Xref: world alt.fan.oj-simpson.transcripts:36 Newsgroups: alt.fan.oj-simpson.transcripts Path: world!uunet!solaris.cc.vt.edu!news.duke.edu!news-feed-1.peachnet.edu!gatech!howland.reston.ans.net!ix.netcom.com!netcomsv!uu3news.netcom.com!netcom.com!myra From: myra@netcom.com (Myra Dinnerstein) Subject: SIDEBARS - MARK FUHRMAN - 22k Message-ID: Organization: NETCOM On-line Communication Services (408 261-4700 guest) X-Newsreader: TIN [version 1.2 PL1] Date: Fri, 17 Mar 1995 06:21:09 GMT Approved: myra@netcom.com Lines: 487 Sender: myra@netcom14.netcom.com Sidebars during Det. Mark Fuhrman's testimony: Sidebars from March 14, 1995: (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:) THE COURT: ALL RIGHT. WE ARE OVER AT THE SIDE BAR. MR. BAILEY. MR. BAILEY: YOUR HONOR, I HAVE THE TAPE FROM THE PRELIMINARY HEARING RELATIVE TO "IN" THE BRONCO AND I HAVE MADE A COPY FOR THE PROSECUTION. DO YOU REQUIRE THAT WE EXHIBIT IT TO THEM AND GIVE THEM A CHANCE TO OBJECT BEFORE IT IS SHOWN? THE COURT: I BELIEVE SO, JUST AS A MATTER OF COURTESY. MR. BAILEY: I AM HAPPY TO DO THAT. THE COURT: WE WILL TAKE A BREAK RIGHT NOW. I'M GOING TO ASK COUNSEL TO REMAIN AND WE WILL TAKE A LOOK AT IT AND MAKE SURE EVERYTHING IS THERE AND WE WILL START UP AT 1:30. MR. COCHRAN: ARE WE GOING TO DO ANYTHING ELSE WITH THE JURORS THIS AFTERNOON? THE COURT: WITH THE JURORS? MR. COCHRAN: ANY JURY STUFF THIS AFTERNOON? GIVE US THE TIME FOR THE NEXT APPOINTMENT. THE COURT: TOMORROW MORNING. I JUST FIGURE WE WILL TAKE A COUPLE -- MR. BAILEY: SO WE ARE LOOKING AT AN HOUR AND HALF OF TRIAL TIME THIS AFTERNOON? THE COURT: BOY, I HOPE SO. MR. BAILEY: HUM? THE COURT: I HOPE SO. WE WILL TAKE OUR RECESS THEN AT THIS POINT, BUT DON'T LEAVE. **** (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:) THE COURT: WE'RE OVER HERE AT THE SIDEBAR. MISS CLARK, YOU ASKED TO APPROACH. MS. CLARK: YES. I WOULD LIKE TO KNOW WHERE THIS IS GOING. A WITNESS OR ANY CITIZEN HAS A RIGHT TO FILE CIVIL LAWSUITS WHEN THEY HAVE BEEN DAMAGED IN SOME WAY. MR. BAILEY IS OPENING THE DOOR NOW TO AN EXPLANATION >FROM DETECTIVE FUHRMAN AS TO ALL OF THE PEOPLE THAT HE HAS SUED AND EXACTLY WHY -- OR HIS LAWYER HAS SUED AND WHY THEY ARE BEING SUED, AND THAT HAS NO CONNECTION WITH THE OUTCOME OF THIS CASE WHATSOEVER. SO MY OBJECTION WOULD BE, IRRELEVANT AND POTENTIALLY PRIVILEGED MATTERS MAY BE GONE INTO, AT WHICH POINT THIS WITNESS WOULD NOT BE ABLE TO TESTIFY TO PRIVILEGED MATTERS AND -- MAY I HAVE ONE MOMENT? THE COURT: SURE. (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.) MS. CLARK: AND I THINK IT'S IRRELEVANT UNDER 352. AS I STATED EARLIER, THE OUTCOME OF THIS CASE WOULD NOT AFFECT THE VALIDITY OF ANY CIVIL SUIT HE MAY HAVE. FOR EXAMPLE, THE JURY MAY HANG, AND YET, KATHLEEN BELL'S CREDIBILITY MAY BE FOUND TO BE ABSOLUTELY NIL AND HER ALLEGATIONS MALICIOUS AND VINDICTIVE. THERE IS NO CONNECTION TO THE OUTCOME OF THE CASE. NOW WE'RE GOING TO HAVE TO BRING IT ON REDIRECT, HAVE HIM EXPLAIN EXACTLY WHO AND WHY HE IS SUING. BUT THAT HAS NO CONNECTION TO THE OUTCOME OF THIS CASE. THE COURT: YOU DON'T THINK THAT SOMEBODY FILING LAWSUITS OVER THE OUTCOME OF THIS CASE HAS ANY BEARING ON BIAS OR INTEREST? MS. CLARK: NO, BECAUSE THE OUTCOME OF THIS CASE HAS NOTHING TO DO WITH THE LAWSUITS THAT ARE BEING REFERRED TO. THE COURT: MR. BAILEY, WHAT KIND OF LAWSUITS ARE WE TALKING ABOUT HERE? MR. BAILEY: HE BROUGHT CLAIMS FOR DEFAMATION AGAINST SHAPIRO I BELIEVE AND NOW JOHNNIE COCHRAN SAYING HE WOULD BRING THE SUITS IMMEDIATELY AFTER THIS CASE IS OVER BECAUSE HE DOESN'T WANT TO INTERFERE WITH THE HANDLING OF THIS CASE; I.E., DOESN'T WANT HIS CLIENT DEPOSED. BUT FUHRMAN HAS ALREADY SAID HE BROUGHT CLAIMS, HE INTENDS TO PURSUE THEM. CERTAINLY IF THIS JURY COMES BACK AND FINDS HIM TO BE A LIAR, THAT COULD AFFECT HIS DEFAMATION DAMAGES PRETTY SEVERELY. MS. CLARK: I DON'T KNOW ABOUT THAT. THE JURY IS NOT GOING TO MAKE A FINDING THAT HE'S A LIAR, MR. BAILEY. THEY MAKE A FINDING OF GUILT OR INNOCENCE AS TO YOUR CLIENT, NOT AS TO THIS DETECTIVE. THE COURT: UH-HUH. MS. CLARK: SO THAT OUTCOME HAS NOTHING TO DO WITH HIS LAWSUIT, NUMBER ONE. NUMBER TWO, AS I UNDERSTAND IT, NO CLAIMS HAVE BEEN FILED, AND THE VERY STATEMENT MADE BY MR. BAILEY WOULD INDICATE THAT'S THE CASE, NO CLAIMS HAVE BEEN FILED. THE COURT: I THOUGHT HE JUST INDICATED THAT THEY HAD BEEN. MS. CLARK: NO. HE DOESN'T KNOW. IT'S HIS LAWYER WHO'S DOING IT. THAT'S THE PROBLEM WITH ASKING THE CLIENT. I'M SURE THEY DISCUSSED THE MATTER. BUT AS TO WHETHER THE CLAIMS HAVE ACTUALLY BEEN FILED, DOES COUNSEL KNOW? DOES COUNSEL HAVE AN OFFER OF PROOF FOR THIS COURT? MR. BAILEY: I JUST TOLD THE COURT WHAT THE LAWYER DID, HAVING FUHRMAN DEPOSED AS SOON AS THE CASE IS OVER. HE'S SUING FOR DEFAMATION. HE'S TALKED ABOUT IT IN JEFFREY TOOBIN'S ARTICLE. HE'S VERY SPECIFIC. THE COURT: OKAY. MS. CLARK: YOUR HONOR, AS I UNDERSTAND IT, IT WASN'T MR. COCHRAN THAT WAS REFERRED TO. IT WAS MR. SHAPIRO. MR. COCHRAN: THERE'S OTHER LAWYERS ALSO. HE PUT US ALL ON NOTICE. IT'S NOT ONLY SHAPIRO. I WASN'T INVOLVED IN THE CASE THEN. HE PUT US ALL, THE WHOLE DEFENSE TEAM. HE'S BEEN ON EVERY T.V. PROGRAM SAYING HE'S GOING TO SUE. MS. CLARK: BUT NOTHING'S BEEN FILED. EVEN THE LETTER COUNSEL HAS INDICATES, "WE WILL WAIT UNTIL THE CASE IS CONCLUDED." MR. COCHRAN: DOESN'T MATTER. MS. CLARK: AT WHICH POINT MAY NEVER BE FILED EITHER. THIS IS NOT FAIR, YOU KNOW. MR. COCHRAN: IT'S FAIR. IT GOES TO BIAS AND INTEREST. HE'S INDICATED HE'S GOING TO SUE ON EVERY TELEVISION PROGRAM. THE COURT: THANK YOU. MS. CLARK: YOUR HONOR, THE PEOPLE OBJECT UNDER 352. THERE HAS BEEN NO CLAIM FILED. I ASK THAT THE QUESTION AND ANSWER THAT HAS BEEN ELICITED THUS FAR BE STRICKEN. THIS WITNESS DOES NOT KNOW WHAT HIS ATTORNEY HAS OR HAS NOT DONE. HE'S ALREADY INDICATED AT THE CONCLUSION OF THIS CASE, THEY INTEND TO FILE LAWSUITS. THAT MAY OR MAY NOT EVER OCCUR AND THE OUTCOME OF THIS CASE CERTAINLY HAS NO BEARING ON WHETHER OR NOT DEFAMATION SUITS WILL BE FOUND MERITORIOUS OR NOT. MR. SHAPIRO: IT CERTAINLY DOES. MS. CLARK: UNDER 352. THE COURT: I'M GOING TO OVERRULE THE OBJECTION. BUT, MR. BAILEY, YOU CAN ONLY GO INTO THE TYPES OF ACTIONS THAT ARE CONTEMPLATED WITHOUT FURTHER EXPLANATION AS TO WHAT THEY ARE AND WHAT THEY'RE ABOUT. MR. BAILEY: YES. THE COURT: ET CETERA, ET CETERA. MS. CLARK: WHO'S BEING SUED? THE COURT: YES. MS. CLARK: HE CAN GO INTO WHO'S BEING SUED. THEN HE SHOULDN'T -- THE COURT: WAIT, COUNSEL. MS. CLARK: IF HE CAN GO INTO WHO'S BEING SUED, THEN THIS IS PUTTING -- THE COURT: MISS CLARK, DO YOU HONESTLY -- EXCUSE ME. DO THE PEOPLE HONESTLY TAKE THE POSITION THAT SOMEBODY WHO IS REPRESENTED BY COUNSEL WHO HAS WRITTEN LETTERS TO TARGET SEVERAL LAWYERS THAT THEY ARE GOING TO BE SUING DOESN'T HAVE ANY BEARING ON SOMEBODY'S CREDIBILITY AS THEY TESTIFY IN A LAWSUIT THAT'S RELATED TO IT? I MEAN, IS THAT YOUR POSITION? I MEAN I'M RESTRICTING MR. BAILEY. WE'RE NOT GOING TO TRY THAT LAWSUIT HERE. MR. BAILEY: NO. THE COURT: BUT THE FACT HE IS GOING TO MAKE CLAIMS AGAINST CERTAIN PEOPLE CONNECTED WITH THIS CASE, THAT'S RELEVANT TO CREDIBILITY, BIAS, INTEREST, MOTIVE. MR. DARDEN: CAN I INTERJECT SOMETHING? THE COURT: I AM SORRY. SOMETHING ELSE? MR. DARDEN: ACTUALLY SINCE MR. COCHRAN GOT TO SPEAK ON THE MATTER? MY CONCERN IS, IF THE JURY LEARNS HE'S SUING MR. COCHRAN, THE LEAD ATTORNEY ON THE CASE, THAT ADDS A WHOLE NEW DIMENSION TO THIS CASE AND THE JURY COULD -- THAT COULD VERY WELL AFFECT THEIR ASSESSMENT OF THIS WITNESS' CREDIBILITY. THE COURT: IT CERTAINLY DOES. IT CERTAINLY DOES ADD NEW DIMENSION TO THE CASE. I DON'T DISAGREE WITH THAT AT ALL. **** (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:) THE COURT: IT'S UNBELIEVABLE WE HAVE 20,000 PAGES OF TRANSCRIPT ALREADY. MR. BAILEY: COUNTER DOESN'T HAVE SIX DIGITS. MS. CLARK: IS THE COURT LOOKING FOR SOMETHING? THE COURT: GO AHEAD. MR. DARDEN: CAN I HANDLE IT? MS. CLARK: CAN I LET MR. DARDEN HANDLE THIS? MR. DARDEN: OBVIOUSLY -- MR. BAILEY: I OBJECT. I OBJECT. ONE LAWYER -- MR. DARDEN: I AM THE ONE. MR. BAILEY: -- ONE WITNESS. I DON'T THINK SO. THE COURT: MISS CLARK, YOUR WITNESS. MS. CLARK: NO. THE PROBLEM IS, I DIDN'T DO THIS MOCK CROSS-EXAMINATION. I WASN'T THERE. THE COURT: NO. THE QUESTION WAS, DID YOU DISCUSS ANYTHING THAT YOU FELT WAS IRRELEVANT OR DEAL WITH ANYTHING IRRELEVANT. MS. CLARK: THAT WAS NOT THE QUESTION. THE COURT: WHAT'S THE QUESTION? MS. CLARK: THE QUESTION WAS POSED, WHAT WAS THE MOCK CROSS-EXAMINATION INTENDED TO HANDLE AND WHY WAS THERE SOME SPECIAL NEED SEEN TO DO THE -- THE COURT: LET ME GO GET THE QUESTION. MS. CLARK: THAT WAS THE GIST OF IT. THAT'S NOT -- THE COURT: THE QUESTION WAS, WHAT IRRELEVANT EVIDENCE THAT WAS GOING TO BE BROUGHT INTO THE TRIAL WERE YOU PREPARING FOR. MS. CLARK: NO. NOT THAT WAS GOING TO BE BROUGHT INTO THE TRIAL. THAT COULD HAVE. THE COURT: THAT WAS THE QUESTION. MR. DARDEN: THAT'S WHY WE OBJECT. IF I CAN EXPLAIN IT. CAN I CONFER? THE COURT: CERTAINLY. (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.) MS. CLARK: THAT IS MY OBJECTION. THEY WANT HIM TO SIT THERE AND PUT OUT. NO, I DID GET IT RIGHT. I GOT IT RIGHT. THEY WANT TO -- THE QUESTION ASKS HIM TO DISCUSS WHAT THE COURT HAS ALREADY DEEMED TO BE IRRELEVANT. THAT'S ASKING HIM TO BRING IN WHAT THE COURT HAS EXCLUDED. MR. BAILEY: NO. IF YOUR HONOR PLEASES, THE TRANSCRIPT WILL SHOW THAT I INQUIRED OF HIM, BASED ON WHAT HE OFFERED THE JURY AT THE OUTSET AS THE SPECIAL SESSION TO ADDRESS THE SPECIAL PROBLEM, WHAT NEXUS THERE WAS BETWEEN HIS PROBLEM AND THE SESSION, AND HE SAID, "I HAD READ IN COURT PAPERS EFFORTS TO BRING IN IRRELEVANT EVIDENCE ABOUT ME," AND MY INQUIRY IS WHAT IRRELEVANT EVIDENCE DOES HE MEAN. MS. CLARK: AND THAT'S -- MR. BAILEY: THEY'VE OPENED THIS DOOR, JUDGE. THIS IS FAIR GAME. MS. CLARK: WE DIDN'T OPEN THE DOOR, YOUR HONOR. WE ADDRESSED THE SUBJECT MATTER OF CROSS-EXAMINATION, WHICH COUNSEL IS NOW LOOKING TO OPEN THE DOOR ON THROUGH HIS OWN CROSS-EXAMINATION, WHICH IS NOT PERMITTED. TO ASK THE WITNESS NOW TO DISCUSS WHAT THE COURT HAS DEEMED TO BE IRRELEVANT IS TO FLAUNT THE COURT'S RULING. BY ASKING THE WITNESS TO DISGORGE WHAT WE HAVE BEEN LITIGATING IN COURT, THAT CAN'T BE PROPER. HOW CAN THAT BE A PROPER QUESTION AND HOW CAN THE SUBJECT MATTER OF -- HOW CAN THAT QUESTION POSSIBLY BE ADMISSIBLE WHEN THE COURT HAS DEEMED IT TO BE IRRELEVANT AND ADMISSIBLE? THE COURT: BUT DON'T WE HAVE A PROBLEM HERE, THAT IF HE'S BEEN PREPARED AS A WITNESS -- I MEAN ISN'T THAT A RELEVANT AREA OF CROSS-EXAMINATION, OF WHAT THINGS HE'S BEEN PREPARED ON? MS. CLARK: YES AND NOT -- NO. BECAUSE WE DID NOT HAVE THE BENEFIT OF ALL POSSIBLE RULINGS THAT WERE GOING TO BE GONE INTO BY THE COURT. THIS IS REALLY NASTY STUFF, YOU KNOW, AND COUNSEL KNOWS IT. THE FACT THAT WE PREPARE A WITNESS FOR CROSS-EXAMINATION, I HAVE NOT OBJECTED TO THEIR CROSS-EXAMINATION ON IT. THAT'S FAIR. WHAT I'M TALKING ABOUT IS, YOUR HONOR, BEFORE WE HANDLED ALL OF THE COURT'S RULINGS ON WHAT WOULD BE ADMISSIBLE AND WHAT WOULD NOT, WE HAD TO PREPARE WITH THIS WITNESS AS TO WHAT HE WOULD SAY IN RESPONSE TO CERTAIN QUESTIONS, QUESTIONS THAT ARE NOW NOT EVEN ASKABLE BECAUSE THE EVIDENCE IS NOT ADMISSIBLE, AND NOW YOU ARE GOING TO PERMIT HIM TO ASK, DISGORGE -- THE COURT: NO. I RECOGNIZE THERE'S SOME DANGERS HERE. THE PROBLEM I HAVE IS THAT YOU ASKED THE QUESTION, WHY -- "CAN YOU TELL US WHY YOU FEEL NERVOUS AND RELUCTANT?" I MEAN THIS IS ON YOUR THIRD QUESTION, AND THEN HE GOES ON TO TELL US ABOUT THESE OTHER THINGS. I WAS REAL UNHAPPY WITH THAT QUESTION AND ANSWER BECAUSE OF WHAT IT OPENS UP. MS. CLARK: YOUR HONOR, IT DOESN'T OPEN UP THE DOOR TO ALLOW HIM TO TESTIFY -- THE COURT: SURE, IT DOES. MS. CLARK: -- WHAT THE COURT DEEMED INADMISSIBLE. THE COURT: BUT I'M WORRIED ABOUT WHAT'S GOING TO COME UP. I'M GOING TO TOSS THE JURY BACK AND LET YOU ASK THE QUESTION, AND LET'S SEE WHAT COMES OUT. MR. BAILEY: ALL RIGHT. **** (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:) THE COURT: WE'RE OVER AT THE SIDEBAR. MR. BAILEY. MR. BAILEY: MY UNDERSTANDING OF YOUR RULING EARLIER TODAY, YOUR HONOR, BEFORE I CAN GO INTO QUESTIONS ABOUT MAX CORDOBA, THE PROSECUTION IS ENTITLED TO GET IN TOUCH WITH HIM, ALL RIGHT, AND THE SAME AS TO ALWYN MARTIN. I WOULD ASK, BECAUSE I DON'T WANT TO BIFURCATE THIS EXAMINATION, THAT WE ADJOURN FOR THE DAY AND SEE IF THEY CAN ACCOMPLISH THAT BY MORNING SO THAT WE CAN CONCLUDE WITH DETECTIVE FUHRMAN. IF THEY CAN'T, I GUESS WE HAVE NO CHOICE. THE COURT: IT'S FIVE MINUTES TO. WE'LL BREAK AT THIS POINT. IF YOU CAN ACCOMPLISH IT, FINE. IF NOT, WE'LL SEE WHERE WE ARE. WE MIGHT HAVE TO BIFURCATE THIS. MR. BAILEY: I PREFER NOT TO. THE COURT: I PREFER NOT TO AS WELL, BUT THEY ARE ENTITLED TO, AS I INDICATED, LOOK INTO THIS. ANY OTHER COMMENT? MS. CLARK: NO. MR. DARDEN: HOW LATE AND HOW LONG AM I SUPPOSED TO WORK ON THIS? ALL NIGHT OR -- MR. BAILEY: BE LIKE THE DEFENSE, GO TO MIDNIGHT. MS. CLARK: SURE YOU DO. THE COURT: ALL RIGHT. WHAT ELSE DO WE HAVE -- EXCUSE ME, MR. COCHRAN, MISS CLARK. WHAT ELSE DO WE HAVE THIS AFTERNOON? ARE WE GOING TO HANDLE THAT DISPUTE OVER HANDWRITING AND RECORDS AND BLAH, BLAH, BLAH? MR. COCHRAN: WHAT DISPUTE? THE COURT: ANY TIME I SEE SCHECK AND NEUFELD, I GET NERVOUS. MR. COCHRAN: I DON'T KNOW ABOUT THAT. CAN WE FIND OUT WHILE WE ARE HERE WHAT'S THE ORDER OF WITNESSES AFTER WE FINISH FUHRMAN, FINALLY FINISH FUHRMAN? MS. CLARK: WE WILL BE CALLING LIEUTENANT SPANGLER AND THEN WE WILL BE CALLING -- MR. DARDEN: WHILE YOU ARE DOING THAT, CAN I GET THE MOST RECENT PHONE NUMBERS AND ADDRESSES FOR CARDOBA AND MARTIN BEFORE I LEAVE? MR. BAILEY: TELL PAT TO GIVE THEM TO YOU. (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.) MR. COCHRAN: SPANGLER? MS. CLARK: CAMERAMAN, SPANGLER TOO, THEN VANNATTER. MR. COCHRAN: WHO ELSE AFTER THAT? MS. CLARK: PROBABLY KATO. MR. COCHRAN: THEN FIFTH ON THE LIST WOULD BE PARK? MS. CLARK: NO. I HAVE TO TALK TO YOU, FIND OUT WHO YOU WANT TO STIPULATE TO IN THE FORM OF PHONE RECORDS, PHONE RECORD PEOPLE. THEN PARK. MR. COCHRAN: PROBABLY NOT UNTIL NEXT WEEK. (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEY AND DEFENSE ATTORNEY.) MR. COCHRAN: NOT THIS WEEK? MARCIA, NOT THIS WEEK? MS. CLARK: NO. WE WON'T GET THAT FAR. MR. COCHRAN: TALK ABOUT -- MR. DARDEN: BEFORE WE CAN -- MS. CLARK: WHO'S TAKING VANNATTER? THE COURT: EXCUSE ME, COUNSEL. COUNSEL -- MR. COCHRAN: I CAN'T TELL YOU. THE COURT: WHY DON'T YOU GUYS TALK ABOUT THAT PART OF IT LATER. ANYTHING ELSE WE WANT TO PUT ON THE RECORD? MR. BAILEY: I THINK MR. SCHECK AND MR. NEUFELD ARE HERE IN A SEMINAR MODE AND NOT AN ATTACK MODE. MR. DARDEN: BEFORE YOU GO, BEFORE YOU GO, YOU KNOW, VANNATTER IS COMING UP IN THE ROTATION, BUT HE MAY HAVE TO LEAVE DUE TO A FAMILY EMERGENCY AND GO OUT OF STATE. SO IT COULD CAUSE A DELAY IF IT HAPPENS AT THE LAST MINUTE. MR. BAILEY: WE CAN CALL ANOTHER WITNESS. WE DON'T HAVE TO SIT AROUND AND WAIT FOR VANNATTER. MR. DARDEN: DEPENDS. DEPENDS ON WHEN IT IS. IF I GET A CALL THURSDAY NIGHT SAYING HE'S LEAVING NOW, THAT MAY CALL FOR DELAY ON FRIDAY. I JUST WANT TO LET YOU KNOW. MR. BAILEY: BEING FOREWARNED, WE SHOULD HAVE A SURPRISE WITNESS. WHY COOL OUR HEELS? MS. CLARK: OBVIOUSLY, WE'LL DO OUR BEST. MR. DARDEN: IT'S NOT IN THE BOOK, MR. BAILEY. THE COURT: THANK YOU, COUNSEL. **** (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:) MR. DOUGLAS: YOUR HONOR, I'VE BEEN TALKING OVER THE LUNCH HOUR WITH MR. BLASIER AND MR. NEUFELD ABOUT THE COURT'S ORDER REGARDING EXPERT WITNESSES. AND BECAUSE OUR EXPERTS ARE IN DIFFERENT PORTIONS OF THE COUNTRY, WE WOULD LIKE SOME MORE TIME. SECOND, WE WOULD LIKE TO PRESENT THE MATTER TO THE COURT IN CAMERA BEFORE YOU MAKE ANY ORDER FOR DISCLOSURE UNDER 1054.7. WE WOULD ASK UNTIL MONDAY FOR THE IN CAMERA AND THEN THE END OF MONDAY, TUESDAY AT THE LATEST FOR THE DISCLOSURE. PROBABLY MONDAY FOR BOTH. WE WOULD LIKE TO HAVE AN IN CAMERA ON MONDAY, THEN DISCLOSURE IMMEDIATELY THEREAFTER IF THE COURT PLEASES. MR. DARDEN: YOUR HONOR, THE COURT ISSUED AN ORDER. WE'RE ALREADY WHAT, TWO MONTHS INTO TRIAL. WE'RE STILL WAITING FOR DISCOVERY WE OUGHT TO HAVE. OPENING STATEMENT WAS DURING THE LAST WEEK OF JANUARY, AND WE STILL HAVEN'T GOTTEN ANY INFORMATION. THE COURT ISSUED AN ORDER. I THOUGHT WE HAD AN AGREEMENT. THE COURT ISSUED ITS RULING. IT'S INHERENTLY UNFAIR TO CAUSE ANY ADDITIONAL DELAY. EXPERTS ARE COMING UP PROBABLY WITHIN THE NEXT 10 DAYS. WE NEED TIME TO READ THIS STUFF AND TO DIGEST IT. ANY ADDITIONAL DELAY IS UNFAIR AND IS GOING TO CAUSE DELAY IN PROCEEDING. THE COURT'S ALREADY RULED. THE COURT: YOU HAVE UNTIL NOON. **** Sidebars from March 14, 1995: (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:) THE COURT: ALL RIGHT. WE ARE OVER AT THE SIDE BAR. MISS CLARK, WHAT IS THE OBJECTION? MS. CLARK: THE OBJECTION IS THAT MISLEADS THE JURY INTO BELIEVING THAT THERE WAS ANY PREPARATION AT THAT TIME IN TERMS OF WHAT WE WERE REALLY GOING TO QUESTION THE WITNESS ABOUT OR HOW WE WERE GOING TO STRUCTURE DIRECT. THERE WAS NONE. THAT DIDN'T OCCUR UNTIL AFTER THAT, WAY AFTER THAT, SO THAT THERE WOULDN'T HAVE BEEN ANY STRATEGIZING, THERE WOULDN'T HAVE BEEN ANY PLANNING THE INFERENCE THAT MR. BAILEY IS SEEKING TO DRAW IS HAD THE NEWSWEEK ARTICLE NOT COME OUT WE WOULD NOT HAVE EXPOSED THE FACT THAT WE HAD PREPARED THE CASE WITH THE WITNESS AND QUESTIONED HIM ABOUT THESE THINGS. AND THAT IS NOT A FAIR INFERENCE BECAUSE WE HADN'T PREPARED FOR WHAT WE WERE GOING TO ASK YET. THAT WAS -- THAT WAS WHAT PART OF THE GRAND JURY SESSION WAS ABOUT. THE COURT: UH-HUH. MS. CLARK: IT IS AN UNFAIR INFERENCE BEING LEFT WITH THIS JURY. THE COURT: WHAT IS THE LEGAL BASIS? MS. CLARK: MISLEADING UNDER 352. IT WILL CONFUSE THE JURY. IT WILL MISLEAD THE JURY. THIS IS DECEPTIVE. YOU KNOW, IT ALSO GOES TO WORK PRODUCT, YOUR HONOR. YOU KNOW, HOW WE PLAN AND WHEN WE PLAN AND STRATEGIZE THE QUESTIONING OF A WITNESS IS A MATTER -- IT'S A SUBJECT MATTER OF WORK PRODUCT THAT THE COURT IS PERMITTING COUNSEL TO GO INTO. THIS WITNESS DOESN'T KNOW THE NICETIES OF THIS, BUT THIS IS A MATTER OF WHEN WE REALLY SAT DOWN TO FIGURE OUT WHAT WE WERE TO GO ASK ABOUT, IN WHAT ORDER, HOW HIS DIRECT EXAMINATION WAS GOING TO BE STRUCTURED, SO AT THE POINT IN TIME THAT COUNSEL IS REFERRING TO THAT HADN'T OCCURRED YET. I DIDN'T EVEN REALLY BEGUN -- I AM TRYING TO THINK WHEN I REALLY STRUCTURED THE MATTER OF QUESTIONING. IT WAS PRETTY LATE -- IT WAS PRETTY LATE. I DIDN'T EVEN BEGIN IT I THINK UNTIL A WEEK BEFORE HE TOOK THE STAND. HE WOULDN'T KNOW THAT. HE DOESN'T KNOW. WE SIT AND WE REVIEW FACTS AND WE TALK ABOUT WHAT HE REMEMBERS, YOU KNOW, AND I ASK HIM TO REVIEW HIS PRELIM TESTIMONY AND YOU KNOW WHAT I MEAN, THE WAY PEOPLE WOULD ORDINARILY PREPARE A WITNESS. BUT I DID NOT ACTUALLY SAY "WE ARE GOING TO DO THIS" ACTUALLY UNTIL - I'M TRYING TO THINK WHEN I DID. IT DOESN'T MATTER WHEN I DID IT. (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.) MS. CLARK: THE WHOLE AREA IS IRRELEVANT, YOUR HONOR, AND WHAT COUNSEL IS TRYING TO ELICIT FROM THIS WITNESS, BY WAY OF INFERENCE, THIS WITNESS CAN'T EVEN KNOW ABOUT AND WE ARE TALKING AS WELL ABOUT WORK PRODUCT. THE COURT: ARE YOU TAKING THE POSITION THAT PREPARING WITNESSES TO TESTIFY IS IRRELEVANT? MS. CLARK: NO, NO, I'M NOT. I'M TAKING THE POSITION THAT ASKING THIS WITNESS TO SPECULATE OR TO TRY TO DRAW THE INFERENCE FROM THIS WITNESS THAT WE WOULD NOT HAVE DIVULGED THE GRAND JURY EXAMINATION BUT FOR THE NEWSWEEK ARTICLE IS UNFAIR AND MISLEADING TO THE JURY BECAUSE HE DOESN'T KNOW WHAT WE WERE PLANNING TO DO BEFORE, AFTER OR DURING. THE COURT: MR. BAILEY. MR. BAILEY: I'M NOT ASKING HIM TO DRAW ANY INFERENCE. I'M ASKING HIM IF A PLAN WAS EVER MADE KNOWN TO HIM BETWEEN THE EVENTS AND THE PUBLICATION, AND I THINK THAT IS A SIMPLE HISTORICAL FACT, BUT WHAT ARGUMENT IS MADE OF IT IS SOMETHING YOUR HONOR MAY TO RULE ON LATER. I THINK IT A FAIR QUESTION UNDER THE CIRCUMSTANCES. THE COURT: ALL RIGHT. THE OBJECTION IS OVERRULED, ASSUMING THE QUESTION IS REASKED IN THAT PARAMETER, WHETHER OR NOT IT PRECEDED. MR. BAILEY: YES. THE COURT: ALL RIGHT. **** --