Sidebar (1)

📄 Sidebar (1) — Tuesday, March 21, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\21\SIDEBAR-1-.DOC

TRIAL

▲ Day 42 of 167

◀ Cross-examination of Philip Vannatter (part 4) Cross-examination of Philip Vannatter (part 5) ▶

Date: Tuesday, March 21, 1995 • Utterances: 28

Defense attorney Shapiro argues at sidebar that the bloody socks evidence should be impeached because Michelle Kestler's handwritten notes show no blood was found on June 13th — the day they were collected — and blood wasn't detected until phenol testing weeks later. Judge Ito sustains objections to Shapiro's proposed impeachment lines, ruling it would open too many collateral areas under Evidence Code 352, and directing the defense to raise the issue through an expert witness instead.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

# 2 THE COURT:

WE ARE OVER AT SIDEBAR. MR. SHAPIRO.

# 3 MR. SHAPIRO:

YES. THIS WAS BROUGHT OUT ON DIRECT TESTIMONY. HE HAS TESTIFIED THEY RECOVERED THE BLOODY SOCKS ON THE 13TH. THE PEOPLE ARE WELL AWARE -- MISS CLARK IS LAUGHING. MAYBE I SHOULD WAIT UNTIL SHE COMPOSES HERSELF.

# 4 MS. CLARK:

I'M VERY WELL COMPOSED. MR. SHAPIRO, I THINK YOU OUGHT TO READ THE EVIDENCE CODE, LEARN HOW TO IMPEACH A WITNESS.

KEY QUOTE

# 5 MR. SHAPIRO:

BUT ON THE --

# 6 THE COURT:

EXCUSE ME, COUNSEL. I THOUGHT WE AGREED THESE GRATUITOUS SHOTS WERE GOING TO BE VERBOTEN FROM THIS POINT ON.

KEY QUOTE

# 7 MR. SHAPIRO:

ON THE 13TH, THERE WAS PHENO TESTING DONE ON 13 ITEMS OF EVIDENCE IN THAT BEDROOM, BATHROOM AREA WITH THE EXCEPTION OF THE SOCKS. MICHELLE KESTLER'S HANDWRITTEN NOTE INDICATES THAT SHE EXAMINED THOSE SOCKS ON THE 29TH OF JUNE AND THERE WAS NO EVIDENCE OF BLOOD ON THOSE SOCKS. THEY WERE SENT OUT TO THE LABORATORY AND IT WAS NOT UNTIL PHENO, PRESUMPTIVE TEST FOR BLOOD WAS RUN. I THINK THIS DIRECTLY IMPEACHES THIS WITNESS, YOUR HONOR.

# 8 THE COURT:

LET ME CHECK MY NOTES.

# 9 (BRIEF PAUSE.)

# 10 THE COURT:

I DON'T RECALL HIS TESTIMONY THAT HE SAID HE SAW BLOOD ON THE SOCKS IN THE BEDROOM.

# 11 MR. SHAPIRO:

NO. HE SAID BLOODY -- MR. DARDEN -- MY RECOLLECTION IS THAT MR. DARDEN ASKED, "YOU SAID YOU RECOVERED BLOODY CLOTHING AT THE HOUSE; IS THAT TRUE?" HE SAID, "YES." "WHAT BLOODY CLOTHING DID YOU RECOVER?" "I RECOVERED BLOODY SOCKS. THEY WERE SENT OUT."

# 12 MR. DARDEN:

THAT'S TRUE. THAT WAS -- MR. SHAPIRO ASKED THAT QUESTION ON DIRECT. I'M SORRY -- ON CROSS-EXAMINATION; DID HE RECOVER ANY BLOODY CLOTHING. HOWEVER, WHAT MR. SHAPIRO HAS DONE IS, HE HAS GIVEN THE WITNESS A REPORT WRITTEN BY SOMEONE ELSE, AND IN THAT REPORT, THE CRIMINALIST, MICHELLE KESTLER, SAYS THERE'S OBVIOUS BLOOD ON THE SOCK BASED ON HER VISUAL INSPECTION OF IT. I CAN GO GET MORE REPORTS WITH DNA AND OTHER THINGS THAT'S GOING TO INDICATE THERE'S BLOOD ON THE SOCK WHEN IT IS FINALLY TESTED SCIENTIFICALLY. OKAY. THIS IS JUST IMPROPER IMPEACHMENT FOR THIS PARTICULAR WITNESS.

# 13 THE COURT:

MR. SHAPIRO.

# 14 MR. SHAPIRO:

WE ARE TALKING ABOUT --

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

# 16 MR. SHAPIRO:

WE ARE TALKING ABOUT THE 13TH. AND ON THE 13TH, THE QUESTION WAS, WAS THERE ANY BLOOD. OUR THEORY IS THAT BLOOD IS NOT THERE ON THE 13TH BECAUSE THE PEOPLE KNOW IT WASN'T THERE ON THE 13TH. IT WASN'T THERE. IT WAS EXAMINED BY MISS MICHELLE KESTLER ALMOST A MONTH LATER.

# 17 THE COURT:

ALL RIGHT. I AM GOING TO SUSTAIN THE OBJECTION UNDER 352 BECAUSE THIS IS GOING TO TAKE US WAY INTO MANY AREAS.

# 18 MR. SHAPIRO:

I HAVE ONE OTHER WAY I WOULD LIKE TO APPROACH IT THEN AND ASK HIM IF ANYBODY REPORTED TO HIM ON THE 13TH THERE WAS BLOOD ON THE SOCKS.

# 19 MR. DARDEN:

THAT'S HEARSAY AND BEYOND -- THERE'S NO ONE THAT WAS COMPETENT TO LOOK AT A BLACK PAIR OF SOCKS AND DETERMINE WHETHER OR NOT THERE IS BLOOD. THIS IS ALL BASED ON --

# 20 THE COURT:

I AM GOING TO SUSTAIN THE OBJECTION, MR. SHAPIRO, BECAUSE CAN YOU GET THAT INFORMATION THROUGH THE EXPERT.

# 21 MR. SHAPIRO:

BUT THIS STAYS OUT HERE SO LONG UNTIL WE GET TO THAT, JUDGE, IT'S REALLY MISLEADING, REALLY TOTALLY UNFAIR.

# 22 MR. DARDEN:

YOU ASKED THE QUESTION.

# 23 MR. SHAPIRO:

I CAN ASK THE QUESTION.

# 24 MR. DARDEN:

NO. YOU ASKED THE QUESTION IN THE FIRST PLACE.

# 25 MR. SHAPIRO:

IT'S TOTALLY IMPROPER TO MAKE THE JURY HAVE THIS IMPRESSION.

# 26 THE COURT:

OVERRULED.

# 27 MR. COCHRAN:

OVERRULED?

# 28 THE COURT:

NO. OBJECTION SUSTAINED. THAT ARGUMENT IS OVERRULED.

KEY QUOTE

Temperature

tense

Key Quotes (5)

Marcia Clark

I'M VERY WELL COMPOSED. MR. SHAPIRO, I THINK YOU OUGHT TO READ THE EVIDENCE CODE, LEARN HOW TO IMPEACH A WITNESS.

Sharp personal jab at Shapiro's legal competence, prompting the judge to warn both sides about gratuitous shots.

Lance A. Ito

I THOUGHT WE AGREED THESE GRATUITOUS SHOTS WERE GOING TO BE VERBOTEN FROM THIS POINT ON.

Judge rebukes both counsel, revealing ongoing tension management between the parties.

Robert Shapiro

OUR THEORY IS THAT BLOOD IS NOT THERE ON THE 13TH BECAUSE THE PEOPLE KNOW IT WASN'T THERE ON THE 13TH. IT WASN'T THERE. IT WAS EXAMINED BY MISS MICHELLE KESTLER ALMOST A MONTH LATER.

Shapiro explicitly articulates the defense's planted-evidence theory for the socks.

Christopher Darden

IN THAT REPORT, THE CRIMINALIST, MICHELLE KESTLER, SAYS THERE'S OBVIOUS BLOOD ON THE SOCK BASED ON HER VISUAL INSPECTION OF IT.

Darden counters by noting Kestler's own report undermines the defense's impeachment attempt.

Lance A. Ito

NO. OBJECTION SUSTAINED. THAT ARGUMENT IS OVERRULED.

Ito clarifies a confusing moment after Cochran questioned an apparent reversal — the objection is sustained, only Shapiro's argument against it is overruled.

Evidence (3)

Informal

Michelle Kestler's handwritten notes indicating no blood observed on socks during June 13th collection

referenced by Shapiro as basis for impeachment

Informal

The bloody socks recovered from OJ Simpson's bedroom

discussed — defense argues blood was not present at time of collection on June 13th

Informal

Criminalist report by Michelle Kestler noting 'obvious blood' on sock based on visual inspection

cited by Darden to rebut Shapiro's impeachment theory

Notable Exchanges (3)

Robert Shapiro•Marcia Clark

Shapiro pauses mid-argument to note Clark is laughing; Clark fires back telling him to learn the Evidence Code.

heated

Robert Shapiro•Christopher Darden

Brief argument over who elicited the 'bloody clothing' testimony — Darden says Shapiro asked the question on cross, Shapiro insists it came out on direct.

combative

Johnnie Cochran•Lance A. Ito

Cochran questions the judge after hearing 'overruled,' prompting Ito to clarify he sustained the objection but overruled only Shapiro's argument.

clarifying

Light Moments (1)

Robert Shapiro

Shapiro pauses mid-argument saying 'MISS CLARK IS LAUGHING. MAYBE I SHOULD WAIT UNTIL SHE COMPOSES HERSELF,' prompting Clark's sharp retort.

Credibility Attacks (1)

⚔ Detective/officer who testified about recovering bloody socks

prior inconsistent statement / contradictory documentary evidence

Shapiro attempts to use Kestler's June 13th handwritten notes — showing no blood detected — to contradict the witness's testimony characterizing the socks as 'bloody clothing' at time of collection. Judge sustains objection under EC 352 and directs defense to use expert witness instead.

Witness Demeanor

(BRIEF PAUSE.) — while judge checks notes

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

Objections

2 objections (2 sustained, 0 overruled)

Proceeding 5354 • 28 utterances

Criminal Trial

Department 103