Motion: Simpson physical demonstration (part 2)

📄 Motion: Simpson physical demonstration (part 2) — Monday, January 23, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JAN\23\MOTION-SIMPSON-PHYSICAL-DEMONS.DOC

TRIAL

▲ Day 4 of 167

◀ Sidebar: Simpson physical demonstration Motion: Fuhrman racial bias evidence ▶

Date: Monday, January 23, 1995 • Utterances: 29

Judge Ito ruled that the prosecution would have until the next morning to respond to the defense's surprise motion for a physical demonstration during opening statements. Despite being granted the continuance, Marcia Clark repeatedly tried to argue the motion on the spot, prompting visible frustration from Ito, who had to cut her off multiple times before pivoting to ask Cochran about missing videotapes.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

# 2 THE COURT:

THANK YOU, COUNSEL. THE RECORD SHOULD REFLECT THE COURT HAS HEARD AT SIDEBAR THE OFFER OF PROOF AS TO THE NATURE OF THE DEMONSTRATION THAT WOULD BE MADE. THE PROSECUTION HAS ASKED FOR AN OPPORTUNITY TO RESPOND TO THIS MOTION SINCE THEY JUST BECAME AWARE OF IT LATE THIS MORNING. IT SEEMS TO ME BY LOOKING AT THE CLOCK TODAY THAT WE WILL NOT GET TO THE DEFENSE PART OF THE OPENING STATEMENT TODAY. SO I'LL GIVE COUNSEL FOR THE PROSECUTION LEAVE UNTIL TOMORROW MORNING TO RAISE ANY OBJECTIONS TO THE SUGGESTION MADE BY THE DEFENSE.

# 3 MS. CLARK:

YOUR HONOR, WE APPRECIATE THAT. THE PROBLEM IS THAT WE DON'T -- HOW CAN WE PROCEED WITH OPENING STATEMENTS OURSELVES WITHOUT KNOWING WHAT THE DEFENSE IS GOING TO BE PERMITTED TO DO? THE DEFENSE COMPLAINS ABOUT WE'RE ALWAYS ASKING TO PRECLUDE THEM FROM DOING SOMETHING. WE'RE NOT. WE ARE ASKING FOR A FAIR AN ORDERLY TRIAL IN WHICH THE PEOPLE'S RIGHTS ARE NOT BEING ABROGATED BY THESE LAST MINUTE AMBUSHES WHERE THEY'RE MAKING REQUESTS -- NOW THEY'VE MADE A MOTION THAT WE'VE NEVER SEEN BEFORE AND THEY WANT US TO BE ABLE TO RESPOND IMMEDIATELY TO IT. THE COURT'S GIVING US UNTIL TOMORROW. WE APPRECIATE THAT. BUT WE CERTAINLY CANNOT PLAN OUR STRATEGY WITHOUT KNOWING HOW THAT RULING IS GOING TO GO. THIS IMPACTS ON US, AND I THINK THAT COUNSEL --

# 4 THE COURT:

WELL, COUNSEL, YOU'RE AWARE THAT WHEN DEFENDANTS MAKE PRESENTATIONS THAT ARE TESTIMONIAL IN NATURE, THEY'RE SUBJECT TO CROSS-EXAMINATION. THAT SEEMS TO BE PRETTY WELL SETTLED. NORMALLY IT'S THE PROSECUTION THAT'S HERE ASKING FOR NON-TESTIMONIAL EVIDENCE TO BE PRESENTED SUCH AS PHYSIQUES, PHYSICAL INJURY, THAT SORT OF THING AS BEING NON-TESTIMONIAL.

# 5 MS. CLARK:

BUT THAT'S DURING A TRIAL, YOUR HONOR. THIS IS DURING OPENING STATEMENT.

# 6 THE COURT:

I UNDERSTAND.

# 7 MS. CLARK:

THIS IS NOT THE TIME FOR ADMISSION OF EVIDENCE, AND THAT'S THE PROBLEM WE HAVE.

# 8 THE COURT:

WELL, COUNSEL, WHAT'S THE DIFFERENCE BETWEEN YOUR SHOWING PHOTOGRAPHS OF ONE OF THE VICTIM'S BODIES AND THE DEMONSTRATION THAT'S SUGGESTED BY MR. COCHRAN? WHAT'S THE DIFFERENCE? THEY'RE BOTH PRESENTATION OF WHAT WILL PROBABLY BE EVIDENCE AT TRIAL. THE ISSUE IS, IS THERE SOMETHING THAT'S GOING TO BE FUNDAMENTALLY UNFAIR ABOUT IT.

KEY QUOTE

# 9 MS. CLARK:

YES.

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

# 11 MS. CLARK:

YOUR HONOR, WHAT THE DIFFERENCE IS --

# 12 THE COURT:

WELL, COUNSEL, I'VE ALREADY TOLD YOU I'LL HEAR THE ARGUMENT TOMORROW MORNING. I'M GIVING YOU LEAVE UNTIL TOMORROW MORNING.

# 13 MS. CLARK:

I CAN ONLY REITERATE THAT --

# 14 THE COURT:

NO. YOU DON'T NEED TO REITERATE IF I'VE ALREADY HEARD IT.

# 15 MS. CLARK:

WELL, YOU HAVEN'T HEARD THIS.

# 16 THE COURT:

AS SOON AS YOU SAY, "I WANT TO REITERATE" --

# 17 MS. CLARK:

YOU'RE RIGHT. I USED THE WRONG WORD.

# 18 THE COURT:

ALL RIGHT.

# 19 MS. CLARK:

COUNSEL -- AS THE COURT IS AWARE, COUNSEL ALREADY HAS PHOTOGRAPHS OF THE INJURY THAT THEY'VE SHOWN --

# 20 THE COURT:

COUNSEL, YOU ARE ARGUING THE MOTION NOW. I'VE SAID I'LL HEAR THE ARGUMENT TOMORROW MORNING.

# 21 MS. CLARK:

VERY WELL, YOUR HONOR.

# 22 THE COURT:

IF YOU WANT TO RAISE IT AGAIN -- IT'S NOT A BIG DEAL AT THIS POINT.

# 23 MS. CLARK:

ALL RIGHT. ALL I'M ASKING -- I WON'T ADDRESS IT ANY FURTHER.

# 24 THE COURT:

THANK YOU.

# 25 MS. CLARK:

ALL I WAS ASKING WAS THAT THE COURT ISSUE -- GIVE US AN OPPORTUNITY TO KNOW THE RULING BEFORE WE ARGUE -- BEFORE WE GIVE OPENING STATEMENT, BEFORE THE PEOPLE GIVE OPENING STATEMENT. THE COURT'S AWARE OF THAT REQUEST.

# 26 THE COURT:

DID YOU HEAR WHAT I SAID ABOUT TWO MINUTES AGO?

# 27 MS. CLARK:

I'M SURE I HEARD EVERYTHING THE COURT SAID.

# 28 THE COURT:

OKAY. OKAY. LET ME TAKE A DEEP BREATH HERE. ALL RIGHT. MR. COCHRAN, HAVE WE RECEIVED ANY WORD FROM YOUR OFFICE REGARDING THE WHEREABOUTS OF THE SECOND OR THIRD VIDEOTAPES?

KEY QUOTE

# 29 MR. COCHRAN:

NO, YOUR HONOR. I EXPECTED IT WOULD TAKE THEM ABOUT 20 MINUTES. WE'RE A LITTLE SHORT OF THAT. THEY'RE GOING TO CALL THE CLERK AS SOON AS THEY GET TO THE OFFICE, AND THEN I'LL LET YOUR HONOR KNOW AS SOON AS WE GET WORD.

Temperature

tense

Key Quotes (4)

Lance A. Ito

WHAT'S THE DIFFERENCE BETWEEN YOUR SHOWING PHOTOGRAPHS OF ONE OF THE VICTIM'S BODIES AND THE DEMONSTRATION THAT'S SUGGESTED BY MR. COCHRAN? WHAT'S THE DIFFERENCE? THEY'RE BOTH PRESENTATION OF WHAT WILL PROBABLY BE EVIDENCE AT TRIAL.

Ito signals skepticism toward the prosecution's objection, drawing a parallel that undercuts Clark's position before she's even made her full argument.

Lance A. Ito

AS SOON AS YOU SAY, 'I WANT TO REITERATE' --

The judge cuts Clark off mid-sentence, illustrating his growing impatience with her persistence after he had already ruled.

Lance A. Ito

OKAY. OKAY. LET ME TAKE A DEEP BREATH HERE.

A rare moment of visible judicial frustration — Ito essentially calls a timeout on Clark's repeated attempts to argue despite his instructions.

Marcia Clark

WE ARE ASKING FOR A FAIR AN ORDERLY TRIAL IN WHICH THE PEOPLE'S RIGHTS ARE NOT BEING ABROGATED BY THESE LAST MINUTE AMBUSHES.

Clark frames the defense's surprise motion as a deliberate tactical ambush, articulating the prosecution's core complaint about late defense disclosures.

Evidence (2)

Informal

Photographs of a victim's body, referenced by Ito as analogous to the proposed defense demonstration

discussed

Informal

Second and third videotapes sought from Cochran's office, subject unknown

discussed — whereabouts unknown at time of proceeding

Notable Exchanges (2)

Lance A. Ito•Marcia Clark

Clark repeatedly attempts to argue the motion after Ito explicitly told her twice to save argument for the next morning. Ito cuts her off each time, eventually saying 'Let me take a deep breath here' before changing the subject entirely.

tense

Lance A. Ito•Marcia Clark

Clark corrects herself after using the word 'reiterate,' acknowledging 'You're right. I used the wrong word' — a small but telling concession that she had been pushing past the judge's limits.

revealing

Light Moments (1)

Lance A. Ito

Ito's exasperated 'Did you hear what I said about two minutes ago?' after Clark continued arguing despite two prior cutoffs.

Objections

None recorded

Proceeding 4412 • 29 utterances

Criminal Trial

Department 103