Jury excused for exhibit review

📄 Jury excused for exhibit review — Wednesday, February 15, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\15\JURY-EXCUSED-FOR-EXHIBIT-REVIE.DOC

TRIAL

▲ Day 19 of 167

◀ Sidebar (3) Cross-examination of Dave Rossi (part 3) ▶

Date: Wednesday, February 15, 1995 • Utterances: 47

The jury was sent out briefly so Judge Ito could resolve a dispute over a prosecution crime scene diagram that Bailey wanted to use for cross-examination. Bailey sought to use a prosecution scale drawing of the Bundy property to show the location of 'migrant footprints,' but the prosecution said the diagram wasn't in the courtroom and was still being modified. The exchange ended with Ito directing everyone to proceed without the exhibit.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

# 2 THE COURT:

ALL RIGHT. LADIES AND GENTLEMEN, I'M GOING TO ASK YOU TO STEP BACK IN THE JURY ROOM. THIS WILL BE FIVE MINUTES, PROMISE, SO YOU CAN JUST RELAX A LITTLE, STRETCH YOUR LEGS, USE THE FACILITIES THERE IF YOU NEED TO. I. NEED TO TAKE A LOOK AT A FEW EXHIBITS OUT OF YOUR PRESENCE, SO ABOUT FIVE MINUTES. IF YOU WILL JUST STEP BACK INTO THE JURY ROOM, PLEASE.

# 3 (AT 11:24 A.M. THE JURY WAS EXCUSED AND THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

# 4 THE COURT:

SERGEANT ROSSI, YOU CAN STEP DOWN THERE AND STRETCH YOUR LEGS.

# 5 MR. BAILEY:

IF IT PLEASE THE COURT.

# 6 THE COURT:

COUNSEL, DO YOU WANT TO PULL OUT THE EXHIBIT?

# 7 MR. BAILEY:

45-F, THEIR EXHIBIT. THE FACT THAT THEY HAVEN'T USED IT I DON'T THINK BARS MY USE.

# 8 MR. DARDEN:

IF IT WAS MARKED 45-F IT HAS BEEN INTRODUCED.

# 9 (DISCUSSION HELD OFF THE RECORD BETWEEN DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)

# 10 THE COURT:

ALL RIGHT.

# 11 MR. BAILEY:

CAN WE LEARN FROM MR. FAIRTLOUGH IF IT EXISTS?

# 12 MR. FAIRTLOUGH:

YES, YOUR HONOR, HOWEVER, BUT THIS PARTICULAR DIAGRAM HAS NOT BEEN DECIDED BY THE PEOPLE WHETHER OR NOT IT WILL BE USED BY THE WITNESS SO IT HAS NOT BEEN MARKED.

# 13 THE COURT:

DO WE HAVE IT HERE IN THE COURTROOM?

# 14 MR. FAIRTLOUGH:

WE DON'T HAVE IT HERE.

# 15 MR. HARRIS:

THE ENTIRE BUNDY AND CONDO AND ONE WALKWAY TO THE OTHER WALKWAY.

# 16 (DISCUSSION HELD OFF THE RECORD BETWEEN DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)

# 17 THE COURT:

ALL RIGHT. IS IT HERE IN THE COURTROOM?

# 18 MR. DARDEN:

WE WILL SELL IT TO THEM, YOUR HONOR.

KEY QUOTE

# 19 THE COURT:

I'M SURE YOU WILL. IS IT HERE IN THE COURTROOM? SIMPLE QUESTION. YES OR NO.

KEY QUOTE

# 20 MS. CLARK:

NO.

# 21 THE COURT:

NOT IN THE COURTROOM.

# 22 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

# 23 MR. BAILEY:

I HAVE SEEN IT IN THIS COURTROOM.

# 24 MR. DARDEN:

WE MODIFY THESE BOARDS FROM TIME TO TIME BEFORE WE PRESENT THEM. I HAVE NO IDEA OF WHAT BOARD THEY ARE TALKING ABOUT AND I HAVEN'T APPROVED THE USE OF THE BOARD. IF THEY WANT TO PAY FOR THE BOARD --

# 25 THE COURT:

NO, WE DON'T.

# 26 MS. CLARK:

WHAT COUNSEL REFERS TO IS BEING WORKED ON. IT HASN'T BEEN COMPLETED. IT IS -- IT IS IN THE PROCESS OF HAVING PHOTOGRAPHS ADDED.

# 27 THE COURT:

WELL, SIMPLE QUESTION. IT IS NOT HERE, CORRECT?

# 28 MS. CLARK:

CORRECT.

# 29 MR. BAILEY:

IT WAS COMPLETED WHEN I SAW IT.

# 30 MS. CLARK:

NO.

# 31 MR. BAILEY:

AT LEAST FOR THE PURPOSES FOR WHICH I WOULD LIKE TO USE IT WITH THIS WITNESS.

# 32 THE COURT:

WELL, MR. BAILEY, IT IS NOT HERE, AND WE ARE GOING TO FINISH, I HOPE.

# 33 MR. BAILEY:

ALL RIGHT. MAY WE SUSPEND THIS WITNESS UNTIL WE HAVE A CHANCE TO OBTAIN THE DOCUMENT? I WOULD LIKE HIM TO SHOW WHERE THESE MIGRANT FOOTPRINTS WERE LOCATED.

# 34 THE COURT:

I ASSUME THAT THE DEFENSE ALSO HAS THEIR OWN SCALE DRAWING OF THE SCENE AVAILABLE TO THEM OR WE CAN ASK ONE OF THE T.V. STATIONS FOR THEIR 3-D MOCK-UPS OF THE CRIME SCENE.

KEY QUOTE

# 35 MR. BAILEY:

I THINK WE SO ADMIRED THE PROSECUTION'S HANDIWORK WE HAD CHOSEN TO RELY ON IT.

KEY QUOTE

# 36 MS. CLARK:

YOUR HONOR, WE TURNED OVER --

# 37 THE COURT:

COUNSEL, I ASSUME BOTH SIDES HAVE A SCALE DRAWING ACCESSIBLE TO THEM. IF YOURS WAS AVAILABLE IMMEDIATELY AND THERE WAS NO OBJECTION, WE WOULD USE YOURS. YOURS ISN'T HERE. WE WILL PROCEED. ALL RIGHT. HAVE WE GIVEN THE JURORS FIVE MINUTES?

# 38 MR. DARDEN:

I THINK WE STILL HAVE TWO MINUTES LEFT, DON'T WE?

# 39 THE COURT:

LOOKS THAT WAY.

# 40 MR. DARDEN:

I WILL TAKE MY TWO MINUTES, YOUR HONOR.

# 41 (BRIEF PAUSE.)

# 42 THE COURT:

ALL RIGHT. DEPUTY HIGGINS, LET'S HAVE THE JURY, PLEASE.

# 43 MR. BAILEY:

IF IT PLEASES THE COURT, I WILL ASK TO SUSPEND THIS WITNESS AND NOT EXCUSE HIM.

# 44 THE COURT:

ALL RIGHT. LET'S FINISH WITH HIM, WHAT WE CAN DO.

# 45 MR. BAILEY:

THAT IS THE ONLY QUESTION I HAD LEFT.

# 46 THE COURT:

ALL RIGHT.

# 47 MR. BAILEY:

SO I HAVE NO RECROSS WITHOUT THE EXHIBIT AND I INFORMED THE COURT THAT ACCORDING TO --

Temperature

procedural

Key Quotes (4)

Christopher Darden

WE WILL SELL IT TO THEM, YOUR HONOR.

Sarcastic quip about handing over the prosecution exhibit to defense; drew an immediate dry comeback from Ito.

Lance A. Ito

I ASSUME THAT THE DEFENSE ALSO HAS THEIR OWN SCALE DRAWING OF THE SCENE AVAILABLE TO THEM OR WE CAN ASK ONE OF THE T.V. STATIONS FOR THEIR 3-D MOCK-UPS OF THE CRIME SCENE.

Ito's sardonic suggestion to use TV mock-ups cuts through the bickering and signals his impatience.

F. Lee Bailey

I THINK WE SO ADMIRED THE PROSECUTION'S HANDIWORK WE HAD CHOSEN TO RELY ON IT.

Witty deflection explaining why defense had no independent diagram; draws a laugh without conceding ground.

Lance A. Ito

IS IT HERE IN THE COURTROOM? SIMPLE QUESTION. YES OR NO.

Ito cutting through lawyer hedging to get a direct answer from the prosecution.

Evidence (2)

People's 45-F

Scale diagram of the Bundy crime scene showing walkways; disputed whether it had been formally introduced

discussed, unavailable — Bailey sought to use it to show location of 'migrant footprints'

Informal

A separate unmarked prosecution diagram of Bundy and condo walkways, described as still being modified with photographs added

discussed, not in courtroom, not yet marked as exhibit

Notable Exchanges (3)

F. Lee Bailey•Marcia Clark•Mr. Fairtlough

Bailey claimed he had seen the prosecution diagram in the courtroom and considered it complete; Clark insisted it was still being modified; Fairtlough confirmed it hadn't been designated for use with the current witness.

strategic

Christopher Darden•Lance A. Ito

Darden joked about 'selling' the exhibit to defense; Ito shut it down immediately and demanded a simple yes/no on whether it was in the courtroom.

light

F. Lee Bailey•Lance A. Ito

Bailey asked to suspend the witness rather than excuse him so he could later use the diagram; Ito directed the court to proceed with what was available.

procedural

Light Moments (4)

Christopher Darden

Darden offered to 'sell' the prosecution diagram to the defense, prompting Ito's dry 'I'm sure you will' before redirecting.

Lance A. Ito

Ito suggested asking TV stations for their 3-D crime scene mock-ups as an alternative to the missing exhibit.

F. Lee Bailey

Bailey explained that defense had no independent diagram because they 'so admired the prosecution's handiwork' they chose to rely on it.

Christopher Darden

Darden deadpanned that he would 'take my two minutes' of the jury break when told time was almost up.

Objections

None recorded

Proceeding 4850 • 47 utterances

Criminal Trial

Department 103