Sidebar: judge assignment

📄 Sidebar: judge assignment — Tuesday, August 8, 1995

Address:

C:\DEPT103\CRIMINAL\1995\AUG\8\SIDEBAR-JUDGE-ASSIGNMENT.DOC

TRIAL

▲ Day 131 of 167

Date: Tuesday, August 8, 1995 • Utterances: 40

Judge Ito disclosed at the bench that his wife is the commanding officer of the LAPD Internal Affairs division, and recused himself from ruling on whether Internal Affairs must produce records in response to a subpoena duces tecum. He agreed to refer the matter to another judge, citing both actual and apparent conflict of interest. The sidebar also touched on upcoming witness scheduling, including defense plans to call Gascon, Savage, and Bosco, and a possible 402 motion regarding Dr. Mullis.

# 1 (The following proceedings were held at the bench:)

# 2 MR. COCHRAN:

Can I get Jerry up here?

# 3 THE COURT:

Sure.

# 4 (Brief pause.)

# 5 THE COURT:

Let me wait for Mr. Uelmen. Gentlemen, my apologies to you beforehand for not having contemplated this issue deeply. Sometimes arguments over SDT's sort of go on the back burner in light of what goes on in this case on a daily basis. I was just advising Mr. Cochran, reminding him again that my wife is the--was the Captain II Chief Investigator of Internal Affairs and is now the Captain III, the commanding officer of that particular division. And I think it would perhaps be more appropriate if we sent this hearing on whether or not Internal Affairs has to produce certain records, perhaps should be heard by a different Judge, the issue of the--of the validity of the SDT or the compliance with the evidence code sections. I would feel more comfortable if we have another Judge do this, and I apologize to you right now for not having contemplated this earlier, but I think--scheduling wise, because I know, Dean Uelmen, you have Stanford and riding the shuttle is not the greatest thing in the world. And Mr. Walsh, I know you have other things to do besides involve yourself with this.

# 6 MR. WALSH:

Right.

# 7 THE COURT:

I know that time is of the essence. We need to get this resolved pretty quickly, but I do think that it ought to be referred.

# 8 MR. UELMEN:

Is another Judge available?

# 9 THE COURT:

You know, having just contemplated this, I was thinking about Tracie Savage and Mark Fuhrman and a few other things that I have to worry about this week.

# 10 MR. WALSH:

I don't have any problem with what you are suggesting, but I would just like to note for the record that Internal Affairs has taken pains to make sure that Captain York does not become part of any investigation touching on this case. But notwithstanding that, I respect your sensibilities.

# 11 THE COURT:

Notwithstanding that, it still might have the appearance, so I would prefer we have another Judge take over.

# 12 MR. COCHRAN:

We agree and I wanted Jerry to get a chance to respond.

# 13 MR. UELMEN:

Our position of course is that this issue is related to the Tracie Savage question and should be resolved before your Honor rules on the Tracie Savage issue.

# 14 THE COURT:

Okay. That is why I said time is of the essence far as getting this done.

# 15 MR. COCHRAN:

Can we check?

# 16 THE COURT:

Why don't we do this. Why don't we take our recess at this point, since it is a quarter to noon right now. Let me check with the supervising Judge and see if there is anybody available to hear this. Mr. Walsh, you told me you had a problem this afternoon?

# 17 MR. WALSH:

No, I have no problem with this afternoon.

# 18 THE COURT:

All right. Let me see if I can find somebody clear to hear this.

# 19 MR. COCHRAN:

All right. We are going to be meeting on the other issue. There may or may not be a 402 motion regarding Dr. Mullis.

# 20 MS. CLARK:

Yes.

# 21 MR. COCHRAN:

We will make a decision regarding that. We could either leave early today, or not having any witnesses today, or have him on. I think that is kind of where we are at this point.

# 22 THE COURT:

Okay.

# 23 MR. COCHRAN:

We will focus our attention on this motion. The Court could then have an opportunity to get the result of this motion and perhaps work on this Savage motion, because we can't call certain witness--you know, we want Gascon, too. You got the message on that?

# 24 (Nods head up and down.)

# 25 MR. COCHRAN:

We don't have to serve him, I presume, do we?

# 26 MS. CLARK:

You want Gascon?

# 27 MR. COCHRAN:

He is on our witness list.

# 28 MS. CLARK:

For what?

# 29 MR. COCHRAN:

You will find out. We want to give you notice we want him with Savage, Bosco, Gascon.

KEY QUOTE

# 30 MS. CLARK:

Assuming it is deemed admissible.

# 31 MR. COCHRAN:

Yes, yes.

# 32 MS. CLARK:

There would be an independent 402 on him.

# 33 MR. COCHRAN:

That is fine. I'm just telling you now.

# 34 MS. CLARK:

Well, that is going to be after--that is going--

# 35 THE COURT:

Well, let's resolve this first.

# 36 MR. COCHRAN:

I just want to give you notice.

# 37 THE COURT:

How about if I direct all counsel then to return at 1:30, and in the meantime I will go talk with the supervising Judge.

# 38 MR. WALSH:

I will come back also.

# 39 MR. COCHRAN:

We are going to be here and we can get word to you if there is a court.

# 40 THE COURT:

Come back at 1:30.

Temperature

procedural

Key Quotes (4)

Lance A. Ito

my wife is the--was the Captain II Chief Investigator of Internal Affairs and is now the Captain III, the commanding officer of that particular division

Ito's disclosure of his wife's role as head of LAPD Internal Affairs is the central conflict-of-interest that drives the entire proceeding.

Richard Walsh

Internal Affairs has taken pains to make sure that Captain York does not become part of any investigation touching on this case. But notwithstanding that, I respect your sensibilities.

Walsh (representing Internal Affairs) acknowledges the recusal is appropriate even while noting procedural safeguards were already in place.

Lance A. Ito

it still might have the appearance, so I would prefer we have another Judge take over

Ito explicitly invokes the appearance-of-impropriety standard, not just actual bias, as grounds for referral.

Johnnie Cochran

We want to give you notice we want him with Savage, Bosco, Gascon.

Defense signals an expanding witness strategy around the Tracie Savage leak story, adding Chief Gascon to the list.

Evidence (1)

Informal

Subpoena duces tecum (SDT) to LAPD Internal Affairs for records

discussed — validity and compliance referred to another judge

Notable Exchanges (3)

Lance A. Ito•Richard Walsh•Gerald Uelmen•Johnnie Cochran

Ito discloses his wife's command role in Internal Affairs and proposes recusal; all parties accept without objection.

collegial, measured

Johnnie Cochran•Marcia Clark

Cochran gives informal notice that the defense intends to call Gascon alongside Savage and Bosco; Clark presses for the purpose and notes a separate 402 hearing would be required.

strategic

Gerald Uelmen•Lance A. Ito

Uelmen argues the Internal Affairs SDT issue is linked to the Tracie Savage ruling and must be resolved first; Ito agrees time is of the essence.

strategic

Light Moments (2)

Lance A. Ito

Ito apologizes for 'not having contemplated this issue deeply,' joking that SDT arguments 'go on the back burner' given the daily chaos of the trial.

Lance A. Ito

Ito sympathizes with Uelmen about 'riding the shuttle' between Stanford and Los Angeles, acknowledging the inconvenience of rescheduling.

Witness Demeanor

(Brief pause.)

(Marcia Clark nods head up and down.)

Objections

None recorded

Proceeding 7250 • 40 utterances

Criminal Trial

Department 103