Sidebar: reopening objections

📄 Sidebar: reopening objections — Tuesday, January 31, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JAN\31\SIDEBAR-REOPENING-OBJECTIONS.DOC

TRIAL

▲ Day 9 of 167

◀ Opening statement reopening Witness exclusion ruling ▶

Date: Tuesday, January 31, 1995 • Utterances: 70

Before testimony begins on the 1989 domestic violence incident, Cochran lodges a continuing objection to all domestic discord evidence as character assassination. The sidebar also resolves a dispute over witness exclusion rules, with Bailey and Cochran arguing that defense investigators should receive the same courtroom access as the prosecution's investigating officers Lange and Vannatter. The session ends with agreements on expert witnesses observing domestic violence testimony, including Lenore Walker watching by television feed.

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

# 2 THE COURT:

AT THE SIDE BAR, MR. COCHRAN.

# 3 MR. COCHRAN:

I'M GOING TO OBJECT BECAUSE ALL KIND OF HEARSAY AND SHAPIRO AND SHAPIRO'S INVESTIGATOR SAID, PLUS MISS SHEILA CARTER. WE THE REPORTS, BUT IF THEY KNEW SO MUCH ABOUT THIS, THEY HAVEN'T GIVEN US ANYTHING REGARDING SHEILA CARTER, SO IT WORKS BOTH WAYS.

# 4 MS. CLARK:

WELL, IT IS IMPEACHMENT.

# 5 MR. COCHRAN:

YOUR HONOR, I'VE GOT NO REPORTS ON SHEILA CARTER AND THIS IS THE FIRST TIME THAT HAS BEEN INTRODUCED.

# 6 THE COURT:

ALL RIGHT. WE WILL TAKE UP THIS ISSUE LATER.

# 7 MR. COCHRAN:

CAN I JUST SAY SOMETHING, YOUR HONOR?

# 8 THE COURT:

SURE.

# 9 MR. COCHRAN:

I THINK SHE GETS UP AND TALKS ABOUT HER AND ACCUSES OF ALL KIND OF STUFF. IF THAT IS A VIOLATION, YOUR HONOR, WE SHOULD DEAL WITH IT RIGHT NOW.

# 10 THE COURT:

I THINK THIS IS A FOOTNOTE 11 PROBLEM, ISN'T IT?

# 11 MR. COCHRAN:

WELL, MAYBE, BUT --

# 12 THE COURT:

REFERRING TO FOOTNOTE 11 IN IZAZAGA.

# 13 MR. COCHRAN:

YES, I THINK IT IS.

# 14 THE COURT:

ALL RIGHT. WE WILL TAKE IT UP. YOUR OBJECTION IS NOTED.

# 15 MR. COCHRAN:

WHILE WE ARE UP HERE, SO I CAN SAVE SOME MORE TIME, I WANT TO NOW LODGE MY OBJECTION TO -- I WANT TO PHRASE THIS AS APPROPRIATELY AS POSSIBLE. WE HAVE PREVIOUSLY ASKED THE PEOPLE FOR AN ONGOING OBJECTION TO ALL OF THIS TESTIMONY WHICH WE BELIEVE IS CHARACTER ASSASSINATION, DEALING WITH CHARACTER, DEALING WITH THE INCIDENTS OF 1989, 1993, ANYTHING DEALING WITH ANY DOMESTIC DISCORD ISSUE, O.J. SIMPSON AND HIS WIFE. AND I WANT TO NOW LODGE THE OBJECTION TO WHAT I UNDERSTAND IS GOING TO BE THE 1989 INCIDENT.

# 16 (NODS HEAD UP AND DOWN.)

# 17 MR. COCHRAN:

IS THIS GOING TO BE SUCH, AT LEAST FOR THIS FIRST INCIDENT, BECAUSE I WANT TO APPROACH THE BENCH.

# 18 THE COURT:

YES.

# 19 MR. COCHRAN:

THE RECORD SHOULD REFLECT WE HAVE A CONTINUING OBJECTION AND I WANT TO DO IT IN A TACTFUL MANNER.

# 20 THE COURT:

ALL RIGHT. THANK YOU, COUNSEL.

# 21 MR. COCHRAN:

WILL THE COURT LODGE AND NOTE MY OBJECTION?

# 22 THE COURT:

I NOTE YOUR OBJECTIONS.

# 23 MR. SHAPIRO:

YOUR HONOR, ALSO MAY I ASK FOR A POINT OF CLARIFICATION. I WASN'T SURE WHEN MISS CLARK SAID THAT SHE SPOKE TO ROBERT SHAPIRO, WHETHER SHE WAS REFERRING TO MISS GERCHAS OR THIS OTHER LADY.

# 24 MS. CLARK:

MISS GERCHAS. AND WHEN WE CALL MISS GERCHAS WE WILL ASK ABOUT IT AND I HAVE -- I HAVE BEEN VERY CAREFUL TO DISCUSS ONLY WHAT I BELIEVE THAT IS -- WOULD BE ADMISSIBLE IN EVIDENCE, EITHER THROUGH CROSS-EXAMINATION OR DIRECT OF THAT WITNESS.

# 25 THE COURT:

WELL, WE CAN TAKE ALL OF THIS UP.

# 26 MR. SHAPIRO:

I WILL TELL YOU AT THIS POINT IN TIME, I AM ABSOLUTELY AS CERTAIN AS I CAN BE THAT I HAVE NEVER SEEN THIS WOMAN IN MY LIFE.

KEY QUOTE

# 27 MS. CLARK:

GOES TO HER CREDIBILITY, COUNSEL. THAT IS WHAT I MEAN.

# 28 MR. COCHRAN:

HOWARD WEITZMAN. SHE KNOWS WHAT HOWARD WEITZMAN IS GOING TO SAY ABOUT THIS. THE LAWYER IS GOING TO SAY HE GOES OFF TO LUNCH AND LEAVES HIS CLIENT?

# 29 MS. CLARK:

GUESS WHAT? GUESS WHAT?

# 30 MR. COCHRAN:

I DON'T BELIEVE IT.

# 31 MS. CLARK:

BE REAL CAREFUL WHEN YOU SAY THAT.

# 32 MR. COCHRAN:

I DON'T BELIEVE IT, UNLESS YOU GOT A TAPE.

# 33 THE COURT:

WE WILL TAKE IT UP UNDER THE FOOTNOTE 11 ISSUES.

# 34 MR. BAILEY:

HAVE YOU EXEMPTED ANY WITNESSES FROM THE RULE?

# 35 THE COURT:

EXCLUSION RULE.

# 36 MR. COCHRAN:

YEAH, THE FAMILY.

# 37 MR. BAILEY:

NO, NO, PROFESSIONAL WITNESSES, POLICE.

# 38 THE COURT:

OTHER THAN -- WELL, THERE IS A STANDARD EXCEPTION FOR THE INVESTIGATING OFFICERS.

# 39 MR. BAILEY:

I AM WONDERING IF OUR INVESTIGATOR CAN COME AND GO WITHOUT BEING EXCLUDED.

# 40 MR. COCHRAN:

I THINK OUR --

# 41 MR. BAILEY:

EITHER THAT, OR IF THEY INTEND TO STAY DURING TESTIMONY, I THINK WE OUGHT TO HAVE A RECIPROCAL RULING.

# 42 MR. COCHRAN:

I WILL MAKE A MOTION, IF THE COURT PLEASES, PAT MC KENNA AND PAVELIC, IF THAT IS ALL RIGHT WITH THE COURT.

# 43 THE COURT:

ANY COMMENTS?

# 44 MS. CLARK:

YES. THERE IS NO RECIPROCAL ON THE PART OF THE DEFENSE TO HAVE AN INVESTIGATING OFFICER PRESENT, AND IF THEY DO, THEN I WILL BE CROSS-EXAMINING ON THAT SHOULD HE BE CALLED AS A WITNESS, TO THE FACT THAT HE WAS PRESENT AND LISTENED TO ALL OF THE TESTIMONY BEFORE HE TOOK THE WITNESS STAND.

# 45 MR. BAILEY:

THE SAME.

# 46 MR. COCHRAN:

JUST A MOMENT. THAT IS NOT FAIR. LANGE AND VANNATTER ARE SITTING HERE THE WHOLE TIME. WE TALK ABOUT EVERYTHING BEING RECIPROCAL AND LET'S START TO MAKE IT RECIPROCAL.

# 47 MR. DARDEN:

CAN I INTERRUPT FOR A MOMENT AND STEP OUTSIDE AND SEE IF THE WITNESS IS OUTSIDE SO THERE WON'T BE AN INTERRUPTION?

# 48 THE COURT:

PLEASE.

# 49 MS. CLARK:

THERE IS A STATUTORY EXCEPTION FOR THE INVESTIGATING OFFICERS IN THE CASE TO BE PRESENT. THAT IS DIFFERENT AND THAT IS FINE. THEY WANT TO HAVE HIM PRESENT, I'M JUST GIVING FAIR WARNING.

# 50 THE COURT:

OKAY.

# 51 MS. CLARK:

I INTEND TO CROSS-EXAMINE ON IT.

KEY QUOTE

# 52 MR. COCHRAN:

I DO --

# 53 MS. CLARK:

I WOULD OBJECT AND I'M LODGING MY OBJECTION FOR THE RECORD.

# 54 THE COURT:

KEEP YOUR VOICE DOWN.

# 55 MR. COCHRAN:

WE ARE TALKING ABOUT WHAT'S FAIR AND I THINK IT IS FAIR THAT WE SHOULD HAVE OUR INVESTIGATING OFFICERS.

# 56 THE COURT:

THOSE TWO INVESTIGATORS?

# 57 MS. CLARK:

ONE FURTHER CLARIFICATION, YOUR HONOR, ALONG THIS LINE. WE HAVE DOMESTIC VIOLENCE EXPERTS THAT WE WILL BE CALLING TO TESTIFY AND I ASK LEAVE OF THE COURT TO ALLOW THEM TO OBSERVE THE TESTIMONY OF THE DOMESTIC VIOLENCE WITNESSES.

# 58 THE COURT:

YEAH. WE WILL TAKE THIS ON A CASE BY CASE BASIS, BUT I THINK BOTH SIDES CAN MAKE THAT REQUEST.

# 59 MS. CLARK:

I HAVE NO OBJECTION TO THEIRS ALSO.

# 60 MR. SHAPIRO:

WE WILL BE IN AGREEMENT THAT ALL EXPERT WITNESSES --

# 61 MR. COCHRAN:

I WILL AGREE WITH THAT, BUT I WOULD LIKE LENORE WALKER TO BE ABLE TO WATCH IT ON TELEVISION WHEREVER SHE IS.

# 62 THE COURT:

I THOUGHT THAT WE DID THAT.

# 63 MS. CLARK:

SURE.

# 64 MR. COCHRAN:

I WANT TO MAKE SURE WE ARE CLEAR, YOUR HONOR. YOU CAN'T BE TOO CAREFUL, JUDGE, ABOUT THESE THINGS.

# 65 THE COURT:

SURE, WE CAN, AND WE ARE GETTING A FRESH START TODAY.

# 66 MR. COCHRAN:

WE ARE. SHE AND I AGREED WE ARE NOT ATTACKING EACH OTHER. SHE WON'T BE UP TODAY ANYWAY; IT WILL BE CHRIS.

KEY QUOTE

# 67 MS. CLARK:

THAT IS WHY YOU SAID THAT.

# 68 MR. COCHRAN:

I KNOW.

# 69 MR. COCHRAN:

THANKS, JUDGE. I WILL MAKE MY MOTION NOW FOR THE EXCLUSION OF WITNESSES.

# 70 THE COURT:

ALL RIGHT.

Temperature

tense

Key Quotes (5)

Johnnie Cochran

WE HAVE PREVIOUSLY ASKED THE PEOPLE FOR AN ONGOING OBJECTION TO ALL OF THIS TESTIMONY WHICH WE BELIEVE IS CHARACTER ASSASSINATION, DEALING WITH CHARACTER, DEALING WITH THE INCIDENTS OF 1989, 1993, ANYTHING DEALING WITH ANY DOMESTIC DISCORD ISSUE, O.J. SIMPSON AND HIS WIFE.

Cochran formally lodges a blanket continuing objection to all domestic violence evidence, framing it as character assassination rather than probative conduct.

Robert Shapiro

I WILL TELL YOU AT THIS POINT IN TIME, I AM ABSOLUTELY AS CERTAIN AS I CAN BE THAT I HAVE NEVER SEEN THIS WOMAN IN MY LIFE.

Shapiro flatly denies ever meeting witness Gerchas, undercutting Clark's impeachment theory before it is developed at trial.

Johnnie Cochran

LANGE AND VANNATTER ARE SITTING HERE THE WHOLE TIME. WE TALK ABOUT EVERYTHING BEING RECIPROCAL AND LET'S START TO MAKE IT RECIPROCAL.

Cochran draws an explicit double-standard argument on the witness exclusion rule, pointing to the prosecution's investigating officers as precedent for defense investigators.

Marcia Clark

I INTEND TO CROSS-EXAMINE ON IT.

Clark gives fair warning that if defense investigator McKenna or Pavelic observes testimony and later testifies, she will cross-examine on the fact that they heard all prior testimony first.

Johnnie Cochran

SHE AND I AGREED WE ARE NOT ATTACKING EACH OTHER. SHE WON'T BE UP TODAY ANYWAY; IT WILL BE CHRIS.

Reveals the interpersonal dynamic between lead counsel — Cochran's collegial comment about Clark is quickly undercut by the admission that his goodwill only holds because Darden is handling the day's examination.

Evidence (3)

Informal

Reports or materials related to witness Sheila Carter — Cochran states none were disclosed to the defense

challenged on disclosure grounds

Informal

The 1989 domestic violence incident involving O.J. Simpson and Nicole Brown Simpson

anticipated; Cochran lodges preemptive continuing objection

Informal

The 1993 domestic discord incident

referenced in Cochran's blanket objection, not yet introduced

Notable Exchanges (3)

Johnnie Cochran•Marcia Clark

Cochran presses Clark on whether she has a tape or real evidence of Howard Weitzman's alleged conduct regarding Gerchas. Clark fires back with 'Be real careful when you say that,' implying she does have something.

heated

F. Lee Bailey•Marcia Clark•Lance A. Ito

Bailey raises whether defense investigators McKenna and Pavelic can remain in the courtroom under the witness exclusion rule. Clark agrees to a case-by-case approach but warns she will cross-examine any investigator who testifies after observing proceedings.

strategic

Johnnie Cochran•Marcia Clark

At the close of sidebar, Cochran jokes that he and Clark have agreed not to attack each other today — immediately clarifying it is because Clark is not up; Darden is. Clark gives a knowing response.

light

Light Moments (2)

Johnnie Cochran / Marcia Clark

Cochran tells the court he and Clark have a truce for the day, then immediately reveals it is only because 'She won't be up today anyway; it will be Chris.' Clark replies dryly: 'That is why you said that.'

Johnnie Cochran

Cochran insists on putting Lenore Walker's television viewing arrangement explicitly on the record, adding 'You can't be too careful, Judge, about these things.' Ito replies: 'Sure, we can, and we are getting a fresh start today.'

Credibility Attacks (2)

⚔ Mary Anne Gerchas

prior inconsistent statement / bias

Clark plans to elicit on direct or cross that Gerchas spoke to Robert Shapiro, attacking her credibility by association with the defense. Shapiro flatly denies ever meeting her.

⚔ Sheila Carter

hearsay / lack of disclosure

Clark references statements from Shapiro's investigator and Sheila Carter to impeach a witness; Cochran objects that no reports on Carter were ever disclosed to the defense.

Witness Demeanor

(Christopher Darden nods head up and down when Cochran asks whether the 1989 incident will be the subject of upcoming testimony.)

Objections

4 objections (0 sustained, 0 overruled)

Proceeding 4506 • 70 utterances

Criminal Trial

Department 103