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From: [email protected] (Myra Dinnerstein)
Subject: SIDEBARS - August 23, 1995
Message-ID: <[email protected]>
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Date: Mon, 4 Sep 1995 06:57:28 GMT
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Sidebar from August 23, 1995

             (THE FOLLOWING PROCEEDINGS WERE
             HELD AT THE BENCH:)

     THE COURT:  WE ARE OVER AT THE SIDEBAR TO CONTINUE OUR
DISCUSSION SINCE THE JURY IS COMING IN.
           COUNSEL, THE PROBLEM IS, WE'RE TALKING ABOUT A
DISPUTED FACT, AND THAT'S NOT SOMETHING THAT'S APPROPRIATE FOR
JUDICIAL NOTICE.  I CAN'T DO THAT.
     MR. SCHECK:  WHAT I WOULD REQUEST OF THE COURT AND OF MY
ADVERSARY HERE IS THAT WE HAVE SOME RESOLUTION OF THIS.  I HAVE
NO DESIRE TESTIFYING IN FRONT OF THIS JURY NOR DOES MR. BLASIER,
BUT OUR REPRESENTATIONS WERE MADE ON THE RECORD AT THE TIME THEY
INTRODUCED THE BOARD.
           MR. HARMON MADE REPRESENTATIONS ON THE RECORD AS TO
WHAT HE DIDN'T SEE OR SAW AND MR. CLARKE I BELIEVE IN AN OFF THE
RECORD DISCUSSION PRESENT IN THE COURT INDICATED HIS POSITION WAS
THE SAME AS MR. HARMON.  AND WHEN WE HAD THIS DISCUSSION, IT WAS
VERY CLEAR WHEN THE COURT OVERRULED THE 352 OBJECTION THAT I MADE
ON THIS ISSUE THAT THIS WOULD INVOLVE LAWYERS TESTIFYING.
     THE COURT:  BUT THE PROBLEM IS, THE MANIPULATIONS OF THIS
PARTICULAR PIECE OF EVIDENCE, ANY HANDLING OF THIS PARTICULAR
PIECE OF EVIDENCE IS CRUCIAL TO BOTH SIDES.  SO THAT'S WHY I
OVERRULED THE 352 OBJECTION, BECAUSE THE MANNER THAT THINGS
HAPPENED IS RELEVANT.
     MR. SCHECK:  I UNDERSTAND THAT.
     THE COURT:  SO I CAN NOT FORCE A STIPULATION NOR CAN I TAKE
JUDICIAL NOTICE OF SOMETHING THAT'S A DISPUTED FACT.
     MR. SCHECK:  I'M TRYING TO AVOID CLIMBING ON THE WITNESS
STAND.  I DON'T KNOW WHAT THE PROSECUTION'S POSITION IS, HOW THEY
WANT TO BRING THIS OUT.
     MR. GOLDBERG:  WE'RE NOT GOING TO STIPULATE. IT'S A
DISPUTED FACT.  OUR VIEW IS DIFFERENT FROM THE DEFENSE VIEW.
     MR. SCHECK:  THAT'S NOT THE POINT.
     THE COURT:  ARE YOU GOING TO PRESENT THIS OR ROCK?
     MR. GOLDBERG:  IT'S BEEN PRESENTED, YOUR HONOR.  THEY HAVE
A WITNESS UP ON THE STAND RIGHT NOW THAT CAN PRESENT THEIR
VERSION.
     THE COURT:  THAT'S TRUE.
     MR. SCHECK:  MY POINT IS THIS.  THE PHOTOGRAPHS THEY HAD ON
THE BOARD SHOW MR. BLASIER AND MR. SCHECK STANDING THERE AND MR.
HARMON AND MR. CLARKE STANDING THERE, AND WE ARE THE ONLY
WITNESSES FROM THE DEFENSE THAT CAN COMMENT ON ANYTHING UNDER
OATH.
           AND I SAW IT.  I WAS PAYING ATTENTION TO IT BECAUSE I
WAS VERY COGNIZANT OF THIS ISSUE.  SO IT'S VERY UPSETTING TO ME
AND I WANT TO GET ON THE WITNESS STAND AND SAY SO, BUT I THINK
THAT'S TOTALLY  INAPPROPRIATE.
     THE COURT:  BUT YOU HAVE A WITNESS THAT CAN -- DR. LEE IS
IN THE PERFECT POSITION TO EXPLAIN WHAT HAPPENED AS WELL.  SO
THERE'S NOT AN ABSOLUTE NECESSITY THAT AN ATTORNEY BE CALLED ON
THIS ISSUE.
           SO LET'S PROCEED.

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