All right. Let's proceed. All right. Back on the record in the Simpson matter. The Defendant is again present before the court with counsel. The jury is not present. We have two matters to take up. First is the matter of the items that have been subpoenaed and delivered to the Court. I'm about to clear the courtroom. All right. Let's take up the issue of the first dibs on the material that has been subpoenaed and delivered. Mr. Cochran.
Thank you very kindly, your Honor. I'll be brief. The hour is late. The Court I think is somewhat aware of the fact, which we previously indicated, the tapes which were turned over this afternoon are tapes which I went to North Carolina, pursued through the North Carolina Court of Appeal and then asked to be brought here. They are copies of the originals. Pursuant to the order of the North Carolina court, those tapes would be turned over to, as petitioner's counsel, myself. Mr. Simpson paid for the copies of those tapes, paid for the reproduction of those transcripts. The District Attorney's office had nothing to do with this at all. What happened was, according to Messers. Regwan and Schwartz, who have fought vigorously on behalf of their client, they were summoned downtown yesterday by the D.A.'s office and given a subpoena duces tecum according to them, and they came pursuant to that. But these tapes by our previous arrangement, once we won in North Carolina on Monday, I made arrangements in talking with Miss McKinney--because she'll still be coming to California with the originals for this court--to pay for these, to have them brought out because, as the Court is aware, we're going to have--I'm very concerned about security of these things, and we made arrangements to have these brought to us so I could then check the actual transcript that accompanies these tapes and they would be put in a safe place and they would not be leaked.
Mr. Simpson paid for those as he will be paying for the witness when they come to California. In fact, I don't think I have to remind this Court when I asked the Court for further declaration, the Prosecution objected and said you couldn't do this and we were the ones arguing full faith and credit. We were the ones who stood up for this Court. Those are our tapes. They have nothing to do with these tapes. If they want to pursue them, let them pursue them. This is impeachment. And as I just was reminded in the course of Mr. Kelberg as he would run up there with all these transcripts and things and try to impeach Dr. Baden, we get to see them at the very last moment. We will at the appropriate time--if they want to make motions, they will be available to them. But this sneak attack of trying to go and subpoena the lawyers for the tapes, which we have now been given custody of by the North Carolina court, we have paid for, is just not right, your Honor. So what I'm asking is that the Court turn those tapes over to me right now. They would have been turned over to me at 10 o'clock, and by now, I would have had a transcript under seal for this Court. I have a 1054.7--
Well, your Honor, I've made some arrangements because I appreciate the importance of this. And perhaps we would have made our best efforts at any rate, and now we've been waylaid. And the Court understands the plan as I've laid it out to you, and I won't go into that here in open court. But what I indicated to you we want to do, I want to proceed and I want to do that. The Court had an occasion to speak with those two young men about these tapes and the sensitivity therein, and I have since our conversation--
Yes, sir. Messers. Regwan and Schwartz in a kind of in camera proceeding, and I have since talked to them also. And any protective order, I have absolutely no problem with one provision which I have asked them to include therein, and I think that will be done. And I want to be able to proceed with our tapes, our copies of the tapes. The originals will be brought to this Court. The People can do whatever they have to do. But this is not an issue where they have any standing at all. They can subpoena the two lawyers all they want. But the subpoena duces tecum for these copies of these tapes are the fruit of the Defense labor paid for by Mr. Simpson.
He's the one who went to bat to uphold this Court's order. And now that we've victorious, the People want to come in and try to get the fruits of this, and they don't get them yet. At some point, when your Honor determines it appropriate, they will be able to get them. And the Court knows the other provisos that I've asked about that I will not go into now. But that succinctly has stated the issue. I'd like to have my tapes, I'd like to have this over and I'd like to be able to leave as soon as possible.
Does the Court by the way have the order from North Carolina? I gave the clerk the order.
No. She indicated she did not. My recollection is, the original, since it was an out-of-state matter, was signed by the Court with certain findings in the transcript to the state of North Carolina.
Well, your Honor, I'm not sure what the arrangements were between Mr. Schwartz and Mr. Cochran and I'm not concerned about those arrangements. Whatever contractual obligations Mr. Schwartz may have had to Mr. Cochran, they aren't at issue here before this court. What is at issue is an SDT, a court order that the Prosecution drafted and served on Mr. Schwartz. And in response to the Prosecution's SDT, Mr. Schwartz came here to court and delivered those tapes to the court. So that now these tapes are under the court's jurisdiction. This isn't an impeachment issue or a discovery issue or 1054 issue, and that is because these tapes are not in the Defendant's possession. They're in the Court's possession pursuant to our SDT. If Mr. Schwartz or Miss McKinney has failed to somehow respond accordingly or properly to the North Carolina court's order, that's an issue Mr. Cochran should take up in North Carolina or here in L.A. with Mr. Schwartz and Miss McKinney. It's none of our business, just like our SDT is none of Mr. Cochran's business.
But we're not here this afternoon to deprive Mr. Cochran of access to those tapes. We have no objection to Mr. Cochran having access to our tapes after we copy them. And we have someone upstairs right now who is ready, available and willing to begin that copying process right now if the Court would kindly release our tapes to us so that I might leave. There is no provision under the law at this point that would require the Court to surrender our tapes to Mr. Simpson or to the Defense. As the Court may recall, and I alluded to this this morning, back on July 14th when we heard of the existence of these tapes, we came to the Court ex parte and advised the Court of what we had heard and learned about these tapes, and we asked the Court for guidance. We didn't hide the ball. We didn't hide the fact of the existence of these tapes if they existed, and we weren't sure, from the Court and we asked for guidance. The Court directed us to issue an SDT for those tapes. We issued an SDT on Mr. Schwartz. He indicated to the Court that he did not have the tapes. The Court directed us to notify the Defense of the existence of those tapes, and we did that.
We have always operated from a position of fairness in this case like in all the cases we prosecute, and we want to be fair again this afternoon. We'd like the Court to be fair to us. They're our tapes. We won't deprive Mr. Cochran of access to those tapes. I will take them upstairs, I will copy one for him and one for me and I will return those copies delivered to the court today to the court forthwith. Mr. Simpson will get the value of his money and his dollar. The Prosecution will get the value of its SDT. That's a fair approach I think to this situation, and I think we're being awfully kind this afternoon to offer Mr. Cochran a copy of our tapes. And I'm going to go out on the limb on this one, Judge, and I'm going to say that I'm sure the board of supervisors won't mind springing for the cost of these tapes this one time for Mr. Simpson and Mr. Cochran. But this is unnecessary, this fight over these tapes is unnecessary. We don't want to delay this trial. We have a jury that has been sequestered for seven months. We don't want to be in a position where Mr. Fuhrman or some other witness is confronted with these tapes and then we are forced into a position where we need to take days to review 15 hours or 12 to 15 hours of cassette tapes. We'd like to move this case along. I don't know why Mr. Cochran doesn't want us to help him move this case along. The law is on our side on this issue I think, and I would ask that the court order the clerk to turn those tapes over to us. And you may order us to deliver a copy to the Defense. They may wait with us with our representative in the sound lab while those tapes are being copied. One additional issue. It is our SDT to McKinney and Schwartz. They did not oppose that SDT. They did not move to quash the SDT, and Mr. Schwartz told the Court this morning that he delivered the tapes to the Court in response to our SDT and not in response to the North Carolina Court's order. As I said before, the law is on our side on this issue, and we would ask that the Court direct the clerk to give us our tapes forthwith.
We're from the government. We're here to help you. Your Honor, let me make this as clear as possible. These are Mr. Simpson's tapes that he has paid for. These are the copies of the tapes that I arranged for, your Honor.
KEY QUOTEYes. But, your Honor, how many times can I say that since they want to help me so much? These are the tapes I went through. Where were they in North Carolina when the Court ruled against us, when Miss Clark was fighting me, fighting me until North Carolina Court of Appeals--
I object to counsel's characterization to my response. All I did was alert the Court to the legalities of the procedure. That's all I did. I never--
I said where were they. That's all I said, your Honor. And what I'm trying to say, is that these are our tapes. Mr. Schwartz made it very, very abundantly clear, the tapes--arrangements have been made to get the tapes here for us, for Mr. Simpson. The subpoena duces tecum served last night or when they were brought down here was for them, not for our tapes. They cannot do that, the tapes we are entitled to pursuant to North Carolina court order and pursuant to your order. The originals of these tapes I had made arrangements for, will be brought to this court by Miss McKinney and I told the Court when they would be here. That was the arrangement. Since she's our witness, we are the ones who would determine when we're going to call her, Judge, and that's the deal. Not what the People have tried to do by this preemptive strike. It's a real easy issue as Mr. Darden said. I don't have any desire for them not at some point to have copies of these tapes, and we will do that appropriately as we've indicated. But right now, it's premature. These are our tapes, and I'd ask the Court to resolve this matter right now. I'd like the tapes and the transcripts and I'd like to comply as I've indicated to you in 1054.7 with regard to appropriate copies. We want to proceed.
Thank you. Well, this is an issue of what came first, the chicken or the egg, since both sides were pursuing discovery of these particular matters. The Prosecution's effort to serve counsel, local counsel here of Miss McKinney was unsuccessful since counsel agreed to not have possession of the matters sought, the tapes and transcripts. The out-of-state process pursued by the Defense was, in fact, successful, and the Court has a copy of the order entered by the honorable Peter McHugh, the presiding Judge in North Carolina, County of Foresight, directing that Miss McKinney and her counsel turn over these tapes to the counsel for the Defendant, in this matter, Mr. Simpson, and this date--this order was dated August the 8th, 1995, which predates the issuance of the SDT by the Prosecution in this case. The Court also, in issuing the SDT, the out-of-state subpoena duces tecum, made a finding of materiality and the matter was, as in the declaration in support of the SDT, indicated that these matters were for the purposes of impeachment. And at this point in time, I'm going to make a finding that the Defense is under no obligation to disclose contents of these tapes pending further order of the Court. And since these tapes are here in the jurisdiction of the County of Los Angeles pursuant to the efforts of the Defendant, the Defendant is entitled to the fruits of his labors and those of his counsel. However, as I indicated to you previously and to counsel for Miss McKinney, I'm going to enter a protective order regarding duplication, dissemination and publication of the tapes and contents. Further, Mr. Cochran, I'm going to order that your office may not--that only yourself and Mr. Douglas shall have any access to these tapes, other than the staff that you're going to use for the transcription. And those people will have to sign a declaration under penalty of perjury that they agree to the Court's order that they not discuss or otherwise disseminate the contents of those tapes or the transcripts, and that order will be in effect pending further order of the Court. Also, Mr. Schwartz indicated that he wanted to protect the proprietary interest of Miss McKinney and that he would forward to the Court by facsimile a protective order, and I indicated to him my inclination was to sign a reasonable protective order that he wanted to propose to the Court on behalf of his client.
Thank you, your Honor. With regard, your Honor, to this, I would ask that--and I have no problem with that, and I have talked to the Court about the protective order and some specific language where I want one particular portion in there the Court's aware of that Messers. Regwan and Schwartz said that they would agree to that. Without stating anything further on the record, the Court is aware of what I'm talking about. The other thing is, because of--I would like and ask leave of the Court, because they're officers of the Court, that my brethren colleagues and my sister who is also not here, Miss Shawn Snider Chapman, also be allowed to have access, that we will be governed by the same thing. They will be kept in the office under those circumstances.
I would feel more comfortable with the order that I've made because there's two individuals in the same office. I don't want these things traveling around. You're lead counsel. Mr. Douglas is in charge of discovery matters. That's why I selected you too. Given the nature of this issue, I feel that's a reasonable order, and I expect you to abide by that. All right. Mr. Darden, you wanted clarification?
Yes. First of all, I am not aware of the content of this protective order that the Court is apparently about to issue, and I want to make certain that there is nothing in this protective order that is going to preclude us from pursuing recovery of copies of these tapes from Mr. Schwartz or Miss McKinney or by someone--
When I receive the fax copy from counsel, I'll share it with you before I sign it. If you have any objections or additional directions, as I asked counsel to propose since they are most interested in the protective order.
All right. In any event, so that is clear to Mr. Schwartz, the Court isn't going to issue any order that might preclude him from giving us a copy should he decide to do so?
No, I'm not. That copy is here pursuant to the efforts of the Defense. All right. Miss Sager, you had some burning desire to speak with the Court?
Well, your Honor, I have been advised that this morning's session included a discussion about calling my client, Tracie Savage, to the stand early next week, and that raised two issues. The first is a preliminary issue of whether there is anything that Miss Savage can testify to that is relevant and admissible in light of your Honor's order of yesterday, and we think that there is not and there's no reason for her to be called to the stand at all. But in the event that the Court disagrees and decides that there is something--and I should preface that by saying, it's my understanding that there have some kind of discussions, perhaps in chambers or off the record--and I'm not sure to what extent the Prosecution has indicated its opposition to the Defense intention to call Miss Savage and Mr. Bosco to the stand, but I have not been able to confirm that.
Well, let me bring you up to speed. The Court's ruling yesterday was merely to indicate that your client, along with Mr. Bosco, were entitled to claim protection under the reporter shield law and I found insufficient basis to go beyond the shield law and to pierce that shield. However, that does not protect your client from otherwise testifying to other matters that are--that are--that were published by your client. Whether those things are relevant, admissible, that's another issue that the Prosecution has indicated that they are going to strenuously object to and they're going to fight every inch of the way. Those matters have not been determined yet, and I suspect we will have a 402 hearing both with Mr. Bosco and Miss Savage and as well as perhaps other witnesses. And given the pace that we are proceeding with Dr. Baden, it looks to me like we won't see your client until next week.
Well, your Honor, as to the first thing, that is how I understand the order from yesterday. But in making that decision, the order does describe whether or not the information is material to the Defendant's case.
And there's a logical correlation between relevance and materiality. Is that the argument you're about to make?
Yes, your Honor. And that's simply--when referring to the order of yesterday, that's what I was intending to mean; that given that ruling and the Court's findings, that it seems to us that certainly a strong argument could be made there is nothing left that Miss Savage could testify to that would be relevant and admissible, and obviously I know the Prosecution intends to argue that point.
Well, the Defense feels quite the opposite. They feel the fact that Miss Savage made the publication that she did is evidence of something that they wish to present to the jury, and also, they wish to present the facts and circumstances that led Mr. Bosco to comment on that situation last month.
No. I understand that there's a difference of opinion on that subject, your Honor, and at least on this subject, we respectfully disagree with the Defense counsel's position and find ourselves perhaps rarely on the side of the Prosecution. We either seem to be on one side or neither side. But in this instance, we agree with them, that this is not material or relevant evidence.
But I understand that there is a dispute and the Court has not yet made a determination whether either Miss Savage or Mr. Bosco have anything to say in front of the jury that is relevant and admissible. But in the event that the Court is deciding those issues and makes a determination of admissibility that would require Miss Savage to testify, there is a second issue, which is the timing of that. And I've already advised Defense counsel of this, and they suggested that we come down here and do this on the record at the close of the session, which is why I'm here. Miss Savage has long planned a vacation to take her out of state and she has already left Los Angeles and is planning to be gone until the 20th of August, which would make her availability next week very difficult for her. And I have asked that if this issue is to be reached, that it be reached during the week of the 21st when she will be back in town. And I also have planned to be out of the country next week. And given those two factors, have asked the Defense counsel whether this matter can be taken up on the 21st or any time during that week and that both myself and Miss Savage can be made available so that in the event the Judge, your Honor decides that she needs to take the stand, she can be here and I can be here.
That's not clear from the record, your Honor. At least, she was released from this Court, but there's nothing in the transcript that I could find that indicates that that was done subject to recall. But even subject to that, I would ask if the Court determines that that's the case, that her schedule and counsel's schedule be accommodated to the extent that's possible so that this matter not be taken up during a week when both of us had planned to be out of state and out of the country. And I understand that there's some difficulty in scheduling, but would ask to the extent possible that those things be accommodated.
Well, your Honor--thank you. Usually we're on the same side with Miss Sager and it is rare. We're the ones who asked to have her come down this afternoon. We had--as I indicated to you this morning, we had thought if the cross-examination of Dr. Baden ever finishes, we wanted to put these witnesses up next, as I mentioned to you this morning. You know, given 402 hearings, we wanted Kestler, we wanted Bosco, we want Savage next week. We want to finish our case, you know, as soon as possible, and that's why we thought we should resolve this. We'd like to have them next week if at all possible.
Well, I'm adamant. You know, Judge, I'd like to know we are going to finish Dr. Baden tomorrow. If that happens, then I would like to call them on Monday. But it could be Tuesday, it could be Wednesday. But they would be the next ones up. All right. That's what we're intending, your Honor, Kestler and then those two.
Well, we do have ahead of us a rather what looks like an interesting legal battle over the admissibility of this material as well. So perhaps we ought to resolve that first.
Well, we'll be glad to do that, your Honor. But still, again, you know, hope springs eternal. We believe that--we've had a 402 hearing at least with Mr. Bosco, and it seems to me that's not going to be a difficult issue for the Court.
Well, yeah. I mean, the record is clear what we're dealing with. So I think we can proceed with the 402 hearing without the actual presence of the two witnesses and their counsel. But do you want to accommodate Miss Sager as far as the 21st?
In talking with Mr. Sullivan, he may have a similar problem. May we take a moment?
Your Honor, the People's position is very simple. We've already been heard three times on this issue. So has the Defense. The Court has already issued a ruling that this isn't material for discovery purposes. Materiality for discovery purposes is a lower threshold than the issue of relevance for admissibility in court. There is no way that the Court can issue any other ruling based upon the rulings that the Court has already done other than finding--
That's why, for the purposes of scheduling, your Honor, we would like this matter also to be resolved expeditiously, and that means that we would like it to be resolved, in all due respect to the Court, right now. We don't see any reason why it can't be resolved right now. This is a very simple straightforward issue and I don't think anyone needs to be heard--
Your Honor, may it please the Court, basically I'm in a slightly different position than Miss Sager because her client now is not here. My problem unfortunately is, my client is here every day and could be called literally almost at a moment's notice. At some point, I have to return to Washington, D.C. what I find myself in need of is some degree of certainty. If we could take up these foundational issues, determine whether Mr. Bosco's testimony is indeed necessary and then if it would be possible to get some kind of reasonable notice if it turned out that he was going to have to, in fact, go on, then I could be prepared to be back here. As delightful as it has been, at some point, I do have to go back to my office in Washington. I'm only supposed to be here for a week originally. I've extended it because of these proceedings obviously, but it would helpful to know, you know, what the deal is.
I've asked Mr.--in trying to accommodate everyone, I've asked Mr. Douglas to see if he can reach Dean Uelmen. What I would propose, that the Court might consider resolving this matter and granting our motion to call these witnesses tomorrow, there will be no holding of one's breath and we can then, if you--if the motion is granted, we'll then agree perhaps to call them on the 21st. Also, it'll throw our case off, but we'll try to rearrange if that helps out.
Well, no. No. I meant at the conclusion. No, we don't want to take Dr. Baden off. I thought at the end of the day--I was being optimistic that Mr. Kelberg might finish fairly earlier. If we can get an estimate on that.
I can't guarantee that I would be done. I would hope to, but it depends on how responsive Dr. Baden is to the questions.
Your Honor, I'm advised that Dean Uelmen can be here Monday afternoon. What I would ask is--let's assume in the best case scenario, Dr. Baden is finished by Monday afternoon. These are the next witnesses we intended to call. Mr. Bosco--and I think Mr. Sullivan is indicating, at least regarding Mr. Bosco, that might be--perhaps we can take that up on Monday and maybe Miss Sager could work something out. We can perhaps proceed in Miss Savage's absence if you have someone here perhaps and resolve it on Monday afternoon. That would be easier and then we can work on the testimony thereafter if we're successful.
Your Honor, could we inquire what the nature of the hearing will be? Are we going to actually have testimony? If so, what would it be?
So the legal argument is going to be, we're going to argue the issue of materiality again?
We understand, your Honor. And so I'm saying Monday afternoon might work out better.
Could the Court perhaps just frame the argument so we know what we're going to be addressing? Is the argument--
No. Well, counsel we've discussed--as you've said, we've discussed this three times before. They want to put on the videotapes of Tracie Savage making these reports. They want to put on Mr. Bosco to say, yes, the same misinformation came to him. They want to use that as evidence in support of their evidence tampering, their rush to judgment theory and all the other arguments--
I understand, your Honor. I just want to know what we have to be confronted with because we might like to brief it or we might like to argue at another time.
Yes, indeed, your Honor. I just have a commitment at the end of the week in Oklahoma in another case, Thursday and Friday.
All right. Monday it is. Monday as far as Bosco. We will address both issues since they're related. All right. What time do you want to do this Monday? First thing Monday morning? Monday at 1:30?
Monday at 1:30. I think--Dean Uelmen cannot be here until Monday afternoon. Monday at 1:30?
I understand that, counsel. We have Mr. Sullivan. We'll take up the issues regarding Mr. Bosco, which is a related issue. It's all part of the same thing.
And if the decision is made that Miss Savage has to take the stand, that will happen sometime after August 20th?
All right. We'll stand in recess until tomorrow morning, 9 o'clock. Thank you, counsel.
Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
Paul M. Kistler, Esquire Matthew H. Swartz, Esquire Ron Regwan, Esquire Kelli Sager, Esquire Michael Sullivan, Esquire
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I N D E X
Index for volume 203 pages 40972 - 41240
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Day date session page vol.
Thursday August 10, 1995 A.M. 40972 203 P.M. 41077 203
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Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX OF WITNESSES
DEFENSE witnesses direct cross redirect recross vol.
Baden, Michael 40979s 203 (Resumed) 41081s 41111bk
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ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
Baden, Michael 40979s 203 (Resumed) 41081s 41111bk
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
579 - Curriculum vitae 41119 203 of Dr. Michael Baden
580 - 1-page document 41156 203 described as the notes of Dr. Michael Baden
581-A thru 581-G - 41186 203 photographs of sink area
The Defendant is entitled to the fruits of his labors and those of his counsel.
I'm going to go out on the limb on this one, Judge, and I'm going to say that I'm sure the board of supervisors won't mind springing for the cost of these tapes this one time for Mr. Simpson and Mr. Cochran.
We're from the government. We're here to help you.
I'd like my tapes.
You are being awfully optimistic how long it takes to transcribe tapes.