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 90064-1683
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 NAMES 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 OF PLAINTIFF FREDRIC GOLDMAN TO EXCLUDE ARGUMENT AND QUESTIONING REGARDING THE BLOOD COLLECTED FROM SIMPSON'S ROCKINGHAM ESTATE [LAPD EVIDENCE ITEM NUMBERS 4, 5, 6, 7, 8, 12, AND 14] BEING PLANTED
[ALTERNATIVE TO GOLDMAN'S MOTION IN LIMINE TO PRECLUDE ARGUMENT AND QUESTIONING REGARDING PLANTING OF EVIDENCE]
Trial Date: September 17, 1996
GOLDMAN MOTION NO. 3
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.
The Los Angeles Police Department designated as evidence item numbers 4, 5, 6, 7, 8, 12, and 14 the blood drops collected at the Rockingham estate of defendant Orenthal James Simpson. Testing established that this blood matched Simpson's blood. By this motion, Goldman asks this Court to enter an order precluding Simpson from presenting argument or questioning at trial to support his speculative contention the blood collected from Simpson's Rockingham estate was planted in an effort to frame Simpson for the murders of Nicole Brown Simpson and Ronald Goldman.
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. In special interrogatories, Goldman asked Simpson if he contended that certain of these blood drops (LAPD evidence items-6, 7,12, and 14) consisted, in whole or in part, of planted evidence, and, if so, to state all facts that supported this contention. After initially refusing to respond to these interrogatories, Simpson was ordered to do so by Judge Haber on June 25. At the June 25 hearing, Judge Haber made clear that, if Simpson elected to respond by simply referring to other documents such as criminal trial transcripts, he would be required to cite to the specific pages and lines of such documents where the facts on which his contention was based could be found.
In direct contravention of Judge Haber's order, Simpson responded to these interrogatories by "referring" Goldman to the entire closing argument of Johnnie Cochran and Barry Scheck from Simpson's murder trial; (2) the entire grand jury testimony of six different witnesses, the entire preliminary hearing testimony of eight different witnesses, the entire Griffin hearing testimony of six different witnesses, the entire testimony of seven different witnesses from the hearing on Simpson's motion to suppress evidence; the entire testimony of 40 different witnesses at the murder trial, and all of the deposition testimony taken in this case of any of the foregoing witnesses and of Gary Siglar./2 See Declaration of Daniel M. Petrocelli (filed concurrently herewith) Paragraph 3.
Simpson's responses do not cite to a single fact or piece of evidence upon which Simpson bases his contention that these items were planted. The reason for this is plain: Simpson has no evidence, and certainly no substantial evidence, that these items were planted. His attempt to hide this complete absence of evidence behind purported citations to the voluminous testimony of dozens of witnesses is transparent.3
Indeed, three basic, undisputed facts render meritless any possible claim that the Rockingham blood drops were planted. (1) It is undisputed that the only even theoretical source of planted Simpson blood was the blood sample Simpson provided to the LAPD on June 13, 1994. (2) It is undisputed that Detective Phillip Vannatter promptly took possession of the vial containing this blood sample, and, at approximately 5:20 p.m., arrived at Rockingham and gave the vial to criminalist Dennis Fung to be booked. By the time Vannatter arrived at Rockingham with the vial, all of the Rockingham blood drops had already been collected. See Criminal Trial Testimony of Phillip Vannatter 19367:18-19372:4; Criminal Trial Testimony of Dennis Fung 21579:6- 21583:9. (3) It is undisputed that there is not a single witness that has testified, could testify, or will testify that any planting of Simpson's blood occurred at the LAPD's Special Investigations Division laboratory, or at any other laboratory where the Rockingham blood drops were examined or tested.
In short, Simpson has no evidence that the Rockingham blood was planted. Any such argument could only be based entirely on rank speculation. Indeed, the undisputed evidence -- that the vial of Simpson's blood was taken to Rockingham only after all of the Rockingham blood evidence had been collected -- renders any such speculative theory logically impossible. Simpson cannot be permitted to unnecessarily prolong the trial, confuse the issues, and mislead the jury with argument that the Rockingham blood was planted, with evidence of trivial inconsistencies in testimony or on collateral matters, or with evidence that Simpson has refused to disclose to plantiffs in response to specific interrogatories. Ponce supra; Evid. Code 352 ("court may exclude evidence if its probative value is substantially outweighted bythe probability that its admission will (a) necessitate undue consumption of times or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.") Thoren v. Johnson and Washer, 29 Cal. App. 3d 270, 274 (1972) (party may not rely on evidence not disclosed during discovery in response to interrogatories).
Dated: August 26, 1996
MITCHELL, SILBERBERG & KNUFF
Daniel M. Petrocelli
Attorneys for Plaintiff Fredric Goldman
1 This motion is addressed to blood found outside Simpson's house, on the floor of his master bedroom, and on the floor of his foyer. It is not addressed to blood found on items of clothing found in his house, such as the socks taken from his bedroom.
2 Simpson's response to Interrogatory No. 44, which is incorporated by reference into his responses to Interrogatory Nos. 47, 50, and 62, also refers Goldman to Simpson's own deposition testimony in which he purportedly "gave answers concerning explanations of how his blood might be found at his own house." Of course, Simpson's claim that he may have bled at his house refutes, rather than supports, his theory that some third party planted his blood there.
3 Goldman has previously filed a motion seeking issue and evidentiary sanctions against Simpson for his failure to comply with Judge Haber's Order to provide further responses to Goldman's first set of special interrogatories. This motion is addressed to a different, if related, issue: Even if this Court does not impose such sanctions, Simpson's inability to cite to any substantial evidence that the blood collected from his Rockingham estate was planted affords an independent basis on which to preclude Simpson from making any such argument.