Back on the record in the Simpson matter. All parties are again present. The jury is not present. All right. This is a--let's have it quiet in the courtroom, please. This is a motion to compel the Defense to produce an audio cassette from one Gretchen Stockdale for inspection and copying. All right. I will hear from the People.
Yes, your Honor. I think that I would like to save the Court some time. The Court has read our moving papers. If I may, I would like to waive my first argument to the Court and respond to Mr. Uelmen's argument, if that is acceptable.
Well, your Honor, what we have here is a tempest in a teapot I think, but there is an important principle at stake and the principle involves the continuous efforts of the Prosecution to push this concept of reciprocal discovery beyond the constitutional limits and turn the Defense into agents or investigators for the Prosecution. What we have here is in the normal course of investigation of the Defense case an interview of a witness by the name of Gretchen Stockdale who informed us last September that on the evening of June 12th she received a telephone message on her message machine from the Defendant, from Mr. Simpson at 7:35 P.M. the message has been reproduced in a word for word transcript in the New York Daily News. The message was simply a call from Mr. Simpson indicating: "Hey, Gretchen, sweetheart, it is Orenthal James who is finally at a place in his life where he is like totally, totally unattached with everybody" and then a laugh. "In any event, I've got a Sunday evening, I'd love--I guess I'm catching a redeye at midnight or something to Chicago, but I will be back Monday night. If you leave me a message, leave it on" and then leaving a telephone number to call back. So of course we knew of this prior to trial. We asked Miss Stockdale for a copy of the message and she gave us a cassette tape on which she had copied the message, but she retained the original telephone mini cassette and we were led to believe that what we had was simply a copy of what she still had on her recording message machine. The--the contemplation of the Defense was actually at one point to call Miss Stockdale as a Defense witness because we regard this of course as exculpatory evidence, that at 7:30 on the night of the homicide Mr. Simpson is calling a lady friend to see if she is available to get together, that certainly murder or mayhem was not on his mind when he made that telephone call. We decided not to use this in our case in chief, so of course there was who obligation to turn any of this material over. The reciprocal discovery law simply requires us to turn over the evidence we intend to present at trial and the statements of the witnesses we intend to call at trial and we did not intend and do not intend to call Gretchen Stockdale as a witness. Now, the Prosecution learned of the existence of Miss Stockdale and learned of the existence of this telephone message before they rested their case and they apparently decided not to use it either. So the request at this point in trial for the production of this tape is--is somewhat of a mystery. No. 1, it certainly doesn't come under the reciprocal discovery law. This is not evidence that we are required to produce under the reciprocal discovery law and I think they concede that in their moving papers. The only authority they rely on to require the production of this tape is Sanchez and Meredith which deal with the Defense's obligation not to conceal inculpatory evidence from the Prosecution. Sanchez involved literally a written confession by the Defendant and a murder checklist, highly incriminating inculpatory evidence that the Defense took possession of and concededly knew when they were taking possession of it that they then had the only copies available, and their retention of that evidence would have deprived the Prosecution of any access to that evidence. Here of course we have evidence that is available. They know of Miss Stockdale's existence. They have available an accurate transcription of the tape. It is too late to call her.
It certainly does not appear relevant as any sort of rebuttal at this point, so it is not even at this point any longer admissible evidence. But even if it were, it is readily available to the Prosecution. So on that basis, we would contend we have no obligation to preserve or to produce this evidence for the Prosecution. If we did, then your Honor would have to say that everything that the Defense has in its possession that we are not going to put on in our case that we think might be of some conceivable use to the Prosecution we should now turn over so we can help strengthen their case, and that is not the point of reciprocal discovery.
KEY QUOTEThank you, Mr. Uelmen. Miss Clark. What I'm most concerned about is the fact that Miss Stockdale has apparently been known to both sides for a considerable period of time, certainly prior to the Prosecution resting, and that what the Defense has in its possession is a copy, not the original.
We did in fact speak to Miss Stockdale in June. I don't know what exactly was known to the Prosecution about her involvement with the Defendant or the tape. I myself only learned of the tape very recently, its existence. Nevertheless--
Well, the problem is that the transcript of the tape was published in the New York Daily News in mid-May of 1995.
Uh-huh, yeah, I am aware of that, your Honor, but the transcript, a cold transcript cannot tell the Prosecution what is the tone of voice, what--how it sounds, where the call is made from, which might be very telling.
Yes, your Honor. No--first of all, the information we have from Miss Stockdale is that they have the original. She turned it over to Mr. Pavelic and has no copy with her any more, so there is to way for the People to get it except through the Defense because they have the only one. And that is what she told our investigator. We have that report attached to our moving papers, so there is no other way for to us get it. Now, furthermore, whether we knew of it or not, the Defense had the obligation to turn this over, and let me explain why, your Honor. I'm very troubled by Defense counsel's characterization of his duties regarding discovery. The discovery obligations that the Defense has with respect to this issue are framed most appropriately under People versus Meredith, not Sanchez, and not prop 115. The Defense is not required to act as our agents, that is clear, and no one argues to the contrary. But when physical evidence comes into the possession of the Defense and thereby alters it either by means of reasons of its location, its discoverability or its condition, they are required to put the People in the same position as if they had not altered it by any of those means. By taking into his possession the tape that Miss Stockdale had, Mr. Pavelic altered the condition by means of its location and made it undiscoverable by the People. By no means of investigation could we ever have obtained that other than the means we are attempting to use through this Court, which is a means which is a discovery motion. It is in their possession. Were there some other means of getting ahold of it, we would have done so, but we have been prevented from doing so. Under People versus Meredith the Defense is now required to put it back into that same position at the very least by giving to it Miss Stockdale. I submit that Mr. Pavelic should come into court and divulge the whereabouts of that tape. Certainly we are not to be put in a position of having a tape rendered undiscoverable by the fact that the Defense has kept it and secreted it. Now counsel has an interesting take on what the obligations of Defense counsel are in saying it is exculpatory therefore I don't have to turn it over. If we accept that proposition, your Honor, then all the Defense has to do to avoid their obligation is say, well, but it is exculpatory, we don't have to turn it over. Well, if that is true, the murderer wrote a letter admitting that he killed her, but you know, we don't have to turn it over because we think it is exculpatory, it shows evidence of mental state or mental defense therefore it is exculpatory. You can see how you can take that sort of thing to its logical extreme at which point they would have no obligation under Meredith at all.
Fundamentally the bottom line here that I have to know before I can rule on this, is this the original or is it a copy? The report from Dana Thompson indicates in a hearsay declaration--in fact, it is a report, it is not even a declaration--that Miss Stockdale indicated to him on June the 12th that the--excuse me.
Excuse me, June 21st, that this--the copy that was given to Mr. Pavelic was the only copy of that tape or the only tape-recording in her possession of that phone call.
Which some phone machines are and some machines aren't, so I have two hearsay statements that are in conflict with each other factually.
If Mr. Uelmen says all they have is a copy that was given to them and you have equal access to the same source, then his side wins. If you are correct that this is the only tape-recording of that conversation, then you are right, it is real evidence and under Meredith you are entitled to it, I agree, but I have a factual dispute here that I can't resolve.
KEY QUOTEBut your Honor, why we would bring a motion before the Court if we had equal access to it? Why bother? We don't need this, we don't need to file more paper. We have killed enough trees from this case. The Court has heard from us enough through oral argument that we don't need to wear out our welcome further. There is no need to bring this motion. We did because we can't get it because the Defense has it.
The point that I'm making is that I have a factual dispute that all I have before me are hearsay statement from you and a representation from counsel that is contradictory. That is what I've got.
I would only add, your Honor, that you have two other things. You know that the availability of this information from Mrs.--from Miss Stockdale was equally available to the Prosecution. They have the record showing the telephone call made on June 12th. They could have gone to Miss Stockdale, just as we did, and we also know that the daily news was apparently able to obtain a tape and record a verbatim transcript of this telephone call, so there must be another copy out there somewhere.
We had--there was an issue that we conferred on and I believe that we have. I believe that we have, your Honor. We conferred about what would be the best method to try and elicit this from her, and I believe we filed an SDT and then we brought the motion before the Court because that was not successful. So I think what we have to do is--
I am informed, your Honor, that we--she told us when we served the SDT on her that she did not have it, so this hearing would take less than ten minutes.
I will be back next Tuesday, your Honor. I believe we have already calendared some hearings for Tuesday afternoon.
Hey, Gretchen, sweetheart, it is Orenthal James who is finally at a place in his life where he is like totally, totally unattached with everybody
What we have here is a tempest in a teapot I think, but there is an important principle at stake and the principle involves the continuous efforts of the Prosecution to push this concept of reciprocal discovery beyond the constitutional limits and turn the Defense into agents or investigators for the Prosecution.
We have killed enough trees from this case. The Court has heard from us enough through oral argument that we don't need to wear out our welcome further. There is no need to bring this motion. We did because we can't get it because the Defense has it.
If Mr. Uelmen says all they have is a copy that was given to them and you have equal access to the same source, then his side wins. If you are correct that this is the only tape-recording of that conversation, then you are right, it is real evidence and under Meredith you are entitled to it.