Preliminary matters

📄 Preliminary matters — Wednesday, March 22, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\22\PRELIMINARY-MATTERS.DOC

TRIAL

▲ Day 43 of 167

◀ Sidebar: hearsay objection Jury entry ▶

Date: Wednesday, March 22, 1995 • Utterances: 55

Before the jury was brought in, defense counsel Shapiro objected to gratuitous sidebar comments implicating Jason Simpson in evidence planting. The bulk of the session concerned a short videotape of Rockingham shot on June 13th — Clark wanted to use it with Kato Kaelin to corroborate Ron Shipp's presence and show the Akita dog behaving calmly, but the defense raised foundational objections because the tape's source was unknown. Ito allowed it subject to a motion to strike.

# 1 THE COURT:

ALL RIGHT. GOOD MORNING AGAIN, COUNSEL. 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 AND MR. DARDEN THE JURY IS NOT PRESENT. COUNSEL, IS THERE ANYTHING WE NEED TO TAKE UP BEFORE WE INVITE THE JURORS TO REJOIN US?

# 2 MR. SHAPIRO:

YES. YOUR HONOR, VERY BRIEFLY. WE ARE QUITE CONCERNED ABOUT SOME OF THE THINGS THAT ARE BEING SAID AT SIDE BAR THAT ARE GRATUITOUS IN NATURE, AND YESTERDAY THERE WERE STATEMENTS THAT WERE MADE THAT WERE QUITE DEROGATORY OF JASON SIMPSON AND IMPLY THAT HE WAS INVOLVED IN PLANTING POTENTIAL EVIDENCE. SINCE THOSE SIDE BAR CONFERENCES ARE PUBLIC RECORD AND RELEASED, IT NOT ONLY CAUSES A GREAT DEAL OF ANXIETY TO MR. SIMPSON, IT CAUSES US GREAT CONCERN, BECAUSE IN THE UNFORTUNATE EVENT THAT THIS JURY CANNOT REACH A VERDICT, IT IS GOING TO BE MUCH MORE DIFFICULT IN THE FUTURE TO TRY TO PICK A FAIR AND IMPARTIAL JUROR IF -- JURY IF THEY ARE BEING POISONED BY THESE TYPES OF GRATUITOUS COMMENTS. AND I WANTED THE RECORD TO REFLECT THAT WE STRENUOUSLY OBJECT TO THOSE. ONE MOMENT, PLEASE.

# 3 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 4 MR. SHAPIRO:

AND IN THIS CASE THE STATEMENT WAS DIRECTLY IN CONTRADICTION TO THE FACTS IN THIS CASE THAT HAVE BEEN FILED BY A JUDGE UNDER SEAL.

# 5 THE COURT:

ALL RIGHT. ANY OTHER COMMENT? ALL RIGHT. LET'S HAVE THE JURORS.

# 6 MS. CLARK:

YOUR HONOR, COULD I HAVE JUST ONE MOMENT? I HAVE TO LOOK AT AN SDT FILED BY THE DEFENSE. LET ME INDICATE, I HAVE INDICATED TO MR. SHAPIRO ALREADY THAT WE HAVE A VERY SHORT SEGMENT OF VIDEOTAPE THAT I WANTED TO BE ABLE TO SHOW TO THIS WITNESS ON THE WITNESS STAND, AND I WANT TO MAKE SURE THAT IT IS THE DATE THAT I THINK --

# 7 THE COURT:

HOW --

# 8 MS. CLARK:

PARDON? SOMETHING I CAN LAY A FOUNDATION FOR IT. PERHAPS WHAT I SHOULD DO RIGHT NOW IS SHOW IT TO COUNSEL SO THAT WE DON'T HAVE TO TAKE A BREAK IN THE PROCEEDINGS AT THE TIME.

# 9 THE COURT:

ALL RIGHT. WHAT IS THIS VIDEO OF?

# 10 MS. CLARK:

IT IS OF ROCKINGHAM, YOUR HONOR.

# 11 (AT 9:36 A.M. A VIDEOTAPE WAS PLAYED.)

# 12 (AT 9:39 A.M. THE PLAYING OF THE VIDEOTAPE CONCLUDES.)

# 13 THE COURT:

ALL RIGHT. MISS CLARK, WE HAVE HAD THE OPPORTUNITY TO SEE THE VIDEO.

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

# 15 MS. CLARK:

THERE IS JUST A LITTLE BIT MORE, YOUR HONOR. (THE PLAYING OF THE VIDEOTAPE CONTINUES.)

# 16 (AT 9:40 A.M. THE PLAYING OF THE VIDEOTAPE CONCLUDES.)

# 17 MS. CLARK:

THAT IS IT.

# 18 THE COURT:

THAT IS IT? MR. SHAPIRO, ANY COMMENT?

# 19 MR. SHAPIRO:

YES, YOUR HONOR. WE WOULD LIKE AN OFFER OF PROOF AS TO THE RELEVANCE.

# 20 THE COURT:

MISS CLARK.

# 21 MS. CLARK:

IT WILL BE PRESENTED WITH KATO, BUT FIRST, BEFORE I DO THAT, WHAT I NEED TO INQUIRE OF THE DEFENSE IS FROM WHAT STATION THIS TAPE CAME AND THE COPY OF THE SDT THAT PRODUCED IT.

# 22 THE COURT:

DO WE KNOW?

# 23 MR. COCHRAN:

I DON'T THINK WE KNOW AT THIS POINT, YOUR HONOR. WE WOULD HAVE TO TRY TO LOOK IT UP AND SEE. WHEN DOES SHE WANT TO USE IT?

# 24 MS. CLARK:

TODAY.

# 25 MR. COCHRAN:

WE WOULD HAVE TO LOOK IT UP AND SEE

# 26 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 27 MS. CLARK:

HOW COULD THEY NOT KNOW?

# 28 THE COURT:

COUNSEL, OUT OF CURIOSITY, WHAT IS THE RELEVANCE OF THAT CLIP?

# 29 MS. CLARK:

WELL, THE PERSON THAT IS WITH MR. KAELIN IS RON SHIPP.

# 30 THE COURT:

CORRECT.

# 31 MS. CLARK:

RON SHIPP HAS TESTIFIED TO HIS PRESENCE AT THE HOUSE ON JUNE THE 13TH, IF THE COURT WILL RECALL. WE BELIEVE THIS TAPE WAS MADE ON JUNE THE 13TH. IT WILL DEMONSTRATE -- IT WILL CORROBORATE RON SHIPP'S TESTIMONY AND THEN OF COURSE THE CLIP OF THE DOG.

# 32 MR. SHAPIRO:

WE WILL STIPULATE MR. SHIPP WAS THERE ON THE 13TH. IT IS NOT AN ISSUE IN THIS CASE.

# 33 MS. CLARK:

THE PEOPLE ARE ALLOWED TO PROVE THEIR CASE IN THEIR OWN WAY.

# 34 THE COURT:

MISS CLARK, WHAT IS THE RELEVANCE OF THE AKITA DOG?

# 35 MS. CLARK:

WELL, IF ONE RECALLS THE TESTIMONY OF ROSA LOPEZ, A DOG THAT WAS BARKING FURIOUSLY THE NIGHT BEFORE IS BEING -- IS BEING VERY DOCILE AND PETTED BY COMPLETE AND TOTAL STRANGERS.

KEY QUOTE

# 36 MR. SHAPIRO:

YOUR HONOR, I'VE HAD DOGS ALL MY LIFE AND SOMETIMES THEY BARK AND SOMETIMES THEY DON'T BARK, AND BECAUSE THEY WERE AROUND A FRIENDLY PEACE OFFICER DOESN'T --

KEY QUOTE

# 37 MS. CLARK:

ALL OF A SUDDEN IT IS A FRIENDLY POLICE OFFICER. I LOVE IT. CAN I GET THIS ADMITTED?

KEY QUOTE

# 38 MR. COCHRAN:

YOUR HONOR, THE PROBLEM IS IS A FOUNDATIONAL OBJECTION.

# 39 THE COURT:

WE HAVE ONE COUNSEL PER SIDE, MR. COCHRAN.

# 40 MR. COCHRAN:

SHE ASKED A QUESTION WITH REGARD TO THE FOUNDATION ON THE SDT, YOUR HONOR.

# 41 MS. CLARK:

YOUR HONOR, OBJECTION.

# 42 THE COURT:

I NOTED IT. ALL RIGHT. I ASSUMED THE ANSWER IS, SINCE THEY WEREN'T PREPARED AS TO THIS PARTICULAR SNIPPET OF VIDEOTAPE, THEY CAN'T TELL YOU WHO THE CINEMATOGRAPHER WAS OR THE VIDEOGRAPHER, WHATEVER IT IS WE CALL THEM THESE DAYS. HOWEVER, IF IT IS IN SEQUENCE, I DID SEE DETECTIVE LANGE CARRYING HIS CLIPBOARD AND WHAT APPEARED TO BE THE PAIR OF REEBOK SHOES.

# 43 MS. CLARK:

THAT HE HAS ALREADY TESTIFIED TO.

# 44 THE COURT:

THE PROBLEM IS WE DON'T KNOW IF THAT IS IN SEQUENCE BECAUSE THERE APPEARS TO ME TO BE A CUT IN BETWEEN.

# 45 MS. CLARK:

RIGHT, THERE DOES. PERHAPS COULD I DO IT THIS WAY, YOUR HONOR: WE KNOW THAT THERE WILL BE A FOUNDATION FORTHCOMING BECAUSE SOMEONE OBVIOUSLY VIDEOTAPED IT AND THE DEFENSE GOT THE TAPE FROM THAT PERSON, AND AS SOON AS THE DEFENSE TELLS ME WHO IT IS, I CAN CALL THE PERSON AND LAY THE FOUNDATION.

# 46 THE COURT:

LET ME CUT TO THE CHASE. MR. SHAPIRO. IS THERE ANY OBJECTION TO THIS?

# 47 MR. SHAPIRO:

YES, YOUR HONOR.

# 48 THE COURT:

ON FOUNDATIONAL GROUNDS?

# 49 MR. SHAPIRO:

YES.

# 50 MS. CLARK:

IF I CAN ASK THE COURT TO ALLOW ME TO HAVE THE WITNESS IDENTIFY HIM AND RON SHIPP AND THE DOG SUBJECT TO A MOTION TO STRIKE, I WILL NOT ELICIT TESTIMONY FROM THIS WITNESS AS TO WHEN THE VIDEOTAPE -- WHEN THOSE EVENTS TRANSPIRED. AND I WILL CALL THE PERSON WHO SHOT THE TAPE TO TESTIFY TO THAT.

# 51 THE COURT:

ALL RIGHT. ANY RESPONSE TO THAT PROPOSAL, MR. SHAPIRO?

# 52 MR. SHAPIRO:

YES. THERE WILL BE AN OBJECTION, YOUR HONOR; SAME GROUNDS.

# 53 THE COURT:

ALL RIGHT. OKAY. I WILL ALLOW IT SUBJECT TO A MOTION TO STRIKE.

# 54 MS. CLARK:

THANK YOU, YOUR HONOR.

# 55 THE COURT:

ALL RIGHT. LET'S HAVE THE JURORS, PLEASE.

Temperature

tense

Key Quotes (4)

Robert Shapiro

IT IS GOING TO BE MUCH MORE DIFFICULT IN THE FUTURE TO TRY TO PICK A FAIR AND IMPARTIAL JUROR IF THEY ARE BEING POISONED BY THESE TYPES OF GRATUITOUS COMMENTS.

Defense puts on record its concern that sidebar leaks about Jason Simpson planting evidence could taint any future jury pool if a mistrial occurred.

Marcia Clark

WELL, IF ONE RECALLS THE TESTIMONY OF ROSA LOPEZ, A DOG THAT WAS BARKING FURIOUSLY THE NIGHT BEFORE IS BEING VERY DOCILE AND PETTED BY COMPLETE AND TOTAL STRANGERS.

Clark explains the evidentiary theory: the Akita's calm behavior on the 13th contrasts with its agitated barking the night of the murders, potentially undermining defense witness Rosa Lopez.

Robert Shapiro

YOUR HONOR, I'VE HAD DOGS ALL MY LIFE AND SOMETIMES THEY BARK AND SOMETIMES THEY DON'T BARK.

Shapiro's informal rebuttal to the dog-behavior argument draws a sharp comeback from Clark.

Marcia Clark

ALL OF A SUDDEN IT IS A FRIENDLY POLICE OFFICER. I LOVE IT. CAN I GET THIS ADMITTED?

Clark catches Shapiro characterizing the officer favorably — a small rhetorical win mid-argument.

Evidence (1)

Informal

Short videotape of Rockingham estate shot June 13, 1994, showing Kato Kaelin, Ron Shipp, and the Akita dog; also visible is Detective Lange carrying Reebok shoes

Played for court and counsel before jury entered; admitted subject to motion to strike pending foundation witness

Notable Exchanges (3)

Marcia Clark•Robert Shapiro

Clark argues the videotape corroborates Ron Shipp's presence and the dog's demeanor; Shapiro offers to stipulate Shipp was there on the 13th to blunt the tape's value, then raises foundational objections when Clark presses for admission.

strategic

Lance A. Ito•Marcia Clark•Robert Shapiro

Ito cuts through the argument by noting he could see Detective Lange with the Reebok shoes in the clip but flagged an apparent edit cut, raising his own foundational concern before ruling to allow the tape subject to a motion to strike.

procedural

Robert Shapiro•Lance A. Ito

Shapiro raises concern that sidebar comments about Jason Simpson planting evidence are public record and could poison a future jury pool; Ito takes it on the record without ruling.

tense

Light Moments (2)

Marcia Clark

Clark quips 'ALL OF A SUDDEN IT IS A FRIENDLY POLICE OFFICER. I LOVE IT.' after Shapiro softened his description of the officer in the dog video.

Robert Shapiro

Shapiro argues dog behavior with 'YOUR HONOR, I'VE HAD DOGS ALL MY LIFE AND SOMETIMES THEY BARK AND SOMETIMES THEY DON'T BARK' — an unusually colloquial moment for a murder trial.

Credibility Attacks (1)

⚔ Rosa Lopez

contradictory evidence

Clark argues the videotape showing the Akita behaving calmly on June 13th undercuts Lopez's testimony about the dog barking furiously the night of the murders.

Objections

3 objections (0 sustained, 0 overruled)

Proceeding 5372 • 55 utterances

Criminal Trial

Department 103