Sidebar: recess and discovery

📄 Sidebar: recess and discovery — Thursday, July 6, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JUL\6\SIDEBAR-RECESS-AND-DISCOVERY.DOC

TRIAL

▲ Day 109 of 167

◀ Jury instruction: admonitions Jury recess ▶

Date: Thursday, July 6, 1995 • Utterances: 45

A sidebar covering two matters: the defense and prosecution jointly requesting a 1:30 recess, and Bailey pressing Judge Ito to give the jury a curative instruction regarding a prosecution question implying hair evidence came from Simpson's head — framing it as beyond the capability of hair analysis science. Ito declined, noting the objection had already been sustained and prior instructions to the jury were sufficient. Darden briefly raised a pending discovery complaint against the defense.

# 1 MR. COCHRAN:

Your Honor, with regard to that time, may we just say one word to you, Miss Clark and I?

# 2 THE COURT:

Sure. All right. With the reporter.

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

# 4 THE COURT:

All right. We are over at the side bar. As far as time is concerned, I was just going to ask the Court, you might want to consider 1:15 or 1:30. We will have a stipulation when we come back and that will end it.

# 5 THE COURT:

Are you asking for 1:30?

# 6 MR. COCHRAN:

Yes. I think both sides would ask that.

# 7 MS. CLARK:

Uh-huh.

# 8 MR. COCHRAN:

And I think we would have the stipulation when we come back and it will save some time in the long run, Judge.

# 9 THE COURT:

All right. Mr. Bailey.

# 10 MR. BAILEY:

Before the jury goes out, I would like you to instruct them to totally disregard the question when she used the word "Match" whether or not he had an opinion that this hair in fact came from the Defendant's head, knowing full well that is way beyond the capability of the science. It was an improper suggestion.

# 11 THE COURT:

I don't think that was the question. Let me check my notes.

# 12 MR. BAILEY:

Would you.

# 13 (Brief pause.)

# 14 THE COURT:

Where is Mr. Bailey?

# 15 MR. COCHRAN:

We are trying to pull it up, too. Apparently the Judge has the question.

# 16 THE COURT:

"Question: And you told"--

# 17 MR. BAILEY:

That is not the one I'm talking about.

# 18 MR. BAILEY:

"Do you have an opinion as to whether the hair and the hat came from Mr. Simpson's head?" That is what my colleague seemed to recall.

# 19 (Brief pause.)

# 20 MR. BAILEY:

And I asked to approach and you said "Not now."

# 21 MR. DARDEN:

The objection was sustained.

# 22 THE COURT:

Yes, you are right. That is what it said.

# 23 MR. COCHRAN:

That is what it said.

# 24 MR. BAILEY:

I suggest that that is as offensive as the use of the word "Match" and it was deliberate.

KEY QUOTE

# 25 THE COURT:

Miss Clark.

# 26 MR. DARDEN:

Your Honor, Mr. Bailey lodged an objection at the time and there was no response by the witness. The question is not evidence.

# 27 THE COURT:

All right. I'm going to leave it at that. I think I sustained the objection. I instructed them several times that the--to ignore the implication of questions that I sustain the objections, so I think there is sufficient instructions to the jury on this matter.

# 28 MR. COCHRAN:

Would you consider doing that again, the question has no meaning? It has been a little while since we have heard that, Judge. The end of the case. It will be appropriate.

# 29 MR. DARDEN:

Ito's law?

# 30 MR. COCHRAN:

If it is Ito's law, I would like to hear it one more time.

KEY QUOTE

# 31 THE COURT:

For the record, we will come back at 1:30.

# 32 MR. COCHRAN:

That will give us a little time.

# 33 THE COURT:

I wish you had asked me that before so I could have made lunch plans.

KEY QUOTE

# 34 (Discussion held off the record between the Deputy District Attorneys.)

# 35 MR. DARDEN:

Nothing.

# 36 THE COURT:

I don't have to carry it around.

# 37 MR. DARDEN:

Will I have an opportunity to complain this afternoon about the lack of discovery?

# 38 THE COURT:

We will get to that.

# 39 MR. DARDEN:

That we received from the Defense?

# 40 THE COURT:

Any other comment?

# 41 MR. DARDEN:

On that subject?

# 42 MR. COCHRAN:

Talking about on this subject. Stay in focus.

KEY QUOTE

# 43 MR. DARDEN:

That is not a nice thing to say to me. No, I have no other comment.

# 44 THE COURT:

Okay. I have already instructed them. I sustained the objection and we will move on. All right. 1:30.

# 45 (The following proceedings were held in open court:)

Temperature

procedural

Key Quotes (4)

F. Lee Bailey

I suggest that that is as offensive as the use of the word 'Match' and it was deliberate.

Bailey accuses the prosecution of intentionally using loaded language to imply hair identification certainty that the science cannot support — framing it as bad faith rather than a slip.

Johnnie Cochran

If it is Ito's law, I would like to hear it one more time.

A rare direct reference to Judge Ito's practice from the criminal trial, signaling these are veterans of that proceeding now operating under a different judge with different habits.

Lance A. Ito

I wish you had asked me that before so I could have made lunch plans.

Rare moment of judicial levity from Ito, whose reputation was for strict courtroom control.

Johnnie Cochran

Talking about on this subject. Stay in focus.

Cochran's pointed aside to Darden, which Darden took as a personal slight — revealing the ongoing friction between the two.

Evidence (1)

Informal

Hair evidence from a hat — prosecution question asked witness whether hair came from Simpson's head

challenged; Bailey sought curative jury instruction, Ito declined beyond existing instruction

Notable Exchanges (3)

F. Lee Bailey•Christopher Darden

Darden countered Bailey's curative instruction request by noting the objection was sustained and no answer was given, so no evidence reached the jury. Bailey insisted the framing of the question itself was prejudicial and deliberate.

strategic

Johnnie Cochran•Christopher Darden

After Cochran referenced 'Ito's law' and Darden sarcastically echoed it, Cochran told Darden to 'stay in focus' when Darden raised the discovery complaint. Darden replied 'That is not a nice thing to say to me.'

tense

Christopher Darden•Lance A. Ito

Darden asked whether he'd have an opportunity to raise a discovery complaint against the defense that afternoon. Ito said they'd get to it without further discussion.

procedural

Light Moments (2)

Johnnie Cochran

Cochran invoked 'Ito's law' — the criminal trial judge's habit of reminding jurors that questions aren't evidence — and asked Ito to deliver it one more time. Darden joined in sarcastically.

Lance A. Ito

Ito quipped he wished they'd asked for the 1:30 recess earlier so he could have made lunch plans.

Credibility Attacks (1)

⚔ prosecution

bad faith framing

Bailey argued the prosecution's question — asking whether hair came from Simpson's head — was deliberately worded to imply scientific certainty that hair analysis cannot provide, comparable to improper use of the word 'match.'

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 6658 • 45 utterances

Criminal Trial

Department 103