📄 Sidebar: trial procedure — Friday, April 14, 1995
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C:\DEPT103\CRIMINAL\1995\APR\14\SIDEBAR-TRIAL-PROCEDURE.DOC
TRIAL
▲ Day 57 of 167

Sidebar: trial procedure

Date: Friday, April 14, 1995 • Utterances: 24
Robert Shapiro raised a formal objection on the record about perceived judicial bias, arguing that Judge Ito reprimanded defense attorneys Scheck and Neufeld publicly in front of the jury while taking prosecutors aside privately for sidebar corrections. Darden pushed back with characteristic wit, and Ito deflected with a joke about both sides feeling mistreated. The bulk of the sidebar then turned to a discovery matter: Darden disclosed that the prosecution had previously submitted audiotapes of Kato Kaelin speaking with his book author Michael Elliott to the court under seal, and agreed to release both the tapes and related documents (book contract, proposal, transcripts) to the defense.
1 (The following proceedings were held at the bench:)
2 THE COURT:

All right. We're over at the sidebar.

3 MR. SHAPIRO:

Your Honor, I would like to put some observations on the record regarding the preference that the Court is paying towards the Prosecution when they violate the Court rulings and the harsh tones that the Court uses, particularly towards Mr. Scheck and Mr. Neufeld when they do some things. And I don't believe that the Court is aware of it. The fact is very clear to me as an observer in watching that when it's time to caution the Prosecution, your Honor calls them up to sidebar off the record and lets tempers calm down and put things in perspective. However, when it comes to Mr. Scheck or Mr. Neufeld, it's done directly in front of the jury and it comes very one-sided from my point of view, and I wanted the record to reflect that.

4 MS. CLARK:

First of all, there should only be two lawyers here. So somebody gets to sit down; isn't that right? Either that or ask Mr. Goldberg to join us.

5 MR. DARDEN:

I have something I wanted to put on the record that doesn't relate directly to that.

6 THE COURT:

Do you have any comment as to that observation?

7 MR. DARDEN:

May I have one moment?

8 (Discussion held off the record between the Deputy District Attorneys.)
9 MR. DARDEN:

Your Honor, I think perhaps Mr. Shapiro should go out in the real world and hear the public's perception of how the Prosecution is being treated as opposed to the Defense. I think most people feel the Court defers more to the Defense than to us. But, you know, that's a non issue as far as I'm concerned. It's Good Friday, and though I will be working, I would just as soon put these nasty thoughts behind us. And do we have to fight over every petty little issue?

KEY QUOTE
10 THE COURT:

Well, I'm glad to see both sides feel that they're being treated badly by the Court. So that means it's pretty even.

KEY QUOTE
11 MR. DARDEN:

There's another issue if I may. As the Court will recall, I delivered to the Court several audiotapes.

12 THE COURT:

Yes.

13 MR. DARDEN:

And I believe the date was--I'm not sure, but I believe it was March 31. But there is a record and I ask that those audiotapes--I have no objection to the Court releasing those tapes to the Defense. And I'll state that they are taped conversations between Mr. Kato Kaelin and his book author. In any event, these tapes relate--

14 THE COURT:

Let's bring Mr. Douglas up to speed. There was a 1054.7 in camera hearing with the Prosecution. They disclosed to the Court the existence of certain tape recordings, excerpts of a statement by Kato Kaelin to an apparent book author. They were investigating Mr. Kaelin for the possibility of a number of things I would imagine and asked that they be allowed to complete their investigation before disclosing that to the Defense. And Mr. Darden?

15 MR. DARDEN:

And as I recall, I think I declined to suggest that Mr. Kaelin was a criminal suspect at that point, but I did ask leave of the Court to have the record sealed so that I could attempt to obtain other documents that related to the audiotapes including a book contract.

16 THE COURT:

Excuse me just a second.

17 (Brief pause.)
18 MR. DARDEN:

Including the contract between Mr. Kaelin and Mr. Elliott and St. Martens Press as well as the book proposal that was apparently submitted on our videotape. And so we have obtained those items and not pursuant to an SDT, and I will turn those items over to the Defense on Monday. As for the audiotapes, I have no objection to the Court releasing the tapes. We surrender them to the Court.

19 THE COURT:

Are those copies?

20 MR. DARDEN:

Those are the--both of the original ones, but there are copies. The originals are apparently with the book author, Michael Elliott, and we have copies. So I have no objection if you give your copies to the Defense so they can copy them.

21 THE COURT:

All right.

22 MR. DARDEN:

At their expense. And I will turn over to them on Monday the contract which is not signed and the book proposal. We may have one or two transcripts of a couple of the tapes; and if those are in existence as yet, we will turn those over on Monday as well. And those apply only to certified transcripts by certified Court reporters.

23 THE COURT:

All right.

24 MR. DOUGLAS:

Thank you.

Temperature

tense

Key Quotes (4)

Robert Shapiro
when it's time to caution the Prosecution, your Honor calls them up to sidebar off the record and lets tempers calm down and put things in perspective. However, when it comes to Mr. Scheck or Mr. Neufeld, it's done directly in front of the jury
A direct, on-the-record accusation of judicial favoritism toward the prosecution — a bold move by Shapiro aimed at creating an appellate record.
Christopher Darden
I think perhaps Mr. Shapiro should go out in the real world and hear the public's perception of how the Prosecution is being treated as opposed to the Defense. I think most people feel the Court defers more to the Defense than to us.
Darden deflects Shapiro's bias claim by inverting it — invoking public perception rather than legal argument, characteristic of his rhetorical style.
Lance A. Ito
I'm glad to see both sides feel that they're being treated badly by the Court. So that means it's pretty even.
Ito defuses the tension with dry humor, effectively closing the bias argument without engaging it substantively.
Christopher Darden
It's Good Friday, and though I will be working, I would just as soon put these nasty thoughts behind us. And do we have to fight over every petty little issue?
A rare moment of Darden stepping back from conflict, using the holiday as a rhetorical pivot to move past Shapiro's complaint.

Evidence (4)

Informal
Audiotapes of Kato Kaelin speaking with book author Michael Elliott, previously submitted to the court under seal via 1054.7 in camera hearing
Released to defense
Informal
Book contract between Kato Kaelin and Michael Elliott / St. Martin's Press (unsigned)
Prosecution agreed to turn over to defense on Monday
Informal
Book proposal submitted by Kaelin/Elliott
Prosecution agreed to turn over to defense on Monday
Informal
Certified transcripts of select audiotapes (if in existence)
Prosecution agreed to turn over to defense on Monday

Notable Exchanges (2)

Robert ShapiroChristopher DardenLance A. Ito
Shapiro formally complained on the record about unequal treatment of defense vs. prosecution by the court; Darden countered with public perception argument; Ito neutralized with a quip.
strategic
Christopher DardenCarl DouglasLance A. Ito
Darden disclosed and surrendered the Kaelin tapes and related book deal documents to the court for release to the defense, with Ito briefing Douglas on the prior sealed 1054.7 proceeding.
cooperative

Light Moments (3)

Lance A. Ito
Ito jokes that since both sides feel mistreated, the court must be doing something right.
Christopher Darden
Darden invokes Good Friday and asks whether they have to 'fight over every petty little issue,' briefly playing peacemaker.
Marcia Clark
Clark immediately points out that too many lawyers are at the sidebar and someone needs to sit down.

Credibility Attacks (1)

⚔ Kato Kaelin
Investigation into potential criminal conduct / impeachment material
The prosecution had been investigating Kaelin using tapes of his conversations with a book author, apparently exploring whether he could be charged with something — though Darden declined to formally call him a criminal suspect. The tapes and book deal documents are now being turned over to the defense, potentially as impeachment material for both sides.

Objections

None recorded
Proceeding 5714 • 24 utterances
Criminal Trial
Department 103
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📂 APR 14, 1995 📄 Sidebar: trial procedure
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