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 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 OF PLAINTIFF FREDRIC GOLDMAN TO PRECLUDE ARGUMENT AND QUESTIONING REGARDING PLANTING OF EVIDENCE
Trial Date: September 17, 1996
GOLDMAN MOTION NO. 1
Defendant Orenthal James Simpson would like to explain away the overwhelming amount of incriminating evidence against him by claiming that the Los Angeles Police Department planted the evidence in a massive conspiracy to frame him for a double murder. Despite two years of extraordinary investigation and discovery by teams of defense lawyers, experts, and investigators, Simpson has produced no evidence to back up his wild, desperate assertion.
In the criminal trial, Simpson was given unfettered reign to advance his unsubstantiated claims of police conspiracy and planting of evidence, presumably to afford him the widest possible discretion to raise doubts in the face of a double murder prosecution against him. We are now in a civil case, however, and the rules are different. Evidence that at best creates only a "reasonable doubt" is insufficient.
Goldman contends that Simpson attacked and killed Ronald Goldman, and Simpson denies these acts. Goldman bears the burden of proof on this issue. But Simpson goes one crucial step beyond mere denial. He affirmatively asserts that the police conspired and planted evidence against him. On this claim, Simpson bears the burden of proof. Evidence Code 664 states: "It is presumed that official duty has been regularly performed." Evid. Code 664. This presumption applies generally to police officers. Davenport v. Dept. of Motor Vehicles, 6 Cal. App. 4th 133, 141 (1992), overruled on other grounds, McNary v. Dept. of Motor Vehicles, 45 Cal. App. 4th 688 (1996). See also People v. Harris, 213 Cal. App. 2d 365, 369 (1963) (where defendant claimed police entrapped him, he had burden of proof on that issue and "in the void of specific testimony . . . the courts cannot infer improper motives or activities on the part of the officers, but must presume that the officers regularly and lawfully performed their duties"). Section 664 is a presumption affecting the burden of proof, Evid. Code 660, the effect of which "is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact." Evid. Code 606; see also Evid. Code 500, 550.Simpson cannot possibly meet this burden because he does not even have sufficient evidence to sustain a jury finding -- that he was framed. In response to Goldman's specific interrogatories and requests for admissions, Simpson was required in this case to disclose all of his evidence showing that blood and other evidence were planted against him. After Simpson objected and flatly refused to answer these discovery requests, Goldman sought and obtained an order from the court compelling answers. But Simpson's court-ordered answers were vague, evasive, and little more than broad and indiscriminate references to over one year of protracted proceedings in the criminal trial, including grand jury proceedings, the preliminary hearing, pretrial proceedings, and the nine-month long jury trial. Consequently, Goldman has filed a motion for preclusion sanctions to be heard by this court on September 17. The simple fact is that Simpson has had many months to provide the evidence supporting his claims, he has not been able to do so, and he cannot do so at trial. See Thoren v. Lohnson and Washer, 29 Cal. App. 3d 270, 274 (1972) (party may not rely on evidence not disclosed during discovery in response to interrogatories).
Entirely absent from Simpson's interrogatory answers is any concrete evidence of planting of blood or other evidence against him. <i>Simpson does not identify a single person who planted the evidence. He does not state when the evidence was planted. He does not explain how the evidence was planted. He does not say why the evidence was planted.</i> Without such basic foundational facts, all that remains is rank speculation and pure conjecture. The court should not permit this trial to be diverted down such paths. See People v. Kaurish, 52 Cal. 3d 648, 685 (1990) (even in a criminal case where defendant need create only a reasonable doubt of his guilt, court properly granted prosecution's motion in limine to prohibit questioning about a third party's involvement in the crime, because "evidence of mere motive or opportunity" to act by the third party is not sufficient to raise a reasonable doubt; defendant must provide "direct or circumstantial evidence linking the third person to the actual" commission of the act).
No reasonable jury could find that any item of evidence-was planted - -based on the evidence on which Simpson relies -- nonexistent in some cases, scant in others. Questioning and argument that evidence was planted could serve only to confuse the issues, mislead the jury, consume undue time, and unduly prejudice plaintiffs, and should be excluded. Evid. Code 352.
The recent case of People v. Ponce, 44 Cal. App. 4th 1380 (1996), illuminates this principle. In Ponce, the defendant in a robbery case sought to argue that he had been framed by the Los Angeles Police Department. The trial court ruled that there was insufficient evidence to permit the defense to argue such a "framing" theory, notwithstanding the defendant's contention that he was entitled to argue his theory of the case to the jury. On appeal, the trial court's decision was upheld because "there was no substantial evidence of an effort by a single police officer to falsely accuse or assist a witness in inaccurately identifying defendant as the perpetrator of the offense" or "that two or more police officers entered into what amounted to a conspiracy to obstruct justice by falsely accusing defendants of the crimes which resulted in convictions. The fact that defendants were contending they had been misidentified or there was a reasonable doubt as to guilt was not substantial evidence of Misconduct by law enforcement officials amounting to an effort to 'frame' [defendants]. The reality that there were inconsistencies in [the victim's] testimony or that of the officers did not amount to substantial evidence of an attempt by police officers, individually or collectively, to falsely accuse defendants of the robbery. In the absence of such evidence, <i>the trial court had a duty and right to preclude defense counsel from pursuing such argument.... Trial judges have the duty to responsibly and fairly control the proceedings to prohibit argument which is not supported by substantial evidence.</I>" 44 Cal. App. 4th at 1389-90 (emphasis added).
Simpson claims all of the most incriminating pieces of evidence were planted: (1) the trail of Simpson's blood at Bundy; (2) Simpson's blood on the back gate at Bundy; (3) Simpson's blood, Ronald Goldman's blood, and Nicole Brown Simpson's blood in Simpson's Bronco; (4) a glove containing Simpson's blood, Ron's blood, Nicole's blood, Ron's hair, Nicole's hair, fibers from Ron's shirt, fibers from Ron's pants, and fibers from Simpson's Bronco, at Simpson's residence on Rockingham; (5) Simpson's blood inside and outside of his home on Rockingham; and (6) Simpson's blood and Nicole's blood on Simpson's socks in his bedroom. As to certain of these items of evidence, Simpson's interrogatory answers offer <i>no</I> explanation to show planting; as to others, the answers posit circumstances Simpson contends are suspicious and support an inference of planting. For the Court's convenience, the relevant interrogatory answers are quoted and summarized in the Declaration of Daniel M. Petrocelli filed concurrently herewith. Examination of the interrogatory answers shows that no jury could reasonably infer planting of evidence from the facts advanced by Simpson. Nowhere has Simpson recited <i>who</I> planted the evidence, <i>when</I> it was planted, <i>how</I> it was planted, or <i>why</i> it was planted.
One example illustrates the merit of this motion. On June 13, the police found and collected blood drops to the left of bloody shoe prints at the Bundy crime scene leading away from the victims towards the back gate. The undisputed evidence in this case is that these blood drops were collected by LAPD criminalists on June 13 before Simpson gave a sample of his blood to the police at Parker Center in the late afternoon of the same day. The blood drops were tested and matched Simpson's blood. In response to Goldman's Requests for Admissions, Simpson admitted that the blood tested matched his blood. To overcome this conclusive evidence of guilt, Simpson claims his blood was planted in place of the real killer's blood. When asked to explain how the Bundy blood drops, collected before the police obtained Simpson's blood, could be planted, Simpson merely referred to the entire closing argument of Johnnie Cochran and Barry Scheck, plus thousands of other pages of the criminal trial, the preliminary hearing, the Griffin hearing, and depositions in this case -- all in the transparent hope of hiding his complete absence of evidence or explanation.
In banning cameras from the courtroom and issuing an order limiting public discussion of this case, the Court drew heavily on the lessons learned from the criminal trial. Another of those vital lessons is the absolute need to prevent the confusion, prejudice, and waste of the court and jury's time resulting from questioning, testimony, and argument about speculative theories lacking any basis in fact.
Accordingly, Goldman urges the Court to prevent defendant from misleading the jury, confusing the issue, creating undue prejudice, and consuming. inordinate amounts of time by entering an order prohibiting Simpson from questioning any witnesses and arguing to the jury that any of the evidence in this case was planted. In the alternative, if the Court is not inclined to grant this motion, Goldman asks the Court to consider the six motions filed herewith that separately address each category of evidence Simpson claims was planted.
Dated: August 26, 1996
MITCHELL, SILBERBERG & KNUPP
/s/Daniel M. Petrocelli
Attorneys for Plaintiff Fredric Goldman