Date: 14 July 1995
Hon. Lance. A. Ito, Judge
Deidre Robertson, Deputy Clerk
People v. Orenthal James Simpson
Case # BA097211
Originally Filed July 19, 1995 Superior Court
The court has read and considered the DEFENDANT'S MOTION FOR AN EVIDENTIARY HEARING TO DETERMINE WHETHER THE INVESTIGATION AND SELECTIVE DISQUALIFICATION OF JURORS AND ALTERNATIVES HAVE BEEN ENGINEERED BY THE PROSECUTION OR OTHER GOVERNMENT ACTORS IN ORDER TO OBTAIN AN UNFAIR ADVANTAGE AND FOR OTHER RELIEF TO PREVENT A MISTRIAL, the defendant's AMENDED MOTION, defendant's SUPPLEMENTAL DECLARATION IN EVIDENTIARY HEARING REGARDING THE PROCEDURES EMPLOYED FOR THE INVESTIGATION OF JURORS and heard the argument of counsel.
This jury trial commences with 12 jurors and 12 alternate jurors. As of 5 June 10 jurors and alternates have been excused, 5 upon motion by the defense, 4 on motion by the prosecution and 1 on the court's own motion:
18 January: Juror 228 - motion by the prosecution, objection by the defense.
18 January: Juror 320 - motion by the defense, objection by the prosecution.
7 February: Juror 2017 - motion by the defense, objection by the prosecution.
1 March: Juror 620 - motion by the prosecution, objection by the defense.
17 March: 602 motion by the defense, objection by the prosecution.
5 April: Juror 462 - motion by the prosecution, objection by the defense.
1 May: Juror 452 motion by the court without objection.
25 May: Juror 353 - motion by the defense, objection by the prosecution.
5 June: Juror 1427 - motion by the defense, objection by the prosecution.
5 June: 1489 - motion by the prosecution, objection by the defense.
The defendant urges the court to conduct an evidentiary hearing to determine whether the prosecution or other governmental agencies have been conducting investigations concentrating upon jurors or alternates thought to be favorable to the defense for the purpose of gaining an unfair advantage and/or causing a mistrial. The defendant goes on to argue that if indeed such governmental, misconduct has occurred and a mistrial is later declared if fewer than 12 jurors are available to deliberate, the defendant would be entitled to the protections of the United States Constitution and California constitution prohibition of double jeopardy and subsequent retrial.
The prosecution argues that there is no bases in fact for such an allegation and that no legal precedent supports the defendant's position.
The court has an obligation, independent of the parties, to investigate allegations of juror misconduct. People v. Hedgecock (1990) 51 C3d 395, 417; People v. Keenan (1988) 46 C3d, 478, 532; People v. Burgener (1986) 41 C3d 505, 520; People v. McNeal (1979) 90 CA3d 830, 838. Of the 10 jurors and alternates thus far dismissed 5 were upon motion of the defendant and one upon motion of the court without objection from either party. The court's attention will therefore be focused upon the dismissals of jurors 228, 620, 462 and 1489 which were upon motion of the prosecution.
During the course of voir dire juror 228, an employee for the Hertz Corporation, a leading car rental agency, stated that he had never met the defendant, a celebrity spokesperson for the Hertz Corporation.(1) A telephone call disputing this statement was made to both the clerk of the court and the prosecution. Defense counsel reported receiving an anonymous telephone call with similar information. This information also surfaced in connection with a tabloid publication. It was alleged that 228 was on a Hertz Corporation committee that planned and attended a social event that involved the defendant. The court received information that juror 228's participation in the planning of the event was contained in a contemporaneous Hertz publication. During the chambers conference with counsel, the court expressed the opinion that it would be inappropriate for the prosecution to conduct investigations of jurors. The Sheriff's Department agreed to assign two investigators from the Special Investigations Bureau, Deputies R. Downs and L. Brown. The court specifically directed counsel for both parties not to conduct any independent investigations of any allegations of juror misconduct and to refer any relevant information directly to the court. The investigation conducted by Deputies Downs and Brown lead to witnesses who had worked with juror 228 on a committee working on a VIP reception where the defendant, as a celebrity spokesperson, was one of the invited and attending VIPs and that the organizing committee had been introduced to the defendant. The testimony of the witnesses indicated that it was implausible that juror 228 had not met the defendant during the course of this event. The witnesses also indicated that given juror 228's contact with Hertz VIP customers as a result of his job assignment that it was also unlikely juror 228 had not had personal contact with the defendant who was a frequent visitor at the Hertz facility at LAX. The court found the overwhelming weight of the evidence presented indicated juror 228's claim he had not personally met the defendant was not credible. Given this, plus the fact both juror 228 and the defendant were employed by the same company, the court found good cause upon motion of the prosecution to dismiss juror 228. A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. In re Hitchings (1993) 6 C4th 97, 111.
The court received a communication from a private investigator in Washington, D.C., indicating she had met someone at a party who had a friend who had a friend who was a juror and an employee of an express delivery service who had stated that he had already made up his mind about the case and planned to make money from the experience by writing a book. The jury questionnaires indicated juror 620 was an employee of Federal Express. The information was assigned by the court to Deputies Downs and Brown indicated that a friend of juror 620 had told many co-workers that juror 620 had indicated that he would never vote to find the defendant guilty. In the course of defendant and locating witnesses acquainted with juror 620, Deputies Downs and Brown determined that 620 had an arrest record involving apparent domestic violence that had not been disclosed during voir dire or the questionnaire. Further investigation revealed court documents indicating juror 620's first marriage involved allegations of domestic violence which were not disclosed during voir dire. Domestic violence is an important issue in this trial. The failure to candidly answer questions in this area during voir dire deprives the parties their right to intelligently exercise their peremptory challenges.(2) Failure to disclose a criminal arrest involving allegations of domestic violence constitutes the type of misconduct noted in People v. Price (1991) 1 C4th 324, 399-400.
On 21 March 1995 the court was advised by Deputies Downs and Brown of an allegation that juror 462 had been the victim of spousal abuse over a long period of time.(3) Follow up investigation revealed that on 8 February 1988 juror 462 filed an Order To Show Cause And Temporary Restraining Order (Domestic Violence Prevention Act) which contained substantial allegations of domestic violence by one Melvin Harris against juror 462. The court was provided a copy of Los Angeles Superior Court file number D 209368. The court makes not of the declaration made by juror 462 under penalty of perjury dated 8 February 1988. Domestic violence is an important issue in this trial. These allegations were not noted in juror 462's questionnaire or in voir dire. A juror who conceals relevant fact or gives false answers during the voir dire examination thus undermines the jury selection process and commits an act of misconduct. In re Hitchings (1993) 6 C4th 97, 111.
Juror 462 and others reported personal conflicts amongst the jurors and alternates. While some conflicts can be expected amongst jurors sequestered together for a long period of time as in this case, indeed some conflict would be normal, allegations of deliberate and offensive physical contact are extraordinary. The court in People v. McManus (1960) 180CA2d, at 30, observed: "...In the course of a long trial such as the one at bar, nerves and tempers are not uncommonly on edge and judge must exercise the utmost patience and forbearance in controlling situations of this kind... he (the trial judge) had the duty of controlling such matters as in his judgment would be most conductive to the expeditious and harmonious conduct of the trial to the end that both the defendants and the people would have the matters at issue fairly determined on the merits." In McManus the offending behavior was a high level of danger and hostility exhibited by one juror towards the prosecutor and an alternate juror, observed by the court. The Court of Appeal upheld the trial in its exercise of discretion to excuse both jurors involved in the conflict. In this case there have been multiple incidents involving juror 1489 and jurors 353 and 1427.
Incident One: Juror 353 reported to the court that while entering the jury box she inadvertently stepped on 1489's foot. 1489 then leaned over and stated to 353 that if it happened again he would trip her. This colloquy was overheard and reported to the court by jurors 19, 98, and 63. During the interview by the court, 1489 admitted the comment to 353. The court notes juror 1489 to be a 54 year old male standing approximately 5'10" and weighing approximately 200 pounds. The court notes juror 353 to be a 38 year old female standing approximately 5'4" and weighing approximately 125 pounds.
Incident Two: Juror 1427 reported that while in the courthouse elevator juror 1489 bumped into her. Believing at first that this was inadvertent due to the normal level of elevator crowding, 1427 ignored the bumping. 1427 reported that 1489 proceeded to bump her three more times, pausing in between to look and make facial gestures to a group of 2-3 other jurors. 1427 found this to be highly offensive. The court notes 1427 to be a 28 year old female standing approximately 5'8" and weighing approximately 130 pounds.
Incident Three: Juror 19 reported that on 21 April, while in the elevators on the way out of the courthouse, he observed 1489 to deliberately bump 1427. 4
Incident Four: On 25 May it was reported to the court by bailiffs that 1427 was very upset to the point of crying. Upon inquiry, 1427 complained that 1489 had offensively brushed up against her while in the juror lounge. 5 She found this to be both disturbing and offensive.
Incident Five: Juror 1427 reported that 1489 would sit and stare at her in an unpleasant manner when the jurors were in the jury room. This staring was also noted by jurors 1290 and 19.
Incident Six: Juror 1290 reported that she was also the target of offensive staring by 1489.
On 25 May the court inquired of 1489 about incidents Two, Three and Four. 1489 denied the described incidents of physical contact between he and 1427 had ever occurred. 1489 denied having any sort of conflict with 1427. The court found this denial to lack credibility and that 1489's conduct was disruptive of the truth finding process. See U.S. v. Fajardo (11th Cir. 1986) 787 F2d 1523, 1525. No governmental action is apparent.
The investigation concerning juror 228 was commenced by the court based upon information received directly by the clerk of the court from a former co-worker of juror 228. The investigation concerning juror 620 was commenced by the court based upon information from a non-governmental source received directly by the clerk of the court. The investigation concerning 462 was commenced by the court based upon information provided to Deputies Downs and Brown by Los Angeles Police Department Officer Amormino whose source wished to remain anonymous. The investigation concerning juror 1489 was commenced by the court after complaints from other jurors and alternates. The record reflects that this court has conducted hearings into allegations of juror misconduct that are perhaps unprecedented in variety and length. The only juror that has been dismissed based upon an investigation instigated by information directly received from a governmental source is 462. The allegation, proven to be true, that 462 was the victim of domestic violence, would appear to be a factor favoring the prosecution because it is the theory of the prosecution that the defendant engaged in multiple acts of physical violence and abuse against victim Nicole Brown Simpson over a long period of time and that the homicide in this case was the last act of control in such an abusive relationship. 6 The concealment of being the victim of abuse similar to that suffered by victim Nicole Brown Simpson would appear to be of greater concern to the defense. 7 This record does not support an interference that jurors are or have been targeted for removal by any governmental agency.
The defense submits two declarations in support of its motion, one of a former prospective juror and one of defense counsel Johnnie L. Cochran, Jr. The former prospective juror was interviewed by Deputies Downs and Brown after she contacted the court stating she had additional information concerning misconduct by sitting jurors and alternates. The former prospective juror declares that she was told by Deputies Downs and Brown that the Los Angeles Police Department was conducting juror investigations. Deputy Downs denies having made such a statement. It should be noted that this court had previously interviewed this particular former prospective juror regarding the allegations of juror misconduct which were found to be unsubstantiated. The boasting and baiting conduct which has been engaged in between Deputy District Authority Christopher Darden and defense counsel Johnnie L. Cochran, Jr. both in and out of court, is both obnoxious and childish and not reasonable, credible or sufficient basis for the court to conduct a hearing into allegations of juror targeting.
It must be noted that the high level of public interest in this case has created the unexpected by-product of a constant flow of information about the jurors and their backgrounds from sources beyond the parties. The essence of such information was that jurors 228, 620, and 462 deliberately concealed material information during the questionnaire and voir dire process. The court found the information concealed to be material, the act of concealment to be deliberate and to be misconduct indicating an inability to perform the functions of a juror. Misconduct is misconduct without reference to the source of the information initiating the court's investigation. The real difference here is that the public has taken great interest in who is sitting on this jury despite the court's use of an anonymous jury. The defense argument apparently assumes that because information of juror misconduct in the form of concealment of material information comes from a governmental source that it must be ignored or that governmental entities have no legitimate interest in having trial jurors who have honestly represented their backgrounds and opinions.
The defense motion for a hearing into juror targeting is denied.
The clerk of the court is directed to serve a copy upon counsel for the parties upon their next appearance in court.
IT IS SO ORDERED.
1. See Juror Questionnaire page 38/question 133, page 41/question 148, RT 5583 - 28 October 1994.
2. The court notes that both parties accepted this jury panel and alternates without exhausting their allotment of peremptory challenges.
3. "At 0945 hours this date, we received a telephone call from Officer Jim Amorrino of the Los Angeles Police Department, Public Affairs Unit, telephone number (213) 485-3281. Officer Amorrino said that on March 20, 1995, at 1600 hours, while at the Criminal Courts Building, he was approached by a male Black citizen, approximately 42 years of age. The citizen told him that, "Mrs. Harris, a juror on the Simpson case, has a long history of being battered by her husband, Melvin Harris." The citizen also related that, Mrs. Harris lives at [address omitted-noted to be correct], and that if one wants to talk to the neighbors this information can be verified." Reports of Deputies Downs & Brown, 21 March 1995. The court later received information from what the court believes was the same anonymous source indicating that 462 may have concealed her family's experience with crimes of violence. The court had the impression the anonymous source was someone who had engaged 462 or her family in civil litigation.
4. The court notes that on a previous occasion juror 19 requested to see the court to report misconduct by juror 602. When interviewed by the court 19 reported that 602 had in his possession a list of the jurors names and corresponding numbers in violation of the court's orders when granting the motion for an anonymous jury. When interviewed by the court 602 denied having any such list in his possession. The court requested and received 602's permission to examine 602's laptop computer. While examining the computer, the court discovered the list of juror names and numbers as described by 19 in a box of floppy discs. The court takes this into consideration in evaluating the reliability of the information provided by juror 19.
5 The court houses the jurors in a secure lounge which is roughly four times the size of the jury deliberation room when the jury will not be needed in the courtroom for extended periods of time such during the noon recess.
6. See prosecution opening statement.
7 See defense counsel's argument in support of the dismissal of juror 320.