Sidebar: grand jury testimony

📄 Sidebar: grand jury testimony — Thursday, February 2, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\2\SIDEBAR-GRAND-JURY-TESTIMONY.DOC

TRIAL

▲ Day 11 of 167

◀ Cross-examination of Ronald Shipp (morning, part 4) Recess (jury absent) ▶

Date: Thursday, February 2, 1995 • Utterances: 35

Defense attorney Carl Douglas sought to impeach prosecution witness Ron Shipp using his testimony from the A.C. Cowlings grand jury, arguing that Shipp's silence about OJ's dream confession during that proceeding contradicted his claim that he never lied under oath. Judge Ito sustained the prosecution's objection, ruling that because the Cowlings grand jury was explicitly prohibited from investigating Simpson and the murders, using that testimony would be unfair and misleading to the jury.

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

# 2 THE COURT:

WE ARE OVER AT SIDEBAR. MR. DARDEN, YOU ASKED TO APPROACH.

# 3 MR. DARDEN:

YOUR HONOR, MR. SHIPP DID TESTIFY IN THE COWLINGS GRAND JURY, THE FOCUS OF WHICH WAS NOT THESE MURDERS, OKAY. IN FACT, WE WERE PROHIBITED FROM INVESTIGATING THE MURDERS IN THAT GRAND JURY PROCEEDING. SO THERE WAS NO OPPORTUNITY TO ASK MR. SHIPP ANY QUESTIONS REGARDING THESE MURDERS. CAN I FINISH? THANK YOU, SIR. AND SO TO GO INTO ANY TESTIMONY OF THIS WITNESS IN THESE PROCEEDINGS IS HIGHLY PREJUDICIAL AND WILL MISLEAD THE JURY.

# 4 THE COURT:

WHAT ARE YOU TRYING TO ELICIT?

# 5 MR. DOUGLAS:

HE DID MENTION HAVING SPOKEN TO O.J. ON MONDAY NIGHT IN THAT GRAND JURY. HE SAID NOTHING DURING THAT OCCASION ABOUT ANY DREAMS THAT MR. SIMPSON MAY HAVE HAD. HE MADE A BIG POINT YESTERDAY TO TALK ABOUT THAT HE NEVER LIED UNDER OATH. HE SAID YESTERDAY AND HE AGREED WITH MY CHARACTERIZATION THAT HIS FAILURE TO TELL VANNATTER OR DOUGLAS ABOUT THESE DREAMS WAS IN FACT A LIE. I THINK IT IS PROPER FOR ME TO --

# 6 THE COURT:

WHAT'S THE QUESTION AND ANSWER BEFORE THE GRAND JURY?

# 7 MR. DOUGLAS:

SORRY?

# 8 THE COURT:

WHAT IS THE QUESTION AND ANSWER BEFORE THE GRAND JURY?

# 9 MS. CLARK:

YOUR HONOR --

# 10 MR. DOUGLAS:

YOUR HONOR, FOR THE RECORD, I'M GIVING YOU PAGE 629 AND 630 OF THE A.C. COWLINGS GRAND JURY.

# 11 MS. CLARK:

YOUR HONOR, I CAN'T SEE. I CAN'T SEE THE PAGE.

# 12 THE COURT:

OKAY.

# 13 MR. DARDEN:

AS THE COURT WILL NOTICE, I DID NOT FOLLOW UP ON HIS CONVERSATION BECAUSE I THOUGHT IT WAS OUTSIDE THE PROVINCE OF THE GRAND JURY'S INVESTIGATION. SO I THINK THEY'RE BEING ALLOWED TO SANDBAG ME ON THIS UNDER THESE CIRCUMSTANCES.

# 14 THE COURT:

CARL, THERE'S NO QUESTION HERE ABOUT, "DID YOU HAVE ANY CONVERSATIONS WITH THE DEFENDANT?"

# 15 MR. DOUGLAS:

WHAT HE SAID, YOUR HONOR -- FIRST OF ALL, HE GAVE AN OATH TO TELL THE TRUTH, THE WHOLE TRUTH AND NOTHING BUT THE TRUTH, OKAY. FIRST OF ALL --

# 16 THE COURT:

BUT WE DO THIS BY QUESTION AND ANSWER. HE WAS NOT ASKED THE QUESTION DID HE HAVE ANY CONVERSATION --

# 17 MR. COCHRAN:

MAY I SAY SOMETHING?

# 18 THE COURT:

NO. ONE GLADIATOR.

# 19 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 20 MR. DOUGLAS:

YOUR HONOR, HE MADE A BIG THING YESTERDAY SAYING THAT HE NEVER LIED UNDER OATH. HE'S ACKNOWLEDGED YESTERDAY THAT NOT TELLING PHIL ABOUT THIS CONVERSATION WAS LYING, THAT NOT TELLING WAS LYING. HE HAS ACCEPTED FOR PURPOSES OF MY FUTURE ARGUMENT THE THOUGHT THAT WHEN I DON'T TELL SOMETHING THAT I KNOW IS RELEVANT ABOUT A CONVERSATION, THAT I THINK IS IMPORTANT, THAT I THINK IS PROBATIVE, THAT THAT IS SOME INDICATION OF GUILT, THAT THAT IS LYING. I SHOULD BE ALLOWED, YOUR HONOR -- AND THEY CAN GET BACK UP AND SAY, "AND YOU WEREN'T ASKED THE QUESTION." THAT GOES TO THE WEIGHT. BUT I SHOULD BE ABLE TO ASK A THRESHOLD QUESTION. THEY ARE ALLOWED TO COME BACK AND PUT WHATEVER SPIN ON IT. THEY'RE GOING TO SAY HE WAS NEVER ASKED THE QUESTION, AND FINE. THAT'S ALWAYS WHAT HAPPENS WHEN YOU'RE IMPEACHING SOMEBODY WITH A DOCUMENT UNDER OATH. I AM WILLING TO ACCEPT THE COST FOR MY ASKING THIS QUESTION BECAUSE THE FLIPSIDE IS, THAT'S WHAT I WOULD DO IN RESPONSE. BUT IT IS RELEVANT AND IT DOES GO TO BIAS, IT DOES GO TO CREDIBILITY AND THIS IS AN ESSENTIAL WITNESS.

KEY QUOTE

# 21 THE COURT:

HERE'S OUR PROBLEM THOUGH. THE GRAND JURY WAS NOT ALLOWED TO INVESTIGATE INTO MR. SIMPSON. SO I THINK THAT WAS -- AND THERE ARE CLEAR OBJECTIONS MADE BY THE DEFENSE TO MAKE SURE THAT THE COWLINGS GRAND JURY WAS INVESTIGATING MATTERS OTHER THAN MR. SIMPSON. SO TO THEN TRY TO DRAG THIS IN WHEN THERE WAS NO DIRECT FOCUS ON MR. SIMPSON AND THAT FOCUS WAS MAINTAINED BY THE COURT, I DON'T THINK IT'S APPROPRIATE AND I'M GOING TO SUSTAIN THE OBJECTION.

# 22 MR. DARDEN:

THANK YOU.

# 23 THE COURT:

WE'RE GOING TO --

# 24 MR. DOUGLAS:

MAY I -- YOUR HONOR, CAN I BRING OUT THE FACT THAT HE DID TESTIFY IN THE GRAND JURY, HE DID TESTIFY ABOUT HAVING SEEN MR. SIMPSON ON MONDAY?

# 25 THE COURT:

ALL RIGHT. THAT DIRECT QUESTION AND ANSWER. THAT'S ADMISSIBLE.

# 26 MR. DARDEN:

EXCUSE ME. CAN WE -- OKAY. HE'S ALREADY ADMITTED SEEING -- HE HAS ALREADY ADMITTED TO SEEING THE DEFENDANT ON MONDAY. IF YOU ASK HIM IF HE TESTIFIED IN FRONT OF THE GRAND JURY, YOU'RE JUST OPENING UP A WHOLE CAN OF WORMS, OKAY.

# 27 MR. DOUGLAS:

HE SAID IT.

# 28 MR. DARDEN:

IF YOU PUT YOUR FINGER IN MY FACE AGAIN -- IT'S JUST GOING TO MISLEAD THE JURY, AND I HAVE TO GET INTO WHAT -- IN THE GRAND JURY, WHY HE NEVER TESTIFIED TO THIS STUFF. ARE WE GOING TO HAVE TO HAVE A MINI TRIAL REGARDING THE GRAND JURY? I MEAN IT JUST ISN'T FAIR.

KEY QUOTE

# 29 THE COURT:

THAT'S TRUE.

# 30 MR. DARDEN:

IT ISN'T FAIR AT ALL.

# 31 THE COURT:

OBJECTION SUSTAINED. COUNSEL, THAT GRAND JURY, YOU CAN'T GO INTO THIS.

# 32 MR. COCHRAN:

ALL HE IS GOING TO GO INTO IS WHAT HE TESTIFIED ABOUT, JUDGE.

# 33 MR. DARDEN:

WE HAVE A ONE-LAWYER RULE. STOP WHINING.

# 34 MR. DOUGLAS:

HE SAID HE WAS VERY DISTRAUGHT.

# 35 THE COURT:

NO. I AM GOING TO SUSTAIN THE OBJECTION.

Temperature

tense

Key Quotes (4)

Carl Douglas

HE MADE A BIG THING YESTERDAY SAYING THAT HE NEVER LIED UNDER OATH. HE'S ACKNOWLEDGED YESTERDAY THAT NOT TELLING PHIL ABOUT THIS CONVERSATION WAS LYING, THAT NOT TELLING WAS LYING.

Core of the defense's impeachment theory — using Shipp's own moral framework against him to suggest his grand jury silence was tantamount to perjury by omission.

Lance A. Ito

ONE GLADIATOR.

Ito shuts down Cochran attempting to join Douglas mid-argument — a recurring judicial management moment with the defense team.

Christopher Darden

IF YOU PUT YOUR FINGER IN MY FACE AGAIN --

Rare flash of personal friction between opposing counsel at the bench, revealing the tension underlying this witness examination.

Lance A. Ito

TO THEN TRY TO DRAG THIS IN WHEN THERE WAS NO DIRECT FOCUS ON MR. SIMPSON AND THAT FOCUS WAS MAINTAINED BY THE COURT, I DON'T THINK IT'S APPROPRIATE AND I'M GOING TO SUSTAIN THE OBJECTION.

Ito's ruling turns on the structural limitation of the Cowlings grand jury — Shipp's silence there can't be held against him when he wasn't asked and the topic was off-limits.

Evidence (1)

Informal

A.C. Cowlings grand jury transcript, pages 629-630, containing Ron Shipp's testimony about seeing OJ Simpson on Monday night

Defense sought to use for impeachment; court ruled inadmissible for that purpose

Notable Exchanges (4)

Carl Douglas•Christopher Darden

Douglas argued that Shipp's omission of the dream conversation during his grand jury testimony constituted lying by his own standard; Darden countered that the Cowlings grand jury was prohibited from investigating the murders and he couldn't follow up even if he wanted to, framing Douglas's move as sandbagging.

strategic/heated

Christopher Darden•Carl Douglas

Darden warned Douglas 'if you put your finger in my face again' — suggesting physical gesturing had escalated the already tense sidebar exchange.

heated

Johnnie Cochran•Lance A. Ito

Cochran attempted to interject during Douglas's argument; Ito cut him off with 'One gladiator,' enforcing his one-attorney-per-argument rule for the defense.

procedural

Christopher Darden•Johnnie Cochran

After Cochran spoke up despite the ruling, Darden told him 'We have a one-lawyer rule. Stop whining.' — a pointed rebuke across the aisle.

heated

Credibility Attacks (1)

⚔ Ron Shipp

Prior inconsistent omission / impeachment by grand jury testimony

Defense attempted to show that Shipp, who claimed he never lied under oath and characterized his omissions as lying, failed to mention OJ's dream confession when he testified in the Cowlings grand jury — using Shipp's own moral standard as the impeachment vehicle. Court blocked this line.

Objections

2 objections (2 sustained, 0 overruled)

Proceeding 4534 • 35 utterances

Criminal Trial

Department 103