Xref: world alt.fan.oj-simpson.transcripts:242 Newsgroups: alt.fan.oj-simpson.transcripts Path: world!uunet!in2.uu.net!news.sprintlink.net!noc.netcom.net!ix.netcom.com!netcom.com!myra From: myra@netcom.com (Myra Dinnerstein) Subject: JUROR TRANSCRIPT - 6/05/95 Message-ID: Organization: NETCOM On-line Communication Services (408 261-4700 guest) Date: Fri, 11 Aug 1995 01:32:16 GMT Approved: myra@netcom.com Lines: 863 Sender: myra@netcom20.netcom.com 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.)