Defense Discovery Sanctions

SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS
ANGELES

Date: 1 March 1995
Department:  103
Hon. Lance A. Ito, Judge
Deirdre Robertson, Deputy Clerk
People v. Orenthal James Simpson
Case #BA0972

DISCOVERY SANCTIONS

The Court has considered the prosecution's motion for the imposition of
sanctions for the failure of the defense to disclose in a lawfully
timely manner a tape recording of the 29 July 1994  interview of
defense witness Rosa Lopez  (Lopez) by defense investigator William
Pavelic (Pavelic). The Court has  heard the argument of counsel.

Penal Section Code 1054.3 requires the defense to disclose to the
prosecution before trial, the names and addresses of the persons the
defense intends to call as witnesses at trial, together with any
relevant written or recorded statements of those persons, or reports of
the statements of  those persons. As Lopez was being called to testify
on 27 February at a conditional examination pursuant to Penal Code
1335, defense counsel belatedly revealed the existence of a second
investigator's report regarding a statement made by Lopez. After a
brief ex parte hearing pursuant to Penal Code 1054.7, the Court
directed the defense to immediately disclose the second report to the
prosecution. The prosecution made several inquiries, assisted by the
Court, as to the existence of any other reports, notes or tape
recordings of either of Lopez's  statements to Pavelic. Both Mr.
Douglas and Mr. Cochran, clearly and unequivocally, stated to the Court
that no tape recording of either of Lopez's statements was in the
possession of the defense. This assertion was false. The late
disclosure resulted in a four court-day delay of proceedings before the
jury.

In fashioning the appropriate sanction for the delay of the disclosure
of both the tape recording and second report, the Court must examine
whether the delay was the result of inadvertence, negligence or an
intentional act designed to gain a tactical advantage. The Court may
also examine the history of discovery proceedings that have already
taken place in this case, noting that the Court has already made on
finding that the defense deliberately  and unlawfully withheld
discoverable materials with the intent to gain a tactical advantage
(note 1.) Lopez is an important witness for the defense because her
testimony is that the defendant's Ford Bronco automobile was parked on
the street at the Rockingham gate of defendant's residence between 8:30
p.m. on 12 June until it  was impounded by the Los Angeles Police
Department during the mid-morning hours of 13 June. This would conflict
with the prosecution's theory that the defendant used the Bronco to
travel to and from the crime scene at  875 S. Bundy Drive. It would
also support the defendant's alibi as proffered during  Mr. Cochran's
opening statement on behalf of the defendant. Given the importance of
this witness, the absolute bare minimum level of  professional
competence would require that the lawyer preparing to present the
testimony of such witness confirm the inventory of statements, reports,
notes and recordings concerning this witness.  Given the experience of
defense counsel, their professional reputations before this and other
courts, and the Court's own experience with the involved counsel, the
Court should be able to rely upon something significantly more than the
bare minimum. Given the Court's previous order to Mr. Douglas on behalf
of the defense to prepare and submit to  the Court a catalog of defense
witnesses and statements, the latest failure of disclosure cannot be
viewed  as inadvertent. The false representations by Mr. Cochran and
Mr. Douglas that no such tape recordings existed  lends credence to the
finding that this was at the very least a representation made with
reckless disregard for the truth if not a deliberate attempt to mislead
the both the prosecution and the Court.

Penal Code 105.4 allows the Court to pursue contempt proceedings or to
make any other lawful order as a sanction for failure to comply with
discovery mandates. Code of Civil Procedure Section 177.5 allows the
Court to impose money sanctions for the violation of a lawful court
order without good cause or substantial justification. This section
applies to criminal proceedings. People v. Tabb (1991) 228 CA3d 1300,
1310. The Court notes the defense counsel have wisely conceded the
nature and scope of the transgression.

The Court orders as follows:

The prosecution shall have until Thursday 2 March 1995 at 9:00 a.m. to
review the subject tape recording, prepare and proof a transcript of
said tape recording and to prepare for the cross examination of Lopez.

Defense counsel shall assume and pay all costs for the housing and
transportation of Lopez up to and including the conclusion of the Penal
Code Section 1335 conditional hearing.

Defense counsel shall prepare and submit to the Court by the close of
business 6 March 1995 a list of defense witnesses which shall include
the full name of each witness, the date of each interview, the date of
each written report of such  interview, whether there exists any raw
notes, tape recording, video recording or any other means of
memorializing such witness statement, and the date disclosure to the
prosecution. This list shall be accompanied by a declaration of all
counsel of record and all investigators ever employed by the defense
that the list submitted to the Court is complete and accurate.

If and when the conditional examination testimony of Lopez is presented
to the jury, the Court will instruct the jury as follows:
"The laws governing criminal procedure in California require that each
side disclose and give to the other side the names of the persons they
intend to present as witnesses and any written record or recordings of
statements made by these witnesses. These disclosures must be made
before trial if the witness is then known. These laws of criminal
procedure exists to promote the ascertainment of  truth in trials, to
save court time in trial, and to avoid the necessity for frequent
interruptions and postponements. During the direct examination of Rosa
Lopez by the defense, defense counsel revealed the existence of a tape
recording of a 29 July 1994 interview of Rosa Lopez by defense
investigator William Pavelic. This was a violation of the law and the
cause for the delay between 28 February and 3 March, 1995. You may
consider the effect of this delay in disclosure, if any, upon the
credibility of the witness involved and give it the weight to which you
feel it is entitled."

The Court will take under submission the prosecution's request to be
allowed to raise the delay in disclosure of the tape recording in
argument before the jury until after the presentation of Lopez's Penal
Code Section 1335 testimony to the jury. The Court notes the scope of
fair argument must be judged on the basis of the evidence receive at
trial before the jury, the extent of which is yet to be determined.

Pursuant to Code of Civil Procedure Section 177.5, defense counsel Carl
E. Douglas  shall pay a monetary sanction of $950.00. The Court finds
this to be a reasonable sanction because Mr. Douglas had the
responsibility for discovery compliance and had been the subject of
sanctions as noted previously.  Defense counsel Johnnie L. Cochran Jr.
shall pay a monetary sanction of $950.00. The Court finds this to be a
reasonable  sanction because not only is Mr. Cochran lead trial counsel
responsible for the conduct of  the defense team, but he is also the
trial counsel presenting the testimony of the witness in question and
had made untrue representations to the Court in reckless disregard for
the truth.

IT IS SO ORDERED.

Notes

1. See the Court's order re Discovery Sanctions dated 29 January 1995
(Sunday, a legal court holiday) and filed 30 January 1995.