All right. Thank you, ladies and gentlemen. Please be seated. All right. Counsel, over the lunch hour I received a package of reports regarding apparently hair comparisons from the FBI lab. Why don't one counsel from each side approach and I will give you a copy of the reports.
All right. Over the lunch hour counsel proposed to the Court a procedure to go forward with the inquiry that the Court has indicated that it is going to make regarding jury issues. Either side wish to be heard as to the presence of the Defendant issue and the manner in which the inquiry should be conducted?
Yes. I would like to be heard just briefly, your Honor, if I might. Certainly we do endorse the going ahead with the jury process now, your Honor, and doing it in a continuous manner. I think it will be better for all parties and I think in this regard both the Prosecution and the Defense agree. The Court had been kind enough in a brief conference to mention to counsel that People versus Siripongs case, S-I-R-I-P-O-N-G-S, a 1988 case--although I have not had a chance to get the case, I in fact have had a chance to look at the California Criminal Law procedure and practice second edition.
The Court had suggested to us--and in this case, as the Court is aware, there is a statement in the second paragraph under section 3324 that counsel and the Defendant should be present at the hearing and it goes on to indicate that: "In some circumstances, however, counsel may be excused from the hearing as long as he or she is given a transcript of it," cite People versus Siripongs, and under that, paren, it says: "Defendant attorney excluded at Defendant's request, no constitutional violation." In this instance what we are asking the Court to do, given where we are at this point in the proceedings, after having been in trial in this matter since I guess September 26 and being the twelfth week or so of actual testimony, that Mr. Simpson be allowed to be present during this jury inquiry. That is all we are really asking, your Honor. We don't think it poses any kind of security problem. We don't think there would be any affect upon the jurors, as the Court inquires upon them.
We do not anticipate, from the Defense standpoint, of asking the Court to cross-examine any particular juror. In fact, without going into the procedure that we have used in the past, I would just indicate to the Court that we expect to do as we have done in the past and I think that Mr. Simpson has no objection to that. And the Court has previously ruled that as regards previous jurors or non-jurors, at this point, the Defendant has been present and I just think that where he does not wish to waive his being present that the Court should allow him to be present. I think that if the Siripongs case I guess stands for anything, counsel can be excluded, but it doesn't say the Defendant can be excluded, and I don't plan to waive my presence at this point either, your Honor. Perhaps I think the Court has set some rules regarding the number of attorneys and we have no problem with that. I think the Court has said that you may limit the number of attorneys who may be present during these proceedings.
But I just think that we can get on with this case and get it done in a timely and appropriate fashion. It has been conducted quite well before. I just think this is not a matter for a public hearing, but I think that the Defendant, who has the most to lose in this entire thing, is entitled to a fair trial, and that certainly it would impinge upon his constitutional rights to be present if we have to then go back and try to translate for him what took place at these hearings. And that is how I think we really got to this point, your Honor, so I would respectfully ask the Court to set up a procedure that the Court feels is appropriate whereby he can be present during the hearings and we will conduct it the same way we have done the other hearings, back in chambers. All right. Thank you, your Honor.
Yes, your Honor. I read the case law submitted by the Defense, People versus Garcia. The problem with that case law that they have submitted is that there is nothing in which it is stated explicitly that the Defendant has an independent right to be present. The case really addresses the issue as to whether or not the Court should properly address jury issues outside the presence of any of the lawyers or the Defendant, and it says that no, the Defense has the right to be represented at such a hearing or at any contact with the jury that the Judge may have, but it did not specify that it had to include the Defendant, nor have any of the cases we have found indicated that there is any such. And to the contrary, as the Court has pointed out, People versus Siripongs, also People versus Medina, 51 cal.3d 870, and People versus Freeman, 8 cal.4th, 450, both of which do address the Defendant's right to be present at various chambers conferences, make clear that the Defendant does not always have the right to be present at every chambers conference or chambers issue.
With respect to these issues, they are of such confidential nature that they do need to be conducted in chambers, which poses a very obvious problem with respect to having the Defendant present. And there are also concerns with the ability of the jurors to be as forthright as they possibly can. The more we create an open hearing in which there will be many people present and many--the more people in the audience and the bigger the setting in terms of having to be in the courtroom, I think the more we have a chilling effect we produce on the jurors and less encouraged they are to have--to be completely candid with us about what is going on. So in order to encourage candor, in order to encourage the kind of openness that will allow the Court to make a thorough and fair investigation, I think that it is in the best interests in a search for the truth and a fair trial to have this in chambers.
Just briefly if I might respond, your Honor. I would just like to mention this before, I think also that penal code section 1120 is somewhat instructive when it talks about where it requires a juror, quote: "Must be sworn as a witness and examined in the presence of the parties." And again I always come back to the fact that Mr. Simpson is the party here. That statute was subsequently amended in 1965. I think the reason why we cited to the Court People versus Garcia case, the 1984 case holding that a Defendant's right to be? Protected by the fundamental constitutional right to assistance of counsel at all critical stages of the procedure. If one takes that, your Honor, this is a critical stage of the proceedings, because what the Court finds out here is very important I think to all of us and I think that is why the Court is doing this now. I think, in response to what Miss Clark has said, that I don't think it is chilling at all with the Defendant present. It doesn't--if the Court has a certain number of counsel on each side--and the Defendant is not going to make the jurors less candid with Mr. Simpson is here. After all, this case is about People versus O.J. Simpson.
And I am reminded of the time when we first started picking the jury in this matter, the Court will recall we were up on the 11th floor and we were in a little tiny room, if the Court will recall, when we first started screening jurors and Mr. Simpson was at the table. In fact, Miss Clark and I sat side by side and Mr. Simpson was down at one end, the jurors sat a one end, and the Court will recall this, and the bailiffs were all there, and I think the People were very candid right from the beginning. That is how this Court has conducted this matter at all times, at critical stages of the proceeding where Mr. Simpson should be present. That is all we are saying, that why err in this regard. I think this is a time he has a right to be present. It poses no security problems and I think that--I'm not suggesting we put the jurors on the witness stand, but wherever they feel comfortable. We can close it in or however you want to do it, as we have done in the past. I think that this is somewhat unique and what has happened is there is a dearth of legal opinions in this regard because you will have to search far and wide before you will find this kind of proceeding where this far into trial where we have an issue like this arising regarding jurors, where we have to go and talk to all the jurors, so there is not a lot of cases, as we have proven so many times, your. It is this particular case that has caused a lot of issues that people haven't dealt with in the past.
What I have found is when you have something unique, it does require us to be careful, it does require us to keep in mind why we are here and does require us to protect all of the rights. And all we are going to you do is protect Mr. Simpson's rights in that regard and I think that 1120, Garcia, even Siripongs, I think it doesn't say that the Defendant can't be present. It talks about the lawyer being waived, so I think that where he wants to be present, I think he has a right to be present, and I think the reasons for him not being present are not persuasive. And I would ask the Court to consider this and let's move on and let's try and resolve this matter in the course of the next day or so. Thank you, your Honor.
Your Honor, I'm sorry, I don't want to--I just want to straighten out one misconception that has been created. I don't feel necessarily that Mr. Simpson's presence is going to have a chilling effect. I feel that the setting that we will be forced to be in and the number of people that will be forced to be present will be the problem and produce the more chilling effect. It is clear that when we have a more intimate setting where there are fewer people that we can expect a little more candor and the jurors will feel more secure and more calm. That is what we want to encourage and that was my point, your Honor. And moreover, the case law makes it very clear that the Defendant is entitled to be represented and he has very able representation who--his lawyers will fight very vigorously in his behalf, as they always have, and they will continue to do so and his rights will be fully protected by his presence in chambers at any conference that may be conducted. And I think that is what the Court has to look at in terms of what is required and that will certainly be observed by this Court.
All right. Thank you, counsel. All right. I don't find penal code section 1120 to be controlling in this particular issue. And the 1988 California Supreme Court opinion, People versus Siripongs, is at 45 cal.3d 548, and specifically the text that begins at page 570, and the discussion on 571 and 572 does directly address this issue. The matter will be addressed by the Court in chambers out of the presence of the Defendant. All right. We will take a 20-minute recess and we will start with the inquiry. And let me ask, Miss Clark, as far as--we have 18 jurors to talk to. My guess is we will be at this most of--certainly the balance of today and probably the balance of tomorrow is my guess, since we have 18 people to talk to. Perhaps twenty minutes, thirty minutes a piece, depending on where it leads us.
All right. Then my guess is that as far as the presentation of testimony and Miss Mazzola is concerned, we probably ought to stand in recess, today being had the 18th, until the 20th.
I want to just inquire, though. I am not cross-examining Miss Mazzola, your Honor, but no problem, your Honor.
All right. Then as far as the presentation of evidence then is concerned, we will stand in recess until 9:00 a.m. All right. Thank you, counsel. All right. Thank you, counsel
Mr. Simpson has the most to lose in this entire thing, is entitled to a fair trial, and that certainly it would impinge upon his constitutional rights to be present if we have to then go back and try to translate for him what took place at these hearings.
The more we create an open hearing in which there will be many people present...the more we have a chilling effect we produce on the jurors and less encouraged they are to have—to be completely candid with us about what is going on.
The matter will be addressed by the Court in chambers out of the presence of the Defendant.
It is this particular case that has caused a lot of issues that people haven't dealt with in the past. What I have found is when you have something unique, it does require us to be careful.