MITCHELL, SILBERBERG & KNUPP LLP
DANIEL M. PETROCELLI (State Bar No. 97802)
EDWARD M. MEDVENE (State Bar No. 32227)
THOMAS P. LAMBERT (State Bar No. 50952)
PETER B. GELBLUM (State Bar No. 102695)
11377 West Olympic Boulevard
Los Angeles, California 900641683
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
ORENTHAL JAMES SIMPSON, et al.,
FREDRIC GOLDMAN, etc. et al.,
ORENTHAL JAMES SIMPSON, et al.,
LOUIS H. BROWN, etc.,
ORENTHAL JAMES SIMPSON,
Case No. SC 031947
Case No. SC 036340
Case No. SC 036876
MOTION IN LIMINE OP PLAINTIFF FREDRIC GOLDMAN TO EXCLUDE ARGUMENT OR QUESTIONING REGARDING THE GLOVE FOUND AT DEFENDANT ORENTHAL JAMES SIMPSON'S ROCKINGHAM ESTATE BEING PLANTED
Trial Date: September 17, 1996
[ALTERNATIVE TO GOLDMAN'S MOTION IN LIMINE TO PRECLUDE ARGUMENT AND QUESTIONING REGARDING PLANTING OF EVIDENCE]
GOLDMAN MOTION NO. 4
As an alternative to his Motion in Limine to Preclude Argument and ~ Questioning Regarding Planting of Evidence (the "Planting Motion"), which seeks to preclude argument and questioning regarding planting of all evidence in this case, plaintiff Fredric Goldman submits this motion.
A leather glove found at defendant Orenthal James Simpson's Rockingham estate a few hours after the bodies of Nicole Brown Simpson and Ronald Goldman were found at Nicole's home on Bundy Drive matched a glove found at the Bundy crime scene. The "Rockingham glove" contained the blood of Simpson, Nicole, and Ron, hair from Ron and Nicole, fibers from Ron's pants and shirt, and fibers from Simpson's Bronco. By this motion, Goldman asks this Court to enter an order precluding Simpson from presenting argument and questioning witnesses at trial to support his speculative contention that this glove was "planted," i.e., left where it was found by someone other than Simpson.
As set forth in the Planting Motion, Simpson will have the burden of proof in this case to establish by a preponderance of the evidence that each particular item of evidence was planted. Evid. Code 606, 660, 664. As also discussed in the Planting Motion, Simpson may not question witnesses or present argument regarding his planting theory unless he can present both "substantial evidence" that the particular item of evidence was planted and "direct or circumstantial evidence linking" a particular person to the planting of the evidence; evidence showing merely that a third person had a "motive or opportunity" to commit the act is not sufficient. People v. Ponce, 44 Cal. App. 4th 1380, 1389-90 (1996); People v. Kaurish, 52 Cal. 3d 648, 685 (1990).
Simpson's evidence, as revealed by his interrogatory responses, is such that no reasonable jury could find that Simpson has met his burden of proof on this issue. See Declaration of Daniel M. Petrocelli (filed concurrently herewith) Paragraph 7. Despite the presence of dozens of investigators, including police officers, criminalists, photographers, and members of the media-and general public at the crime scene, and despite exhaustive investigations of this crime by Simpson, the LAPD, and numerous members of the media for over two years, there exists not one person who can confirm even a single element of Simpson's outlandish planting theory: that Fuhrman, without knowing whether Simpson had an alibi, whose blood was at the scene scene, or whether any other suspect existed, (1) found a second glove at Bundy that had escaped detection by any other person; (2) removed the glove without detection by anyone; (3) planted Simpson's blood on the glove, even though he had no possible way of obtaining any of Simpson's blood at that time; and (4) somehow hid the glove, travelled to Rockingham, and planted the glove there, again without detection from anyone, and without knowing whether the spot he chose to plant the glove had already been inspected by Kato Kaelin or anyone else. Simpson must argue that Fuhrman did this knowing that his actions subjected him to the death penalty for planting evidence of a capital crime.
Instead, Simpson's response to Interrogatory No. 71 relies on speculation and conjecture, stating five equivocal "facts" that constitute the only support for Simpson's glove-planting theory. These "facts" are entirely neutral, and have no tendency in reason to suggest any improper conduct by anyone. These "facts" are plainly insufficient to permit Simpson to argue to the jury that the glove was planted.
1. "[T]here was no blood trail leading to where [the glove] was found." This is probative of nothing, because there is no evidence to suggest that there would have been such a trail if Simpson dropped the glove.
2. The glove "appeared to be moist when it was found in the morning." This is probative of nothing, because there is no evidence to suggest that the | glove would not have been moist if it was left by Simpson the previous night. Moreover, this contention ignores the undisputed fact that tests showed that the surface | of the glove contained the blood of Nicole, Ron, and Simpson. Fuhrman could not possibly have placed Simpson's blood there, because Simpson did not give a blood sample until the afternoon of June 13 -- after the glove had been collected by criminalists. Simpson has no evidence -- only wild, unsupported speculation - that some unspecified person added Simpson's blood to the glove after it was booked into evidence but before it was subjected to any testing.
3. The glove "did not have any dirt, plant materials, cobwebs, or other indicia that it had been at that location for a lengthy period of time." Again, Simpson offers no evidence that the glove would have been covered with dirt, cobwebs, or "plant materials" if he had dropped it the night before.
4. "There was no evidence of blood on the ground under the glove." Again, this evidence has no probative value, because Simpson offers no evidence that there would have been blood on the ground under the glove if Simpson had dropped it the night before.
5. "There was no evidence that anyone could have or did climb over the fence in the area where the item was found." Simpson does not explain what such "evidence" would be or why it would exist if Simpson had killed Ron and Nicole. The asserted lack of such evidence does not tend in reason to prove that the glove was~ planted. --
Based on the paucity of evidence Simpson has offered, no reasonable jury could find the glove was planted. In the face of the utter absurdity of his theory, Simpson's scintilla of equivocal "evidence" is not sufficient to create a factual issue as to whether Fuhrman planted the glove, and can serve only to confuse and mislead the jury. Evid. Code 35 (court may exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.").Dated: August 26, 1996MITCHELL, SILBERBERG & KNUPPBy: /s/Daniel M. PetrocelliAttorneys for Plaintiff Fredric Goldman Footnotes:1. Simpson's interrogatory responses also purport to incorporate by reference the entire closing argument of Johnnie Cochran and Barry Scheck from Simpson's murder trial, and to the entire testimony of dozens of witnesses at Simpson's murder trial, grand jury hearing, preliminary hearing, Griffin hearing, the hearing on Simpson's motion to suppress evidence, and to all of the deposition testimony taken in this case of any of the foregoing witnesses and of Gary Siglar. Obviously, little, if any, of this voluminous testimony supports Simpson's claim that the glove was planted, and Simpson's effort to hide his lack of evidence through "references" to thousands of pages of testimony is transparent.