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From: [email protected] (Myra Dinnerstein)
Subject: JUROR TRANSCRIPT - 6/05/95
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Date: Fri, 11 Aug 1995 01:32:16 GMT
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LOS ANGELES, CALIFORNIA; MONDAY, JUNE 5, 1995
9:28 A.M.
DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE
APPEARANCES:
(APPEARANCES AS HERETOFORE NOTED.)

(JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.) (CHRISTINE
M. OLSON, CSR NO. 2378, OFFICIAL REPORTER.)

(THE FOLLOWING PROCEEDINGS
WERE HELD IN CAMERA:)

THE COURT: ON THE RECORD.
ALL RIGHT.
WE ARE IN CHAMBERS WITH COUNSEL, MR. DARDEN, MISS
CLARK, MR. COCHRAN AND MR. SHAPIRO. ALSO PRESENT IS DR. JO-ELLAN
DIMITRIUS, JURY CONSULTANT FOR THE DEFENSE.
COUNSEL, I'M GOING TO RULE ON THE JUROR ISSUES THAT
THAT WE HAVE BEFORE US.
AS TO JUROR NO. 1427, THE COURT ON TWO OCCASIONS
DIRECTLY ORDERED HER NOT TO DISCUSS THE SUBJECT OF THE CHAMBERS
CONFERENCES WITH OTHER JURORS.
THAT ORDER WAS MADE SPECIFICALLY BY THE COURT ON TWO
OCCASIONS, AND THE COURT REFERS SPECIFICALLY TO THE TRANSCRIPT,
VOLUME 154A.
THE ORDER WAS VIOLATED BY JUROR 1427 BY WRITING A
NOTE TO JUROR 353, WHO IS NOW DISMISSED, AND WHEN SHE WAS
CONFRONTED WITH THAT SHE WAS NOT CANDID WITH THE COURT.
AND I FIND THAT THERE IS GOOD CAUSE, ON THE BASIS OF
THE VIOLATION OF THE COURT ORDER AND THE LACK OF CANDOR, TO
EXCUSE 1427.
AS TO 1489, THE COURT HAS RECEIVED NUMEROUS REPORTS
OF PERSONAL CONFLICT BETWEEN 1489 AND OTHER JURORS.
IT IS NOT UNEXPECTED THAT GIVEN THE LONG PERIOD OF
SEQUESTRATION AND THE LONG TIME DURATION, THAT THERE WOULD BE
SOME PERSONAL CONFLICTS BETWEEN THE JURORS.
HOWEVER, WHEN WE HAVE DELIBERATE AND OFFENSIVE
PHYSICAL CONTACT AND THE THREAT OF PHYSICAL CONTACT, THAT IS
SOMETHING SIGNIFICANTLY DIFFERENT THAN MERE PERSONALITY CONFLICT.
THE COURT MAKES REFERENCE TO PEOPLE VERSUS MC MANUS
AT 180 CAL.APP.2D 19, AND SPECIFICALLY THE DISCUSSION AT PAGE 30.
THERE ARE A NUMBER OF INCIDENTS THAT THE COURT HAS
CONSIDERED HERE.
THE FIRST INCIDENT INVOLVES JUROR 1427, THE ELEVATOR
BUMPING INCIDENT WHEN 1427 RELATED THAT 1489 DELIBERATELY BUMPED
INTO HER ON THREE OCCASIONS IN A ROW.
THE COURT NOTES THAT 1489 IS A MALE, APPROXIMATELY
5-10 AND 200 POUNDS AND 1427 IS A FEMALE AND APPROXIMATELY 5-8,
VERY SLENDER, APPROXIMATELY 125 POUNDS.
IN A SECOND INCIDENT JUROR 1427 REPORTED THAT SHE WAS
DELIBERATELY SHOVED BY JUROR 1489, AGAIN IN THE ELEVATOR. THIS
INCIDENT WAS ALSO REPORTED TO THE COURT BY JUROR NO. 19 ON APRIL
THE 21ST.
THE COURT NOTES THAT PREVIOUSLY JUROR NO. 19 HAD
REPORTED TO THE COURT THE CONTRABAND LIST OF JUROR NAMES THAT WAS
KEPT BY A DISMISSED JUROR, NO. 602. THE COURT TAKES THAT INTO
CONSIDERATION IN ASSESSING THE CREDIBILITY OF JUROR NO. 19.
THE THIRD INCIDENT, JUROR 1427 MADE A COMPLAINT THAT
1489 WAS OFFENSIVELY BRUSHING UP AGAINST HER IN THE LOUNGE. SHE
WAS VERY DISTRAUGHT BY THIS CONTINUED PHYSICAL CONTACT WITH 1489,
AND THIS IS ON MAY 25TH.
THE COURT MAKES REFERENCE TO THE HEARING CONDUCTED ON
THAT DATE, AND THERE WERE -- SHE WAS VERY DISTRAUGHT AT THE TIME,
INDICATING DIFFICULTY WITH CONTINUING AS A JUROR IN THIS CASE.
AND IN A FOURTH INCIDENT JUROR 1427 INDICATED THAT
SHE HAD BEEN UPSET BY 1489'S CONDUCT BY SITTING IN THE JURY ROOM
AND STARING AT HER, AND THIS PARTICULAR STARING WAS COMMENTED
UPON BY JUROR 1290 AND JUROR 19.
THE COURT MAKES REFERENCE ALSO TO THE INCIDENT
REGARDING DISMISSED JUROR NO. 353 WHERE JUROR 1489 REPORTED THAT
JUROR 353 HAD STEPPED ON HIS FOOT.
JUROR 353 TOLD US THAT SHE DID NOT RECALL ACTUALLY
STEPPING ON HIS FOOT, BUT IF IT HAPPENED, IT WAS INADVERTENT.
THE COURT NOTES THAT JUROR 353 WAS APPROXIMATELY FIVE
FEET FOUR, 125 TO 130 POUNDS, AND THAT 1489 THEN THREATENED TO
TRIP HER IF SHE CAME BY AGAIN AND STEPPED ON HIS SHOES.
THIS THREAT TO TRIP WAS REPORTED BY JURORS 19, 93 AND
63.
IN A SIXTH INCIDENT JUROR NO. 1290 REPORTED THAT SHE
IS ALSO A TARGET OF THE STARING BY 1489 AND THAT IT MAKES HER
FEEL UNCOMFORTABLE.
THE COURT NOTED IN INCIDENT 7 THAT JURORS 984 AND 247
REPORTED THAT 1489 IS THE SOURCE OF CONFLICT OVER THE VIEWING OF
T.V. AND VIDEOTAPES, T.V. VIEWING OF VIDEOTAPES, AND THIS HAS
CAUSED THE COURT EXTRA EXPENSE TO AUTHORIZE THE RENTAL OF A
SECOND T.V. ROOM.
AND PREVIOUSLY 1489 HAD DENIED ANY -- HAVING ANY
CONFLICT WITH 1427 AND HAD DENIED PHYSICAL CONTACT.
THE COURT FINDS THAT THAT DENIAL IS LACKING IN
CREDIBILITY.
DESPITE THE PENDING DISMISSAL OF 1427, THERE ARE
REMAINING JURORS WHO HAVE BEEN TARGETS AND THE VICTIMS OF 1489'S
OFFENSIVE BEHAVIOR, AND THE COURT FINDS THAT 1489'S CONDUCT IS
DISRUPTIVE OF THE TRUTH-FINDING PROCESS.
THE COURT MAKES REFERENCE TO THE CASE UNITED STATES
VERSUS FAJARDO AT 787 FED.2D AT 1523.
PENAL CODE 1089 CONFERS ON THE COURT DISCRETION AND
THE COURT CAN MAKE DISMISSALS UPON A SHOWING OF GOOD CAUSE.
THE COURT MAKES A FINDING THAT 1489 CANNOT PERFORM
HIS DUTIES AS A JUROR BECAUSE OF HIS OFFENSIVE BEHAVIOR TOWARD
OTHER JURORS ON AN ONGOING BASIS AND THAT THIS OFFENSIVE BEHAVIOR
IS NOT JUST ORAL, BUT IS ALSO PHYSICAL IN ITS MANIFESTATIONS, AND
ALSO BASED UPON HIS LACK OF CANDOR WITH THE COURT IN DISCUSSING
THESE MATTERS.
ALL RIGHT.
LET'S HAVE 1427, PLEASE.
MR. COCHRAN: CAN WE JUST NOTE OUR OBJECTION TO 1489?
THE COURT: NOTED.
MS. CLARK: OUR OBJECTION TO 1427?
THE COURT: NOTED.

(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)

THE COURT: ALSO INTERESTING, IN MC MANUS, WHERE THERE HAD
BEEN CONFLICT BETWEEN A JUROR AND AN ALTERNATE, THE COURT FOUND
GOOD CAUSE TO REMOVE THE PROBLEM BY BOUNCING BOTH, AND I THINK BY
BOUNCING 1427, 1489 AND 353 WE HAVE REMOVED THE WARRING PARTIES.
MR. COCHRAN: CAN I ASK ONE OTHER QUESTION?
IS THERE ANY NEW DEVELOPMENT BECAUSE WE ARE GETTING
SO -- I WANT TO MAKE A PROPOSAL, AFTER WE GET THROUGH THIS TODAY,
ABOUT HOW WE DEAL WITH IT IN THE FUTURE.

(JUROR NO. 1427 ENTERS CHAMBERS.)

THE COURT: ALL RIGHT.
GOOD MORNING, 1427.
JUROR NO. 1427: GOOD MORNING.
THE COURT: HOW ARE YOU TODAY?
JUROR NO. 1427: FINE.
THE COURT: 1427, I AM GOING TO DISMISS YOU FROM FURTHER
SERVICE ON THE JURY PANEL AND I WANT YOU TO KNOW THAT I'VE HAD TO
THINK ABOUT THIS FOR A LONG TIME. I DID NOT WANT TO LOSE YOU.
JUROR NO. 1427: I UNDERSTAND.
THE COURT: THE PROBLEM WAS MY DIRECT ORDER TO YOU NOT TO
DISCUSS THE TOPICS WE WERE TALKING ABOUT AND THEN YOUR PASSING
THE NOTE TO 353, AND THAT WAS A DIRECT VIOLATION OF TWO OF MY
ORDERS, SO I DON'T THINK IT IS APPROPRIATE FOR YOU TO SERVE ANY
LONGER AT THIS POINT.
AND YOU HAVE THE THANKS OF THE COURT, AND I FEEL AS
BADLY ABOUT THIS AS YOU DO, BUT I THINK YOU UNDERSTAND WHY I HAVE
TO DO THIS.
JUROR NO. 1427: YES, I UNDERSTAND.
THE COURT: ALL RIGHT.
I'M GOING TO SERVE YOU NOW WITH AN ORDER WHICH ORDERS
YOU NOT TO REVEAL TO ANYBODY THE IDENTITY OF ANY MEMBER OF THE
JURY OR THE ALTERNATES.
JUROR NO. 1427: YES.
THE COURT: AND NOT TO REVEAL TO ANYBODY THE NAME OR
LOCATION OF THE HOTEL.
AND MR. DARDEN, WOULD YOU STAND THAT TO 1427, PLEASE.
JUROR NO. 1427: THANK YOU.
THE COURT: ALL RIGHT. THANK YOU VERY MUCH. YOU ARE
EXCUSED.

(JUROR NO. 1427 EXITS CHAMBERS.)

THE COURT: 1489, PLEASE.

(BRIEF PAUSE.)

(JUROR NO. 1489 EXITS CHAMBERS.)

THE CLERK: 1489.
THE COURT: ALL RIGHT.
1489, WHY DON'T YOU HAVE A SEAT, PLEASE.
JUROR NO. 1489: THANK YOU.
THE COURT: 1489, THERE HAVE BEEN A NUMBER OF PROBLEMS
DURING THE COURSE OF THIS TRIAL, AS YOU KNOW, REGARDING
PERSONALITY CONFLICTS, AND I AM GOING TO DISMISS YOU AS A JUROR
AT THIS TIME.
AND THE REASON IS THE ONGOING PERSONALITY CONFLICT
BETWEEN YOU AND OTHER JURORS, AND I HAVE DISMISSED THOSE OTHER
JURORS AS WELL.
I APOLOGIZE TO YOU BECAUSE I KNOW THAT THIS IS NOT
SOMETHING THAT WILL SIT WELL WITH YOU, BUT I HAVE TO PROTECT THIS
PROCESS AND CAN'T HAVE IT DISRUPTED BY CONFLICTS BETWEEN THE
JURORS.
ALL RIGHT. THANK YOU VERY MUCH, SIR.
JUROR NO. 1489: SURE.
THE COURT: BEFORE I EXCUSE YOU, I'M GOING TO ORDER YOU NOT
TO REVEAL TO ANYBODY THE IDENTITY OF ANY MEMBERS OF THE JURY AND
NOT TO REVEAL THE NAME OR LOCATION OF THE HOTEL.
ALL RIGHT.
AND MR. DARDEN, WOULD YOU HAND 1489 A COPY OF THAT.
ALL RIGHT. THANK YOU VERY MUCH, SIR.
JUROR NO. 1489: SURE.

(JUROR NO. 1489 EXITS CHAMBERS.)

(BRIEF PAUSE.)

THE COURT: OKAY. WHAT ELSE DO WE HAVE TO DISCUSS?
MR. COCHRAN: JUST, JUDGE, YOU NOTED OUR OBJECTION.
I THINK THAT YOU WILL RECALL THAT LEE BAILEY MADE A
SUGGESTION SOME TIME AGO ABOUT CONSIDERING UPPING THE THRESHOLD
FOR EXCUSING JURORS AT SOME POINT, AND WHAT I WANTED TO ASK YOU
WAS THERE ANY UPDATED STATUS ON .............?
I GUESS WE ARE GOING TO BE DOWN TO TWO ALTERNATES AS
OF TODAY.
THE COURT: DEPUTY DOWNS IS ATTEMPTING TO LOCATE AND
INTERVIEW THE COMPLAINANT IN THE TRO.
MR. COCHRAN: ALL RIGHT.
YOU CAN PUT IT ON HOLD, BUT I THINK AT SOME POINT I
WANT TO TALK TO OUR COLLEAGUES FOR THE PROSECUTION.
THE COURT: I UNDERSTAND.
MR. COCHRAN: THERE MAY BE A POINT WHERE WE WANT TO TALK
ABOUT UPGRADING THE WHOLE PROCESS, BECAUSE --
THE COURT: ACTUALLY, I THINK I SHOULD GO IN AND TELL THE
JURORS NOW THAT THE REASON WE ARE LOSING PEOPLE IS BECAUSE OF THE
LACK OF CANDOR.
MS. CLARK: AND COOPERATION.
THE COURT: AND COOPERATION, SO -- BUT IN ANY EVENT --
MR. COCHRAN: IF YOU DO, THEN THEY MAY COME FORWARD. IF
YOU DO, THEY WILL PROBABLY COME IN AND SAY "I DIDN'T TELL YOU
EVERYTHING" AND THEN WE WILL FINISH TODAY.
MS. CLARK: WELL, GOOD NEWS, BAD NEWS STORY, JUDGE.
THE COURT: SIT DOWN, SIT DOWN, SIT DOWN.
BUT THIS CASE HAS SUBJECTED EVERYBODY TO AN
UNPRECEDENTED DEGREE OF PUBLIC SCRUTINY, INCLUDING THE JURORS,
AND THINGS THAT WOULD HAVE NORMALLY JUST PASSED BY WITHOUT
NOTICE, MENTION OR EVEN THOUGHT, ARE DISCOVERED AND MAGNIFIED AND
COMMUNICATED TO THE COURT.
I'M SURE SOMEBODY FROM THE NEWS MEDIA, OR PARTIES
THAT HAVE INTERESTS IN THIS CASE, HAVE DONE BACKGROUND CHECKS ON
ALL THE JURORS, WHICH IS WHY WE HAVE THESE THINGS FILTERING IN TO
US.
MR. COCHRAN: THAT IS A REAL PROBLEM, YEAH.
THE COURT: WHICH IS, I CAN'T RECOLLECT -- AND MAYBE DR. D.
CAN TELL US IF SHE IS EVER HEARD OF A CASE WHERE JURORS HAVE BEEN
SCRUTINIZED BY OUTSIDE PARTIES, BECAUSE I KNOW NONE OF YOU HAVE
DONE THAT, NOR HAS THE COURT.
MS. CLARK: I HAVE NEVER SEEN A CASE LIKE THIS.
DR. DIMITRIUS: THE ONLY COMPARISON, AND IT IS CERTAINLY
NOTHING COMPARED TO THIS, WAS THE FEDERAL TRIAL OF THE FOUR
OFFICERS.
WE HAD A COUPLE OF INSTANCES, BUT IT STOPPED AFTER
LIKE THE FIRST MONTH.
MR. COCHRAN: MAYBE, JUDGE --
MS. CLARK: I THINK THIS IS UNPRECEDENTED.
MR. COCHRAN: I DON'T KNOW.
IF YOU KNEW EVERYTHING YOU KNEW NOW, IF EVER YOU HAD
TO DO THIS AGAIN --
MS. CLARK: LET THE RECORD REFLECT I HAVE REACHED TOWARD
COUNSEL'S NECK.
MR. COCHRAN: EVERYBODY HAS THROWN UP.
THAT MAYBE YOU WOULDN'T RELEASE THOSE QUESTIONNAIRES.
YOU WOULD PROBABLY HAVE GOOD CAUSE OR SOME OTHER JUDGE HAS GOOD
CAUSE NOT TO DO THAT.
MS. CLARK: THIS CASE MAY BE A GOOD PLATFORM ON WHICH TO
CHANGE THAT LAW, BECAUSE IT WAS METROPOLITAN NEWS, WASN'T THAT
THE ONE THAT SAID JUROR QUESTIONNAIRES HAVE TO BE RELEASED, AND
MAYBE NOW WE ARE SEEING A GOOD REASON WHY THEY SHOULDN'T BE.
THE COURT: BUT ON THE OTHER HAND, IF PEOPLE ARE HIDING
THINGS AND THIS IS A TRUTH-FINDING PROCESS, I DON'T KNOW. IT
CUTS BOTH WAYS. I MEAN, CERTAINLY IT HAS BEEN DISRUPTIVE, BUT
SINCE I HAVE MADE A FINDING OF GOOD CAUSE IN EACH INSTANCE WHERE
I HAVE EXCUSED A JUROR BASED UPON THE INFORMATION, OR IN THE CASE
OF 353, THE REACTION TO THE INFORMATION, YOU KNOW, IT IS
TROUBLING TO HAVE TO DEAL WITH ANONYMOUS INFORMATION, ALTHOUGH,
YOU KNOW, WE ATTEMPT TO CORROBORATE AND CONFIRM ALL OF THAT. IN
FACT, WE HAVE.
MS. CLARK: WE HAVE, YEAH.
THE COURT: OKAY.
WHAT IS ON AGENDA WE NEED TO TALK ABOUT? WE HAVE
PEOPLE FROM COUNTY COUNSEL HERE ON THE PERSONNEL RECORD MATTERS.
MR. SHAPIRO: YES.
THE COURT: ALL RIGHT. HAVE YOU TALKED TO THEM?
MR. SHAPIRO: YES, AND WE SHOULD HAVE MR. KELBERG COME IN
AND MR. HERNANDEZ FROM THE COUNTY COUNSEL.
THE COURT: ALL RIGHT.
MR. SHAPIRO: I THINK WE CAN AT LEAST EXPEDITE IT.

(DISCUSSION HELD OFF THE RECORD.)

(BRIEF PAUSE.)

APPEARANCES:
MR. KELBERG AND MR. LYNCH APPEARING
ON BEHALF OF THE DISTRICT ATTORNEY'S
OFFICE; MR. RICHARD E. TOWNSEND AND
TONY HERNANDEZ, COUNTY COUNSEL'S
OFFICE; ALSO APPEARING, DR.
SATHYAVAGISWARAN.

MS. CLARK: YOU DON'T NEED US, DO YOU?
THE COURT: NO.
ALL RIGHT. WE HAVE NOW BEEN JOINED BY MR. TOWNSEND,
MR. KELBERG, DR. LAKSHMANAN.
MR. HERNANDEZ: TONY HERNANDEZ.
THE COURT: ALL RIGHT. FIND A CHAIR THERE, FOLKS.
ALL RIGHT.
MR. SHAPIRO, MR. SHAPIRO, WHY DON'T YOU STATE OUR
PROBLEM HERE.
MR. SHAPIRO: YES, YOUR HONOR.
WE HAVE ISSUED A SUBPOENA DUCES TECUM WHICH HAS BEEN
RECEIVED AND SERVED ON DR. LAKSHMANAN, BASICALLY --
THE COURT: WHO IS PRESENT.
MR. SHAPIRO: WHO IS PRESENT.
-- BASICALLY FOR PERFORMANCE EVALUATION RECORDS
REGARDING DR. GOLDEN, REGARDING MISS RATCLIFFE AND REGARDING --

(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)

MR. SHAPIRO: -- AND REGARDING MR. JACOBO AND WE HAVE
TALKED INFORMALLY AMONGST OURSELVES.
THE COUNTY COUNSEL'S POSITION IS THIS FALLS UNDER
TECHNICALLY A PITCHESS MOTION AND THEY ARE REQUIRED -- THEY ARE
BY THE CODE ALLOWED TO HAVE FIFTEEN DAY'S NOTICE.
HOWEVER, WE ALL REALIZE THAT THAT WOULD UNNECESSARILY
DELAY THIS CASE.
WE HAVE TENTATIVELY SUGGESTED, IF THE COURT WOULD
AGREE, THAT THE COUNTY COUNSEL WILL GET THE APPROPRIATE RECORDS
TOGETHER, THAT THEY WILL COME TO YOU IN CAMERA, THAT YOU CAN
REVIEW THEM, AND WE MAY OR MAY NOT HAVE ANY PROBLEM.
IF YOU DECIDE THAT THEY SHOULD BE RELEASED, THEN THE
COUNTY COUNSEL MAY HAVE A POSITION REQUIRING ADDITIONAL TIME OR
MAY NEED TO GET A WAIVER OR SOMETHING FURTHER FROM THEIR CLIENT.
IF YOU DECIDE THAT FOR SOME REASON THEY ARE NOT
ADMISSIBLE OR THAT THEY ARE PRIVILEGED AND WE ARE NOT ENTITLED TO
THEM, THEN THE PROBLEM DISSIPATES.
MR. TOWNSEND: AT THIS POINT, YOUR HONOR, THE PROBLEM SEEMS
TO BE TIMING, AND IF AS MR. SHAPIRO INDICATED EARLIER, THE
REQUEST IS SIMPLY THE STANDARD COUNTY EVALUATION FORMS, WE CAN --
THE COUNTY ON ITS BEHALF CAN WAIVE NOTICE.
WE WANT TO GIVE THE EMPLOYEES A REASONABLE TIME FRAME
WITHIN WHICH TO RESPOND. WE BELIEVE A COUPLE DAYS WOULD BE
SUFFICIENT AND WE WOULD BRING THOSE IN IN CAMERA.
IF SOMETHING ELSE IS BEING SOUGHT BY THE SUBPOENA, WE
ARE PROBABLY LOOKING AT ADDITIONAL TIME, SO AS I UNDERSTAND THE
STATEMENT FROM MR. SHAPIRO, WE ARE TALKING ABOUT THE STANDARD
FORM.
I WOULD PROPOSE THAT WE BRING THOSE BACK FOR YOUR
HONOR TO REVIEW IN CAMERA IN TWO DAYS. WE WILL MAKE SURE THE
EMPLOYEES HAVE BEEN NOTIFIED AND ASCERTAIN WHETHER THEY HAVE ANY
PROBLEM.
THE COUNTY WILL WAIVE ITS NOTICE REQUIREMENT ON ITS
BEHALF.
THEN WHAT WE WOULD ASK IN ADDITION, YOUR HONOR, IS
THAT THERE BE A PROTECTIVE ORDER WITH REGARD TO ANY RECORDS THAT
ARE SUBSEQUENTLY RELEASED, AND AS MR. SHAPIRO INDICATED, WE WILL
BE AGREEABLE, ONCE YOUR HONOR HAS HAD A CHANCE TO LOOK AT THOSE
RECORDS, THAT WE BE GIVEN AN ADDITIONAL OPPORTUNITY TO EXPRESS
ANY OTHER CONCERNS ABOUT IT.
THE COURT: ALL RIGHT.
THEN I WOULD PROPOSE THEN THAT WE MEET AGAIN 9:00
A.M. ON WEDNESDAY.
MR. SHAPIRO: VERY WELL.
MR. TOWNSEND: VERY WELL.
MR. KELBERG: YOUR HONOR, THE ONLY THING I WOULD LIKE TO
ADD ON BEHALF OF THE DISTRICT ATTORNEY'S OFFICE IS WE HAVE A
QUESTION, GIVEN THAT WE HAVE UNDERGONE PERSONNEL EVALUATIONS AS
MEMBERS OF THE COUNTY OURSELVES, AS TO THE RELEVANCY OF SOME
ASPECTS OF THE EVALUATIONS.
WE BELIEVE PROBABLY THAT ANYTHING THAT REFLECTS UPON,
FOR EXAMPLE, DR. GOLDEN'S COMPETENCY AS A FORENSIC PATHOLOGIST
PRACTICING FORENSIC PATHOLOGY MAY BE APPROPRIATE, ASSUMING THERE
IS NO PRIVILEGE OR SOMETHING OF THAT NATURE, BUT FOR EXAMPLE, AS
THE COURT MAY REMEMBER FROM ITS DAYS AS A MEMBER OF OUR OFFICE,
THOSE PERSONNEL EVALUATIONS, IF THEY ARE ANYTHING LIKE OUR
OFFICE'S, GO INTO OTHER ASPECTS THAT OUR POSITION WOULD BE ARE
IRRELEVANT TO HIS COMPETENCY AS A FORENSIC PATHOLOGIST.
SO WHEN THE COURT REVIEWS THESE DOCUMENTS IN CAMERA,
I HOPE YOU WILL KEEP IN MIND BASICALLY OUR BACKGROUND POSITION
WITH RESPECT TO WHETHER ANY OF THIS MATERIAL IS ADMISSIBLE,
SEPARATE AND APART FROM ITS DISCOVERABILITY AND ALSO TO POINT OUT
OF COURSE THAT MS. RATCLIFFE AND MR. JACOBO HAVE NOT BEEN CALLED
AS WITNESSES AND MAY NEVER BE CALLED.
I DON'T KNOW WHETHER THEY WILL BE CALLED BY OUR SIDE
OR BY THE DEFENSE, BUT IT SEEMS TO ME IT IS A MATTER THAT REALLY
ULTIMATELY, AS TO ADMISSIBILITY, REQUIRES THEM TO BE WITNESSES.
MR. TOWNSEND: YOUR HONOR, IF I MIGHT, THAT WAS PART OF THE
BASIS FOR OUR CONCERN AS WELL. WITHOUT A MOTION, A PITCHESS
MOTION, WHICH AT THIS POINT --
THE COURT: TO FRAME THE ISSUES?
MR. TOWNSEND: TO FRAME THE ISSUES, EXACTLY, YOUR HONOR,
THAT WAS OUR CONCERN AS WELL.
THE COURT: I LOOK AT THIS AS THE EVALUATION OF THE
PERFORMANCE EVALUATIONS AS IT GOES TO THEIR PROFESSIONAL
COMPETENCE IS HOW I SEE IT, AND THAT IS THE ONLY RELEVANCE I SEE
TO THIS.
MR. SHAPIRO: WE ARE NOT SEEKING TO LOOK INTO
PERSONALITIES, CONFLICT OR OTHER THINGS THAT MAY BE INTERESTING
BUT NOT RELEVANT.
WE ARE INTERESTED IN CERTAIN CRITERIA WHICH,
ACCORDING TO THE FORMS THAT WE HAVE RECEIVED IN DR. LAKSHMANAN'S
MANUAL, WOULD DIRECTLY RELATE THE ISSUES AS HE HAS NOW INDICATED
HE WILL BE TESTIFYING TO REGARDING DR. GOLDEN.
AND I ASSUME THAT PART OF HIS TESTIMONY WILL BE BASED
ON PRIOR PERFORMANCE EVALUATIONS AND OPINIONS OF COLLEAGUES
REGARDING THIS DOCTOR'S ABILITY, QUALIFICATIONS AND PERFORMANCE.
THE COURT: ALL RIGHT.
I THINK THAT IS CLEAR.
ALL RIGHT.
COUNSEL, ANYTHING ELSE THEN? I APPRECIATE THE
COOPERATION OF COUNTY COUNSEL AND BEING ABLE TO RESOLVE THIS ON
AN INFORMAL BASIS.
MR. TOWNSEND: VERY WELL. THANK YOU,
YOUR HONOR.
THE COURT: THANK YOU.

(MR. TOWNSEND, MR. HERNANDEZ
AND DR. SATHYAVAGISWARAN
EXIT CHAMBERS.)

MR. KELBERG: YOUR HONOR, DO I HAVE TWO AND A HALF MINUTES
TO VISIT THE RESTROOM?
THE COURT: YES, YOU DO.
MR. COCHRAN: MR. KELBERG, WHY DON'T YOU STAY JUST A
SECOND.
THE COURT: THE DEFENDANT IS ASKING TO WAIVE HIS PRESENCE
FOR THE PURPOSES OF THIS TESTIMONY.
MR. COCHRAN: WELL, OKAY, NOT YET. I MEAN, WHAT WE ARE
SAYING --
MR. SHAPIRO: MAY.
MR. COCHRAN: WE ANTICIPATE, AND YOU SAW FRIDAY, IT MAY GET
-- OKAY.
WHAT WE ARE ANTICIPATING, JUDGE, IS THAT THERE MAY
COME A TIME, AND RATHER THAN MAKE A BIG THING OUT OF IT --
BECAUSE FRIDAY HE WAS HAVING A TOUGH TIME -- WE WOULD LIKE FOR TO
HIM STAY IF AT ALL POSSIBLE, HE IS NOT GOING TO SEE THE
PHOTOGRAPHS,
BUT HEARING ABOUT IT HAS CAUSED SUCH AN EMOTIONAL THING --
THE COURT: BUT YOU KNOW, EVEN IF I EXCUSE HIM FROM
ATTENDING, THEN I HAVE TO WIRE THE LOCK-UP.
MR. COCHRAN: HE CAN'T WAIVE THAT?
MR. KELBERG: I SUPPOSE IN THIS BUSINESS YOU CAN WAIVE JUST
ABOUT ANYTHING, JUDGE.
MR. COCHRAN: BECAUSE THAT IS THE THING. HE IS NOT GOING
TO SEE THE PICTURES ANYWAY AND I THINK HE WOULD PROBABLY WAIVE
THAT.
CAN I TALK TO HIM ABOUT THAT?
THE COURT: TALK TO HIM.
MR. COCHRAN: MAYBE, SO WE ARE CLEAR ON THE RECORD, HE
WANTS START OUT. WE ARE JUST TRYING TO ANTICIPATE, BASED UPON
WHAT HAPPENED FRIDAY, WHERE WE ARE GOING TO GO, AND WE THINK THAT
YOU MAY WANT TO DRAFT -- SAY SOMETHING TO THE JURY ABOUT THIS.
THIS IS NOT ANY PLOY OR ANYTHING. YOU MAY WANT TO
CHANGE THAT OR YOU MAY WANT TO MAKE IT STRONGER. I WELCOME THAT.
THE COURT: OKAY.
MR. COCHRAN: IT IS YOUR CHOICE.
MR. KELBERG: I WAS --
THE COURT: CHRIS WENT UP TO TALK TO THE CHIEFS TO SEE WHAT
THEIR POSITION IS GOING TO BE.
MR. KELBERG: I CAN TELL WHAT YOU MY POSITION WILL BE, AND
I BELIEVE I WILL SPEAK FOR THE OFFICE ON THIS MATTER, BECAUSE IT
IS WITHIN THE PURVIEW OF THE TESTIMONY I'M PRESENTING.
IF MR. GARCETTI WANTS TO SPEAK ON THE MATTER, HE CAN
CERTAINLY COME DOWN HERE AND DO THE EXAMINATION OF DR.
LAKSHMANAN.
THE COURT: DON'T FORGET WE ARE ON THE RECORD HERE.
MR. KELBERG: I UNDERSTAND THAT, YOUR HONOR.
THE COURT: OKAY.
MR. KELBERG: I'M NOT TAKING A POSITION AS TO WHETHER
LEGALLY HE CAN VOLUNTARILY ABSENT HIMSELF, BUT I WILL SAY, BASED
UPON THE PAPERS THAT HAVE BEEN GIVEN TO ME, IS THAT THE
ADMONITION IS TOTALLY INAPPROPRIATE, NO. 1.
NO. 2, THAT IT IS ARGUMENTATIVE.
NO. 3, IT MAY WELL BE THIS IS A PERFORMANCE AND IT
WILL BE FOR THE JURY TO DECIDE WHETHER IT A PERFORMANCE OR NOT.
AND AS A RESULT, THE ONLY ADMONITION, ASSUMING HE MAY
VOLUNTARILY ABSENT HIMSELF, WOULD BE TO SAY TO THE JURY THAT MR.
SIMPSON HAS THE RIGHT TO VOLUNTARILY ABSENT HIMSELF FROM THESE
PROCEEDINGS AT ANY TIME. HE HAS DECIDED TO EXERCISE THAT RIGHT
AT THIS TIME.
THAT IS IT.
THE COURT: ALL RIGHT.
MR. COCHRAN: WELL --
MR. SHAPIRO: ONE OTHER ISSUE, YOUR HONOR. I'M SORRY,
JOHNNIE.
MR. COCHRAN: WE ARE NOT THAT FAR APART ON THAT; HOWEVER,
WE SHOULD TALK TO MARCIA. PUT IT THIS WAY:
THIS IS NOT AN ACT AND I'M TRYING TO SAY, HAVING BEEN
HERE SINCE SEPTEMBER 26TH, I AM TRYING TO SAVE A LITTLE BIT OF
TIME.
THE COURT: I APPRECIATE THE HEAD'S UP.
MR. COCHRAN: I WENT OVER AND TALKED TO MR. KELBERG AND ASK
HIM IF HE COULD GIVE ME AN IDEA WHEN HE IS GETTING TO THAT AREA.
MR. KELBERG: I HAVE GIVEN MR. COCHRAN BASICALLY AN OUTLINE
OF WHERE WE HOPE TO GO TO TODAY.
THE COURT: THAT IS VERY GOOD OF YOU, MR. KELBERG. I
APPRECIATE THAT.
MR. KELBERG: CAN I NOW HAVE TWO AND A HALF MINUTES?
THE COURT: YOU CAN HAVE FIVE MINUTES.
MR. SHAPIRO: YOUR HONOR, COULD WE HAVE ONE FURTHER
DISCUSSION, AND THAT WOULD BE BEFORE THE AUDIENCE IS BROUGHT IN
-- BEFORE THE AUDIENCE IS BROUGHT IN, THAT WE CAN PUT UP THE
DISPLAY BOARDS WITH THE PHOTOGRAPHS AND SEE IF WE CAN FIND THE
LOCATION WHERE THEY WOULD NOT BE VISIBLE TO ANY MEMBERS OF THE
AUDIENCE?
MR. KELBERG: THAT'S FINE WITH ME. I'M NOT SURE --
THE COURT: THE PROBLEM, LOGISTICALLY THE ONLY PLACE WHERE
THAT WOULD HAPPEN WOULD BE, YOU KNOW, AT AN ANGLE.
MR. KELBERG: GOING BACKWARDS.
MR. SHAPIRO: YOUR HONOR, WE ARE GOING TO BE LOSING TWO
MEMBERS OF THE JURY SO THE JURY IS GOING TO BE MOVE UP. I THINK
WE SHOULD EXPERIMENT BECAUSE IN THE PAST --
THE COURT: WELL, YOU GUYS GO OUT AND TAKE A LOOK AND SEE
-- TAKE FIVE MINUTES AND DO THAT.
MR. SHAPIRO: YES.
MR. KELBERG: DO I GET TWO AND A HALF MINUTES ON TOP --
THE COURT: ON TOP OF THE FIVE.
MR. LYNCH: I THINK FOR AN APPROPRIATE RECORD, YOUR HONOR,
I SHOULD PROBABLY BE INCLUDED AS COUNSEL.
THE COURT: THE RECORD WILL SO REFLECT,
MR. LYNCH.

(AT 9:54 A.M. THE PROCEEDINGS
IN CAMERA WERE CONCLUDED.)

(RECESS.)

(THE FOLLOWING PROCEEDINGS WERE
HELD IN CAMERA, MR. SHAPIRO
AND MR. KARDASHIAN BEING PRESENT.)

THE COURT: IN CHAMBERS.
MR. SHAPIRO: WE WOULD ASK THE COURT TO NOT HAVE JUROR NO.
10 REMOVED, HAVE HIM KEPT HERE.
WE ARE GOING TO COME ON THE RECORD AND ASK FOR
PERMISSION TO TAKE A WRIT ON THIS ISSUE, AND IN ORDER FOR US TO
PROTECT THE RECORD, WE HAVE TO HAVE THAT JUROR HERE, IN THE EVENT
OUR WRIT IS SUSTAINED, AND NOT HAVE ANOTHER JUROR REPLACED.
THE COURT: WELL, HE HAS ALREADY LEFT, I ASSUME.
MR. SHAPIRO: WE WOULD ASK THE COURT -- I CHECKED WITH THE
BAILIFF THAT HE HASN'T LEFT YET, AS OF THE TIME I WALKED IN, AND
THAT HE JUST REMAIN AND NOT BE EXCUSED, EVEN AT THE HOTEL, THAT
THE COURT AT LEAST WAIT UNTIL WE GO ON THE RECORD AND ASK TO BE
GIVEN PERMISSION TO APPLY TO THE COURT OF APPEAL FOR AN EMERGENCY
WRIT.
THE COURT: WELL, I DON'T THINK THIS IS SOMETHING THAT
SHOULD BE EX PARTE.
MR. SHAPIRO: I UNDERSTAND THAT, BUT I'M SAYING JUST TO --
RIGHT NOW THE ONLY THING THAT HAS TO BE
EX PARTE IS IF HE IS LET GO AND ALLOWED TO LEAVE THE HOTEL, THEN
OUR POSITION IS NULLIFIED, AND SO I HAD TO BRING THIS TO THE
COURT'S ATTENTION IMMEDIATELY.
THE COURT: ALL RIGHT. MR. BYRNE WILL YOU GET ME A
PROSECUTOR, PLEASE.

(BRIEF PAUSE.)

(MR. DARDEN ENTERS CHAMBERS.)

THE COURT: ALL RIGHT. WE ARE BACK IN CHAMBERS AND WE HAVE
BEEN JOINED BY MR. DARDEN.
MR. DARDEN, THE DEFENSE MADE AN EX PARTE APPLICATION
TO ME TO HOLD THE DISMISSAL OF 1489 SO THAT THEY CAN TAKE A WRIT.
AND MR. SHAPIRO, FOR MR. DARDEN'S BENEFIT, WHY DON'T
YOU REPEAT YOUR ARGUMENT.
MR. SHAPIRO: YES. OUR REQUEST, YOUR HONOR, IS FOR THE
COURT IMMEDIATELY TO ORDER THE SHERIFF'S DEPARTMENT NOT TO
RELEASE 1489 -- 1489, THAT HE BE KEPT IN A POSITION SEPARATE FROM
THE JURY, BUT NOT BE RELEASED BACK INTO -- FROM HIS DUTIES AS A
JUROR, AND THAT WE BE ALLOWED TO IMMEDIATELY FILE WITH THE
DISTRICT COURT OF APPEAL A WRIT OF PROHIBITION OR MANDAMUS TO
REQUEST A HEARING REGARDING THE INAPPROPRIATENESS OF DISMISSING
THIS JUROR WITHOUT GOOD LEGAL CAUSE.
AND ALSO TO FURTHER AT LEAST LOOK INTO THE
POSSIBILITY OF IMPROPER STATE ACTION IN DEALING WITH THIS JURY.

(MS. CLARK ENTERS CHAMBERS.)

THE COURT: OKAY. ANY RESPONSE FROM MR. DARDEN?

(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)

MR. DARDEN: YOUR HONOR, I KNOW OF NO PROVISION IN THE LAW
THAT WILL ALLOW FOR SUCH A PROCEDURE. THE COURT HAS MADE ITS
RULING AND ISSUED ITS ORDER AND ADVISED THIS JUROR, 1489, THAT HE
IS NO LONGER A MEMBER OF THE PANEL.
AND I THINK LEGALLY, AND TECHNICALLY SPEAKING, AT
THIS POINT HE IS NO LONGER A MEMBER OF THE PANEL.
AND AS FOR STATE ACTION, THE ISSUE OF STATE ACTION,
THERE WAS NO STATE ACTION INVOLVED IN THE DISMISSAL OF THIS
JUROR, SO WE WOULD STRENUOUSLY OBJECT TO 1489 REMAINING AS ANY
PART OF THIS JURY TRIAL.
MR. SHAPIRO: WE ARE GOING TO BRING THE WRIT, SO IN ANY
EVENT, WE THINK THIS WAY WE ARE AT LEAST PUTTING OUR POSITION
FORWARD WHERE WE BELIEVE THAT JEOPARDY HAS ATTACHED AND THAT IF
WE ARE NOT GIVEN AN OPPORTUNITY TO PROTECT OUR WRIT WITH THIS
JUROR, THEN WE WOULD PUT ON THE RECORD THAT THIS WILL BE INVITED
ERROR BY THE PROSECUTION.
MS. CLARK: NO SUCH THING AS INVITED ERROR BY THE
PROSECUTION, THAT IS NONSENSE. THE COURT CANNOT REINSTATE THE
JUROR ONCE HE HAS BEEN EXCUSED. THERE IS NO LEGAL PROVISION FOR
SUCH A THING. HE HAS BEEN EXCUSED AND THAT IS THAT.
THEY CAN TAKE THEIR WRIT, THEIR APPELLATE REMEDY, AND
I SUSPECT THAT THEY WILL BE ISSUED A POSTCARD DENIAL, BUT THEY
CAN TAKE THE WRIT, THEY CAN TAKE A WRIT AS TO ANYTHING THEY WANT,
BUT THERE IS NO LEGAL PROVISION FOR THIS COURT TO SUSPEND
PROCEEDINGS WITH RESPECT TO THE DISMISSAL OF 1489 WHICH HAS
ALREADY BEEN ACCOMPLISHED.
AND IT IS SIMPLY -- IT IS IMPOSSIBLE, CANNOT DO THAT.
IT IS OVER AND DONE.
COUNSEL IS ALSO PERMITTED TO TAKE WRITS AND WE INVITE
THEM TO DO SO, BUT ARE NOT INVITING ANY ERROR. THE COURT
EXERCISED ITS DISCRETION. THE COURT OF APPEALS WILL HAVE TO FIND
AN ABUSE OF DISCRETION.
AND I CAN STATE 110 PERCENT THE COURT OF APPEAL IS
GOING TO FIND AN ABUSE OF DISCRETION IN THE EXCUSAL OF A JUROR
WHOSE CONDUCT HAS MADE IT CLEAR HE HAS NOT FULFILLED HIS DUTIES,
AND I FEEL VERY CONFIDENT OF THAT, SO CONFIDENT OF THAT THAT I
WOULD URGE THE COURT NOT TO TAKE ANY EXTRAORDINARY MEASURES TO
KEEP THIS JUROR HERE, AND THAT IS WHAT IT WOULD BE BECAUSE THERE
IS NO LEGAL PROVISION FOR IT.
I THINK IT IS A LEGAL IMPOSSIBILITY TO REINSTATE A
JUROR ONCE EXCUSED AND I WOULD URGE THE COURT TO ALLOW THEM TO
TAKE THEIR WRIT.
MR. COCHRAN: MAY I JUST RESPOND, YOUR HONOR? I THINK THIS
IS A UNIQUE SITUATION.
THE COURT: SURE IS.
MR. COCHRAN: IT IS UNIQUE THAT WE ARE IN THIS POSITION
WHERE THIS IS THE TENTH OF TWELVE ALTERNATES TO BE EXCUSED, AND
WE THINK THIS SITUATION REGARDING HIM IS DIFFERENT THAN ALL THE
OTHERS WHO HAVE BEEN EXCUSED, BECAUSE IT IS REALLY MORE FOR
PERSONAL MATTERS.
AND WE DON'T HAVE TO DEBATE THAT, BUT WE THINK THIS
IS THE ONE WE WOULD BE DUTY BOUND, AFTER DISCUSSING IT WITH OUR
CLIENT, TO TAKE THIS UP.
NOTHING HAS HAPPENED SINCE WE DID THIS BACK IN
CHAMBERS. IT HAS BEEN NOW 25, 30 MINUTES OR SO I GUESS THE COURT
ISSUED THE ORDER.
THE JUROR, I DON'T KNOW WHERE HE IS, BUT THIS IS THE
TIME FOR US TO DO THIS BECAUSE THERE HAS BEEN NO TESTIMONY, THERE
HAS BEEN NO FURTHER TESTIMONY. THIS IS AN EXTRAORDINARY WRIT AND
I THINK WE WOULD LIKE TO TALK TO OUR CLIENT.
AND WE THE TRIED TO REACH MR. DERSHOWITZ, AND IT IS
LUNCHTIME BACK EAST, BUT HE IS THE ONE WHO IS GOING TO BE DOING
THE WRIT AND WE THINK IT IS APPROPRIATE.
FORTUNATELY, WE HAVE NOT HAD THIS KIND OF CASE, BUT
WE ARE SAYING TO YOU, AND BOB JUST STATED IT, WE ARE STATING
EMBARGO THIS PARTICULAR JUROR, WE NEED TO STOP THESE PROCEEDINGS,
AT LEAST UNTIL WE DO THIS, BECAUSE IF WE ARE RIGHT AND THE COURT
HAS ABUSED YOUR DISCRETION, OR WHATEVER, BUT I THINK THE REMEDY
IS HE IS JUST PUT BACK ON, I SUPPOSE, SO HOW DO YOU DO THAT IF WE
NO LONGER HAVE HIM IN A POSITION WHERE HE IS KEPT SEPARATE AND
APART?
I'M NOT SAYING THAT WE CAN FORCE YOUR HONOR TO PUT
HIM BACK IN THE JURY ROOM, BUT WE ARE SAYING YOU CAN KEEP HIM
SEPARATE AND APART, WHATEVER, UNTIL WE SEEK THIS WRIT AND GET
SOME KIND OF A RULING, BECAUSE IF WE ARE SUCCESSFUL, I SUPPOSE
THE REMEDY WILL BE HE WILL BE PUT BACK ON THE JURY.
MS. CLARK: NO.
MR. COCHRAN: I DON'T KNOW WHAT THAT REMEDY WILL GET, BUT
WE WANT TO FIND OUT. I HAVE NOT TALKED PERSONALLY WITH MR.
DERSHOWITZ. WHAT WE ARE PROPOSING YOU DOING IS EXTRAORDINARY.
IT IS EXTRAORDINARY AND I DON'T KNOW IF ANYBODY HAS ANY CASES
LIKE THIS, AND WE WOULD LIKE TO BRIEF IT.
AND SPEAKING OFF-THE-CUFF AS WE CAME UP HERE, WE
WANTED TO BRING IT TO YOUR HONOR'S ATTENTION.
MS. CLARK: THAT IS THE PROBLEM AND THAT IS WHY WE SHOULD
NOT SUSPEND THE PROCEEDINGS IN ORDER TO KEEP HIM ON AND EMBARGO
HIM, WHICH IS AN OUTRAGEOUS SUGGESTION FOR THE ENTIRE JURY, AS
WELL AS FOR 1489.
IF YOU ANALYZE IT TO THE WHEELER LINE OF CASES, THE
REINSTATEMENT OF A JUROR HAS NEVER BEEN THE REMEDY. YOU CANNOT
REINSTATE THE JUROR TO REMEDY AN IMPROVIDENT EXCUSAL.
AND I THINK, BY ANALOGY, IF COUNSEL'S POSITION IS
THAT HE SHOULD HAVE -- THAT HE SHOULD HAVE BEEN RETAINED AND
SHOULD NOT HAVE BEEN EXCUSED, THEN THE REMEDY IS A MISTRIAL, BUT
IT IS CERTAINLY NOT -- IT IS CERTAINLY NOT THE REINSTATEMENT OF A
JUROR. IT IS TOO LATE FOR THAT.
AND BY ANALOGY TO THE WHEELER LINE OF CASES, YOU
CANNOT DO IT, AND I THINK THAT THE CASES ALL HOLD THAT THAT
CANNOT BE DONE.
MR. COCHRAN: SOMEBODY KNOWS A LOT MORE ABOUT THIS THAN
PROBABLY ALL OF US.
MR. DARDEN: WHO?
MR. COCHRAN: ALAN DERSHOWITZ.
MS. CLARK: WHAT HAS HE EVER WON?
THE COURT: COUNSEL, WE ARE ON THE RECORD.
MS. CLARK: EXCUSE ME.
MR. COCHRAN: MAY I RESPOND, YOUR HONOR?
MR. DOUGLAS JUST -- MAY THE RECORD REFLECT MR.
DOUGLAS JUST SPOKE WITH MR. DERSHOWITZ IN MASSACHUSETTS AND WHAT
HE ASKS IS WHAT WE ASK YOU TO DO IS KEEP JUROR 1489 IN THE
COURTHOUSE, SEQUESTERED, MAINTAIN THE STATUS QUO WHILE THE WRIT
IS BEING FILED.
WE ARE ASKING FOR A 48-HOUR DELAY AND HE IS PREPARING
THE WRIT, HE IS STARTING RIGHT NOW, AND WE JUST REACHED -- 1:15
IN MASSACHUSETTS.
AND THAT IS JUST AS WE THOUGHT, UNLESS WE DO THIS
NOW, WE LOSE THOSE THINGS AND I THINK THAT CERTAINLY WE ARE NOT
SEEKING JUST AT THIS POINT ANY MISTRIAL. WE ARE SEEKING TO TRY
TO MAINTAIN THE STATUS QUO.
WE BRING THIS WRIT IN GOOD FAITH. HE WANTS A 48-HOUR
DELAY ONLY AND HE IS PREPARING THE WRIT AND WE WILL START DOING
IT RIGHT NOW.
MS. CLARK: SO WE HAVE TO RECESS THE TRIAL FOR TWO DAYS?
MR. COCHRAN: THIS IS EXTRAORDINARY, MISS CLARK, AND I
THINK THAT THIS IS A VERY SERIOUS MATTER TO MR. SIMPSON, AS WELL
AS THE PEOPLE, SO WE HAVE A RIGHT TO APPELLATE REVIEW AND IF WE
-- I THINK THAT --
MS. CLARK: I AGREE.
MR. COCHRAN: AND IF WE DO THIS, WE ARE NOT WAIVING
ANYTHING SUCH AS SAYING, WELL, GO AHEAD AND PUT ANOTHER JUROR IN
THERE AND LET'S GO FORWARD.
AT THIS INSTANCE WE ARE JUST SAYING GIVE US A 48-HOUR
DELAY. WE ARE GOING TO FILE THE WRIT. HE WILL PROBABLY HAVE IT
READY TO FILE TOMORROW MORNING AND LET'S SEE WHAT THE COURT SAYS.
I DON'T WANT TO PROGNOSTICATE WHAT THE COURT IS
SAYING. MAYBE THEY SAY MAYBE YOU ARE RIGHT OR MAYBE YOU ARE
WRONG. IF YOU ARE WRONG, WE ARE NOT SEEKING ANY MISTRIAL, WE ARE
SEEKING TO HAVE HIM REINSTATED.
MR. DARDEN: RIGHT OR WRONG THE JUROR HAS ALREADY BEEN
DISMISSED. WHAT KIND OF A JUROR CAN WE EXPECT UNDER
CIRCUMSTANCES LIKE THESE WHERE THE COURT HAS ALREADY EXPLAINED TO
HIM THE REASONS AS TO WHY HE IS BEING DISMISSED AND THEN HAS
GIVEN HIM THE ORDER OR DIRECTED HIS DISMISSAL. WHAT TYPE OF
JUROR CAN WE EXPECT TO HAVE UNDER THOSE CIRCUMSTANCES?
MR. SHAPIRO: THAT IS --
MR. DARDEN: COMPLETELY BIASED JUROR I WOULD THINK, UNDER
THE CIRCUMSTANCES. I DON'T KNOW WHO HE WOULD BE BIASED FOR OR
AGAINST.
IN ANY EVENT, HE IS NO LONGER A MEMBER OF THE PANEL
AND WE SHOULD MOVE ON WITH THE TRIAL.
MR. COCHRAN: IS THAT AN ORDER?
MR. SHAPIRO: THESE ARE ISSUES FOR THE COURT OF APPEAL TO
DECIDE. THE ONLY ISSUE RIGHT NOW, AND WE ARE NOW LOSING VALUABLE
TIME, IS THAT WE AT THE EARLIEST POSSIBLE MOMENT HAVE REQUESTED
THAT THIS JUROR BE SEQUESTERED AND THAT THE PEOPLE'S OBJECTION
CLEARLY WOULD VIOLATE THE RULES OF DOUBLE JEOPARDY AND THAT WE
WILL THEN BE ASKING FOR A DISMISSAL, IF OUR POSITION IS CORRECT
AND THIS JUROR WAS EXCUSED WITHOUT GOOD CAUSE --
MS. CLARK: THE PROBLEM WITH COUNSEL'S
PROPOSAL --
MR. SHAPIRO: -- WITH PREJUDICE.
MS. CLARK: -- IS THAT THERE IS NO -- OF ALL THE POSSIBLE
THINGS THAT A COURT OF APPEAL MIGHT DO, ONE THAT WE KNOW WILL NOT
HAPPEN IS HAVE THIS JUROR REINSTATED.
AND I SEE NO REASON WHY WE SHOULDN'T JUST PROCEED,
LET COUNSEL TAKE HIS WRIT. I'M NOT SAYING THAT COUNSEL IS NOT
ALLOWED TO SEEK APPELLATE REMEDY. ALL COUNSEL ARE ALLOWED TO
SEEK APPELLATE REMEDY WHENEVER THEY SEE FIT.
AND I DON'T THINK THAT THERE IS ANY REASONABLE
POSSIBILITY THEY WILL BE SUCCESSFUL ON APPEAL. THAT DOESN'T MEAN
THAT THEY CAN'T TRY, AND THEY SHOULD.
ALL I'M SAYING IS THAT THERE IS NO REASONABLE
POSSIBILITY THEY WILL ORDER THE REINSTATEMENT OF JUROR 1489 AND
WE WILL LOSE TWO DAYS FOR THEM TO TAKE AN APPELLATE WRIT THAT
WILL BE UNSUCCESSFUL SEEKING A REMEDY THAT WILL NEVER BE ORDERED.
THE ONLY POSSIBLE REMEDY THEY COULD GET IS EITHER A
DISMISSAL OR A MISTRIAL AND WHATEVER THAT -- THE COURT OF APPEALS
DECIDE, SO BE IT, BUT THEY ARE NOT GOING TO REINSTATE THIS JUROR.
AND AS MR. DARDEN WISELY POINTED OUT, NO COURT WOULD
REINSTATE THAT JUROR. IF ONLY FOR THAT REASON ALONE, IT IS AN
IMPOSSIBILITY, BUT FORGET ABOUT THAT, IT IS A LEGAL IMPOSSIBILITY
ONCE HE HAS BEEN EXCUSED.
AND THE WHEELER LINE OF CASES MAKE THAT CLEAR, SO WHY
TAKE A TWO-DAY DELAY TO SEEK A REMEDY THAT WILL NEVER BE ALLOWED?
THE COURT: WELL, I DON'T FIND THE WHEELER LINE OF CASES
WOULD BE PARTICULARLY PERSUASIVE SINCE THAT DEALS WITH A
PRE-JEOPARDY ATTACHMENT SITUATION.
MS. CLARK: THAT IS TRUE.
THE COURT: YES. OKAY.
THE COURT OF APPEALS WILL APPLY, WITH REGARDS TO THE
EXCUSAL OF A JUROR, THE ABUSE OF DISCRETION STANDARD WHICH IS
APPROPRIATE WHERE THEY HAVE TO GIVE GREAT DEFERENCE I THINK TO
THE TRIAL COURT, AND NECESSARILY SO.
I THINK ANY JUSTICE ON THE COURT OF APPEAL WOULD
AGREE WITH THAT.
I THINK THE COURT'S DECISION TO EXCUSE 1489 IS BASED
ON ABUNDANT GOOD CAUSE AND I THINK PHYSICAL CONFRONTATIONS AND
SHOVING OTHER JURORS, THREATENING OTHER JURORS WITH PHYSICAL
HARM, I THINK IS CLEARLY A SUFFICIENT BASIS.
AND THIS IS NOT JUST ONE INCIDENT, IT IS MANY
INCIDENTS. IT IS NOT JUST ONE OTHER JUROR, IT IS MANY OTHER
JURORS, AND HE IS A DISRUPTIVE FORCE IN THE JURY ROOM AND I DON'T
FEEL ANY LACK OF GOOD CAUSE.
AT THIS POINT I THINK THE SUGGESTION THAT WE
SEQUESTER 1489 IS TANTAMOUNT TO ARRESTING HIM SINCE HE HAS NOW
BEEN RELEASED AS A JUROR AND HE IS UNDER NO FURTHER JURISDICTION
OF THE COURT, AND TO HOLD HIM AGAINST HIS WILL SEQUESTERED I
THINK IS TANTAMOUNT TO IMPRISONMENT WITHOUT GOOD CAUSE.
THERE ARE ALTERNATE JURORS AVAILABLE. THESE
ALTERNATES WERE ACCEPTED BY BOTH SIDES. THE DEFENDANT IS
ENTITLED TO A JURY THAT IS SELECTED THROUGH THE JURY SELECTION
PROCESS, INCLUDING THE ALTERNATES. HE IS NOT ENTITLED TO THIS
PARTICULAR JUROR.
SO THE REQUEST FOR A STAY AT THIS TIME OF THE COURT'S
ORDER DISMISSING 1489 IS DENIED.
ALL RIGHT. LET'S PROCEED.
MR. SHAPIRO: YOUR HONOR, MAY WE --
MS. CLARK: YOUR HONOR, MAY WE -- WE WOULD LIKE TO OFFER AN
ALTERNATE PROPOSAL FOR THE ADMONITION TO THE JURY CONCERNING MR.
SIMPSON'S ABSENCE.
THE COURT: NO. THAT WE WILL ARGUE. THAT IS NOT A
CHAMBERS ISSUE.
MR. SHAPIRO: ONE -- ONE FURTHER POINT ON THIS.
THE COURT: YES.
MR. SHAPIRO: WE DID ASK FOR 48 HOURS. WE WOULD LOWER THAT
REQUEST TO THIS AFTERNOON. I THINK WE COULD GET TO THE COURT OF
APPEALS IMMEDIATELY. I'M FILING AN EMERGENCY WRIT JUST ON THE
BASIS OF HOLDING THIS JUROR, AND WE THINK TO HOLD THIS JUROR --
IT IS NOW 10:25 -- UNTIL 1:30 WITH THE OTHER MEMBERS OF THE JURY
BEFORE YOU IMPANEL SOMEONE TO REPLACE HIM, IS A REASONABLE
REQUEST.
THE COURT: JOHN, GIVE ME DEPUTY G, WILL YOU PLEASE.

(BRIEF PAUSE.)

MR. DOUGLAS: JUDGE, IF WE ARE TAKING A WRIT, THERE IS
GOING TO BE THE NEED FOR THE PREPARATION OF TRANSCRIPTS OF
CERTAIN DAYS OF IN CHAMBERS CONFERENCES. CAN THOSE DAYS APPLYING
BE UNSEALED?
THE COURT: DEPUTY JEX, WOULD YOU HOLD 1489 AT THE HOTEL,
HAVE HIM HELD THERE.
DEPUTY JEX: OKAY.
THE COURT: HAVE HIM PACK UP HIS STUFF BUT HAVE HIM WAIT
UNTIL 1:30.
MR. DARDEN: CAN WE INQUIRE OF THE DEPUTY, HAS HE ALREADY
BEEN TRANSPORTED FROM THE COURTHOUSE?
DEPUTY JEX: YES, THEY HAVE.
THE COURT: HE IS OVER AT THE HOTEL PACKING UP HIS STUFF.
HAVE HIM HELD OVER THERE.
THE COURT: OKAY.
THE COURT: THANK YOU.
MR. COCHRAN: 1:30 THEN, JUDGE?
WHAT HE IS ASKING, JUDGE, IS THAT CAN WE FOLLOW UP ON
THAT? APPARENTLY THERE WILL BE THE NEED TO GET SOME TRANSCRIPTS
ON AN EXPEDITED BASIS OF THIS MORNING AND SOME OTHER PROCEEDINGS,
THE OTHER PROCEEDINGS I GUESS INTO WHICH YOU ALLUDED WHERE 1489
HAS COME UP, ALL THE TIME HE HAS COME UP, I SUPPOSE IS WHAT WE
ARE GOING TO BE ASKING AND WE ARE GOING TO NEED AT SOME POINT, SO
IF WE CAN GET AN ORDER REGARDING THOSE ONLY FOR THIS PURPOSE, I
SUPPOSE.
THE COURT: JOHN, MR. BYRNE.
MR. BYRNE: YES.
THE COURT: WOULD YOU PUT TOGETHER A SET OF THE SEALED
TRANSCRIPTS, PLEASE, AND I'M GOING -- MR. COCHRAN, I'M GOING TO
ORDER THE DEFENSE NOT TO DISCLOSE THESE TRANSCRIPTS ANYWHERE.
THE COURT: ALL RIGHT.
MR. COCHRAN: ALL RIGHT.
THE COURT: OTHER THAN THE APPLICATION TO THE COURT OF
APPEAL AND THE APPLICATION FOR THE WRIT IS TO NOTE THAT THE COURT
HAS MADE AN ORDER THAT THESE ARE SEALED AND NOT TO BE PUBLICLY
VIEWED UNLESS ORDERED UNSEALED BY EITHER THIS COURT OR THE COURT
OF APPEAL.
MR. DARDEN: WILL WE BE PROVIDED THE PACKAGE AS WELL?
THE COURT: SURE.
I BELIEVE I HAVE THE BOX OF THE SEALED TRANSCRIPTS.
MR. BYRNE, I THINK THE BOX OF THE SEALED TRANSCRIPTS IS RIGHT AT
MR. COCHRAN'S FEET.
MR. BYRNE: ALL RIGHT.
MR. COCHRAN: THANK YOU, YOUR HONOR.
THE COURT: ALL RIGHT. ANYTHING ELSE?
I THINK WE SHOULD GO OUT AND RESOLVE THE OTHER
MATTERS, TOO.
MS. CLARK: SURE. CORONER STUFF. SO WE ARE GOING TO BE IN
RECESS, AS FAR AS WITNESSES GO, UNTIL 1:30?
THE COURT: YES. OFF THE RECORD.

(DISCUSSION HELD OFF THE RECORD.)

(AT 10:24 A.M. THE PROCEEDINGS
IN CAMERA WERE CONCLUDED.)