THE RECORD SHOULD REFLECT THAT THE DEFENDANT IS PRESENT BEFORE THE COURT WITH HIS COUNSEL, MR. SHAPIRO, MR. COCHRAN, MR. DOUGLAS, MR. BAILEY, PEOPLE REPRESENTED BY MISS CLARK AND MR. DARDEN. THE JURY IS NOT PRESENT. MR. DOUGLAS, YOU HAD TWO MATTERS YOU WANTED TO ADDRESS THE COURT ON?
I WOULD, YOUR HONOR. I JUST WOULD LIKE TO STATE FOR THE RECORD THAT YESTERDAY, I TURNED OVER TO THE PROSECUTION COPIES OF TWO SEPARATE VIDEOTAPES WHICH I BELIEVE COMPLETES MY OBLIGATION OF TURNING OVER COPIES OF VIDEOTAPES THAT WE CULLED TO CREATE THE MONTAGE OF DIFFERENT CRIME SCENE CONTAMINATION. THIS MORNING, YOUR HONOR, THOUGH I HAD IT YESTERDAY AND FORGOT TO TURN IT OVER -- AND I ALSO TURNED OVER YESTERDAY A STATEMENT OF REGGIE MACKENZIE, WHICH REFLECTS A RECENT TELEPHONE INTERVIEW. THIS MORNING, YOUR HONOR, CONSISTENT WITH THE COURT'S ORDERS, I TURNED OVER THE STATEMENT OF THE HONORABLE DELBERT WONG AND I ALSO TURNED OVER AN UPDATED SUPPLEMENTAL WITNESS LIST PRIMARILY INCLUDING THOSE DNA PEOPLE THAT HAD BEEN INADVERTENTLY OMITTED FROM THE EARLIER LIST, AND DR. FISCHMAN AND DR. RIECHARDT AND HOWARD WEITZMAN ARE INCLUDED ON THE NAMES ON THAT LIST.
THE SECOND MATTER DEALS WITH, YOUR HONOR, AS WILL LIKELY BE THE CASE, EACH EVENING WHEN I RETURN FROM COURT OR WHEN WE RETURN FROM COURT, WE HAVE CONVERSATIONS WITH DEAN UELMEN AND PROFESSOR DERSHOWITZ. AND I HAD CONVERSATIONS WITH THEM BOTH LAST NIGHT AND AGAIN THIS MORNING, AND A COUPLE OF POINTS PROFESSORS DERSHOWITZ AND UELMEN SPOKE TO ME ABOUT THAT THEY WANTED ME TO STRESS TO THE COURT. AND THAT DEALS WITH, YOUR HONOR, THE STATE OF THE CURRENT RECORD AS A RESULT OF A DECISION THAT I THINK, WITH ALL DUE RESPECT, WAS MADE INCORRECTLY CONCERNING THE IMPLICATIONS OF HAVING EXCISED A PORTION OF MR. SIMPSON'S ALLEGED STATEMENT ABOUT A POLYGRAPH. AS THE COURT UNDERSTANDS, THE STATEMENT ABOUT THE DREAMS FOLLOWED SOME REFERENCE TO A POLYGRAPH. AND UNDER ONE PARTICULAR SCENARIO, MR. SIMPSON IS INNOCENT. AND THE QUESTION IS RAISED ABOUT TAKING A POLYGRAPH, AND MR. SIMPSON SAYS, "I'M INNOCENT, BUT I'M WARY ABOUT TAKING A POLYGRAPH BECAUSE I'VE BEEN HAVING DREAMS ABOUT KILLING MISS NICOLE." ASSUME FOR THE SAKE OF MY ARGUMENT THAT THAT IS AN ACCURATE REFLECTION OF WHAT OCCURRED. THE STATEMENT ABOUT -- AND THAT IT WAS JOKINGLY MADE, AS MR. SHIPP SUGGESTED, AND IN FACT, HE ALSO SAYS THAT THERE WAS A CHUCKLE BEFORE TALKING ABOUT THE DREAMS. WHEN THE STATEMENT IS TAKEN IN THAT CONTEXT, IN THE CONTEXT OF REFERENCE TO A POLYGRAPH, IT SAYS, I'M INNOCENT, BUT I'M AFRAID TO TAKE A POLYGRAPH BECAUSE I'VE BEEN HAVING THESE DREAMS AND I'M AFRAID THAT THESE DREAMS MAY CAUSE THERE TO BE A FALSE POSITIVE READING ON THE POLYGRAPH, AND THAT'S WHY I'M AFRAID TO TAKE A POLYGRAPH. THAT IS AN EXPLANATION THAT IS VERY CONSISTENT WITH INNOCENCE, AND THAT WOULD HAVE ENABLED US TO ARGUE A THEORY THAT WOULD HAVE BEEN CONSISTENT WITH MR. SIMPSON'S INNOCENCE. THE WAY THAT THE RECORD UNFOLDED HOWEVER IS FAR MORE SINISTER. AND AS THE COURT WILL RECALL, THERE WAS FIRST A QUESTION THAT WAS ASKED OF MR. SHIPP, THAT MR. SIMPSON RAISED THE ISSUE OF DNA. THEN MR. DARDEN LED HIM AND SAID, "WHAT WAS MR. SIMPSON'S NEXT RESPONSE," AND THE STATEMENT WAS, "WELL, HE SAID THAT, 'I'VE BEEN HAVING A LOT OF DREAMS ABOUT KILLING NICOLE LATELY.'" NOW, YOUR HONOR, BECAUSE WE HAVE HAD --
WELL, THE STATEMENT ABOUT THE DREAMS FOLLOWED THE STATEMENT ABOUT THE DNA, AND THE QUESTION WAS, HOW DID HE RESPOND OR WHAT WAS THE NEXT STATEMENT THAT WAS MADE IN RESPONSE, AND THERE WAS THIS IMMEDIATE LINKAGE OF THE DREAMS TO THE DNA. MY CONCERN AND MY PROBLEM AND PROFESSORS DERSHOWITZ' AND UELMEN'S PROBLEM IS THAT NOW, A STATEMENT THAT WE COULD HAVE POSSIBLY INTERPRETED FOR THE JURY IN A MANNER THAT WOULD HAVE BEEN CONSISTENT WITH INNOCENCE IS NOW GOING TO BE GIVEN TO THE JURY IN A MANNER THAT MAKES IT VERY SINISTER AND VERY FOREBODING; AND THAT JUST CAUSES TO EXEMPLIFY IF YOU WILL THE RICH PREJUDICE THAT HAS FLOWED FROM THE FACT THAT THE POLYGRAPH INFORMATION HAS BEEN WITHDRAWN AND FROM THE FACT THAT THERE HAS NOW BEEN THIS INCORRECT IF YOU WILL LINKAGE. IN ESSENCE, YOUR HONOR, IT IS A FALSE LINKAGE BECAUSE THE STATEMENT OF THE DREAMS DID NOT IMMEDIATELY FOLLOW THE STATEMENT OF THE DNA.
ALL RIGHT. LET ME ASK THE REPORTER, MADAM REPORTER, WHEN DO YOU ANTICIPATE THE TRANSCRIPT FROM YESTERDAY, THE PRECISE LANGUAGE, WILL BE AVAILABLE?
I NOW HAVE A QUANDARY, YOUR HONOR. I AM NOT PREPARED TO WAIVE REFERENCES TO A POLYGRAPH OR CONVERSATIONS ABOUT POLYGRAPH BECAUSE I FEAR THAT EVEN THOUGH MR. SIMPSON THROUGH HIS ATTORNEY ON JUNE THE 15TH WROTE A LETTER OFFERING OR ACCEPTING THE INVITATION FOR A POLYGRAPH SO LONG AS THE RESULTS WERE ADMITTED INTO EVIDENCE, THAT OPENS UP AN ENTIRE CAN OF WORMS THAT IN CONSULTATION WITH MY COLLEAGUES, WE'VE CHOSEN NOT TO WANT TO GET INTO. BUT I HAVE A QUANDARY, AND THE TYPICAL RESOLUTION OF MY PROBLEM, WHICH MIGHT BE TO OFFER A LIMITING INSTRUCTION, CREATES OTHER PROBLEMS BECAUSE WHAT IT SERVES TO DO IS TO MERELY HIGHLIGHT THE OFFENDING RELATIONSHIP ABOUT WHICH I COMPLAIN. I THINK WHAT HAS OCCURRED, HOWEVER, IS THAT AN UNTENABLE SITUATION HAS BEEN CREATED.
AN UNTENABLE SITUATION HAS BEEN CREATED, AND I THINK IT SHOULD BE CORRECTED. I THINK THAT IT SHOULD BE CLEARLY -- THAT I SHOULD BE ALLOWED CLEARLY TO STATE OR TO ASK MR. SHIPP THAT IN TRUTH AND IN FACT, THE STATEMENT ABOUT THE DREAMS DID NOT FOLLOW THE STATEMENT ABOUT DNA, THAT WHEN HE SAID YESTERDAY THAT IT DID, THAT WAS UNTRUE. AND I THINK --
NO, HE DIDN'T SAY THAT IT DID -- THE ORDER OF QUESTIONS WAS THAT GAVE THAT INFERENCE.
I BELIEVE, YOUR HONOR, EVEN STRONGER THAN THAT, AND I WOULD LIKE THE COURT FIRST TO MAKE SPECIFIC REFERENCE TO THE RECORD FIRST.
AS TO THAT -- THAT'S RIDICULOUS. THE WITNESS WAS ORDERED NOT TO SAY ANYTHING ABOUT THE REFERENCE TO THE POLYGRAPH, AND NOW WE ARE GOING TO GIVE AN INSTRUCTION TO THE JURY THAT FOR FOLLOWING THE COURT ORDERS, HE IS GOING TO BE CALLED A LIAR? THAT'S ABSURD. HE WAS ORDERED TO EXCISE THAT PORTION OF THE STATEMENT AND THAT IS WHAT HE DID AT THE COURT'S ORDER.
WELL, I THINK WHAT MR. DOUGLAS IS SAYING IS, THERE'S AN INFERENCE THAT ONE IS LINKED WITH THE OTHER. I AGREE WITH YOUR POINT THAT THE INSTRUCTION THAT SOMETHING WAS NOT TRUE IS A BIT STRONG. IT'S JUST THAT THE TESTIMONY MAY HAVE LEFT THAT INFERENCE, WHICH IS NOT CORRECT, THAT THERE WAS SOMETHING THAT INTERVENED BETWEEN THOSE TWO EVENTS.
WHICH I THINK YOU CAN EITHER CLEAR UP ON REDIRECT OR ON -- DURING CROSS, HOWEVER YOU WISH TO DO THAT. COUNSEL, WHILE YOU'RE AT IT, WHILE WE'RE TALKING ABOUT THIS PARTICULAR SUBJECT, WOULD YOU NEXT TIME WE HAVE A BREAK READ THE CASE OF PEOPLE -- EXCUSE ME -- STATE VERSUS WHITE AT 271 NORTH CAROLINA 391. I'M SURE YOUR RESEARCH ATTORNEYS CAN GET IT OFF LEXIS. IT'S A 1967 OPINION FROM THE NORTH CAROLINA SUPREME COURT.
PERTAINING TO ADMISSIBILITY OF STATEMENTS REGARDING DREAMS AND THE IMPACT. 271, 391. 156 SOUTHEAST 2D 721. I'LL HAVE ONE OF MY LAW CLERKS MAKE A PHOTOCOPY. I HAVE THE LEXIS VERSION OF IT. YOU MIGHT WANT TO TAKE A LOOK AT THIS.
COUNSEL MAKES A GREAT DEAL OF THE INFERENCE HE WOULD LIKE THE JURY TO DRAW FROM THIS STATEMENT. THAT'S FINE. THE JURY CAN DRAW WHATEVER INFERENCE THEY WANT TO FROM IT. IT HAPPENS VERY OFTEN THAT STATEMENTS ARE EVIDENCE ARE SUBMITTED TO THE JURY FROM WHICH THEY CAN DRAW ONE OR TWO OR THREE OR MORE INFERENCES. IN THIS PARTICULAR CASE, I THINK COUNSEL -- THE INFERENCE THAT COUNSEL SEEKS TO HAVE THE JURY DRAW IS UNREASONABLE. THE ACTUAL INFERENCE THAT SHOULD BE DRAWN, EVEN IF YOU PUT THE POLYGRAPH STATEMENT BACK IN, IS THAT IT'S AN ALIBI, IT'S AN EXCUSE FOR NOT WANTING TO TAKE THE POLYGRAPH AND THE KNOWLEDGE AND THE SURE KNOWLEDGE THAT HE WILL FLUNK IT. AND AS A MATTER OF FACT, ALTHOUGH COUNSEL MAKES MUCH OF A LETTER THAT THEY SENT, WHAT THEY ACTUALLY INDICATED IN THE LETTER WAS THAT THEY WOULD CONSIDER TAKING A POLYGRAPH IF IT WERE STIPULATED THAT THE RESULTS WOULD BE DEEMED ADMISSIBLE, WHICH THEY KNOW CANNOT BE DONE. HOWEVER, IN RESPONSE TO THAT LETTER, A PHONE CALL WAS MADE TO COUNSEL IN WHICH COUNSEL WAS INVITED TO BRING HIS CLIENT IN FOR FURTHER QUESTIONING AND DECLINED TO DO SO. SO IF COUNSEL WOULD LIKE TO AT THIS POINT OPEN THAT ISSUE UP, BRING UP THE FACT THAT THERE WAS AN OFFER TO TAKE A POLYGRAPH THAT WAS ACTUALLY CONDITIONAL AND THE FACT THAT HE WAS OFFERED THE OPPORTUNITY TO BRING HIS CLIENT IN FOR QUESTIONING AND DECLINED TO DO SO, THAT'S FINE. WE CAN PUT IT ALL INTO CONTEXT AND THE PEOPLE WOULD NOT OBJECT TO THAT.
WELL, MR. DOUGLAS HAS ALREADY INDICATED IT'S THEIR POSITION THAT THERE ARE TOO MANY CANS OF WORMS THERE.
IN THAT CASE THEN, YOUR HONOR, I THINK THE AVENUE THAT THE COURT TOOK WAS CLEARLY THE APPROPRIATE ONE. ALL THAT WE HAVE HERE IS A STATEMENT THAT HAD SOME INADMISSIBLE REFERENCE THAT WAS EXCISED FROM THE ADMISSIBLE PORTION OF THE STATEMENT THAT IS CLEARLY AN ADMISSION. I THINK THAT IT'S BEEN THE DEFENSE THAT HAS BEEN COMPLAINING REPEATEDLY THROUGHOUT THIS TRIAL THAT THE PEOPLE ARE SEEKING TO RELITIGATE AND RELITIGATE RULINGS AND COME BACK AND ARGUE WITH THE COURT ABOUT RULINGS. IT HAS BEEN THE DEFENSE REPEATEDLY THAT HAS DONE SO.
WELL, DON'T FORGET THE STATUS OF OUR- -- WE'RE CONDUCTING THE 403 FOUNDATIONAL DURING THE COURSE OF THIS AS WELL DON'T FORGET.
RIGHT. BUT THAT'S NOT WHAT COUNSEL'S ARGUMENT PERTAINS TO, YOUR HONOR. IT'S NOT A FOUNDATIONAL ISSUE THAT'S BEING ARGUED HERE. IT'S THE ADMISSIBILITY THAT'S BEING ARGUED HERE, AND I THINK THE COURT HAS ALREADY RESOLVED THAT RULING, AT LEAST I THOUGHT IT HAD AND APPROPRIATELY SO. THE REFERENCE -- THE THING ABOUT THIS STATEMENT IS, YOUR HONOR, AND THE REASON THAT I WONDER ABOUT -- THE POSITION THAT COUNSEL IS TAKING IS THAT IF COUNSEL FEELS THAT THE INFERENCE IS ACTUALLY ONE OF INNOCENCE, THEN -- AND CAN ARGUE THAT TO THE JURY, THEN OBVIOUSLY IT ISN'T ALL THAT PREJUDICIAL BECAUSE THERE ARE TWO INFERENCES THAT CAN BE DRAWN. THE SIGNIFICANCE OF DREAMS IS NOT THAT WE'RE SAYING LITERALLY -- IT'S NOT EVEN ACTUALLY A HEARSAY ISSUE. WE'RE NOT ASKING FOR IT TO BE ACCEPTED FOR THE TRUTH OF THE MATTER. IT ISN'T THAT WE CONTEND THAT HE'S DREAMING. IT IS THAT WE CONTEND THAT WHAT HE IS SAYING IS THAT HE'S BEEN THINKING ABOUT KILLING HER, AND THAT IS PRECISELY WHAT HE'S BEEN CHARGED WITH.
ARE YOU SAYING THAT IS SOMETHING ON THE ORDER OF I'VE BEEN DREAMING OF BECOMING A MAJOR LEAGUE BALL PLAYER, SOMETHING LIKE THAT?
COUNSEL IS FREE TO ARGUE THAT. THAT'S NOT THE INFERENCE THAT I THINK IS REASONABLE. WE THINK THAT THE INFERENCE THAT IS REASONABLE FROM THIS IS MORE IN THE NATURE OF, I'VE BEEN THINKING ABOUT IT, I'VE BEEN THINKING ABOUT DOING THIS, AND SO I AM AFRAID THAT I'LL FLUNK THE POLYGRAPH. IT'S AN EXCUSE FOR NOT TAKING THE POLYGRAPH. IT'S AN EXCUSE FOR FAILING THE POLYGRAPH. THAT'S THE PEOPLE'S POSITION. AND I THINK THAT'S THE REASONABLE INFERENCE THAT A COMMON SENSE, COMMON-THINKING PERSON WOULD DRAW FROM THIS. BUT COUNSEL CAN ARGUE TO THE CONTRARY, AND THAT'S WHY THE PREJUDICE DOES NOT EXIST. COUNSEL IS VERY FREE TO ARGUE TO THE JURY THAT IT'S IN THE NATURE OF WHAT THE COURT HAS SAID, A DREAM. BUT IN FACT -- YOU KNOW, I THINK WALT DISNEY SAID IT BEST I THINK IN SLEEPING BEAUTY, A DREAM IS A WISH YOUR HEART MAKES. AND THAT'S WHAT THIS DEFENDANT WAS TALKING ABOUT. YOU KNOW, THIS IS SOMETHING THAT HE THOUGHT ABOUT, IT'S SOMETHING THAT HE WANTED TO HAVE HAPPEN. THAT'S ANOTHER INFERENCE THAT CAN BE DRAWN. BUT I MEAN THE FACT THAT THERE ARE MULTIPLE INFERENCES THAT CAN BE DRAWN, YOUR HONOR, I THINK IS WHAT ALLAYS SO MUCH THE PREJUDICE THAT COUNSEL IS REFERRING TO. SUBJECT TO INTERPRETATION, THAT DOESN'T MEAN IT DOESN'T COME IN. OBVIOUSLY MANY THINGS COME IN THAT ARE SUBJECT TO INTERPRETATION. THE COURT IS VERY WELL AWARE OF THAT, AND THIS IS ANOTHER ONE. BUT IS THE COURT -- IF THE COURT WOULD LIKE, WE WILL GO AND READ THE CASE THAT PERTAINS TO THIS AND ARGUE IT LATER.
ALL RIGHT. I'M JUST GIVING YOU THE INVITATION TO DO THAT. AS SOON AS I GET THE TEXT OF WHAT WAS ACTUALLY SAID.
I BELIEVE THAT WHAT WAS ACTUALLY SAID WAS THAT -- AND I THINK I RECALL THIS PRETTY ACCURATELY -- THAT MR. SHIPP INDICATED THAT THE DEFENDANT KIND OF LAUGHED AND SAID, "I HAVE HAD SOME DREAMS ABOUT KILLING HER." AND I THINK THAT DOES MITIGATE. BUT IF THE COURT WOULD LIKE, THERE CAN BE AN INDICATION THROUGH THE TESTIMONY OF THE WITNESS THAT THERE WERE INTERVENING REMARKS MADE THAT, ONE, THE REFERENCE TO DNA WAS NOT IMMEDIATELY PRECEDENT TO THE REMARK ABOUT HAVING DREAMS.
ALL RIGHT. WELL, LET ME FIND THE TEXT HERE, AND WE'LL SEE. ALL RIGHT. MISS ROBERTSON, WHILE WE'RE WAITING, WOULD YOU MAKE TWO PHOTOCOPIES OF THIS CASE, PLEASE? THANK YOU. I THOUGHT MR. DOUGLAS WAS HANDLING THIS ISSUE.
I'M MINDFUL OF ONE LAWYER PER SIDE. MR. DOUGLAS WILL RESPOND TO MISS CLARK. I WOULD LIKE, HOWEVER, AT THE APPROPRIATE TIME IF WE HAVE A FEW MINUTES TO MAKE A PHONE CALL. I NEED TO TALK TO PROFESSOR DERSHOWITZ WITH REGARD TO THIS WHOLE ISSUE THAT SHE RAISES ABOUT THE POLYGRAPH AND THE LETTER THAT WAS SENT BY MR. SHAPIRO. AND I WOULD NEED A FEW MINUTES TO BE ABLE TO -- AND THE LETTER WAS NEVER RESPONDED TO. THEY NEVER RESPONDED TO THE LETTER. THEY CAN TALK ABOUT ANY CONVERSATION THEY WANT TO --
IT DOESN'T MATTER. THE LETTER WAS NOT RESPONDED TO, WHETHER I WAS ON THE CASE OR NOT. I LIVED IN LOS ANGELES AT THE TIME.
WHAT I'M ASKING, YOUR HONOR, AT THE APPROPRIATE TIME IS IF I CAN HAVE A FEW MINUTES TO CALL PROFESSOR DERSHOWITZ AND PROFESSOR UELMEN SO WE CAN MAKE A FINAL DECISION AS TO OUR VIEW ON THE POLYGRAPH. THAT'S ALL I'M ASKING.
COUNSEL, I MAKE REFERENCE TO PAGE 12779. IN FACT, BEFORE I READ THIS TO YOU, LET ME -- NOW, EVERYBODY HAS DISAPPEARED. MISS SCALINAS, WOULD YOU COME UP HERE, PLEASE.
YES. UNFORTUNATELY, I ERASED MY COMPUTER FROM YESTERDAY SINCE I HAVE THE HARD COPY. WHILE WE ARE WAITING FOR THE PHOTOCOPIES, COUNSEL, YESTERDAY, IT WAS BROUGHT TO MY ATTENTION THAT THERE WERE CERTAIN THINGS GOING ON OUT IN THE AUDIENCE AND INSIDE THE BAR THAT WERE BROUGHT TO MY ATTENTION. LADIES AND GENTLEMEN IN THE AUDIENCE, LET ME REMIND YOU THAT ANY REACTION, GESTURES MADE DURING THESE COURT SESSIONS, ESPECIALLY WHILE THE JURY IS HERE, THOSE ACTIVITIES ARE INAPPROPRIATE AND WILL RESULT IN YOUR EXPULSION FROM THE COURTROOM. ALSO, I WAS SHOWN A VIDEOTAPE OF COUNSEL INSIDE THE BAR MAKING SIMILAR REACTIONS, GESTURES, FACIAL EXPRESSIONS TO THE TESTIMONY THAT ARE INAPPROPRIATE, AND I'M CAUTIONING COUNSEL AS WELL. AND I HAVE THAT ON VIDEOTAPE. SO COUNSEL ARE CAUTIONED AND STAFF ARE CAUTIONED AS WELL. THAT'S A CAUTION.
12779 AND 80. COUNSEL, DO YOU HAVE THE TEXT BEFORE YOU STARTING AT -- THE RELEVANT QUESTION AND ANSWER STARTS AT ROUGHLY LINE 11 ON 12779.
-- THAT MY POINT IS REFLECTED BY, IF I BEGIN READING FROM LINE 16:
"AND AT THAT TIME, DID YOU KNOW THE CORRECT ANSWER TO THAT QUESTION?" THE ANSWER:
"I DID NOT KNOW THE CORRECT ANSWER, BUT WHAT I DID SAY, I JUST GOT -- I JUST OFF THE CUFF SAY TWO MONTHS.
"AND WHAT DID HE SAY IN RESPONSE TO YOUR INDICATION THAT IT TAKES DNA TWO MONTHS TO COME BACK?
"HE KIND OF JOKINGLY JUST SAID, YOU KNOW, QUOTE, TO BE HONEST, SHIPP -- THAT'S WHAT HE CALLED ME -- SHIPP, HE SAID, I'VE HAD SOME DREAMS OF KILLING HER." AND THE NATURE OF MR. DARDEN'S LEADING QUESTION TO DIRECT THAT THE WITNESS FOCUS AWAY FROM THE POLYGRAPH INFORMATION IMPROPERLY GAVE THE INFERENCE THAT THE DREAM SEQUENCE OR THE DREAM, THE ALLEGED DREAM STATEMENT WAS MADE IN DIRECT RESPONSE TO THE DNA STATEMENT, WHICH IS FACTUALLY UNTRUE. EVEN MORE GRAVELY, YOUR HONOR, I THINK THAT WHAT --
ALL RIGHT. BUT, MR. DOUGLAS, ISN'T THIS SOMETHING THAT YOU CAN DEAL WITH ON CROSS-EXAMINATION?
WELL, YOUR HONOR, WHAT I WANTED TO DO IN RAISING THIS WAS TO CLUE THE COURT BEFOREHAND THAT I INTEND TO ASK THE WITNESS THAT THAT STATEMENT, THAT ALLEGED STATEMENT WAS NOT IN RESPONSE TO THE DNA QUESTION.
ALL RIGHT. THAT'S WHAT I MEAN BY CROSS-EXAMINATION. I AGREE WITH YOU THAT THAT QUESTION, THE WAY IT WAS PHRASED, CREATES AN INFERENCE THAT IS NOT ACCURATE.
THE DIFFICULTY THAT I HAVE, YOUR HONOR, THAT MR. COCHRAN HAS REMINDED ME IS, MR. SHIPP IS NOT A FRIENDLY WITNESS AND MR. SHIPP MAY WELL BLURT OUT SOMETHING THAT MIGHT BE IMPROPER OR THAT MIGHT BE UNTRUE.
WELL, COUNSEL HAS TO BE VERY CAREFUL IN THE WAY ONE QUESTIONS. BUT WERE I IN YOUR PLACE, I WOULD ASK MR. SHIPP -- I WOULD READ TO HIM THE TESTIMONY THAT WE'VE JUST DISCUSSED AND ASK HIM, ISN'T IT A FACT THAT BETWEEN THE DISCUSSION OF DNA AND BETWEEN THIS ALLEGED STATEMENT REGARDING A DREAM REGARDING KILLING HIS WIFE, THERE WAS DISCUSSION OF ANOTHER TOPIC IN BETWEEN; ISN'T THAT CORRECT? THAT'S HOW I WOULD ASK THAT QUESTION.
VERY WELL, YOUR HONOR. BUT I WOULD ALSO LIKE TO ASK THE QUESTION THAT, WHEN YOU TESTIFIED YESTERDAY THAT THE DREAM, THE ALLEGED DREAM QUESTION OR THE STATEMENT WAS MADE IN RESPONSE TO THE DNA, THAT WAS NOT TRUE.
NO. IT WAS YOUR QUESTION. HERE'S THE PROBLEM. MISS CLARK, IF YOU READ THE QUESTION,
"AND WHAT DID YOU SAY IN RESPONSE TO YOUR INDICATION THAT IT TAKES TWO MONTHS FOR DNA TO COME BACK," WOULDN'T THE MORE ACCURATE WAY TO DO THIS WOULD BE TO SAY:
"WAS THERE A CONVERSATION ABOUT SOMETHING ELSE IN BETWEEN WITHOUT TELLING US WHAT THAT WAS?
"ANSWER: YES." THEN:
"WAS SOMETHING ELSE MENTIONED?
"ANSWER: YES.
"WHAT WAS THAT?" BUT THE WAY THE QUESTION WAS PHRASED, IT IMPLIES AND WHAT -- IN FACT IT SAYS:
"AND WHAT DID HE SAY IN RESPONSE TO YOUR INDICATION THAT IT TAKES DNA TWO MONTHS TO COME BACK?"
THIS WAS DONE, YOUR HONOR, IN AN EFFORT TO COMPLY WITH THE COURT'S ORDER TO EXCISE THE REFERENCE TO THE POLYGRAPH AND TO -- I UNDERSTAND WHAT THE COURT IS SAYING. PERHAPS --
I DO. I DO. I CONCEDE THAT, YOUR HONOR. I DO. NO. WELL, I CONCEDE IT BECAUSE IT WASN'T MY QUESTION. NO, I'M JUST KIDDING. I AGREE WITH THE COURT. THAT WAS -- THAT IT COULD HAVE BEEN BETTER DONE AND SHOULD HAVE HAD SOME INDICATION IN IT THERE WAS SOMETHING IN BETWEEN. THE PROBLEM THAT I WOULD LIKE TO POINT OUT TO THE COURT IS THAT WE'RE GIVING THE IMPRESSION THAT THE WITNESS WAS UNTRUTHFUL WHEN ALL THE WITNESS WAS DOING WAS ATTEMPTING TO FOLLOW THE ORDERS OF THE COURT AND TO RESPOND TO THE QUESTION THAT WAS ASKED. AND SO TO LEAVE THE JURY WITH THE IMPRESSION THAT HE WAS WILLFULLY UNTRUTHFUL ABOUT SOMETHING THAT HE WAS CONFINED BY QUESTIONING TO IS UNFAIR AND IT'S A MISLEADING IMPRESSION TO GIVE.
WELL, THE PROBLEM I HAVE, MISS CLARK, IS THAT THE IMPRESSION WAS CREATED BY THE WAY THE QUESTION WAS PHRASED.
WELL, MAY I POSE TO THE COURT ANOTHER ALTERNATIVE, WHICH WOULD ALSO PROTECT COUNSEL FROM ANYTHING BEING BLURTED OUT? IS THAT PERHAPS THE JURY COULD BE INSTRUCTED THAT THERE WAS CONVERSATION IN BETWEEN THE DNA STATEMENT AND THE DISCUSSION OF DREAMS.
NO. THEN THE COURT IS TAKING THE -- THEN THE COURT WOULD BE EXPRESSING AN OPINION AS TO WHAT DID OR DID NOT HAPPEN, WHICH THE COURT IS NOT INCLINED TO DO IN THIS PARTICULAR SITUATION.
HERE'S THE PROBLEM. YOU'VE GOT AN IMPRECISE QUESTION. CELLOPHANE IS A NO-NO, COUNSEL. ALL RIGHT. YOU'VE GOT AN IMPRECISE IMPRESSION THAT CREATED THIS INFERENCE. I THINK THEY'RE ENTITLED TO CROSS-EXAMINE ON THAT. YOU CAN COME BACK AND CLARIFY.
NO, I'M NOT PUNISHING ANYBODY, MS. CLARK. I DIDN'T ASK THE QUESTION. THE CODE SECTION CLEARLY SAYS WE CANNOT DISCUSS POLYGRAPH PERIOD. IF YOU WANT THE STATEMENT IN ABOUT THE DREAMS, YOU HAVE TO TAILOR THE TESTIMONY IN YOUR QUESTIONING TO AVOID THAT. IT WAS DONE IN AN IMPRECISE WAY. IT CREATED AN INFERENCE THAT'S NOT TRUE AT LEAST BASED UPON THE STATEMENT THAT YOU HAVE. SO HOW CAN I INSTRUCT THE JURY THAT SOMETHING -- I MEAN, TO INSTRUCT THE JURY AS YOU REQUEST WOULD BE FOR ME TO ASSUME THAT CERTAIN FACTS ARE TRUE, WHICH IS NOT MY JOB IN THIS CASE. ALL I DO IS REFEREE THE DISPUTES. THIS INFERENCE WAS CREATED, THEY'RE ENTITLED TO CROSS-EXAMINE ON IT.
AND LEAVE THE IMPRESSION THAT THE WITNESS WAS UNTRUTHFUL WHEN IN FACT THE WITNESS WAS NOT AT ALL. I MEAN IS THAT THE CURE?
WELL, MISS CLARK, MISS CLARK, THE PROBLEM WASN'T CREATED BY THE DEFENSE. THEY'RE GOING TO TAKE ADVANTAGE OF THE IMPRECISION IN THE WAY THE QUESTION WAS ASKED. YOU CAN COME BACK ON REDIRECT EXAMINATION AND CLEAN THAT UP.
THE COURT IS IN ESSENCE SAYING THAT TWO WRONGS MAKE A RIGHT. I MEAN, I'M NOT SAYING THAT OUR QUESTION WAS NOT INARTFULLY PHRASED BECAUSE IT WAS. BUT TO COME BACK AND THEN CREATE MORE MISIMPRESSION, YOU KNOW, THROUGH CROSS-EXAMINATION THAT'S MISLEADING IS NOT FAIR EITHER.
RIGHT. BUT THEY HAVE TO BE GIVEN THE FACTS IN ORDER TO DO THAT. AND IF WE GIVE THEM MISIMPRESSIONS AND MISREPRESENTATIONS, THEY HAVE NO HOPE.
YES. BUT THEY HAVE TO GET THE TRUTH IN ORDER TO DO THAT. BUT THEY HAVE TO GET THE TRUE STATE OF AFFAIRS IN ORDER TO MAKE A FAIR JUDGMENT AND IF WE --
IT'S A VERY DIFFICULT SITUATION THAT YOU'LL JUST HAVE TO HANDLE ON REDIRECT. AND I KNOW MR. DOUGLAS IS GOING TO ACCEPT THE COURT'S OBSERVATIONS AS TO HOW TO DO THIS.
MAY I ASK THEN THAT COUNSEL AT LEAST NOT BE PERMITTED TO FRAME IT IN SUCH A WAY AS TO MAKE IT SOUND AS THOUGH THE WITNESS LIED WHEN HE ANSWERED THE QUESTION THAT WAS PHRASED IN A MANNER THAT COULD BE CONSTRUED -- BECAUSE THERE WAS VERY LITTLE IN BETWEEN THOSE TWO THINGS AS THE COURT KNOWS. I MEAN IT'S NOT VERY FAR OFF. WE KNOW THAT THE POLYGRAPH REFERENCE IS TAKEN OUT. BUT TO ALLOW COUNSEL NOW TO QUESTION THE WITNESS AND ESSENTIALLY ASK, ISN'T IT TRUE THAT YOU LIED WHEN YOU SAID IT WAS IN RESPONSE TO THE DNA, IT WAS IN RESPONSE TO THE DNA ANSWER IS FALSE. IT'S COMPLETELY FALSE.
BUT THE PROBLEM IS THAT THE QUESTION IS, QUOTE:
"AND WHAT DID HE SAY IN RESPONSE TO YOUR INDICATION THAT IT TAKES DNA TWO MONTHS TO COME BACK?
"HE KIND OF JOKINGLY JUST SAID, 'YOU KNOW, TO BE HONEST, SHIPP' -- THAT'S WHAT HE CALLED ME, SHIPP, HE SAID, 'I'VE HAD SOME DREAMS OF KILLING HER.'" IS THAT ACCURATE?
WHY NOT -- NO. THAT'S RIGHT. YOUR HONOR, I CAN'T ADMIT IT TOO MANY TIMES. IT COULD HAVE BEEN BETTER. IT COULD HAVE BEEN MORE PRECISE AND I WISH IT HAD BEEN.
MR. DOUGLAS IS ENTITLED TO SAY:
"ISN'T THIS STATEMENT INCORRECT? WASN'T THERE A CONVERSATION, SOMETHING -- A SUBJECT DISCUSSED, AND WITHOUT TELLING US WHAT THAT IS IN BETWEEN DNA AND THIS DISCUSSION ABOUT DREAMS?
"ANSWER: YES.
"SO WHEN YOU SAID THAT THIS STATEMENT WAS MADE IN RESPONSE TO THE QUESTION ABOUT DNA, THAT WAS NOT A TRUTHFUL ANSWER, CORRECT?
"THAT'S CORRECT."
BUT THAT'S NOT CORRECT BECAUSE THE WITNESS WAS NOT WILLFULLY FALSE. THE WITNESS WAS RESPONDING TO A QUESTION THAT ATTEMPTED TO ADDRESS THE ISSUE BEFORE THE COURT. IT WOULD BE TRUTHFUL TO SAY --
MISS CLARK, I UNDERSTAND YOUR POSITION VERY CLEARLY, BUT THE PROBLEM IS, THE PROBLEM WAS CREATED BY THE WAY THE QUESTION WAS PHRASED. THAT'S THE PROBLEM.
AND WHY DON'T WE CURE IT WITH THE TRUTH, YOUR HONOR? WHY NOT LET THE WITNESS TESTIFY TO THE FACT THAT HE WAS ORDERED NOT TO TESTIFY TO CERTAIN THINGS BY THE COURT?
NO. I MEAN, REALLY, WHY NOT TELL THE TRUTH? THE WITNESS WAS ORDERED NOT TO DISCUSS CERTAIN THINGS BY THE COURT, AND THOSE CERTAIN THINGS CAME IN BETWEEN THE REFERENCE TO DNA AND THE REFERENCE TO THE DREAMS.
ALL RIGHT. SO YOU CAN BRING THAT UP DURING THE COURSE OF YOUR REDIRECT. ALL RIGHT. THANK YOU, COUNSEL. ANY OTHER CONUNDRUMS?
YOUR HONOR, WE HAVE FREQUENTLY ATTEMPTED TO ABIDE BY THE RULE THAT WHEN THE COURT RULES, THE COURT RULES AND DOESN'T ALLOW THE OTHER SIDE TO COME BACK AND WHINE OR TO TRY TO CHANGE THE COURT'S RULING. I WOULD HOPE EVERYONE WOULD APPRECIATE THE SPIRIT OF THAT RULING.
WELL, COUNSEL, LET'S STOP THAT. I'VE JUST AN OVERLY PATIENT PERSON AND I'M WILLING TO LISTEN TO WHAT MOST EVERYBODY HAS TO SAY. ALL RIGHT. ANYTHING ELSE BEFORE WE INVITE THE JURORS TO JOIN US?
I CONCEDE IT BECAUSE IT WASN'T MY QUESTION. NO, I'M JUST KIDDING. I AGREE WITH THE COURT.
YOU KNOW, I THINK WALT DISNEY SAID IT BEST I THINK IN SLEEPING BEAUTY, A DREAM IS A WISH YOUR HEART MAKES. AND THAT'S WHAT THIS DEFENDANT WAS TALKING ABOUT.
WELL, MISS CLARK, THE PROBLEM WASN'T CREATED BY THE DEFENSE. THEY'RE GOING TO TAKE ADVANTAGE OF THE IMPRECISION IN THE WAY THE QUESTION WAS ASKED. YOU CAN COME BACK ON REDIRECT EXAMINATION AND CLEAN THAT UP.
WE DIDN'T VIOLATE IT. WE COULDN'T STAND IT ANYMORE, YOUR HONOR.