Xref: world alt.fan.oj-simpson:52043 alt.fan.oj-simpson.transcripts:264 Newsgroups: alt.fan.oj-simpson.transcripts,alt.fan.oj-simpson Path: world!bloom-beacon.mit.edu!newsfeed.internetmci.com!news.sprintlink.net!howland.reston.ans.net!ix.netcom.com!netcom.com!myra From: myra@netcom.com (Myra Dinnerstein) Subject: SIDEBARS - August 1, 1995 Message-ID: Organization: NETCOM On-line Communication Services (408 261-4700 guest) Date: Thu, 17 Aug 1995 04:25:24 GMT Approved: myra@netcom.com Lines: 344 Sender: myra@netcom3.netcom.com Sidebars from August 1, 1995 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:) MR. DARDEN: BEFORE WE DO THAT, YOUR HONOR, MR. CLARKE WILL BE AVAILABLE AFTER THE LUNCH HOUR. THE COURT: OKAY. MR. DARDEN: HE WILL BE AVAILABLE THIS AFTERNOON ON THE GERDES MOTION. THE COURT: ALL RIGHT. MS. CLARK: LIFE MAGAZINE ARTICLE, YOUR HONOR. I HAVE A COPY OF IT COMING TO COUNSEL NOW. (BRIEF PAUSE.) MR. NEUFELD: WHY DON'T YOU CUT TO THE CHASE AND TELL US WHAT YOU ARE GOING TO USE IT ON? MS. CLARK: SURE, SURE. RIGHT HERE, (INDICATING). "I'M IN THE BUSINESS OF GIVING HOPE TO THE HOPELESS. NO ONE CAN CONTRADICT ME. I HAVE TO BE VERY, VERY CAREFUL." (BRIEF PAUSE.) THE COURT: I'M TRYING TO READ IT, COUNSEL. MR. NEUFELD: I'M SORRY. MS. CLARK: AND THEN, YOUR HONOR, IT GOES ON TO THE BOTTOM PARAGRAPH AS WELL, (INDICATING). (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.) (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.) MR. NEUFELD: MISS CLARK, WHICH QUOTES DID YOU WANT TO USE? MS. CLARK: "I'M IN THE BUSINESS OF GIVING HOPE TO THE HOPELESS AND SINCE NOBODY IN THE WORLD CAN CONTRADICT ME, I HAVE TO BE VERY, VERY CAREFUL," AND THEN DOWN HERE, (INDICATING), "I DON'T WANT TO SAY I'M ANTI-JURY, I'M JUST ANTI THAT JURY. I HAVE NO FAITH IN THE JURY SYSTEM LEFT. I ONLY WANT A JUDGMENT. I DO MY NAUGHTY THINGS AND I'M THINKING OF DOING TWELVE OF THEM RIGHT NOW," AND THAT IS IN RESPONSE TO THE JURY VERDICT IN THE JEAN HARRIS CASE WHERE THE DEFENDANT WAS, THAT SHE ACCIDENTALLY SHOT, DR. SCARPETTA -- NOT SCARPETTA. THE COURT: SHOENHOWER? MR. NEUFELD: HITANOWER, T-A-N-O-W-E-R. THE COURT: T-A-R-N-O-W-E-R. MS. CLARK: TARNOWER, THAT IS IT, AND THE JURY REJECTED HIS OPINION AND VOTED GUILTY OF MURDER AND HIS RESPONSE TO THEIR REJECTION OF HIS THEORY ON HIS TESTIMONY TO SUPPORT THEIR THEORY THAT IT WAS AN ACCIDENT, BECAUSE THE CRIME SCENE RECONSTRUCTION WAS IMPORTANT TO THAT THEORY, WAS, YOU KNOW, THE HECK WITH JURIES. MR. NEUFELD: ALL RIGHT. HIS OPINION ABOUT JURY SYSTEMS AND ABOUT A PARTICULAR JURY TRIAL HE WAS INVOLVED IN HAS ABSOLUTELY NO RELEVANCE TO HIS IMPEACHMENT IN THIS CASE AT ALL, YOUR HONOR. HIS REACTION -- AND THE FACT A JURY DISAGREED WITH HIM AND OBTAINED A VERDICT HAS NO RELEVANCE TO HOW A JURY IN THIS CASE SHOULD TREAT HIS EXPERT TESTIMONY. WE WOULD NEVER -- WE HAD A SITUATION, YOUR HONOR, WHERE YOU COULD IMPEACH AN EXPERT WITNESS BY SHOWING THAT IN THE ANOTHER CASE WHERE HE OFFERED EXPERT TESTIMONY THE JURY RETURNED A CONTRARY VERDICT, IT IS IRRELEVANT. IT IS IRRELEVANT, IT IS IMMATERIAL AND CERTAINLY UNDER 352 ITS PREJUDICIAL IMPACT WOULD CERTAINLY OUTWEIGH ANY PROBATIVE VALUE. HIS ANGER OR RESENTMENT AND WHAT A JURY DID IN ANOTHER CASE IS SIMPLY BEING OFFERED HERE TO TRY AND POISON THIS JURY TOWARD HIM TO SHOW THAT HE DISLIKED ANY PARTICULAR JURY. IT HAS NO RELEVANCE TO THE CROSS-EXAMINATION HERE. AS TO THE OTHER QUOTE -- MR. DARDEN: THE VOLUME IS TOO LOUD. MR. NEUFELD: SORRY. AS TO ANOTHER QUOTE, YOUR HONOR, WHERE IT SAYS, "I'M IN THE BUSINESS OF GIVING HOPE TO THE HOPELESS," I ACTUALLY KNOW THAT HE IS NOT THE AUTHOR OF THAT QUOTE, THAT EVEN THOUGH IT APPEARS IN QUOTATION MARKS, IT IS ACTUALLY A QUOTE THAT WAS TAKEN >FROM A PROSECUTOR WHO HAD RETAINED HIM. AND I HAVE DISCUSSED THIS QUOTE WITH HIM IN THE PAST AND HE HAS PROOF, WHICH WE CAN -- I CAN PRODUCE TO THE COURT, IN FACT, THAT WILL SHOW THAT HE IS NOT THE SOURCE OF THIS QUOTE, THAT THE QUOTE WAS ACTUALLY MADE BY A PROSECUTOR WHO HAD RETAINED HIM. THE COURT: HOW DO YOU KNOW THAT? MR. NEUFELD: BECAUSE WE HAVE A QUOTE BY THE PROSECUTOR AT A DATE PRIOR IN TIME TO THIS ARTICLE WHERE HE TALKS ABOUT, YOU KNOW, THAT "I'M IN THE BUSINESS OF" -- NOT MAC DONELL -- PROSECUTOR TALKS ABOUT GIVING HOPE TO THE HOPELESS, AND THAT IS WHAT MAC DONELL CAN DO FOR ME. MS. CLARK: WHAT ABOUT THE PART "NO ONE CAN CONTRADICT ME"? THAT DOESN'T SOUND LIKE A PROSECUTOR SAID THAT. MR. NEUFELD: I DIDN'T ASK HIM ABOUT THAT. I CAN'T MAKE A REPRESENTATION ABOUT THAT, YOUR HONOR. I THINK THIS OTHER THING AT THE BOTTOM IS JUST CLEARLY PREJUDICIAL AND ABSOLUTELY NO PROBATIVE VALUE. MS. CLARK: MAY I BE HEARD? THE COURT: YES. MS. CLARK: WITH RESPECT TO THE BOTTOM PARAGRAPH, YOUR HONOR, THIS GOES TO THE WITNESS' ATTITUDE, BIAS AND CREDIBILITY DIRECTLY. HE HAS ASSERTED THAT THERE IS NO CHECK OR BALANCE ON HIM. THE COURT: ALL RIGHT. COUNSEL, HERE IS THE PROBLEM WITH THAT, THOUGH. THEN WE HAVE TO GO IN THE FACTS AND CIRCUMSTANCES AS TO WHY HE DISAGREES WITH THE JEAN HARRIS JURY. MS. CLARK: I REALLY DISAGREE, YOUR HONOR, AND HE HAS BEEN CROSS-EXAMINED ON THIS BEFORE AND IT CERTAINLY DIDN'T TAKE MORE THAN TWO MINUTES. IT IS A VERY SIMPLE THING. THE JURY CAME BACK WITH MURDER. HE TESTIFIED IN SUPPORT OF AN ACCIDENTAL SHOOTING. THAT IS IT. AND HE THINKS THE JURY IS WRONG PERIOD. I MEAN, THIS DOESN'T GO VERY FAR. THAT IS ABOUT TWO QUESTIONS. THE COURT: ALL RIGHT. THAT IS -- MS. CLARK: THAT IS ALL IT TAKES. I DON'T SEE A 352 ISSUE THERE. BUT CERTAINLY WHEN A MAN SAYS THAT THE ONLY THING THAT IS A CHECK OR BALANCE IS A DISAGREEMENT FROM THE OPPOSING SIDE, ESPECIALLY FROM THE JURY, THE FACT THAT HE ULTIMATELY REJECTS EVERYTHING, I THINK IT IS VERY HAD PROBATIVE FOR THIS JURY TO ASSESS HIS CREDIBILITY. MR. NEUFELD: UNDER 352 WE WILL TAKE UP A LOT OF TIME. WE WILL RELITIGATE THE JEAN HARRIS CASE. HE WILL COME FORWARD AND BRING OUT ALL THE EVIDENCE THAT SUPPORTS HIS POSITION. IT IS ABSURDITY AND IS REALLY NOT RELEVANT HERE. THE COURT: ALL RIGHT. MS. CLARK: YOUR HONOR, I WOULD LIKE TO SHOW THE COURT THE TRANSCRIPT IN THE BRIGGS CASE WHERE HE WAS CONFRONTED WITH THIS ARTICLE BEFORE AND THE QUESTION AND THE ANSWER COULDN'T HAVE TAKEN MORE THAN THREE MINUTES. MR. NEUFELD: THE LAWYER WHO CALLED HIM DIDN'T DO A PROPER JOB. MS. CLARK: THERE IS NO 352 ISSUE WITH RESPECT TO THIS. HE HAS HIS VIEW. AND IF COUNSEL WANTS TO BRING OUT ON REDIRECT THAT HIS VIEW IS DIFFERENT THAN THE JURY'S, THIS IS NOT GOING TO REQUIRE RELITIGATION. THIS GOES TO HIS ATTITUDE; NOT THE PROOF OF THE MATTER ASSERTED. MR. NEUFELD: JUST -- THE COURT: HOLD ON. I AGREE WITH YOU, IT DOES GO TO HIS ATTITUDE AND IT SAYS A LOT. THE PROBLEM IS I'M NOT GOING TO RELITIGATE THE JEAN HARRIS CASE. THE 352 TO THE "TWELVE NAUGHTY THINGS" IS SUSTAINED. THE OBJECTION IS OVERRULED TO THE "HOPELESS" BUSINESS. MR. NEUFELD: OKAY. **** (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:) MS. CLARK: COUNSEL'S REPEATED SPEAKING OBJECTIONS WHICH HAVE BEEN VERY LOUD AND VERY VOCIFEROUS HAVE GONE UNCHECKED BY THE COURT THUS FAR, ALTHOUGH THE COURT HAS WARNED COUNSEL. THE COURT: I WARNED HIM IN FRONT OF THE JURY. THIS IS A PRETTY SEVERE SANCTION, I THINK. MS. CLARK: AND THE PEOPLE ARE ASKING THAT COUNSEL BE ADMONISHED TO REFRAIN FROM THESE SPEAKING OBJECTIONS. I THINK IT IS VERY UNFAIR. I THINK IT IS DELIBERATELY DISRUPTIVE. IT HAS REQUIRED US TO STEP BACK AND REGROUP A NUMBER OF TIMES AND THAT IS WHY THE "ASKED AND ANSWERED" OBJECTIONS ARE PARTICULARLY UNFAIR WHEN WE ARE BEING PRECLUDED FROM GETTING THE ANSWER BECAUSE OF COUNSEL'S REPEATED SPEAKING OBJECTIONS WHICH ARE LENGTHY AND LOUD. THE COURT: ALL RIGHT. YOUR REQUEST IS CONSIDERED. I HAVE ALREADY ADMONISHED MR. NEUFELD TO -- REGARDING HIS OBJECTIONS. MR. NEUFELD: YOUR HONOR, GUIDANCE ON ONE THING BECAUSE SHE IS RAISING AN ISSUE IN POINT. AM I NOT ALLOWED TO SAY, "OBJECTION, HEARSAY" OR "OBJECTION, ASKED AND ANSWERED"? AM I ONLY ALLOWED TO SAY "OBJECTION"? THE COURT: YOU ARE ALLOWED TO STATE THE LEGAL GROUNDS. MR. NEUFELD: IS "ASKED AND ANSWERED" A LEGAL GROUND? THAT IS ALL I'M ASKING. I WON'T DO IT AGAIN. THE COURT: IT IS IN THE COMMON PARLANCE HERE, ALTHOUGH IT IS NOT TECHNICALLY ASKED. MS. CLARK: IT IS "ASKED AND ANSWERED SIX TIMES NOW" AND "HOW MANY TIMES DO WE HAVE TO GO OVER THIS?" THE COURT: I KNOW. I'VE ALREADY ADMONISHED HIM ONCE IN FRONT OF THE JURY, MISS CLARK. THAT IS A PRETTY SEVERE SANCTION. MR. NEUFELD: OKAY. MS. CLARK: IT IS ONE THE PEOPLE HAVE SUFFERED A NUMBER OF TIMES. THE COURT: YES, IT IS. **** (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:) THE COURT: ALL RIGHT. MS. CLARK: I WANT ONE, TOO. THE COURT: WE ARE OVER AT THE SIDE BAR. YOU GUYS BOTH ASK ENTIRELY TOO MANY QUESTIONS. ALL RIGHT. MR. COCHRAN: SORRY, JUDGE. MR. NEUFELD: I HAVE ONLY ASKED ONE QUESTION ABOUT TRAVEL SO FAR. THE COURT: DO YOU THINK THE JURY IS REALLY INTERESTED IN THAT? MR. COCHRAN: JUDGE, ONLY ONE LAWYER. MS. CLARK: YEAH. MR. NEUFELD: YOUR HONOR, I BELIEVE YESTERDAY THROUGH MISS CLARK'S QUESTIONING SHE OPENED THE DOOR FOR ME TO BRING OUT THE FACT THAT THEY DID DO PRESUMPTIVE TESTING ON THE SOCK FOR TWO REASONS: OKAY. NO. 1, SHE BROUGHT OUT THE FACT THAT HE BOTH EXAMINED THE SOCKS MICROSCOPICALLY AND THEN CERTAIN CHEMICAL TESTS WERE DONE, AND THE SUGGESTION WAS THAT MR. MATHESON WAS OUTSIDE THE ROOM. SO I'M GOING TO HAVE TO DESCRIBE WHAT THOSE CHEMICAL TESTS WERE. MORE IMPORTANTLY, LATE IN THE DAY DURING HER CROSS-EXAMINATION SHE ASKED, "WELL, YOU DIDN'T DO ANY TYPING ON THOSE RED BALLS," SUGGESTING IN FACT THAT THAT WE CONFIRMED THAT IS BLOOD OTHER THAN THE VISUAL INSPECTION. I WOULD CALL THE COURT'S ATTENTION TO THE MANNER OF THE DRAINS IN MR. SIMPSON'S HOUSE WHERE THE PEOPLE WERE PRECLUDED >FROM BRINGING OUT THAT THEY DID PRESUMPTIVE TESTING ON THE DRAIN. THE COURT RULED AT THAT TIME THAT IF WE MADE ANY SUGGESTION THAT IT WASN'T BLOOD IN THE DRAINPIPES, OKAY, THAT THAT WOULD THEN OPEN THE DOOR TO BRING OUT THE PRESUMPTIVE TESTS. MISS CLARK'S QUESTION ABOUT THE FAILURE TO DO TYPING TESTS ON THOSE RED BALLS I BELIEVE IS THE SAME THING. IN FACT, SHE SAID IN THE VERY NEXT QUESTION, "WELL, LET'S EVEN ASSUME FOR THE MOMENT THAT THEY ARE BLOOD BALLS." I THINK SHE CAUGHT HERSELF AND REALIZED WHAT SHE HAD JUST DONE. BUT I THINK THAT FOR BOTH THOSE REASONS, YOUR HONOR, I AM ENTITLED TO ASK THIS WITNESS ABOUT THE PRESUMPTIVE TESTS PART BECAUSE, AS I SAID, THERE IS ALREADY TESTIMONY ABOUT THE CHEMICAL TESTS THAT THEY DID ON APRIL 2ND AND THE SECOND REASON BEING FOR A SUGGESTION THAT WE HAVEN'T DONE ANYTHING TO INDICATE THE PROOF OF THOSE RED BALLS ARE BLOOD. MS. CLARK: NO, YOUR HONOR. THAT -- THE -- COUNSEL IS NOW TRYING TO USE HIS WITNESS' OWN NONRESPONSIVE ANSWER. I NEVER INTENDED TO ELICIT FROM HIM THAT HE PERFORMED SUCH A TEST. HE VOLUNTEERED THAT IN AN EFFORT, AS HE HAS FREQUENTLY DONE, TO INTERJECT INTO THE RECORD MATTERS THAT HE KNOWS HE IS NOT ALLOWED TO GET INTO WHICH HE KNOWS I'M NOT ASKING FOR. BUT COUNSEL REALLY HAS ALL THAT HE WANTS IN MY REQUESTING OF HIM WHETHER OR NOT IT WAS TYPED, BECAUSE THE ISSUE OF THAT WAS NOT TO DISPUTE THAT WAS BLOOD, AND I'VE PRETTY MUCH -- ALTHOUGH THERE HAVE BEEN TIMES THAT I SAID, WELL, WE ASSUME IT IS BLOOD -- I HAVE PRETTY MUCH CONCEDED THAT -- CERTAINLY NOT FOUGHT THE ASSERTION THAT IT MIGHT BE. ALL I WAS SAYING WAS WE DON'T KNOW WHOSE IT IS, IF IT IS BLOOD. THAT IS NOT FIGHTING THE ASSERTION THAT IT IS BLOOD. THAT IS -- COUNSEL IS USING THE CAMEL'S NOSE ARGUMENT, BUT IT IS HIS NOSE THAT IS IN THE TENT AND NOT MINE. THE COURT: ALL RIGHT. CAN YOU SHOW ME THE QUESTION AND ANSWER YOU ARE REFERRING TO? MR. NEUFELD: I DON'T HAVE THE TRANSCRIPT. IT IS BASED ON MY RECOLLECTION. MS. CLARK: I DON'T SEE HOW THAT WOULD POSSIBLY LET IT IN, YOUR HONOR. ALL I'M SAYING, IT IS BLOOD; YOU DON'T KNOW WHOSE IT IS. MR. COCHRAN: I WILL ASK BLASIER. THE COURT: AT THIS POINT I'M GOING TO SUSTAIN THE OBJECTION. THE COURT'S PREVIOUS RULING REGARDING PHENOLPHTALEIN WILL STAND. ASK BLASIER TO -- (BRIEF PAUSE.) MS. CLARK: YOUR HONOR, THERE WAS A SECOND ISSUE THAT I WANTED TO RAISE WHILE WE ARE HERE SO WE DON'T WASTE TIME. THE COURT: ALL RIGHT. MS. CLARK: I DON'T WANT TO JUMP BACK UP HERE. THE COURT: WHAT IS THE SECOND ISSUE? MS. CLARK: THE SECOND ISSUE IS THAT THE WITNESS ATTEMPTED TO GET IN THE SOCK DRYING EXPERIMENT. HE KNEW WHAT I WAS ASKING HIM, DELIBERATELY INTERJECTED A MATTER THAT WAS TOTALLY IRRELEVANT TO MY QUESTION. MY QUESTION HAD NOTHING TO DO WITH THE PHENOLPHTHALEIN TEST OR THE APPLICATION OF DISTILLED WATER. HE KNEW IT VERY WELL. THE COURT: AND WE STOPPED IT REAL QUICK. MR. NEUFELD: IT ALSO WASN'T THE SOCK DRYING EXPERIMENT HE WAS REFERRING TO. THE COURT: LET'S PROCEED. MS. CLARK: IF COUNSEL INTENDS TO USE THAT ANSWER TO OPEN UP THE DOOR THAT HAS BEEN CLOSED BY THE COURT -- MR. NEUFELD: I'M NOT GOING TO. THE COURT: ALL RIGHT. **** (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:) THE COURT: ALL RIGHT. WE ARE OVER AT THE SIDE BAR. MR. NEUFELD. MR. NEUFELD: YES, YOUR HONOR. IT IS OUR POSITION THAT -- THAT MISS CLARK'S HYPOTHETICAL ON RECROSS ABOUT THE BLOOD BEING WET WHILE THE SOCKS WERE LYING ON THE FLOOR IN MR. SIMPSON'S ROOM OPENS THE DOOR TO MAC DONELL'S TESTIFYING ABOUT THE DRYING TIME OF BLOOD, BECAUSE SHE IS PUTTING OUT THE SUGGESTION THAT IT WOULD STILL BE WET. IT IS THIS WITNESS' OPINION THAT IT WOULDN'T BE WET. AS A MATTER OF DUE PROCESS WE HAVE THE RIGHT TO REBUT HER ARGUMENT, AND IF WE CAN'T REBUT IT, OUR HANDS ARE TIED AND MR. SIMPSON IS UNABLE TO, UNDER THE CONFRONTATION CLAUSE, UNDER THE DUE PROCESS CLAUSE, PUT ON A DEFENSE TO THIS SUGGESTION PUT FORTH BY THE PROSECUTION. THE COURT: MISS CLARK. MS. CLARK: NO, YOUR HONOR. A HYPOTHETICAL THAT DOES NOT IMPLICATE THE SOCK DRYING EXPERIMENT DOES NOT ALLOW THEM TO GET INTO THAT SOCK DRYING EXPERIMENT WHICH IS PROPERLY RULED TO BE IRRELEVANT BECAUSE OF SUCH -- OF SUCH LACK OF SIMILARITY. THE REASON THAT SOCK DRYING EXPERIMENT WAS INADMISSIBLE IS BECAUSE OF ITS LACK OF SUBSTANTIAL SIMILARITY AND THAT REASON STILL APPLIES. WE DON'T HAVE SIMILAR CONDITIONS THAT ARE REQUIRED FOR ITS RELEVANCE. IT IS NOT RELEVANT AND THAT IS WHY I POSED A HYPOTHETICAL. COUNSEL IS ENTITLED TO COUNTER THAT WITH HIS OWN HYPOTHETICAL. THAT IS FINE. AND THE HYPOTHETICAL THAT COUNSEL OBVIOUSLY COUNTERS WITH AND HAS GONE INTO AT LENGTH ALREADY IS THAT IF THE STAINS ARE ALREADY DRIED, THEN IT COULD NOT HAVE OCCURRED IN THAT FASHION, AND THAT IS THE APPROPRIATE METHOD. BUT TO GO INTO AN EXPERIMENT THAT WAS PROPERLY RULED IRRELEVANT BECAUSE NO EFFORT WAS EVEN MADE, ADMITTEDLY NOT MADE, TO REPLICATE THE CONDITIONS, HAS NO BASIS IN FACT AT ALL AND NO BASIS IN LAW. MR. NEUFELD: I'M NOT GOING TO ASK HIM ABOUT THE SOCK DRYING EXPERIMENT. HE IS GOING TO BASE HIS OPINION BASED ON HIS FORTY YEARS' OF EXPERTISE IN DRYING TIMES. MS. CLARK: THAT IS AGAIN THE SAME PROBLEM, EVEN WORSE. THE COURT: ALL RIGHT. THE COURT'S PREVIOUS RULINGS STANDS. MR. NEUFELD: OKAY.