRUPTION.
MR. COCHRAN: NO PROBLEM, YOUR HONOR. NO PROBLEM.
Q BY MR. COCHRAN: YOU WERE TOLD DURING THE COURSE OF
THESE TWO MEETINGS OF AN HOUR AND 15 MINUTES LENGTH EACH THAT YOU
WOULD BE ASKED SOME QUESTIONS ABOUT THE GOLF CLUBS, IS THAT
CORRECT, ITEMS 1053 I GUESS A, B AND C?
A IT WAS MENTIONED THAT THAT MIGHT OCCUR.
Q ALL RIGHT.
SO YOU WERE AWARE OF THAT; IS THAT CORRECT?
A THAT'S CORRECT.
Q OKAY, SIR.
NOW, LET'S GO BACK FOR A MOMENT, AND WITH REGARD TO
THE TWO GLOVES THAT YOU HAVE TRIED ON FOR US -- AND YOU SHARED
WITH US YOU WORKED FOR A PERIOD OF TIME PRIOR TO 1990 FOR ARIS,
AND WHEN YOU LEFT, YOU WERE VICE PRESIDENT OF SOME KIND; IS THAT
CORRECT?
A I WAS VICE PRESIDENT, GENERAL MANAGER OF ARIS
ISOTONER WHEN I LEFT.
Q ALL RIGHT.
AND THOSE GLOVES, WHEN THEY WERE MADE BETWEEN THE
PERIOD WE TALKED ABOUT, 1982 TO 1992, WERE THEY IN SOME WAY
SHRINK-PROOF?
A NO.
Q DID THEY HAVE SOME KIND OF TREATMENT TO KEEP THEM
>FROM SHRINKING?
A NO.
Q THE MANUFACTURER? NOT AT ALL?
A NOT AT ALL.
Q AND SO THE -- IF A PERSON THEN BOUGHT GLOVES
PRESUMABLY TO WEAR IN THE WINTER IN THE EASTERN PART OF THE
UNITED STATES, IT WOULD BE ANTICIPATED THOSE GLOVES WOULD GET
WET; ISN'T THAT CORRECT?
A IT WOULD HAPPEN ON OCCASION.
Q ALL RIGHT.
ON OCCASION, THEY WOULD BECOME WET; IS THAT RIGHT?
AND WITH REGARD TO THAT LEATHER, IS THAT ONE REASON
WHY THE FAT LIQUOR IS -- BECAME A PART OF THE PROCESS IN
PREPARING THESE GLOVES?
A THAT'S CORRECT.
Q AND THE REASON WHY THE FAT LIQUOR WAS USED WAS TO
DIMINISH THE AMOUNT OF SHRINKAGE; IS THAT CORRECT?
A IT WAS MORE SO TO HAVE THE LEATHER RETAIN ITS MEMORY
AND CREATE AN ELASTIC CAPABILITY VERSUS THE SHRINKAGE.
Q ALL RIGHT.
SO ELASTIC CAPABILITY, WHICH MEANS THAT IT CAN
STRETCH; IS THAT CORRECT?
A THAT'S CORRECT.
Q ALL RIGHT.
SO THAT IF GLOVES, SIR -- AND THESE GLOVES COST A LOT
OF MONEY, DIDN'T THEY? THEY WERE -- THEY WERE BEYOND THE $20
AVERAGE YOU TOLD US ABOUT, LEATHER GLOVES; IS THAT RIGHT?
A THAT'S CORRECT.
Q SO IF YOU BOUGHT A PAIR OF GLOVES IN THE WINTER OF
'90 AND THEY GOT WET AND YOU PUT THEM AWAY, YOU'D EXPECT TO BE
ABLE TO USE THOSE GLOVES AGAIN IN THE WINTER OF '91; ISN'T THAT
CORRECT?
A THAT'S CORRECT.
Q AND YOUR PRODUCT -- YOU DON'T MAKE A PRODUCT THAT
JUST BECAUSE THEY GET WET OR HAVE SOME PRECIPITATION, THAT YOU
THROW THEM AWAY AT THE END OF EACH USE. THEY'RE NOT USABLE
GLOVES. THEY'RE NOT ONE TIME USABLE GLOVES, ARE THEY?
A THEY ARE NOT DISPOSABLE.
Q ALL RIGHT.
THESE GLOVES ARE TO LAST A LONG TIME. THAT'S ONE OF
THE THINGS YOU PRIDE YOURSELF ON; ISN'T THAT CORRECT?
A THAT'S CORRECT.
Q AND THEY'RE MADE IN SUCH A FASHION SO THEY ARE
SUPPOSED TO BE ELASTIC AND THEY COME BACK FOR USE; ISN'T THAT
CORRECT, SIR?
A THAT'S CORRECT.
Q NOW, ARE YOU -- AS AN EXPERT, DO YOU KNOW --
ASSUME HYPOTHETICALLY THESE GLOVES WERE PURCHASED IN
1989 OR IN 1990, AND LET'S ASSUME THEY WERE WORN DURING THE
WINTER, DURING THAT TIME, RAIN AND SNOW. YOU CAN'T TELL THIS
JURY HOW MUCH THOSE GLOVES SHRUNK DURING THAT PERIOD OF TIME, CAN
YOU?
A I CANNOT.
Q YOU HAVE NO WAY OF KNOWING THAT, DO YOU?
A I HAVE NO WAY OF KNOWING HOW MUCH LIQUID OR RAIN OR
SNOW OR WHATEVER, YOU KNOW, ELEMENTS WENT ONTO THE PRODUCT AND
ACTUALLY HOW THEY WERE DRIED.
Q SO YOU HAVE NO WAY OF KNOWING THAT?
A I DO NOT.
Q IT WOULD BE RANK SPECULATION AGAIN IF YOU TOLD US
THAT, WOULDN'T IT?
A I WOULDN'T SPECULATE ON SOMETHING LIKE THIS.
Q YOU WOULDN'T DO THAT, WOULD YOU?
A NO, I WOULD NOT.
Q AND THOSE GLOVES WE HAVE BEEN TALKING ABOUT, THE TWO
GLOVES, ITEM NO. 9, LAPD NUMBER, AND I THINK ITEM NO. 77, THOSE
GLOVES ARE -- ESPECIALLY ONE OF THEM IS USED. IT HAS SOME --
IT'S WORN IN THE PALM AREA, ISN'T IT?
A THAT'S CORRECT.
Q THERE'S LIKE A HOLE OR SOMETHING IN THAT PALM AREA;
ISN'T THAT CORRECT?
A IT APPEARS THAT WAY.
Q ALL RIGHT.
AND SO THAT INDICATES TO YOU THOSE GLOVES HAVE BEEN
USED OVER A PERIOD OF TIME; ISN'T THAT CORRECT?
A YES, IT DOES.
Q AND SO YOU CAN'T TELL US ANYTHING ABOUT THE HISTORY
OF THOSE GLOVES FROM '89, '90, '91, '92, '93, '94, WHATEVER, CAN
YOU?
A NO, I CANNOT.
Q ALL RIGHT.
NOW, WITH REGARD TO ANY LIQUID THAT YOU SAID YOU SAW
ON THESE GLOVES NOW, YOU HAVE NOT AND YOU DO NOT AND CANNOT
MEASURE ANY LIQUID THAT MAY OR MAY NOT BE ON THOSE GLOVES, CAN
YOU?
A I DON'T HAVE THAT CAPABILITY.
Q ALL RIGHT.
I UNDERSTAND THAT.
AND SO WHEN YOU'VE GIVEN US THESE ESTIMATES OF THE
SIZE OF THESE GLOVES OR WHATEVER, THAT'S JUST YOUR BEST
ESTIMATE, IS THAT CORRECT, REGARDING THESE GLOVES?
A AFTER TRYING THEM ON?
Q YEAH. TRYING THEM ON.
A EXCUSE ME?
Q YOUR BEST ESTIMATE?
A IT'S MY ESTIMATE BASED UPON MY EXPERIENCE OF -- IN
THE MANUFACTURING PROCESS, I WOULD CONTINUALLY TRY ON ALL
PRODUCTION OF ALL SIZES TO CHECK QUALITY CONTROL.
Q I UNDERSTAND THAT.
YOU ALSO TOLD US THIS MORNING AND ALSO YESTERDAY THAT
YOUR GLOVES WERE MANUFACTURED IN SUCH A WAY THAT WHETHER A PERSON
WAS A MEDIUM OR LARGE OR EXTRA LARGE, THEY SHOULD BE ABLE TO FIT
THE SAME GLOVE. DID YOU SAY THAT?
A WHAT I SAID SPECIFICALLY WAS THAT A PERSON WITH A
SIZE LARGE TO EXTRA LARGE HAND COULD GET A SIZE MEDIUM GLOVE ON
HIS HAND. THAT WOULD NOT BE -- IT WOULD NOT BE COMFORTABLE, BUT
IT WOULD ACTUALLY STRETCH ENOUGH TO POSSIBLY GO OVER HIS HAND.
THAT'S WHAT I SAID.
Q THAT'S BECAUSE THE GLOVES HAVE ELASTICITY; IS THAT
CORRECT?
A ESPECIALLY AT THE INITIAL POINT OF PURCHASE.
Q UH-HUH.
SO THAT IF THOSE GLOVES NOW ARE LARGE UNDER YOUR
SCENARIO, SOMEONE SHOULD BE ABLE TO FIT THOSE ON, ISN'T THAT
CORRECT, SOMEONE WHO WEARS AN EXTRA LARGE?
A NO. THESE GLOVES HAVE ACTUALLY DECREASED IN SIZE DUE
TO THE AMOUNT OF FAT LIQUOR THAT HAD BEEN ABSORBED BY CERTAIN
LIQUIDS. SO THESE GLOVES CAN NEVER GET BACK TO THE ORIGINAL SIZE
AT THIS POINT IN THIS SPECIFIC CONDITION.
Q AND YOU HAVE MADE THAT JUDGMENT BY LOOKING AT THEM,
IS THAT CORRECT, REGARDING THE FAT LIQUOR?
A I HAVE MADE THE JUDGMENT BY PUTTING THE GLOVE ON,
COMPARING IT TO WHAT I WOULD NORMALLY COMPARE A SIZE LARGE OR
EXTRA LARGE. AND THE GLOVE IS NOW CLOSER TO A LARGE THAN IT WAS
AN EXTRA LARGE INITIALLY. AND I'M GOING ON THE ASSUMPTION THAT
IT WAS CLEARLY, TRULY AN EXTRA LARGE WHEN IT WAS PRODUCED.
Q AND THAT'S THE ASSUMPTION BECAUSE YOU SAW AN EXTRA
LARGE TAB IN THERE; IS THAT CORRECT?
A YES.
Q OKAY.
AND THAT COULD HAVE BEEN WRONG IN THE FIRST PLACE,
COULDN'T IT?
A WELL, IN THIS PARTICULAR GLOVE, IT'S NOT WRONG
BECAUSE INSIDE THE GLOVE, WHEN THE LINING WAS TORN AWAY, I DID
SEE THE "XL" STAMPING THAT I HAD MENTIONED YESTERDAY ALONG WITH
THE OTHER MARKINGS.
Q WELL, THAT'S ASSUMING THAT WAS RIGHT AT THE TIME IT
WAS MADE IN THE FACTORY, ISN'T IT?
A THAT'S CORRECT.
Q AND YOU HAVE NO WAY OF KNOWING. YOU WEREN'T THERE
WHEN IT WAS MADE, WERE YOU?
A I SPENT AN AWFUL LOT OF TIME THERE, BUT I WOULD
DEFINITELY NOT WANT TO COMMIT THAT I WAS THERE WHEN THESE GLOVES
WERE MADE.
Q I DON'T THINK YOU WOULD.
ALL RIGHT.
SO YOU'RE JUST RELYING UPON WHATEVER INSIGNIA IS
THEREIN; ISN'T THAT CORRECT, SIR?
A THAT'S CORRECT.
Q NOW, WITH REGARD TO THESE GLOVES, UNDER YOUR SCENARIO
THEN, THESE GLOVES HAVE ELASTICITY; IS THAT CORRECT?
A YES, THEY DO.
Q AND YOU'VE TRIED THEM ON YOURSELVES; IS THAT CORRECT?
A THAT'S CORRECT.
Q AND YOU TRIED THEM ON YESTERDAY AT A BREAK WHERE MR.
SHAPIRO AND I AND YOU AND MR. DARDEN STOOD AT THIS TABLE AND
TRIED ON THOSE GLOVES; IS THAT CORRECT?
A THAT'S INCORRECT. I NEVER TRIED ON THESE GLOVES. I
NEVER PUT ON THE LATEX GLOVES. ALL I DID WAS LOOK AT THE GLOVES.
Q ALL RIGHT.
YOU LOOKED AT THEM. BUT I'M SAYING, YOU SAW US TRY
THEM ON?
A YES.
Q YOU THEN WATCHED, RIGHT?
MR. DARDEN: OBJECTION. IRRELEVANT.
THE COURT: OVERRULED.
Q BY MR. COCHRAN: YOU STOOD THERE IN THIS COURTROOM,
SAW MR. SHAPIRO AND I BOTH TRY ON THOSE GLOVES WITH LATEX GLOVES
ON OUR HANDS. DIDN'T YOU SEE THAT?
A THAT'S CORRECT.
Q AND YOU AND THE LADY WHO TESTIFIED BEFORE YOU, MISS
VEMICH, STOOD HERE AND WATCHED THAT; ISN'T THAT CORRECT?
A YES.
Q ALL RIGHT.
AND THE FIRST TIME YOU'VE ACTUALLY TRIED THE GLOVES
ON IS TODAY; IS THAT CORRECT?
A YES.
Q AND ALL THE TIME THAT YOU SAW AND OBSERVED THESE
GLOVES -- DIDN'T YOU, YESTERDAY? YOU SAW THOSE GLOVES YESTERDAY?
YOU'VE GOT TO ANSWER OUT LOUD, SIR.
A YES.
Q ALL RIGHT.
AND HAD YOU SEEN THEM BEFORE THAT TIME?
A IN PERSON, NO.
Q YEAH.
HAD YOU SEEN PICTURES OF THEM BEFORE?
A YES, I HAD.
Q IN FACT, YOU HAD GIVEN A REPORT TO THE DISTRICT
ATTORNEY; ISN'T THAT CORRECT? YOU HAD BEEN INTERVIEWED REGARDING
--
A OVER THE TELEPHONE, YES.
Q RIGHT.
YOU HAD BEEN INTERVIEWED REGARDING YOUR OBSERVATIONS?
A YES.
Q ALL RIGHT.
AND AT NO TIME EVER PRIOR TO THE DEMONSTRATION OF MR.
SIMPSON YESTERDAY BEFORE THIS JURY, YOU NEVER TALKED TO THEM
ABOUT ANY SHRINKAGE, HAD YOU?
A SHRINKAGE WAS DISCUSSED, YES.
Q YOU TALKED SHRINKAGE -- YOU TALKED TO MR. DARDEN
ABOUT SHRINKAGE?
MR. DARDEN: OBJECTION. HEARSAY.
THE COURT: OVERRULED.
Q BY MR. COCHRAN: YOU TALKED TO MR. DARDEN ABOUT
SHRINKAGE?
A WE DISCUSSED THE POSSIBILITY OF SHRINKAGE TO A SLIGHT
DEGREE AND THAT THE GLOVES COULD BE REFURBISHED CLOSE TO ORIGINAL
SIZE DEPENDING ON THE AMOUNT OF -- I DIDN'T GET INTO THE
TECHNICAL DETAILS WITH HIM, BUT WE WERE AWARE THAT THE GLOVES HAD
BEEN SATURATED WITH SOMETHING AND NOT REWORKED OR RECONDITIONED
FOR ALMOST A YEAR.
Q ALL RIGHT.
NOW, WHEN WAS THAT CONVERSATION?
MR. DARDEN: OBJECTION, YOUR HONOR. IRRELEVANT.
MR. COCHRAN: HE CAN ANSWER THAT YES OR NO.
THE COURT: OVERRULED.
Q BY MR. COCHRAN: WHEN WAS THAT CONVERSATION?
A PRIOR TO -- I BELIEVE IT HAD ACTUALLY OCCURRED HERE
IN THE COURTROOM WHEN WE WERE LOOKING AT THE GLOVES, AND FOR THE
FIRST TIME, WE SAW HOW CRUMPLED THEY WERE AND HOW SHORT THE
FINGERS APPEARED.
Q THAT WAS YESTERDAY. IS THAT WHAT YOU'RE SAYING?
A YES.
Q OKAY.
BUT WHEN YOU TESTIFIED YESTERDAY BEFORE MR. SIMPSON
WAS ASKED TO PUT ON THOSE GLOVES, YOU NEVER TESTIFIED ABOUT ANY
SHRINKAGE, DID YOU?
A I WAS NEVER ASKED ABOUT ANY SHRINKAGE.
Q CAN YOU ANSWER MY QUESTION?
YOU NEVER TESTIFIED ABOUT ANY SHRINKAGE, DID YOU?
A NO, I DIDN'T.
Q ALL RIGHT.
AND TODAY'S THE FIRST TIME YOU EVER TALKED ABOUT
SHRINKAGE IN CONNECTION WITH THIS CASE IN COURT; IS THAT RIGHT?
A THAT'S CORRECT.
Q ALL RIGHT.
AND DID YOU TALK ABOUT THAT LAST NIGHT IN THE MEETING
THAT YOU HAD UPSTAIRS WHERE DISTRICT ATTORNEY MR. GARCETTI STUCK
HIS HEAD IN THE DOOR? DID YOU TALK ABOUT THAT AT THAT TIME?
A YES.
Q DID YOU TALK ABOUT THAT THIS MORNING --
A YES.
Q -- WHEN YOU HAD THE HOUR AND 15 MINUTE MEETING THIS
MORNING WITH THE PARTIES?
A YES.
Q NOW, YOU TESTIFIED BRIEFLY ABOUT THIS ASPECT OF
TAKING GLOVES OFF AND HOW YOU TAKE GLOVES OFF. RECALL BEING
ASKED A QUESTION ABOUT THAT?
A I DO NOT.
Q WELL, LET ME ASK YOU THIS.
WHEN GLOVES ARE ON TIGHT, THEY'RE GENERALLY REMOVED
BY PULLING THE FINGERS OFF; ISN'T THAT CORRECT?
A YES.
Q AND THAT'S KIND OF AN ACCEPTED MANNER; IS THAT
CORRECT?
A YES.
Q BECAUSE IF YOU PULL LIKE FROM THE VENT, THEY'LL
BASICALLY TURN INSIDE OUT; ISN'T THAT CORRECT?
A THAT'S CORRECT.
Q FROM THE V. FROM THE V, THEY'LL TURN INSIDE OUT,
RIGHT?
ALL RIGHT.
THESE GLOVES THAT WE'VE BEEN TALKING ABOUT WERE
SPECIFICALLY ORDERED FOR THE WINTER; ISN'T THAT CORRECT?
A YES, THEY WERE.
Q WE TALKED YESTERDAY I THINK ABOUT THE FACT THAT THESE
GLOVES WERE ORDERED IN AUGUST AND THEN THERE WAS MAYBE ANOTHER
SHIPMENT THAT CAME MAYBE IN OCTOBER?
A SEPTEMBER, OCTOBER, NOVEMBER.
Q AND THAT WAS IN ANTICIPATION OF COLD WEATHER; ISN'T
THAT CORRECT?
A CORRECT.
Q AND THAT'S ONE OF THE REASONS THEY'RE LINED; ISN'T
THAT CORRECT?
A CORRECT.
Q AND IT'S ANTICIPATED THEN THESE GLOVES WOULD GO
THROUGH WEATHER AND PRECIPITATION AND RAIN AND ALL KIND OF THINGS
THEY HAVE BACK EAST THAT WE DON'T HAVE OUT HERE?
A THAT'S CORRECT.
Q YOU DESCRIBED THAT WITH REGARD TO THE SIZING OF THESE
GLOVES, THAT YOUR COMPANY, AT LEAST BY THE TIME BEFORE YOU LEFT,
DID MAKE AN EXTRA, EXTRA LARGE?
A THAT'S CORRECT.
Q AND YOU DESCRIBED SOMETHING ABOUT THE FACT THAT THAT
WAS PERHAPS ONE PERCENT OF THE POPULATION; IS THAT CORRECT?
A LESS THAN ONE PERCENT.
Q ALL RIGHT.
AND, YOU KNOW, ONE PERCENT OF THE POPULATION RIGHT
NOW WOULD BE ABOUT TWO MILLION PEOPLE; ISN'T THAT CORRECT?
A 2.6.
Q WELL, MAYBE MORE THEN. 2.6 MILLION? IT'S A LOT OF
PEOPLE, ISN'T IT?
CAN YOU ANSWER THAT YES OR NO? IS THAT A LOT OF
PEOPLE?
A 2.6 MILLION PEOPLE IS A LOT OF PEOPLE, BUT WE WERE
ONLY SELLING MEN'S GLOVES. SO --
Q ALL RIGHT.
YOU THINK THERE ARE MANY -- WELL, LET ME SEE HOW I
CAN PHRASE THIS.
YOU HAVEN'T SEEN MANY WOMEN WHO'VE BOUGHT EXTRA LARGE
GLOVES, HAVE YOU, EXTRA, EXTRA LARGE, HAVE YOU?
A VERY RARE.
Q IT IS RARE.
MOST OF THE PEOPLE OR THE INDIVIDUALS WHO PURCHASE
EXTRA, EXTRA LARGE GLOVES ARE WHAT?
A TWO DIFFERENT SCENARIOS. ONE --
Q I'M ASKING IF THEY'RE MALE OR FEMALE IS THE QUESTION.
A MALE.
Q THEY'RE MALE?
ALL RIGHT.
HAVE YOU SEEN ATHLETES -- HAVE YOU DEALT MUCH WITH
ATHLETES?
A YES, I HAVE.
Q AND YOU'VE SEEN SOME PRETTY LARGE PEOPLE, ATHLETES?
A YES, I HAVE.
Q WHO CAN'T BUY THEIR CLOTHES OFF THE RACK. THEY
USUALLY ARE TAILORED; IS THAT CORRECT?
A THAT IS CORRECT.
Q THEY SOMETIMES HAVE VERY LARGE APPENDAGES. YOU'VE
NOTICED THAT, HAVE YOU?
A YES.
Q ARE YOU A BASKETBALL FAN?
A YES.
Q AND HAVE YOU RECENTLY SEEN THE SIZE OF THE SHOES OF
SHAQUILLE O'NEAL?
A YES, I HAVE.
Q 22 SOMETHING OR OTHER?
AND SO YOU KNOW THAT THEY'RE ATHLETES WHO HAVE THESE
LARGE APPENDAGES. YOU HEAR THEM SAYING THAT, DON'T YOU?
A YES.
MR. COCHRAN: MAY I JUST HAVE A SECOND, YOUR HONOR?
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. COCHRAN: MAY I HAVE JUST A SECOND, YOUR HONOR?
THANK YOU.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. COCHRAN: THANK YOU, YOUR HONOR.
A FEW MORE QUESTIONS.
Q BY MR. COCHRAN: MR. RUBIN, JUST A FEW MORE
QUESTIONS.
DO YOU -- ARE YOU AWARE OF HOW MUCH 3 CC'S OF LIQUID
AMOUNTS TO?
A NO, I'M NOT. EXCUSE ME. 3 CC'S?
Q YES.
A YES. I'M VERY FAMILIAR WITH 3 CC'S.
Q AND DO YOU THINK THAT -- I WANT YOU TO ASSUME
ARGUENDO THAT 3 CC'S OF LIQUID IS ALMOST TWO GLOVES.
DO YOU THINK THAT AMOUNT OF LIQUID WOULD RESULT IN
YOUR GLOVES, YOUR VERY EXPENSIVE ARIS GLOVES, SHRINKING 10 TO 15
PERCENT?
MR. DARDEN: OBJECTION, YOUR HONOR. IMPROPER HYPOTHETICAL.
THE COURT: OVERRULED.
THE WITNESS: 3 CC'S OF LIQUID WOULD HAVE NO EFFECT
WHATSOEVER ON THOSE GLOVES.
Q BY MR. COCHRAN: SO IF THERE'S TESTIMONY THAT'S THERE
ONLY 3 CC'S OF LIQUID ON THOSE GLOVES, SHOULD HAVE NO EFFECT AT
ALL? THEY SHOULD BE EXACTLY THE SAME SIZE; IS THAT CORRECT?
MR. DARDEN: OBJECTION. MISSTATES THE TESTIMONY.
MR. COCHRAN: I'M ASKING.
THE COURT: OVERRULED.
Q BY MR. COCHRAN: IS THAT RIGHT?
A THAT'S CORRECT.
Q ALL RIGHT.
ONE LAST QUESTION.
WITH REGARD TO ARIS -- THE ARIS -- AND MR. DARDEN
KEPT SAYING ISOTONER.
DID YOU TELL US YESTERDAY IT WASN'T ISOTONER, THESE
ARE ARIS LIGHTS?
A ISOTONER WAS A DIFFERENT PRODUCT LINE THAN LEATHER
GLOVES. THESE ARE ARIS LEATHER LIGHT GLOVES.
Q DO YOU KNOW WHETHER OR NOT THE STYLE NO. 70263 FOR
ARIS LIGHT WAS MADE FOR CHRISTIAN DIOR IN ADDITION TO
BLOOMINGDALES SO THAT CHRISTIAN DIOR MAY HAVE ALSO SOLD THOSE
GLOVES DURING THAT SAME PERIOD OF TIME THAT WE'RE TALKING ABOUT?
A THAT WAS ABSOLUTELY IMPOSSIBLE BECAUSE ARIS ISOTONER
WAS THE LICENSING OF CHRISTIAN DIOR AND ASSIGNED DIFFERENT STYLE
NUMBERS TO CHRISTIAN DIOR PRODUCT. ARIS ISOTONER WAS THE
DISTRIBUTOR OF CHRISTIAN DIOR.
Q THEY WERE.
ALL RIGHT.
SO MY QUESTION IS, WAS IT POSSIBLE THAT CHRISTIAN
DIOR DISTRIBUTED OR SOLD THE STYLE NUMBER 70263?
A IMPOSSIBLE.
Q THAT'S ABSOLUTELY IMPOSSIBLE?
A ABSOLUTELY IMPOSSIBLE.
Q COULD NOT HAVE HAPPENED?
A COULD NOT HAVE HAPPENED.
Q ALL RIGHT.
MR. COCHRAN: THANK YOU VERY MUCH FOR STAYING OVER.
THE WITNESS: THANK YOU.
THE COURT: ALL RIGHT.
MR. RUBIN, THANK YOU VERY MUCH, SIR.
MR. DARDEN: YOUR HONOR, MAY I --
THE COURT: COUNSEL, YOU ASKED TO REOPEN ON THIS. ISN'T
THERE A END TO THIS AT SOME POINT?
MR. DARDEN: YES, THERE IS, YOUR HONOR. I WOULD ASK FOR 10
MINUTES OF THE COURT'S TIME.
THE COURT: PROCEED.
REDIRECT EXAMINATION
BY MR. DARDEN:
Q MR. RUBIN, WITH REGARD TO THE CONVERSATIONS YOU AND I
HAD LAST NIGHT AND THIS MORNING -- AND YOU'VE DISCUSSED THE
NATURE OF SOME OF THOSE CONVERSATIONS HERE THIS MORNING; IS THAT
CORRECT?
A YES, IT IS.
Q WELL, THIS MORNING, WERE YOU SHOWN SOME GLOVES?
A YES.
Q AND WHO BROUGHT THOSE GLOVES TO YOU?
A I BELIEVE THAT THEY --
MR. COCHRAN: YOUR HONOR, OBJECTION. THAT IS IMPROPER RE
-- BEYOND THE SCOPE OF CROSS-EXAMINATION.
THE COURT: OVERRULED.
THE WITNESS: I BELIEVE THAT THERE WAS A PACKAGE OF GLOVES
ON THE FLOOR WHEN I ARRIVED.
Q BY MR. DARDEN: WERE THEY IN A BOX?
A YES, THEY WERE.
Q AND WERE EACH OF THE GLOVES IN BAGS JUST LIKE THE BAG
MARKED 164-A?
A YES. YES.
Q DID IT HAVE WRITING ON IT?
A YES.
Q HOW MANY GLOVES WERE THERE CONTAINED IN THOSE BOXES?
MR. COCHRAN: OBJECTION. WE HAVEN'T SEEN THE GLOVES.
MAY WE APPROACH? I HAVEN'T SEEN THE GLOVES.
THE COURT: WITH THE COURT REPORTER, PLEASE.
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WE'RE OVER AT THE SIDEBAR. I'M SURE GLAD IT'S
FRIDAY.
WHERE ARE WE GOING WITH THIS?
MR. DARDEN: WELL, MR. COCHRAN WANTS TO BRING OUT THE
NATURE OF OUR CONVERSATION.
THE COURT: I'M JUST CURIOUS ABOUT THE BOX. TELL ME ABOUT
THE BOX.
MR. DARDEN: I'M JUST TELLING YOU, HE LOOKED AT THE GLOVES
THAT WE HAD, THEN WE HAD MEN WITH HANDS, LARGER HANDS THAN O.J.'S
COME IN AND TRY ON DIFFERENT KINDS OF GLOVES, SIZES OF GLOVES
SMALLER THAN THE ONE WE HAVE HERE IN EVIDENCE; AND EVEN MEN WITH
HANDS LARGER THAN O.J.'S WERE ABLE TO GET THEIR HAND INTO THOSE
GLOVES.
THE COURT: MR. DARDEN, THIS MAN IS AN EXPERT ON GLOVES AND
AN EXPERT ON SIZING. WHAT MORE DO YOU NEED FROM THIS GUY?
HE AGREED WITH YOU THAT THEY SHOULD FIT. MR. COCHRAN
WENT INTO YOUR DISCUSSIONS WITH THIS GUY AFTER COURT AND THIS
MORNING, AND YOU'RE ENTITLED TO GO INTO, "WHAT DID WE DISCUSS,"
THAT SORT OF THING. YOU CAN DO THAT. BUT TO BRING OUT THAT YOU
DID THAT DEMONSTRATION WITH, YOU KNOW --
MR. COCHRAN: WE WEREN'T PRESENT. WE DIDN'T SEE THAT.
THE COURT: ONE PERSON.
YOU CAN ASK, "WHAT DID WE DO," BUT THE RESULTS IS
SOMETHING DIFFERENT. YOU CAN TALK ABOUT WHAT YOU DID.
MR. DARDEN: ALL RIGHT.
MR. COCHRAN: BUT THE RESULTS ARE WHAT WE ARE OBJECTING TO.
THE COURT: LET'S FINISH. LET'S GET THIS GUY HOME.
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, IN THE
PRESENCE OF THE JURY.)
THE COURT: ALL RIGHT.
THANK YOU VERY MUCH, COUNSEL.
MR. DARDEN, WOULD YOU CONTINUE, PLEASE.
MR. DARDEN: THANK YOU, YOUR HONOR.
Q BY MR. DARDEN: WHAT DID WE DO IN OUR OFFICE IN
ADDITION TO TALKING ABOUT YOUR TESTIMONY?
A WE LOOKED AT SOME OTHER GLOVES THAT WERE ON THE FLOOR
IN BAGS.
Q OKAY.
AND WERE THERE OTHER MEN PRESENT IN THE ROOM?
A YES, THERE WERE.
Q AND DID YOU LOOK AT THE SIZE OF THE HANDS OF THOSE
MEN?
A YES, I DID.
MR. COCHRAN: I OBJECT TO THAT. IRRELEVANT AND IMMATERIAL.
THE COURT: OVERRULED.
Q BY MR. DARDEN: AND WERE THERE MEN IN THE ROOM WHO
HAD HANDS LARGER THAN THE DEFENDANT?
MR. COCHRAN: I OBJECT TO THAT, YOUR HONOR.
THE COURT: SUSTAINED. SUSTAINED.
WE'RE CLOSE. WE'RE CLOSE.
Q BY MR. DARDEN: IN RESPONSE TO MR. COCHRAN'S
QUESTION, YOU TESTIFIED THAT THE APPROPRIATE WAY TO PULL OFF A
TIGHT PAIR OF GLOVES IS BY THE FINGERS?
A THE APPROPRIATE WAY TO TAKE OFF ANY GLOVE WOULD BE BY
THE FINGERS FIRST.
Q AND WHAT DO YOU DO AFTER YOU -- AFTER FINGERS FIRST?
HOW DO YOU GET THEM OFF?
A JUST PULL THEM DOWN AND GRADUALLY THEY WOULD SLIDE
OFF.
Q OKAY.
WELL, WOULD YOU PULL THEM DOWN BY THE FINGERS AND
THEN PULL THEM OFF THE PALM OF YOUR HAND?
MR. COCHRAN: YOUR HONOR, THAT'S LEADING AND SUGGESTIVE.
OBJECT. LEADING AND SUGGESTIVE, YOUR HONOR.
THE COURT: OVERRULED.
THE WITNESS: I BELIEVE WHAT YOU WOULD DO, MOST PEOPLE
WOULD DO, IF THEY WERE RIGHT-HANDED, THEY WOULD ALWAYS START WITH
THEIR LEFT HAND, THEY WOULD PULL DOWN THE PINKY FINGER
APPROXIMATELY HALF AN INCH TO AN INCH, PULL DOWN TWO OR THREE
FINGERS, HAVE ENOUGH MATERIAL TO JUST PULL THE GLOVE OFF.
Q BY MR. DARDEN: OKAY.
NOW, YOU TESTIFIED THAT THE CXL CADET IS AN EXTRA
LARGE GLOVE?
A YES.
Q OKAY.
AND DOES THAT MEAN THAT THE FINGERS IN THE GLOVE ARE
SMALLER THAN NORMAL?
A SLIGHTLY SHORTER AT THE END.
Q YOU ALSO SAID THAT THE CRIME SCENE GLOVES FROM
ROCKINGHAM AND BUNDY BOTH HAVE SOME DEGREE OF ELASTICITY; IS THAT
CORRECT?
A THAT'S CORRECT.
Q BUT THEY'VE LOST SOME OF THAT ELASTICITY; IS THAT
RIGHT?
MR. COCHRAN: OBJECTION. LEADING AND SUGGESTIVE.
THE COURT: REPHRASE THE QUESTION.
Q BY MR. DARDEN: HAVE THEY LOST ANY OF THE ELASTICITY?
A YES, THEY HAVE.
Q AND WHEN YOU WERE IN MY OFFICE LAST NIGHT, DID YOU
ALSO LOOK AT SOME VIDEOTAPE?
A VARIOUS VIDEOTAPES, YES.
Q VIDEOTAPE OF THE DEFENDANT?
A YES.
Q DID YOU SEE HIM PUT ON THE LATEX GLOVES YESTERDAY?
MR. COCHRAN: YOUR HONOR, I OBJECT TO THIS. WE WEREN'T
PRESENT. I OBJECT TO THIS. BEYOND THE SCOPE.
THE COURT: SUSTAINED. SUSTAINED.
Q BY MR. DARDEN: WELL, DID WE TALK ABOUT THE
VIDEOTAPE?
A YES, WE DID.
Q DID WE TALK ABOUT THE DEMONSTRATION?
A WHAT DEMONSTRATION?
Q YESTERDAY, THE DEFENDANT PUTTING THE GLOVES ON.
A YES. YES, WE DID.
Q DID YOU NOTE ANY IRREGULARITY -- WELL, STRIKE THAT.
MR. COCHRAN: YOUR HONOR, I OBJECT TO THIS WHOLE LINE OF
QUESTIONING.
THE COURT: OVERRULED.
AT THIS POINT, I HAVEN'T HEARD A QUESTION. IT'S BEEN
WITHDRAWN.
Q BY MR. DARDEN: AND DID WE TALK ABOUT THE EFFECT
LATEX MIGHT HAVE ON PUTTING A PAIR OF GLOVES ON?
MR. COCHRAN: BEEN ASKED AND ANSWERED. THAT WAS ASKED OF
THIS WITNESS THIS MORNING.
THE COURT: HAS.
Q BY MR. DARDEN: WHEN YOU SAY THAT A PAIR OF TIGHT
GLOVES SHOULD PROPERLY BE PULLED OFF AT THE FINGERS, DOES IT
MATTER WHICH HAND YOU USE?
MR. COCHRAN: OBJECTION. THAT'S UNINTELLIGIBLE. I OBJECT
TO THE FORM OF THE QUESTION.
THE COURT: OVERRULED.
Q BY MR. DARDEN: IF YOU HAVE A GLOVE ON YOUR LEFT
HAND, DOES IT MATTER -- WELL, YOU WOULD HAVE TO USE YOUR RIGHT
HAND TO PULL THE GLOVE OFF; IS THAT RIGHT?
A YES, YOU WOULD.
Q OKAY.
BUT SOMEONE ELSE COULD PULL THAT GLOVE OF, COULDN'T
THEY?
MR. COCHRAN: YOUR HONOR, THAT CALLS FOR A FORM OF
SPECULATION.
THE COURT: OVERRULED.
THE WITNESS: YES, THEY COULD.
Q BY MR. DARDEN: AND IF THE DEFENDANT HAD ON A GLOVE,
A TIGHT GLOVE, AND WAS IN A STRUGGLE WITH RON GOLDMAN AND THAT
GLOVE CAME OFF, THAT COULD BE BECAUSE GOLDMAN PULLED AT HIS
FINGERS: IS THAT CORRECT?
MR. COCHRAN: I OBJECT TO THE FORM. IT'S ARGUMENTATIVE.
IMPROPER HYPOTHETICAL.
THE COURT: SUSTAINED.
MR. COCHRAN: BEYOND --
THE COURT: SUSTAINED.
Q BY MR. DARDEN: IN ANY EVENT, A TIGHT GLOVE CAN BE
PULLED OFF A HAND --
A YES.
Q -- RATHER EASILY?
A YES.
MR. COCHRAN: ASKED AND ANSWERED.
Q BY MR. DARDEN: RATHER EASILY; IS THAT RIGHT?
A YES, IT IS.
Q NOW, WHEN YOU SPOKE WITH US IN MY OFFICE YESTERDAY,
YOU SPOKE PRIMARILY TO ME?
A YES, I DID.
Q OTHER PEOPLE CAME IN AND OUT; IS THAT CORRECT?
A THAT'S CORRECT.
Q OKAY.
SO -- YOU AND I HAD NEVER MET PRIOR TO YESTERDAY; IS
THAT CORRECT?
A THAT'S CORRECT.
Q YOU LIVE IN NEW YORK?
A YES.
Q OKAY.
SO IF I PREPARE YOU TO TESTIFY, I WOULD HAVE TO ASK
YOU QUESTIONS, WOULDN'T I?
A YES, YOU WOULD.
MR. COCHRAN: THAT CALLS -- I WITHDRAW IT.
THE COURT: OVERRULED.
Q BY MR. DARDEN: AND THAT'S -- IS THERE ANY WAY TO
FIND OUT IF SOMEBODY KNOWS THE ANSWER TO A QUESTION OTHER THAN BY
POSING THE QUESTION TO HIM?
MR. COCHRAN: YOUR HONOR, OBJECTION. THAT'S COMMON SENSE.
THE COURT: IT IS.
MR. DARDEN: THAT'S ALL. THANK YOU.
MR. COCHRAN: JUST ONE OR TWO ADDITIONAL. I WANT TO GO
HOME TOO, YOUR HONOR.
MR. DARDEN: YELL AT HIM LIKE YOU YELLED AT ME, JUDGE.
THE COURT: I'M ABOUT TO. I'D LIKE TO GO HOME TOO AS WOULD
THE JURY.
MR. COCHRAN: AND THE JURY. AND WITH THAT THOUGHT IN MIND
-- I WANT THEM TO GO HOME.
THE COURT: LET'S PROCEED.
PROCEED.
MR. COCHRAN: YES, YOUR HONOR.
THANK YOU VERY KINDLY, YOUR HONOR.
RECROSS-EXAMINATION
BY MR. COCHRAN:
Q HAVE YOU -- YOU OF COURSE TALKED TO MR. DARDEN BEFORE
YOU TOOK THE WITNESS STAND YESTERDAY; ISN'T THAT CORRECT?
A BRIEFLY.
Q AS A TRAINED LAWYER, YOU TALKED TO HIM BEFORE HE PUT
YOU UP THERE, YOU MET HIM IN COURT HERE; DID YOU NOT?
A YES, I DID.
Q IN FACT, YOU WERE SITTING OUT IN THE HALLWAY TALKING
TO DAVID WOODEN WHILE THE LADY WAS ON THE STAND, MISS VEMICH,
ISN'T THAT CORRECT, WHEN YOU WERE BROUGHT IN HERE?
A THAT'S CORRECT.
Q ALL RIGHT.
NOW, JUST A COUPLE QUESTIONS.
WITH REGARD TO THOSE PARTICULAR GLOVES THERE, YOU
SHARED WITH US HOW ONE APPROPRIATELY TAKES GLOVES OFF; IS THAT
CORRECT?
A YES, I HAVE.
Q AND YOU SHARED WITH US I BELIEVE YESTERDAY THAT THOSE
GLOVES ARE DESIGNED TO FIT RATHER SNUGGLY; IS THAT CORRECT?
A THAT'S CORRECT.
Q AND WHEN THEY FIT SNUGGLY, THEY DON'T JUST FALL OFF,
DO THEY?
A NO, THEY DO NOT.
Q THEY HAVE TO BE KIND OF TAKEN OFF, DON'T THEY?
A YES, THEY WOULD.
Q AND YOU HAVE TO USE SOME EFFORT AND SOME ENERGY TO
TAKE THEM OFF, DON'T YOU?
A YES.
MR. COCHRAN: THANK YOU, MR. RUBIN.
MR. DARDEN: TWO QUESTIONS. JUST TWO QUESTIONS, YOUR
HONOR.
REDIRECT EXAMINATION (FURTHER)
BY MR. DARDEN:
Q THE CRIME SCENE GLOVES FROM ROCKINGHAM AND BUNDY, ARE
THEY DESIGNED TO BE WORN TIGHTLY JUST LIKE GOLF GLOVES?
MR. COCHRAN: I OBJECT TO THE FROM OF -- WELL --
THE COURT: YOU CAN ANSWER THE QUESTION.
THE WITNESS: THE FACT THAT THEY ARE LINED, THEY ARE
DESIGNED TO BE SNUG, PROVIDE WARMTH, BUT NOT WORN EXACTLY LIKE
GOLF GLOVES, NO.
Q BY MR. DARDEN: AND YOU TESTIFIED A MOMENT AGO THAT
IT TAKES A LOT OF EFFORT TO TAKE OFF A TIGHT PAIR OF GLOVES; IS
THAT CORRECT?
A IT WOULD TAKE SOME EFFORT.
Q OKAY.
AND --
THE COURT: THAT'S TWO.
Q BY MR. DARDEN: AN EFFORT CONSISTENT WITH A LIFE AND
DEATH STRUGGLE FOR ONE'S LIFE I TAKE IT?
MR. COCHRAN: OBJECTION, YOUR HONOR. SPECULATION.
THE COURT: SUSTAINED.
MR. COCHRAN: MAY HE GO HOME NOW, YOUR HONOR?
MR. DARDEN: HE MAY BE EXCUSED.
THE COURT: IT CALLS FOR SPECULATION.
MR. RUBIN, THANK YOU VERY MUCH FOR COMING TO TESTIFY.
SIR, YOU ARE EXCUSED.
THE WITNESS: THANK YOU.
THE COURT: ALL RIGHT.
MR. DARDEN, WOULD YOU COLLECT THE EVIDENCE THERE,
PLEASE.
MR. DARDEN: MAY -- WE HAVE 12 MINUTES, YOUR HONOR. DO YOU
WANT TO PROCEED WITH ANOTHER WITNESS?
THE COURT: WHO DO YOU HAVE AVAILABLE?
MR. COCHRAN: I DIDN'T HEAR THE QUESTION.
THE COURT: I WAS ASKING WHO THE NEXT WITNESS IS.
MR. DARDEN: I'M INFORMED THAT THE WITNESS IS UPSTAIRS.
IT'S MR. ACOSTA. WITH OUR ELEVATOR SYSTEM, IT WILL TAKE 15
MINUTES TO GET HIM DOWN HERE THOUGH.
THE COURT: ALL RIGHT.
LADIES AND GENTLEMEN, MAY HAVE BEEN A SHORT DAY, BUT
IT WAS INTERESTING.
ALL RIGHT.
WE'RE GOING TO TAKE OUR RECESS FOR THE MORNING
SESSION.
PLEASE REMEMBER ALL MY ADMONITIONS TO YOU; DON'T
DISCUSS THE CASE AMONGST YOURSELVES, DON'T FORM ANY OPINIONS
ABOUT THE CASE, DON'T CONDUCT ANY DELIBERATIONS UNTIL THE MATTER
HAS BEEN SUBMITTED TO YOU, DON'T ALLOW ANYBODY TO COMMUNICATE
WITH YOU WITH REGARD TO THE CASE.
HAVE A PLEASANT WEEKEND. SEE YOU MONDAY MORNING,
9:00 A.M.
ALL RIGHT.
MR. COCHRAN: MAY WE APPROACH, YOUR HONOR?
THE COURT: YES.
WE'RE IN RECESS.
(A CONFERENCE WAS HELD AT THE
BENCH, NOT REPORTED.)
(AT 11:50 A.M., AN ADJOURNMENT
WAS TAKEN UNTIL, MONDAY,
JUNE 19TH, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE
THE PEOPLE OF THE STATE OF CALIFORNIA, )
)
PLAINTIFF, )
)
)
VS. ) NO. BA097211
)
ORENTHAL JAMES SIMPSON, )
)
)
DEFENDANT. )
REPORTER'S TRANSCRIPT OF PROCEEDINGS
FRIDAY, JUNE 16, 1995
VOLUME 169
PAGES 32449 THROUGH 32594, INCLUSIVE
APPEARANCES: (SEE PAGE 2)
JANET M. MOXHAM, CSR #4588
CHRISTINE M. OLSON, CSR #2378
OFFICIAL REPORTERS
APPEARANCES:
FOR THE PEOPLE: GIL GARCETTI, DISTRICT ATTORNEY
BY: MARCIA R. CLARK, WILLIAM W.
HODGMAN, CHRISTOPHER A. DARDEN,
CHERI A. LEWIS, ROCKNE P. HARMON,
GEORGE W. CLARKE, SCOTT M. GORDON
LYDIA C. BODIN, HANK M. GOLDBERG,
ALAN YOCHELSON AND DARRELL S.
MAVIS, BRIAN R. KELBERG, AND
KENNETH E. LYNCH, DEPUTIES
18-000 CRIMINAL COURTS BUILDING
210 WEST TEMPLE STREET
LOS ANGELES, CALIFORNIA 90012
FOR THE DEFENDANT: ROBERT L. SHAPIRO, ESQUIRE
SARA L. CAPLAN, ESQUIRE
2121 AVENUE OF THE STARS
19TH FLOOR
LOS ANGELES, CALIFORNIA 90067
JOHNNIE L. COCHRAN, JR., ESQUIRE
BY: CARL E. DOUGLAS, ESQUIRE
SHAWN SNIDER CHAPMAN, ESQUIRE
4929 WILSHIRE BOULEVARD
SUITE 1010
LOS ANGELES, CALIFORNIA 90010
GERALD F. UELMEN, ESQUIRE
ROBERT KARDASHIAN, ESQUIRE
ALAN DERSHOWITZ, ESQUIRE
F. LEE BAILEY, ESQUIRE
BARRY SCHECK, ESQUIRE
PETER NEUFELD, ESQUIRE
ROBERT D. BLASIER, ESQUIRE
WILLIAM C. THOMPSON, ESQUIRE
I N D E X
INDEX FOR VOLUME 169 PAGES 32449 - 32594
-----------------------------------------------------
DAY DATE SESSION PAGE VOL.
FRIDAY JUNE 16, 1995 A.M. 32449 169
-----------------------------------------------------
LEGEND:
MS. CLARK - MC MR. SHAPIRO - S
MR. HODGMAN - H MR. COCHRAN - C MR. DARDEN D
MR. DOUGLAS - CD
MS. LEWIS - L MR. BAILEY - B
MS. KAHN - K MS. CHAPMAN - SC MR. GOLDBERG -
GB MR. BLASIER - BB
MR. CLARKE - GC MR. UELMEN - U
MR. HARMON - RH MR. SCHECK - BS
MR. GORDON - G MR. NEUFELD - N
MR. KELBERG - BK
-----------------------------------------------------
CHRONOLOGICAL INDEX OF WITNESSES
PEOPLE'S
WITNESSES DIRECT CROSS REDIRECT RECROSS VOL.
RUBIN, RICHARD
(RECALLED) 32499D 32544C 32579D 32590C 169 (FURTHER)
32592D
-----------------------------------------------------
ALPHABETICAL INDEX OF WITNESSES
WITNESSES DIRECT CROSS REDIRECT RECROSS VOL.
RUBIN, RICHARD
(RECALLED) 32499D 32544C 32579D 32590C 169 (FURTHER)
32592D
EXHIBITS
DEFENSE FOR IN EXHIBIT
IDENTIFICATION EVIDENCE
PAGE VOL. PAGE VOL.
1053-A - GOLF GLOVE 32505 169
WHITE IN COLOR WITH "PALM TREE" LOGO
1053-B - GOLF GLOVE 32506 169
WHITE IN COLOR WITH "FJ" LOGO
1053-C - GOLF GLOVE 32506 169
WHITE IN COLOR WITH "ANIMAL" LOGO (SLAZENGER)
??
27
