Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present with his counsel, Mr. Cochran, Mr. Shapiro, Mr. Kardashian, Mr. Blasier, Mr. Douglas, People represented by Miss Clark, Mr. Darden, Mr. Goldberg, Mr. Yochelson, Mr. Kelberg, Mr. Lynch. Also present is Dr. Lakshsmanan. Counsel, earlier today, the Court found good cause to dismiss two of the jurors presently seated. After the Court made that ruling, Mr. Shapiro on behalf of Mr. Simpson requested leave of the Court to file a writ with the Court of Appeal. And the Defense has asked for permission to delay further testimony until 1:30 this afternoon to allow the Defense to take a writ with the Court of Appeal. The Court has granted that request, and the juror in question is at the hotel at this moment. So the Court will not proceed with any--with the taking of any further evidence until this afternoon. There are a number of other issues that we can get out of the way though this morning. Mr. Cochran.

MR. COCHRAN: Yes, your Honor. I would just say to the Court that we are moving as quickly as we can. As I speak, Mr. Shapiro is on the phone. Mr. Douglas has been in touch with Mr. Dershowitz who's in Massachusetts. We will--

THE COURT: All right. Mr. Cochran, I have also directed my staff to put together a set of all of the sealed transcripts regarding the juror issues regarding that particular juror, and Miss Olson, my other court reporter who took the chambers conference, is making a transcript of this morning's proceedings right now.

MR. COCHRAN: We appreciate that, your Honor. The thing I was going to point out, we may come back to the Court with a further request for some additional time depending on what the Court of Appeal says and how quickly we can move. It is now 10:32 I suppose. So that--I just wanted to alert the Court to that. But we can proceed with these other matters now.

THE COURT: I'm saying, let's use the Court time to take up these other matters.

MR. COCHRAN: Yes, your Honor. That's fine.

THE COURT: All right.

MR. COCHRAN: Shall I address one of the other matters?

THE COURT: Please.

MR. COCHRAN: Your Honor, this morning, as a further heads up and as an indication of the concern that I have as an Officer of the Court, I filed this morning and filed with the Court and served on the Prosecution a proposed admonition to the jury re Mr. Simpson's possible absence during the Coroner's testimony. The Court will recall that on Friday and other occasions, whenever there's testimony regarding the Coroner or anything regarding Miss Nicole Brown Simpson, it's very, very difficult for Mr. Simpson. And so that this is a real, real problem. And so I thought about this over the weekend, and in an effort to try and give the Court a heads up, we prepared what we would ask the Court to give, is a--some sort of instruction to the jury should Mr. Simpson have to leave the proceedings. It was very close to him leaving even last Friday. He doesn't plan to look at the photographs, but just hearing about it is very, very difficult, your Honor. And I know if he's back in the lockup, under one scenario, the Court will want to perhaps wire the lockup. But Mr. Simpson does not want to hear that testimony necessarily. And so what we ask is that in view of the disturbing autopsy pictures--and they are disturbing to everyone and especially those who loved the victims in this case. The Court is aware of Mr. Simpson's marriage and Miss Simpson was the mother of his two children. And we think that the jury--should he leave and absent himself, the jury should be instructed they're not to infer anything from his leaving the courtroom and that it's a normal human reaction for anyone that you love and that this is consistent entirely with the presumption of innocence, and we try to make it as innocuous as possible and just give the Court a heads up. Mr. Simpson is going to do everything he can to stay in this courtroom, but he may or may not be able to do that and we thought it was incumbent upon us to bring it to the Court's attention as early as possible.

THE COURT: Mr. Kelberg.

MR. KELBERG: Your Honor, I think Miss Clark wishes to speak on the matter, although I think for the record, the Court is aware that I indicated in chambers I took no position as to whether the Defendant voluntarily absent himself from the courtroom. I believe he probably can voluntarily absent himself and have appropriate waivers for all constitutional rights to confront and cross-examine witnesses by being unable to hear as well as see the testimony that's being presented. I also did indicate for the record that the admonition suggested by Mr. Cochran was in my opinion totally inappropriate. It was of course argumentative, and one might argue whether this is a performance by Mr. Simpson the actor or truly a reflection of Mr. Simpson's alleged grief for his deceased wife. But ultimately, the jury should only be told, in my judgment, that the Defendant has the right to voluntarily absent himself from the proceedings, he has exercised that right to voluntarily absent himself from the proceedings. That's what I stated on the record. I see nothing which would change my mind. But Miss Clark and our able team of legal researchers have been hard at work on this matter. So I don't want to feel like I may have pigeonholed them, but I also indicated on the record that I thought it was appropriate for me to respond to the matter since it was coming in the course of the witness that I was calling.

THE COURT: Miss Clark.

MS. CLARK: Yes. Thank you, your Honor. We're always grateful for the excellent advice of Mr. Kelberg, and I do concur in the language that he has proposed. I think that is the appropriate neutral language to give in a situation such as this.

THE COURT: Let me ask you this. Do the People concede that the Defendant can absent himself?

MS. CLARK: Yes, your Honor, we do. We did some research on this, and I would like to cite to the Court penal code sections 977 and 1043. Now, those sections in and of themselves do not give the Defendant the right to waive his presence. But case authority seems to make it clear that it is at least harmless error if not permissible entirely for the Defendant to choose to waive his presence during testimony under the case of People versus Price, 1 Cal. 4th 324, People versus Pride, common spelling, 3 Cal. 4th 195 at page 251, People versus Benjamin, 52 Cal. App. 3d 63. I will note also that, although we don't have an Appellate opinion yet rendered in the matter in People versus Ramirez, the Defendant did waive his presence for a portion of the testimony.

So I don't think that it's appropriate for the People to oppose the Defendant's decision to absent himself from the proceedings in light of what--the manner in which we read the cases. It would seem to indicate that he can. Nevertheless, the manner in which he does so has to be in a very discreet manner and it should not--it should not increase any kind of or engender any kind of circus atmosphere or acting on the part if Mr. Simpson. If he wants to absent himself from the Coroner's testimony, he should do so before the jury is present and the jury should be admonished that he has elected not to be here and he has the right to do so. And if--if anything additional should be added to that, that no inference is to be drawn either towards guilt or innocence based on his decision to absent himself. The admonition proffered by counsel is argumentative and actually asks the jury to find him innocent based on his absenting himself. And that's not appropriate. The appropriate thing is to give a neutral admonition to tell the jury not to make any inferences from his absence at this point. However, the--what seems to be proposed by counsel and I think is highly inappropriate is that Mr. Simpson at some point during the Coroner's testimony, perhaps when a photograph is shown, get up and absent himself in a show of trauma. And that would be highly inappropriate. This is not the Defendant's opportunity at this time to perform in front of this jury. He can have that opportunity when he takes the witness stand. At this point, if he chooses to absent himself, he should do it in a discreet and appropriate manner and do so outside the presence of the jury prior to the Coroner's testimony and he should then absent himself for all of the Coroner's testimony and return when he decides to do so, but certainly not until the Coroner's testimony is concluded. In that manner, the Court will ensure that the proceedings are respectful and not turn into a circus sideshow for maudlin displays by the Defendant and that he can preserve his right, exercise his right to be absent in the appropriate manner that shows proper respect for these proceedings. I would also urge the Court to make sure that he executes a written waiver of his presence.

THE COURT: Well, I'm troubled, Miss Clark, because 977(B), sub 1 says: "In all cases in which a felony is charged, the accused shall be present," which is mandatory language, "Shall be present at the arraignment, at the time of plea, during the preliminary hearing"--and this is the important part--"During those portions of the trial when evidence is taken before the trier of fact and at the time of imposition of sentence." And it goes on to say: "At all other times, the Defendant can waive," and the waiver has to be in accordance with 977(B)2 and has to contain that language. 1043 also says: "The Defendant shall be personally present except," and then it goes into the disorderly conduct or disruptive conduct exception and then indicates that--and then makes reference to 977(A) and (B).

MS. CLARK: I understand, your Honor. And that--how we began our presentation is that statutorily speaking, on its face, it would appear that the Defendant does not have the right to absent himself, but case authority seems to indicate that he does. And the cases that I cited to the Court seems to undermine the mandatory nature of the statutes that we read in connection with this issue.

THE COURT: All right. Mr. Cochran, any response to that?

MR. COCHRAN: Yes, your Honor. Just to briefly respond. Just to briefly respond what counsel's indicated, this idea of some maudlin display is just--it's foreign to me. In fact, we're the ones who brought this matter up, your Honor, to--that is not any act by Mr. Simpson and we take this matter very seriously. We're the ones bringing this matter up to the Court's attention. We're the ones who are saying that there's a great likelihood he will have to absent himself. We expect to do that in an appropriate fashion. That's why I'm brining it up. I previously had conversations with the Deputy in this Court and I was--it was a heads up for this particular Court. As regards the instruction, that's actually what we're saying. Miss Clark says we're trying to instruct the jury to find him innocent. All we are asking the Court to instruct the jury is that they are not to infer anything from the fact that Mr. Simpson had to leave the courtroom or left the courtroom when these pictures were described. And that's a normal human reaction and it certainly is consistent with someone being innocent. And so, you know, we're not trying to be argumentative. We're trying to handle that this in a professional manner. We're the ones that brought it up, and we think he has an absolute right to do that. I've checked with him further. He does not want to--if he leaves, does not want to hear that testimony in the lockup and will return at the appropriate time with letting counsel know and I'll let the Court know. And that's all we propose to do in this matter, your Honor.

THE COURT: All right. Miss Clark, what's the page cite on the Pride case?

MS. CLARK: Yes, your Honor. The Pride case, 8 195 at page 251, and Price--

THE COURT: All right. How about Price at 1 Cal. 4th?

MS. CLARK: 324 at page 404, 405. Benjamin, at page 76, 77.

THE COURT: All right. Any other legal issues we need to resolve this morning?

MR. COCHRAN: I believe the only other thing is, Mr. Shapiro, Mr. Douglas and I are going to try to work on the writ. May I check with Mr. Kelberg?

(Brief pause.)

MR. COCHRAN: Your Honor, there was an issue regarding the positioning of the photographs, and I'm not sure that's been totally resolved, but we can do that this afternoon. I know that they were moved around, but I think Mr. Shapiro was involved back in chambers with us at that point.

MR. KELBERG: I think we moved it around. The Court was out here to--I think to get some observation of the various available positions, and we believe we have what is a reasonable location that will give the jurors as good a view of the photos as they can get from their seats and give as bad a view, if there is any view at all, of the photos to anyone who is not a member of the jury or involved in the case.

MR. COCHRAN: I'll ask the Court to prolong Mr. Shapiro to see those photographs before we make that final ruling. The last thing that we discussed earlier, your Honor, is one of scheduling, and I've shared this with the People. As members of the Defense team--Mr. Shapiro is still here in fact--as members of the Defense team have moved in and out, Mr. Scheck has now returned to New York. And I indicated to them when they got to further DNA evidence--I discussed this with Miss Clark--that we'll need some heads up and some additional time to have them return from the east. So we want to not have any down time once we resolve this problem and then need some advance notice regarding the witnesses.

THE COURT: All right. What's your proposed order of witnesses after Dr. Golden?

MS. CLARK: We've had to accommodate some vacation schedules, your Honor, and I think at this moment, it's either going to be witnesses with respect to the shoes and the shoeprints or it's going to be hair and trace. If it's shoe and shoeprints, it will be that set of scheduled witnesses and then hair and trace. If it's not and we can accommodate everybody's schedule, it will be hair and trace immediately after that. And I need to talk to Mr. Bailey because I think hair and trace will just be two or three witnesses.

MR. COCHRAN: And he will be available to talk as I think of Wednesday.

MS. CLARK: Great. Great. That's fine. And we've agreed to tell counsel--we're trying--we are cooperating in this and I'm trying to be as accurate as I possibly can be with respect to when the witnesses will be coming up and I will certainly give counsel as much lee time as we have to let them know because I know they have to accommodate the schedule of their people in New York.

MR. COCHRAN: Thank you very much, counsel. And it is true, your Honor, we want to try and have--each lawyer is going to handle the different areas--meet with their opposite from the Prosecution and try and see if there's stipulations that can be entered into and that we can at least approach it from the standpoint of trying to save some time with this jury. So we're trying to do that.

THE COURT: All right.

MR. COCHRAN: Thank you.

MR. KELBERG: Your Honor, could I add one other matter on the scheduling aspect?

THE COURT: Certainly.

MR. KELBERG: Dr. Lakshmanan indicated to me quite some time ago that he committed himself about six months ago to a seminar speaking engagement in Ventura on June 12th. We believed that there was no possibility that we--in spite of all the cross-examination of DNA witnesses and redirects and recrosses, we did not believe there was any realistic possibility that he would be unable to make that commitment. And so we told him that several weeks ago. I still believe we will be done with him easily this week, but I do raise that because he did commit himself long before I got involved in the case and long before he had any idea when he would be called. He has canceled a vacation at our request in June. He was going to India I believe in June, and he had to cancel that vacation because of the commitment to testify here. So we ask the Court--

THE COURT: Isn't this the wrong time of year to go to India?

MR. KELBERG: I'm not certain I would know the right time or wrong time, but I'm sure Dr. Lakshmanan is an expert on that.

THE COURT: On that as well. All right. No, I don't think that that will be a problem. All right. Then what I will do is read these cases cited by the Prosecution and we'll see what we have. All right. Mr. Cochran, we'll stand in recess, Miss Clark, we'll stand in recess until 1:30.

MR. COCHRAN: Thank you very kindly.

(Pages 30489 through 30495, volume 160A, transcribed and sealed under separate cover.)

(At 12:20 P.M., an adjournment was taken until Tuesday, June 6, 1995, 9:00 A.M.)


Department no. 103 Hon. Lance A. Ito, Judge

The People of the State of California,)


vs.) no. BA097211)

Orenthal James Simpson,)


Reporter's transcript of proceedings Monday, June 5, 1995

Volume 160 Pages 30473 through 30496, inclusive

(Pages 30436 through 30472, inclusive, sealed)

(Pages 30489 through 30495, inclusive, sealed)



Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire



Index for volume 160 pages 30473 - 30496


Day date session page vol.

Monday June 5, 1995 A.M. 30473 160



Motion re Waiver of Defendant's Presence 30473 160