Johnnie L. Cochran, Jr., SBN 033334
F. Lee Bailey, SBN 082050
Carl E. Douglas, SBN 097011
Alan Dershowitz, ESQ.
Barry C. Scheck, SBN 062646
Peter J. Neufeld, ESQ.
Robert D. Blasier, SBN 047480
William C. Thompson, SBN 104967
LAW OFFICES OF JOHNNIE L. COCHRAN, JR.
4929 Wilshire Boulevard, Suite 1010
Los Angeles, California 90010-3856
Robert L. Shapiro, SBN 043693
Gerald F. Uelmen, SBN 039909
LAW OFFICES OF ROBERT L. SHAPIRO
2121 Avenue of the Stars
Los Angeles, CA 90067
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,
ORENTHAL JAMES SIMPSON,
aka O.J. SIMPSON
CASE NO. BA 097211
MEMORANDUM OF LAW AND REQUEST FOR HEARING ON PROSECUTORIAL MISCONDUCT
STATEMENT OF FACTS
As discussed in chambers on March 30, 1995 we would request the court to inquire
of Mr. Harmon as to the basis for his proposed factual stipulation with respect to samples turned over to the defense and his remarks in open court on March 30th on the same subject.
In his "People's Proposed Stipulation With Respect to Defense Consumption of LAPD Items 47/334, 50/335, and 78/336", of March 23, 1995, Mr. Harmon makes an offer to proof of what he would show by calling Larry Ragle, Dr. Frederick Reeders, and Dr. Kevin Dale Ballard. Specifically, Mr. Harmon averred: (1) Dr. Reeders would testify that his National Medical Services laboratory had the samples from November 22, 1994 through December 19, 1994, but never performed consumptive testing on them; and (2) Dr. Kevin Dale Ballard, of the Baylor College of Medicine, received the samples and performed consumptive testing on them. Mr. Harmon concluded his proposed stipulation by threatening to call retained defense experts Ragle, Reeders, and Ballard, expose that Reeders did not test the samples and Ballard did, and thereby raise "the inescapable conclusion" that the "defense had shopped these items around until they found someone who might tell them what they sought to hear." People's Proposed Stipulation, at 3.
The notations on the bindles could not be a good faith basis for Mr. Harmon asserting whether Dr. Reeders did or did not test the samples, whether Dr. Ballard did or did not test the samples, or whether both of them tested the samples. Indeed, there could have been other laboratories that received and tested these bindles but did not make any written inscriptions on the the material to prevent inappropriate inquiries by police and prosecutors into privileged matters.
In open court on March 30th Mr. Harmon went further in making factual assertions on national television about what defense testing had been performed. First, he stated that the defense had consumed its samples testing for the presence of EDTA. He then read from a letter of defense counsel which questioned whether there were techniques in use for the reliable testing of EDTA in forensic samples. Mr. Harmon proceeded to lambast the defense for raising this claim in a February 6th latter -- telling the court it should "have a problem with it" -- because "we know that the testing on those swatches was done on January 8th."
Needless to say, there is nothing on the bindle inscriptions that could be a basis for Mr. Harmon asserting as a fat that EDTA testing was done on January 8, 1995 at Dr. Ballard's laboratory.
Mr. Harmon finished his remarks by taking evident pride in his claim to have discovered the true facts of secret defense testing: "And I understand the fact that they thought this would be done in secret, but the reality was it is not a secret anymore, Judge . . ."
Let us assume that these assertions by Mr. Harmon are correct, it is highly improper for him to be revealing what he knows is privileged information in open court. Worse still, it is highly improper for him to use the disclosure of privileged information as a threat to obtain a concession to a stipulation.
Dr. Reeders and Dr. Ballard fully understood their obligations as defense experts and revealed nothing to Mr. Harmon. Dr. Ballard was called by Mr. Harmon at least four times but did not talk with him.
The defense requests that Mr. Harmon give the basis for his assertions about defense testing under oath and reveal, what, if any efforts he, or persons acting on his behalf, have made to learn about secret defense examination of samples.
POINTS AND AUTHORITIES
Cal. Penal Code 1054.3, which governs reciprocal discovery, provides in pertinent part:
The defendant and his or her attorney shall disclose to the prosecuting attorney . . . the names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of the persons or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial (emphasis added).
Under that provision, "the prosecution's right to discover defendant's witnesses . . . is triggered by the intent of the defense to call that witness." Izazaga v. Superior Court (1991) 54 Cal.3d 356, 374 815 P.2d 304,316,285 Cal.Rptr 231,243 (upholding reciprocal discovery provisions of Evidence Code in wake of Prop. 115 which requires both the prosecution and the defense to disclose the identities of all persons they intend to call as witnesses at trial along with any reports of such witnesses.) Unless and until the defendant makes the decision to call a witness, the prosecution is not entitled to discover the name of that witness, far less the substance of his or her testimony.
That California Legislature intended the relationship between defense experts and counsel to be confidential and not subject to government invasion can, perhaps best be seen in the statutory scheme governing the provision of funds for expert witnesses. Under Cal. Penal Code 987.9, where and indigent defendant moves for funds for an expert, the defendant is entitled to make a confidential ex parte application to the court and any review by the court is to be conducted in camera. See Torres v. Municiapl Court (1975) 50 Cal. App.3d 778 (medical report to public defender should have been protected by privilege pursuant to section 952).
The confidentiality of this relationship is hardly surprising given the fact that courts routinely recognize that investigators and experts retained by the defendant or his counsel are part of the "defense team." See, e.g., People v. Stansbury (1993) 4 Cal.4th 1017, 1037 n.6, 846 P2d 756, 17 Cal.Rptr.2d 174). For a prosecutor such as Harmon to deliberately violate the confidentiality of such communications is outrageous prosecutorial misconduct which some courts have found sufficiently egregious to warrant outright dismissal.
Indeed the courts have expressly recognized that the statutory scheme governing reciprocal discovery prohibits prosecutors from discovering reports of nontestifying experts and on certain subsidiary information on which the defense does not intend to offer into evidence, even if the expert may partly rely upon it. Hines v. Superior Court (App. 4 Dist. 1993) 23 Cal.Rptr.2d 712. See also Woods v. Superior Court (App. 4 Dist. 1994) 20 Cal.Rptr2d 182 (the defense may be required to disclose the raw results of standardized psychological and intelligence tests administered and relied upon by an expert witness whom the defense intends to call at trial in order to reduce the chance of surprise to the prosecution at trial); People v. Wash (1993) 24 Cal.Rptr.2d 421, 6 Cal.4th 215, 861 P.2d 1107 (the prosecution received unwarranted "windfall" when court directed the defense to disclose statements made to a defense psychologist whom it eventually decided not to call as a witness at trial).
If Harmon made deliberate efforts to unearth confidential communications within the defense team that can be analogized to the eavesdropping conducted by an investigator at the behest of the prosecutor on a defendant's confidential communications with his attorney, misconduct which the Court of Appeals has recently found so egregious as to require the severest sanction of all, dismissal. In Morrow v. Superior Court of Ventura County (1995) 30 Cal.App.4th 1252, 36 Cal.Rptr.2d 210, there was evidence that the prosecutor arranged for an investigator to eavesdrop on privileged conversations between a criminal defendant and his attorney in a holding cell abutting the courtroom. The Court of Appeals, Second Department, held that the prosecutor's misconduct not only violated the defendant's privilege against self-incrimination, his right to counsel, his right to due process, and his right to privacy under California and Federal Constitutions, but was so "outrageous" as to require outright dismissal of the charges without any showing of demonstrable prejudice or threat of prejudice. See also People v. Hardeman (1966) 244 Cal.App.2d 1, 53 Cal.Rptr. 168, 266 (noting with apparent approval that the trial court, in an arson case, had granted a defense motion for a protective 'order . . . preclud[ing] the prosecution from using th[e] testimony" of two witnesses who had been retained by the defense to investigate the fire on the ground that it was "privileged and confidential", the prosecutor's unobjected-to cross-examination of the defendant, who denied having retained such experts, was ultimately held not to be prejudicial where the incendiary nature of the fire was not in dispute and where the prosecutor did not suggest that the defense was in possession of unfavorable reports by the experts). See also People v. Zapien (1993) 4 Cal.4th 929, 961-962, 17 Cal.Rptr.2d 122, 846 P.2d 704 (although it was misconduct for a prosecutor, who had inadvertently found a tape-recording of defense counsel's perceptions and strategy notes in a pending death penalty case to ask his investigator to listen to it, reversal was not required as the investigator destroyed the tape without listening to it); Barber v. Municipal Court (1979) 24 Cal.3d 742, 759-760, 157 Cal.Rptr.658,598 P2d 818 (where the prosecution had an undercover government agent pose as a codefendant and infiltrate confidential meetings between misdemeanor defendants and their attorney, the California Supreme Court held that, given "the chilling effect on the attorney-client relationship," the defendant's right to counsel was violated and that "[t]he intrusion" on and "trickery" of the defense made the remedy of exclusion inadequate and the remedy of exclusion inadequate and the remedy of dismissal necessary); United States v. Levy 577 F.2d 200 (3d Cir.1978) (dismissal deemed the appropriate remedy where police informant posed as a codefendant in attorney-client conferences); People v. Gatewal (1985) 173 Cal.App.3d 285, 218 Cal.Rptr.690, 692-693 (dismissal not required where prosecutor inadvertently viewed incriminating interview of defendant in defense files while going through those files to check for missing police reports did not warrant dismissal on grounds of prosecutorial misconduct, unlike in Barber and Levy as it did not involve "intentional intrusions of attorney-client confidences in situations where prejudice to the defendant's Sixth Amendment rights could not be reasonably measured').
In one Massachusetts case, the state's high court made clear that it would be "prosecutorial misconduct" for the prosecution to obtain the name of a defense expert who had arrived at an opinion unfavorable to the defendant and then to call that expert as a witness for the unethical conduct or could exclude any such testimony outright. Commonwealth v. Haggerty. 400 Mass. 437 (1987) (note 1)
Based on all of the above, we respectfully request that the court hold an evidentiary hearing on this matter in order to assess the extent of any prosecutorial misconduct and impose an appropriate sanction.
Dated: April 6, 1995
/s/ JjOHNNIE L. COCHRAN, JR.
/s/ ROBERT L. SHAPIRO
/s/ BARRY SCHECK
/s/ PETER NEUFELD
/s/ CARL E. DOUGLAS
/s/ ROBERT BLASIER
Attorneys for Mr. Simpson
1. A related issue and one of great concern to the defense is Mr. Harmon's use of threats and intimidation against defense experts. In the case of In re Martin (1987) 44Cal.3d 1, 744 P.2d 374, 241 Cal.Rptr. 263, the California Supreme Court held that the prosecutor interfered with the defendant's right to compulsory process and to present a defense by having an investigator arrest a defense witness in the presence of other defense witnesses immediately after that witness gave testimony which contradicted a key prosecution witness, by threatening a second defense witness that he, too, would be arrested if he testified for the defense, and by warning the attorneys of several defense witnesses that their clients would be prosecuted for any crimes revealed or committed in the course of their testimony. Mr. Harmon's very public effort to impugn the character of Nobel Prize winner Dr. Kary Mullis, coupled with his persistent efforts to extract information from defense experts under color of his authority as a public prosecutor, result in a chilling effect on the scientific community. This inevitably leads to substantial reluctance by scientists to participate in any judicial proceedings.