Xref: world alt.fan.oj-simpson.transcripts:250 Newsgroups: alt.fan.oj-simpson.transcripts Path: world!uunet!in1.uu.net!cs.utexas.edu!news.sprintlink.net!newsfeed.internetmci.com!nntp-hub2.barrnet.net!nntp-sc.barrnet.net!news.fujitsu.com!amdahl.com!amd!netcomsv!uucp3.netcom.com!netcomsv!uu3news.netcom.com!ix.netcom.com!netcom.com!myra From: myra@netcom.com (Myra Dinnerstein) Subject: JUROR TRANSCRIPT - 6/01/95 Message-ID: Organization: NETCOM On-line Communication Services (408 261-4700 guest) Date: Fri, 11 Aug 1995 01:31:15 GMT Approved: myra@netcom.com Lines: 584 Sender: myra@netcom20.netcom.com LOS ANGELES, CALIFORNIA; THURSDAY, JUNE 1, 1995 9:10 A.M. DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE APPEARANCES: (APPEARANCES AS HERETOFORE NOTED, MS. CLARK NOT BEING PRESENT.) (JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.) (CHRISTINE M. OLSON, CSR NO. 2378, OFFICIAL REPORTER.) (THE FOLLOWING PROCEEDINGS WERE HELD IN CAMERA:) (PAGES 30182 THROUGH 30199 REDACTED.) THE COURT: MR. COCHRAN. MR. COCHRAN: YES, YOUR HONOR. WITH REGARD TO JUROR 1427 -- WE TALKED ABOUT THIS ON THURSDAY AND THEN BRIEFLY ON FRIDAY -- I THINK THERE'S NO QUESTION THAT SHE NEEDS TO BE EXCUSED FROM THIS JURY. I THINK THERE ARE A NUMBER OF PROBLEMS WITH REGARD TO HER. FIRST OF ALL, SHE LIED. SHE LIED THREE OR FOUR TIMES. WE HAD ASKED YOUR HONOR TO GET THE RECORD AND LOOK AT THE RECORD AND SEE. SHE ABSOLUTELY LIED. THE ONLY REASON WE KNEW THAT SHE VIOLATED TWO OF YOUR ORDERS WAS BECAUSE JUROR NUMBER 1492 TOLD US THAT SHE WROTE THIS NOTE TO 353. THERE'S REALLY NO DIFFERENCE BETWEEN SHE AND 353 EXCEPT WHEN SHE FINALLY, ABOUT THE THIRD OR FOURTH TIME, SAID, "YES, I WROTE IT, BUT I WAS JUST TRYING TO TELL HER TO TELL THE TRUTH." THAT'S NOT WHAT SHE HAD BEEN SAYING ALL ALONG. THAT SEEMS TO ME MORE OF A PROBLEM. THIS WHOLE IDEA OF PEOPLE INVADING SPACE, THE WAY SHE LOOKS AROUND -- I UNDERSTAND IT GOES TO OTHER PEOPLE OTHER THAN JUST JUROR NO. -- I FORGET -- 1489 -- 1489, WHO SHE SAID HE INVADES HER SPACE. BUT THERE ALLEGEDLY ARE ALLEGATIONS WHERE OTHER PEOPLE -- SHE'S CONCERNED ABOUT OTHER PEOPLE LOOKING AT HER, USUALLY AFRICAN AMERICAN MALES. SO I THINK WITH REGARD TO THIS LADY, WHEN SOMEBODY HAS LIED TO YOU RIGHT IN HERE IN FRONT OF ALL OF US, THIS JURY VERDICT WOULD HAVE NO CREDIBILITY IF SHE WAS ALLOWED TO REMAIN ON THIS JURY, ESPECIALLY IN VIEW OF WHAT HAPPENED WITH 353. WHAT HAPPENED, WE SPECIFICALLY TOLD HER NOT TO TALK ABOUT IT, COMMUNICATE IN ANY WAY. SHE -- TWICE YOU TOLD HER BECAUSE SHE HAD COME IN EARLIER. SHE THEN WENT AND DID THAT. THEN SHE DENIED IT. ONLY WHEN MR. DARDEN SENT A NOTE SAYING WELL, LET'S GET IT OVER WITH, SHOW HER THE PAPER THAT SHE THEN SAID, "WELL, I SCRIBBLED SOMETHING, BUT I WAS JUST TRYING TO --" YOU KNOW, FIRST SHE DENIED IT AND THEN ENDED UP SAYING, "I WAS TRYING TO GET HER TO TELL THE TRUTH," MEANING 353. SO I THINK IT BECOMES VERY, VERY CLEAR. I DON'T THINK THERE'S ANY ISSUE AT ALL REGARDING I GUESS IT'S 1489, 1489. PEOPLE MAY NOT LIKE YOU ON THE JURY, BUT HE'S DONE NOTHING IMPROPER. THERE'S NO REASON FOR HIM TO BE TAKEN OFF THE JURY. HE'S A MAN WHO APPARENTLY IS STRONG FROM THE STANDPOINT OF THE THINGS WE HEARD, BUT HE'S DONE NOTHING IMPROPER. IN FACT, QUITE THE CONTRARY. HE HAS BEEN THE VICTIM. THE COURT HAD A TOUGH TIME SEEING THIS, BUT THERE WAS AN ALLEGATION BY JEANETTE HARRIS AND BY HIM THAT HE HAD BEEN STRUCK, BEEN KICKED BY NUMBER 353 OR STEPPED ON, THAT HE HAD BEEN STRUCK IN THE BACK OF THE HEAD BY 353. AND THAT 1427, THAT EVEN IN THE PHONE INCIDENT WHERE HE CAME BACK IN AND SAID THAT IT WAS BASICALLY HIS TURN TO USE THE PHONE, THAT RATHER THAN GETTING INTO PROBLEMS WITH THIS LADY 1427, HE SAID, "NO, NO. YOU GO AHEAD AND USE IT." SHE FELT HE WAS TRYING TO TURN ON HER. SHE ADMITTED SHE WASN'T DUE IN THERE AT THAT TIME. HE SEEMED TO ME TO GO OUT OF HIS WAY. HE TOLD US, "WHEN 353 STEPPED ON MY FOOT, I WENT OUT OF MY WAY NOT TO DO ANYTHING BECAUSE I DON'T WANT TO BE KICKED OFF THIS CASE." MAYBE HE FEELS HE'S BEING TARGETED OR WHATEVER. SO I THINK THAT'S CLEAR FROM THE THINGS HE SAID ALL ALONG. THERE'S NO REASON AT ALL EVEN TO CONSIDER EXCUSING HIM. BUT I THINK WITH HER, IT'S A QUESTION OF CREDIBILITY. AND EVERYBODY IN THIS ROOM HEARD THAT. SHE LIED AND SHE HAS TO GO. THE TIME IS NOW. I THINK WE HAVE TO BE CAREFUL ABOUT EXCLUDING -- EXCUSING JURORS, BUT I THINK HERE, THE RECORD IS ABUNDANTLY CLEAR THAT SHE ABSOLUTELY LIED, THAT SHE DOES IN FACT HAVE SOME KIND OF PROBLEM, AND WE NEED TO RESOLVE IT AND MOVE ON WITH THIS CASE. MS. CLARK: WE HAVE TO BE CAREFUL EXCUSING JURORS EXCEPT WHEN THE JUROR IS ONE THE DEFENSE DOES NOT WANT. AND 1427 FITS THAT BILL. SHE'S BEEN TARGETED BY THE DEFENSE AS WAS 353. THEY'VE BEEN VERY SUCCESSFUL IN GETTING RID OF THOSE THEY DON'T LIKE. BUT 1427, IF YOU REVIEW THE TRANSCRIPT, THE CONDUCT IS NOT NEARLY AS EGREGIOUS AS PAINTED BY COUNSEL. I CONCEDE THAT INITIALLY SHE DENIED HAVING SAID ANYTHING. BUT IF THE COURT LOOKS AT THE TRANSCRIPT, THE COURT ASKED, "DID YOU WRITE ANY NOTE TO ANYBODY?" "I DIDN'T SAY ANYTHING." "DID YOU SHARE WITH ANY OTHER JURORS ANYTHING YOU MIGHT HAVE WRITTEN ON ANY NEWSPAPER?" AND THEN SHE ADMITTED IT RIGHT AWAY, "I REMEMBER WRITING SOMETHING." SO IT'S NOT AS THOUGH SHE IS, YOU KNOW, WILLFULLY STONEWALLING FOR A PERIOD OF TIME, YOU KNOW. WHEN THE SPECIFIC QUESTIONS WERE ASKED, SHE DID ADMIT IT. NOW, YOU WANT TO TALK ABOUT LYING, THAT'S ALL WE HAD OUT OF 1489. AND HE IS AWARE OF THE CYCLE. THE COURT: NO. LET'S NOT -- LET'S NOT TALK ABOUT APPLES AND ORANGES. THESE ARE TWO SEPARATE ISSUES. MS. CLARK: WELL, MR. COCHRAN ADDRESSED 1489. THE COURT: I UNDERSTAND. MS. CLARK: THE COURT HEARD HIS COMMENTS. THE COURT: I'LL HEAR YOUR COMMENTS, BUT I'M SAYING, I -- CONCEPTIONALLY, I TREAT THOSE TWO SEPARATELY. IN OTHER WORDS, SEPARATE CASES, NOT RELATED TO EACH OTHER IS THE POINT I'M MAKING. MS. CLARK: I UNDERSTAND. I AGREE WITH THE COURT THEY ARE SEPARATE. IT WAS MERELY A COMPARATIVE THING. WE'RE TALKING ABOUT LYING TO THE COURT, YOU KNOW. THAT'S WHAT I WAS GOING TO POINT OUT WITH 1489. HE REPEATEDLY HAS COME IN HERE SAYING HE'S NOT DOING ANYTHING. BUT IT'S NOT JUST 1427 THAT IS COMPLAINING ABOUT HIS CONDUCT. THERE WERE REPORTS FROM AT LEAST THREE IF NOT FOUR OTHER JURORS CORROBORATING HER -- WHAT SHE'S TOLD US ABOUT WHAT HE'S DONE TO HER, PSYCHOLOGICAL INTIMIDATION, HARASSMENT, EVEN ATTEMPTING TO INTIMIDATE 1290 TELLING HER THAT, YOU KNOW, "THE LETTER WRITERS ARE THE PROBLEMS IN THIS CASE." YOU KNOW, WHAT HE HAS DONE IS -- THIS IS WHAT IS VERY INTERESTING TO ME. WHEN THE COURT EXCUSES A JUROR BECAUSE OF AN INABILITY TO FOLLOW RULES, BECAUSE OF DISOBEDIENCE OR SOME KIND OF MISCONDUCT, IT'S GENERALLY ALMOST ALWAYS BECAUSE IT'S A PROSPECTIVE THING. THE COURT IS PROJECTING DOWN THE LINE THAT AT SOME POINT, WHEN IT COMES TIME TO FOLLOW THE RULES WHEN IT MATTERS, BACK IN THE DELIBERATION ROOM, THEY WILL NOT BE ABLE TO DO SO. SO YOU HAVE TO EVALUATE MISCONDUCT IN LIGHT OF THAT OVERALL GOAL. WITH RESPECT TO 1427, ALTHOUGH WRITING THE NOTE WAS A DISOBEDIENCE OF THE COURT ORDER, IT'S KIND OF -- THE COURT: TWO COURT ORDERS. MS. CLARK: NOT TO DISCUSS -- THE COURT: I TOLD HER THAT TWICE THAT DAY. MS. CLARK: RIGHT. BUT THERE WAS ONLY ONE DISCUSSION OF THE BOOK. THAT'S THE THING THAT SHE VIOLATED. I MEAN WITH RESPECT TO THAT -- BECAUSE THE COURT ASKED -- THEN THE COURT ASKED, "DID YOU TALK --" WHEN THE COURT ASKED, "DID YOU COMMUNICATE ANYTHING THAT HAD TO DO WITH THE QUESTIONING THAT I WAS DISCUSSING WITH YOU HERE," SHE REFERS BACK TO THE CASE THINKING THAT YOU'RE TALKING ABOUT THIS TRIAL. I'M NOT TRYING TO SPLIT HAIRS HERE. I THINK WHAT I'M REALLY TRYING TO EXPRESS TO THE COURT IS THE FACT THAT THE COURT HAS TO EVALUATE WHETHER IT'S DIMINIMUS OR A MAJOR LEAGUE VIOLATION, A VIOLATION THAT WOULD CAUSE THE COURT TO HAVE GRAVE CONCERN AS TO WHETHER OR NOT SHE COULD MEANINGLY DELIBERATE IN THIS CASE AND FOLLOW THE RULES AND THE INSTRUCTIONS GIVEN TO HER AT THE CLOSE OF THE CASE. I DO NOT THINK THAT THE VIOLATION THE COURT HAS SEEN IN THIS INSTANCE IS OF THAT MAGNITUDE. WHEN YOU LOOK AT WHAT MAKES A GOOD JUROR, IT'S ONE THAT CAN GET ALONG WITH OTHERS, ONE THAT CAN BE REASONABLE, ONE THAT CAN FOLLOW THE INSTRUCTIONS GIVEN TO THEM, ONE THAT WILL PAY ATTENTION TO THE EVIDENCE AND ONE THAT COULD MEANINGFULLY DISCERN AND APPLY THE LAW TO THE FACTS. THAT MEANS SOMEONE WHO IS ABLE TO TALK WITH OTHERS, COMMUNICATE WITH OTHERS AND COMMUNICATE WITH OTHERS IN AN ADULT AND MATURE WAY. SHE'S GIVEN US NO REASON TO REALLY DOUBT THAT. AND THE NOTE THAT SHE SCRIBBLED TO 353 WAS A NOTE IN AN EFFORT TO MAKE SURE 353 BROUGHT INFORMATION TO THE COURT WHICH SHE THOUGHT WAS IMPORTANT. THE COURT: WELL, MISS CLARK, LET ME ASK YOU THIS. HOW PLAUSIBLE DO YOU FIND THAT EXPLANATION, THAT, "I WAS TRYING TO ENCOURAGE HER TO TELL THE TRUTH BY SCRIBBLING A NOTE THAT SAYS THEY ASKED ME ABOUT A JUROR WRITING A BOOK"? MS. CLARK: WHAT SHE'S TRYING TO DO IS -- I DON'T KNOW -- SEE, I DO FIND THAT RESPONSE RATHER INNOCUOUS. SHE WAS CUING THE OTHER JUROR, SAYING, "THIS IS THE ISSUE THEY ARE TALKING ABOUT." HAD SHE SAID, "REMEMBER, WE HAD -- REMEMBER YOU TOLD ME YOUR HUSBAND," YOU WOULD HAVE FOUND THAT EVEN MORE IMPROPER. AND INSTEAD, SHE'S TRYING TO FIND AN INNOCUOUS WAY OF LETTING HER KNOW, "REMEMBER TO TELL THEM THIS." AND THEN, YOU KNOW, THERE WAS NO CONVERSATION BETWEEN THEM BECAUSE OTHER JURORS WOULD HAVE REPORTED THAT. BUT 353 CAME OUT -- CONSISTENTLY SAID WHAT 1427 REPORTED, THAT HER HUSBAND TOLD HER ABOUT ANOTHER JUROR WHOSE GIRLFRIEND TALKED ABOUT HIM WRITING A BOOK. I THINK IT IS CREDIBLE, I THINK IT IS TRUE THAT'S WHAT SHE WAS TRYING TO JOG THE OTHER PERSON'S MEMORY ABOUT. 1427 SAID IT FIRST. AND THEN WITHOUT -- EVEN WITHOUT REVIEWING THE FACTS OF THAT INCIDENT THROUGH 353 -- 1427 CUED HER MEMORY, TELLING HER IT'S ABOUT A BOOK SO 353 WOULD REMEMBER TO TELL YOU AS WELL, AND SHE DID AND IT WAS CONSISTENT WITH WHAT 1427 SAID. SO I DON'T FIND THAT TO BE SO NEFARIOUS. I REALLY DON'T SEE THAT IT IS IN VIOLATION OF YOUR ORDER NOT TO DISCUSS, NOT TO SAY ANYTHING. BUT IT WAS AS DIMINIMUS A VIOLATION AS SHE COULD GET TO ACCOMPLISH THE GOAL OF LETTING YOU KNOW, LETTING -- MAKE SURE THAT 353 TELLS YOU WHAT IT IS THAT TRANSPIRED, WHICH THEY BOTH FOUND TO BE IMPORTANT. SO I REALLY DO THINK THAT WHAT WE'RE TALKING ABOUT HERE IS A DIMINIMUS VIOLATION, NOT OF THE KIND THAT IS GOING TO IMPACT ON HER ABILITY TO BE A FAIR AND EVEN-HANDED JUROR WHEN IT COMES TIME TO DELIBERATE. I THINK THAT CONVERSES WHEN YOU LOOK AT 1489. HERE IS A MAN WHO HAS SYSTEMATICALLY HARASSED AND INTIMIDATED OTHER JURORS. MOST NOTABLY, HE'S TARGETED 1427 FOR A PERIOD OF TIME SINCE THE BEGINNING OF THE TRIAL. AND 1427, IF SHE WERE THE ONLY ONE COMPLAINING, THE COURT MIGHT LOOK WITH ASKANCE OR BE MORE -- HAVE MORE DIFFICULTY SEEING THAT THE CONDUCT IS HIGHLY INAPPROPRIATE AND NOT JUST SOMETHING THAT SHE'S SUBJECTIVELY TEASING HIM. BUT OTHERS HAVE SEEN HIS CONDUCT WHO THE COURT HAS NO REASON TO DOUBT THEIR CREDIBILITY. 1290 AND 19 AS WELL AS 353 AND I BELIEVE ALSO 1386 HAVE ALL -- HAVE ALL SEEN THE CONDUCT. TWO, THEY'RE HEARD ABOUT THE CONDUCT AS WELL. IT'S NOT SOMETHING THAT'S SUBTLE AND NOT SOMETHING SUBJECT TO INTERPRETATION. HE IS HARASSING HER. HE IS ENGAGING IN PSYCHOLOGICAL WARFARE WITH RESPECT TO HER. HE HAS STARED HER DOWN. AS 19 SAID, HE ALWAYS WINS A STARING CONTEST. HE HAS BUMPED INTO HER IN THE ELEVATOR AS 1290 AND 19 HAVE SAID AND PUSHED HER AND ALL WITH AN EFFORT TO INTIMIDATE HER SIMPLY BECAUSE HE'S A BULLY. HE WAS WAGGING HIS FINGER IN PEOPLE'S FACES. HE'S TRYING TO INTIMIDATE 1427 BECAUSE SHE STOOD UP TO HIM. SHE SAID, "LET'S BE FAIR." SHE -- AND HE CAN'T STAND THAT. NOW, WHAT KIND OF CONDUCT -- HE DOESN'T LIKE THE FACT THAT SHE STOOD UP TO HIM BECAUSE HE'S A BULLY. THAT'S REALLY THE BOTTOM LINE. HE IS A BULLY AND HE WANTS TO PLAY THESE LITTLE PSYCHOLOGICAL MIND GAMES AND BEEN DOING IT FOR FIVE MONTHS NOW. IS THIS THE KIND OF PERSON THAT CAN ACTUALLY DELIBERATE WITH OTHER JURORS IN A MEANINGFUL AND ADULT FASHION, CORROBORATE WITH OTHERS IN A MATURE MANNER? ABSOLUTELY NOT. HE'S GIVEN THE COURT NOTHING BUT CAUSE FOR GRAVE CONCERN ABOUT HIS ABILITY TO BE A FAIR JUROR. NOW, WE'RE TALKING PROSPECTIVELY. EVERY SINGLE BIT OF CONDUCT BY THIS JUROR INDICATES THAT PROSPECTIVELY, DOWN THE LINE, HE IS GOING TO BE NOTHING BUT A HEARTACHE FOR ALL THE OTHER JURORS IN THIS ROOM BECAUSE HE CANNOT MEANINGFUL COOPERATE WITH OTHERS. WHEN YOU LOOK AT WHAT -- THE KIND OF CONDUCT THAT HAS BEEN CREATED HERE, IT'S NOT JUST THE FACT THAT HE'S UNABLE TO FULFILL HIS DUTY. THE MORE SERIOUS PROBLEM WE HAVE HERE IS THAT HE'S DISTRACTING OTHERS FROM THEIR ABILITY TO FULFILL THEIR DUTIES EVEN NOW WITH THE WAGGING OF THE FINGER IN THEIR FACES AND CONTINUALLY HARASSING THEM TO THE POINT THEY COME INTO THE COURT AND THEY'RE DISTRACTED BY WHAT'S GONE ON BEFORE TO THE POINT WHERE 1427 IS CRYING AT NOON IN THE BATHROOM AND WE HAVE TO PULL HER OUT TO FIND OUT WHAT'S GOING ON WITH HIM. I MEAN, THIS IS THE KIND OF PERSON WHO ISN'T JUST HIMSELF A PROBLEM, BUT WHO'S NOW INFESTED ALL THE OTHER JURORS, INFUSED THEM WITH THE PROBLEM HE'S CREATED BECAUSE HE IS SIMPLY A PERSON WHO, BY VIRTUE OF HIS OWN PERSONALITY, CANNOT COOPERATE WITH OTHERS, SO DISTRACTING THEM FROM THEIR ABILITY TO LISTEN, EVALUATE THE EVIDENCE AND ULTIMATELY TO DELIBERATE. SO HIS PROBLEMS GO DIRECTLY TO THE HEART OF THE ABILITY OF THE PERSON TO BE A FAIR JUROR AND TO PERFORM HIS DUTIES IN A MANNER THAT HE SHOULD. WHEN YOU CONTRAST THAT -- AND HE'S LIED TO THIS COURT AS WELL. YOU WANT TO TALK ABOUT LIES? HE'S COME IN HERE AND DENIED ANY WRONGDOING WITH RESPECT TO 1427. AND EVERY TIME HE TURNS AROUND, SHE'S STARING AT HIM, AND I MEAN TURNED EVERYTHING ON ITS HEAD, MAKING UP STORIES ABOUT HER, MAKING UP STORIES ABOUT EVERYONE ELSE, EVERYONE ELSE, BUT NOT HIM. WELL, IN THIS INSTANCE, HE'S CAUGHT DEAD OUT BECAUSE EVERYONE ELSE HAS COME IN AND SAID NO, IT'S HIM. WE'VE WATCHED HIM. HE'S STARING HER DOWN, HE'S INTIMIDATING HER AND HE'S HARASSING HER. AND NOW THE DEFENSE SPEAKS IN FAVOR OF HIM BECAUSE THEY THINK HE IS GOING TO BE FAVORABLE TO THEM. I DON'T KNOW WHAT SIDE HE IS GOING TO BE FAVORABLE TO. ALL I KNOW IS, I'M LOOKING AT A JUROR WHO IS SUCH A DISRUPTIVE FORCE EVEN NOW AND FROM AN EARLY STAGE IN THE PROCEEDINGS THAT HE'S BEEN DISTRACTING JURORS FROM THEIR DUTIES TO LISTEN CAREFULLY TO THE EVIDENCE THROUGHOUT THIS TRIAL, AND IT'S ONLY GETTING WORSE. NOW WE FIND 1427 CRYING IN THE BATHROOM. BUT THIS IS A PERSON -- THE NUMBER HAS COME UP REPEATEDLY OVER AND OVER AGAIN >FROM EVERYONE'S MOUTH. THIS IS THE ONE WHO IS CAUSING EVERYONE PROBLEMS, AND YOU HAVE A JUROR HERE WHO IS CONTINUALLY DISTRACTING JURORS FROM THEIR DUTIES. WHAT CAN WE POSSIBLY EXPECT IF WE ARE LOOKING PROSPECTIVELY AS WELL. BUT I AM TALKING ABOUT RIGHT NOW, HE IS A VERY SEVERE AND GRAVE DANGER TO THE INTEGRITY OF THIS JURY AND TO THEIR ABILITY TO EVALUATE THE EVIDENCE. SO I WOULD SUBMIT THAT IF ANYONE SHOULD BE EXCUSED, IT SHOULD BE 1489. HE IS INTERFERING WITH OTHER JURORS' DUTY AND ABILITY TO EVALUATE AND LISTEN TO THE EVIDENCE. HE IS INTERFERING WITH THE ABILITY TO COOPERATE AND GET ALONG AS A JUROR. HE HIMSELF HAS SHOWN A DESIRE TO ENGAGE IN PSYCHOLOGICAL WARFARE THAT DOES NOT -- THAT DOES NOT LOOK GOOD FOR ANY FUTURE ABILITY TO DELIBERATE FAIRLY AND COOPERATE WITH THE OTHER JURORS, AND HE'S LIED TO THIS COURT ABOUT HIS CONDUCT WITH THE OTHER JURORS, MOST NOTABLY, 1427. THE COURT: DO YOU HAVE ANY CASE LAW OR ANY STATUTORY AUTHORITY THAT INDICATES THAT A COURT HAS THE DISCRETION IN THIS SITUATION? MS. CLARK: I DO. PEOPLE VERSUS THOMAS, 218 CAL. APP. 3D. 1477. THE COURT: WHAT'S THE PAGE CITE? MS. CLARK: 1482 TO 1488, DETERMINATION OF GOOD CAUSE. THE COURT: WHAT ARE THE FACTS IN THAT CASE? MS. CLARK: I ONLY HAPPEN TO HAVE THAT ONE PAGE. I DON'T HAVE THE FACTS WITH ME. I LEFT THEM UPSTAIRS. BUT PEOPLE VERSUS WARREN, W-A-R-R-E-N, 176 CAL. APP. 3D. 324, IN THAT CASE, A JUROR WAS PROPERLY DISMISSED WHO FELT INTIMIDATED BY THE OTHER JURORS. BUT THAT GOES TO, YOU KNOW, THE ABILITY TO COOPERATE IN GENERAL. MR. COCHRAN: JUDGE, MAY I RESPOND? THE COURT: LET ME JUST GET THE CASE AUTHORITY HERE. MS. CLARK: WHY DOES HE GET TO ARGUE TWICE JUST OUT OF CURIOSITY? THE COURT: I'LL ALLOW HIM TO MAKE ANY RESPONSE AND I'LL ALLOW YOU TO MAKE A RESPONSE. MS. CLARK: AND THE MOST RECENT CASE OF PEOPLE VERSUS THOMAS, 94 OF THE DAILY JOURNAL, DAR 10206. THE COURT: 94, IT OUGHT TO BE IN AN ADVANCE SHEET. MS. CLARK: BY NOW. THE COURT: BY NOW. MS. CLARK: BUT THE LANGUAGE IN THAT CASE, YOUR HONOR, IS WHERE A JUROR WAS EXCUSED, THE COURT FOUND THAT HE REFUSED TO DELIBERATE BECAUSE THE OTHER JURORS COMPLAINED HE WASN'T PAYING ATTENTION TO HIS FELLOW JURORS, AND THE COURT FOUND THAT INATTENTIVENESS A GROUND FOR DISMISSAL. ALSO, THAT -- I MEAN, WHAT WE ARE TALKING ABOUT IS CONDUCT THAT'S NOT COOPERATIVE. WE'RE NOT JUST TALKING ABOUT SOMEONE WHO'S SAYING, "I WILL NOT DELIBERATE." THAT'S VERY CLEAR AND EASY. CASES DON'T HAPPEN THAT WAY. WE'RE TALKING ABOUT UNCOOPERATIVE CONDUCT. WE'RE TALKING ABOUT CONDUCT FAR WORSE THAN SAYING, "I DON'T WANT TO SIT WITH YOU." HIS CONDUCT IS, AS THE RECORD IS, REPLETE WITH INSTANCES OF HIS DISRUPTIVENESS. THE COURT: OKAY. ANY OTHER CITE? MS. CLARK: PEOPLE VERSUS JOHNSON, 6 CAL. 41 AT PAGE 21. THE COURT: OKAY. MR. COCHRAN. MR. COCHRAN: THANK YOU VERY KINDLY, YOUR HONOR. FIRST OF ALL, YOUR HONOR, MISS CLARK ARGUES LONG AND ARGUES WELL AS USUAL, BUT SHE'S SAYING NOTHING. YOUR HONOR, SHE'S TALKING ABOUT PERSONALITY CHARACTERISTICS, NOT VIOLATIONS OF COURT ORDERS. 1489 DID NOT TELL 1427 TO COME IN HERE AND LIE. THAT IS WHERE YOU ARE TALKING ABOUT CREDIBILITY. YOU KNOW -- AND I DON'T GO AROUND CALLING PEOPLE LIARS. I DON'T KNOW WHAT HAPPENS BACK IN THE JURY ROOM BECAUSE I'M NOT BACK THERE. BUT I CAN TALK TO YOU ABOUT WHAT WE SAW IN HERE, WHAT YOU SAW, YOUR HONOR. SHE CAN CITE ALL THE CASES SHE WANTS. THOSE CASES AREN'T GOING TO TELL THE COURT TO DISMISS 1489 BECAUSE OF HER PERCEPTION. IF YOU RECALL, OF THE 17 JURORS THE COURT TALKED TO, ONLY ABOUT THREE -- IN FACT, ALMOST ALL OF THEM SAID THE PROBLEMS HAD GOTTEN CONSIDERABLY BETTER. WHEN THE COURT ASKED THE JURORS IF THEY THOUGHT THEY COULD PUT THEIR DIFFERENCES ASIDE AND REACH A DECISION IN THIS CASE, THEY SAID, "YES, WE CAN." WHATEVER THE DIFFERENCES, THEY CAN PUT THEM ASIDE AND WORK TOGETHER. THEY WERE VERY CLEAR ABOUT THAT. I WAS SOMEWHAT IMPRESSED WITH THAT AND ENCOURAGED BY THAT. THE PROSECUTION WAS NOT NEARLY AS WORRIED WHEN WE GOT JEANETTE HARRIS SAYING EARLY ON THAT **** -- 1489, 1489 HAD BEEN STRUCK IN THE BACK OF THE HEAD, THAT HE HAD BEEN KICKED. NOBODY WORRIED ABOUT THIS BIG GUY. THEY WERE NOT WORRIED ABOUT HIM AT THAT POINT. THIS STUFF ABOUT STARING, MIND GAMES, THAT'S PREPOSTEROUS. IF A PERSON IS PARANOID -- IF THIS LADY THINKS OTHER PEOPLE ARE LOOKING AT HER, IT SEEMS TO ME THAT HAS NOTHING TO DO WITH HIS ABILITY TO SIT IN THIS CASE. IN FACT, QUITE THE CONTRARY. SHE TALKS ABOUT HIM NOT BEING ABLE TO DELIBERATE. THERE'S NO EVIDENCE OF THAT. THE EVIDENCE WE HEARD WAS THAT WHEN THEY'RE BACK IN THAT MOVIE ROOM -- REMEMBER ALL THE TESTIMONY? HE WOULD SAY TO PEOPLE, "PLEASE BE QUIET DURING THE MOVIE." YOU EVEN RESPONDED YOURSELF YOU HATE PEOPLE WHO TALK DURING THE MOVIE. SO YOU PROBABLY COULD IDENTIFY WITH THIS MAN. SOME PEOPLE DON'T LIKE TO HAVE EVERYBODY TALKING DURING THE MOVIE. SO HE'S KIND OF A STRAIGHT LACE KIND OF GUY, BUT THERE'S NO INDICATION THIS MAN'S EVER LIED TO THE COURT. NOT EVEN -- YOU ARE TALKING ABOUT APPLES AND WATERMELON, COMPARED TO THAT. THAT DOESN'T EVEN FLY IN THE FACE. LET'S TALK ABOUT THIS LADY. WHAT MISS CLARK DIDN'T READ TO YOU -- IF I COULD BORROW THE TRANSCRIPT. IF YOU'LL ALLOW ME TO DO THIS, I'LL READ YOU THE COMPLETE RECORD HERE. HERE'S WHAT YOU SAID. I'LL READ IT. IT SAYS: "1427, WHEN WE LEFT OUR DISCUSSION, I DIRECTED YOU NOT TO DISCUSS THIS WITH ANYBODY ELSE. DID YOU DISCUSS THIS WITH ANY OF THE JURORS?" THE COURT: YOU ARE REFERRING TO 29552? MR. COCHRAN: YES, YOUR HONOR. "JUROR 1427: NO, I DIDN'T DISCUSS ANYTHING." THAT WAS ABSOLUTELY THE FIRST LIE TO THE COURT. MS. CLARK: "NO, I DIDN'T SAY ANYTHING." MR. COCHRAN: "NO, I DIDN'T DISCUSS IT. PLEASE APOLOGIZE." MS. CLARK: "I APOLOGIZE." MR. COCHRAN: "THE COURT: DID YOU WRITE ANY NOTES TO ANYBODY? "JUROR 1427: NO, I DIDN'T SAY ANYTHING." NOW, AGAIN, I MEAN, IS SHE BEING -- I MEAN, IS THAT BEING HONEST? SHE'S BECOME A LIAR. SHE -- LIKE SHE'S BECOME A LIAR IN THE FIVE OR SIX MONTHS SHE'S BEEN HERE. ANOTHER LIE. "THE COURT: DID YOU SHARE WITH ANY OTHER JURORS ANYTHING THAT YOU MIGHT HAVE WRITTEN ON A NEWSPAPER?" YOU HAD TO GET SPECIFIC. "NO. 1427: I REMEMBER WRITING SOMETHING DOWN. I ASKED 353 A QUESTION, ASKED HER FOR -- I ASKED HER FOR SOMETHING. THEN I WROTE SOMETHING DOWN. I REMEMBER SCRIBBLING. I WAS READING A NEWSPAPER AND SCRIBBLING. I REMEMBER SCRIBBLING ON A NEWSPAPER. "THE COURT: DID YOU COMMUNICATE ANYTHING THAT HAD TO DO WITH THE QUESTION I WAS DISCUSSING WITH YOU HERE? "NO. I WASN'T TRYING TO COMMUNICATE WITH HER ABOUT ANYTHING ABOUT THIS CASE, ABOUT THE CASE." SHE LIED. NOW, THAT'S FOUR LIES RIGHT THERE. "ALL RIGHT. MR. COCHRAN, DO YOU HAVE ANY OTHER QUESTIONS? MISS CLARK?" AND THEN MISS CLARK SAYS: "YES, YOUR HONOR," AND THAT'S WHEN HE PASSED THE NOTE UP HERE AND THEN YOU SHOWED HER THE NEWSPAPER, "DOES THIS LOOK FAMILIAR?" ONLY AFTER THAT, AND THEN SHE SAYS: "YES. I SCRIBBLED THAT." NOW, THIS IS -- THIS FLIES RIGHT IN THE HEART OF YOUR ORDERS, FLIES RIGHT IN THE FACE -- SHE ACTUALLY LIED FOUR TIMES IN FRONT OF ALL OF US. YOU CAN'T GET AROUND IT. MISS CLARK, AS ELOQUENT AS SHE IS, CAN'T GET AROUND IT. SHE CITES ALL THESE CASES. NONE OF THOSE CASES HAVE TO DO WITH PERSONALITY. SURE YOU HAVE LOTS OF DISCRETION WITH REGARD TO JURORS, BUT YOU'RE NOT -- YOU ARE A FAIR MAN. YOU'RE NOT GOING TO DISMISS SOME GUY BECAUSE HE WANTS IT TO BE QUIET WHEN HE'S WATCHING A MOVIE, BECAUSE HE WAS A VICTIM, BECAUSE THIS LADY COMES AND TRIES TO BUTT HEADS UP ON THE PHONE, JUST A BUNCH OF MALARKEY. SHE CALLS HIM A LIAR. THERE'S NO EVIDENCE HE HAS EVER LIED TO YOU AT ALL ABOUT ANYTHING. QUITE THE CONTRARY. HE SAYS HE'S GONE OUT OF HIS WAY NOT TO HAVE ANY PROBLEMS. AND YOU YOURSELF GAVE HIM SOME ADVICE. YOU SAID, "LOOK, IN CASE OF THESE KIND OF PROBLEMS, STAY AWAY FROM 1427." AND IT WAS QUITE CLEAR THAT THEY RODE IN SEPARATE VANS, WHATEVER. THE COURT: APPARENTLY HE FOLLOWED MY ADVICE. WHEN THERE WAS THAT CONFLICT OVER THE PHONE, HE JUST SAID, "HEY, I'M OUT OF HERE." MR. COCHRAN: REMEMBER WHAT SHE SAID ABOUT -- HOW SHE TOOK THAT? SHE SAID HE TURNED IT AROUND ON HER AND MADE LIKE A BIG THING OUT OF IT LIKE SHE HAD DONE SOMETHING WRONG. SO, YOU KNOW, IT'S VERY HARD PLEASING THIS PARTICULAR JUROR IT SEEMS TO ME. ASK THE DEPUTIES. IF THE COURT ASKS THE DEPUTIES, THEN I THINK THIS MATTER WILL BE OVER WITH REAL QUICKLY. SO I THINK IT'S CLEAR, YOUR HONOR, THAT IN THIS SITUATION, THERE'S NO COMPARISON HERE. AND THOSE CASES THAT COUNSEL CITES WITHOUT THE FACTS HAVE NOTHING TO DO WITH PERSONALITY OR THE FACT THAT SOMEBODY MIGHT NOT WANT QUIET IN A MOVIE OR MIGHT -- SOMEBODY LOOKS AT YOU IS GROUNDS TO GET SOMEBODY KICKED OFF THE JURY. WHAT DOES IT MEAN STARING AT SOMEBODY? THAT'S PREPOSTEROUS UNDER THE CIRCUMSTANCES. BUT THE POINT I WANT TO MAKE IS THAT IN YOUR EFFORTS HERE, EVERY ONE OF THESE JURORS HAS SAID THEY CAN WORK TOGETHER. THINGS HAVE GOTTEN A LOT BETTER. AND THEY ALL SAID THAT. SO IT JUST SEEMS TO ME THE PROSECUTION HAS CERTAIN JURORS THEY DON'T LIKE. CERTAINLY, FOR THEM TO ARGUE 1427 SHOULD BE IN HERE IS OUTRAGEOUS. I DON'T THINK THEY REALLY MEAN THAT GIVEN THIS RECORD. THIS RECORD IS ABSOLUTELY CLEAR. SO I'LL SUBMIT IT. MS. CLARK: YOUR HONOR, LET ME CITE ANOTHER CASE TO THE COURT. LET ME JUST SAY THIS. ALL OF THESE CASES ACTUALLY DO COME DOWN TO PERSONALITY. YOU KNOW, THEY REALLY DO. THE COURT: WHAT CASE DO YOU WANT TO CITE TO ME? MS. CLARK: DIFFERENT -- NOT A PERSONALITY CASE. BUT BASICALLY THAT'S WHAT WE'RE TALKING ABOUT, IS ABOUT JURORS' PERSONALITY AND WHETHER OR NOT THOSE PERSONALITIES ALLOW THEM TO DELIBERATE. I AGREE THAT THE COURT OUGHT TO TALK TO THE DEPUTIES IF THE COURT HAS ANY NEED TO RESOLVE THIS ISSUE BECAUSE IT DOES NOT SOUND TO ME LIKE HE WAS ACTUALLY DOING THAT, GETTING OUT OF HER WAY OR ANYTHING. IT WAS ANOTHER WAY FOR HIM TO GET IN HER FACE, AND HE'S USING IT IN A WAY OF SAYING, "I'M NOT GETTING IN YOUR FACE." AND THE TRUTH OF THE MATTER IS, YOU KNOW, YOU WILL SEE, YOU KNOW, OVER A PERIOD OF TIME -- IF IT'S NOT HER, IT WILL BE SOMEBODY ELSE HE'S GOING TO DO THIS TO BECAUSE THIS IS WHAT HE DOES. HE NEEDS TO PLAY THESE GAMES. AND, YOU KNOW, I FEEL VERY STRONGLY, YOUR HONOR THAT -- WE TALK ABOUT LIES. HE'S COME IN HERE AND TURNED EVERYTHING ON ITS HEAD. BUT MR. COCHRAN CAN'T GET AROUND THE FACT -- HE TRIES TO MINIMIZE THE CONDUCT AND MAKE HIM, PAINT THIS MAN, 1489, AS THE VICTIM. THERE ARE THREE OR FOUR OTHER JURORS WHO HAVE SEEN THE SAME CONDUCT AND REPORTED IT CONSISTENTLY EVEN MORE VEHEMENTLY THAN 1427, HOW INAPPROPRIATE IS HIS CONDUCT. SO WE HAVE A PROBLEM WITH THIS MAN THAT THE DEFENSE WOULD LIKE TO SWEEP UNDER THE RUG. BUT IT'S VERY PATENT. WITH RESPECT TO THE DISMISSAL OF 1427, THE PUNISHMENT OUGHT TO FIT THE CRIME. THERE'S BEEN NO HARM HERE. THE COURT WAS NOT PRECLUDED FROM ASCERTAINING THE TRUTH. IT TOOK HER ABOUT A NANOSECOND TO SAY, "THAT'S RIGHT. I DID WRITE THE NOTE AFTER ALL." WERE THEY DISCUSSING THE FACTS OF THIS CASE? NO, THEY WERE NOT. WERE THEY FORMING OPINIONS ABOUT THE FACTS OF THIS CASE? NO, THEY WERE NOT. NOTHING THAT GOES TO THE HEART OF THE ISSUE HERE. PERIPHERAL ISSUE. THE COURT: BUT, MISS CLARK, DON'T I HAVE A SUBSTANTIAL CONCERN WHEN I ORDER THIS PERSON TWICE IN HALF AN HOUR NOT TO DO SOMETHING THAT I HAVE TOLD THEM NOT TO DO ON ALL OTHER PREVIOUS OCCASIONS, AND THEN THEY GO AND WRITE THIS NOTE, AND THEN WHEN THEY'RE CONFRONTED WITH IT, DANCE AROUND IT? DON'T I HAVE A FUNDAMENTAL PROBLEM WITH THAT PERSON? MS. CLARK: AND THAT'S WHAT I'M TELLING YOU. NO. YES, THERE IS A PROBLEM. BUT DISMISSAL IS NOT THE ONLY REMEDY. UNDER PEOPLE VERSUS MINCEY, THE COURT HAS THE POWER TO ADMONISH THE JURY INSTEAD OF DISMISSAL. THE COURT: WHICH IS? MS. CLARK: 2 CAL. 4TH 408 AT PAGE 421, M-I-N-C-E-Y. DISMISSAL IS NOT THE ONLY REMEDY. IN THAT CASE, THE COURT DID ADMONISH THE JURORS IN QUESTION NOT TO BASE -- SOMEBODY I THINK HAD BROUGHT A BIBLE INTO THE JURY ROOM IN THAT CASE IN VIOLATION OF A COURT ORDER. I'M SURE THERE ARE OTHER CASES, AND IF GIVEN THE OPPORTUNITY, I WILL BRING THEM TO THE ATTENTION OF THE COURT, WHERE AN ADMONITION IS GIVEN TO JURORS WHO HAD COMMITTED SOME FORM OF MISCONDUCT LIKE EXPERIMENT OUTSIDE THE CONFINES OF THE COURTROOM. IN THAT CASE, AN ADMONISHMENT WAS DEEMED TO BE SUFFICIENT TO REMEDY AND THAT DISMISSAL WAS NOT CALLED FOR. AND WE HAVE A SIMILAR SITUATION HERE AND I THINK AN ADMONITION TO THAT JUROR SPECIFICALLY IN NO UNCERTAIN TERMS WOULD SUFFICE. THE COURT: BUT ISN'T THE MINCEY CASE -- I SEEM TO RECOLLECT HAVING READ THAT ONCE A LONG TIME AGO. DIDN'T MINCEY THOUGH INVOLVE A SITUATION WHERE THE JUROR DURING THE COURSE OF DELIBERATIONS BROUGHT IN A BIBLE AND DISCUSSED SOME OF THE BIBLICAL IMPLICATIONS OF CRIMINAL LAW, BUT THAT WAS NOT IN DIRECT VIOLATION OF A SPECIFIC COURT ORDER? MS. CLARK: WELL, NO, YOUR HONOR. ACTUALLY THE JUROR READ OTHER -- READ VERSES TO THE OTHER JURORS REGARDING THE PROPRIETY OF THE DEATH PENALTY AND AUTHORITY OF GOVERNING RULERS. NO, THAT WAS A DIRECT VIOLATION OF THE COURT'S ORDER. NOT -- THE COURT: WHAT? MS. CLARK: THEY BROUGHT SOMETHING EXTRANEOUS TO THE CASE IN THE JURY ROOM AND STARTED READING VERSES CONCERNING THE DEATH PENALTY. I THINK THAT'S MUCH MORE SERIOUS AND EGREGIOUS VIOLATION THAN ANYTHING 1427 DID. I MEAN, THEY'RE BRINGING EXTRANEOUS INFORMATION TO A PENALTY PHASE DETERMINATION. I MEAN THAT'S ABOUT AS SERIOUS AS IT GETS, AND YET THE COURT FOUND AN ADMONITION WAS SUFFICIENT UNDER THOSE CIRCUMSTANCES. I MEAN THEY'RE CONSIDERING MATTERS EXTRANEOUS TO THE EVIDENCE AND THE LAW THAT WAS GIVEN TO THEM BY THE COURT. HOW MUCH MORE SERIOUS CAN YOU GET? THE COURT: OKAY. ALLRIGHTY. COUNSEL, WHAT I WOULD LIKE TO DO IS READ THE CASES THAT HAVE BEEN CITED TO ME. AND, MR. COCHRAN, MR. SHAPIRO, IF YOU WANT TO SUBMIT ANY CASE AUTHORITY TO ME, YOU'RE WELCOME TO DO SO. I'LL TAKE A LOOK AT THAT. MY GUESS IS THAT WE DON'T HAVE A LOT MORE OF MR. SIMS, AND IF WE CAN FINISH MR. SIMS THIS MORNING, I CAN TAKE A LOOK AT THIS AND HOPEFULLY RULE THIS AFTERNOON ON THIS ISSUE. MS. CLARK: WHAT TIME, YOUR HONOR? THE COURT: HOPEFULLY THIS AFTERNOON. I WANT TO FINISH MR. SIMS, GET HIM BACK TO DOJ. HAD YOU NOT CITED ALL THIS, HAD YOU TOLD ME ABOUT THIS BEFORE, I WOULD HAVE READ IT BEFORE. MS. CLARK: I'M SORRY. THE COURT: ALL RIGHT. BECAUSE I HAVE READ EVERYTHING ELSE, AND I WILL READ IT. MR. DARDEN: I TRIED TO CALL YOU. THE COURT: ALL RIGHT. LET'S TAKE 10 MINUTES, AND WE WILL START WITH SIMS AT 10:30. MS. CLARK: ALL RIGHT. THANK YOU, YOUR HONOR. THE COURT: ALSO AN INTERESTING DAY, (AT 10:20 A.M., IN CAMERA PROCEEDINGS WERE CONCLUDED.)