Sidebar (1)

📄 Sidebar (1) — Tuesday, July 18, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JUL\18\SIDEBAR-1-.DOC

TRIAL

▲ Day 117 of 167

◀ Cross-examination of Dr. Robert Huizenga Back on record ▶

Date: Tuesday, July 18, 1995 • Utterances: 52

During a recess bench conference, Judge Ito pressures Kelberg to wrap up his cross-examination of a defense medical expert who testified about OJ Simpson's knee arthritis. Shapiro objects to the length and scope of cross, calling it an effort to derail the defense schedule, while Clark and Shapiro trade sharp words that Ito shuts down. Ito overrules Shapiro's 352 objection to the Juice Plus exercise video.

# 1 (The following proceedings were held at the bench:)

# 2 THE COURT:

Over at the side bar. Mr. Kelberg, you told me two more questions after the videotape.

# 3 MR. KELBERG:

Your Honor, I did not expect his answer to be--I did not expect his answer, which I think the Court will recognize, went on for probably about two and a half minutes, unabated, after I asked the simple question regarding the motivational video. He has thrown in the kitchen sink in an effort--as an advocate--as the jury will see, is as an advocate rather than as a physician.

# 4 THE COURT:

Haven't we established that at this point?

# 5 MR. KELBERG:

I think I have.

# 6 MR. COCHRAN:

Exactly.

# 7 THE COURT:

The only thing that I think we are going to do is we have the tape from yesterday, as I understand it, that will show--

# 8 MS. CLARK:

We don't know.

# 9 MR. KELBERG:

We are previewing it to see if it will show the doctor present when--

# 10 MS. CLARK:

I'm sorry, depends on the camera pan.

# 11 MR. KELBERG:

We are going to see if it shows him present. The Court may think it is collateral.

# 12 THE COURT:

I think that is real collateral. Let's finish.

# 13 MR. KELBERG:

I want to find the one document. There is a different document I was looking for.

# 14 THE COURT:

I agree you can look for the document, but let's wind this up.

# 15 MR. SHAPIRO:

Your Honor, may I be heard briefly?

# 16 THE COURT:

Yes, Mr. Shapiro. I'm sorry, you needed to make your record on an objection previously.

# 17 MR. SHAPIRO:

To paraphrase the former chief Judge of the federal district court, cross-examination is not a marathon, and this witness is called for limited purposes. This cross-examination is now approaching a record, just as the direct examination of Mr. Kelberg broke all existing records, that we also believe that under 352 that the Court should exercise its discretion in controlling the flow of this case, and that the only object of Mr. Kelberg's cross-examination, which sometimes in my opinion borders on the ludicrous, is to slow down the pace of the Defense, which we have told the Court we want to finish in three to four weeks, to throw off our flow of witnesses and to accomplish nothing other than to bore the jury and engage in some type of private conversation with the doctor.

# 18 THE COURT:

All right. Mr. Kelberg, how much more do you have left?

# 19 MR. KELBERG:

If I can find the document, very, very, very brief.

# 20 THE COURT:

One document?

# 21 MR. KELBERG:

I just want to review the Martel report and see if there is any other--

# 22 THE COURT:

All it is going to say--let's face it, it is really a fine point without a distinction. If it is rheumatoid arthritis in his knee or if it is osteoarthritis in his knee, it is still arthritis, and we agree that looking at the railroad tracks on the side of his knee and looking at the number of hits the guy took, he probably has got knee problems. He has got kneemonia.

# 23 MR. KELBERG:

Your Honor, I will accept all that, but the issue is this doctor now wants to make it out that he had an acute onset of rheumatoid arthritis that would have prevented him on June 12--

# 24 THE COURT:

He hasn't said that.

# 25 MR. KELBERG:

Well, he is suggesting it. That is the inference that he wants the jury to draw. And the question is, is he credible--is he credible in forming such an opinion? I find this doctor--

# 26 THE COURT:

Counsel, you've got a videotape of Mr. Simpson walking down the sidewalk on June the 12th at the recital where he is not limping. You've got this exercise video where he is jumping around all day and he is making these arm motions and all this kind of stuff. The Prosecution's theory is that they cornered Mr. Goldman in that little cage. You don't need to chase the guy down. You caught him.

KEY QUOTE

# 27 MR. KELBERG:

I agree with all that, your Honor.

# 28 THE COURT:

Let's wind this up.

# 29 MR. KELBERG:

I will.

# 30 MS. CLARK:

Can I just make one point, your Honor? Eight days of cross on Tom Lange.

# 31 THE COURT:

No, no, no.

# 32 MS. CLARK:

The Court remembers that so I want to put that in context.

# 33 THE COURT:

Miss Clark, I'm not worried about that, but I think we've already made our point here is the point I'm trying to make.

# 34 MR. KELBERG:

I agree, Judge.

# 35 THE COURT:

You made the point that there were many other injuries on the back of the left hand. That was great stuff.

# 36 MS. CLARK:

Right, right.

# 37 MR. KELBERG:

Your Honor, may I be excused?

# 38 THE COURT:

Go ahead.

# 39 MS. CLARK:

I'm not disputing the Court's observations. I just think that Mr. Shapiro's outrageous statements--

# 40 THE COURT:

Miss Clark, you don't need to call his comments outrageous.

# 41 MS. CLARK:

Yes, I do.

# 42 THE COURT:

Thank you.

# 43 MR. SHAPIRO:

I would also object, since they don't want to be here, to the playing of the Juice Plus video, as beyond the scope of direct examination as being--as being a 352 objection and that it should not be--we are practicing law while you are joking.

# 44 THE COURT:

All right.

# 45 MR. SHAPIRO:

And we were--

# 46 MS. CLARK:

I don't think I want to hear any more of this, and I think that the Court ought to shut Mr. Shapiro down before those personal remarks are made. I thought that was not going to be allowed.

# 47 THE COURT:

Miss Clark, stop, please.

# 48 MS. CLARK:

Is it only allowed on one side?

KEY QUOTE

# 49 THE COURT:

Stop it. The Court already ruled on that. The objection is overruled.

# 50 MR. SHAPIRO:

Thank you, your Honor.

# 51 THE COURT:

Just cleaning up our record here, Miss Clark.

# 52 (Recess.)

Temperature

tense

Key Quotes (5)

Lance A. Ito

If it is rheumatoid arthritis in his knee or if it is osteoarthritis in his knee, it is still arthritis, and we agree that looking at the railroad tracks on the side of his knee and looking at the number of hits the guy took, he probably has got knee problems. He has got kneemonia.

Ito undercuts Kelberg's entire line of inquiry with a pun, signaling the court finds the distinction collateral and urging him to move on.

Lance A. Ito

You've got a videotape of Mr. Simpson walking down the sidewalk on June the 12th at the recital where he is not limping... The Prosecution's theory is that they cornered Mr. Goldman in that little cage. You don't need to chase the guy down. You caught him.

Ito essentially coaches the prosecution on why their own theory doesn't require disproving the arthritis claim — a rare moment of judicial candor at sidebar.

Robert Shapiro

The only object of Mr. Kelberg's cross-examination, which sometimes in my opinion borders on the ludicrous, is to slow down the pace of the Defense... to throw off our flow of witnesses and to accomplish nothing other than to bore the jury and engage in some type of private conversation with the doctor.

Shapiro puts a formal 352 objection on record while accusing the prosecution of tactical delay — a rare direct attack on opposing counsel's motives.

Marcia Clark

Eight days of cross on Tom Lange.

Clark invokes the defense's own lengthy cross of prosecution witness Lange to deflect Shapiro's complaint about Kelberg's cross length.

Marcia Clark

Is it only allowed on one side?

Clark pushes back after Ito shuts her down for calling Shapiro's comments 'outrageous' — openly questioning whether the judge is applying standards equally.

Evidence (3)

Informal

Videotape from June 12 recital showing OJ Simpson walking without limping

referenced by Ito to argue arthritis testimony is collateral

Informal

Juice Plus motivational/exercise video showing Simpson active and jumping

disputed — Shapiro objects to its playing as beyond scope of direct, Ito overrules

Informal

Martel report (medical document related to knee diagnosis)

Kelberg seeking to locate for use in cross

Notable Exchanges (3)

Marcia Clark•Robert Shapiro•Lance A. Ito

Clark calls Shapiro's sidebar speech 'outrageous'; Ito tells her to stop; Clark pushes back asking if personal remarks are only allowed from one side; Ito shuts it down with 'Stop it.'

heated

Brian Kelberg•Lance A. Ito

Ito walks Kelberg through why his own theory doesn't require debunking the arthritis claim, effectively telling him to stop chasing a dead end and finish up.

strategic

Robert Shapiro•Lance A. Ito

Shapiro complains the court is 'joking while we are practicing law' after the kneemonia pun, then lodges a formal 352 objection to the Juice Plus video.

tense

Light Moments (1)

Lance A. Ito

Ito coins the word 'kneemonia' to summarize the entire arthritis dispute, drawing a laugh and effectively ending the debate.

Credibility Attacks (1)

⚔ Defense medical expert (unnamed)

prior inconsistent conduct / bias

Kelberg argues the doctor gave a two-and-a-half minute unabated answer to a simple question, acting as an advocate rather than a physician, and that his suggestion of acute-onset rheumatoid arthritis on June 12 is undermined by the recital and exercise videos.

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 6883 • 52 utterances

Criminal Trial

Department 103