Sidebar: prowler reports

📄 Sidebar: prowler reports — Wednesday, February 22, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\22\SIDEBAR-PROWLER-REPORTS.DOC

TRIAL

▲ Day 23 of 167

◀ Cross-examination of Detective Tom Lange (morning) Recess ▶

Date: Wednesday, February 22, 1995 • Utterances: 74

Cochran sought to cross-examine a witness using a prowler report showing two male suspects near 875 Bundy Drive after the crime scene was released on June 13th, as part of his argument that the scene was unsecured for three weeks before uncollected evidence was discovered July 3rd. Clark objected on hearsay and foundation grounds, and Ito sustained the objection on use of the document but permitted Cochran to ask whether the witness had personal knowledge of any intrusions. The sidebar ended inconclusively with Ito exasperated at both sides arguing past his rulings.

# 1 THE COURT:

WITH THE COURT REPORTER, PLEASE.

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

# 3 THE COURT:

ALL RIGHT. WE ARE OVER AT THE SIDE BAR. WHAT ARE WE ARGUING OVER?

# 4 MR. COCHRAN:

SORRY, YOUR HONOR.

# 5 THE COURT:

WHAT ARE WE FIGHTING OVER?

# 6 MR. COCHRAN:

WE ARE NOT FIGHTING, YOUR HONOR. WE ARE SPIRITUAL AND WE ARE NOT FIGHTING. THERE IS A REPORT -- AND I'M GOING TO ASK MR. PAVELIC TO GO FOLLOW THIS UP ON THE PAGE FROM THEIR DISCOVERY -- BUT THERE IS A PROWLER IN AND AROUND 875 BUNDY STREET. I WANT TO ASK HIM IF THERE ARE PROWLERS, IF HE IS AWARE OF THE PROWLERS. SOMEONE SAID THEY WERE LOOKIE-LOOS. I MEAN, THEY DID NOT PRESERVE THE SCENE. I DON'T CARE WHAT THEY SAID, THEY CAN'T GET AROUND THIS. IT HAPPENED AT 2359 WHICH IS CLOSE TO MIDNIGHT.

# 7 THE COURT:

MIDNIGHT.

# 8 MR. COCHRAN:

THE QUESTION IS WHAT ARE THESE NUMBERS? PAVELIC SAYS HE THINKS IT IS 13TH, SO I TOLD HIM HE HAS GOT TO PROVE THAT, WHAT THE DATE IS, AND THAT IS ALL IT IS. THEY HAVE THESE TWO MALE BLACK SUSPECTS, I GUESS, BOTH WEARING WHITE BASEBALL CAPS, POSSIBLE FIVE-ELEVEN, SIX --

# 9 MR. BAILEY:

THE WITNESS MIGHT BE ABLE TO READ THAT CODE.

# 10 MR. COCHRAN:

I JUST WANT TO ESTABLISH PROWLERS AROUND THERE AND ALL KIND OF THINGS THAT HAPPENED IN BETWEEN THESE THREE WEEKS WHEN THEY DIDN'T COLLECT THIS.

# 11 MR. DARDEN:

YOUR HONOR, THE DATE OF THIS -- THIS INDICATES THAT THE DATE IS THE 16TH OF JUNE.

# 12 MR. COCHRAN:

IF HE CAN READ IT, THAT IS FINE.

# 13 MR. DARDEN:

YEAH.

# 14 MR. COCHRAN:

THAT IS BETWEEN THE 13TH AND JULY 3RD.

# 15 MS. CLARK:

WAIT.

# 16 MR. COCHRAN:

ONE PERSON AT A TIME.

# 17 MR. DARDEN:

THAT IS THAT, SO?

# 18 MS. CLARK:

THE PROBLEM IS THAT WHAT IT INDICATES IS THAT WHOEVER THE PERSON REPORTING HAS REFUSED TO LEAVE NAME AND NUMBER, THAT THERE WERE PEOPLE SEEN IN FRONT OF THE LOCATION, AROUND THE VEHICLE, IN FRONT OF LOCATION. AND WHAT JOHNNIE IS TRYING TO GET AT IS THE REAR GATE AND THERE IS NOTHING SHOWN ABOUT ANYBODY IN THE REAR OF THE LOCATION.

# 19 MR. COCHRAN:

BUT --

# 20 MS. CLARK:

VERY MISLEADING. HE DOESN'T EVEN KNOW WHAT DATE IT IS FOR.

# 21 MR. COCHRAN:

THERE IS TWO PEOPLE TALKING, JUDGE.

# 22 MS. CLARK:

HEARSAY ON HEARSAY HERE.

# 23 THE COURT:

I AM NOT SURPRISED BY THIS KIND OF THING. YOU KNOW, THERE HAS BEEN -- THERE WERE PROBABLY A THOUSAND PEOPLE WHO STOPPED AND GOT OUT AND LOOKED AT THIS PLACE.

# 24 MR. COCHRAN:

IF THEY WANT TO STIPULATE TO THAT, THAT IS FINE.

# 25 THE COURT:

BUT THE QUESTION IS DID THIS -- WAS THE SCENE MAINTAINED AS A SECURE LOCATION OR WASN'T IT?

# 26 MR. SHAPIRO:

WAS IT LOCKED?

# 27 MS. CLARK:

YES, IT WAS.

# 28 MR. COCHRAN:

HOW DO WE KNOW THAT?

# 29 THE COURT:

WELL, SOMEBODY FROM THE FAMILY WILL COME AND SAY WE LOCKED UP.

# 30 MR. COCHRAN:

YOU THINK THIS JURY IS GOING TO BUY THAT? I DON'T THINK THEY ARE. THAT IS BALONEY, JUDGE.

KEY QUOTE

# 31 THE COURT:

NO, NO, NO. I'M SAYING IT IS A RELATIVELY INCONSEQUENTIAL POINT, THOUGH. THE POINT IS THE POLICE LEFT SOMETIME ON THE 13TH.

# 32 MR. COCHRAN:

YES.

# 33 THE COURT:

THEY DIDN'T FIGURE OUT THAT THIS THING HADN'T BEEN COLLECTED UNTIL JULY 3RD AND IN THE INTERIM THERE WAS NOBODY -- YOU CAN JUST ASK HIM, BETWEEN THESE DATES WAS THERE ANY POLICE CARS OR ANY UNUSUAL SECURITY MAINTAINED THERE? NO, THERE WASN'T. YOU CAN ARGUE FROM THAT.

# 34 MR. COCHRAN:

OKAY. BUT I ALSO WANT TO ASK WHETHER THERE WERE PROBLEMS IN AND AROUND THE LOCATION. THIS IS A PROBLEM.

# 35 THE COURT:

BUT MR. COCHRAN, I'M NOT TELLING YOU NOT TO GO INTO THIS. I'M JUST SAYING THAT THE JURORS THEMSELVES KNOW ABOUT ALL THE LOOKIE-LOOS.

# 36 MR. COCHRAN:

I UNDERSTAND THAT. I UNDERSTAND THAT.

# 37 MS. CLARK:

YOUR HONOR, SO YOU ARE TELLING MR. COCHRAN -- YOU ARE GIVING HIM PERMISSION TO GO INTO HEARSAY ON HEARSAY INTO A REPORT HERE THAT IS TOTALLY UNSUBSTANTIATED?

# 38 THE COURT:

THAT IS NOT WHAT I AM SAYING, MISS CLARK. WHAT I'M TRYING TO DO IS PERSUADE HIM THAT THIS IS SO INCONSEQUENTIAL BECAUSE WE ARE TALKING ABOUT A THREE-WEEK TIME AT THAT TIME THAT THE CRIME SCENE WASN'T SECURED. THAT IS WHAT HE IS TRYING TO GET AT.

# 39 MR. DARDEN:

HE IS TRYING TO GET OUT PROWLERS AND MEN IN BASEBALL CAPS.

# 40 MS. CLARK:

THAT'S RIGHT. THAT'S RIGHT.

# 41 MR. COCHRAN:

YOUR HONOR, YOU MAY BE ABSOLUTELY RIGHT, BUT EVERYBODY HAS TO TRY THEIR CASES THE WAY THEY SEE THEM AND I DON'T WANT TO GET INTO ANY DETAILS. I WANT TO ESTABLISH IT WAS NOT SECURED, THERE WAS NO POLICE CARS AT THAT SCENE.

# 42 THE COURT:

RIGHT.

# 43 MR. COCHRAN:

THERE WAS A PROWLER CALL IN AND AROUND THAT LOCATION SOME TIME IN THE MONTH OF JUNE AFTER THE 13TH.

# 44 THE COURT:

SO WHAT IS YOUR OBJECTION TO THAT?

# 45 MR. COCHRAN:

WHAT IS THE OBJECTION TO THAT?

# 46 MS. CLARK:

I'M ASKING YOU TO PRECLUDE COUNSEL FROM USING HEARSAY DOCUMENTS TO TALK TO -- TO CROSS-EXAMINE A WITNESS WHO HAS NOT -- HAS NO FAMILIARITY WITH THE EVENTS OR WITH THE REPORT OR WITH WHATEVER THE WITNESSES WERE WHO CALLED. YOU ARE ASKING -- YOU ARE ALLOWING HIM TO SHOW A DOCUMENT THAT CONTAINS HEARSAY ON HEARSAY ON HEARSAY OF OBSERVATIONS THAT ACTUALLY DO NOT GO TO ANYTHING PERTAINING TO THE STATED PURPOSE. IT IS IRRELEVANT. IT IS HEARSAY. IT IS UNRELIABLE. COUNSEL SIMPLY WANTS TO GET OUT SOME REPORT ABOUT BASEBALL CAPS AND HE WANTS TO READ --

# 47 THE COURT:

SO YOU ARE SAYING AT THIS POINT THERE IS INADEQUATE FOUNDATION AND IT IS A 352 PROBLEM? IS THAT WHAT YOU ARE SAYING?

# 48 MS. CLARK:

YES.

# 49 THE COURT:

I WILL SUSTAIN THE OBJECTION.

# 50 MR. COCHRAN:

WAIT A MINUTE, JUDGE.

# 51 MR. DARDEN:

THE COURT HAS RULED.

# 52 MR. COCHRAN:

I HADN'T BEEN HEARD. BOTH OF YOU GUYS TALKED AND THAT IS NOT FAIR. YOU ARE NOT --

# 53 MR. DARDEN:

WE ARE ACCUSING YOU OF WHINING.

KEY QUOTE

# 54 THE COURT:

HOLD ON. HOLD ON. COUNSEL, COUNSEL, "HOLD ON" MEANS STOP. WE'VE DISCUSSED WITH -- I HAVE DISCUSSED THIS WITH YOU, MR. COCHRAN. YOU CAN ESTABLISH THE POINT THAT THIS PLACE WAS UNSECURED FOR THREE WEEKS. I DON'T HAVE A PROBLEM WITH THAT. BUT WHEN WE START GETTING INTO HEARSAY PEOPLE -- CALLS TO 911, WITHOUT ANY FURTHER FOUNDATION, THAT IS -- IT IS NOT GOING TO FLY.

# 55 MR. COCHRAN:

CAN I ASK HIM IF HE IS AWARE OF THE 911 CALLS, PROWLERS IN AND AROUND THAT LOCATION?

# 56 THE COURT:

YOU CAN ASK IF HE IS AWARE OF ANY INTRUSIONS.

# 57 MR. COCHRAN:

IF HE IS AWARE OF.

# 58 MS. CLARK:

ONLY THROUGH HEARSAY, YOUR HONOR. HE OBVIOUSLY DIDN'T WITNESS IT.

# 59 THE COURT:

NOT NECESSARILY.

# 60 MS. CLARK:

THEN HE SHOULD BE ASKED IF HE SAW ANY PROWLERS OR INTRUDERS.

# 61 THE COURT:

LET'S SUPPOSE THE NEXT DOOR NEIGHBORS, THE TAYLORS, SAID THERE WERE PEOPLE ALL DAY AND ALL NIGHT AND THEY COME IN AND TESTIFY, THE CONDO NEXT DOOR NEIGHBORS?

# 62 MS. CLARK:

THEN THAT WOULD BE FINE THEN, THEY CAN COME IN AND TESTIFY TO THAT, BUT HIS KNOWLEDGE OF THAT WOULD STILL BE HEARSAY.

# 63 MR. COCHRAN:

I CAN REFRESH HIS RECOLLECTION, AS YOU SAID MANY TIMES, ON ANYTHING, YOUR HONOR.

# 64 MS. CLARK:

I UNDERSTAND UNDER A PROP 115 PRELIM THAT IS ONE THING, BUT THIS WITNESS YOU ARE SAYING CAN COME IN AND REPORT WHAT OTHER PEOPLE TOLD? FINE, I'VE GOT A LOT OF THINGS I'VE GOT TO ASK HIM.

# 65 THE COURT:

MISS CLARK, IT DOESN'T WORK THAT WAY. I HAVE SUSTAINED YOUR OBJECTION AT THIS POINT. THAT IS WHERE WE ARE.

# 66 MS. CLARK:

AT THIS POINT HE IS ASKING TO GET INTO HEARSAY BECAUSE YOU ARE PERMITTING HIM TO ASK IF HE IS AWARE OF ANY INTRUSIONS.

# 67 THE COURT:

IF HE IS AWARE.

# 68 MS. CLARK:

THAT WOULD HAVE TO BE PERSONAL KNOWLEDGE.

# 69 THE COURT:

THAT IS TRUE.

# 70 MR. COCHRAN:

HE WILL HAVE TO ANSWER THE QUESTION.

# 71 THE COURT:

WHY ARE WE ARGUING?

# 72 MS. CLARK:

I DON'T KNOW.

# 73 MR. COCHRAN:

BECAUSE THEY LIKE TO ARGUE WHEN THEY CAN.

# 74 THE COURT:

BEATS ME. COUNSEL, WE NEED TO TAKE OUR COURT REPORTER BREAK AT THIS POINT. MADAM REPORTER, WHY DON'T YOU STAY THERE.

Temperature

tense

Key Quotes (5)

Johnnie Cochran

THEY DID NOT PRESERVE THE SCENE. I DON'T CARE WHAT THEY SAID, THEY CAN'T GET AROUND THIS.

Core defense theory: crime scene contamination/chain of custody argument about the rear gate blood evidence collected weeks after police left.

Lance A. Ito

YOU KNOW, THERE HAS BEEN -- THERE WERE PROBABLY A THOUSAND PEOPLE WHO STOPPED AND GOT OUT AND LOOKED AT THIS PLACE.

Ito acknowledges the scene was effectively public and uncontrolled, inadvertently validating Cochran's underlying point while trying to minimize it.

Marcia Clark

YOU ARE ALLOWING HIM TO SHOW A DOCUMENT THAT CONTAINS HEARSAY ON HEARSAY ON HEARSAY OF OBSERVATIONS THAT ACTUALLY DO NOT GO TO ANYTHING PERTAINING TO THE STATED PURPOSE.

Clark's clearest articulation of the layered hearsay problem and her basis for seeking preclusion.

Johnnie Cochran

YOU THINK THIS JURY IS GOING TO BUY THAT? I DON'T THINK THEY ARE. THAT IS BALONEY, JUDGE.

Cochran openly argues jury credibility to the judge at sidebar — rare directness revealing how important this unsecured-scene narrative is to the defense.

Christopher Darden

WE ARE ACCUSING YOU OF WHINING.

Darden's sharp retort when Cochran complained he hadn't been heard before the ruling — captures the interpersonal friction at sidebar.

Evidence (1)

Informal

Prowler report from LAPD discovery showing two male Black suspects in white baseball caps near 875 Bundy Drive around 2359 hours (near midnight), date disputed between June 13th and June 16th

Cochran sought to use it to cross-examine witness; Ito sustained Clark's objection — document excluded, personal-knowledge question permitted

Notable Exchanges (3)

Johnnie Cochran•Marcia Clark•Lance A. Ito

Three-way argument where Clark objects to hearsay document use, Ito tries to broker a middle path (ask about personal awareness of intrusions), and Clark then objects that awareness would itself be hearsay — Ito ends it by saying 'WHY ARE WE ARGUING?'

circular/exasperated

Johnnie Cochran•Christopher Darden

After Ito ruled before Cochran felt he'd been heard, Cochran complained it wasn't fair; Darden shot back 'WE ARE ACCUSING YOU OF WHINING,' prompting Ito to intervene sharply.

hostile

Lance A. Ito•Johnnie Cochran

Ito tells Cochran the unsecured-scene point is 'relatively inconsequential' and that jurors already know about lookie-loos, while Cochran insists he must try his case as he sees it — illustrating tension between judge's pragmatism and defense strategy.

strategic

Light Moments (2)

Johnnie Cochran / Marcia Clark

When Ito asks why they're arguing, Clark says 'I DON'T KNOW' and Cochran replies 'BECAUSE THEY LIKE TO ARGUE WHEN THEY CAN' — both sides briefly laughing at themselves.

Johnnie Cochran

Cochran opens by correcting Ito's framing: 'WE ARE NOT FIGHTING, YOUR HONOR. WE ARE SPIRITUAL AND WE ARE NOT FIGHTING.'

Credibility Attacks (1)

⚔ LAPD crime scene handling

circumstantial / scene integrity challenge

Cochran sought to establish through prowler report that the rear gate area at 875 Bundy was accessible and unsecured for three weeks (June 13 – July 3), undermining the integrity of evidence collected there — specifically relevant to the rear gate blood drops.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 4918 • 74 utterances

Criminal Trial

Department 103