BACK ON THE RECORD IN THE SIMPSON MATTER. MR. SIMPSON IS AGAIN PRESENT BEFORE THE COURT WITH HIS COUNSEL, MR. SHAPIRO, MR. COCHRAN, MR. BAILEY, MR. UELMEN, THE PEOPLE REPRESENTED BY MS. BODIN AND MR. DARDEN TODAY. AND WE HAVE ON A FIRST -- AS OUR FIRST MATTER A MOTION TO QUASH A SUBPOENA DUCES TECUM, AND THAT MOTION WAS FILED BY REPRESENTATIVES OF THE SOJOURN PROGRAM. MS. WITHEY.
PAMELA WITHEY APPEARING FOR SOJOURN. YOUR HONOR, I TRUST THE COURT REVIEWED THE PAPERS AND ALSO THE DISTRICT ATTORNEY'S RESPONSE TO THOSE PAPERS AND --
YOUR HONOR HAS HAD THE OPPORTUNITY TO REVIEW THE PAPERS AND THE DISTRICT ATTORNEY DID PREPARE A RESPONSE TO THOSE PAPERS WHICH SETS FORTH THE ISSUES THAT WE WOULD LIKE TO HAVE ADDRESSED. SOJOURN WOULD LIKE TO HAVE CERTAIN SPECIFIC FINDINGS MADE; AND IF THOSE FINDINGS ARE MADE, THEN WE FEEL COMFORTABLE WITH PROVIDING WHATEVER DOCUMENTS ARE LEGALLY ALLOWED TO BE PRODUCED. OUR FIRST CONCERN WAS THAT THE TRUSTEE, LOUIS BROWN, BE AUTHORIZED TO INSTRUCT A COUNSELOR OF THE PROGRAM TO PERMIT DISCLOSURE. SOJOURN IS CONCERNED THAT STRICT CONFIDENTIALITY MAY BE MAINTAINED AS SET FORTH IN THE EVIDENCE CODE, AND WE WANT TO MAKE SURE THAT ANY CONFIDENTIAL COMMUNICATIONS NOT BE COMPELLED. HOWEVER, THE CODE SECTION VERY SPECIFICALLY SETS FORTH CERTAIN CONDITIONS UPON WHICH DISCLOSURE MAY BE COMPELLED BY THE COURT. THE SUBPOENA THAT WAS RECEIVED BY THE PROJECT DIRECTOR HAD ATTACHED TO IT A PURPORTED WAIVER EXECUTED BY LOUIS BROWN. SO ONE OF OUR FIRST ISSUES WAS WHETHER OR NOT THE TRUSTEE CAN INSTRUCT THE COUNSELOR OF THE PROGRAM TO PERMIT DISCLOSURE AS IS SET FORTH IN THE EVIDENCE CODE. THE SECOND ISSUE IS WHETHER OR NOT THE WAIVER ITSELF, WHICH WAS ATTACHED, IS SUFFICIENT. THERE WAS AN INITIAL WAIVER THAT WAS ATTACHED TO THE SUBPOENA AND THEN SUBSEQUENTLY A DIFFERENT WAIVER WAS PROVIDED BY THE DISTRICT ATTORNEY'S OFFICE WHICH WAS MORE SPECIFIC AND WHICH ADDRESSES ITSELF SPECIFICALLY TO SOJOURN, WHICH I THINK IS BETTER. AND THIRDLY, IF THE COURT FINDS THAT THE TRUSTEE IS AUTHORIZED TO PERMIT -- IS AUTHORIZED TO INSTRUCT THE COUNSELOR TO PERMIT DISCLOSURE AND THE WAIVER IS ADEQUATE TO PERMIT DISCLOSURE, WE WOULD LIKE A FINDING UNDER THE EVIDENCE CODE OF 1037.5, SUBSECTION (C) THAT THE COUNSELOR AND THE PROGRAM MAY NOT CLAIM THE PRIVILEGE. THERE IS, I THINK, I SUBMIT, SOME AMBIGUITY IN THAT PARTICULAR STATUTE. I THINK MS. BODIN AND I AGREE THAT THERE IS TWO PARTS TO THAT SECTION. ONE PART SAYS THAT IF A VICTIM IS ALLEGED TO BE DECEASED, THE COURT MAY HAVE AN IN CAMERA HEARING TO DETERMINE IF THE DISCLOSURE CAN BE COMPELLED. IN ANOTHER SECTION, IT SAYS THAT IF THE HOLDER OF THE PRIVILEGE IS DECEASED, THEN THE COUNSELOR MAY NOT CLAIM THE PRIVILEGE. SO WE'RE WANTING YOUR HONOR TO MAKE A FINDING THAT THE DOCUMENTS ATTACHED TO THE SUBPOENA ARE APPROPRIATE AND THAT THE PRIVILEGE CANNOT BE CLAIMED BY THE COUNSELOR IF THAT IS THE CASE. IF THAT IS THE CASE, THEN THE -- THEN DISCLOSURE MAY BE MADE. IN ADDITION TO THAT, WE'RE ASKING FOR A MODIFICATION OF ONE OF THE REQUESTS BECAUSE OF THE DEGREE TO WHICH IT WOULD REQUIRE AN EXTENSIVE SEARCH BY SOJOURN, WHICH IS A NONPROFIT ORGANIZATION AND DOES NOT HAVE THE RESOURCES.
ITEM NO. 1 OF THE SUBPOENA ASKS FOR -- REQUESTS DOCUMENTS FROM MARCH 1ST, 1977, WHICH IS WHEN SOJOURN BEGAN, TO JUNE 12, 1994. AND THERE ARE APPROXIMATELY 3,000 CALLS A YEAR THAT COME INTO THIS SHELTER. AND SO, THEREFORE, IF YOU DO THE ARITHMETIC, APPROXIMATELY 54,000 DOCUMENTS. NOW, THAT'S WHAT WAS REQUESTED. I DON'T KNOW IF THEY WANT TO MODIFY THIS. I HAD A CONVERSATION WITH MR. DARDEN, WHO INDICATED THEY I BELIEVE DID NOT HAVE ANY OBJECTION TO PROVIDING A REASONABLE COST TO AN EMPLOYEE OF SOJOURN -- AND INDEED, IT HAS TO BE AN EMPLOYEE OF SOJOURN BECAUSE WE CAN'T HAVE SOMEONE FROM OUTSIDE OF SOJOURN SEARCHING THROUGH PRIVILEGED DOCUMENTS OBVIOUSLY -- BUT EMPLOYEE OF SOJOURN TO GO THROUGH THE RECORDS AND AT A REASONABLE HOURLY RATE -- TYPICAL RATE FOR THE ACTUAL EMPLOYEES THERE IS ABOUT $10 AN HOUR -- TO GO THROUGH AND SEARCH THE DOCUMENTS FOR WHAT IS REQUESTED. AND WE WOULD BE -- WE WOULD DO THAT IN COMPLIANCE WITH A COURT ORDER, ASSUMING THAT THERE WERE CERTAIN FINDINGS WHICH YOUR HONOR MADE WITH REGARD TO THE PRIVILEGE INITIALLY. THERE'S ALSO A REQUEST TO HAVE, IF YOUR HONOR COMPELS DISCLOSURE, A REQUEST FOR AN IN CAMERA HEARING WITH REGARD TO THE NATURE OF THE DOCUMENTS THAT ARE --
-- AVAILABLE. AND I DO NOT WANT TO -- AND I KNOW YOU CAN APPRECIATE WHY I DO NOT WANT TO COMMENT UPON WHAT ARE IN THOSE DOCUMENTS AT THIS TIME, EITHER BEFORE THE JURY IS SEQUESTERED OR BEFORE ANY IN CAMERA HEARING. SO THAT IS OUR POSITION.
GOOD MORNING. LYDIA BODIN REPRESENTING THE PEOPLE. COUNSEL HAS SPECIFICALLY ASKED THE COURT TO MAKE FINDINGS WITH REGARD TO WHETHER OR NOT THE PRIVILEGE CAN BE CLAIMED BY SOJOURN; AND I AM GOING TO ASK THE COURT TO MAKE THE FINDING THAT SOJOURN IS NOT WHO IS THE PRIVILEGE HOLDER. UNDER EVIDENCE CODE SECTION 1037.5, IT SPECIFICALLY STATES THAT A DOMESTIC VIOLENCE COUNSELOR CANNOT CLAIM THE PRIVILEGE IF NO HOLDER IS IN EXISTENCE. HOLDER IS FURTHER DEFINED IN EVIDENCE CODE SECTION 1037.5 AS EITHER BEING, ONE, THE VICTIM, OR TWO, THE GUARDIAN OR CONSERVATOR. NEITHER ONE OF THOSE ARE IN EXISTENCE. OBVIOUSLY THE VICTIM IS DECEASED AND THERE IS NO GUARDIAN OR CONSERVATOR. SECONDLY, EVEN ASSUMING THAT THE COURT IS ENTERTAINING THE IDEA THAT SOJOURN CAN CLAIM THE PRIVILEGE, I BELIEVE THAT THE WAIVER THAT HAS BEEN GIVEN BY THE EXECUTOR OF THE ESTATE, LOUIS BROWN, IS SUFFICIENT TO OVERCOME ANY CLAIM OF PRIVILEGE. THE -- IT'S INTERESTING BECAUSE A REPRESENTATIVE OF THE ESTATE IS NOT ONE OF THE HOLDERS OF THE PRIVILEGE AND ARGUABLY COULD NOT THEN WAIVE. BUT IF THE COURT RECALLS THAT SECTION, I THINK THE COURT CAN MAKE AN ANALOGY TO THE PRECEDING PRIVILEGE, WHICH IS THE SEXUAL ASSAULT COUNSELOR PRIVILEGE, WHICH INTERESTINGLY ENOUGH, THE DOMESTIC VIOLENCE COUNSELOR PRIVILEGE REFERENCES INTO, ALTHOUGH IT IS SILENT WITH REGARD TO WHETHER OR NOT AN EXECUTOR CAN BE A PRIVILEGE HOLDER AS TO THE DOMESTIC VIOLENCE COUNSELOR PRIVILEGE.
THEN DON'T THE RULES OF STATUTORY CONSTRUCTION REQUIRE THAT I ASSUME THAT SINCE THE LEGISLATURE MENTIONED OR ACKNOWLEDGED THE EXISTENCE OF A SCHEME AND BY ITS ABSENCE IN THIS STATUTE CHOSE NOT TO INCLUDE THAT? I MEAN DON'T I HAVE A ASSUME THAT UNDER THE CODE?
THAT IS A CONFUSING STATUTE. COUNSEL ALLUDED TO THAT. I THINK THERE'S SOME CONFUSION BETWEEN 1937.2, WHICH TALKS ABOUT THE PROCEDURE, THE IN CAMERA PROCEDURE, THAT THE COURT MAY FOLLOW ITS OBVIOUS DISCRETION. THE LANGUAGE OF THE STATUTE IS "MAY". IT'S NOT "SHALL FOLLOW THIS PROCEDURE." IT'S INTERESTING BECAUSE IN THIS SECTION, IT TALKS ABOUT THE IN CAMERA PROCEEDING. IT CITES NOT THE PROCEDURE FOR THE SEXUAL ASSAULT PRIVILEGE. AND THAT PROCEDURE REQUIRES A BALANCING TEST WHERE YOU TAKE THE PROBATIVE VALUE OF THE INFORMATION CONTAINED IN THE RECORDS AND BALANCE THEM AGAINST THE EFFECT OF THE TREATMENT. THAT ASSUMES A LIVING VICTIM. WE DON'T HAVE A LIVING VICTIM HERE. IT IS CONFUSING, AND I THINK COUNSEL IS CORRECT IN REQUESTING THE COURT TO MAKE CERTAIN FINDINGS. BUT I THINK THAT THE COURT WOULD NOT HAVE TO GET TO MY SECOND AND THIRD ARGUMENTS I THINK MERELY BY THE TERMS OF THE STATUTE. THEY CAN'T CLAIM THE PRIVILEGE AND, THEREFORE, THEY SHOULD TURN OVER THE RECORDS.
ALL RIGHT. MS. BODIN, HOW DO WE HANDLE THE PRACTICAL OBJECTION THAT WE'RE DEALING WITH, POTENTIALLY HAVING TO SORT THROUGH BETWEEN 50- AND 60,000 DOCUMENTS AND AN EMPLOYEE OF SOJOURN IS GOING TO HAVE TO DO THIS, AND WHO IS GOING TO PAY FOR IT.
INTERESTINGLY ENOUGH, A BOARD MEMBER OF SOJOURN HAS PUBLICLY MADE A STATEMENT WITH REGARD TO WHEN NICOLE BROWN SIMPSON MADE A CONTACT WITH THE SOJOURN SHELTER NEARING THAT TIME TO RIGHT -- I BELIEVE IT WAS THE LATE 1980'S. I THINK THAT THAT WOULD CERTAINLY BE A BEGINNING POINT FOR SOJOURN. THAT'S ALREADY BEEN PUBLICLY IDENTIFIED. SO THEY HAVE A PLACE TO BEGIN.
WE DID. AND WE HAVE AGREED IN OUR DISCUSSIONS WITH COUNSEL TO PAY BASICALLY A MINIMUM WAGE FOR SOMEBODY TO GO THROUGH THOSE RECORDS AND LOOK IF THE COURT DEEMS THAT NECESSARY.
WELL, THEY'RE ASKING FOR 10 BUCKS AN HOUR, WHICH IS MORE THAN TWICE THE MINIMUM WAGE AS IT STANDS TODAY.
IT SEEMS TO ME THAT A RECORD CHECK IS A PRETTY SIMPLE THING. I THINK IT SIMPLY COULD BE DESCRIBED TO THE PERSON LOOKING. I THINK THAT COULD BE ACCOMPLISHED FAIRLY RAPIDLY. I'M FAMILIAR WITH WHAT LOGS LOOK LIKE AND DOMESTIC VIOLENCE LOGS LOOK LIKE IN SHELTERS, AND IT'S JUST MERELY LOOKING FOR A NAME. THAT'S ALL IT IS. AND I DON'T THINK IT'S THAT MUCH WORK. I THINK IT'S TIME CONSUMING, BUT IT'S NOT DIFFICULT WORK AND SOMETHING THAT WARRANTS $10 AN HOUR.
YOUR HONOR, WHAT I DID, I ASKED SOJOURN WHAT THEY PAY, FOR EXAMPLE, A RECEPTIONIST, CLERK OR CLERICAL PEOPLE. WE ARE NOT ARGUING OVER THAT, BUT THAT IS WHAT THEY DO PAY THEM. SO I THOUGHT WE WOULD ASK FOR WHAT THEY ORDINARILY PAY THEIR PAID EMPLOYEES. THERE ARE MANY NON-PAID EMPLOYEES, BUT PAID EMPLOYEES.
YOUR HONOR, I JUST SPOKE TO MR. DARDEN. WE WOULD BE WILLING TO GO AS HIGH AS $7 OR $8.00. IT'S JUST THAT WE HAVE LIMITED RESOURCES.
NO, YOUR HONOR. I REQUEST THAT YOU MAKE THE SPECIFIC FINDINGS THAT ARE SUPPORTED IN OUR PAPERS.
AT THIS TIME THEN, THE COURT WILL MAKE A FINDING THAT THE TRUSTEE OF THE ESTATE OF NICOLE BROWN SIMPSON, LOUIS BROWN, IS AUTHORIZED TO INSTRUCT THE COUNSELOR IN THE PROGRAM TO PERMIT DISCLOSURE. THE COURT FURTHER MAKES A FINDING THAT THE WAIVER THAT IS ATTACHED TO THE ORIGINAL SUBPOENA DUCES TECUM, WHICH IS EXECUTED BY LOUIS BROWN, IS A WAIVER FOR THE PURPOSES OF DISCLOSING THE INFORMATION SOUGHT BY THE DISTRICT ATTORNEY'S OFFICE, AND THE COURT FINDS THAT THE COUNSELOR AND PROGRAM MAY NOT CLAIM THE PRIVILEGE UNDER THE MANNER IN WHICH THE STATUTE IS INTERPRETED AS ARGUED BY THE PEOPLE. THE COURT WILL FURTHER ORDER THAT ANY DOCUMENTS PRODUCED BY THE SOJOURN PROGRAM WILL BE TRANSMITTED UNDER SEAL TO THIS COURT FOR THE COURT'S IN CAMERA REVIEW AND THAT THE DISTRICT ATTORNEY'S OFFICE REIMBURSE THE SOJOURN PROGRAM FOR THE COST AND EXPENSES OF THE DOCUMENT SEARCH AND PRODUCTION, NOT INCLUDING COUNSEL FEES.
COUNSEL, WHAT I WOULD PROPOSE WE DO THEN IS CALENDAR THE MATTER FOR A PROGRESS REPORT SOMETIME SOON. MS. WITHEY, DO YOU HAVE ANY GUESS AS TO HOW LONG THIS IS GOING TO TAKE?
WELL, YOUR HONOR, MY CLIENTS ARE IN THE BUILDING PURSUANT TO THE SUBPOENA. THEY HAVE BROUGHT CERTAIN DOCUMENTS WITH THEM. THERE ARE OTHER DOCUMENTS OF COURSE THEY NEED TO NOW SEARCH FOR. AND SO THOSE ARE AVAILABLE HERE TODAY. THE ADDITIONAL DOCUMENTS PURSUANT TO THE SEARCH THAT WE'VE DISCUSSED COULD BE -- I DON'T KNOW WHAT THE TIME FRAME WOULD BE FOR THEM TO BE ABLE TO GO THROUGH AND SEARCH IT. I WOULD THINK 10 DAYS, WOULD YOU SAY? I DON'T KNOW WHAT YOUR TIME FRAME IS, BUT SAY 15 DAYS.
OKAY. GIVE THEM 15 DAYS TO SEARCH FOR THE DOCUMENTS, THE ADDITIONAL DOCUMENTS. WE DO HAVE SOME INITIAL DOCUMENTS WHICH YOUR HONOR CAN REVIEW IN CAMERA TODAY.
THEY'RE ON ANOTHER FLOOR OF THE DISTRICT ATTORNEY'S OFFICE. I WILL HAVE TO GO GET THEM AND BRING THEM BACK HERE. I CAN DO THAT. MR. DARDEN, IF YOU WOULD.
HE'S MAKING ARRANGEMENTS TO HAVE THE WITNESSES BROUGHT UP. I WOULD LIKE TO SPEAK TO THEM BRIEFLY BEFORE SO I CAN ADVISE THEM OF YOUR HONOR'S RULING AND THE NATURE OF THE SITUATION.
THEN IF YOUR CLIENTS ARE HERE, THEN IT WOULD BE MY INCLINATION TO CONDUCT THE IN CAMERA REVIEW THIS MORNING.
ANY OTHER MISCELLANEOUS MATTERS WE NEED TO TAKE UP BEFORE WE -- BEFORE THE COURT ADJOURNS FOR THE IN CAMERA REVIEW?
YES. MY CLIENTS ARE PRESENT WITH THE DOCUMENTS, AND WE REQUEST AN IN CAMERA HEARING AS WE DISCUSSED.
ALL RIGHT. THEN, COUNSEL, WE WILL THEN STAND IN RECESS. THE COURT WILL INVITE COUNSEL FOR THE PROGRAM, THE TWO PROGRAM REPRESENTATIVES -- AND COULD WE HAVE THEM PLEASE STAND AND GIVE THEIR NAMES FOR THE RECORD, PLEASE.
COUNSEL, THEN WE'LL STAND IN RECESS. AND, COUNSEL, WOULD YOU BRING YOU AND YOUR CLIENTS AND THEIR MATERIALS INTO CHAMBERS, PLEASE.
ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON MATTER. MR. SIMPSON IS AGAIN PRESENT WITH COUNSEL, MR. SHAPIRO, MR. COCHRAN, MR. BAILEY, MR. UELMEN, PEOPLE REPRESENTED BY MISS BODIN, MR. DARDEN. ALSO PRESENT IS MS. WITHEY ON BEHALF OF SOJOURN. COUNSEL, THE COURT HAS CONDUCTED AN IN CAMERA REVIEW OF TWO DOCUMENTS BROUGHT TO COURT BY THE SOJOURN PROGRAM. I HAVE REVIEWED BOTH DOCUMENTS, AND I FIND THEM TO BE MATERIAL TO THE ISSUES AND FACTS REGARDING THIS CASE; AND I'M GOING TO ORDER THEIR PRODUCTION IN COURT. COUNSEL HAS COMPLIED BY GIVING THE COURT A PHOTOCOPY OF BOTH DOCUMENTS AND EXTENDING TO THE COURT THE ORIGINALS OF THOSE DOCUMENTS. MS. WITHEY, I'M GOING TO ORDER THAT YOU, AS COUNSEL FOR THE PROGRAM, MAINTAIN COPY -- PHYSICAL CUSTODY OF THE ORIGINALS. I'M GOING TO DISSEMINATE ONE PHOTOCOPY TO EACH COUNSEL, COUNSEL FOR EACH SIDE, WITH THE FOLLOWING ORDER: THIS IS NOT TO BE PHOTOCOPIED, IT IS NOT TO BE DISSEMINATED IN ANY WAY AND IS NOT TO BE DISCUSSED PUBLICLY EXCEPT FOR ON THE RECORD HERE IN COURT SHOULD THAT BECOME NECESSARY. SOJOURN IS ALSO ORDERED NOT TO DISSEMINATE ANY COPIES OF THIS OR NOT TO PUBLICLY DISCUSS THE CONTENTS OF THIS DOCUMENT UNTIL FURTHER ORDER OF THE COURT. ALL RIGHT. ANY QUESTIONS AS TO THAT ISSUE? ALL RIGHT. LET ME SEE MS. BODIN AND MR. SHAPIRO.
ALL RIGHT. MS. WITHEY, IS THERE ANYTHING ELSE YOU WANT TO DISCUSS WITH THE COURT? OTHERWISE, WE WILL STAND IN RECESS AS TO YOUR MATTERS.
I DO NOT WANT TO COMMENT UPON WHAT ARE IN THOSE DOCUMENTS AT THIS TIME, EITHER BEFORE THE JURY IS SEQUESTERED OR BEFORE ANY IN CAMERA HEARING.
UNDER EVIDENCE CODE SECTION 1037.5, IT SPECIFICALLY STATES THAT A DOMESTIC VIOLENCE COUNSELOR CANNOT CLAIM THE PRIVILEGE IF NO HOLDER IS IN EXISTENCE. HOLDER IS FURTHER DEFINED IN EVIDENCE CODE SECTION 1037.5 AS EITHER BEING, ONE, THE VICTIM, OR TWO, THE GUARDIAN OR CONSERVATOR. NEITHER ONE OF THOSE ARE IN EXISTENCE.
I HAVE REVIEWED BOTH DOCUMENTS, AND I FIND THEM TO BE MATERIAL TO THE ISSUES AND FACTS REGARDING THIS CASE; AND I'M GOING TO ORDER THEIR PRODUCTION IN COURT.
THIS IS NOT TO BE PHOTOCOPIED, IT IS NOT TO BE DISSEMINATED IN ANY WAY AND IS NOT TO BE DISCUSSED PUBLICLY EXCEPT FOR ON THE RECORD HERE IN COURT SHOULD THAT BECOME NECESSARY.