Sidebar: witness examination

📄 Sidebar: witness examination — Monday, March 27, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\27\SIDEBAR-WITNESS-EXAMINATION.DOC

TRIAL

▲ Day 45 of 167

◀ Recross-examination of Brian Kato Kaelin Adjournment ▶

Date: Monday, March 27, 1995 • Utterances: 41

Defense attorney Robert Shapiro requests a continuance of Kato Kaelin's examination, saying he needs more time to confer with colleagues about a potential new line of questioning. The sidebar quickly escalates into a mutual airing of grievances between Shapiro and Marcia Clark, with both accusing the other of ongoing rude conduct. Judge Ito breaks for the day and schedules a 1:30/1:45 reconvene to handle juror and discovery matters, with the Kaelin examination to resume the next morning.

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

# 2 MR. SHAPIRO:

MAY WE APPROACH, YOUR HONOR?

# 3 THE COURT:

WITH THE REPORTER?

# 4 MR. SHAPIRO:

YES.

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

# 6 THE COURT:

WE'RE OVER AT THE SIDEBAR.

# 7 MR. SHAPIRO:

YOUR HONOR, I NEED A LITTLE MORE TIME TO CONFER WITH MY COLLEAGUES REGARDING ANOTHER AREA THAT WE MAY OR MAY NOT GET INTO, AND I AM NOT PREPARED TO PROCEED ON THAT AREA UNTIL I CONFER WITH THEM.

# 8 THE COURT:

HOW MUCH TIME DO YOU NEED TO CONFER?

# 9 MR. SHAPIRO:

I WOULD LIKE TO COME BACK AND COMPLETE THE EXAMINATION TOMORROW, KNOWING THAT THE COURT HAD SCHEDULED THIS TO END AT NOON. WE'VE GONE A LITTLE BIT BEYOND THAT.

# 10 THE COURT:

I WAS HOPING WE WOULD FINISH THIS MORNING WITH MR. KAELIN.

# 11 MR. SHAPIRO:

THIS MAY BE THE END. I MAY NOT HAVE ANYTHING MORE.

# 12 THE COURT:

HOW MUCH TIME DO YOU NEED TO CONFER WITH YOUR COLLEAGUES?

# 13 MR. SHAPIRO:

WE ARE GOING TO NEED SOME TIME. IT'S NOT SOMETHING WE CAN DO QUICKLY AND DECIDE.

# 14 THE COURT:

ANY COMMENT BY THE PEOPLE?

# 15 MS. CLARK:

I THINK THAT THE COURT HAS TO AT SOME POINT CUT THIS OFF. NOW, THE WITNESS CAN BE RECALLED BY THE DEFENSE. THE WITNESS ISN'T GOING ANYWHERE. WE CAN COMPLETE EXAMINATION FOR NOW, MOVE ON WITH THIS CASE AND COUNSEL CAN RECALL THE WITNESS IN THEIR CASE IN CHIEF. HE'S THEIR WITNESS REALLY ANYWAY.

# 16 MR. COCHRAN:

WE DIDN'T CALL THIS WITNESS.

# 17 MS. CLARK:

NO, I KNOW. YOU KNOW WHAT I MEAN, MR. COCHRAN.

# 18 THE COURT:

WELL, WE HAVE ALREADY GONE 15 MINUTES PAST WHEN I SAID WE WERE GOING TO STOP TODAY. WHAT'S YOUR TIME ESTIMATE ON THIS OTHER AREA OR DO YOU KNOW AT THIS POINT?

# 19 MR. SHAPIRO:

I CAN NOT GIVE A GOOD FAITH REPRESENTATION AS TO THE TIME. I THINK THE DIRECT WOULD BE VERY BRIEF. I THINK THE CROSS WOULD BE QUITE LENGTHY.

# 20 MS. CLARK:

I KNOW MR. SHAPIRO HAS NEVER PROBABLY GIVEN A GOOD FAITH REPRESENTATION.

KEY QUOTE

# 21 THE COURT:

COUNSEL, WE REALLY DON'T NEED THOSE KIND OF SNIDE REMARKS, PLEASE.

KEY QUOTE

# 22 MR. SHAPIRO:

YOU KNOW, YOUR HONOR, I AM PERSONALLY --

# 23 MS. CLARK:

I WOULD LIKE AN OFFER OF PROOF AS TO THE AREA COUNSEL INTENDS TO GO INTO.

# 24 MR. SHAPIRO:

YOUR HONOR, SO THE RECORD IS CLEAR, I AM PERSONALLY OFFENDED BY THIS CONDUCT OVER THE LAST FOUR DAYS. YOUR HONOR PUT DOWN CERTAIN RULES, PUT THEM IN WRITING, HAS GIVEN WARNING AFTER WARNING, AND WE WOULD ASK YOUR HONOR TO START ENFORCING THOSE RULES WITH APPROPRIATE SANCTIONS.

# 25 MS. CLARK:

GOOD. PERHAPS --

# 26 MR. SHAPIRO:

I FIND IT PERSONALLY EMBARRASSING AND HUMILIATING. COUNSEL KNOWS THAT THESE SIDEBARS ARE REPORTED, AND I DON'T WANT TO DIGNIFY HER RESPONSES AT ALL, BUT I THINK THE COURT SHOULD MAKE APPROPRIATE COMMENTS.

# 27 MS. CLARK:

YOU KNOW, YOUR HONOR, I WOULD WELCOME THE COURT'S IMPOSITION OF SANCTIONS ON BOTH SIDES AS APPROPRIATE. MR. SHAPIRO HAS BEEN OFFENSIVE IN HIS CONDUCT TOWARDS ME, RUDE, MAKING UNCALLED FOR, DEROGATORY REMARKS SINCE JUNE THE 13TH, AND THIS COURT IS ONLY AWARE OF WHAT'S HAPPENED IN THIS COURT SINCE COMING TO SUPERIOR COURT. BUT THERE'S A LOT OF WATER UNDER THIS BRIDGE. I WOULD JUST LET THE COURT KNOW COUNSEL HAS GIVEN A GREAT DEAL, GREATER THAN HE'S RECEIVED IN THIS RESPECT.

# 28 THE COURT:

WELL, THE FACT THAT THAT MAY BE HISTORY DOESN'T MEAN THAT IT NEEDS TO CONTINUE.

KEY QUOTE

# 29 MS. CLARK:

THAT'S TRUE.

# 30 THE COURT:

ALL RIGHT. WE'LL TAKE OUR BREAK THEN AT THIS POINT SINCE WE'RE ALREADY OVER IN ANY EVENT AND THE SHERIFF NEEDS TO GET THIS JUROR ON HER WAY TO THE FUNERAL THAT SHE NEEDS TO ATTEND. SO WE'LL TAKE THE BREAK AT THIS TIME.

TOMORROW MORNING SHARP WITH THE JURY. AND I THINK WE OUGHT TO CONCLUDE THE OTHER JUROR MATTERS, ANY OTHER DISCOVERY MATTERS. SO I THINK WE OUGHT TO RECONVENE AT 1:30 OR 1:45 WITH COUNSEL.

# 31 MR. COCHRAN:

WHAT IS THAT, YOUR HONOR?

# 32 MS. CLARK:

YOU MEAN TODAY?

# 33 THE COURT:

TODAY.

# 34 MS. CLARK:

CAN I ASK THAT THE -- THAT COUNSEL MAKE AN OFFER OF PROOF AS TO THE AREA THEY'RE TALKING ABOUT GOING INTO? I MEAN THIS MAY BE AN AREA WE HAVE AN OBJECTION TO AND THE COURT WILL SUSTAIN AN OBJECTION, IN WHICH CASE WE CAN CONCLUDE WITH THE WITNESS NOW.

# 35 MR. SHAPIRO:

I WOULD LIKE AN OPPORTUNITY TO TALK TO COUNSEL.

# 36 THE COURT:

HE'S ASKING FOR TIME TO CONFER. I WILL GIVE YOU THE SAME CONSIDERATION, AS I HAVE.

# 37 MS. CLARK:

YOU HAVE.

# 38 MR. COCHRAN:

I WASN'T CLEAR. ARE WE COMING BACK 1:45 TODAY?

# 39 THE COURT:

YES.

# 40 MR. COCHRAN:

WHAT MATTER ARE WE GOING TO --

# 41 (PAGES 20401 THROUGH 20402, VOLUME 114A, TRANSCRIBED AND SEALED UNDER SEPARATE COVER.)

Temperature

tense

Key Quotes (5)

Marcia Clark

I KNOW MR. SHAPIRO HAS NEVER PROBABLY GIVEN A GOOD FAITH REPRESENTATION.

Unprompted personal attack on Shapiro's credibility and candor, which triggers a formal rebuke from the judge and a broader exchange of grievances.

Lance A. Ito

COUNSEL, WE REALLY DON'T NEED THOSE KIND OF SNIDE REMARKS, PLEASE.

Judge intervenes to shut down Clark's dig at Shapiro, demonstrating the court's frustration with counsel's interpersonal conduct.

Robert Shapiro

I AM PERSONALLY OFFENDED BY THIS CONDUCT OVER THE LAST FOUR DAYS. YOUR HONOR PUT DOWN CERTAIN RULES, PUT THEM IN WRITING, HAS GIVEN WARNING AFTER WARNING, AND WE WOULD ASK YOUR HONOR TO START ENFORCING THOSE RULES WITH APPROPRIATE SANCTIONS.

Shapiro formally requests sanctions against Clark, escalating a procedural sidebar into a conduct dispute and signaling serious friction between counsel.

Marcia Clark

MR. SHAPIRO HAS BEEN OFFENSIVE IN HIS CONDUCT TOWARDS ME, RUDE, MAKING UNCALLED FOR, DEROGATORY REMARKS SINCE JUNE THE 13TH.

Clark counters the sanctions request with her own recitation of Shapiro's conduct, referencing a history predating the current court proceedings.

Lance A. Ito

THE FACT THAT THAT MAY BE HISTORY DOESN'T MEAN THAT IT NEEDS TO CONTINUE.

The judge diplomatically acknowledges the long-running animosity but declines to adjudicate past grievances, redirecting both parties.

Notable Exchanges (3)

Marcia Clark•Robert Shapiro

What begins as a scheduling dispute over Kaelin's examination turns into mutual accusations of rude and offensive conduct, with Shapiro requesting sanctions and Clark welcoming them on both sides. Both claim the other has been the aggressor since the early days of the case.

heated

Marcia Clark•Johnnie Cochran

Clark says Kaelin is 'their witness really anyway,' prompting Cochran to correct her — 'We didn't call this witness.' Clark backs off with 'You know what I mean, Mr. Cochran.'

mildly pointed

Marcia Clark•Lance A. Ito

Clark twice requests an offer of proof as to what new area the defense intends to explore with Kaelin, attempting to short-circuit the continuance if the area would be objected to anyway.

strategic

Light Moments (1)

Marcia Clark

Clark's 'GOOD. PERHAPS --' response after Shapiro requests sanctions — cut off mid-sentence — implies she was about to welcome the prospect, adding a sardonic edge to an already testy sidebar.

Credibility Attacks (1)

⚔ Robert Shapiro

character/candor attack

Clark implies Shapiro has never given a good faith time estimate or representation to the court, undermining his reliability as an officer of the court.

Objections

None recorded

Proceeding 5434 • 41 utterances

Criminal Trial

Department 103