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From:
[email protected] (Myra Dinnerstein)
Subject: SIDEBARS - MARK FUHRMAN - 22k
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Date: Fri, 17 Mar 1995 06:21:09 GMT
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Sidebars during Det. Mark Fuhrman's testimony:
Sidebars from March 14, 1995:
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: ALL RIGHT. WE ARE OVER AT THE SIDE BAR.
MR. BAILEY.
MR. BAILEY: YOUR HONOR, I HAVE THE TAPE FROM THE
PRELIMINARY HEARING RELATIVE TO "IN" THE BRONCO AND I HAVE MADE A
COPY FOR THE PROSECUTION.
DO YOU REQUIRE THAT WE EXHIBIT IT TO THEM AND GIVE
THEM A CHANCE TO OBJECT BEFORE IT IS SHOWN?
THE COURT: I BELIEVE SO, JUST AS A MATTER OF COURTESY.
MR. BAILEY: I AM HAPPY TO DO THAT.
THE COURT: WE WILL TAKE A BREAK RIGHT NOW. I'M GOING TO
ASK COUNSEL TO REMAIN AND WE WILL TAKE A LOOK AT IT AND MAKE SURE
EVERYTHING IS THERE AND WE WILL START UP AT 1:30.
MR. COCHRAN: ARE WE GOING TO DO ANYTHING ELSE WITH THE
JURORS THIS AFTERNOON?
THE COURT: WITH THE JURORS?
MR. COCHRAN: ANY JURY STUFF THIS AFTERNOON? GIVE US THE
TIME FOR THE NEXT APPOINTMENT.
THE COURT: TOMORROW MORNING. I JUST FIGURE WE WILL TAKE A
COUPLE --
MR. BAILEY: SO WE ARE LOOKING AT AN HOUR AND HALF OF TRIAL
TIME THIS AFTERNOON?
THE COURT: BOY, I HOPE SO.
MR. BAILEY: HUM?
THE COURT: I HOPE SO. WE WILL TAKE OUR RECESS THEN AT
THIS POINT, BUT DON'T LEAVE.
****
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: WE'RE OVER HERE AT THE SIDEBAR.
MISS CLARK, YOU ASKED TO APPROACH.
MS. CLARK: YES.
I WOULD LIKE TO KNOW WHERE THIS IS GOING.
A WITNESS OR ANY CITIZEN HAS A RIGHT TO FILE CIVIL
LAWSUITS WHEN THEY HAVE BEEN DAMAGED IN SOME WAY.
MR. BAILEY IS OPENING THE DOOR NOW TO AN EXPLANATION
>FROM DETECTIVE FUHRMAN AS TO ALL OF THE PEOPLE THAT HE HAS SUED
AND EXACTLY WHY -- OR HIS LAWYER HAS SUED AND WHY THEY ARE BEING
SUED, AND THAT HAS NO CONNECTION WITH THE OUTCOME OF THIS CASE
WHATSOEVER.
SO MY OBJECTION WOULD BE, IRRELEVANT AND POTENTIALLY
PRIVILEGED MATTERS MAY BE GONE INTO, AT WHICH POINT THIS WITNESS
WOULD NOT BE ABLE TO TESTIFY TO PRIVILEGED MATTERS AND -- MAY I
HAVE ONE MOMENT?
THE COURT: SURE.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
MS. CLARK: AND I THINK IT'S IRRELEVANT UNDER 352.
AS I STATED EARLIER, THE OUTCOME OF THIS CASE WOULD
NOT AFFECT THE VALIDITY OF ANY CIVIL SUIT HE MAY HAVE.
FOR EXAMPLE, THE JURY MAY HANG, AND YET, KATHLEEN
BELL'S CREDIBILITY MAY BE FOUND TO BE ABSOLUTELY NIL AND HER
ALLEGATIONS MALICIOUS AND VINDICTIVE. THERE IS NO CONNECTION TO
THE OUTCOME OF THE CASE.
NOW WE'RE GOING TO HAVE TO BRING IT ON REDIRECT, HAVE
HIM EXPLAIN EXACTLY WHO AND WHY HE IS SUING. BUT THAT HAS NO
CONNECTION TO THE OUTCOME OF THIS CASE.
THE COURT: YOU DON'T THINK THAT SOMEBODY FILING LAWSUITS
OVER THE OUTCOME OF THIS CASE HAS ANY BEARING ON BIAS OR
INTEREST?
MS. CLARK: NO, BECAUSE THE OUTCOME OF THIS CASE HAS
NOTHING TO DO WITH THE LAWSUITS THAT ARE BEING REFERRED TO.
THE COURT: MR. BAILEY, WHAT KIND OF LAWSUITS ARE WE
TALKING ABOUT HERE?
MR. BAILEY: HE BROUGHT CLAIMS FOR DEFAMATION AGAINST
SHAPIRO I BELIEVE AND NOW JOHNNIE COCHRAN SAYING HE WOULD BRING
THE SUITS IMMEDIATELY AFTER THIS CASE IS OVER BECAUSE HE DOESN'T
WANT TO INTERFERE WITH THE HANDLING OF THIS CASE; I.E., DOESN'T
WANT HIS CLIENT DEPOSED. BUT FUHRMAN HAS ALREADY SAID HE
BROUGHT CLAIMS, HE INTENDS TO PURSUE THEM.
CERTAINLY IF THIS JURY COMES BACK AND FINDS HIM TO BE
A LIAR, THAT COULD AFFECT HIS DEFAMATION DAMAGES PRETTY SEVERELY.
MS. CLARK: I DON'T KNOW ABOUT THAT. THE JURY IS NOT GOING
TO MAKE A FINDING THAT HE'S A LIAR, MR. BAILEY. THEY MAKE A
FINDING OF GUILT OR INNOCENCE AS TO YOUR CLIENT, NOT AS TO THIS
DETECTIVE.
THE COURT: UH-HUH.
MS. CLARK: SO THAT OUTCOME HAS NOTHING TO DO WITH HIS
LAWSUIT, NUMBER ONE.
NUMBER TWO, AS I UNDERSTAND IT, NO CLAIMS HAVE BEEN
FILED, AND THE VERY STATEMENT MADE BY MR. BAILEY WOULD INDICATE
THAT'S THE CASE, NO CLAIMS HAVE BEEN FILED.
THE COURT: I THOUGHT HE JUST INDICATED THAT THEY HAD BEEN.
MS. CLARK: NO. HE DOESN'T KNOW. IT'S HIS LAWYER WHO'S
DOING IT. THAT'S THE PROBLEM WITH ASKING THE CLIENT. I'M SURE
THEY DISCUSSED THE MATTER.
BUT AS TO WHETHER THE CLAIMS HAVE ACTUALLY BEEN
FILED, DOES COUNSEL KNOW? DOES COUNSEL HAVE AN OFFER OF PROOF
FOR THIS COURT?
MR. BAILEY: I JUST TOLD THE COURT WHAT THE LAWYER DID,
HAVING FUHRMAN DEPOSED AS SOON AS THE CASE IS OVER. HE'S SUING
FOR DEFAMATION. HE'S TALKED ABOUT IT IN JEFFREY TOOBIN'S
ARTICLE. HE'S VERY SPECIFIC.
THE COURT: OKAY.
MS. CLARK: YOUR HONOR, AS I UNDERSTAND IT, IT WASN'T MR.
COCHRAN THAT WAS REFERRED TO. IT WAS MR. SHAPIRO.
MR. COCHRAN: THERE'S OTHER LAWYERS ALSO. HE PUT US ALL ON
NOTICE. IT'S NOT ONLY SHAPIRO. I WASN'T INVOLVED IN THE CASE
THEN. HE PUT US ALL, THE WHOLE DEFENSE TEAM. HE'S BEEN ON EVERY
T.V. PROGRAM SAYING HE'S GOING TO SUE.
MS. CLARK: BUT NOTHING'S BEEN FILED. EVEN THE LETTER
COUNSEL HAS INDICATES, "WE WILL WAIT UNTIL THE CASE IS
CONCLUDED."
MR. COCHRAN: DOESN'T MATTER.
MS. CLARK: AT WHICH POINT MAY NEVER BE FILED EITHER.
THIS IS NOT FAIR, YOU KNOW.
MR. COCHRAN: IT'S FAIR. IT GOES TO BIAS AND INTEREST.
HE'S INDICATED HE'S GOING TO SUE ON EVERY TELEVISION PROGRAM.
THE COURT: THANK YOU.
MS. CLARK: YOUR HONOR, THE PEOPLE OBJECT UNDER 352. THERE
HAS BEEN NO CLAIM FILED.
I ASK THAT THE QUESTION AND ANSWER THAT HAS BEEN
ELICITED THUS FAR BE STRICKEN. THIS WITNESS DOES NOT KNOW WHAT
HIS ATTORNEY HAS OR HAS NOT DONE.
HE'S ALREADY INDICATED AT THE CONCLUSION OF THIS
CASE, THEY INTEND TO FILE LAWSUITS. THAT MAY OR MAY NOT EVER
OCCUR AND THE OUTCOME OF THIS CASE CERTAINLY HAS NO BEARING ON
WHETHER OR NOT DEFAMATION SUITS WILL BE FOUND MERITORIOUS OR NOT.
MR. SHAPIRO: IT CERTAINLY DOES.
MS. CLARK: UNDER 352.
THE COURT: I'M GOING TO OVERRULE THE OBJECTION.
BUT, MR. BAILEY, YOU CAN ONLY GO INTO THE TYPES OF
ACTIONS THAT ARE CONTEMPLATED WITHOUT FURTHER EXPLANATION AS TO
WHAT THEY ARE AND WHAT THEY'RE ABOUT.
MR. BAILEY: YES.
THE COURT: ET CETERA, ET CETERA.
MS. CLARK: WHO'S BEING SUED?
THE COURT: YES.
MS. CLARK: HE CAN GO INTO WHO'S BEING SUED. THEN HE
SHOULDN'T --
THE COURT: WAIT, COUNSEL.
MS. CLARK: IF HE CAN GO INTO WHO'S BEING SUED, THEN THIS
IS PUTTING --
THE COURT: MISS CLARK, DO YOU HONESTLY -- EXCUSE ME.
DO THE PEOPLE HONESTLY TAKE THE POSITION THAT
SOMEBODY WHO IS REPRESENTED BY COUNSEL WHO HAS WRITTEN LETTERS TO
TARGET SEVERAL LAWYERS THAT THEY ARE GOING TO BE SUING DOESN'T
HAVE ANY BEARING ON SOMEBODY'S CREDIBILITY AS THEY TESTIFY IN A
LAWSUIT THAT'S RELATED TO IT? I MEAN, IS THAT YOUR POSITION?
I MEAN I'M RESTRICTING MR. BAILEY. WE'RE NOT GOING
TO TRY THAT LAWSUIT HERE.
MR. BAILEY: NO.
THE COURT: BUT THE FACT HE IS GOING TO MAKE CLAIMS AGAINST
CERTAIN PEOPLE CONNECTED WITH THIS CASE, THAT'S RELEVANT TO
CREDIBILITY, BIAS, INTEREST, MOTIVE.
MR. DARDEN: CAN I INTERJECT SOMETHING?
THE COURT: I AM SORRY. SOMETHING ELSE?
MR. DARDEN: ACTUALLY SINCE MR. COCHRAN GOT TO SPEAK ON THE
MATTER?
MY CONCERN IS, IF THE JURY LEARNS HE'S SUING MR.
COCHRAN, THE LEAD ATTORNEY ON THE CASE, THAT ADDS A WHOLE NEW
DIMENSION TO THIS CASE AND THE JURY COULD -- THAT COULD VERY WELL
AFFECT THEIR ASSESSMENT OF THIS WITNESS' CREDIBILITY.
THE COURT: IT CERTAINLY DOES. IT CERTAINLY DOES ADD NEW
DIMENSION TO THE CASE. I DON'T DISAGREE WITH THAT AT ALL.
****
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: IT'S UNBELIEVABLE WE HAVE 20,000 PAGES OF
TRANSCRIPT ALREADY.
MR. BAILEY: COUNTER DOESN'T HAVE SIX DIGITS.
MS. CLARK: IS THE COURT LOOKING FOR SOMETHING?
THE COURT: GO AHEAD.
MR. DARDEN: CAN I HANDLE IT?
MS. CLARK: CAN I LET MR. DARDEN HANDLE THIS?
MR. DARDEN: OBVIOUSLY --
MR. BAILEY: I OBJECT. I OBJECT. ONE LAWYER --
MR. DARDEN: I AM THE ONE.
MR. BAILEY: -- ONE WITNESS. I DON'T THINK SO.
THE COURT: MISS CLARK, YOUR WITNESS.
MS. CLARK: NO. THE PROBLEM IS, I DIDN'T DO THIS MOCK
CROSS-EXAMINATION. I WASN'T THERE.
THE COURT: NO. THE QUESTION WAS, DID YOU DISCUSS ANYTHING
THAT YOU FELT WAS IRRELEVANT OR DEAL WITH ANYTHING IRRELEVANT.
MS. CLARK: THAT WAS NOT THE QUESTION.
THE COURT: WHAT'S THE QUESTION?
MS. CLARK: THE QUESTION WAS POSED, WHAT WAS THE MOCK
CROSS-EXAMINATION INTENDED TO HANDLE AND WHY WAS THERE SOME
SPECIAL NEED SEEN TO DO THE --
THE COURT: LET ME GO GET THE QUESTION.
MS. CLARK: THAT WAS THE GIST OF IT. THAT'S NOT --
THE COURT: THE QUESTION WAS, WHAT IRRELEVANT EVIDENCE THAT
WAS GOING TO BE BROUGHT INTO THE TRIAL WERE YOU PREPARING FOR.
MS. CLARK: NO. NOT THAT WAS GOING TO BE BROUGHT INTO THE
TRIAL. THAT COULD HAVE.
THE COURT: THAT WAS THE QUESTION.
MR. DARDEN: THAT'S WHY WE OBJECT. IF I CAN EXPLAIN IT.
CAN I CONFER?
THE COURT: CERTAINLY.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
MS. CLARK: THAT IS MY OBJECTION.
THEY WANT HIM TO SIT THERE AND PUT OUT. NO, I DID GET
IT RIGHT. I GOT IT RIGHT. THEY WANT TO -- THE QUESTION ASKS HIM
TO DISCUSS WHAT THE COURT HAS ALREADY DEEMED TO BE IRRELEVANT.
THAT'S ASKING HIM TO BRING IN WHAT THE COURT HAS EXCLUDED.
MR. BAILEY: NO. IF YOUR HONOR PLEASES, THE TRANSCRIPT
WILL SHOW THAT I INQUIRED OF HIM, BASED ON WHAT HE OFFERED THE
JURY AT THE OUTSET AS THE SPECIAL SESSION TO ADDRESS THE SPECIAL
PROBLEM, WHAT NEXUS THERE WAS BETWEEN HIS PROBLEM AND THE
SESSION, AND HE SAID, "I HAD READ IN COURT PAPERS EFFORTS TO
BRING IN IRRELEVANT EVIDENCE ABOUT ME," AND MY INQUIRY IS WHAT
IRRELEVANT EVIDENCE DOES HE MEAN.
MS. CLARK: AND THAT'S --
MR. BAILEY: THEY'VE OPENED THIS DOOR, JUDGE. THIS IS FAIR
GAME.
MS. CLARK: WE DIDN'T OPEN THE DOOR, YOUR HONOR. WE
ADDRESSED THE SUBJECT MATTER OF CROSS-EXAMINATION, WHICH COUNSEL
IS NOW LOOKING TO OPEN THE DOOR ON THROUGH HIS OWN
CROSS-EXAMINATION, WHICH IS NOT PERMITTED.
TO ASK THE WITNESS NOW TO DISCUSS WHAT THE COURT HAS
DEEMED TO BE IRRELEVANT IS TO FLAUNT THE COURT'S RULING. BY
ASKING THE WITNESS TO DISGORGE WHAT WE HAVE BEEN LITIGATING IN
COURT, THAT CAN'T BE PROPER.
HOW CAN THAT BE A PROPER QUESTION AND HOW CAN THE
SUBJECT MATTER OF -- HOW CAN THAT QUESTION POSSIBLY BE ADMISSIBLE
WHEN THE COURT HAS DEEMED IT TO BE IRRELEVANT AND ADMISSIBLE?
THE COURT: BUT DON'T WE HAVE A PROBLEM HERE, THAT IF HE'S
BEEN PREPARED AS A WITNESS -- I MEAN ISN'T THAT A RELEVANT AREA
OF CROSS-EXAMINATION, OF WHAT THINGS HE'S BEEN PREPARED ON?
MS. CLARK: YES AND NOT -- NO. BECAUSE WE DID NOT HAVE THE
BENEFIT OF ALL POSSIBLE RULINGS THAT WERE GOING TO BE GONE INTO
BY THE COURT.
THIS IS REALLY NASTY STUFF, YOU KNOW, AND COUNSEL
KNOWS IT. THE FACT THAT WE PREPARE A WITNESS FOR
CROSS-EXAMINATION, I HAVE NOT OBJECTED TO THEIR CROSS-EXAMINATION
ON IT. THAT'S FAIR.
WHAT I'M TALKING ABOUT IS, YOUR HONOR, BEFORE WE
HANDLED ALL OF THE COURT'S RULINGS ON WHAT WOULD BE ADMISSIBLE
AND WHAT WOULD NOT, WE HAD TO PREPARE WITH THIS WITNESS AS TO
WHAT HE WOULD SAY IN RESPONSE TO CERTAIN QUESTIONS, QUESTIONS
THAT ARE NOW NOT EVEN ASKABLE BECAUSE THE EVIDENCE IS NOT
ADMISSIBLE, AND NOW YOU ARE GOING TO PERMIT HIM TO ASK, DISGORGE
--
THE COURT: NO. I RECOGNIZE THERE'S SOME DANGERS HERE.
THE PROBLEM I HAVE IS THAT YOU ASKED THE QUESTION, WHY -- "CAN
YOU TELL US WHY YOU FEEL NERVOUS AND RELUCTANT?"
I MEAN THIS IS ON YOUR THIRD QUESTION, AND THEN HE
GOES ON TO TELL US ABOUT THESE OTHER THINGS. I WAS REAL UNHAPPY
WITH THAT QUESTION AND ANSWER BECAUSE OF WHAT IT OPENS UP.
MS. CLARK: YOUR HONOR, IT DOESN'T OPEN UP THE DOOR TO
ALLOW HIM TO TESTIFY --
THE COURT: SURE, IT DOES.
MS. CLARK: -- WHAT THE COURT DEEMED INADMISSIBLE.
THE COURT: BUT I'M WORRIED ABOUT WHAT'S GOING TO COME UP.
I'M GOING TO TOSS THE JURY BACK AND LET YOU ASK THE
QUESTION, AND LET'S SEE WHAT COMES OUT.
MR. BAILEY: ALL RIGHT.
****
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
THE COURT: WE'RE OVER AT THE SIDEBAR.
MR. BAILEY.
MR. BAILEY: MY UNDERSTANDING OF YOUR RULING EARLIER TODAY,
YOUR HONOR, BEFORE I CAN GO INTO QUESTIONS ABOUT MAX CORDOBA, THE
PROSECUTION IS ENTITLED TO GET IN TOUCH WITH HIM, ALL RIGHT, AND
THE SAME AS TO ALWYN MARTIN.
I WOULD ASK, BECAUSE I DON'T WANT TO BIFURCATE THIS
EXAMINATION, THAT WE ADJOURN FOR THE DAY AND SEE IF THEY CAN
ACCOMPLISH THAT BY MORNING SO THAT WE CAN CONCLUDE WITH DETECTIVE
FUHRMAN. IF THEY CAN'T, I GUESS WE HAVE NO CHOICE.
THE COURT: IT'S FIVE MINUTES TO. WE'LL BREAK AT THIS
POINT. IF YOU CAN ACCOMPLISH IT, FINE. IF NOT, WE'LL SEE WHERE
WE ARE. WE MIGHT HAVE TO BIFURCATE THIS.
MR. BAILEY: I PREFER NOT TO.
THE COURT: I PREFER NOT TO AS WELL, BUT THEY ARE ENTITLED
TO, AS I INDICATED, LOOK INTO THIS.
ANY OTHER COMMENT?
MS. CLARK: NO.
MR. DARDEN: HOW LATE AND HOW LONG AM I SUPPOSED TO WORK ON
THIS? ALL NIGHT OR --
MR. BAILEY: BE LIKE THE DEFENSE, GO TO MIDNIGHT.
MS. CLARK: SURE YOU DO.
THE COURT: ALL RIGHT.
WHAT ELSE DO WE HAVE -- EXCUSE ME, MR. COCHRAN, MISS
CLARK. WHAT ELSE DO WE HAVE THIS AFTERNOON? ARE WE GOING TO
HANDLE THAT DISPUTE OVER HANDWRITING AND RECORDS AND BLAH, BLAH,
BLAH?
MR. COCHRAN: WHAT DISPUTE?
THE COURT: ANY TIME I SEE SCHECK AND NEUFELD, I GET
NERVOUS.
MR. COCHRAN: I DON'T KNOW ABOUT THAT.
CAN WE FIND OUT WHILE WE ARE HERE WHAT'S THE ORDER OF
WITNESSES AFTER WE FINISH FUHRMAN, FINALLY FINISH FUHRMAN?
MS. CLARK: WE WILL BE CALLING LIEUTENANT SPANGLER AND THEN
WE WILL BE CALLING --
MR. DARDEN: WHILE YOU ARE DOING THAT, CAN I GET THE MOST
RECENT PHONE NUMBERS AND ADDRESSES FOR CARDOBA AND MARTIN BEFORE
I LEAVE?
MR. BAILEY: TELL PAT TO GIVE THEM TO YOU.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEY AND DEFENSE COUNSEL.)
MR. COCHRAN: SPANGLER?
MS. CLARK: CAMERAMAN, SPANGLER TOO, THEN VANNATTER.
MR. COCHRAN: WHO ELSE AFTER THAT?
MS. CLARK: PROBABLY KATO.
MR. COCHRAN: THEN FIFTH ON THE LIST WOULD BE PARK?
MS. CLARK: NO. I HAVE TO TALK TO YOU, FIND OUT WHO YOU
WANT TO STIPULATE TO IN THE FORM OF PHONE RECORDS, PHONE RECORD
PEOPLE. THEN PARK.
MR. COCHRAN: PROBABLY NOT UNTIL NEXT WEEK.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEY AND DEFENSE ATTORNEY.)
MR. COCHRAN: NOT THIS WEEK? MARCIA, NOT THIS WEEK?
MS. CLARK: NO. WE WON'T GET THAT FAR.
MR. COCHRAN: TALK ABOUT --
MR. DARDEN: BEFORE WE CAN --
MS. CLARK: WHO'S TAKING VANNATTER?
THE COURT: EXCUSE ME, COUNSEL. COUNSEL --
MR. COCHRAN: I CAN'T TELL YOU.
THE COURT: WHY DON'T YOU GUYS TALK ABOUT THAT PART OF IT
LATER.
ANYTHING ELSE WE WANT TO PUT ON THE RECORD?
MR. BAILEY: I THINK MR. SCHECK AND MR. NEUFELD ARE HERE IN
A SEMINAR MODE AND NOT AN ATTACK MODE.
MR. DARDEN: BEFORE YOU GO, BEFORE YOU GO, YOU KNOW,
VANNATTER IS COMING UP IN THE ROTATION, BUT HE MAY HAVE TO LEAVE
DUE TO A FAMILY EMERGENCY AND GO OUT OF STATE. SO IT COULD CAUSE
A DELAY IF IT HAPPENS AT THE LAST MINUTE.
MR. BAILEY: WE CAN CALL ANOTHER WITNESS. WE DON'T HAVE TO
SIT AROUND AND WAIT FOR VANNATTER.
MR. DARDEN: DEPENDS. DEPENDS ON WHEN IT IS. IF I GET A
CALL THURSDAY NIGHT SAYING HE'S LEAVING NOW, THAT MAY CALL FOR
DELAY ON FRIDAY. I JUST WANT TO LET YOU KNOW.
MR. BAILEY: BEING FOREWARNED, WE SHOULD HAVE A SURPRISE
WITNESS. WHY COOL OUR HEELS?
MS. CLARK: OBVIOUSLY, WE'LL DO OUR BEST.
MR. DARDEN: IT'S NOT IN THE BOOK, MR. BAILEY.
THE COURT: THANK YOU, COUNSEL.
****
(THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH:)
MR. DOUGLAS: YOUR HONOR, I'VE BEEN TALKING OVER THE LUNCH
HOUR WITH MR. BLASIER AND MR. NEUFELD ABOUT THE COURT'S ORDER
REGARDING EXPERT WITNESSES. AND BECAUSE OUR EXPERTS ARE IN
DIFFERENT PORTIONS OF THE COUNTRY, WE WOULD LIKE SOME MORE TIME.
SECOND, WE WOULD LIKE TO PRESENT THE MATTER TO THE
COURT IN CAMERA BEFORE YOU MAKE ANY ORDER FOR DISCLOSURE UNDER
1054.7.
WE WOULD ASK UNTIL MONDAY FOR THE IN CAMERA AND THEN
THE END OF MONDAY, TUESDAY AT THE LATEST FOR THE DISCLOSURE.
PROBABLY MONDAY FOR BOTH. WE WOULD LIKE TO HAVE AN IN CAMERA ON
MONDAY, THEN DISCLOSURE IMMEDIATELY THEREAFTER IF THE COURT
PLEASES.
MR. DARDEN: YOUR HONOR, THE COURT ISSUED AN ORDER. WE'RE
ALREADY WHAT, TWO MONTHS INTO TRIAL. WE'RE STILL WAITING FOR
DISCOVERY WE OUGHT TO HAVE.
OPENING STATEMENT WAS DURING THE LAST WEEK OF
JANUARY, AND WE STILL HAVEN'T GOTTEN ANY INFORMATION. THE COURT
ISSUED AN ORDER. I THOUGHT WE HAD AN AGREEMENT.
THE COURT ISSUED ITS RULING. IT'S INHERENTLY UNFAIR
TO CAUSE ANY ADDITIONAL DELAY. EXPERTS ARE COMING UP PROBABLY
WITHIN THE NEXT 10 DAYS. WE NEED TIME TO READ THIS STUFF AND TO
DIGEST IT. ANY ADDITIONAL DELAY IS UNFAIR AND IS GOING TO CAUSE
DELAY IN PROCEEDING. THE COURT'S ALREADY RULED.
THE COURT: YOU HAVE UNTIL NOON.
****
Sidebars from March 14, 1995:
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: ALL RIGHT. WE ARE OVER AT THE SIDE BAR.
MISS CLARK, WHAT IS THE OBJECTION?
MS. CLARK: THE OBJECTION IS THAT MISLEADS THE JURY
INTO BELIEVING THAT THERE WAS ANY PREPARATION AT THAT TIME
IN TERMS OF WHAT WE WERE REALLY GOING TO QUESTION THE
WITNESS ABOUT OR HOW WE WERE GOING TO STRUCTURE DIRECT.
THERE WAS NONE. THAT DIDN'T OCCUR UNTIL AFTER
THAT, WAY AFTER THAT, SO THAT THERE WOULDN'T HAVE BEEN ANY
STRATEGIZING, THERE WOULDN'T HAVE BEEN ANY PLANNING THE
INFERENCE THAT MR. BAILEY IS SEEKING TO DRAW IS HAD THE
NEWSWEEK ARTICLE NOT COME OUT WE WOULD NOT HAVE EXPOSED THE
FACT THAT WE HAD PREPARED THE CASE WITH THE WITNESS AND
QUESTIONED HIM ABOUT THESE THINGS.
AND THAT IS NOT A FAIR INFERENCE BECAUSE WE
HADN'T PREPARED FOR WHAT WE WERE GOING TO ASK YET. THAT
WAS -- THAT WAS WHAT PART OF THE GRAND JURY SESSION WAS
ABOUT.
THE COURT: UH-HUH.
MS. CLARK: IT IS AN UNFAIR INFERENCE BEING LEFT WITH
THIS JURY.
THE COURT: WHAT IS THE LEGAL BASIS?
MS. CLARK: MISLEADING UNDER 352. IT WILL CONFUSE
THE JURY. IT WILL MISLEAD THE JURY. THIS IS DECEPTIVE.
YOU KNOW, IT ALSO GOES TO WORK PRODUCT, YOUR HONOR. YOU
KNOW, HOW WE PLAN AND WHEN WE PLAN AND STRATEGIZE THE
QUESTIONING OF A WITNESS IS A MATTER -- IT'S A SUBJECT
MATTER OF WORK PRODUCT THAT THE COURT IS PERMITTING COUNSEL
TO GO INTO.
THIS WITNESS DOESN'T KNOW THE NICETIES OF THIS,
BUT THIS IS A MATTER OF WHEN WE REALLY SAT DOWN TO FIGURE
OUT WHAT WE WERE TO GO ASK ABOUT, IN WHAT ORDER, HOW HIS
DIRECT EXAMINATION WAS GOING TO BE STRUCTURED, SO AT THE
POINT IN TIME THAT COUNSEL IS REFERRING TO THAT HADN'T
OCCURRED YET.
I DIDN'T EVEN REALLY BEGUN -- I AM TRYING TO
THINK WHEN I REALLY STRUCTURED THE MATTER OF QUESTIONING.
IT WAS PRETTY LATE -- IT WAS PRETTY LATE. I DIDN'T EVEN
BEGIN IT I THINK UNTIL A WEEK BEFORE HE TOOK THE STAND.
HE WOULDN'T KNOW THAT. HE DOESN'T KNOW. WE SIT
AND WE REVIEW FACTS AND WE TALK ABOUT WHAT HE REMEMBERS,
YOU KNOW, AND I ASK HIM TO REVIEW HIS PRELIM TESTIMONY AND
YOU KNOW WHAT I MEAN, THE WAY PEOPLE WOULD ORDINARILY
PREPARE A WITNESS.
BUT I DID NOT ACTUALLY SAY "WE ARE GOING TO DO
THIS" ACTUALLY UNTIL - I'M TRYING TO THINK WHEN I DID.
IT DOESN'T MATTER WHEN I DID IT.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
MS. CLARK: THE WHOLE AREA IS IRRELEVANT, YOUR HONOR,
AND WHAT COUNSEL IS TRYING TO ELICIT FROM THIS WITNESS, BY
WAY OF INFERENCE, THIS WITNESS CAN'T EVEN KNOW ABOUT AND WE
ARE TALKING AS WELL ABOUT WORK PRODUCT.
THE COURT: ARE YOU TAKING THE POSITION THAT
PREPARING WITNESSES TO TESTIFY IS IRRELEVANT?
MS. CLARK: NO, NO, I'M NOT. I'M TAKING THE POSITION
THAT ASKING THIS WITNESS TO SPECULATE OR TO TRY TO DRAW THE
INFERENCE FROM THIS WITNESS THAT WE WOULD NOT HAVE DIVULGED
THE GRAND JURY EXAMINATION BUT FOR THE NEWSWEEK ARTICLE IS
UNFAIR AND MISLEADING TO THE JURY BECAUSE HE DOESN'T KNOW
WHAT WE WERE PLANNING TO DO BEFORE, AFTER OR DURING.
THE COURT: MR. BAILEY.
MR. BAILEY: I'M NOT ASKING HIM TO DRAW ANY
INFERENCE. I'M ASKING HIM IF A PLAN WAS EVER MADE KNOWN TO
HIM BETWEEN THE EVENTS AND THE PUBLICATION, AND I THINK
THAT IS A SIMPLE HISTORICAL FACT, BUT WHAT ARGUMENT IS MADE
OF IT IS SOMETHING YOUR HONOR MAY TO RULE ON LATER.
I THINK IT A FAIR QUESTION UNDER THE
CIRCUMSTANCES.
THE COURT: ALL RIGHT. THE OBJECTION IS OVERRULED,
ASSUMING THE QUESTION IS REASKED IN THAT PARAMETER, WHETHER
OR NOT IT PRECEDED.
MR. BAILEY: YES.
THE COURT: ALL RIGHT.
****
--
