Recess

📄 Recess — Wednesday, March 29, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\29\RECESS.DOC

TRIAL

▲ Day 47 of 167

◀ Redirect examination of Allan Park Redirect examination of Allan Park (part 2) ▶

Date: Wednesday, March 29, 1995 • Utterances: 82

After a noon recess and unreported bench conferences, the court reconvened out of the jury's presence to resolve a dispute over whether Cochran could show witness Allan Park a bag Cochran claimed may have been the one OJ Simpson carried to Chicago the night of the murders. Darden objected that the offer of proof was too speculative and the bag appeared brand new, recovered from Kardashian's home. Judge Ito sustained the 352 objection, ruling the evidence too speculative and potentially misleading to the jury.

# 1 THE COURT:

ALL RIGHT. I TAKE IT YOU DO HAVE SOME RECROSS?

# 2 MR. COCHRAN:

YES, I HAVE SOME.

# 3 THE COURT:

OKAY.

# 4 MR. COCHRAN:

WOULD YOU LIKE ME TO DO IT NOW?

# 5 THE COURT:

NO. WE ARE GOING TO TAKE A RECESS AT THIS POINT. ALL RIGHT.

LADIES AND GENTLEMEN, WE ARE GOING TO TAKE A RECESS AT THIS POINT. PLEASE REMEMBER MY ADMONITIONS TO YOU. DON'T DISCUSS THE CASE AMONGST YOURSELVES, FORM ANY OPINIONS ABOUT THE CASE, CONDUCT MY DELIBERATIONS OR ALLOW ANYBODY TO CONTACT YOU. WE WILL BE IN RECESS UNTIL 1:30. I WOULD LIKE COUNSEL HERE AT 1:30. MR. PARK, YOU ARE EXCUSED UNTIL 1:30. ALL RIGHT. PLEASE REMEMBER MY OTHER ORDERS.

# 6 THE WITNESS:

THANK YOU, YOUR HONOR.

# 7 MR. DARDEN:

MAY WE APPROACH FOR A MOMENT?

# 8 THE COURT:

SURE.

# 9 (A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)

# 10 (AT 12:08 P.M. THE NOON RECESS WAS TAKEN UNTIL 1:30 P.M. OF THE SAME DAY.)

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

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

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

# 14 THE COURT:

ALL RIGHT. ANYTHING ELSE WE NEED TO DISCUSS BEFORE WE HAVE THE JURORS REJOIN US?

# 15 MR. COCHRAN:

JUST ONE MOMENT.

# 16 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL AND THE DEFENDANT.)

# 17 MR. DARDEN:

WE HAVE TO WAIT FOR --

# 18 MR. COCHRAN:

MAY WE APPROACH, YOUR HONOR, JUST A MOMENT?

# 19 MR. DARDEN:

WITH THE REPORTER?

# 20 MR. COCHRAN:

WELL, I WILL LET THE JUDGE DECIDE.

# 21 MR. DARDEN:

IS IT RELATIVE -- RELATES TO THAT ITEM.

# 22 (A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)

# 23 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

# 24 THE COURT:

BACK ON THE RECORD IN THE SIMPSON MATTER. ALL PARTIES ARE AGAIN PRESENT, WITH THE EXCEPTION OF MISS CLARK. MR. COCHRAN, YOU WISH TO BE HEARD?

# 25 MR. COCHRAN:

I WOULD LIKE TO BE HEARD IF I MIGHT. I WOULD ASK LEAVE THE COURT TO ASK MR. PARK A QUESTION REGARDING THIS PARTICULAR BAG, WHICH I WOULD LIKE TO MARK AND ASK HIM WHETHER OR NOT THIS PARTICULAR BAG I HAVE IN MY LEFT HAND HERE APPEARS SIMILAR IN SIZE AND SHAPE AND COLOR TO THE BAG THAT HE SAW FROM ABOUT TWENTY FEET ON THE DRIVEWAY. I THINK THAT THIS BAG BELONGED TO OR BELONGS TO MR. SIMPSON AND MAY HAVE BEEN ONE OF THE BAGS THAT HE TOOK TO CHICAGO ON THAT NIGHT. AND I THINK THE COURT IS AWARE ALSO THAT MR. PARK HAS PREVIOUSLY SEEN THIS BAG AND INDICATED THAT IT APPARENTLY IS -- COMPORTS OR IS SIMILAR IN SIZE AND SHAPE AND COLOR TO THE BAG THAT HE SAW FROM SOME TWENTY FEET AWAY. HE CAN'T SAY DEFINITELY. AND I ASK LEAVE THE COURT, IN VIEW OF THE TACT TAKEN BY THE PROSECUTION REGARDING THIS BAG, TO BE ALLOWED TO ASK THAT QUESTION IN THE PRESENCE OF THE JURY.

# 26 THE COURT:

MR. DARDEN.

# 27 MR. DARDEN:

WELL, AS I UNDERSTOOD THE OFFER OF PROOF COUNSEL MADE AT SIDE BAR IS THAT MR. SIMPSON SAID THAT THE BAG MIGHT HAVE BEEN A BAG HE TOOK TO CHICAGO, HE DOESN'T KNOW, HE CAN'T SAY FOR SURE. HE THINKS IT IS HIS BAG. HE HAS A LOT OF BAGS. WELL, THAT DOESN'T GIVE -- THAT IS NO OFFER OF PROOF. THAT IS NOT MUCH MORE THAN SPECULATION. IT IS A COMPLETE NON-COMMITTAL ON THE PART OF THE DEFENSE AS TO WHETHER OR NOT THAT BAG IS THE ONE THAT WAS TAKEN TO CHICAGO, AND THEY OUGHT NOT TO JUST THROW THINGS UP HERE IN FRONT OF THIS WITNESS.

# 28 MR. COCHRAN:

YOUR HONOR, MAY THE WITNESS BE ASKED TO STEP OUTSIDE?

# 29 THE COURT:

NO. HE HAS ALREADY BEEN INTERVIEWED IN THE PRESENCE OF COUNSEL.

# 30 (MS. CLARK ENTERS THE COURTROOM.)

# 31 MR. DARDEN:

IT IS LITTLE MORE THAN TRICKERY. BEYOND THAT, THE BAG IS NEW AND IT IS APPARENT THAT NOTHING HAS EVER BEEN PLACED INSIDE THE BAG. THE KEYS ARE STILL ATTACHED TO THE BAG AND THE LITTLE PLASTIC STRING THAT ONCE -- TO WHICH WAS ONCE ATTACHED THE PRICE TAG I GUESS IS STILL ON THE BAG. THE BAG WAS RECOVERED JUST TODAY, I BELIEVE AT ELEVEN O'CLOCK THIS MORNING, FROM MR. KARDASHIAN'S HOME.

KEY QUOTE

# 32 THE COURT:

YESTERDAY.

# 33 MR. DARDEN:

I'M SORRY.

# 34 THE COURT:

YESTERDAY.

# 35 MR. DARDEN:

YESTERDAY. IT IS IRRELEVANT. IT IS COMPLETELY IRRELEVANT. THIS BAG HAS -- HELPS US, IT DOES NOT HELP THE JURY --

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

# 37 MR. DARDEN:

AND AS MISS CLARK HAS REMINDED ME THERE COULD BE MILLIONS OF BAGS THAT PERHAPS FIT THE DESCRIPTION GIVEN BY MR. PARK, AND MR. PARK HAS TOLD THE COURT AT SIDE BAR AND HE HAS TOLD THE JURY AS WELL THAT HE DID NOT GET A GOOD LOOK AT THE BAG. HIS MEMORY IS SOMEWHAT VAGUE AS TO WHAT THE BAG LOOKED LIKE EXACTLY. I MEAN, IT COULD BE, IT COULDN'T BE. WHERE DOES THAT GET US? HOW IS THAT RELEVANT? SO WE WOULD OBJECT TO REPRESENTING THAT BAG TO THE JURY.

# 38 MR. COCHRAN:

THE IDEA THAT IT IS VERY HARD FOR THE PROSECUTORS TO EVER ARGUE EVERYTHING WITHOUT LABELING EVERYTHING. TRICKERY COMES FROM THESE VAGUE THEORIES THAT CHANGE LIKE THE WEATHER.

# 39 MR. DARDEN:

OBJECTION. IS THAT NOT A GRATUITOUS PERSONAL ATTACK?

# 40 MR. COCHRAN:

I'M REFERRING TO HIS REMARK ABOUT TRICKERY.

# 41 THE COURT:

COUNSEL, STOP, BOTH OF YOU.

# 42 MR. COCHRAN:

YOUR HONOR, IF THE COURT PLEASES, I'M ASKING LEAVE OF THE COURT, BASED ON THE REPRESENTATION AND BASED UPON THE FACT THAT THIS BAG WAS RECOVERED BY JUDGE WONG YESTERDAY -- AND I WANT TO ASK MR. WONG ABOUT IT. YOUR HONOR, THIS MATTER WAS BROUGHT UP -- COULD MR. DARDEN PLEASE SIT DOWN AND STOP MAKING SOUNDS.

# 43 MR. DARDEN:

WAS I MAKING SOUNDS?

# 44 MR. COCHRAN:

YES. YOU WERE GOING "UN, UN, UN."

# 45 MR. DARDEN:

NO, I WAS GOING "UN, UMM, UN."

# 46 MR. COCHRAN:

THAT NERVOUS TWITCH.

# 47 THE COURT:

I THINK WAS "UN, UN, UN."

# 48 MR. COCHRAN:

"UN, UN, UN," YOUR HONOR.

# 49 MR. DARDEN:

I COULDN'T BELIEVE WHAT MR. COCHRAN WAS SAYING.

# 50 MR. COCHRAN:

NOW, YOUR HONOR, MAY I PROCEED? WITH REGARD TO THE PROSECUTION'S QUESTIONING OF BOTH MR. PARK AND MR. KATO KAELIN, IN THIS INSTANCE THESE BAGS, ALL THESE BAGS WERE RECOVERED. THEY WERE NOT RECOVERED BY THE PEOPLE. THESE BAGS WERE BROUGHT FORWARD BY THE DEFENSE WITH THE HELP OF THIS COURT BY THE SPECIAL MASTER AND THEY ARE NOW IN THE COURT'S CUSTODY. I WANT PURELY TO ASK THE QUESTION THE COURT KNOWS THAT I WANT TO ASK. I HAVE ASKED MR. PARK. I GUESS PROBATIVE VALUE. IT DOESN'T GO TO ANY WEIGHT. IT DOESN'T GO TO ADMISSIBILITY, RATHER, IT GOES TO ANY WEIGHT. EVERYBODY KNOWS HE WAS TWENTY FEET AWAY. HE WAS TWENTY FEET AWAY WHEN THEY WERE ASKING ALL THOSE QUESTIONS, TOO, BUT FAIR IS FAIR. YOU CAN'T ALLOW THEM, IT SEEMS TO ME, TO DO ALL THESE THINGS AND NOT ALLOW US AN OPPORTUNITY TO SHOW WHAT MIGHT VERY WELL HAVE BEEN THE BAG. AND THAT IS ALL WE ARE ASKING TO DO YOUR HONOR. I THINK IT IS ENTIRELY APPROPRIATE. WITH REGARD TO THE OTHER BAG HE CAN'T IDENTIFY, I'M NOT ASKING ANYTHING REGARDING THAT AND I WOULD LIKE TO CONCLUDED MY CROSS-EXAMINATION WITH THAT.

# 51 THE COURT:

MR. DARDEN.

# 52 MR. DARDEN:

THIS OFFER OF PROOF DOES NOT RISE TO THE LEVEL OF WHAT VERY WELL MIGHT HAVE BEEN. MR. SIMPSON KNOWS WHICH BAG HE TOOK TO CHICAGO. HE HASN'T SAID THAT THIS IS THE ONE, AND GIVEN THAT, THE DEFENSE SHOULD BE PRECLUDED FROM JUST THROWING THINGS UP HERE IN FRONT OF THE WITNESSES WHEN THEY THROW THEORIES AROUND THE COURTROOM, REGARDLESS OF WHETHER THEY HAVE A FACTUAL BASIS FOR THEM, AND NOW THEY WANT TO DO THE SAME THING WITH THIS BAG. IT IS IRRELEVANT. IT HAS NO PROBATIVE VALUE WHATSOEVER. MR. COCHRAN IS MAKING SOUNDS BEHIND MY BACK, YOUR HONOR.

# 53 THE COURT:

ALL RIGHT. GENTLEMEN.

# 54 MR. DARDEN:

IN ANY EVENT --

# 55 THE COURT:

ALL RIGHT. THANK YOU. I'M GOING TO SUSTAIN THE 352 OBJECTION FOR THIS REASON: THE OFFER OF PROOF WAS THIS COULD POSSIBLY BE AND THE STATEMENT BY MR. PARK WITH COUNSEL AT SIDE BAR "THAT DOES NOT LOOK FAMILIAR," BUT HE COULDN'T TELL, YOU HAVE -- IT IS TOO SPECULATIVE AT THIS POINT AND THE DANGER OF MISLEADING THE JURY IS APPARENT. AND THE COURT WILL SUSTAIN THE OBJECTION.

# 56 MR. COCHRAN:

YOUR HONOR, MAY I BE HEARD? MY UNDERSTANDING REGARDING WHAT MR. PARK SAID -- MY UNDERSTANDING MR. PARK -- AND I WOULD ASK THE COURT TO ASK HIM WHAT HE SAID -- WAS THAT IT WAS SIMILAR IN BOTH SIZE, SHAPE AND COLOR AND THAT HE WAS TWENTY FEET AWAY.

# 57 THE COURT:

HIS INITIAL COMMENT TO ME WAS IT DOESN'T LOOK FAMILIAR.

# 58 MR. COCHRAN:

BUT HE DID ALSO SAY --

# 59 THE COURT:

COUNSEL, I'VE GOT EIGHT BAGS IN MY CHAMBERS THAT ARE THE SAME GENERAL COLOR, GENERAL SIZE.

KEY QUOTE

# 60 MR. COCHRAN:

EIGHT?

# 61 THE COURT:

EIGHT. DO YOU WANT TO COUNT THEM?

# 62 MR. COCHRAN:

NO, NO, I DON'T NEED TO COUNT THEM, BUT I JUST WANTED TO MAKE --

# 63 THE COURT:

TWO JUST FOR DNA MATERIALS.

# 64 MR. COCHRAN:

I WANTED TO MAKE SURE THE COURT WAS MINDFUL OF WHAT HE HAD SAID.

# 65 THE COURT:

I DID. I HEARD VERY CAREFULLY. I LISTENED TO MR. PARK VERY CAREFULLY. THANK YOU, COUNSEL.

# 66 MR. DARDEN:

THERE IS THE ISSUE OF THE OTHER BAG, RIGHT, THE SUEDE ONE.

# 67 THE COURT:

THAT IS NOT BEING OFFERED IS MY UNDERSTANDING.

# 68 MR. DARDEN:

SUEDE?

# 69 MR. COCHRAN:

YOUR HONOR, MAY I MARK THIS 1066.

# 70 THE COURT:

YES, FOR THE RECORD.

# 71 (DEFT'S 1066 FOR ID = BAG)

# 72 MR. DARDEN:

THE SUEDE BAG IS NOT BEING OFFERED?

# 73 (DISCUSSION HELD OFF THE RECORD BETWEEN DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)

# 74 MR. COCHRAN:

HE COULDN'T IDENTIFY IT.

# 75 THE COURT:

ALL RIGHT. ARE YOU READY TO PROCEED?

# 76 MR. DARDEN:

YES.

# 77 THE COURT:

I DO STILL HAVE JUDGE WONG HERE AVAILABLE, BUT HE WOULD LIKE TO GET OUT OF HERE AS SOON AS POSSIBLE.

# 78 MS. CLARK:

I'M SORRY, YOUR HONOR. I COULDN'T HEAR.

# 79 THE COURT:

JUDGE WONG IS STILL HERE. HE WOULD LIKE TO LEAVE, THOUGH, BECAUSE HE HAS ANOTHER APPOINTMENT.

# 80 MR. DARDEN:

IF WE COULD JUST DRAG OUT THE BAGS.

# 81 THE COURT:

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

# 82 (BRIEF PAUSE.)

Temperature

tense

Key Quotes (4)

Christopher Darden

IT IS LITTLE MORE THAN TRICKERY. BEYOND THAT, THE BAG IS NEW AND IT IS APPARENT THAT NOTHING HAS EVER BEEN PLACED INSIDE THE BAG. THE KEYS ARE STILL ATTACHED TO THE BAG AND THE LITTLE PLASTIC STRING THAT ONCE -- TO WHICH WAS ONCE ATTACHED THE PRICE TAG I GUESS IS STILL ON THE BAG.

Darden argues the bag is a plant — brand new, price tag still attached, recovered from Kardashian's home that morning — undermining Cochran's offer of proof.

Lance A. Ito

I'VE GOT EIGHT BAGS IN MY CHAMBERS THAT ARE THE SAME GENERAL COLOR, GENERAL SIZE.

The judge's wry point that the bag is too generic to be probative — there are eight similar bags in his own chambers, two just for DNA materials.

Johnnie Cochran

FAIR IS FAIR. YOU CAN'T ALLOW THEM, IT SEEMS TO ME, TO DO ALL THESE THINGS AND NOT ALLOW US AN OPPORTUNITY TO SHOW WHAT MIGHT VERY WELL HAVE BEEN THE BAG.

Cochran's equity argument — that the prosecution was permitted to question Park about the bag at twenty feet, so the defense should be allowed to show a potentially matching bag.

Lance A. Ito

I'M GOING TO SUSTAIN THE 352 OBJECTION FOR THIS REASON: THE OFFER OF PROOF WAS THIS COULD POSSIBLY BE AND THE STATEMENT BY MR. PARK WITH COUNSEL AT SIDE BAR 'THAT DOES NOT LOOK FAMILIAR,' BUT HE COULDN'T TELL, YOU HAVE -- IT IS TOO SPECULATIVE AT THIS POINT AND THE DANGER OF MISLEADING THE JURY IS APPARENT.

The ruling: speculation plus risk of misleading the jury outweighs probative value. Park's own sidebar reaction ('does not look familiar') sealed it.

Evidence (2)

Defense 1066

A bag Cochran claimed may be similar in size, shape, and color to the bag Park observed on Simpson's driveway the night of the murders; recovered from Robert Kardashian's home; appeared brand new with price tag string still attached.

Marked for identification; Cochran sought to show it to Park on recross; court sustained 352 objection and excluded it from jury presentation.

Informal

A suede bag — separate from Defense 1066 — also in contention but not offered because Park could not identify it.

Discussed briefly; not offered into evidence.

Notable Exchanges (3)

Johnnie Cochran•Christopher Darden

Cochran accused the prosecution's theories of changing 'like the weather'; Darden objected calling it a gratuitous personal attack; Ito shut both down.

heated

Johnnie Cochran•Christopher Darden•Lance A. Ito

Cochran complained Darden was making distracting sounds ('UN, UN, UN'); Darden denied it ('No, I was going UN, UMM, UN'); Ito weighed in that he thought it was 'UN, UN, UN.'

light

Johnnie Cochran•Lance A. Ito

After Cochran pressed the court to recall what Park said at sidebar, Ito revealed he had eight similar bags in his own chambers — two just for DNA materials — making the point that the bag was far too generic to be probative.

strategic

Light Moments (2)

Lance A. Ito

Cochran complained Darden was making 'UN, UN, UN' sounds. Darden denied it, claiming he was saying 'UN, UMM, UN.' Ito sided with Cochran: 'I think it was UN, UN, UN.'

Johnnie Cochran

After Ito revealed he had eight similar bags in chambers, Cochran responded simply: 'Eight?'

Witness Demeanor

(A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)

(AT 12:08 P.M. THE NOON RECESS WAS TAKEN UNTIL 1:30 P.M. OF THE SAME DAY.)

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

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL AND THE DEFENDANT.)

(A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)

(MS. CLARK ENTERS THE COURTROOM.)

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

(DEFT'S 1066 FOR ID = BAG)

(DISCUSSION HELD OFF THE RECORD BETWEEN DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)

(BRIEF PAUSE.)

Objections

2 objections (1 sustained, 0 overruled)

Proceeding 5479 • 82 utterances

Criminal Trial

Department 103