ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON MATTER. ALL THE PARTIES ARE PRESENT. MR. DOUGLAS, YOU HAD SOMETHING YOU WANTED TO SAY BEFORE WE START?
I WOULD, YOUR HONOR. THANK YOU VERY MUCH. YOUR HONOR, IN ADDITION TO THE COMMENTS AND TO THE OBJECTIONS THAT WE LODGED WITH THE COURT IN CHAMBERS, I WOULD LIKE TO ADD ONE MORE POINT THAT WAS JUST BROUGHT TO OUR ATTENTION RECENTLY, AND THAT IS, YOUR HONOR, OUR REVIEW OF SECTION 1054.5(B) DOES NOT SPECIFICALLY AUTHORIZE A JUDGE TO INSTRUCT THE JURY THAT A DISCOVERY VIOLATION BY DEFENSE COUNSEL, FOR EXAMPLE, MAY BE CONSIDERED BY THE JURY BEARING ON THE CREDIBILITY OF WITNESSES. AND I THINK THAT THERE IS THE DANGER THAT THE LANGUAGE OF THE PROPOSED INSTRUCTION BY THE COURT GIVES SUCH A SUGGESTION, NOR DOES CASE LAW, YOUR HONOR, AUTHORIZE SUCH A JURY INSTRUCTION. INDEED, WE SUBMIT THAT IT WOULD BE COMPLETELY IRRATIONAL TO MAKE A CONNECTION BETWEEN A LAWYER'S DISCOVERY OBLIGATIONS AND THE CREDIBILITY OF AN INDEPENDENT WITNESS. I THINK, YOUR HONOR, THAT THERE IS A DANGER BY SUCH A NEXUS TRIGGERING PROFOUND STATE AND FEDERAL VIOLATIONS, BOTH DUE PROCESS AND OF A SIXTH AMENDMENT NATURE. AND I WOULD URGE THE COURT TO STRIKE THAT CONNECTION IN THE COURT'S RULING. SECONDARILY, YOUR HONOR, I RESPECT -- THOUGH I RESPECTFULLY DISAGREE WITH THE COURT'S FINDING THAT THE VIOLATION TO TURN OVER THE WITNESS STATEMENTS OF MISS GERCHAS WAS INTENTIONAL. I SUGGEST THAT THE -- THAT BEFORE THE COURT CAN PROPERLY MAKE SUCH A RULING, THAT IS, THAT THERE WAS AN INTENTIONAL VIOLATION TO GAIN TACTICAL ADVANTAGE, THAT THE COURT SHOULD MOST PROPERLY CONSIDER THAT ASPECT WITHIN THE CONTEXT OF A SWORN DECLARATION THAT I WOULD LIKE TO HAVE THE OPPORTUNITY TO SUBMIT MYSELF TO THIS COURT SO THAT THE COURT COULD THEN HAVE FACTS UPON WHICH THE COURT MIGHT MAKE SUCH A FINDING IF THE COURT IS RULING THAT A VIOLATION IS BEING IMPOSED AND A SANCTION IS BEING IMPOSED BASED ON THE COURT'S BELIEF THAT THERE WAS AN INTENTIONAL VIOLATION RATHER THAN AN INADVERTENT ACCIDENT AS WE CONTEND.
ALL RIGHT. MR. DOUGLAS, I WILL GIVE YOU LEAVE TO FILE WHATEVER AFFIDAVIT YOU WISH; HOWEVER, THE COURT'S RULING WILL STAND AND THE COURT'S FINDING STANDS.
I HAVE ALSO BEEN INFORMED BY SEVERAL PEOPLE THAT SHE WAS ON -- EXCUSE ME -- I HAVE BEEN INFORMED BY SEVERAL PEOPLE THAT SHE WAS ON GOOD MORNING AMERICA THIS MORNING INDICATING THAT SHE HAD SOME FORTY-HOUR INTERVIEWS WITH MR. SIMPSON. IN LIGHT OF THE FACT THAT MR. SIMPSON IS IN COURT MOST OF THE DAY EVERY DAY, THAT WOULD PRECLUDE HER PHYSICAL CAPABILITY OF HAVING AMASSED THAT NUMBER OF HOURS, UNLESS SHE HAD BEEN RETAINED QUITE A LONG TIME AGO, AND ALL OF THIS FLIES IN THE FACE OF COUNSEL'S DIRECT ASSERTIONS TO THE COURT THAT SHE HAD RECENTLY BEEN RETAINED. IT HAS NOW BEEN EXPOSED TO BE AN ABSOLUTE FALSEHOOD AND I THINK THE ARTICLE AS WELL IN THE L.A. TIMES MAKES THAT CLEAR ALSO, THAT SHE WAS ACTUALLY CONTACTED THROUGH GERALDINE STAHLY IN THE SUMMER, WHICH THEN MAKES IT PHYSICALLY POSSIBLE TO HAVE AMASSED THAT NUMBER OF HOURS. SO I THINK THAT WHAT THE COURT HAS BEFORE IT IS FURTHER IMPEACHMENT OF DEFENSE COUNSEL'S MOST RECENT ASSERTIONS EVEN OF HAVING BEEN RECENTLY RETAINED.
MISS CLARK, I HAVE BEFORE ME A PHOTOCOPY OF A PRESS RELEASE THAT MISS WALKER RELEASED ON -- EXCUSE ME -- DR. WALKER RELEASED JANUARY 26TH, AND THE PARAGRAPH, THE ENDING PARAGRAPH READS AS FOLLOWS:
"AS WE BEGAN TO EXAMINE THE EVIDENCE OVER THE PAST FIVE MONTHS, WHICH INCLUDED SOME FORTY HOURS OF EVALUATION OF O.J. SIMPSON, WE REALIZED THAT THE POTENTIAL FOR LONG-TERM HARM TO BATTERED WOMAN WAS PRESENT IF THE FACT PATTERNS AND SIGNIFICANCE OF BATTERING IN THIS CASE WERE MISINTERPRETED, DISTORTED OR OTHERWISE MISUSED BY EITHER SIDE." SO THE FACT THAT THEY HAVE BEEN EXAMINING THE EVIDENCE FOR THE PAST FIVE MONTHS I THINK IN FACT SUPPORTS YOUR POSITION THAT IN FACT THERE WAS A RELATIONSHIP PRIOR TO JUST LAST WEEK. HOWEVER, HAVING SAID THAT, THE DEFENSE WAS NOT IN A POSTURE TO KNOW WHETHER OR NOT TESTIMONY BY DR. WALKER WOULD BE RELEVANT UNTIL THE COURT RULED ON THE DOMESTIC VIOLENCE ISSUES, AT WHICH POINT THE COURT, HAVING ALLOWED TESTIMONY OF SOME INCIDENTS AND HAVING EXCLUDED TESTIMONY AS TO OTHERS, THEN CLEARLY SET THE ISSUE BEFORE THE JURY. SO I ACCEPT MR. COCHRAN'S REPRESENTATION THAT HE DID NOT FORMALLY MAKE A DETERMINATION WHETHER OR NOT TO CALL DR. WALKER UNTIL AFTER THE COURT'S RULING ON DOMESTIC VIOLENCE, BUT THAT ALSO CAUSES ME TO BELIEVE THAT IF THERE HAS BEEN FIVE MONTHS OF PREPARATION, THAT THERE OUGHT TO BE SOME NOTES AROUND.
AS I INDICATED TO YOU, WE WILL TAKE UP THE ISSUE OF EXPERTS AFTER YOU HAVE HAD THE OPPORTUNITY TO LOOK AT THE LIST THAT WAS GIVEN TO YOU IN CHAMBERS THIS MORNING BY COUNSEL.
AS I RECALL, MR. COCHRAN'S REPRESENTATIONS TO THE COURT, WHEN LAST WE CONFRONTED THIS ISSUE, MY UNDERSTANDING WAS, AND I'M SURE THE TRANSCRIPT WILL ALLAY ANY QUESTIONS WE HAVE ABOUT THIS, WILL RESOLVE THOSE QUESTIONS, I BELIEVE THE REPRESENTATION MADE WAS THAT SHE HAD NOT BEEN CONTACTED UNTIL EARLIER THAT WEEK.
WELL, COUNSEL, WE WILL GO BACK AND LOOK AT THIS AGAIN. WE HAVE ARGUED IT ENOUGH I THINK. THE RECORD IS CLEAR WHAT IS THERE. I WILL HAVE MY STAFF GO BACK THROUGH THE TRANSCRIPT AND SEE WHAT'S THERE, BUT I THINK MY OBSERVATION AS TO WHAT OCCURRED HERE IS PROBABLY ACCURATE.
THE COURT WAS NOT LEFT WITH THE IMPRESSION BY MR. COCHRAN THAT HE HAD JUST RECENTLY CONTACTED HER?
NO. I'M SAYING I ACCEPT MR. COCHRAN'S EXPLANATION THAT A FORMAL DECISION TO CALL HER AS A WITNESS WAS NOT MADE UNTIL AFTER THE COURT RULED ON THE DOMESTIC VIOLENCE ISSUES. I ACCEPT THAT AS BEING A REASONABLE EXPLANATION. ALL RIGHT. BUT THE ISSUE OF WHETHER OR NOT THERE OUGHT TO BE SOME REPORTS BACK THERE, I DON'T KNOW, BUT IT IS AN ISSUE THAT WE WILL ADDRESS LATER, AS I INDICATED TO YOU.
MAY I SAY ONE THING? WHILE YOU ARE ADDRESSING THAT, WOULD YOU ALSO ADDRESS THE FACT THAT DR. WALKER COULD NOT GET INTO THE JAIL WITHOUT YOUR ORDERS AND SHE NEVER SAW MR. SIMPSON UNTIL YOU DID THE ORDER.
THE ORDERS WERE LIKE IN DECEMBER AND AFTER. YOU KNOW WHEN SHE SAW HIM. SHE SAW HIM WHEN HE WAS NOT IN COURT.
ALL RIGHT. IN CHAMBERS, THE RECORD SHOULD REFLECT, THAT COUNSEL DID SUGGEST TO ME THAT I INCLUDE IN MY ADMONITION TO THE JURY, MY INSTRUCTION TO THE JURY, SOME LANGUAGE TO THE EFFECT THAT THE FAILURE OF THE DEFENSE ATTORNEYS TO COMPLY WITH THE LAW OF DISCOVERY IS NOT EVIDENCE OF THE DEFENDANT'S GUILT AND SHOULD NOT BE CONSIDERED AS SUCH. I THINK THAT IS A GOOD SUGGESTION AND I WILL INCLUDE THAT IN THE INSTRUCTION TO THE JURY, BECAUSE THAT IS IN FACT THE STATE OF THE LAW. ALL RIGHT. DEPUTY MAGNERA, LET'S HAVE THE JURORS, PLEASE.
IT WOULD BE COMPLETELY IRRATIONAL TO MAKE A CONNECTION BETWEEN A LAWYER'S DISCOVERY OBLIGATIONS AND THE CREDIBILITY OF AN INDEPENDENT WITNESS.
AS WE BEGAN TO EXAMINE THE EVIDENCE OVER THE PAST FIVE MONTHS, WHICH INCLUDED SOME FORTY HOURS OF EVALUATION OF O.J. SIMPSON...
IT SEEMS TO ME YOU ARE AHEAD ON THIS ONE, MR. COCHRAN.
THE FAILURE OF THE DEFENSE ATTORNEYS TO COMPLY WITH THE LAW OF DISCOVERY IS NOT EVIDENCE OF THE DEFENDANT'S GUILT AND SHOULD NOT BE CONSIDERED AS SUCH.