Witness preparation

📄 Witness preparation — Wednesday, June 21, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JUN\21\WITNESS-PREPARATION.DOC

TRIAL

▲ Day 100 of 167

Date: Wednesday, June 21, 1995 • Utterances: 140

Out of jury presence, the prosecution's glove expert Richard Rubin measured OJ Simpson's hands (left: ~9.5 inches, right: ~9 5/8 inches) to determine whether to proceed with a new glove demonstration using exemplar Aris Leather Lights received from Steph Fogelson of Aris Isotoner. The session also covered upcoming witness scheduling (Kathleen Delaney, Lu Ellen Roberts, a Mirage Hotel records custodian) and a discovery dispute over Mirage Hotel phone records.

# 1 (Appearances as heretofore noted.)

# 2 (Janet M. Moxham, CSR no. 4855, official reporter.)

# 3 (Christine M. Olson, CSR no. 2378, official reporter.)

# 4 (The following proceedings were held in open court, out of the presence of the jury:)

# 5 THE COURT:

All right. Back on the record in the Simpson matter. The Defendant is again present before the Court with his counsel, Mr. Shapiro, Mr. Douglas, Mr. Bailey. The People are represented by Mr. Darden, Miss Clark. The jury is not present. Counsel, anything we need to take up before we proceed with the next witness?

# 6 MR. COCHRAN:

Good morning, your Honor. Yes, I think so, your Honor.

# 7 THE COURT:

All right. Mr. Cochran.

# 8 MR. COCHRAN:

May I have just a second?

# 9 THE COURT:

Certainly.

# 10 MR. COCHRAN:

I was talking to the Prosecution about some stipulations.

# 11 (Discussion held off the record between Defense counsel.)

# 12 THE COURT:

Mr. Cochran.

# 13 MR. COCHRAN:

Good morning, your Honor. I understand there may be some relevant discovery about today's witness and we just got it, so there may be a reason to take a look at it. I was just speaking with Mr. Darden briefly.

# 14 THE COURT:

Which witness is this?

# 15 MR. COCHRAN:

Ms. Delaney, your Honor, Kathleen Delaney.

# 16 MR. COCHRAN:

So maybe we will have time to do that, but we have not seen this discovery. We just got it.

# 17 THE COURT:

What does this relate to?

# 18 MR. COCHRAN:

Apparently phone records from the Mirage Hotel, apparently, Mr. Douglas is telling me.

# 19 THE COURT:

All right.

# 20 MR. COCHRAN:

Also I see Mr. Rubin back in court, your Honor, and we would like an opportunity to briefly talk with him before he is called to the stand and we have not had that opportunity. But secondly, I have, as I promised, an argument I would like to make regarding any further demonstrations of so-called new gloves and I would like to cite some cases to the Court at the appropriate time. So we would like to talk to Mr. Rubin. I would like an offer of proof from the people so we are not wasting our time so at least we know where we are going to go, and then I can address that.

# 21 THE COURT:

Mr. Darden.

# 22 MR. DARDEN:

Good morning, sir. We have a couple of requests. First, we would like the Court's permission to measure both of Mr. Simpson's hands, and depending upon that measurement then we will decide what we want to do next.

# 23 THE COURT:

And in what manner do you propose to measure Mr. Simpson's hands?

# 24 MR. DARDEN:

Well, Mr. Rubin is here. He has a measuring tape. It will be out of the presence of the jury. We would just like his hands measured.

# 25 MR. COCHRAN:

I would like to do it in the presence of the jury. We have nothing to hide, your Honor. This is a search for truth here.

KEY QUOTE

# 26 THE COURT:

Well, Mr. Darden tells me he would like to do it out of the presence of the jury so that they can determine what they are going to do next.

# 27 MR. COCHRAN:

Your Honor, the only thing I would say, yes, he did say that, but perhaps they should have done this, umm, before last Thursday.

# 28 MR. DARDEN:

Well, the gloves fit last Thursday, Mr. Cochran, and we are going to show that today `kay.

KEY QUOTE

# 29 MR. COCHRAN:

I'm not going to debate that or get into that, your Honor. I think we all know about those gloves and that is why Mr. Rubin is back here for a third time. I object. I have no objection to them measuring Mr. Simpson's hands. Obviously the Court has the authority to order that. I have no problem with that, but I just think that in a case where we are talking about doing everything out here in the open, let's do it before the jury, I have no problem with that. Before we get to that point I wanted to be able to talk to Mr. Rubin and I wanted to be able to address the Court on any demonstrations that they may have in mind down the road.

# 30 THE COURT:

Mr. Darden, do you want to enlighten us as to what the options are after Mr. Rubin measures Mr. Simpson's hands?

# 31 MR. DARDEN:

The options are doing nothing ever again related to gloves or doing something later on down the road. Another option--

# 32 THE COURT:

How far down the road--I mean, you didn't have Mr. Rubin to come out from New York to do a tape measure of Mr. Simpson's hands.

# 33 MR. DARDEN:

That is true. It was obvious to us that the gloves from the crime scene and Rockingham fit the Defendant. I mean, they are his gloves, but aside from that, today we would like to have a measurement of his hands. Now, should we decide to go forward with Mr. Rubin's testimony today, then I will be asking the Court to order Mr. Simpson to place on his hands a new pair of Aris leather lights, size extra large. Mr. Rubin has represented to me that the gloves the Court handed over to both the Prosecution and the Defense yesterday represent the crime scene gloves in their original and ordinary condition.

# 34 THE COURT:

You are speaking of the gloves that the Court received from Steph Fogelson of Aris Isotoner by federal express yesterday, correct?

# 35 MR. DARDEN:

That's correct. So we are going to be asking perhaps for a demonstration similar to the one we had last week, except this time we won't have the crime scene gloves and Mr. Simpson won't have the opportunity at that time to put on latex gloves and jack around with us and play games with us in front of the jury.

# 36 MR. COCHRAN:

Your Honor, these terms like "Jack around" are totally inappropriate.

# 37 THE COURT:

I agree.

# 38 MR. COCHRAN:

And disrespectful to the Court.

# 39 THE COURT:

I agree.

# 40 MR. DARDEN:

That is disrespectful to the Court?

# 41 THE COURT:

No. I don't need that terminology here.

# 42 MR. DARDEN:

Okay.

# 43 MR. COCHRAN:

Now, shall I proceed, your Honor? So I don't know what point we are at, your Honor.

# 44 THE COURT:

We are at the point as to at what point am I going to allow the measurement of Mr. Simpson's hands by tape measure by Mr. Rubin. And my inclination at this point is to allow that to occur now so the Prosecution can make a determination whether or not they are going to recall Mr. Rubin.

# 45 MR. COCHRAN:

That is fine. And my only request, if we are going to do that, let's do it in the presence of the jury. Obviously I think we have a right to bring that out. It is not a secret and I'm going to bring it out regardless.

# 46 THE COURT:

Well, Mr. Cochran, what I would probably do is that I will allow Mr. Rubin to make the measurement here today right now out of the presence of the jury. If you want to call him out of order as an adverse witness, since he is here from New York, I would allow you to recall him for further cross-examination.

# 47 MR. COCHRAN:

Thank you, your Honor. Thank you. I think he would appreciate it also. Well, then I will old off my other argument regarding whether we should have this demonstration regarding whether we should make this judgment.

# 48 THE COURT:

All right.

# 49 MR. COCHRAN:

May I have a moment with my client, your Honor?

# 50 THE COURT:

Certainly.

# 51 MR. COCHRAN:

I was talking with the Prosecution when you came out.

# 52 THE COURT:

Mr. Rubin, do you have your measurement with you.

# 53 MR. RUBIN:

Yes, I do.

# 54 MR. COCHRAN:

I would like the opportunity to talk with Mr. Rubin.

# 55 MR. DARDEN:

I would like the opportunity to sit in.

# 56 MR. COCHRAN:

We didn't have the option to sit in on all their meetings.

# 57 THE COURT:

Counsel, why don't you talk to your client.

# 58 MR. COCHRAN:

Certainly, your Honor.

# 59 (Discussion held off the record between Defense counsel and the Defendant.)

# 60 THE COURT:

And do we have our Airtouch representative?

# 61 MS. CLARK:

Yes.

# 62 THE COURT:

I see we have been joined by Investigator Bell.

# 63 MR. DARDEN:

And Investigator Stevens, your Honor.

# 64 THE COURT:

Well, Mr. Stevens we have seen before. This is the first appearance of Mr. Bell and also the first appearance of Miss Filipe.

# 65 MS. FILIPE:

Good morning, your Honor.

# 66 THE COURT:

Good to see you again.

# 67 (Discussion held off the record between Defense counsel and the Defendant.)

# 68 THE COURT:

And Mr. Darden, let me ask you this: Which of the exemplar pairs of gloves are you proposing to use?

# 69 MR. DARDEN:

The extra large.

# 70 THE COURT:

Which one of the four?

# 71 MR. DARDEN:

Do you want to see the pair?

# 72 THE COURT:

You are going to use one of the four that you have--excuse me. One of the two?

# 73 MR. DARDEN:

Yes.

# 74 THE COURT:

All right.

# 75 MR. DARDEN:

Although I did want to make an additional point on that issue when Mr. Cochran is free.

# 76 (Discussion held off the record between Defense counsel and the Defendant.)

# 77 THE COURT:

All right. Mr. Cochran.

# 78 MR. COCHRAN:

Yes. Thank you very much for the time, your Honor. Having expressed my belief that the Court certainly does have the authority to do this, I have no problem with it. I just think that it should be in front of the jury, but what the Court has proposed is certainly acceptable to us, that I can bring it out on cross or make him my own witness right today because he lives in New York, and that is fine. I will hold off the argument with regard to any demonstrations until we see what happens at this point, if that is all right.

# 79 THE COURT:

All right. Mr. Rubin, why don't you step forward, please.

# 80 MR. COCHRAN:

Not to shift subjects, can we find out how many witnesses the Prosecution has today altogether so we know where we are going today?

# 81 THE COURT:

Miss Clark.

# 82 MS. CLARK:

I have two--I don't have to whisper. I have two.

# 83 MR. COCHRAN:

Including Mr. Rubin?

# 84 MS. CLARK:

Oh, no, that is three.

# 85 MR. COCHRAN:

Okay. Mr. Darden has one and you have two. Who are the two?

# 86 MS. CLARK:

I believe so.

# 87 MR. COCHRAN:

Can we find out?

# 88 MS. CLARK:

Just what I told you before, Lu Ellen Roberts and the custodian of records from the Mirage Hotel.

# 89 MR. COCHRAN:

All right. We are trying to work out some stipulations.

# 90 MS. CLARK:

I did not take into account the other witnesses that would be called if we don't stipulate, but I think that we will.

# 91 THE COURT:

Let me ask Mr. Simpson to stand. And Mr. Rubin, would you walk over, please, and conduct your measure.

# 92 (Mr. Simpson's left hand is measured by Mr. Rubin.)

# 93 MR. DARDEN:

Can we ask Mr. Simpson not to chat?

# 94 MR. COCHRAN:

Not on the record, your Honor.

# 95 MR. DARDEN:

I'm standing here.

# 96 THE COURT:

This is not part of the record.

# 97 (Brief pause.)

# 98 THE COURT:

All right. Counsel, I'm going to ask you to all be quiet while Mr. Rubin does this.

# 99 MR. RUBIN:

Do you want to do the measurement?

# 100 THE COURT:

Yes.

# 101 MR. RUBIN:

It is about nine and five eights inches.

# 102 THE COURT:

All right. That was the left hand.

# 103 MS. CLARK:

May the record reflect the witness has asked Mr. Simpson to please close his fingers and relax his hand.

# 104 THE COURT:

Yes.

# 105 MR. COCHRAN:

Mr. Simpson has done that.

# 106 MR. RUBIN:

It is really in the area plus or minus about eighth of an inch, in the nine and a half area.

KEY QUOTE

# 107 THE COURT:

All right. That is the left hand?

# 108 MR. RUBIN:

Yes.

# 109 (Mr. Simpson's right hand is measured by Mr. Rubin.)

# 110 MR. RUBIN:

Nine and five eights.

# 111 THE COURT:

All right. Nine and a five eights?

# 112 MR. RUBIN:

Nine and a half on the left.

# 113 THE COURT:

All right.

# 114 MR. COCHRAN:

Are we on the record?

# 115 THE COURT:

No, we are not. All right. Mr. Rubin, would you step back and take your seat again, please. Thank you. All right. Mr. Darden, based upon the nine and a half and nine and 5/8 measurements, what is your desire as far as Mr. Rubin is concerned? And Mr. Cochran, do you want some time of your own to chat with Mr. Rubin?

# 116 MR. COCHRAN:

Yes, we would like to do that.

# 117 THE COURT:

All right.

# 118 (Discussion held off the record between the Deputy District Attorneys and Mr. Rubin.)

# 119 THE COURT:

All right. Mr. Rubin--

# 120 MR. DARDEN:

Can I have one moment, your Honor?

# 121 THE COURT:

Certainly. Mr. Darden, why don't your complete your discussions with Mr. Rubin and I will allow him to speak with Mr. Cochran.

# 122 (Discussion held off the record between the Deputy District Attorneys and Mr. Rubin.)

# 123 (Discussion held off the record between Deputy District Attorney and Defense counsel.)

# 124 THE COURT:

All right. Mr. Rubin.

# 125 MR. COCHRAN:

Your Honor, may we have a few minutes--we would like--we can't use the jury room? The jury is down here now? May we use someplace in the back?

# 126 THE COURT:

I think you will have to chat right there.

# 127 MR. COCHRAN:

All right.

# 128 THE COURT:

Because everything else is in operation in the back.

# 129 MR. COCHRAN:

Can we take a break to do this, your Honor, five minutes or so?

# 130 THE COURT:

Do you really need five minutes to talk to Mr. Rubin?

# 131 MR. COCHRAN:

I think so, your Honor.

# 132 THE COURT:

All right. Is there anything else we need to discuss? I hate to lose all this time.

# 133 MR. COCHRAN:

Well, I would like to then address the issue--why they said they wanted a demonstration. In other words, I will wait until the time--

# 134 THE COURT:

Mr. Darden.

# 135 MR. DARDEN:

Can I wait until he finishes his conversation with Mr. Rubin.

# 136 MR. COCHRAN:

It would save time, your Honor. I would have to talk to him again.

# 137 THE COURT:

Do you wish to go forward with the use of the exemplar gloves provided by Aris?

# 138 MR. DARDEN:

I think that I do, but I need to talk to Mr. Rubin for just a couple of more minutes.

# 139 THE COURT:

All right. Let me know when you are ready.

# 140 (Recess.)

Temperature

tense

Key Quotes (4)

Christopher Darden

the gloves fit last Thursday, Mr. Cochran, and we are going to show that today `kay.

Darden doubles down on the infamous glove demonstration, signaling the prosecution's intent to retry a variation of it with new exemplar gloves.

Christopher Darden

this time we won't have the crime scene gloves and Mr. Simpson won't have the opportunity at that time to put on latex gloves and jack around with us and play games with us in front of the jury.

Reveals the prosecution's belief that Simpson deliberately manipulated the glove try-on; the phrase 'jack around' earns a rebuke from both Cochran and Judge Ito.

Johnnie Cochran

I would like to do it in the presence of the jury. We have nothing to hide, your Honor. This is a search for truth here.

Cochran strategically frames transparency as a defense posture, wanting the measurement itself to become part of the jury narrative.

Richard Rubin

It is really in the area plus or minus about eighth of an inch, in the nine and a half area.

The actual measurement result — the data point that will determine whether the prosecution proceeds with another glove demonstration.

Evidence (2)

Informal

Exemplar Aris Leather Lights, size extra large, received from Steph Fogelson of Aris Isotoner via federal express

discussed as potential demonstration gloves; Rubin represented they reflect crime scene gloves in original condition

Informal

Phone records from the Mirage Hotel

referenced as newly produced discovery related to upcoming witness Kathleen Delaney

Notable Exchanges (3)

Christopher Darden•Johnnie Cochran

Darden says 'the gloves fit last Thursday' and accuses Simpson of putting on latex gloves to 'jack around'; Cochran objects to the language and Ito agrees it was inappropriate.

heated

Lance A. Ito•Christopher Darden

Ito presses Darden on why Rubin flew from New York merely to do a tape measure, implying skepticism that the prosecution's stated purpose is the full story.

strategic

Johnnie Cochran•Christopher Darden

Cochran requests to speak privately with Rubin; Darden immediately asks to sit in. Cochran notes the defense never had that option during prosecution prep.

strategic

Light Moments (2)

Marcia Clark

Marcia Clark corrects herself mid-sentence on witness count: 'I have two--I don't have to whisper. I have two.' then realizes Rubin makes three.

Lance A. Ito

Ito asks if Cochran really needs five minutes to talk to Rubin, skeptical of the time request.

Witness Demeanor

(Mr. Simpson's left hand is measured by Mr. Rubin.)

(Brief pause.)

(Mr. Simpson's right hand is measured by Mr. Rubin.)

(Recess.)

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 6472 • 140 utterances

Criminal Trial

Department 103