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 following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Scheck, Mr. Douglas, Mr. Neufeld, People represented by Mr. Darden and Miss Lewis. The jury is not present. Counsel, just as an FYI, this morning, I spoke with the doctor for our ill juror and was advised that he is--our missing sick juror is doing well and that they were awaiting one expert's report, but was anticipated he may be able to rejoin us on Monday. So good news. But I will keep you apprised, and if there's a continuing problem, we'll take it up on Monday. But I anticipate proceeding with the witnesses on Monday.
MR. SHAPIRO: And we're ready, your Honor.
THE COURT: All right. We have three matters to take up at this point, the motion to reconsider, the Riechardt motion, discovery issue regarding the gloves and I understand Dr.--and a few scheduling matters. All right. Mr. Douglas, good morning.
MR. DOUGLAS: Your Honor, good morning. I would like to argue the motion that we filed, which is our motion to allow Mr. Simpson to exercise his constitutional right to present a defense. Your Honor, I think that given this Court's inherent broad discretion to control the administration of evidence, that there's little question that the Court has the ability to hear this matter at this time. I think that a review of the totality of the evidence that is currently in evidence shows that there is very slight evidence that Mr. Simpson had a motive to commit these crimes, and I think that, as far as I can recall, the only evidence of motive that we've been privy to in this case is some theory that the death of Nicole Brown Simpson was in some way a final act of control that Mr. Simpson chose to exercise after sharing a hamburger at McDonald's with Mr. Kaelin. Since, your Honor, there is only slight circumstantial evidence in the record supporting that theory, I think that Mr. Simpson should be permitted to introduce evidence of another possible motive which is every bit as plausible and every bit as compelling as that which the jury has already been permitted to hear. Your Honor, I don't want to take up the Court's time to recount verbatim the offer of proof that Mr. Cochran offered when this matter was heard perhaps 10 days ago, but I do think that when you consider and when you weigh the evidence of motive that is currently in the record, that it is apparent that we're not talking about a People versus Hall matter. That is, we're not trying to offer circumstantial evidence that there were certain unknown third parties who were identified who may in fact have been responsible to commit these dastardly crimes. But rather, I think that we should be given latitude to rebut the current inference in the record, that the only motive that the jury has been allowed to hear that anyone in this world of ours would have had to have committed these crimes is this slight circumstantial evidence that Mr. Simpson was carrying out some final act of control. I think, your Honor, given the facts that Detective Lange has already admitted to, given the fact that there is little question that Miss Resnick was involved in drugs in the days preceding the murder of Nicole Brown Simpson, given the fact that it is beyond dispute that there was an intervention that took place where her close friends gathered to confront her with her drug involvement, that certainly there is every bit as plausible and as compelling another motive. Certainly there is evidence that should be offered and allowed to be introduced to rebut the thin strands that are now in front of the jury suggesting that the only possible reason why this crime could have been committed was because of some act of control. I think, your Honor, that it's important to weigh the state of the record. I think that there can be reasonable limits placed on the extent of Mr. Riechardt's testimony, but I do think, your Honor, that there is sufficient basis for the Court to exercise its discretion to allow for the introduction of his testimony.
THE COURT: What limits would you suggest when you say "Certain limits"?
MR. DOUGLAS: I think, your Honor, that it would be permissible that Mr. Riechardt can discuss the nature of his past relationship with her, reasons why he believes she was using drugs, reasons why he believes that she was no longer welcomed in his home and the dates of that, the circumstances of the intervention that occurred, certain reasons why he believes in fact that she was using cocaine and how it was discovered and how he happened to see it. I do not think, and I can appreciate the Court ruling that he would not be allowed to testify concerning any theory that there were Colombian hit men or any theory that she owed money, a particular sum to a particular person.
THE COURT: But isn't that the base--I mean, isn't that a fundamental part that's sort of missing in the offer of proof, that she owed money, a substantial amount of money that would cause this act to occur?
MR. DOUGLAS: I think, your Honor, that there is circumstantial evidence that can be permitted and that is admissible that would allow for an adequate inference of that because she was not gainfully employed at the time, she was not receiving any support from Christian Riechardt. He will testify to those two things. She was using drugs. She was using drugs to such an extent that her dearest friends saw the need to confront her. She was placed into a drug program. I think, your Honor, that--
THE COURT: Your offer does not include any information regarding the amount of drugs we're talking about here.
MR. DOUGLAS: My offer does not include any information as to the amount of drugs. My offer does not include any information as to precisely whom the drugs were purchased from, the nature of the consignment, if at all, the nature of those arrangements, correct.
THE COURT: Okay.
MR. DOUGLAS: But I do think, your Honor, that given the contrary state of the evidence, given what I suggest to be the far from compelling evidence of motive--and I recognize that motive is not an element of the case that must be proven. But given that which the Court has allowed to be introduced, that in fairness, there should be some room for balance, there should be some room for some latitude, and I'm asking for a limited window to allow certain pieces of evidence. Perhaps the circumstances, your Honor, the fact that there was an intervention days before, five days before the death I think is important evidence. I think it is compelling evidence. Perhaps the Court would not allow Mr. Riechardt to talk about the reasons why he saw fit to sleep with a gun in his bed because he feared that there'd be drug killers looking for him. I can understand if the Court wanted to put limits down on that regard, but I do think that in reason and with some consideration, that the Court can fashion a narrow appropriate window that adequately enables the Defense to rebut. And, again, the crux of my argument is that we seek to rebut that which the jury has been allowed to hear thus far.
THE COURT: All right. Thank you, Mr. Douglas. Miss Lewis.
MS. LEWIS: Thank you, your Honor. Good morning.
THE COURT: Good morning.
MS. LEWIS: Your Honor, there is no basis for a motion to reconsider here. In the civil arena, the statute requires that even for a motion to reconsider to be brought, it requires newly discovered facts and a reason, an explanation why the proponent of the evidence didn't discover those facts before. There's no formal provision even for that in the criminal law, though if there was something vastly different in analogous to what the code of civil procedure requires, I'm sure the Court would hear it. In this situation, Mr. Cochran made lengthy offers of proof to the Court in chambers apparently, which I was not present to hear, as well as out here in open court on the record. The court issue a very detailed, considered ruling on this issue, and there's simply no reason to change it now. What Mr. Douglas tries to argue is that it would just go to rebut this narrow portion of the People's case, and that is motive elements, which he concedes we need not prove motive in any murder case to the jury, though evidence may be admitted for them to consider, and we have admitted evidence here. But whenever you're talking about the possibility of some third party committing the crime, you are talking about the Defense seeking to rebut some portion of the Prosecution's case, whether it's motive or other evidence of identity. So there's nothing novel in his argument. He's just saying, "We want to use it for this purpose," which is just one of the purposes that third party capability case law addresses. The Court is on very, very, as you know, solid legal ground in this ruling and I submit would almost be an abuse of discretion to do otherwise, to allow in evidence here, because, Judge, one of the important things that I want to make sure is understood, even if there was evidence--and there has never been an offer from the Defense that there is any evidence--but even if there was evidence that Faye Resnick owed a drug supplier money, that is mere motive evidence, and that's not enough to link somebody to the actual perpetration of the crime, which is what Hall and those other cases require. So even if they did come up to that level, which they don't, that's what the case law says is not enough. There has to be a direct evidentiary link, not mere motive in a third party. And if they had an identified party, which they don't, and they concede that they don't and seem to think it works in their favor--it works against them because they've not even identified a third party. But even if they had an identified third party and they had evidence that she owed that third party, drug seller, perhaps money, that--all of that is just motive evidence. It's still not the evidentiary link that Hall and the case law coming in after it throughout the 1990's require. So, no. 1, there's no basis for a motion to reconsider. If the Court is indeed, for technical reasons, granting the motion to reconsider and reconsidering its ruling, there's been nothing in the offer of proof or in the argument of counsel for the Court to change its ruling, and there's been a notable absence of any case law cited this morning by the Defense this morning in this attempt as well.
MR. DOUGLAS: Briefly, your Honor.
THE COURT: Briefly.
MR. DOUGLAS: There certainly, your Honor, are broader areas that the Defense could seek to offer through Mr. Riechardt that we will not that would be able to more closely track the quality of the proof that has been offered by the People. But I think when the Court considers the context of our motion, it's fair to compare it with that which has already been allowed to be introduced. Your Honor, we don't want to use Christian Riechardt to talk about the frequency at which Faye Resnick and others and Nicole Brown Simpson would go out, would use drugs and would party and how Mr. Simpson was never a part of that or the reasons why Mr. Riechardt would believe that Mr. Simpson was not trying to control Miss Brown Simpson in the days before the murder or the nature and the circumstances of the relationship between Mr. Simpson and his ex-wife in the months and the weeks before which would all point directly against a claim that Mr. Simpson was trying to control Nicole Brown Simpson, particularly, your Honor, as it came to the more relevant times, that is the days and the weeks before the murder. But we do think, your Honor, that given the evidence that has been allowed to be introduced, given, for example, that the Court has found it relevant that an 1989 incident would suggest that Mr. Simpson has a certain mindset such that he is capable of committing the crime in June of `94, given the state of the record that certain other things that occurred in `93 are relevant to what happened on June the 12th of `94, we believe strongly that Mr. Simpson should be allowed narrowly, if the Court chooses to exercise its discretion, carving out a niche. But I do think that there is adequate bases and adequate grounds given the current record to allow for some introduction of facts that are germaine, that are pointed and that directly contradict the theory that the jury is currently left with, that there's only one possible motive and that that motive is that Mr. Simpson was exercising a final act of control. That's not the way that the evidence should be. That's not the way that a fair jury should be allowed to consider. If we are talking about a search for truth and having the jury fully apprised of everything that was really going on at 875 South Bundy, we think that exercise of fairness should allow for the introduction of this evidence.
THE COURT: All right. Thank you, counsel. All right. Counsel, I need to review one or two cases before I rule on this matter, and I'll issue a ruling on Monday.
MR. DOUGLAS: Thank you, your Honor.
THE COURT: All right. The discovery matter on glove photos. Mr. Neufeld, you want to address that?
MR. NEUFELD: Thank you, your Honor. Good morning, your Honor.
THE COURT: Good morning, Mr. Neufeld.
MR. NEUFELD: Your Honor, I believe, as you already know, the Prosecution has obtained in the course of their investigation photographs of Mr. Simpson depicted in his professional capacity covering certain football games wearing leather gloves. We will take the position obviously that those pictures are completely irrelevant, but that's not even the issue at this time. The issue at this time is one of discovery. So far, all we've received are photocopies from the Prosecution of those actual photographs. The photocopies unfortunately are relatively illegible, especially when you're looking for the kind of detail that one would expect to want to look at of a photograph of Mr. Simpson wearing gloves. They are arguing that this is relevant evidence. If it is relevant evidence, it is a photograph of Mr. Simpson, it is real evidence. The statute is unequivocal on this point.
In 1054.1, when it talks about what is discoverable and what must be turned over to the Defense, it states under subsection c: "All relevant, real evidence seized or obtained as a part of the investigation of the offenses charged." Okay. You can look at McCormick, you can look at any textbook at all on the meaning of real evidence, and I'm sure your Honor appreciates a photograph of Mr. Simpson would be real evidence. There's no question about that. It's not limited to evidence seized. It also includes evidence obtained in the course of their investigation. The only other limitation is, it has to be relevant. Well, they're alleging or asserting that it's relevant. If they're asserting it's relevant and they want to use it at some point during these proceedings, whether it be for impeachment purposes or any other purposes, since they did obtain it in the course of their investigation, we are entitled to receive it as discovery early on. Not after a witness is finished--I'm sorry. Not after a witness finishes his direct testimony. It's part of the discovery statute.
And for that simple reason alone, we're entitled to see those pictures. Frankly, we need to see those pictures anyway so we can better argue why it would not be relevant for purposes of impeachment or for direct evidence or rebuttal evidence or any other evidence in this case. But to turn over certainly only Xerox copies when it has not been the procedure in this case, when in every instance where we wanted to introduce photographs, we turned over as discovery in advance not photocopies of those photographs, but actual prints. And in all other instances to my knowledge, the People have done the same. This is the only instance I'm aware of where they've limited the reproduction to photocopies, and it's fundamentally unfair, it's outside the statute and I think that the Court at this time should order them to turn those photographs over forthwith.
THE COURT: Miss Lewis.
MS. LEWIS: Your Honor, it's nice to cite the discovery statute, but when the California Supreme Court in 1991 directly addressed this issue which Defense seeks to raise, it's more appropriate to cite their holding in Izzazaga versus Superior Court at 54 Cal. 3d--I know the Court knows the case, but for the record, 356 at pages 376 to 377, the Defense protested because they felt that due process required that the Prosecution disclose not only rebuttal witnesses and their statements, but other evidence gleaned in rebuttal to the Defense case, and they say that. And what the California Supreme Court holds is that the due process clause does not require such disclosure. It says that the--the court says at page 377 that: "The witnesses and their statements are what is disclosable, Defense witnesses for Prosecution witnesses and nothing more. We glean nothing from the Supreme Court's interpretation--"
Talking they are about the U.S. Supreme Court, "--of the due process clause to lead us to conclude that reciprocity requires the Prosecutor to disclose other evidence gathered in response to a compelled Defense disclosure that may be used to refute the Defendant's case when the Defense is not required to do so--do the same following discovery of the Prosecution's witnesses." So it's directly on point. It's directly on point. It's a holding of our California Supreme Court construing the relevant statute, and the Court is duty-bound to follow it. This is relevant, real evidence which we are using in rebuttal. We're in a different ball of wax when we talk about the People's Prosecution case in chief and the People's rebuttal, and this is rebuttal.
THE COURT: But haven't we sort of gone beyond that by actually disclosing to the Defense by means of photocopies of these photos what it is?
MS. LEWIS: Well, the Defense benefited. They got a windfall with that, because during our case in chief, we were considering the possibility of putting on witnesses with regard to authenticate and so forth those photos. We were considering doing that, though we never actually made the decision to do that. But because we've been so generous in discovery in this case to the Defense, we went ahead and did that. But that was at a time we were considering putting it on in our case in chief. We never decided to do that and we in fact did not do that and we have rested and we're into the Defense case. So that--that equivocal nature of our decision on that part benefited the Defense. They got the windfall of that. So they were not entitled to those Xeroxes even then.
THE COURT: How many photos do we have, are we speaking of?
MS. LEWIS: May I have a moment?
(Discussion held off the record between the Deputy District Attorneys.)
MS. LEWIS: Your Honor, Mr. Darden reminds me as well that there are some photographs that were obtained during our case in chief, which I just alluded to. There also are photographs that have come in and we've obtained since the Defense started their case. Altogether, there may be as many as possibly 15 such photographs and videotapes, videotapes as well. But, your Honor, the Supreme Court is clear that this is evidence that need not be disclosed to the Defense that the Prosecution is using in rebuttal and there's been--there's no--counsel has not made the argument and has not even cited a case for the proposition that there is any waiver. What they did was to get a windfall by that early partial disclosure.
THE COURT: All right. How many photocopied photographs did you actually turn over to the Defense?
MS. LEWIS: They may be in a better position to tell us how many they have.
MR. NEUFELD: Your Honor, I'm informed by Mr. Douglas that it's approximately eight, and he's only estimating. It doesn't have it in front of him.
THE COURT: Are these a variety of photographs or photographs of the same thing?
MR. NEUFELD: No. They're different. Different--Xerox copies of eight different photographs. Not of the same--they're not--they're not different photocopies of the same thing.
MS. LEWIS: I think they're different occasions, if that's what the Court is asking, that for the most part--not 15 different occasions.
THE COURT: Obviously I'm not making myself very clear this morning.
MR. NEUFELD: I'm sorry.
THE COURT: All right.
MS. LEWIS: There's a variety of occasions. I don't think that there's 15 occasions, but there's more than one I believe.
THE COURT: All right. Any other argument, comment on that?
MR. NEUFELD: Yes, your Honor. Just very, very briefly. This so-called equivocal act by the Prosecution is commonly referred to as a waiver I believe. I don't think I need to cite case authority for that. If they gave over part of a statement or a statement in one form, I think they'd be obliged to turn over the actual statement that they had. The most important thing here also is not just that I think we're entitled to it under the discovery statute, but if you think about it, they're going to try and suggest that they can use these photographs for impeachment. We will argue that they are actually irrelevant and would be inappropriate impeachment. We'll be in a much better position to not waste the Court's time and argue that effectively and efficiently if we can actually see the photographs and the details in those photographs as opposed to relying on Xeroxes to explain why based on other evidence we have they are completely irrelevant. So if they show us the photographs at that time, we'll then have to have a recess so we can look at other matters. It makes absolutely no sense in terms of the Court's--in terms of judicial economy or efficiency of these proceedings. There's no reason for this kind of sandbagging.
THE COURT: All right. Thank you, counsel.
MR. NEUFELD: Sure.
THE COURT: All right. I'm going to order the Prosecution to disclose and make available for examination the actual photographs of which they have already provided Xerox copies to the Defense.
MR. NEUFELD: Is there also a ruling, your Honor, on the videotapes, because you made an earlier ruling that all videotapes that came into the possession of the Prosecution--
THE COURT: No, counsel. It's just the ones, the photocopy--if they've given you a photocopy, they have to make available to you the actual photographs for your examination. If it's something else that they've garnered in preparation for rebutting your case, they're not required to disclose that at this time.
MR. NEUFELD: Thank you.
THE COURT: All right. And I think that's it at this point.
MR. DOUGLAS: Your Honor?
THE COURT: Mr. Douglas.
MR. DOUGLAS: We did speak briefly in chambers about our interest again to introduce Defense exhibits. I've explained on other occasions why I would like to do that now. I'm informed that although the Prosecution has been given our list since last Friday, I believe that they're not prepared to handle that today. I would ask that they be directed to prepare to work on that early next week. I would like to do it on Monday if the Court pleases.
THE COURT: All right. Well, Monday I don't think is a reasonable request given our other scheduled motion. Mr. Darden, when do you think you will be prepared to address those motions?
MR. DARDEN: Thursday or Friday, your Honor. There's the Fuhrman issue. We received a letter from counsel saying they want Detective Fuhrman in on Tuesday, plus there are other issues.
MS. LEWIS: I didn't have the opportunity to talk to Mr. Darden about that. I had a conversation with Mr. Douglas that because of--the North Carolina Judge has denied however you phrase it, the certificate of materiality with regard to those tapes, Mr. Douglas had informed me earlier they no longer--unless that ruling changes somehow, they intend to call Detective Fuhrman next week. And I've informed Mr. Douglas he is at home now, which is in a northern state from here.
MR. DOUGLAS: Your Honor, I had occasion to speak with Mr. Cochran briefly. He told me that he had a chance to listen to the tapes, that it was Fuhrman's voice on the tape, that the tapes were disgusting in some of the language that was used, that there was discussions of ways in which Mr. Fuhrman and others would implicate innocent people, and that we intend to vigorously appeal a ruling that we are confused by. We thought and we were hopeful that we would be able to present that very compelling evidence to this jury with Mr. Fuhrman on Monday. Because of this unusual ruling, it will be necessary for us to take some appellate remedies immediately. So I do not think that he will be called on Monday, but I do think it will be sooner rather than later.
MS. LEWIS: Well, I--he's on 72-hour call from Idaho. But I do want to mention he's retired as of August 4th. And when he was first mentioned within a letter we get from the Defense, he came down here, he was here for at least a week, I think maybe two weeks. He took care of his retirement. He was available. If indeed there's a good reason and the Court allows him to be recalled for some reason later, I'm assuming the Defense would send him a plane ticket because he lives in Idaho now.
THE COURT: Well, we'll take that up when materiality has been determined. All right. Anything else?
MR. SCHECK: Your Honor, we don't have to do this on the record. I've asked Mr. Clarke, who I understand is in the building--and I have Xeroxes of the charts and I think there's a few matters we could discuss and maybe resolve.
THE COURT: All right. Is Mr. Clarke available?
MS. LEWIS: Oh, yes, he is. He--I'm surprised he's not down here as a matter of fact.
THE COURT: All right. Well, why don't you have him wander down and perhaps Mr. Scheck, Mr. Clarke and myself can confer in chambers on these matters and perhaps save some time for next week.
MS. LEWIS: All right.
THE COURT: All right. Anything else?
MR. NEUFELD: I just--your Honor, do you wish to deal with scheduling on the record or do we want to discuss that informally after we recess?
THE COURT: No. We can just discuss that informally. I don't think--I think--well, Monday, we have the disclosure motions. And do you have your witnesses subpoenaed for Monday?
MR. NEUFELD: Yes, your Honor. What we're going to do, just so everybody is aware of it, is, as you know, Dr. Riders had to leave and will not be able to be around for Monday. So we will go forward with Professor MacDonell, finish him on Monday and we will have Dr. Rieders testify and complete his cross-examination when he returns from Vienna with his family.
THE COURT: All right. Also, let me return to Mr. Douglas the videotape of Mr. Peratis that you submitted to the Court for the Court's viewing.
MR. DOUGLAS: Yes, your Honor.
THE COURT: And I did direct Mr. Shapiro to make one deletion from the videotape, a sustained objection.
MR. DOUGLAS: Thank you, your Honor.
THE COURT: All right.
MS. LEWIS: Your Honor, I assume--well, I can discuss this with Mr. Douglas. I assume he has the photocopies here so that we can identify--we may well have already put discovery numbers on them, but I'm not sure if that was part of our formal discovery in terms of which photographs we need to show him.
THE COURT: Okay. All right. Anything else? All right. Then we'll stand in recess until Monday, 9:00 o'clock. All right. Thank you.
(At 10:30 A.M., an adjournment was taken until, Monday, July 31, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
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 Friday, July 28, 1995
Volume 195 pages 39029 through 39174, inclusive
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
I N D E X
Index for volume 195 pages 39029 - 39174
Day date session page vol.
Friday July 28, 1995 A.M. 39150 195
LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n