All right. Back on the record in the Simpson matter. Defendant is again present before the Court. Mr. Darden, you had something you wanted to bring to the Court's attention?
Mr. Pease, who is Miss Carol Connor's attorney, is here. He would like to address the Court if he might.
Good afternoon, your Honor. As Mr. Cochran said, I represent the interest of Carol Connor, who has been called as a Defense witness. Yesterday, I got a very disturbing call from her. She was very upset. She was nearly in tears. She said Gloria Allred had called her insisting that she call the Prosecution team. She had a number, a specific number to give her. My client said, "You must speak to my attorney." I have no objections to her speaking to the Prosecution. They could have called me. I would have made her available. The gist of the call was, "You mean you're not going to speak to the Prosecution?" She said, "I never said that. She kept putting words in my mouth." They got into an argument. Carol Connor hung up the phone. She immediately called me and told me what had happened. I said, "Did you tell them you were represented by counsel? Did you tell Gloria Allred you were represented by counsel?" She said, "Well, yes, I told her, and she insisted that I call the Prosecution team and to take this particular number." So--incidentally, last night, Miss Connor went to a function, a fund raiser at the Beverly Hills Hotel, and Gloria Allred was there. Gloria came up to Carol Connor and began the same tactic she said.
Yes. In fact, Carol Connor told her, "My attorney is Ed Pease. He's in the book." Miss Connor said, "I'm not refusing to talk to them, but talk to my attorney. I just don't know the law. I don't know what my rights are. Please speak to my attorney." Then Gloria Allred told her, "I can set it up for tonight or tomorrow morning at 9:00 A.M." And that was the most disturbing part of this whole situation. I felt it was necessary to bring this to the Court's attention. It sounds as if--and it sounded to my client as if Miss Allred had the ability and the phone number to set up an appointment at--on Sunday evening or on Monday morning at 9 o'clock. She called me back again upset at 11 o'clock. I had spoke to her three more times between 11:00 and midnight. She told me the entire story of this what I believe to be a breach of my ability to properly counsel my client. My client is in a very sensitive position here coming as an early Defense witness, and she wants to tell the truth and she wants to be a credible witness; and suddenly she's being intimidated by someone who appears to me to have some kind of arrangement or contact with the Prosecution. It's absolutely unbelievable to me that the Prosecution would have that as a tactic. But based on the fact that she was giving her--that Gloria was giving Carol Connor a phone number and specific times, "Tonight or tomorrow at 9:00 A.M.," it seemed to me that she had the ability to make the contact or to call. I believe that by asking Carol to--by giving Carol Connor the number and asking Carol to call the Defense--excuse me--call the Prosecution team, that she was circumventing my rights as an attorney to counsel her properly and to be there; and also, she's circumventing the rights of the Defense to know who's speaking to their witness and to be properly notified. And like I said before, there was no reason in the world why Carol Connor would not be available equally to the Defense or to the Prosecution in this case.
You know, we were notified Friday that Gloria Allred was a friend to Miss Connor. And one of the problems we've encountered in terms of contacting Defense witnesses is that they don't believe we are who we claim we are, particularly when we try to contact them over the telephone. And so it's my understanding that we did ask Gloria Allred to call Miss Connor and to advise her that we would be calling and it would be a member of the D.A.'s office. As far as any information or knowledge that Miss Connor was represented--
We're not using Gloria Allred as an agent of the Prosecution. Gloria Allred and Miss Connor are friends. At any event, we called Miss Connor and we left a message for Miss Connor. At no time have we been advised she was represented by counsel, that is not until this morning.
Well, your Honor, in view of the--Mr. Darden's revelation here is what I suspected. I believe that Miss Allred has circumvented both professional courtesy and may be in violation of some ethical violation on her part, which is not for me to determine, but it appears that it also may be a violation by the Prosecution themselves because if they're asking an agent of theirs to make a call or that they know she's making a call and they're circumventing my rights as an attorney and also the Defense rights to know about the situation, that there should be--there should be something--I would leave that to the Court's discretion. But first, I thought she needed to apologize to me for interfering between my client and myself. But after I see the full extent and hearing the whole situation that's happened, I believe that it may be that there would be some admonition that the Court might deal with. It sounds unbelievable to me that they would--the Prosecution would use a friend of Miss Connor's to put on a legal hat and--call under the guise of a friend and put on a legal hat to get her to speak to the Prosecution.
All right. Mr. Pease, do you acknowledge that your client has a personal prior relationship with Miss Allred?
That's correct. And I would consider them friends. And what's even more important in this case is, my client is a very strong woman's activist. She is a business woman, a song writer, an Academy Award nominated song writer for the theme to Rocky. She runs her own business, has an accountant and she is a single woman, she has an attorney, who is myself. She's very much in tune with Miss Allred. But under these circumstances, it broke down yesterday, and I think that Miss Allred used her friendship and put on the attorney cap and was unduly influencing my client.
I certainly hope that wasn't the case. I hope that Miss Allred did not somehow abuse her position as an attorney. As I indicated before, she had no idea that Miss Connor had an attorney. We were given her phone number by the Defense in open court as I recall and invited to call Miss Connor. But in any event, I would apologize to Miss Connor if she feels somehow the Prosecution has acted in some way that she finds offensive. I do apologize. We certainly weren't trying to abuse our position. And when I meet Miss Connor, I will apologize to her personally on behalf of Miss Clark and myself and I hope that we can resolve the problem. We would still like to speak to Miss Connor if Mr. Pease is willing.
Mr. Pease made his client available to either side, indicated that she has no interest in favoring one side or the other, and he's indicated that if you deal through him, that he'll make his client available to speak to you. That's my understanding.
That's correct. That's always been our position. A simple phone call to me would have resolved this in a minute.
Mr. Darden, I'm going to order that the Prosecution have no direct contact then with Miss Connor except through Mr. Pease. And he's indicated he will make Miss Connor available to you, and I take it as far as--are we clear on that?
Excuse me, your Honor. I would like to say, Mr. Cochran advised me that Miss Connor may be taking the stand today. She's here with me now upstairs. She may be testifying before that opportunity comes to the Prosecution.
Why don't you and Mr. Pease--I take it, Miss Clark, you're going to be handling cross-examination of Arnelle Simpson?
All right. I suggest perhaps, Mr. Darden, you ought to take this opportunity to chat with Mr. Pease.
I did--however, I think the record should reflect that we have indicated previously in court and before you that all these witnesses are represented by counsel. So they--both sides should be aware of that. Certainly most of our witnesses have counsel. So they should go through those counsel. That's been the situation. In fact, if you recall, Mr. Douglas, before we left court on Friday, gave the Prosecution Miss Connor's phone number. He handed it to Mr. Darden. So we're trying to cooperate.
I think I just alluded to that. If counsel has a list of attorneys representing the witnesses, I would appreciate having that list. Otherwise, we are going to have to contact the witnesses and the witness is going to have to inform us that they're represented.
You asked me if I had any other questions, and I told you I might have a couple. I have really only two areas or two areas of questions, will be very short I believe, and then we would get to the question of a 402 hearing, which would encompass the letter from Nicole Brown Simpson and also the--whether or not there's a state of mind exception for any statements made by Mr. Simpson when he was either watching television or during those conversations. Mr. Uelmen--Professor Uelmen will be handling those aspects.
Matter of fact, he handed me some P's and A's just a short while ago. I don't know whether he filed these or not.
All right. Mr. Uelmen, do you want to address the state of mind issue regarding comments made by the Defendant?
Yes, your Honor. We would contend that this would come within section 1250 of the evidence code as evidence of the statement of the declarant's then existing state of mind, emotion or physical sensation. This evidence is offered to prove Mr. Simpson's state of mind, and we believe on that basis alone, simply the exclamations made indicating what his state of mind was at the time these events were taking place would come within that hearsay exception.
Yes. As I've already indicated at sidebar, your Honor, this--these purported statements fit no aspect of the evidence code under section 1240. There's no foundation laid. No. 1, though, as I indicated to the Court, I don't see how a foundation could ever be laid. We have to remember that at the point in time that the witnesses are discussing the fact that he's at Rockingham watching the television and making exclamations, he has already been interrogated by the police, had his photograph taken--
Well, Miss Clark, forgive me for interrupting you, but I understood Mr. Uelmen's argument to be under the rubrick of 1250, state of mind, not spontaneous declaration, 1240.
Excuse me. And under 1250--even more so under 1250. 1250 explicitly states that there has to be an aspect of trustworthiness to the statement, and that foundation could never be laid. With respect to the Defendant's existing mental or physical state, there has not been proffered any mental defense in this case. It's an alibi. And 1250 is most appropriately applied in cases where you have a mental--some kind of mental condition offered by way of a Defense which makes it in issue. The Defendant's demeanor is one thing. But a 1250 exception allowing for the admission of hearsay is a quite different thing for which certain foundation has to be laid. No.--with respect to the very first no. 1 under that section:
"The evidence has to be offered to prove the declarant's state of mind, emotion or physical sensation when it is itself an issue in the action. The Defendant's state of mind, emotion or physical condition or sensation is not itself an issue in the action." We are talking--the Defense wants to proffer this evidence to show the Defendant's demeanor, circumstantially proving that he could not behave in that manner if he had actually just murdered his wife and Ron Goldman. That's a different situation than his state of mind being in issue in the action. It is not within the meaning of this code section and it's not offered to prove or explain acts or conduct of the declarant in this case because there is no act or conduct at the time of the watching of the television that requires explanation or elucidation. And furthermore, the foundational aspect of trustworthiness is missing. We have the Defendant surrounded by friends and family watching television reports that clearly appear to be describing evidence that's very incriminating, very inculpatory in nature. What is he going to do if he intends to get away with this? Say, "They got me"? You know, not if he's intending to get away with it. So obviously he's going to say, "I can't believe it. Can't believe they're saying this. How could they possibly say this about me?"
So you have neither the indicia of trustworthiness nor do you have the appropriate situation to allow it. The Defendant's state of mind is not at issue in the action until--unless and until such time as the Defense intends to proffer a mental defense. So the People would submit that this code section is inapplicable to the instant case.
Yes, your Honor. This really just goes to the basic principal of demeanor evidence. Who else is a Defendant going to be surrounded with at a time when he has just learned of his wife's death other than friends and family? Those friends and family are themselves going to come to the witness stand and describe their impressions of his demeanor at this time. And certainly an alternative way of showing that demeanor is to show the statements that he made at that particular time about his state of mind, emotion or physical sensation. So in every respect, this state of mind is relevant at this point and the hearsay exception clearly applies. All we are asking for are statements of his state of mind, emotion or physical sensation at that time, that is at the very time these statements are made.
The statements of how he is feeling and reacting to the news reports of his wife's death.
All right. Thank you. All right. The objection as indicated previously in our discussions at sidebar, I indicated I felt that there was a lack of foundation under either 1240 or 1250 for these statements. The argument is now couched under 1250, state of mind. The state of mind at that particular point in time is not a particularly relevant issue. I agree that there's another problem. We don't know what the specific news report that is being reacted to. So the context of the statement alleged to have been made by the Defendant is quite unclear. I don't see the indicia of truthfulness necessarily there because of that failure. And also, given the vague nature of this particular statement by the television newscast, I find it too amorphous to have a clear idea of what's being responded to. I think it would be an undue use of the Court's time. So I'll sustain the objection also under 352. All right. Other issue, the statement--the letter. Mr. Uelmen.
Let me start with a detailed offer of proof, your Honor, and then indicate the theory under which we believe this is admissible. We have, and I believe it has been lodged with the Court, a document consisting of five pages, handwritten letter which we believe we can establish was written by Nicole Brown Simpson to O.J. Simpson and delivered to him along with some videotapes of their wedding and family videotapes in March of 1993. Now, the relevance of this of course takes us back to the ruling of the Court with respect to all of the previous incidents in the relationship between O.J. Simpson and Nicole Brown Simpson that this Court heard evidence as to prior to trial, made a pretrial ruling, and then those incidents were admitted. And those incidents included altercations going back to 1985. They included two incidents resulting in 911 calls, one of which took place in 1989, the other of which took place in October of 1993. And then intervening during this time was a divorce of the parties in January of 1992.
Now, the theory under which the Prosecution is offering all of these prior incidents is that they are relevant to show Mr. Simpson's state of mind, to show motive, to show intent, to show plan and finally to show the identity of the perpetrator of this murder. And what the Prosecutor wants is for the jury to draw from these incidents some inference that Mr. Simpson was obsessed with jealousy over his wife, as I believe Mr. Darden put it in his opening statement, that he couldn't stand the thought of losing her, that he was obsessed with controlling her. So now comes the Defense turn to rebut this evidence, and we are going to rebut it by showing there was not a motive and there was no intent, that there was no plan, that the inferences that the Prosecution wants to draw from all of this evidence simply are not true and should not be drawn by the jury. And there are a number of ways in which we can go about producing rebuttal evidence in this regard. This is one of them. We are offering this letter really as a verbal act to show that the resumption of the relationship between Nicole Brown Simpson and Mr. Simpson was initiated by Mrs. Simpson, that what was going on here was not some sort of obsessive effort to control his former wife, but that she initiated a trial period in which they would resume their relationship. Now, we are not offering this letter for the truth of its contents. I think that's important to bear in mind. We frankly make no offer at all with respect to the sincerity or the truth of any of the representations made in this letter. The reason we want to offer this letter is to show the impact, the effect that it had on the mind of the recipient, that is Mr. Simpson. And we will show that after he received this letter, he sought to be counseled by both his mother, his daughter. He showed them the letter. They talked about it, and the relationship was resumed on a very tentative kind of try it out basis. And this letter explains why that took place. In that respect, it is very important evidence for the Defense to rebut the inferences that the Prosecution is seeking to draw from all of the prior incidents that were admitted. And I remind your Honor when you admitted those prior incidents, you said these are not coming in as evidence of character of Mr. Simpson; they are only being admitted to show motive, intent, plan and identity.
So what the Prosecution wants to do with these incidents is kind of draw them altogether into some sort of escalating progression of events that ultimately led to the act of murder. And we are entitled we believe to show that that's not the progression of events that actually took place at all, that in fact these incidents were interrupted by other contacts and that in reaction to one of those contacts, in response to the receipt of this letter, Mr. Simpson resumed a relationship with his wife in March of 1993, in March of 1993, four months.
Mr. Uelmen, if I follow that argument, then wouldn't I also have to revisit my ruling on the sojourn statement where five days before the incident, Nicole Brown says to a domestic violence counselor, "My ex-husband is stalking me and he says he's going to kill me?" Should I let that in too?
KEY QUOTEThat's not relevant to the Defendant's state of mind. What we're talking about here is Mr. Simpson's state of mind. We're talking about Mr. Simpson's motive, Mr. Simpson's intent, Mr. Simpson's plan, and only statements that were made to Mr. Simpson would be relevant to show his state of mind in response to or in reaction to those statements. And that's the reason. Again, we're saying it's not--we're not offering this letter for the truth of what is asserted in the letter. That's the reason it's not hearsay. It is being offered essentially as a verbal act to show and explain the response and reaction of Mr. Simpson to that verbal act. It can be authenticated through the witnesses that are propose to question about it who can--it's an undated letter. They can fix the time at which this letter was received. They can identify the handwriting in which the letter was written, and based on when the letter was received, we believe can explain the subsequent conduct of Mr. Simpson. And that's what we're all about here, to explain his conduct, to show that there is an explanation other than the inferences that the Prosecution wants to draw from all of these prior incidents coming into evidence, the inference that it shows a motive, it shows intent, it shows a plan. And we believe we're entitled to show just the opposite to rebut that, to show that inference should not be drawn, to show that another inference should be drawn with respect to the nature of this relationship. There's no problem of course with your Honor giving a limiting instruction just as when you admitted the prior incidents, you told the jury, these are coming in for the limited purpose of showing motive, purpose. And when are let this letter in, are can say, "Ladies and gentlemen, this is not being admitted for the truth of what's asserted. It is being admitted simply to show the impact that it had on the recipient, and this evidence is simply to rebut any inference of motive, intent or plan. It is not offered as evidence of Mr. Simpson's character and should not be considered for that purpose."
All right. Mr. Uelmen, do you have any case authority that deals with a similar situation?
Well, in response to the inquiry this morning from Mr. Gordon, I did make an effort to locate a couple of cases dealing precisely with the right of the Defense to negate motive. That is, just as the Prosecution can offer evidence of motive, the Defense is entitled to offer evidence of absence of motive, and there are a couple cases where courts have held that it was error to exclude such evidence. Those cases include People versus Smith, 204 Cal. App. 2D. 797, a 1962 case, and People versus Weatherford, 27 Cal. 2D 401 at 423, a 1945 case.
Good afternoon, your Honor. A couple of issues. And I think the Court cited or questioned--identified I think one of the most major issues here. When are filed our initial motion or our response to the Defendant's motion to exclude evidence with regard to domestic violence, are detailed for the Court and for counsel a number of incidents, statements, evidence are had. And in--during the litigation of that motion, are went through and indicated that are were only seeking to introduce a certain number of these under this 1101/prior conduct type theory. The other ones, are indicated to the Court and to counsel basically were there so everyone had notice on and may well come back and be revisited upon if an effort exactly as the one such as this occurs, that there are many doors that can be opened, especially when we're dealing with states of mind within a relationship. And our concern with this letter are a couple. One is foundational. We have an undated letter coming in not, from, if I understand the proffer, not to the recipient, not to the person who got it, not to the person who's supposedly going to indicate what state of mind they may or may not have. That's one prop, to bring a third party to talk about a letter--
But don't I have to--I have to assume though there's probably going to be a foundation for this. We've seen Miss Brown Simpson's handwriting before. This appears to be similar. The two videotapes were taken in the course of the search warrant. We've seen them. We know what they are. Are can assume that these are the two videotapes that they're talking about in this letter, correct?
That element as to foundation, correct, as to authenticating the letter that this came--this is in Miss Brown's handwriting accompanying these photographs, ask them to photograph that. That second part of the foundation, to hear Mr. Uelmen's argument, that something happened in response to this or that this caused some action or that the words within that letter were ever read, understood, acted upon, under--in any way dealt with, that's the problem.
When you have a third party witness who says--if I say, "I gave the Judge a piece of paper, and this is what he did or what he believed because of it," without you test--without the recipient testifying as to their state of mind as to what occurred, that's the problem and that's what we have the attempt to do, is to try to get someone else to testify as to what this Defendant's state of mind is similarly without him testifying to what it is. He can't--there's no foundation. You can't do that. The only way you could do it--
I think if the Defendant testifies, are may have a certain--if the Defendant testifies, are certainly may be in a different position. And as are put the Court and the Defendant on notice and as the Court indicated, it certainly--there's a lot with regard to his state of mind and I think the victim's state of mind, which is what this would open up, that could be inquired to and we could then make--inquire questions of him as to his state of mind and his reliance such as the base statement of if what is occurring this, as Mr. Uelmen indicates, is that in some time in 1993, he got this and felt that everything was going fine in the marriage and this put him in a state of mind that he wasn't jealous, everything was fine. Then why in October of 1993 do we have him charging through her house screaming at her, having to have the police called, which certainly isn't evidence in any way in conformity with the picture that Mr. Uelmen would paint before us, which, since are don't know the time, would appear to be contemporaneous when this offer of this supposed acceptance of the termination of marriage occurs. The other problem with it is--and I think the Court's indicated, what this really does and what their intent is with this letter is to somehow--is to put the victim's state of mind in because if what the Defendant is saying--if what the Defense is arguing is true, then the text of this doesn't matter at all. If the testimony is received a piece of paper and then acted in conformity with that as a verbal act, then what is said not for the truth doesn't mean anything. Possibly who the author is or authoress comes in. Nothing else. What they want to do is get the text in and what they want to do is carve out so they can selectively paint what this victim's state of mind is. The Court knows and we know what her state of mind is, especially when it comes to her statements of fears to friends, to her relatives, to a domestic violence shelter, her documentation of incidents, her diary. All of that evidence which the Court and Defense have notice of specifically indicates what her state of mind is. And if what the intent here is is to open her state of mind, which is the only thing I think that is really going on here, then that evidence--then that evidence comes in. But to try to carve out some narrow tunnel to get her--to put a state of mind of the victim in, which is not the truth, which doesn't reflect what was occurring with this woman, which certainly does not reflect what was occurring at the time which is in question, which was in June of 1994 when she was calling a shelter indicating that she was scared, she was going to be killed, that would be improper. And that's what they are trying to do; is to get her intent in through this letter. And that's not proper unless we're going to completely open up her intent and how she felt, and then all of that other evidence comes in to test this also.
I think your Honor is correct, that the authentication issue is not really a problem. In fact--
I don't consider it to be a--I mean based upon--if you made an offer of proof that you could tie those things up, even on what we argued about here--
The witness that is currently on the stand can authenticate the handwriting and the time that this letter was written. You know, if Mr. Gordon's statement is correct, that the only way to prove the Defendant's state of mind is through the Defendant's own testimony, then are can all just fold up our tents and go home because are then have no evidence in this case of Mr. Simpson's state of mind. What the Prosecution wants to do is infer the state of mind from all of these prior incidents and have the jury believe that without having heard from Mr. Simpson, that just based on all of these incidents that took place in 1985 and 1989 and in 1993, that they can then infer that he had a motive, that he had intent, that he had a plan. So they're seeking to draw an inference of the state of mind. Our position is, are can rebut that inference in a number of ways. The Prosecution is not in the position of telling us that the only way--the only evidence of state of mind that you can offer is to call the Defendant to the witness stand. There are a number of ways are can prove state of mind, and this is one of them. One of them is to show that the conduct of the Defendant was in response to a specific verbal act on the part of Nicole Brown Simpson. And that's precisely what we're attempting to do here. We're not offering to prove Nicole Brown Simpson's state of mind and her sincerity or her honesty in writing this letter aren't in issue. The issue is simply, what does the letter say and what impact did that have on the conduct of Mr. Simpson. Now, other witnesses have already testified to the conduct of Mr. Simpson. We know for a fact now from the evidence that is already in the record that despite all of these prior incidents in March of 1993, a year after their divorce, Mr. Simpson and his wife started seeing each other again. That testimony came this morning from Arnelle Simpson, and that that conduct continued for almost--well, for more than a year. And the question that you've got to ask is, well, why did that happen? Why did that happen? And here we have the answer. Here we have the explanation. So the--the--the relevance and purpose of this evidence is to explain the Defendant's subsequent conduct, and that explanation does not have to come from his own lips or through his own testimony. Finally, we're told, well, this is inconsistent. If this is what was going on, then why did he have to break down a door and--and engage in this shouting match in October of 1993? That's why this is so important, because it is contemporaneous. It does occur at approximately the same time as the incident they put in evidence, and they want the jury to infer from that incident that Mr. Simpson had a motive, he had a plan and he had the intent to kill his wife. And we're saying that's not an appropriate inference and when you put this in context of what was going on at the time and when you put it in context of what Mr. Simpson was reacting to in March of 1993.
Mr. Uelmen, if I follow that argument, then wouldn't I also have to revisit my ruling on the sojourn statement where five days before the incident, Nicole Brown says to a domestic violence counselor, 'My ex-husband is stalking me and he says he's going to kill me?' Should I let that in too?
What they want to do is get the text in and what they want to do is carve out so they can selectively paint what this victim's state of mind is. The Court knows and we know what her state of mind is, especially when it comes to her statements of fears to friends, to her relatives, to a domestic violence shelter, her documentation of incidents, her diary.
If Mr. Gordon's statement is correct, that the only way to prove the Defendant's state of mind is through the Defendant's own testimony, then we can all just fold up our tents and go home because we then have no evidence in this case of Mr. Simpson's state of mind.
It sounds as if — and it sounded to my client as if Miss Allred had the ability and the phone number to set up an appointment at — on Sunday evening or on Monday morning at 9 o'clock.
The state of mind at that particular point in time is not a particularly relevant issue... I find it too amorphous to have a clear idea of what's being responded to. I think it would be an undue use of the Court's time. So I'll sustain the objection also under 352.