Jury instruction preparation

📄 Jury instruction preparation — Monday, January 23, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JAN\23\JURY-INSTRUCTION-PREPARATION.DOC

TRIAL

▲ Day 4 of 167

◀ Motion: opening statement boards Exhibit objections ▶

Date: Monday, January 23, 1995 • Utterances: 66

Judge Ito and counsel worked through objections to defense opening statement exhibits the day before trial was set to begin. The judge ruled on several visual aids — sustaining objections to the calendar and sock timeline, overruling objections to photographs and aerial shots — while deferring the blood sample issue overnight. The session concluded with Ito announcing the jury would be brought down for pre-instructions, with opening statements pushed to the next morning.

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

# 2 THE COURT:

ALL RIGHT. ANY OTHER COMMENT, MISS CLARK?

# 3 MS. CLARK:

WITH RESPECT TO THE CREDIBILITY OF WITNESSES, YOUR HONOR, THE BOARD PROFFERED BY COUNSEL DOESN'T CONFORM TO THE ALTERATIONS REQUESTED BY THE COURT.

# 4 THE COURT:

WHAT DOES IT INCLUDE THAT I STRUCK?

# 5 MS. CLARK:

I BELIEVE "OR AFFIRMATION".

# 6 THE COURT:

THAT'S A DETAIL THAT'S INCONSEQUENTIAL AT THIS POINT. WE MAY HAVE WITNESSES WHO MAY TESTIFY UNDER AFFIRMATION. ALL RIGHT. IS THE MATTER SUBMITTED?

# 7 MR. DOUGLAS:

YES, YOUR HONOR.

# 8 MR. DARDEN:

YOU WANT SOME MORE INFORMATION ON THE ISSUE OF BLOOD OR HOW MUCH BLOOD THE NURSE TOOK? YOU WANTED THE PRELIM TRANSCRIPT PAGE NUMBER?

# 9 THE COURT:

YES.

# 10 MR. DOUGLAS:

YOUR HONOR, ONE OTHER CHART THAT WE PROVIDED A HARD COPY FOR; DERELICTIONS, DISTORTIONS AND DECEPTIONS. SHE HAS A HARD COPY OF IT AND I DON'T BELIEVE THERE'S AN OBJECTION. I'M NOT SURE.

# 11 THE COURT:

MISS CLARK?

# 12 MS. CLARK:

I DO NOT BELIEVE THERE IS.

# 13 THE COURT:

THERE'S NO OBJECTION TO IT?

# 14 MS. CLARK:

MAY I HAVE A MOMENT?

# 15 THE COURT:

SURE.

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

# 17 MR. DOUGLAS:

YOUR HONOR, DOES MR. DARDEN HAVE THE ORIGINAL CALENDAR FROM UPSTAIRS THAT HE CAN COMPARE OUR CHARTS WITH?

# 18 MS. CLARK:

I AM SORRY?

# 19 THE COURT:

I DON'T KNOW. WE NEED TO FINISH THE FIRST ISSUE ABOUT THE DERELICTION, ET CETERA, EXHIBIT.

# 20 MS. CLARK:

NO OBJECTION.

# 21 THE COURT:

ALL RIGHT.

# 22 MR. DOUGLAS:

I WONDERED WHETHER MR. DARDEN WAS ABLE TO COMPARE THE ORIGINAL COPY, THE ORIGINAL OF THE CALENDAR TO THE BOARDS THAT ARE PRESENTED.

# 23 THE COURT:

MR. DARDEN, DO YOU NOW HAVE A PHOTOCOPY OF IT NOW?

# 24 MR. DARDEN:

I HAVE A PHOTOCOPY OF THE CALENDAR. I CAN'T SEE --

# 25 THE COURT:

COUNSEL, LET ME MAKE IT EASY FOR YOU. IS THE MATTER SUBMITTED?

# 26 MR. DOUGLAS:

YES, YOUR HONOR.

# 27 THE COURT:

SUBMITTED?

# 28 MS. CLARK:

I AM SORRY. ON WHAT?

# 29 THE COURT:

ON ALL YOUR OBJECTIONS?

# 30 MS. CLARK:

NO, YOUR HONOR, WE'RE NOT -- NO, WE HAVEN'T. WITH RESPECT TO THE CALENDAR ISSUE, I THINK MR. DARDEN HAS SOMETHING TO ADD. WITH RESPECT TO THE DERELICTIONS ISSUE, LET ME WITHDRAW MY KNOWN OBJECTION, SIMPLY STATE WE OBJECT, IT'S ARGUMENTATIVE. IT'S NOT AN OPENING STATEMENT EXHIBIT. IT'S AN ARGUMENT EXHIBIT.

# 31 THE COURT:

I HAVEN'T SEEN IT YET. WHERE IS IT?

# 32 MS. CLARK:

WE WOULD ASK THE COURT --

# 33 MR. DOUGLAS:

IT WAS FAXED OVER HERE. WE GAVE A COPY OF IT BEFORE.

# 34 MS. CLARK:

LET ME LOOK THROUGH MY STUFF. IN THE MEANTIME, LET ME GIVE THE COURT THE PAGE OF THE NURSE'S TESTIMONY.

# 35 THE COURT:

ALL RIGHT.

# 36 MS. CLARK:

AT THE PRELIMINARY HEARING, THE MATTER WAS ADDRESSED ON PAGE 25.

# 37 THE COURT:

WHAT VOLUME?

# 38 MS. CLARK:

VOLUME -- AND IN THE GRAND JURY --

# 39 THE COURT:

I NEED THE VOLUME IN THE PRELIMINARY HEARING. AND WOULD YOU HAVE MISS SCALINAS FIND THAT FOR ME, PLEASE.

# 40 MS. CLARK:

I'M GOING TO GET THE VOLUME.

# 41 THE COURT:

MISS CLARK, WHAT WAS THE NAME OF THE WITNESS?

# 42 MS. CLARK:

I DON'T KNOW. T-H-A-N-O P-E-R-A-T-I-S. I AM SORRY. DID YOU WANT THE GRAND JURY OR NOT?

# 43 THE COURT:

YES, PLEASE.

# 44 MS. CLARK:

PAGE 371.

# 45 THE COURT:

ALL RIGHT. DO YOU HAVE THAT HANDY SO YOU CAN TELL ME WHAT THAT IS?

# 46 MS. CLARK:

I HAVE BOTH OF THEM HANDY. WOULD YOU LIKE --

# 47 THE COURT:

PLEASE.

# 48 MR. DOUGLAS:

YOUR HONOR, I BELIEVE THAT THE ISSUE WAS RAISED MORE THAN ONE TIME IN THE PRELIM. IF THE COURT WOULD ALLOW -- BEFORE FINALLY RULING ON THAT PARTICULAR CHART, I WOULD ASK THE COURT TO ALLOW COUNSEL OVERNIGHT TO RETURN TO THE OFFICE AND OBTAIN OUR CITES SO THAT WE CAN ADEQUATELY --

# 49 THE COURT:

COUNSEL, LET ME GIVE YOU MY TEMPORAL PROGNOSTICATION AT THIS POINT. IT APPEARS TO ME WE WILL NOT GET TO OPENING STATEMENTS TODAY BECAUSE I INTEND TO PREINSTRUCT, WHICH WILL TAKE APPROXIMATELY HALF AN HOUR. IT'S ALSO GOING TO TAKE US 20 MINUTES TO GET THE JURY DOWN HERE PHYSICALLY. SO I DON'T SEE US ACTUALLY LAUNCHING INTO OPENING STATEMENTS TODAY. SO, COUNSEL, AT THIS POINT, I'M WILLING TO TAKE UNDER SUBMISSION THE ARGUMENT REGARDING THE EXHIBIT WITH THE BLOOD SAMPLES, AND I'M READY TO RULE ON THE OTHER OBJECTIONS. ANY OTHER COMMENT? ALL RIGHT. AS TO THE PHOTOGRAPH OF CLAUDIA RATCLIFFE, THE OBJECTION IS OVERRULED. AS TO THE PHOTOGRAPH OF MR. SIMPSON AND HIS DAUGHTER SIDNEY AT THE RECITAL, OBJECTION IS OVERRULED. AT THE -- AS TO THE CALENDAR JANUARY THROUGH JUNE, THE OBJECTION IS SUSTAINED PENDING -- THAT'S A TENTATIVE RULING. COUNSEL CAN COMPARE THE ORIGINAL WITH WHAT'S THERE TO SEE IF THERE ARE ANY MATERIAL DISCREPANCIES. BUT SINCE THESE EXHIBITS ARE NOT THE ORIGINAL AND RECREATIONS, OBJECTION IS SUSTAINED. AS TO THE AERIAL PHOTOGRAPHS, THE OBJECTION IS OVERRULED. AS TO THE SOCK TIME LINE, THE OBJECTION WILL BE SUSTAINED. THE "NO BLOOD FOUND" LANGUAGE IS ARGUMENTATIVE AND ASSUMES FACTS THAT ARE NOT IN EVIDENCE. AND AS I INDICATED, THE COURT WILL RULE TOMORROW MORNING ON THE BLOOD SAMPLE ISSUE ONCE COUNSEL HAVE ISOLATED THE TRANSCRIPT THAT'S RELEVANT.

KEY QUOTE

# 50 MR. DOUGLAS:

YOUR HONOR, WITH RESPECT TO THE SOCK TIME LINE --

# 51 THE COURT:

YES.

# 52 MR. DOUGLAS:

AND THE COURT HAD SOME CONCERN ABOUT THE LANGUAGE, "NO BLOOD FOUND."

# 53 THE COURT:

IF YOU DELETE THAT LANGUAGE, THAT IT IS AN ACCURATE STATEMENT OF WHAT'S GOING TO --

# 54 MR. DOUGLAS:

WHAT IF WE WERE TO PUT NO BLOOD OBSERVED?

KEY QUOTE

# 55 THE COURT:

HOW ABOUT IF YOU COVER IT UP COMPLETELY?

KEY QUOTE

# 56 MR. DOUGLAS:

VERY WELL, YOUR HONOR. WE'LL DO THAT.

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

# 58 MR. DOUGLAS:

I'M REMINDED BY MR. SCHECK, YOUR HONOR, THAT THERE IS A DOCUMENT, OFFICIAL REPORT THAT SAYS NO BLOOD OBSERVED. COULD WE SHOW THAT TO YOU TOMORROW TO PERHAPS PERSUADE THE COURT THAT IT WOULD BE PROPER AND ACCURATE TO HAVE THAT LANGUAGE?

# 59 THE COURT:

AS TO THAT ONE POINT IN TIME.

# 60 MR. DOUGLAS:

CORRECT, YOUR HONOR. THANK YOU.

# 61 THE COURT:

ALL RIGHT. BECAUSE OBVIOUSLY WE WON'T GET TO THESE THINGS TODAY.

# 62 MR. COCHRAN:

WITH REGARD TO THE CALENDAR, YOUR HONOR, IF THE COURT MAY ALLOW US AN OPPORTUNITY BEFORE WE LEAVE TO COMPARE IT WITH MR. DARDEN'S -- PERHAPS MR. DARDEN AND I COULD CONFER WITH EACH OTHER.

# 63 THE COURT:

LET'S NOT DO THAT NOW, COUNSEL. ALL RIGHT. MISS CLARK.

# 64 MS. CLARK:

I DON'T KNOW. JUST STANDING. THAT'S IT.

KEY QUOTE

# 65 THE COURT:

OKAY. WELL, COUNSEL, AT THIS POINT -- I HATE TO ASK THIS QUESTION. I SHOULDN'T ASK. YOU'RE RIGHT. ALL RIGHT. COUNSEL, THE COURT IS GOING TO STAND IN RECESS THEN FOR 20 MINUTES. I WILL DIRECT THE SHERIFF'S BAILIFF TO BRING THE JURY DOWN. I'M GOING TO PREINSTRUCT, AS I INDICATED, AND THEN AT THAT TIME, WE WILL RECESS FOR THE DAY AND BEGIN OPENING STATEMENTS BY THE PEOPLE PROMPTLY AT 9:00 O'CLOCK TOMORROW MORNING. NO. I TAKE THAT BACK. BECAUSE I STILL HAVE TO RULE ON SOME OF THESE GISMO PROBLEMS WE HAVE HERE. 10:00 O'CLOCK WITH THE JURY, BECAUSE I FIGURE THIS IS PROBABLY 15 MINUTES WORTH OF ARGUING. SO KNOWING THIS GROUP, PROBABLY AN HOUR. ALL RIGHT. LET'S TAKE 20 MINUTES. LET'S BRING THE JURY DOWN, PLEASE.

# 66 (RECESS.)

Temperature

procedural

Key Quotes (5)

Lance A. Ito

AS TO THE SOCK TIME LINE, THE OBJECTION WILL BE SUSTAINED. THE 'NO BLOOD FOUND' LANGUAGE IS ARGUMENTATIVE AND ASSUMES FACTS THAT ARE NOT IN EVIDENCE.

Direct ruling that the defense's 'No Blood Found' characterization on their sock timeline exhibit was improper argument, not fact — a preview of the blood evidence battle to come.

Lance A. Ito

COUNSEL, LET ME GIVE YOU MY TEMPORAL PROGNOSTICATION AT THIS POINT. IT APPEARS TO ME WE WILL NOT GET TO OPENING STATEMENTS TODAY BECAUSE I INTEND TO PREINSTRUCT, WHICH WILL TAKE APPROXIMATELY HALF AN HOUR.

Ito's dry, self-aware humor ('temporal prognostication') while managing the logistical reality that the trial couldn't even begin its opening statements on schedule.

Carl Douglas

WHAT IF WE WERE TO PUT NO BLOOD OBSERVED?

Defense immediately attempting to salvage the sock timeline language with a more neutral phrasing, showing how much they wanted that fact in front of the jury.

Lance A. Ito

HOW ABOUT IF YOU COVER IT UP COMPLETELY?

Blunt judicial response shutting down the defense's negotiation over exhibit wording — though Douglas ultimately got permission to re-argue the point the next day.

Marcia Clark

I DON'T KNOW. JUST STANDING. THAT'S IT.

Clark's exhausted non-answer when Ito asked if she had anything else — a rare candid moment capturing the fatigue of pre-trial maneuvering.

Evidence (8)

Informal

Photograph of Claudia Ratcliffe

Objection overruled

Informal

Photograph of OJ Simpson and daughter Sidney at recital

Objection overruled

Informal

Calendar January through June — described as recreations, not originals

Objection sustained tentatively; counsel directed to compare original for discrepancies

Informal

Aerial photographs

Objection overruled

Informal

Sock timeline exhibit with 'No Blood Found' language

Objection sustained; defense asked to cover the language, with opportunity to re-argue next day with official report

Informal

'Derelictions, Distortions and Deceptions' chart

Clark objected as argumentative and improper for opening statement; ruling deferred

+ 2 more

Notable Exchanges (3)

Carl Douglas•Lance A. Ito

Douglas tried to negotiate 'No Blood Observed' as substitute language for the stricken 'No Blood Found' on the sock timeline; Ito flatly suggested covering it up entirely, then allowed Douglas to return with an official report the next day.

strategic

Lance A. Ito•Marcia Clark

Ito started to ask Clark a question, then stopped himself ('I HATE TO ASK THIS QUESTION. I SHOULDN'T ASK. YOU'RE RIGHT.') after Clark simply said she was 'just standing' — a small comic moment of mutual exhaustion.

light

Johnnie Cochran•Lance A. Ito

Cochran requested he and Darden confer on the calendar exhibit before leaving; Ito shut it down with 'Let's not do that now, counsel.'

procedural

Light Moments (3)

Lance A. Ito

Ito used the phrase 'temporal prognostication' to explain why opening statements wouldn't happen that day, then self-deprecatingly estimated 15 minutes of argument would take 'probably an hour' knowing 'this group.'

Marcia Clark

Clark, when asked if she had anything to add, replied: 'I DON'T KNOW. JUST STANDING. THAT'S IT.' — prompting Ito to start asking something and immediately think better of it.

Lance A. Ito

Ito referred to pending exhibit technology issues as 'GISMO PROBLEMS' while rescheduling opening statements.

Objections

6 objections (2 sustained, 3 overruled)

Proceeding 4416 • 66 utterances

Criminal Trial

Department 103