Court reconvenes

📄 Court reconvenes — Friday, March 10, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\10\COURT-RECONVENES.DOC

TRIAL

▲ Day 35 of 167

Date: Friday, March 10, 1995 • Utterances: 30

Before the jury is brought in, prosecutor Cheri Lewis raises a discovery violation complaint: F. Lee Bailey had appeared on television and told reporters about a mystery female witness who allegedly saw Fuhrman with someone named Bell — a witness the defense had not disclosed to the prosecution. Bailey argues the matter should be handled via an in camera proffer he has prepared, which the judge agrees to review at the first break rather than immediately. The judge also notes receipt of a fax about the 'recurring ice cream issue' and new testing results from Cellmark and LAPD fingerprint analysis.

# 1 (JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.)

# 2 (CHRISTINE M. OLSON, CSR NO. 2378, OFFICIAL REPORTER.)

# 3 (PAGES 18160 THROUGH 18178, VOLUME 103A, TRANSCRIBED AND SEALED UNDER SEPARATE COVER.)

# 4 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:)

# 5 THE COURT:

ALL RIGHT. GOOD MORNING, COUNSEL. ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON MATTER. THE DEFENDANT IS AGAIN PRESENT BEFORE THE COURT WITH HIS COUNSEL, MR. SHAPIRO, MR. COCHRAN, MR. DOUGLAS, MR. BAILEY. THE PEOPLE ARE REPRESENTED BY MISS CLARK, MR. DARDEN, MISS LEWIS. THE JURY IS NOT PRESENT. COUNSEL, IS THERE ANYTHING WE NEED TO TAKE UP BEFORE WE INVITE THE JURORS TO JOIN US?

# 6 MS. LEWIS:

YES, THERE IS, YOUR HONOR.

# 7 THE COURT:

MISS LEWIS.

# 8 MS. LEWIS:

LAST NIGHT ON THE NEWS MR. BAILEY WAS SEEN REFERRING -- AND WAS HEARD REFERRING TO A FEMALE DEFENSE WITNESS WHO HE CLAIMED WAS UNKNOWN TO THE PROSECUTION AND WHO HE CLAIMED WOULD BE A SURPRISE TO THE PROSECUTION, AND IT SOUNDED CLEAR THAT THIS IS SOMEBODY THAT THE DEFENSE INTENDS TO CALL AT TRIAL. BY MR. BAILEY'S OWN WORDS THIS IS SOMEONE THEY HAD FAILED TO REVEAL IN RECIPROCAL DISCOVERY, SO THIS SEEMS AN APPROPRIATE TIME, SINCE A DECISION HAD NOT BEEN MADE BY LAST NIGHT, IT CERTAINLY WAS MADE BY THE TIME MR. BAILEY ANNOUNCED IT TO THE WORLD THROUGH THE PRESS THAT THEY HAVE AN ADDITIONAL WITNESS THAT THEY INTEND TO CALL, SO I WOULD ASK THE COURT TO ORDER THE DEFENSE TO DISCLOSE THE NAME AND ADDRESS AND THE STATEMENT OF THIS WITNESS, WHOEVER IT IS.

# 9 THE COURT:

ALL RIGHT. MR. BAILEY, DO YOU WISH TO RESPOND TO THAT?

# 10 MR. BAILEY:

I THINK IT IS A MATTER FOR A PROFFER. THE WITNESS IS NOT -- THIS WITNESS DENIES THE INCIDENT. IF HE DENIES THE INCIDENT, THERE WON'T BE ANY NEED TO CALL ANY WITNESS, BUT THE PROFFER THAT I AM SUBMITTING TO THE COURT, PURSUANT TO OUR LAST VISIT TO THIS SUBJECT, CONTAINS THE INFORMATION AND I THINK WHEN YOUR HONOR LOOKS AT IT AND LOOKS AT ANOTHER DOCUMENT, YOU WILL BE QUITE SATISFIED THAT THE RULES HAVE BEEN COMPLIED WITH. I WILL BE GLAD TO SUBMIT THAT AND LET YOUR HONOR LOOK AT IT NOW AND WE CAN CONFER IN CAMERA AND I WILL EXPLAIN TO YOU WHAT I MEAN.

# 11 THE COURT:

ALL RIGHT.

# 12 MS. CLARK:

YOUR HONOR, THE TIME IS NOW.

# 13 MS. LEWIS:

YOUR HONOR, THIS IS --

# 14 THE COURT:

EXCUSE ME.

# 15 MS. LEWIS:

JUST ON THE DISCOVERY I WILL SPEAK FOR US ON THIS.

# 16 THE COURT:

ALL RIGHT.

# 17 MS. LEWIS:

WELL, THE CAT IS OUT OF THE BAG AGAIN. I DON'T THINK MR. BAILEY ACTION NOUNS TO THE WORLD LAST NIGHT, WHICH INCLUDES ANNOUNCING TO THE PROSECUTION, ABOUT THIS WITNESS AND THEN SEEK TO INSULATE THE WITNESS FROM DISCOVERY BY SAYING, WELL, WE WILL LET THE COURT HANDLE IT.

KEY QUOTE

# 18 THE COURT:

MISS LEWIS, WHAT WAS THE SPECIFIC COMMENT THAT WAS MADE? I DID NOT SEE THAT. I AM NOT AWARE OF ANYTHING THAT WAS SAID REGARDING THIS.

# 19 (BRIEF PAUSE.)

# 20 MS. LEWIS:

UNFORTUNATELY, I DIDN'T ACTUALLY SEE IT MYSELF, BUT I HAVE A SCRIPT OF IT, WHICH I'M TOLD IS ACCURATE.

# 21 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

# 22 MS. LEWIS:

ACTUALLY. "IT IS A WIRE REPORT QUOTING MR. BAILEY SAYING: HE, MR. BAILEY, CLAIMS THERE IS ANOTHER WOMAN FUHRMAN DID NOT KNOW WAS PRESENT WHEN HE WAS TOGETHER WITH BELL ON A SEPARATE OCCASION. BAILEY WOULD NOT ELABORATE ON THE MYSTERY WITNESS," AND THAT WAS ABOUT ALL IN THIS ONE. I THINK HE WAS -- I KNOW HE WAS MORE SPECIFIC IN TERMS OF THE GENDER BECAUSE HE DESCRIBED IT AS A FEMALE WITNESS DURING THE PRESS CONFERENCE THAT HE GAVE AFTER COURT YESTERDAY.

# 23 THE COURT:

ALL RIGHT. MR. BAILEY, ARE YOU WILLING TO MAKE A DISCLOSURE TO THE COURT, 1054.7 IN CAMERA? ALL RIGHT. THEN I WILL ASK -- I ANTICIPATE THAT WE WILL BE ON DIRECT EXAMINATION FOR THE ENTIRE MORNING SESSION WITH DETECTIVE FUHRMAN AND MISS CLARK, SO I DON'T THINK THAT WE WILL BE GETTING ANYWHERE CLOSE TO CROSS-EXAMINATION AT THIS POINT.

# 24 MS. LEWIS:

WELL --

# 25 THE COURT:

BUT I WILL TAKE THE OPPORTUNITY TO LOOK AT IT WHEN WE TAKE OUR FIRST BREAK.

# 26 MS. LEWIS:

YOUR HONOR, IF IT IS DISCOVERABLE NOW, WE WANT IT NOW. IT MAY AFFECT OUR DIRECT EXAMINATION OF DETECTIVE FUHRMAN. IT COULD WELL HAVE AN IMPACT, OR MAYBE NOT, BUT THAT IS SOMETHING THAT WE NEED TO DO, AND SINCE IT APPEARS TO BE DISCOVERABLE NOW, IT APPEARS TO BE A SLENDER ENVELOPE, IT DOESN'T LOOK LIKE IT WOULD TAKE A CONSIDERABLE TIME TO LOOK AT IT, WE WOULD REQUEST THE COURT TO CONDUCT AN IN CAMERA HEARING NOW, PLEASE.

# 27 THE COURT:

ALL RIGHT. I'M GOING TO DECLINE THAT INVITATION. MR. BAILEY, IF YOU WILL FILE THAT WITH MRS. ROBERTSON AND WE WILL TAKE A LOOK AT IT DURING THE FIRST BREAK.

# 28 MR. BAILEY:

NOW, YOUR HONOR.

# 29 THE COURT:

SECONDLY, COUNSEL, I HAVE RECEIVED A FAX FROM PATRICIA BERMAN REGARDING THE RECURRING ICE CREAM ISSUE. I HAVE GIVEN COUNSEL A COPY OF BOTH OF THOSE. I HAVE ALSO RECEIVED ADDITIONAL TESTING RESULTS FROM CELLMARK AND FROM LAPD REGARDING FINGERPRINT AND OTHER ANALYSIS THAT WERE DONE, AND MISS CARSWELL, IS MAKING PHOTOCOPIES OF THOSE RIGHT NOW AND YOU WILL BE PROVIDED WITH THOSE AT THE FIRST BREAK. ALL RIGHT. ANYTHING ELSE? ALL RIGHT. DEPUTY MAGNERA, LET'S HAVE THE JURORS, PLEASE.

# 30 (BRIEF PAUSE.)

Temperature

tense

Key Quotes (4)

Cheri Lewis

THE CAT IS OUT OF THE BAG AGAIN. I DON'T THINK MR. BAILEY ACTION NOUNS TO THE WORLD LAST NIGHT, WHICH INCLUDES ANNOUNCING TO THE PROSECUTION, ABOUT THIS WITNESS AND THEN SEEK TO INSULATE THE WITNESS FROM DISCOVERY BY SAYING, WELL, WE WILL LET THE COURT HANDLE IT.

Lewis argues Bailey cannot have it both ways — publicly revealing the witness's existence to press and prosecutors, then shielding the identity behind in camera proceedings.

Cheri Lewis

HE CLAIMS THERE IS ANOTHER WOMAN FUHRMAN DID NOT KNOW WAS PRESENT WHEN HE WAS TOGETHER WITH BELL ON A SEPARATE OCCASION. BAILEY WOULD NOT ELABORATE ON THE MYSTERY WITNESS.

The wire report quote reveals the substance of Bailey's public disclosure: a female witness to a Fuhrman-Bell interaction, potentially corroborating defense claims about Fuhrman's conduct or character.

F. Lee Bailey

THE WITNESS IS NOT -- THIS WITNESS DENIES THE INCIDENT. IF HE DENIES THE INCIDENT, THERE WON'T BE ANY NEED TO CALL ANY WITNESS.

Bailey cryptically suggests the witness may only be needed if someone (presumably Fuhrman) denies a specific incident on the stand — indicating this is a potential impeachment witness.

Cheri Lewis

IT MAY AFFECT OUR DIRECT EXAMINATION OF DETECTIVE FUHRMAN. IT COULD WELL HAVE AN IMPACT, OR MAYBE NOT, BUT THAT IS SOMETHING THAT WE NEED TO DO.

The prosecution argues the disclosure is time-sensitive because Fuhrman's direct examination is beginning that morning and the witness information could shape their questioning strategy.

Evidence (3)

Informal

Bailey's in camera proffer regarding the undisclosed female witness

submitted to court for review at first break

Informal

Fax from Patricia Berman regarding the 'recurring ice cream issue'

received by court, copies distributed to counsel

Informal

Additional testing results from Cellmark and LAPD regarding fingerprint and other analysis

received by court, photocopies being prepared for counsel

Notable Exchanges (1)

Cheri Lewis•F. Lee Bailey•Lance A. Ito

Lewis demands immediate disclosure of the undisclosed witness Bailey teased to the press; Bailey deflects by offering an in camera proffer; the judge sides with Bailey procedurally, declining to hold the hearing immediately and instead deferring to the first break.

strategic

Light Moments (1)

Lance A. Ito

The judge notes receipt of a fax concerning the 'recurring ice cream issue' — a reference to ongoing jury management disputes about juror treats or privileges that had apparently become a running saga.

Credibility Attacks (1)

⚔ Mark Fuhrman

undisclosed witness (potential impeachment)

Bailey has identified a female witness who allegedly witnessed Fuhrman with someone named Bell on a separate occasion — positioned as a potential impeachment or corroboration witness against Fuhrman's anticipated testimony.

Witness Demeanor

(BRIEF PAUSE.) — during off-the-record discussion between deputy district attorneys about the wire report content

Objections

None recorded

Proceeding 5256 • 30 utterances

Criminal Trial

Department 103