YES, YOUR HONOR. THANK YOU VERY MUCH AND GOOD AFTERNOON. YOUR HONOR, THE COURT ASKED ME TO EXAMINE THE RECORD OVER THE LUNCH HOUR FROM THIS MORNING WITH REGARD TO PORTIONS OF MR. COCHRAN'S --
THERE YOU ARE. I THOUGHT MR. COCHRAN WAS HIDING FROM ME AND PERHAPS HE SHOULD. I SEE HIM NOW. AND, YOUR HONOR, LET ME SAY THIS. I WAS ABOUT TO SAY, YOU ASKED ME TO EXAMINE THE RECORD FOR INSTANCES OF INAPPROPRIATE REMARKS FOR AN OPENING STATEMENT. I'M GOING TO MAKE THE PEOPLE'S POSITION ABSOLUTELY CLEAR, YOUR HONOR, THIS AFTERNOON WITH REGARD TO WHEN OBJECTIONS ARE LIKELY TO BE POSED BECAUSE I WANT TO GIVE MR. COCHRAN FAIR NOTICE. WHAT WE HEARD IN LARGE PART THIS MORNING WAS NOT AN OPENING STATEMENT, BUT WHAT COULD VERY WELL PASS FOR ARGUMENT, AND IF GIVEN IN ARGUMENT, WOULD NOT BE OBJECTIONABLE. BUT THIS MORNING -- AND AS I STATED TO THE COURT, I AM RELUCTANT IN ANY CASE TO INTERFERE WITH OPPOSING COUNSEL'S OPENING STATEMENT. IT WAS WITH GREAT RESTRAINT THIS MORNING THAT I DID OBJECT TO A NUMBER OF CLEARLY OBJECTIONABLE REMARKS MADE BY MR. COCHRAN. I WILL HIGHLIGHT THOSE IN JUST A FEW MOMENTS. HOWEVER, YOUR HONOR, WHAT THE PEOPLE ARE SEEKING THIS AFTERNOON IS, FIRST OF ALL, AN ADMONITION TO MR. COCHRAN NOT TO ENGAGE IN ARGUMENT IN THE GUISE OF AN OPENING STATEMENT. SECONDLY, WITH REGARD TO VARIOUS PASSAGES, WHICH I WILL HIGHLIGHT AND PINPOINT FOR THE COURT IN JUST A MOMENT, I'M GOING TO BE ASKING FOR A MOTION TO STRIKE, AND IN ADDITION, AN ADMONITION TO THE JURY TO DISREGARD SUCH STATEMENTS BECAUSE NOT ONLY ARE THEY NOT EVIDENCE, BUT IMPROPER REMARKS FOR AN OPENING STATEMENT AND THE JURY SHOULD BE SO ADVISED. IN ADDITION, YOUR HONOR, AFTER I ADDRESS THE OPENING STATEMENT ISSUE, I HAVE AN ADDITIONAL ISSUE TO RAISE WITH REGARD TO DISCOVERY BECAUSE IT APPEARS WE ARE ABOUT TO REVISIT THE EVENTS OF MONDAY TO SOME DEGREE. I WILL BEGIN, YOUR HONOR, BY STATING GENERALLY, MANY OF MR. COCHRAN'S REMARKS WERE IN THE FORM OF RHETORICAL QUESTIONS. MANY OF HIS REMARKS WERE IN THE FORM OF A PERSONAL ATTACK ON MY COLLEAGUES, MISS CLARK AND MR. DARDEN. SUCH REMARKS ARE NOT FITTING NOR ARE THEY APPROPRIATE IN AN OPENING STATEMENT, ABSOLUTELY 100 PERCENT NOT FITTING, NOT APPROPRIATE. LET ME GIVE YOU JUST A FEW EXAMPLES. AND I HAVE TO CITE TO THE REFERENCE THAT WE WERE GIVEN OFF THE DISK THAT THE COURT REPORTERS WERE ABLE TO PROVIDE US. FOR INSTANCE -- AND I CITE TO WHAT APPEARS TO BE 0553 OF THIS MORNING'S TRANSCRIPT WHERE THE DEFENSE ARGUES THAT THIS CASE IS ABOUT A RUSH TO JUDGMENT, AN OBSESSION TO WIN AT ANY COST BY ANY MEANS NECESSARY. YOUR HONOR, SUCH A REMARK IS FITTING FOR ARGUMENT PERHAPS, NOT FITTING FOR AN OPENING STATEMENT. CLEARLY THAT IS OUTSIDE THE BOUNDS. AND AGAIN, YOUR HONOR, I --
WELL, MR. HODGMAN, HOW DOES THAT COMPARE TO MR. DARDEN'S ARGUMENT THAT THE ISSUE IS THAT YOU HAVE TO ESTABLISH THE RELATIONSHIP AND THAT THE PERSON WHO IS GUILTY OF THIS CRIME IS A WIFE BEATER, BATTERER, CONTROLLER, BLAH, BLAH, BLAH? SOUNDS LIKE THE SAME ARGUMENT TO ME.
WELL, DOES THE COURT INTEND TO MAKE AN EQUITY CALL? I'M SIMPLY POSING TO THE COURT --
NO. THE PROBLEM, MR. HODGMAN -- HERE'S THE PROBLEM. EACH SIDE HAS TO PRESENT WHAT THEIR THEORY OF THE CASE IS. THAT INVOLVES SOME TYPE OF SHORT EXPLANATION AS TO WHAT THAT ARGUMENT IS GOING TO BE AND, "HERE'S THE EVIDENCE THAT'S GOING TO BACK UP OUR THEORY OF THE CASE." THAT'S OPENING STATEMENT.
AND I WOULD SUBMIT TO THE COURT BASED ON WHAT WE HEARD THIS MORNING, THAT LINE GOT CROSSED VERY, VERY EARLY ON.
MR. HODGMAN, LET ME DO THIS. AND PLEASE FORGIVE ME FOR INTERRUPTING YOU AGAIN, BUT WE DID DISCUSS THIS ALSO INFORMALLY. MY SUGGESTION IS THAT WE DO THIS. BECAUSE WE HAVE TO BREAK EARLY FOR ONE OF THE JUROR'S MEDICAL APPOINTMENTS THIS AFTERNOON, LET ME LET YOU PUT THESE MATTERS ON THE RECORD WHEN WE CONCLUDE. LET ME JUST CAUTION AT THIS TIME MR. COCHRAN -- BECAUSE I DID MENTION TO HIM THAT I FELT WE WERE ABOUT TO CROSS OVER THE LINE INTO ARGUMENT -- YOU CAN TELL THEM WHAT THE THEORY IS. MR. HODGMAN, THEY ARE ENTITLED TO SAY, "THE PROSECUTION HAS INDICATED THIS IS THEIR THEORY OF THE CASE AND HOW THEY'RE GOING TO PROCEED," AND HE'S ENTITLED TO SAY, "THIS IS WHAT WE ARE GOING TO PRESENT TO COUNTER THAT," AND HE GETS TO EXPLAIN HOW THEY PLAN TO DO THAT. NOW, I AGREE WITH YOU THAT EVALUATING IT AND TELLING -- SAYING THAT YOUR CASE IS TRASH FOR THIS REASON OR THAT REASON, THAT GETS INTO ARGUMENT. I AGREE. I WILL BE MORE -- MY FEELING WAS THAT THE DEFENSE GAVE BOTH MR. DARDEN AND MISS CLARK WIDE LEEWAY IN ARGUING -- IN PRESENTING THEIR OPENING STATEMENTS, ALL RIGHT?
BUT WHAT THE DEFENSE DIDN'T DO YESTERDAY, YOUR HONOR, WAS ENGAGE IN RHETORICAL ATTACKS UPON OPPOSING COUNSEL SUCH AS, YOU KNOW, "WHY DIDN'T MR. DARDEN TELL YOU ABOUT THIS YESTERDAY, WHY DIDN'T MISS CLARK STATE SOMETHING ELSE YESTERDAY?"
SO WHAT CAN BE SAID IS THAT, "THE PROSECUTION DID NOT COMPLETE -- DID NOT GIVE YOU A COMPLETE PICTURE. WE ARE GOING TO ADD THIS PIECE, THIS PIECE AND THIS PIECE FOR A CLEAR PICTURE." I THINK MR. COCHRAN CAN PHRASE IT THAT SIMPLY WITHOUT REFERRING TO WHAT THE PROSECUTION SAID.
OKAY. WE HAVE ADDITIONAL LANGUAGE. AND I RAISE THIS NOW, AND I WILL DETAIL THESE OBJECTIONS MORE CLEARLY AT A TIME SUGGESTED BY THE COURT. BUT TIME AND TIME AGAIN, MR. COCHRAN STATED THIS MORNING, "AND YOU WOULD HAVE TO BELIEVE AND YOU WOULD HAVE TO BELIEVE AND THEN YOU WOULD HAVE TO BELIEVE" TIME AND TIME AGAIN, WHICH AGAIN, YOUR HONOR, THIS GOES TO ARGUMENT, NOT TO OPENING STATEMENT. OPENING STATEMENT IS SUPPOSED TO BE A RECITATION OF THE EVIDENCE THAT THEY EXPECT TO PRODUCE. AND WHAT YOU HAVE CLEARLY IS ARGUMENT. THIS IS ENTIRELY INAPPROPRIATE LANGUAGE, YOUR HONOR.
COUNSEL, I HAVE CHOSEN TO CAUTION MR. COCHRAN. I CAN TELL IN HIS RESPONSE TO ME THAT HE TAKES MY CAUTION SERIOUSLY, ALTHOUGH I'M BEGINNING TO FEEL LIKE THE RODNEY DANGERFIELD OF JUDGES THESE DAYS. IN FACT, I'LL HAVE TO CALL BARRY LANGBERG LATER TODAY. BUT, MR. COCHRAN, YOU WILL TAKE SERIOUSLY MY CAUTION.
I AGREE WITH YOU. THE ONLY REASON I RAISE THIS NOW IS SO WE CAN HAVE APPROPRIATE OPENING STATEMENT THIS AFTERNOON. IN REFERENCE TO HEARSAY, I LODGED MY OBJECTION THIS MORNING. I TRUST THAT THE COURT AND COUNSEL UNDERSTAND THE BASIS FOR THAT. I WOULD POINT OUT AS WELL THAT BASED UPON THE RECORD PRODUCED THUS FAR IN THIS CASE, THAT REFERENCE TO MARK FUHRMAN BY NAME SHOULD NOT HAVE BEEN MADE BASED UPON -- NO. I AM REFERRING TO PAGE 11479 OF THE RECORD. THIS IS MONDAY, JANUARY 23RD. THE COURT STATES:
"I AM PRECLUDING THE DEFENSE FROM MAKING MENTION OF DETECTIVE FUHRMAN DURING THE COURSE OF THEIR OPENING STATEMENT SOLELY ON THE BASIS OF THE FACT OF THE LATE TURNING OVER OF OTHER STATEMENTS OF KATHLEEN BELL TODAY."
WHAT HAPPENED, LATER IN THE RECORD, THERE WAS A REQUEST FOR CLARIFICATION. I INDICATED THAT THEY COULD NOT MENTION DETECTIVE FUHRMAN IN THE CONTEXT OF KATHLEEN BELL. THEY COULD MENTION HIS PARTICIPATION IN THE INVESTIGATION. HOWEVER, NOT IN THE -- THEY COULD NOT IN OPENING STATEMENT MENTION THE KATHLEEN BELL ASPECT.
VERY WELL, YOUR HONOR. I WILL STAND BY THE CLARIFICATION. THERE'S ONE LAST POINT THAT I WILL RAISE IN GREATER DETAIL THIS AFTERNOON -- I KNOW THE COURT WANTS TO MOVE ALONG -- AND THAT IS THE DISCOVERY ISSUE. I CAN POINT OUT TWO NAMES IN PARTICULAR THIS MORNING THAT WERE MENTIONED IN THE DEFENSE OPENING STATEMENT; MARYANNE GERCHAS AND JOE STELLINI. THESE ARE NAMES WHICH ARE ON THE DEFENSE WITNESS LIST. BUT THE WAY MR. COCHRAN REFERRED TO THESE WITNESSES THIS MORNING, IT WAS EVIDENT THAT THESE WITNESSES HAVE BEEN INTERVIEWED, THAT THERE HAVE TO BE STATEMENTS OUTSTANDING SOMEPLACE. NOW, WE HAVE GONE THROUGH THIS OVER THE PAST COUPLE DAYS. THE DEFENSE IS SUPPOSED TO DISCOVER WITNESS STATEMENTS TO THE PEOPLE AND --
I SHARE THE COURT'S CONCERN, YOUR HONOR. I SHARE THE COURT'S CONCERN FOR THIS REASON. BECAUSE, AS WE HAVE STATED THROUGHOUT THESE PROCEEDINGS GOING BACK TO LATE JUNE AND EARLY JULY IN MUNICIPAL COURT AND SUPERIOR COURT --
MR. HODGMAN, PLEASE FORGIVE ME. I RECOGNIZE IT AS A DISCOVERY ISSUE. WE'LL TAKE IT UP AS SOON AS WE GET THE JURORS ON THEIR WAY AT 3:30. THEN WE'LL HAVE A FULL HOUR THAT WE CAN SIT AND TALK ABOUT THIS. I AM CONCERNED AND I DO RECOGNIZE IT AS A DISCOVERY ISSUE AND I'M GOING TO MAKE FURTHER INQUIRY.
VERY WELL, YOUR HONOR. WHAT I'M CONCERNED ABOUT IS THE PROSPECTIVE ASPECT THIS AFTERNOON WHEN MR. COCHRAN SPEAKS. WHAT ELSE ARE WE GOING TO HEAR ABOUT? THE PEOPLE ARE BEING DENIED THEIR RIGHT TO A FAIR TRIAL, YOUR HONOR. THAT IS WHAT'S OCCURRING. THIS IS SURPRISE. THE COURT SEES THE ISSUE. THE COURT SEES AND SENSES OUR CONCERN. IT IS HAPPENING IN OPENING STATEMENT, AND THE PEOPLE HAVE NOT RECEIVED RECIPROCAL DISCOVERY. I THINK THAT IS EVIDENT TO THE COURT. THE PEOPLE ARE NOT GETTING THEIR FAIR SHOT, YOUR HONOR.
I THINK THAT'S PROBABLY A GOOD IDEA. THEY'VE CUT INTO MY TIME. I HAVE TO SPEED UP NOW.
WE HAVEN'T TAKEN 10 MINUTES OUT OF MR. COCHRAN'S TIME. WHAT TIME WOULD YOU LIKE THEM BACK TOMORROW?
I'M BEGINNING TO FEEL LIKE THE RODNEY DANGERFIELD OF JUDGES THESE DAYS. IN FACT, I'LL HAVE TO CALL BARRY LANGBERG LATER TODAY.
THE PEOPLE ARE BEING DENIED THEIR RIGHT TO A FAIR TRIAL, YOUR HONOR. THAT IS WHAT'S OCCURRING. THIS IS SURPRISE.
EACH SIDE HAS TO PRESENT WHAT THEIR THEORY OF THE CASE IS. THAT INVOLVES SOME TYPE OF SHORT EXPLANATION AS TO WHAT THAT ARGUMENT IS GOING TO BE AND, 'HERE'S THE EVIDENCE THAT'S GOING TO BACK UP OUR THEORY OF THE CASE.' THAT'S OPENING STATEMENT.
THEY'VE CUT INTO MY TIME. I HAVE TO SPEED UP NOW.