Arrangements for the attendance and sequencing of defense witnesses

📄 Arrangements for the attendance and sequencing of defense witnesses — Wednesday, July 6, 1994

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C:\DEPT103\PRELIMINARY\1994\JUL\6\ARRANGEMENTS-FOR-THE-ATTENDANC.DOC

TRIAL

▲ Day 4 of 6

◀ Argument concerning the proposed testimony of Dennis Fung Direct examination of Brian Kato Kaelin ▶

Date: Wednesday, July 6, 1994 • Lines: 32

The defense expected criminalist Dennis Fung to be available, but he was not at the courthouse because Clark understood that his appearance remained tentative. Judge Kennedy-Powell called it an honest misunderstanding, directed that Fung be summoned immediately, and arranged to recall Kato Kaelin while the parties waited.

# 1 MR. UELMEN:

Do we need to summon him or is he waiting in the hall?

# 2 MS. CLARK:

No.

# 3 MR. UELMEN:

Your Honor, we indicated two days ago that we intended to call Mr. Fung as a witness and were informed that he would be available. And, in fact, the prosecution indicated that they were going to call Mr. Fung as well.

KEY QUOTE

# 4 MS. CLARK:

That was the only representation I remember was I indicated to counsel I may or may not call Dennis Fung. And as far as I know, the criminalist was never under defense subpoena. And, if he had been, I certainly would have arranged for him to be here and assisted counsel in that regard. But I was not of the impression that counsel wanted to call him. In fact, I can't think of an admissible -- a theory of admissibility for his testimony in any event. But that's irrelevant.

# 5 THE COURT:

Aside from the theory of admissibility, I do recall that we did discuss this in chambers and so I believe that I heard that discussion.

# 6 MS. CLARK:

Yes, but --

# 7 THE COURT:

And I don't know that any specific dates or times were mentioned, but my recollection is that Mr. Uelmen asked you if Mr. Fung was going to be available, and I believe you indicated that he would be. And then, secondly, when I asked, I believe yesterday, as to which witnesses were going to testify, he was one of the names that you gave me as a witness that you intended to call. So I take it that Mr. Fung is not here in the courthouse at this time?

# 8 MS. CLARK:

He's not, but I can certainly make him available immediately, and I will have him called immediately, Your Honor. As I understood -- what I intended to convey was that I was tentative as to whether I would call Mr. Fung, that when I was unsure --

# 9 THE COURT:

I'm not faulting you or holding you to anything based on that. I think it was an honest misunderstanding and one apparently that we can easily rectify.

# 10 MS. CLARK:

Yes.

# 11 THE COURT:

And so we will do that. Do you have a witness that is present here while we're waiting for the arrival of Mr. Fung?

# 12 MR. UELMEN:

We can recall Mr. Kaelin, and we do have two other witnesses.

KEY QUOTE

# 13 THE COURT:

Is Mr. Kaelin available here in the courthouse?

# 14 MS. CLARK:

Yes, he is.

# 15 THE COURT:

Then let's get Mr. Kaelin. And can someone, on your behalf -- since you have all the phone numbers and so forth -- contact the crime lab and have Mr. Fung available?

# 16 MS. CLARK:

yes, Your Honor, right away.

# 17 THE COURT:

Thank you.

# 18 MS. CLARK:

Mr. Kaelin IS apparently -- he's on the elevator.

# 19 THE COURT:

All right.

# 20 MS. CLARK:

Thank you. Yes, Your Honor. Mr. Fung is on his way.

# 21 THE COURT:

Thank you.

# 22 MS. CLARK:

He should be here very shortly. And Mr. Kaelin is also on his way and will be here even more shortly.

# 23 THE COURT:

I don't know, those elevators. Mr. Fung might get here first.

KEY QUOTE

# 24 MS. CLARK:

May as well take the stairs.

# 25 THE COURT:

Who's ringing?

# 26 MS. CLARK:

Sorry, Your Honor.

# 27 MR. HODGMAN:

Your Honor?

# 28 THE COURT:

Yes.

# 29 MR. HODGMAN:

With the Court's permission, may I use the bailiff's phone just for a moment while we're waiting for the witness?

# 30 THE COURT:

Yes.

# 31 MR. HODGMAN:

Thanks.

# 32 MS. CLARK:

I apologize, Your Honor. I had given the pager to an investigator to take numbers off of it, and apparently he forgot to turn it back off.

Temperature

procedural

Key Quotes (4)

Gerald Uelmen

Your Honor, we indicated two days ago that we intended to call Mr. Fung as a witness and were informed that he would be available.

Uelmen explained that the defense had relied on an earlier assurance that criminalist Dennis Fung would be available.

Kathleen Kennedy-Powell

I think it was an honest misunderstanding and one apparently that we can easily rectify.

The judge declined to blame either side and treated Fung's absence as a correctable scheduling problem.

Gerald Uelmen

We can recall Mr. Kaelin, and we do have two other witnesses.

The defense offered alternative witnesses so the proceeding could continue while Fung traveled to court.

Kathleen Kennedy-Powell

I don't know, those elevators. Mr. Fung might get here first.

The judge lightly joked about courthouse elevator delays while arranging the witness sequence.

Notable Exchanges (2)

Gerald Uelmen•Marcia Clark•Kathleen Kennedy-Powell

Uelmen said the defense had announced its intention to call Fung and understood that he would be available. Clark characterized her earlier statements as tentative, while the judge recalled that Fung's availability had been discussed and that his name had been given as an expected witness.

procedural

Kathleen Kennedy-Powell•Marcia Clark•Gerald Uelmen

The judge directed Clark to contact the crime lab and arranged for Kaelin to be recalled while Fung traveled to court.

cooperative

Light Moments (2)

Kathleen Kennedy-Powell and Marcia Clark

The judge joked that Fung might arrive before Kaelin because of the slow courthouse elevators; Clark replied, "May as well take the stairs."

Marcia Clark

Clark apologized when a pager entrusted to an investigator rang in court because it had not been turned off again.

Objections

None recorded

Proceeding 9119 • 32 lines

Preliminary Trial

Department 103