Sidebar (3)

📄 Sidebar (3) — Wednesday, February 15, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\15\SIDEBAR-3-.DOC

TRIAL

▲ Day 19 of 167

◀ Direct examination of Dave Rossi Jury excused for exhibit review ▶

Date: Wednesday, February 15, 1995 • Utterances: 33

Defense counsel Bailey requested a large diagram of the Bundy-to-alley walkway to ask the witness about footprint locations, but the exhibit could not be immediately located. The sidebar also became an airing of procedural grievances: Clark complained Bailey was distracting her paralegal during redirect, and Darden complained the defense had used an unshared manual without advance notice to the prosecution.

# 1 MR. BAILEY:

MAY WE APPROACH, YOUR HONOR?

# 2 THE COURT:

CERTAINLY.

# 3 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

# 4 THE COURT:

AT SIDE BAR.

# 5 MR. BAILEY:

I RECALL, YOUR HONOR, FROM THE TIME THAT WE WERE APPROVING GRAPHICS BEFORE THE TRIAL BEGAN, A LARGE SKETCH DRAWING BY SOME ENGINEER, I GUESS, OF BUNDY TO ALLEY WALKWAY LAID OUT. MR. FAIRTLOUGH THOUGHT IT WAS UP IN THAT GROUP OF EXHIBITS; IT IS NOT. I SIMPLY WANTED TO ASK THE WITNESS AS A FINAL QUESTION WHETHER HE SAW THE FOOTPRINTS BY INDICATING ON THE DIAGRAM, IF IT EXISTS.

# 6 THE COURT:

DO WE HAVE THAT EXHIBIT DOWN HERE?

# 7 MR. COCHRAN:

IT HAS NOT MARKED YET, BUT IT IS HERE. IT WAS HERE.

# 8 MS. CLARK:

COUNSEL IS FREE TO GET HIS OWN. I HAVEN'T MARKED IT AND I AM NOT USING IT WITH THIS WITNESS. I THINK WHAT COUNSEL IS REFERRING TO, IT IS AN OVERALL -- IT IS A -- IT IS ILLUSTRATIVE. IT IS NOT TO SCALE. IT IS SIMPLY AN AREA WHERE SHOEPRINTS -- I THINK SHOEPRINTS AND BLOOD DROPS ARE SHOWN. I'M NOT EVEN SURE WHAT HE IS TALKING ABOUT. I DON'T THINK THAT WAS COMPLETED ACTUALLY.

# 9 MR. COCHRAN:

CAN WE HAVE A MINUTE TO TAKE A LOOK FOR IT? I THINK I CAN HELP HIM FIND IT.

# 10 MR. BAILEY:

ARE WE GOING TO GO, AT ANY RATE, THROUGH TO 12:00?

# 11 THE COURT:

LET ME TOSS THE JURORS IN THE BACK.

# 12 MR. COCHRAN:

WHATEVER YOUR PLEASURE, BUT IT WILL ONLY TAKE A MINUTE. I KNOW WHAT HE IS TALKING ABOUT.

# 13 THE COURT:

BEFORE YOU GUYS START FLIPPING STUFF AROUND, YOU KNOW, THE JURORS CAN SEE, LET ME TOSS THEM THIS BACK AND WE WILL DO THAT.

# 14 MS. CLARK:

MAY I ASK ONE FAVOR, YOUR HONOR?

# 15 THE COURT:

SURE.

# 16 MS. CLARK:

DURING MY REDIRECT MR. BAILEY WAS BACK THERE TALKING TO JONATHAN FAIRTLOUGH AND DISTRACTING HIM WHEN HE NEEDS TO HELP ME.

# 17 THE COURT:

WHICH IS WHY I ASKED HIM TO GO TAKE A SEAT.

# 18 MS. CLARK:

PRIOR TO THAT I HAD ASKED COUNSEL TO SIT DOWN AND HE REFUSED.

# 19 MR. BAILEY:

I WAS TRYING TO LOCATE AN EXHIBIT, AVOID THE DELAY WE NOW SUFFER.

KEY QUOTE

# 20 MR. DARDEN:

MAY I MAKE A REQUEST?

# 21 THE COURT:

SURE.

# 22 MR. DARDEN:

IT IS COMMON COURTESY THAT WE SHOW COUNSEL EXHIBITS BEFORE WE MARK THEM AND THAT HASN'T HAPPENED THIS MORNING. I THINK THAT IS A LITTLE UNFAIR. AND WE ARE NOT GOING TO DO THAT TO YOU GUYS.

KEY QUOTE

# 23 THE COURT:

ARE YOU REFERRING TO THE MANUAL PAGES?

# 24 MR. DARDEN:

YEAH.

# 25 THE COURT:

I NOTICED YOU HAD THE MANUAL THERE.

# 26 MR. DARDEN:

SO IF HE IS GOING TO MARK SOMETHING, JUST LET US SEE IT BEFORE YOU EXHIBIT IT TO THE WITNESS.

# 27 THE COURT:

MR. DARDEN, THE REASON I WASN'T REAL CONCERNED ABOUT THAT IS I NOTICE THAT YOU HAVE A COPY OF THE MANUAL AT COUNSEL TABLE.

# 28 MR. DARDEN:

ALL 400 PAGES.

# 29 MS. CLARK:

HOW DO WE KNOW WHAT HE IS TALKING ABOUT.

# 30 THE COURT:

I ASSUMED THAT YOU --

# 31 MS. CLARK:

AT LEAST GIVE US A PAGE NUMBER.

KEY QUOTE

# 32 MR. COCHRAN:

BOTH SIDES HAVE DONE THIS AND WE DIDN'T GET PHOTOGRAPHS EITHER. WE ALWAYS WANT TO DO -- WE ALWAYS WANT TO DO THAT.

# 33 THE COURT:

THANK YOU, THANK YOU.

KEY QUOTE

Temperature

tense

Key Quotes (4)

F. Lee Bailey

I WAS TRYING TO LOCATE AN EXHIBIT, AVOID THE DELAY WE NOW SUFFER.

Bailey deflects Clark's complaint about distracting Fairtlough by framing his own behavior as efficient — a classic Bailey pivot.

Christopher Darden

IT IS COMMON COURTESY THAT WE SHOW COUNSEL EXHIBITS BEFORE WE MARK THEM AND THAT HASN'T HAPPENED THIS MORNING.

Prosecution flags a discovery/disclosure issue with a defense manual used without prior notice.

Lance A. Ito

THANK YOU, THANK YOU.

Ito cuts off Cochran's tu quoque rebuttal, ending the sidebar — characteristic of his no-nonsense bench management.

Marcia Clark

AT LEAST GIVE US A PAGE NUMBER.

Illustrates the prosecution's frustration: 400-page manual used against them with no specificity provided in advance.

Evidence (2)

Informal

Large engineering sketch/diagram of the Bundy crime scene to alley walkway, showing shoeprints and blood drops — described as illustrative and not to scale

sought by Bailey for witness examination; could not be immediately located; Clark states she has not marked it

Informal

A manual (approximately 400 pages), apparently used by Bailey with the witness during examination

Darden objects that prosecution was not given advance notice before it was used with the witness

Notable Exchanges (3)

Marcia Clark•F. Lee Bailey

Clark complains Bailey was standing behind her table talking to her paralegal Jonathan Fairtlough during redirect, distracting him. Bailey says he was searching for an exhibit.

adversarial

Christopher Darden•Lance A. Ito

Darden raises the issue of the defense using an unshared manual without prior disclosure. Ito notes the prosecution had a copy at their table, suggesting he expected them to follow along themselves.

procedural

Johnnie Cochran•Lance A. Ito

Cochran attempts a both-sides rebuttal ('we didn't get photographs either') to Darden's disclosure complaint; Ito cuts him off with 'Thank you, thank you.'

strategic

Light Moments (1)

Lance A. Ito

Ito says he will 'toss the jurors in the back' — casual phrasing for dismissing the jury panel while attorneys search for the exhibit.

Objections

None recorded

Proceeding 4849 • 33 utterances

Criminal Trial

Department 103