Thank you very much, your Honor. Your Honor, the next witness we would like to call is Mr. Joseph Bosco. We would like to call him for a very, very specific and limited purpose only. I talked to Mr. Bosco last week before he was subpoenaed. He agreed to accept service of subpoena and agreed that the article that he had published--that he had written that was published in penthouse magazine in the July issue truly and accurately reflected a discussion he had, and the relevant part of that article that we wish to present to the jury is as follows: That, "There has been enough leaking out there to sink camp OJ if it were on a barge by the Defense and the Prosecution alike. But both are pikers compared to the Los Angeles Police Department.
"It began last summer with the LAPD passing out 911 tapes to journalists as if they were courtesy trinkets welcoming them to town and reached its nadir with the, quote, DNA sock match story. "Of the latter, I know this. Within two hours of Judge Ito admonishing the police for, quote, reckless disregard of the truth, LAPD's worse moment to that date, a certain police officer whose leaks had hitherto been mostly accurate and offered with corroboration started calling journalists with the story that blood on the socks found in OJ's bedroom was a DNA match with Nicole's. This time, however, the officer offered no corroboration and became angry and defensive when asked. "A number of journalists turned him down. Apparently KNBC did not and the rest is ugly history for both the press and the LAPD." We will call him only for the limited purpose of presenting to this jury the relevant testimony that the disinformation that was given was from a badged member of the Los Angeles Police Department who was acting in official capacity and for no other purpose.
I don't think he can say that he was acting in an official capacity, but he was acting as a police officer, and that would be the limited purpose only of calling him.
All right. Mr. Shapiro has just made an offer to the Court of his purposes for calling Mr. Bosco. And, Mr. Shapiro, would you repeat that for Miss Osinski's benefit, please?
Yes. As I discussed with Miss Osinski and Mr. Bosco, the limited purpose of calling Mr. Bosco is to authenticate an article that was published in penthouse magazine that was offered by him that concerns information or disinformation if you will that was given to him by a member of the Los Angeles Police Department regarding a match of DNA. For that purpose and for no other purpose.
Your Honor, our position is, and it's in our papers, that Mr. Bosco is covered by the shield law. He would testify only as to published information. Basically that would be that he's the author of the article, he's familiar with the article and that it's a true and fair representation or account of what was said to him. Other than that, he was--he will not testify as to any other information that is not published information as found in that article. And it's my understanding that Mr. Shapiro has indicated that they are willing to limit their questioning to that area. However, I have had no representation from the Prosecution that they are also willing to limit their--any questions that they may have to that area. And, therefore, I think that--unless we have a stipulation to that effect, I think we need to have a discussion of the issues of the shield law and/or actually make a decision on Mr. Bosco's testimony, if it will be restricted or not because we will be asserting the shield law as to any questions other than those about published information.
Your Honor, first of all, counsel is sort of--seems to be trying to ambush the People again because they know that this whole issue of leaks was subject to two motions that the People wrote, one for Michele Kestler and one on the issue of the leaks themselves. The Defense has written a formal points and authorities which has been argued by Mr. Uelmen, it's been argued by myself, and they had previously represented that this testimony was going to be presented in a 402 type hearing as part of the considerations and the issues that were in front of your Honor right now as to whether or not you were going to allow any evidence of the so-called leak to be presented and also whether you were going to allow Michele Kestler to be cross-examined as to that. So now all of a sudden, they say they want right now to put this on in front of the jury and they have previously not made that representation to the People. I think that all of these issues are currently--
--under submission to the Court. Also, I don't think this witness is on their witness list. Excuse me?
Your Honor, as to the substantive issues--and I don't believe we should be arguing the substantive issues yet because it's premature, and the Court should first make that ruling that the Court said it was going to as to whether or not there is relevancy to this whole issue of the so-called leaks at all, which is also a predicate towards determining whether or not the shield law applies. But if the Court were to somehow--and I don't think the Court should do this. I hope your Honor will not do this--somehow put those issues aside and in effect put the cart before the horse and now introduce this testimony before having ruled as to relevancy, which your Honor took under submission, I'd like to make the following substantive comments. First of all, under the Defense's own theory, they had stated that as to the issue of evidence planting--and they articulated this and I previously argued this to the Court--that leak information would only be relevant if it was made by someone in the Scientific Investigations Division who participated in analyzing the socks. They said that. I gave that direct quote to the Court previously. I don't have their points and authorities down with me right now, but they specifically stated that in framing the issues. Obviously we concede that if some police officer somewhere, if it indeed was a police officer, found out information, obviously it would be secondhand--let me--let's try to make this concrete. Let's envision a police officer who happens to work in Parker Center and overheard--I'm making up a scenario just for illustration purposes--overheard Detective Lange and Detective Vannatter talking in the elevator, and they said that there had already been DNA testing on the socks and this police officer immediately ran to the phone and leaked this information to Mr. Bosco or maybe he misunderstood the information that he overheard. What would the relevance of that be? What would the relevance be that this officer, Officer X had overheard this information and had leaked it? It doesn't go to the issue of planting. It doesn't go to any of the issues that the Defense claim to be relevant and it isn't relevant under the theories that they've specifically articulated in their written papers in front of the Court. It just doesn't have anything to do with this case whatsoever.
We have argued that even if it were an SID criminalist who was involved, it wouldn't be relevant to this case because it does not tend to show that that person was involved in planting evidence on the socks. But if it's just some police officer, it's far more tenuous. So it is impossible to conceive of any relevant theory of this evidence. Okay. Next. Let's say Mr. Bosco gets up on the witness stand and merely authenticates this article, which is what Mr. Shapiro is suggesting be done. First of all, this article has numerous conclusions and opinions in it that are not relevant and not admissible. For example, the opinions that there have been numerous leaks by both sides and that the Los Angeles Police Department makes the other sides appear to be pikers. And most importantly, he says that this leak was to journalists, that he started calling journalists with the story. So we know for certain that what Mr. Bosco is referring to here is, he is referring to conversations that presumably he has had with other journalists. So we know that at least part of the story is predicated upon double hearsay. In other words, what journalists represented to him, this police officer represented to them. What we don't know is whether all of the story is predicated upon hearsay. In other words, we can't be sure simply upon reading these paragraphs that were read into the record whether simply part of the story is predicated on double hearsay or whether their entire story is predicated upon double hearsay. So we have a hearsay problem that appears to be insurmountable. The next problem that we have legally with this story is, we have an authentication problem. Let's imagine that this conversation with Officer X, if there was a conversation, took place over the phone. What the Court would require is the Court will require, in order for that conversation to be admissible, the witness who was testifying to the conversation to authenticate the conversation by saying, "I spoke to Officer X. I recognized his voice because I've spoken to him on numerous occasions in person and I recognize the voice over the phone to be the same as that which I've heard in previous conversations. Further, I know this individual to be a police officer with the Los Angeles Police Department because I've seen his badge and his identification, because I've seen him in uniform," or however the case may be.
But the point is is that authentication would be required, and we don't have any authentication whatsoever here stated in this article. We don't have anything that comes close to being authentication. And then finally from a legal perspective, the People have a right to cross-examine any witness that gets up on the witness stand that is offered by the Defense. And although it has been said that the shield law is not a privilege, it clearly is analogous to a privilege and some people have characterized it as a privilege.
I think the case law is pretty clear that all it is is immunity from being held in contempt. That's all it is.
KEY QUOTEWell, yeah. It's been characterized as being immunity from being held in contempt, and then there's some case authority to indicate that independent of the shield law, there's also some sort of first amendment constitutional right to protect confidential information and news sources that could be conceivably analogized to a privilege. But the point is, your Honor, if a witness were to get up on the witness stand and testify, they have waived any privileges that they have to the full extent of relevant cross-examination. For example, let's say a Defendant gets up on the witness stand and testifies in the case and the People want to ask about 1101(B) type evidence relating to a pending criminal charge.
Well, no. I'd like to explain it, your Honor. Obviously this is extremely important to the People and we would like the opportunity to be heard on all the relevant legal issues.
Well, discussing it, an indirect analogy of cross-examination of a Defendant on 1101(B) evidence is an interesting issue--
No. But we have California case law that says that we can cross-examine even if the Defendant invokes their fifth amendment privilege as to the pending charges because he has waived his privilege to the full extent of relevant cross-examination. And I don't see why that same rule wouldn't be equally applicable in the context of the so-called shield law whether you're going to call it a privilege or an immunity, that once that witness has gotten up on the witness stand and has testified to anything voluntarily, that the other side has the right to cross-examine him to the full extent of relevant cross-examination, and, therefore, any privilege or immunity that he would otherwise have has been waived to the full extent of relevant prosecution.
But your analogy fails because neither Mr. Bosco nor Miss Savage are here voluntarily. Both have filed motions to quash subpoenas. I mean that's a huge difference in that thought process.
KEY QUOTEIt's been represented though that Mr. Bosco would be willing to authenticate this article voluntarily. And if he did that, our position is that we get to cross-examine him to the full extent of relevant cross-examination. So he can't get up on the witness stand and says: "Well, everything I say in here is true. "Well, Mr. Bosco, how do you know that this person was a police officer? "I invoke the shield law. "Have you ever talked to this person in person before? "I invoke the shield law. "Did you recognize his voice?
"I invoke the shield law." We have to be allowed to cross-examine. The Court couldn't permit a situation to stand where a witness got up on the witness stand and testified to certain information and then foreclose the cross-examiner from cross-examining that individual to the full extent of the relevant cross-examination that was opened by his direct testimony. And that's my point your Honor. Let me just take a look at this note to see if there's something else that I wanted to bring up.
I'd just point out on the hearsay issue that I previously mentioned that there's obviously no fundamental indicia of reliability or trustworthiness to this article itself.
Well, yes, clearly. And aside from the results, your Honor, there is the issue of whether other journalists would be revealing their sources to a fellow journalist in such sufficient, specific detail that he could tell that they were all referring to the same police officer. So there's a lot about this that is unreliable. So in sum, your Honor, we would ask the Court, as the Court has previously ruled, to take under submission the issue of relevancy and to first make a ruling as to whether that initial threshold requirement has been met. Then and only then, if the Court has made that ruling, do we then need to sort through some of these other very difficult legal issues relating to hearsay, relating to authentication and relating to the right of the People to cross-examine the witness who is authenticating this kind of material.
Thank you very much, your Honor. The first issue is whether or not Mr. Bosco can be called to testify and whether or not he can invoke the shield law to prevent his testimony. He has already indicated to me and his counsel has indicated to me that as a result of his previously published article, to that extent and to that extent only, he has no legal right to exert the shield law and, therefore, that testimony is not protected testimony. Thus, we are limiting our inquiry within the scope of the privilege.
We are not going to call Mr. Bosco or ask him anything that would be covered by the shield law potentially, and that's all his counsel has suggested. His counsel has not suggested that the People be prevented from cross-examining, nor would I ever suggest that. They can cross-examine on evidence and on material that is relevant to the direct examination. But they cannot go beyond that. And that's all we're saying. They could certainly make every inquiry they want as to whether or not Mr. Bosco was assured that the person he was talking to was a police officer, that he knew he was a police officer. That's an issue, and there will be no objection. The question is the identity of that person, and we have told Mr. Bosco and his counsel and your Honor that for these--for the purpose of this witness, we are not going to make that inquiry. So the arguments made by Mr. Goldberg in that regard are without merit. The second argument, that it's hearsay, is an argument that the Court addressed and dismissed I think very quickly; and that is, this is not being offered for the truth of the matter asserted. Quite the contrary.
It's been offered to show that it was not true and it was put out as some type of disinformation to show that there was in fact a match when Miss Clark told your Honor in court there was no DNA match. And then the next day, that was reported by reporter Savage, that there still was a match and that was still coming from a reliable source. And our intention now is to demonstrate to the jury for their consideration the following facts: That prior to any DNA analysis, a member of the Los Angeles Police Department who had previously had contact with Mr. Bosco, who had previously given him corroborative information and information reliable enough so that Mr. Bosco would go ahead with this story was told, according to Mr. Bosco, that the evidence on the sock of blood was a match, and that's what he reported. We know that--we know that was not true because Miss Clark came to court the very next day and on the record told your Honor that was not true, there was no DNA match since no DNA testing had taken place yesterday. That night again, after the Court made a very stern admonition and made its feelings known, that there had been no DNA analysis, that reporter Savage again reported that story.
This is something now for the jury to decide, was this a self-fulfilling prophecy on behalf of the Los Angeles Police Department who gave this information we know to Mr. Bosco and hopefully we will be able to show with the Court's concurrence that this officer also gave this information to Miss Savage. And that is something for the jury to consider. It is relevant evidence. It is highly material evidence. It is not covered by any privilege. Mr. Bosco is not going to assert any privilege nor could he under the law. It's not that he's waiving anything. It is that if material is already published, it is not covered by the shield law. The shield law protects areas that have not been published. That is the very essence and purpose of that rule. So I think on every issue, it is very clear that the material that we seek is relevant, that Mr. Bosco will testify to it, that we will limit our testimony so that he in no way is being asked to invade any privilege of confidentiality and that the jury will then have relevant information before it to make a determination in this case. Thank you.
Yes, your Honor. Actually, Mr. Sullivan was prepared to argue this motion and we were told that we would be arguing before the Court at 4:00 today and he's on his way here. I feel this has been sort of sprung on us at the last moment, and I want to reiterate that Mr. Bosco will invoke the shield law as to any unpublished information. And I'd like to clarify something that Mr. Shapiro said. It's not areas of unpublished information or areas of--not covered by published information. It's actual unpublished information. The only thing Mr. Bosco will testify to is the accuracy of that article. He will not go beyond that article and he will not identify his source. It's a confidential source. I believe there's a declaration before the Court that accompanies our motion that indicates that. It's--the shield law will apply. And if he is asked any questions on cross-examination or any questions by--on direct examination by the Defense on any matter that is not specifically stated in the article, he will invoke the privilege.
And I think we're going to get into a little bit of an issue as to whether, you know, he can be forced to testify on those matters, and I think it's better to be resolved out of the presence of the jury than to put him on the witness stand and get into this in front of the jury, because I do believe there's going to be a problem. He will--his testimony we argue is very limited and very restricted and we certainly--I agree with Mr. Shapiro in that he cannot move to quash the subpoena based on published information, and he will testify as to that. But that's very limited. And certainly, what we've been advised is that he would only be asked about questions with regard to particular paragraphs in that article. Now the Prosecution indicates that they may be going into other areas of that article and it might involve opinions and conclusions. And, your Honor, that's--that's a whole another issue. As to--they cannot go into or we will--they can go into it. We would have Mr. Bosco invoke the shield law as to the basis for forming some of his opinions or his conclusions or how--anything that related to any conversations or contact they may have had with any persons in the article that's not expressly stated in the article, and it's--I think it's fine for Mr. Shapiro to say that he's going to limit his questioning or to published information. However, that does not take into account what the Prosecution may do or if Mr. Shapiro feels that based on a certain answer, he might want to go further, delve further into the article and into matters that are not published.
And, your Honor, if I may briefly ask that we be allowed to present a full argument on this issue at 4 o'clock when originally scheduled.
Are there any issues or defenses other than the shield law that you can raise to non-published information?
Well, there is the first amendment, your Honor, but I'm not prepared to discuss it at the moment because, as I say, Mr. Sullivan was preparing the argument in this matter and I was not.
All right. Well, I wish you had told me that you wanted to reserve that right rather than talking to me for the last 10 minutes or telling me you want to argue again.
No. You should have started your comments by asking to continue the matter for hearing until 4 o'clock. That's how we should have started the conversation.
Well, I apologize to your Honor for that. I find myself in the middle of something and I do apologize, but I believe that Mr. Sullivan can better present the issues. He has been preparing to do that.
All right. Well, don't misunderstand me, Miss Osinski. You and Mr. Sullivan have appeared in court with very short notice, and I understand your need for time to prepare. But since now I'm going to have to hear these arguments twice from Mr. Bosco's counsel. All right. I agree that Mr. Sullivan, if he is the person who is prepared for the argument, I'll hear his argument at 4 o'clock since that was the time originally scheduled. Let me tell you what my tentative ruling is at this point. I'm going to allow Mr. Bosco to be called for the purpose of a 402 hearing, a foundational hearing, to determine, one, whether or not he is somebody who is covered by the shield law. That has to be established for the record. Then the discussion as to what it is the Defense wishes to glean from him from that article that he's willing to discuss and then whether or not either on direct or cross-examination by the Prosecution--if the question is asked who this individual was who provided him with the information, if he invokes the shield law, then I know that outside the presence of the jury, and then I will take this matter under submission likewise with the Tracie Savage situation because we'll be in the same boat as far as that is concerned. All right. Let's take a 15-minute recess, and then we'll discuss the Gerdes issue. Might as well use the time. Also, in the interim, I'm going to excuse the jury from further service until 9 o'clock tomorrow morning. All right.
Within two hours of Judge Ito admonishing the police for, quote, reckless disregard of the truth, LAPD's worse moment to that date, a certain police officer whose leaks had hitherto been mostly accurate and offered with corroboration started calling journalists with the story that blood on the socks found in OJ's bedroom was a DNA match with Nicole's. This time, however, the officer offered no corroboration and became angry and defensive when asked.
This is not being offered for the truth of the matter asserted. Quite the contrary. It's been offered to show that it was not true and it was put out as some type of disinformation.
How do you know that this person was a police officer? I invoke the shield law. Have you ever talked to this person in person before? I invoke the shield law. Did you recognize his voice? I invoke the shield law. We have to be allowed to cross-examine.
I think the case law is pretty clear that all it is is immunity from being held in contempt. That's all it is.
Your analogy fails because neither Mr. Bosco nor Miss Savage are here voluntarily. Both have filed motions to quash subpoenas. I mean that's a huge difference in that thought process.