JOHNNIE L. COCHRAN, JR.
State Bar No. 97011
CARL E. DOUGLAS
State Bar No. 3334
F. LEE BAILEY
Florida State Bar No. 0820520
GERALD F. UELMEN
State Bar No. 39909
ALAN M. DERSHOWITZ
Massachusetts State Bar No. 121200
LAW OFFICES OF JOHNNIE L. COCHRAN, JR.
4929 Wilshire Boulevard, Suite 1010
Los Angeles, CA 90010
213/931-6200

ROBERT L. SHAPIRO
State Bar No. 043693
LAW OFFICES OF ROBERT L. SHAPIRO
2121 Avenue of the Stars, 19th Floor
Los Angeles, CA 90067
310/282-6255; 310/553-3000

Attorneys for Defendant
ORENTHAL JAMES SIMPSON

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

PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff,
v.
ORENTHAL JAMES SIMPSON,
aka O.J. SIMPSON,
Defendant.

Case No. BA097211

DEFENDANT'S MOTION FOR AN
EVIDENTIARY HEARING TO
DETERMINE WHETHER THE
INVESTIGATION AND SELECTIVE
DISQUALIFICATION OF JURORS AND
ALTERNATES HAVE BEEN ENGINEERED
BY THE PROSECUTION OR OTHER
GOVERNMENT ACTORS IN ORDER TO
OBTAIN AN UNFAIR TACTICAL
ADVANTAGE AND FOR OTHER RELIEF
DESIGNED TO PREVENT A MISTRIAL.
(JURY TRIAL IN PROGRESS)

TO THE HON. LANCE A. ITO, TO THE CLERK OF THE ABOVE-ENTITLED COURT, TO THE DISTRICT ATTORNEY OF THE COUNTY OF LOS ANGELES AND/OR HIS REPRESENTATIVE, AND TO ALL INTERESTED PARTIES.

MOTION

Given the pattern of selective juror disqualifications which has severely depleted the pool of alternate jurors, and given the prosecution's apparent effort to exploit these disqualifications in order to engineer the Court's declaration of a mistrial, the defendant O.J. Simpson respectfully moves that this Court conduct an evidentiary hearing to make the following determinations: 1) whether the prosecution, the police, the sheriffs or their deputies, this Court or its staff, or other law enforcement or judicial personnel, have conducted investigations into the backgrounds and recent conduct of the jurors and alternates; 2) how these investigations were commenced; 3) whether the prosecution has selectively used or benefitted from these investigations in order to target jurors for disqualification -- especially those perceived to be favorably predisposed toward the defendant O.J. Simpson; 4) whether any of these governmental actors have sought to exploit these investigations in order to reduce the number of jurors below the state constitutional minimum of twelve in order to cause this Court to declare a mistrial in violation of the defendant's state and federal constitutional right to due process and, potentially, his right against double jeopardy; 5) whether ``good cause'' existed to discharge the most recently discharged juror (who has since identified herself in the media as Jeannette Harris); and 6) whether the defendant was permitted by this Court an opportunity to waive any post-conviction claim which might have stemmed from Ms. Harris's retention. The defendant further moves that no additional jurors be discharged over his objection without the holding of an evidentiary hearing to determine whether good cause exists for discharging such jurors and that, as of today, civilian court attendants, social workers, or other civilian county personnel not connected to any law enforcement agencies be appointed by this Court to replace the Sheriff's Department as custodians of the jurors. Finally, the defendant moves that, in the event that the number of available jurors and alternates drops below twelve and this Court declares a mistrial, these indictments be dismissed with prejudice so that a reprosecution of the charges against Mr. Simpson would be constitutionally barred.

As grounds therefor, the defendant avers the following:
1. Article I, 16 of the California Constitution provides in pertinent part that ``[i]n criminal actions win which a felony is charged, the jury shall consist of 12 persons.'' This provision has been interpreted as requiring a trial judge to declare a mistrial where the number of jurors in a felony trial drops below twelve, unless the defendant (personally) and the prosecution both agree to proceed with less than twelve jurors. See People v. Trejo (1990) 217 Cal. App.3d 1026, 266 Cal. Rptr. 266.

2. Under Cal. Penal Code 1089, a trial judge may disqualify a juror and substitute an alternate only ``upon ... good cause shown to the court'' that the juror is ``unable to perform his [or her] duty.'' See also Cal. Code Civ. P.233, 234. Although the determination of ``good cause'' ties within the sound discretion of the trial court, see People v. Price (1991) 1 Cal.4th 324, 400, 3 Cal. Rptr.2d 106, 146, cert. denied, 113 S. Ct. 152 (1992), 406, People v. Abbott (1956) 47 Cal.2d 362, 371, 303 P.2d 730, an individual's inability to perform the functions of a juror must be established on the record ``as a demonstrable reality.'' See People v. Collins (1976) 17 Cal.3d 687, 696, 131 Cal. Rptr. 782, 552 P.2d 742 (citation omitted); People v. Thomas (1990) 218 Cal. App.3d 1477, 1484, 267 Cal. Rptr. 865, 869. Where an objecting party requests an evidentiary hearing to make this determination, such a hearing should be held. See People v. Huff (1967) 255 Cal. App. 443, 63 Cal. Rptr. 317 (trial court's summary declaration of a mistrial on the basis of a police witness's testimony that he had seen a juror speaking with the defendant in the courthouse, without giving the defendant a ``reasonable opportunity to present his version of the incident,'' was an ``abuse of discretion'' precluding reprosecution); People v. Burgener (1986) 41 Cal.3d 505, 224 Cal. Rptr. 212, 714 P.2d 125 (``[f]ailure to conduct a hearing sufficient to determine whether good cause to discharge the juror exists is an abuse of discretion subject to appellate review''); People v. McNeal (1979) 90 Cal. App.3d 830, 153 Cal. Rptr. 706 (failure to hold a hearing into alleged juror bias was reversible error where there was evidence that juror may have had access to extraneous information about the case). See also Larios v. Superior Court (1979) 24 Cal.3d 324, 155 Cal. Rptr. 374, 594 P.2d 491 (it was error for judge to discharge a juror and to declare a mistrial because of that lone juror's misconduct, where the defendant was not given an opportunity to waive any post-conviction claim of error resulting from that juror misconduct). This Court's refusal to afford the defendant an evidentiary hearing before summarily deciding to strike juror Jeannette Harris, under the circumstances, constituted an abuse of discretion in violation of the defendant's state and federal constitutional rights to due process and to a fair and impartial jury trial.

3. To the extent that the disqualification of jurors may eventuate in a judicial declaration of a mistrial, the principles embodied in the Double Jeopardy Clauses of the state and federal constitutions, which protect the criminally accused from twice being placed in jeopardy for the same offense, come into play. See U.S. Const. amends. VI, and XIV; Cal. Const. Art. 1, 15. See also Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056 (1969). The fundamental constitutional protection against double jeopardy ``embraces the defendant's `valued right' to have his trial completed by a particular tribunal'' since a second prosecution invariably ``increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.'' Arizona v. Washington, 434 U.S. 497, 504-505, 98 S. Ct. 824, 829-830 (1978) (quoting United States v. Jorn, 400 U.S. 470, 486, 91 S. Ct. 547, 558 [1971]) (footnotes and citations omitted).

4. Where a trial court declares a mistrial over a defendant's objection, reprosecution of the defendant is not permitted unless the state can satisfy its ``heavy'' burden of proving that the termination of the trial was justified by a ``manifest'' or ``legal necessity.'' See Arizona v. Washington, supra, 434 U.S. at 506-507, 98 S. Ct. at 830-831; Curry v. Superior Court (1970) 2 Cal.3d 707, 714, 87 Cal. Rptr. 361, 365, 470 P.2d 345, 349. See also Witkin on California Criminal Law 290 (noting that the ``California standard of legal necessity is stricter than the federal one of manifest necessity'' in that ``[a] mere error of law or procedure ... does not constitute legal necessity'', quoting Curry, supra). In determining whether a legal or manifest necessity exists in a particular case, the trial court ``must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.'' Arizona v. Washington, supra, 434 U.S. at 514, 98 S. Ct. at 835 (quoting United States v. Jorn, 400 U.S. at 486, 91 S. Ct. at 558) (emphasis added). Indeed, the ``strictest scrutiny'' is reserved for cases where, as here, ``there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused.'' Arizona v. Washington, supra, 434 U.S. at 508, 98 S. Ct. at 832 (emphasis added). See also United States v. Dinitz, 424 U.S. 600, 611, 96 S. Ct. 1075, 1081 (1976) (where an error by the government was intended to provoke the mistrial or is `motivated by bad faith or undertaken to harass or prejudice' the defendant, reprosecution is barred). See also United States v. Jorn, 400 U.S. 470, 485, 91 S. Ct. 547, 557 (1971) (Stewart, J., dissenting) (a judicially declared mistrial serves to bar reprosecution whenever the ``judge exercises his authority to help the prosecution, at a trial in which its case is going badly, by affording it another, more favorable opportunity to convict the accused''; citation omitted).

Even though a defendant's motion for a mistrial generally constitutes ``a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact,'' United States v. Scott, 437 U.S. 82, 93, 98 S. Ct. 2187, 2195 (1978), the courts have recognized that ``governmental conduct'' ``intended to `goad' the defendant into moving for a mistrial,'' may bar reprosecution under double jeopardy principles, even where it was the defendant who moved for the mistrial. Oregon v. Kennedy 456 U.S. 667, 676, 102 S. Ct. 2083, 2089 (1982) (emphasis added); People v. Turner (1983) 145 Cal. App. 3d 658, 193 Cal. Rptr. 614 (where the defense had successfully moved for a mistrial immediately after the prosecutor made improper comments during the opening statement at the first trial, retrial was not barred by the standard set forth in Oregon v. Kennedy, supra, as ``the prosecutor could not have been attempting at that early stage to salvage a losing case''); People v. Bizieff (1991) 226 Cal. App.3d 1689, 277 Cal. Rptr. 678.

6. In assessing whether improper ``governmental conduct'' constitutes a legal or manifest necessity justifying a mistrial, the courts have looked not simply to the conduct of the prosecuting attorneys and the presiding judges, but also to other governmental actors such as police officers, sheriffs and their deputies, court officers, bailiffs and other law enforcement and judicial personnel. See People v. Compton (1971) 6 Cal.3d 55, 98 Cal. Rptr. 217, 490 P.2d 537 (judge) Rushen v. Spain, 464 U.S. 114, 118-119, 104 S. Ct. 453, 455-456 (1983) (same); State v. White, 26 Ariz. App. 55, 549 P.2d 600 (1976) (police officer); State v. Pratt, 316 Or. 561, 853 P.2d 827 (1993) (police investigator). See also United States v. Jennings, 960 F.2D 1488 (9th Cir. 1992) (Brady material in the possession of corrections officials and other executive branch agencies may be attributable to the prosecutor).

7. Because of their close contact with and control over jurors and alternates during the course of a trial, the role of sheriffs, bailiffs and court officers has frequently been the subject of constitutional scrutiny. See Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546 (1965) (the defendant's rights to due process and a fair trial were violated where two deputy sheriffs, who were the custodians for jurors in a three-day trial, were permitted to testify as prosecution witnesses; People v. Hawthorne (1992) 4 Cal.4th 43, 67, 14 Cal. Rptr.2d 133, 148 (bailiffs, as officers of the court, are presumed to act in accordance with their sworn duty to keep the jury insulated from all extraneous influences, including their own); Parker v. Gladden, 385 U.S. 363, 364, 87 S. Ct. 468, 470 (1966) (``statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment''); People v. Hutchinson (1969) 71 Cal.2d 342, 351, 78 Cal. Rptr. 196, 201, 455 P.2d 132, 137 (``affidavit of juror relating to the remarks and tone of delivery by bailiff was admissible on motion for new trial to prove bailiff's statements and alleged misconduct''). See also Cal. Evid. Code Section 664.

8. From the very beginning of these proceedings, the defense has expressed grave concerns about the Sheriff's Department -- which is a branch of law enforcement allied with the Los Angeles Police Department and with the Los Angeles County District Attorney's Office -- and its custodial role vis-a-vis the jury. These concerns, which are of a state and federal constitutional dimensions - include the ever-present danger that the jurors will identify too closely with those who care for them on a daily basis over a long period of time, and that they will be biased, however subtly, in favor of the prosecution and its police witnesses. The defense is also concerned that even casual statements or gestures about the case by members of the Sheriff's Department in the presence of the jurors, see Parker v. Gladden, supra, 385 U.S. 363, 87 S. Ct. 468, State ex rel. Forsyth v. District Court, 216 Mont. 480, 701 P.2d 1346 (1985) (see dissent), might further bias the jurors in favor of the prosecution and its witnesses. It is, of course, highly unlikely that the Sheriff's Department would, on its own initiative, commence an investigation into this sort of tainting of the jury process. (note 1)

9. An even greater danger, which has already transformed the panel of sitting jurors to the defendant's great prejudice, stems from the investigative powers allotted to the Sheriff's Department over alleged juror misconduct. As any practicing attorney or judge is surely aware, no jury fully complies with every nuance of every single judicial instruction over the course of a lengthy trial. It is thus always a matter of investigative discretion as to which incidents will be investigated and how thorough such investigations will be. Because such investigations are a function of the leads given to the Sheriff's Department, the following danger is presented which threatens to deprive the defendant of his state and constitutional rights to due process, to a fair trial before an impartial jury, and to be free from double jeopardy. If a jury is selected which the state ``likes'' and if the state's case seems to be ``going well,'' law enforcement sources might not forward such leads to the Sheriff's Department, or the Sheriff's Department might exercise its investigative discretion by not aggressively pursuing leads. But if - as the defendant alleges is the case here -- the state is ``unhappy'' with the jurors and believes that its case is ``not going well,'' law enforcement sources will actively search for and pass on leads to the Sheriff's Department, and the Sheriff's Department will exercise its investigative discretion by aggressively pursuing these leads. This can be accomplished on either a ``selective'' basis, if the goal is to secure a more favorable jury for the prosecution, or on a ``neutral'' basis, if the goal is to strike as many jurors as possible in order to establish the ``legal necessity'' for a mistrial. In either case, it will be difficult if not impossible for the defense to ``catch'' the government since the decision not to investigate is rarely visible. (note 2)

10. In the instant case, given the pattern of juror disqualifications which as severely depleted the pool of alternates even though the prosecution's case in chief is still under way, the prosecution appears to be deliberately exploiting these disqualifications in order to engineer a judicial declaration of mistrial. This Court has on several occasions disqualified jurors -- whose names have not been publicly disclosed, and who have been under the exclusive control of this Court and the Sheriff's Department and its bailiffs -- over the defendant's vehement objections, based upon information apparently received from the sheriffs, their deputies, the bailiffs, or, from active or retired law enforcement sources concerning the past or present conduct of certain jurors. (note 3) While the defense has repeatedly expressed its confidence that the jurors and alternates selected to serve in this case appear, on the whole, to be capable of rendering a fair and impartial verdict, the prosecuting attorneys have taken a number of actions, and have made a number of comments, both on the record, and privately, in chambers -- including their apparent disinclination to stipulate to a jury of less than twelve jurors -- evincing an apparent distrust of this particular panel of jurors and, consequently, an apparent interest in having this Court declare a mistrial. (note 4) In a widely publicized press conference on Friday, April 7, 1995 District Attorney Gil Garcetti suggested that while the prosecution was legally constrained from moving for a mistrial without causing a bar to reprosecution of Mr. Simpson, the judge could declare a mistrial without creating such a bar, and implying that this was somehow desirable.

11. The defense is concerned that unprecedented midtrial investigations of the jurors have been undertaken by a number of ``governmental'' actors, including this Court, the police, the sheriffs and their deputies, see Oregon v. Kennedy, supra, 456 U.S. at 676, 102 S. Ct. at 2089, which may be exploited by the prosecution either to obtain jurors who may be more sympathetic to its case or, more ominously, to disqualify jurors in order to reduce the panel of jurors and alternates below the constitutional minimum of twelve and thereby obtain a mistrial. Such a declaration of mistrial by this Court would greatly redound to the defendant's extreme prejudice and would, under these unusual circumstances, interpose a double jeopardy bar to future reprosecution of Mr. Simpson. As far as the defense is concerned, this jury was selected after one of the lengthiest and most painstaking voir dires in the history of the adversarial system, relying on the scrutiny of the prospective jurors by jury consultants and attorneys on both sides. The prosecution, which is now in the midst of its case in chief, has had an opportunity to preview the defense's opening arguments, its major lines of cross-examination of key prosecution witnesses, its theory of the defense that the police, criminalists, and forensic experts have badly bungled their investigation from the very start -- and as a result, may benefit if a mistrial is declared. As a matter of state and federal principles of due process and double jeopardy, the prosecution simply cannot be permitted to ``us[e] the superior resources of the State ... to achieve a tactical advantage over the accused.'' See Arizona v. Washington, supra, 434 U.S. at 508, 98 S. Ct. at 832. The government's ongoing, unprecedented, and apparently deliberate efforts to rob the defendant of his right to ``the verdict of a tribunal he ... believe[s] to be favorably disposed to his fate,'' strikes at the very heart of his right not to be twice placed in jeopardy, see Arizona v. Washington, supra, 434 U.S. at 514, 98 S. Ct. at 835, and amounts to flagrant governmental misconduct which independently violates the defendant's state and federal constitutional rights to due process of law.

12. The prosecution may now believe that it can do no better before this particular panel of jurors than to obtain a hung jury with a vote favorable to the defendant. Such a result -- say, 9 to 3 for acquittal -- would surely create a difficult political dilemma for the District Attorney's Office which has already publicly committed itself to a retrial. The prosecution would thus be far better off with a judicially declared mistrial before the jury ever gets to vote. If this reality is in any way -- consciously or unconsciously, overtly or subtly -- influencing the actions of the prosecution or the Sheriff's Department in relation to the investigation of the jurors, that would surely constitute improper governmental conduct precluding reprosecution under the mandate of both state and federal double jeopardy provisions. The defendant is thus entitled, as a matter of state and federal constitutional law, to make a record establishing the facts.

WHEREFORE, the defendant O.J. Simpson respectfully moves that this Court conduct an evidentiary hearing to determine whether prosecution, law enforcement or judicial personnel have conducted investigations into the backgrounds and recent conduct of the jurors and alternates; how these investigations were commenced; whether the prosecution has selectively used or benefitted from these investigations in order to target jurors for disqualification; and whether any of these governmental actors have sought to exploit these investigations in order to reduce the number of jurors below the state constitutional minimum of twelve in order to cause this Court to declare a mistrial; and whether ``good cause'' existed to discharge the most recently discharged juror; and whether the defendant was permitted by this Court an opportunity to waive any post-conviction claim which might have stemmed from Ms. Harris's retention. The defendant further moves that no additional jurors be discharged over his objection without the holding of an evidentiary hearing to determine whether good cause exists for discharging such jurors and that as of today, civilian court attendants, social workers, or other civilian county personnel not connected to any law enforcement agencies be appointed by this Court to replace the Sheriff's Department as custodians of the jurors. Finally, the defendant moves that, in the event the number of available jurors and alternates drops below twelve and this Court declares a mistrial, these indictments be dismissed with prejudice so that a reprosecution of the charges against Mr. Simpson would be constitutionally barred.

DATED: April 10, 1995

Respectfully submitted,
By Johnnie L. Cochran, Jr.
By Carl E. Douglas
By: Robert L. Shapiro
By: F. Lee Bailey
By: Gerald F. Uelmen
By: Alan M. Dershowitz

Attorneys for Defendant
ORENTHAL JAMES SIMPSON

NOTES

1. To the extent that any investigation by this Court into allegations of misconduct, either by jurors or by members of the Sheriff's Department, will require the testimony of sheriff's deputies, this will create a potential conflict of interest. Because of this potential conflict, and because of the defendant's above-noted concerns, the defendant has moved herein that, as of today, civilian court attendants, social workers, or other civilian county personnel not connected to any law enforcement agencies be appointed by this Court to replace the Sheriff's Department as custodians of the jurors.

2. For example, had juror Jeannette Harris been perceived as favorable to the prosecution, and had the case been going well for the prosecution, it is highly likely that the law enforcement ``lead'' which allegedly caused the Sheriff's Department to investigate Ms. Harris, would never have materialized. But, in this case, it did, as have several other ``leads.'' The very fact that so many jurors have already been discharged is grounds for grave suspicion, especially in light of the prosecutor's complaints about the jury. Indeed, one experienced lawyer who has been trying cases for over 40 years has publicly stated that he cannot recall even one case where a single juror had been disqualified midtrial for reasons other than illness or family emergency or the like. See Statement of Gerry Spence on NBC Today Show, April 10, 1995.

3. The defense was informed by sheriff's deputies assigned to investigate allegations of juror misconduct that it was a ``retired police officer'' who provided the information concerning juror Jeannette Harris's purported history of ``domestic abuse.''

4. While the prosecution may argue that some of the statements of the discharged jurors corroborates this Court's prior finding of ``good cause'' on the ground that some or all of the discharged jurors were unduly sympathetic to Mr. Simpson, it is the defendant's contention that the prosecution, in fact, has been concerned that the jurors will actually abide by their constitutional obligations to apply the presumption of innocence, to follow the court's instructions on the law, and, ultimately, to hold the prosecution to its burden of proving its case beyond a reasonable doubt.