Sidebar

📄 Sidebar — Wednesday, March 8, 1995

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C:\DEPT103\CRIMINAL\1995\MAR\8\SIDEBAR.DOC

TRIAL

▲ Day 33 of 167

◀ Recross-examination of Tom Lange (part 6) Adjournment ▶

Date: Wednesday, March 8, 1995 • Utterances: 60

A sidebar during Detective Lange's recross-examination covers two disputes: Cochran argues the detective 'opened the door' by testifying Simpson wasn't forthcoming, and he should be allowed to establish that Simpson gave a statement after being Mirandized; Judge Ito ultimately sustains the objection as hearsay. Darden also raises an alarming complaint that Simpson appeared to be making eye contact and rolling his eyes at a juror around 3:01 p.m.

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

# 2 MR. COCHRAN:

ALL I WANTED TO ASK HIM --

# 3 THE COURT:

AT THE SIDE BAR.

# 4 MR. COCHRAN:

HE WAS SAYING HE WASN'T COOPERATIVE. HE WAS ADMONISHED REGARDING HIS CONSTITUTIONAL RIGHTS AND ALL I WANTED TO ESTABLISHED WAS THAT HE THEN GAVE A STATEMENT.

# 5 THE COURT:

ALL RIGHT. DON'T WE HAVE A PROBLEM THAT IT IS HEARSAY?

# 6 MR. COCHRAN:

BEING ADMONISHED, YOUR HONOR.

# 7 THE COURT:

ALL RIGHT.

# 8 MR. COCHRAN:

THEY GO INTO THE FACT HE TALKS TO HIM. CUT FINGER AND ALL THAT STUFF. I CAN'T COME BACK AND ASK HIM?

# 9 THE COURT:

THE PROBLEM IS -- NO. IT IS AN ADMISSION WHICH CAN ONLY BE OFFERED BY THE OPPOSITE PARTY, ISN'T IT?

# 10 MR. COCHRAN:

YEAH.

# 11 THE COURT:

SO IF YOU ARE TALKING ABOUT STATEMENTS THAT HE MADE, UNLESS THEY OFFER IT, YOU DON'T GET TO OFFER IT.

# 12 MR. COCHRAN:

WELL, IT DEPENDS.

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

# 14 MR. COCHRAN:

HE HAS OPENED IT UP BY SAYING STATE OF MIND. HE IS SAYING THAT HE WAS NOT COOPERATIVE OR FORTHCOMING AND HE HAS OPENED THE DOOR.

# 15 MS. CLARK:

NO, NO.

# 16 THE COURT:

SURE. GO AHEAD.

# 17 MR. COCHRAN:

WHAT I AM INDICATING, WHEN HE SAYS HE IS NOT FORTHCOMING, THAT IS NOT TRUE, AND I THINK I SHOULD BE ABLE TO ESTABLISH THAT BASED UPON THE STATEMENT THAT HE GAVE.

# 18 THE COURT:

BUT THE NEXT QUESTION IS ESSENTIALLY WHAT DID HE SAY?

# 19 MR. COCHRAN:

NO, NO, I'M NOT ASKING THAT QUESTION.

# 20 THE COURT:

BUT IT IS THE FUNCTIONAL EQUIVALENT OF WHAT DID HE SAY.

# 21 MR. COCHRAN:

THE QUESTION IS DID YOU ADMONISH HIM REGARDING HIS CONSTITUTIONAL RIGHTS, WHICH HE DID, AND DID HE THEN TALK TO YOU? THAT IS PERMISSIBLE. THAT IS WHAT I WANT TO GET OUT AT THIS POINT AND THAT IS PERMISSIBLE.

# 22 THE COURT:

MISS CLARK.

# 23 MS. CLARK:

IT IS ALL HEARSAY.

# 24 MR. COCHRAN:

NOT HEARSAY.

# 25 MS. CLARK:

COUNSEL WAS THE ONE THAT ASKED THE QUESTION THAT ELICITED THE STATEMENT ABOUT HIM NOT BEING FORTHCOMING. HE CAN'T SET UP HIS OWN DOOR OPENING. IF I OPEN A DOOR AND HE WANTS TO WALK THROUGH IT, THAT IS ONE THING. HE CAN'T OPEN THE DOOR THERE AND THAT IS WHAT HE IS ATTEMPTING TO DO. REPORTER OLSON: I'M SORRY, JUDGE. I CAN'T MAKE A RECORD WHEN COUNSEL ARE BOTH SPEAKING AT THE SAME TIME.

# 26 THE COURT:

JUST PUT ATTORNEYS IGNORE COURT'S ORDER TO TALK ONE AT A TIME, THERE IS NO RECORD TO REPORT.

KEY QUOTE

# 27 MS. CLARK:

YOUR HONOR, THE PROBLEM ENSUES BECAUSE MR. COCHRAN CANNOT REFRAIN FROM TALKING WHILE I AM MAKING ARGUMENT TO THE COURT. IT IS HEARSAY. THERE IS NO EXCEPTION FOR IT. HE WAS -- IF HE ELICITED THE ANSWER THAT HE DIDN'T LIKE, THAT IS TOO BAD, BUT ELICITING THE ANSWER HE DOESN'T LIKE, HE DOESN'T THEREBY GET THE RIGHT TO ASK IMPERMISSIBLE QUESTIONS. I DON'T SEE ANY ARGUMENT THAT SUPPORTS THAT AND THE DETECTIVE TESTIFIED ON REDIRECT ABOUT AN OBSERVATION OF HIS FINGER.

# 28 THE COURT:

OKAY.

# 29 MS. CLARK:

THAT IS ALL. ALL RIGHT.

# 30 MR. COCHRAN:

ALL I WANT TO DO IS GET TO THE ASPECT AND THE WITNESS OPENS THE DOOR WHEN HE SAID HE WASN'T FORTHCOMING. I SHOULD BE ABLE TO ALLOW TO ASK HIM IF HE ADMONISHED HIM OF HIS CONSTITUTIONAL RIGHTS AND THEN MR. SIMPSON THEN TALKED TO HIM. THAT IS ALL I'M ASKING AND I THINK THAT IS PERMISSIBLE, YOUR HONOR.

# 31 MS. LEWIS:

IT IS NOT.

# 32 MS. CLARK:

NOT ADMISSIBLE AND THE INFERENCE THAT HE IS NOW ASKING TO DRAW --

# 33 THE COURT:

WELL, I GUESS WHAT WE ARE RIGHT AT THE END OF THE DAY.

# 34 MR. COCHRAN:

I WANT TO ASK A COUPLE MORE QUESTIONS IF I MIGHT.

# 35 THE COURT:

WE ARE GOING TO QUIT RIGHT NOW.

# 36 MR. COCHRAN:

A COUPLE MORE QUESTIONS.

# 37 THE COURT:

NO, WE ARE GOING TO QUIT. WE ARE GOING TO QUIT. OFF THE RECORD.

# 38 (DISCUSSION HELD OFF THE RECORD.)

# 39 MR. DARDEN:

CAN I END IT WITH DOES YOUR SECURITY CAMERA COVER MR. SIMPSON?

# 40 THE COURT:

IT DOES.

# 41 MR. DARDEN:

OKAY. AT 3:01, APPROXIMATELY, IT APPEARED TO ME THAT HE WAS -- THAT HE WAS MAKING SOME KIND OF CONTACT WITH THE JUROR SEATED AT THE END OF THE BOX. HE IS ROLLING HIS EYES AND LOOKING OVER AT HIM.

KEY QUOTE

# 42 MR. COCHRAN:

THAT IS BALONEY.

# 43 MR. DARDEN:

YOU DIDN'T EVEN SEE IT.

# 44 THE COURT:

WELL, I DON'T HAVE THE TAPE ON RIGHT NOW.

# 45 MR. DARDEN:

OKAY.

# 46 THE COURT:

SO --

# 47 MR. DARDEN:

BUT THAT IS WHAT HE IS DOING AND I WOULD ASK MR. COCHRAN TO ASK HIM, HEY, CUT IT OUT.

# 48 THE COURT:

ALL RIGHT. WELL, WE ARE GOING TO CALL IT A DAY AND LOOKS LIKE WE ARE NOT GOING TO FINISH LANGE TODAY.

# 49 MR. COCHRAN:

CAN I ASK ONE MORE QUESTION, YOUR HONOR, BEFORE I GO?

# 50 THE COURT:

NO. I'M SUSTAINING THE OBJECTION AT THIS POINT AS HEARSAY. I WANT TO GO BACK AND LOOK IN THE RECORD AND SEE WHAT THEY ASKED ON REDIRECT.

# 51 MR. COCHRAN:

THAT IS FAIR ENOUGH.

# 52 MS. CLARK:

YOUR HONOR, CAN WE HAVE A INDICATION FROM COUNSEL HOW MUCH LONGER HE IS GOING TO BE ON RECROSS?

# 53 THE COURT:

I THOUGHT HE WAS WINDING UP ABOUT TWENTY MINUTES AGO.

# 54 MS. CLARK:

I THOUGHT IT WAS AN HOUR AGO, BUT CAN WE GET AN INDICATION?

KEY QUOTE

# 55 MR. COCHRAN:

TOMORROW I WILL FINISH.

# 56 MS. CLARK:

WHAT TIME?

# 57 MR. COCHRAN:

I DON'T KNOW. TOMORROW I WILL FINISH.

# 58 MS. CLARK:

I NEED TO KNOW FOR WITNESSES.

# 59 MR. COCHRAN:

HAVE YOUR WITNESSES HERE.

# 60 THE COURT:

HAVE THEM HERE. HAVE THEM HERE. WE ARE ABOUT FINISHED.

Temperature

tense

Key Quotes (4)

Marcia Clark

HE CAN'T SET UP HIS OWN DOOR OPENING. IF I OPEN A DOOR AND HE WANTS TO WALK THROUGH IT, THAT IS ONE THING. HE CAN'T OPEN THE DOOR THERE AND THAT IS WHAT HE IS ATTEMPTING TO DO.

Crisp articulation of the 'opening the door' doctrine — Clark argues Cochran elicited the unfavorable answer himself and cannot use it to justify otherwise-prohibited questions.

Christopher Darden

AT 3:01, APPROXIMATELY, IT APPEARED TO ME THAT HE WAS MAKING SOME KIND OF CONTACT WITH THE JUROR SEATED AT THE END OF THE BOX. HE IS ROLLING HIS EYES AND LOOKING OVER AT HIM.

Darden accuses Simpson of attempting to make improper contact with a juror — a serious allegation that could implicate jury tampering concerns.

Lance A. Ito

JUST PUT ATTORNEYS IGNORE COURT'S ORDER TO TALK ONE AT A TIME, THERE IS NO RECORD TO REPORT.

Ito's dry, sardonic instruction to the court reporter captures his impatience with counsel's repeated interruptions of each other.

Marcia Clark

I THOUGHT IT WAS AN HOUR AGO, BUT CAN WE GET AN INDICATION?

Clark's exasperated aside about how long Cochran's recross has dragged on signals frustration with pacing and witness scheduling.

Evidence (2)

Informal

Simpson's post-Miranda statement to detective (implied — Cochran sought to establish it was given; Clark blocked it as hearsay)

disputed, ultimately excluded

Informal

Security camera footage of Simpson's jury box area at 3:01 p.m.

referenced by Darden; Ito notes tape not currently running

Notable Exchanges (3)

Johnnie Cochran•Marcia Clark•Lance A. Ito

Extended argument over whether the detective's characterization of Simpson as 'not forthcoming' opened the door for Cochran to elicit that Simpson did in fact speak after being Mirandized. Clark argues Cochran created the problem himself; Ito ultimately sustains the hearsay objection but wants to review the redirect record.

heated

Christopher Darden•Johnnie Cochran

Darden tells the court Simpson appeared to be making eye-rolling contact with a juror; Cochran flatly dismisses it as 'baloney' and Darden fires back 'you didn't even see it.'

heated

Court Reporter Olson•Lance A. Ito

Reporter Olson breaks in to say she cannot make a record when both attorneys speak simultaneously; Ito responds with a sardonic instruction to just note that attorneys are ignoring the court's order.

revealing

Light Moments (2)

Lance A. Ito

Ito tells the reporter to simply write 'attorneys ignore court's order to talk one at a time, there is no record to report' — a passive-aggressive but wry response to the chaos.

Marcia Clark / Lance A. Ito

Clark says she thought Cochran was winding up 'an hour ago'; Ito drily notes he thought it was twenty minutes ago.

Credibility Attacks (1)

⚔ Detective Lange

prior inconsistent implication / door-opening argument

Cochran sought to undercut Lange's characterization of Simpson as uncooperative by showing Simpson voluntarily gave a statement after being Mirandized; the effort was blocked as hearsay.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 5218 • 60 utterances

Criminal Trial

Department 103