All right. Back on the record in the Simpson matter. Defendant is again present before the court. The jury is not present. And we now have present with us Mr. Sullivan. Good afternoon, Mr. Sullivan.
Good afternoon, your Honor. Michael Sullivan on behalf of the reporter Joe Bosco. I'm a member of the bar of Washington D.C. your Honor, I would request permission to be heard on this matter. I'm here with a member of our California office, Miss Osinski, who appeared before.
Right. Your application to appear before the Court pro hac vice has been filed and approved by the Court.
Thank you, your Honor. Your Honor, I apologize that this matter has been heard in somewhat of a piece-meal fashion. On our way to the court this afternoon, we heard portions of the argument made by both the Prosecution and the Defense. And so what I would propose to do rather than to rehash and waste the Court's time, I would like to make a few brief points and respond to specific points raised by the Prosecution and the Defense. First thing, the Prosecution made an argument that the shield law may be waived if Mr. Bosco takes the stand and testifies strictly to published information. We find that argument to be, a, without support and, B, your Honor, to be extremely troubling. There's no support for that. They can't cite a single California Supreme Court case that talks of waiver in that sense. Indeed, it simply can not be the case, because if that were the law, it would have disarrayed the shield law entirely. In fact, if you think about it, what it would do is, it would penalize reporters who are willing to take the stand and do their civil duty and testify to matters that are within the four corners of the publication, what material they've published, which is not protected by the shield law. So reporters who are willing to do that, they would then be penalized. That would be entirely unfounded and we submit with no basis or foundation. Second point, your Honor, is, to the extent that the Prosecution comes in and they say that they think they want to be able to go after information that is beyond what was published within the four corners of that article, we submit that they don't have the same claim to do that even as the defendants do. If you look at the cases that have been decided by the California Supreme Court, you'll see that when the Court has said that the interest protected by the shield law must yield, it's in cases where the person making that claim is the Defendant. And obviously, the Defendant has a constitutional sixth amendment right to a fair trial, and that is what in an appropriate case may force the interest protected by the shield law to yield. The Prosecution on the other hand, your Honor, they have no countervailing constitutional argument. So they--this argument that they can come in and try to get beyond what's protected by the shield law is simply not well-founded. My third point is, we need to focus on what it is that the shield law protects and what they can properly get. And what they can get under the shield law, Mr. Bosco can be required to testify to what is within the four corners of his article, what was published. That published information, he is here to vouch for. He will tell you that is a truthful and accurate report. He's prepared to do that. To the extent they seek to go beyond that, that is improper and that's where the shield law draws the line and that's where the curtain comes down. In fact, if your Honor looks at the playboy case, it becomes clear that what the California Supreme Court said is, they say, when we talk of unpublished information, that includes all factual information within the reporter's knowledge whether it's from his source material or his memory. Okay. That's basically what they're talking about. So what that means in this case, to provide a concrete example, the penthouse article that is the subject of this whole motion has this business in there about the DNA sock match story, and that's what we've been told the Defendant is more interested in. It goes on and talks about information provided by a certain police officer, and then it says:
"A certain police officer whose leaks had hitherto been mostly accurate and offered with corroboration starting calling journalists with the story that the 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." So let's take, for example, that what they want to ask is well, how angry did he get, right, what do you mean he offered no corroboration this time, how long was the conversation you had with him. Questions of that nature, that's beyond what is published information. That's not within the four corners of the piece and that would be protected by the shield law. Similarly, questions like, how did you recognize the source's voice, questions like that, your Honor, we submit are not proper under the shield law. My last point, the Prosecution made the point that this whole issue of this testimony presents thorny threshold issues going to matters such as relevance, hearsay and authentication. On that score, we wholeheartedly agree with the Prosecution and we would submit that that suggests exactly the type of tough questions that require a protective order to properly restrict the scope of Mr. Bosco's examination before he testifies in front of a jury. That's why we think it's appropriate to fashion a protective order so that both parties, both the Prosecution and the Defense, know precisely what it is they can get into and what it is they cannot. Thank you, your Honor.
All right. Thank you, Mr. Sullivan. All right. Counsel, I've heard the arguments of counsel for Mr. Bosco and for Mr. Simpson and the Prosecution. I think I've previously indicated that what I was inclined to do at this point is allow the Defense to call Mr. Bosco for the purposes of this 402 hearing to establish the foundation, one, that he--the nature of his employment, 2, the--his authorship of the article in particular, 3, that he did in fact report the items that are contained in those two relevant paragraphs. And then I assume somebody will ask him to divulge the name of that officer, and then he will invoke the shield law. At that point, I will then recess to contemplate the Delaney issues that are similar to the Savage matter as well, which I have not yet determined. But I think the--both sides are entitled to cross-examine Mr. Bosco as to the foundation for his ability to claim the shield law protection. And that's the extent of what I'm willing to do this afternoon. All right. Are we clear on that, having had our experience with Miss Savage yesterday?
You may. And, Mr. Sullivan, I'll allow you to interpose--to either confer with your client at your request or to interpose objections as to subject matters you feel go beyond the scope of the Court's order.
If that were the law, it would have disarrayed the shield law entirely. In fact, if you think about it, what it would do is, it would penalize reporters who are willing to take the stand and do their civil duty and testify to matters that are within the four corners of the publication.
A certain police officer whose leaks had hitherto been mostly accurate and offered with corroboration starting calling journalists with the story that the 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.
Questions like, how did you recognize the source's voice, questions like that, your Honor, we submit are not proper under the shield law.
I think the--both sides are entitled to cross-examine Mr. Bosco as to the foundation for his ability to claim the shield law protection. And that's the extent of what I'm willing to do this afternoon.