All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Kardashian, Mr. Douglas, Mr. Blasier. The People are represented by Mr. Kelberg and Mr. Lynch.
We have, your Honor. I will point out for the Court, again my eyesight is not a good test, but because we have moved it back for the juror--I don't know the numbers, I apologize, but the juror who is seated in the first chair in the back row and probably the juror next to that juror and possibly the juror in the front seat of the first seat of the front row, the distance is a fact to see the clarity of these wounds, especially the smaller wounds from that position, I think is very poor. The alternative is perhaps to ask the Court to ask the jurors, obviously pointing out that the Court has moved the photographs back, but in the event the jurors feel a need to see the photographs at a closer inspection, that the Court will make that available. My suggestion would be, when I have finished with a board completely, that the jurors be given, as I understand they were with certain of the DNA exhibits, to basically walk in front of the exhibit and have an opportunity to examine it for some brief period of time.
Just a procedural thing. Our answer to a future trivia question of who operated the elmo at the O.J. Simpson trial is sick and I indicated to Mr. Fairtlough that he should go home and not infect anyone else down here, and more importantly, take care of himself. We have not used the elmo over the last couple of days. I do not anticipate using it in this morning's examination. If it comes up and it has to be used, we will just make do without it until Monday.
Well, what we will do is we have Mr. Simpson's counsel--their staff have the ability to operate the elmo, and I think as a professional courtesy they will be happy to do that for you.
All right. Deputy Magnera. I'm sorry, Mr. Cochran, you had one other matter you wanted to address?
Good morning, your Honor. Your Honor, I would like to propose to the Court, if the Court pleases, in view of the high emotions that were in the Court yesterday and the problems that we had at the end of the day, that the consider giving--I have a proposed instruction re the autopsy photographs and it is very brief and I think the Court would not have a problem with it. I think it is appropriate to read that this morning before we launch into the testimony.
No, your Honor, just I had it sent here and I will be glad to share it with Mr. Kelberg.
Thank you, your Honor. While they are doing that, your Honor, I have one other matter I wanted to indicate to the Court. We had previously had a conversation with regard to the scheduling on Monday, and I would just propose to the Court that I think as the Court indicated we would perhaps meet half day. Depending upon how far we get today, and I would anticipate the People will still be in direct examination and still be using these photographs, and Monday being an important day to everyone, it would seem to me that it might be an appropriate day not to have testimony for the jury and I would like to propose that to the Court for all the victims, that we take the balance of Monday off and perhaps use Monday for any motions the Court might want to hear, and I would propose that, if the Court pleases. I think that given the high emotions that we saw yesterday and the fact that we will still be in the middle of the Coroner's testimony, will be really a tough time for everyone, and I would just throw that out for Court's thinking, since we were going to do a half day at any rate.
Your Honor, I think probably everyday is a tough day for everyone who is associated with this case, from the families of Mr. Goldman and Ms. Brown Simpson, the families of Mr. Simpson, counsel, the Court, the jurors. Quite frankly, I believe the sooner this case gets to the jury, the happier this jury will be, and I believe that if there is time available that can be used, then the time should be used. Whether it is the anniversary of the event, the anniversary of any funeral associated with the killings of these two human beings, there is going to be some memory arising from this incident that is going to be commemorated during the next month or month and a half, and I think it would be wiser to move forward than it is to acknowledge and give some sense of importance which may have an influence that it should not have. So on that basis I would prefer to try and do something with the jury anytime that is available. We do appreciate the Court's consideration in allowing Dr. Lakshmanan to attend this international symposium to which he was committed many months ago, so I realize with the Court's indulgence we are asking the Court not to go in the morning, and with that understanding I would not find it inappropriate for the Court to accede to Mr. Cochran's request, but I in a more generalized sense believe that the time should be used as quickly and as efficiently and as effectively as possible to get this case to the jury for decision.
Well, as the Court is aware, the Defense has indicated to the Court that not only do we want to work long hours but we would be willing to work on Saturdays where possible. We want to do that if possible. I might say to my learned colleague that one of the ways that we get to the jury faster is speed up the testimony and the direct examination has been very lengthy and that is their decision, so we want to do that also. The reason we are not going to be here in the morning is because the doctor has another event. I thought about this last night, your Honor. In view of the fact that it is a difficult day for all the victims in this case, on Monday we are going to be off half day--I am not asking for us to be off. I'm saying that you may give us--we have motions that are pending we can perhaps deal with. I'm saying giving the emotions that we saw the other day, this Court is very wise, and I think the Court would consider that rather than coming in at 1:30, since it is June 12th and I think it will be more difficult day for everyone and so we want to move this case along and get it to the jury as soon as possible. Shifting gears, your Honor, with regard to the proposed autopsy--autopsy photos and what we saw yesterday, all we are asking is that if the Court would instruct the jurors as follows: "That as you have seen, the autopsy photographs introduced by the Prosecution yesterday are extremely gruesome and disturbing." Tried to use the Court's words. "In carrying out your duties as jurors you must not be swayed by sentiment, conjecture, passion or prejudice." Taken from the jury instructions I think. "But both the People and the Defendant have a right to expect that you will abide by the presumption of innocence, that you will conscientiously and dispassionately consider and weigh all the evidence without letting your emotions sway your judgment. When the case is eventually sent to you for deliberations you will find the Defendant not guilty unless the Prosecution has proven its guilt of this case beyond a reasonable doubt." And what we will try to do is incorporate what the law is, the paragraph--Caljic no. 1.00 with 2.90, and we think this would be an appropriate time to give this instruction in view of the fact of the overwhelming emotions we saw in Court yesterday, your Honor.
Yes, your Honor. There is certainly a first issue of do we need it at this stage? I will leave that to the Court's discretion. The Court has observed this jury much longer than I and the Court obviously saw very clearly what the reactions were of the jurors. If the Court is inclined to give any kind of limited instruction to the jury, let me start with the first sentence which in my judgment is a characterization of the photographs which is, a, inaccurate, b, incomplete, and c, an invasion of the province of the jury to decide what they are. It is not unusual for Defense counsel in a motion under 352 dealing with autopsy photographs to argue that the photographs are "Gruesome" in an effort to convince a Court that by being gruesome the photographs should be excluded as prejudicial because it may influence the sympathies or emotions of the jurors in a way unrelated to the probative value of the evidence. Here we have added--let me correct for Mr. Shapiro's benefit, I believe it is an adverb "Extremely," not an adjective, so he has enhanced the nature of the gruesomeness argument by that characterization. And "Disturbing." Disturbing carries many different connotations. These photographs I believe are disturbing in a way that I don't think is intended by Mr. Cochran's suggested admonition. They are disturbing because of what they show happened to Ronald Goldman and the other photographs as to what they show as to Nicole Brown Simpson and they are extremely probative, in our judgment, as to who in fact killed these people. That is for the jury to decide. I would submit to the Court that if you are to give an instruction, you can frame it in terms of how the Court first prewarned, forewarned this jury about we were moving into this phase, we were going to see photographs, if anybody has any problems and so forth, they were to let the Court know and so forth, and then read the 1.00 instruction which is indicated on page 2 of the document that Mr. Cochran has given to me, after you give that generalized reflection of the nature of the evidence that the jury was to hear and has been hearing for the last few days, and of course to leave out what is included in the last portion of the proposed admonition or limited instruction beginning with the words: "And when the case is eventually sent to you for deliberations that you will find the Defendant not guilty unless the Prosecution has proven his guilt beyond a reasonable doubt." That is an admonition. I assume this Court has read to this jury at some point, in either voir dire or before opening statements, the presumption of innocence instruction, 2.90. I'm sure this jury understands quite clearly that the burden is on the Prosecution to prove beyond a reasonable doubt that the Defendant is guilty of the charges before they can convict him and before his presumption of innocence is lost. But for the purposes of their reaction to these photographs, 1.00 fully and unambiguously conveys what is the necessary purpose, if there is one, for a limited instruction, that is, this jury must decide the case objectively and not on the basis of emotion or passion or prejudice as to either side. So if the Court is inclined to give a limited instruction or admonition, I believe that 1.00 fully and clearly provides that admonition, along with an introductory remark similar in nature to what the Court has said on several occasions to this jury with respect to this area of the testimony.
We are not really that far apart, Mr. Kelberg and I. And I think that basically what we have done is used the Court's words. I want to put things in perspective, your Honor. We are in a different posture now. The Court did indicate to the jurors that the photographs, I believe you used the word disturbing or some words similar to that, that they could raise their hands at any time, and in fact the juror no. 5 did in fact do that yesterday, as I brought to the Court's attention, so we have now had that situation. These photos have had an affect upon the jury, they have been disturbing and they have been gruesome, and they are gruesome and I don't quarrel over any adverbs, but photographs are gruesome and disturbing. Those are factual statements. We have used the Court's words. The rest of it is 1.--pretty much a jury instruction which I think the Court would want to give in this case. This is a unique situation. We are still concerned about a fair trial here. The reason why we objected to these photographs, your Honor, is so that the passion and prejudice that might inure to these photographs would then be to the detriment of the Defendant and would cause us not to receive a fair trial. And the Court wants a fair trial above all else, so I'm asking the Court to put us back on track in that regard and you have taken safeguards in that vein. Further, who can quarrel with 2.90? How many times in a trial can you say the Defendant has to be proved guilty beyond a reasonable doubt? And that is all we are talking about, especially in view of the fact that the Prosecution was allowed to ask a hypothetical question about somebody six foot two, 200 pounds. Well, I'm sure the doctor, if asked that question, will say somebody 5-6, 150, could have done the same damage. They focus on a particular question and it inures to the detriment of our client. We have an obligation to bring that to the Court's attention and all we are asking for is fundamental fairness, as you have done yesterday in Court in moving this--the photographs back. That is all we are asking. And so I would ask the Court to give this instruction or an instruction very close to this instruction now and to consider my other request with regard to June 12th. Not a holiday for us. We are willing to work. But I just think, given the emotions and given everything we know and the fact that they have a problem in the morning, it seems to make sense. Your Honor. Thank you very kindly.
Thank you. Counsel, the record does reflect that the Court has previously already read to this jury in pre-instructions at the beginning of the case 1.00 and 2.90. However, I think that given the unique situation that we find ourselves in today, I will instruct the jurors when they return to the courtroom as follows: "In evaluating the evidence presented in this case you must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the Prosecution and the Defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law and reach a just verdict regardless of the consequences." And that is the last three sentences--two sentences out of 1.00. As to the request to be dark--not dark, but not have the jury in session on the afternoon of Monday, June 12th, I'm going to decline that invitation. We will be here, the Court will be here conducting other activities regarding this case Monday morning, and I would like to complete the doctor's testimony as soon as possible.
Our answer to a future trivia question of who operated the elmo at the O.J. Simpson trial is sick and I indicated to Mr. Fairtlough that he should go home and not infect anyone else down here, and more importantly, take care of himself.
I thought about this last night, your Honor. In view of the fact that it is a difficult day for all the victims in this case, on Monday we are going to be off half day--I am not asking for us to be off.
Whether it is the anniversary of the event, the anniversary of any funeral associated with the killings of these two human beings, there is going to be some memory arising from this incident that is going to be commemorated during the next month or month and a half, and I think it would be wiser to move forward.
In evaluating the evidence presented in this case you must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the Prosecution and the Defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law and reach a just verdict regardless of the consequences.