We have a number of motions that have been filed and previously the Court had indicated that I would hear motions regarding the KNBC news telecasts, and the subpoena for a KNBC News broadcaster to testify in this matter. We will take that matter up this morning. And we have two other matters regarding contamination of the LAPD DNA lab and the Gretchen Stockdale matter, but those matters we will take up at a later time. All right. Miss Lewis, you have something you need to address the Court on?
Yeah, the Gretchen Stockdale matter. The Court had advised me last week that it didn't feel an SDT was an appropriate method by which to obtain this tape from the Defense, so I filed a motion to compel, as the Court suggested this morning. I just want to get a hearing date. It is pretty straightforward. There is a statute right in the discovery statutes which exempts law enforcement investigation that I failed to cite to the Court last week that is positive. I don't think it will take the Court long to decide this matter.
All right. It looks to me, because of some of the medical appointments, that we will have to make adjustments for, we will have room in our court day to take these up, but let me see how long we run with this shield law business--
--before we make that determination. All right. Dean Uelmen, do you want to go first on this?
We actually have a number of sub-issues here. I note that we have a motion to quash that subpoena duces tecum. We have a motion to quash a subpoena on Tracie Savage, and we have a number of other sub-issues in that category, so how do you suggest we proceed, first of all?
Well, we suggest calling Tracie Savage to the witness stand to see if she declines to reveal the source and we will then proceed with a showing of why the qualified privilege should be overcome in this case. Privilege is a misnomer. Why the assertion of immunity should be overcome in this case.
I don't believe the--the assertion of the immunity is grounds to quash the subpoena, but if your Honor wishes to hear argument on the motion to quash the subpoena before we put Miss Savage on the stand--
All right. Do you have any position regarding the motion to quash the subpoenas on KNBC, the subpoena DT and the motion to quash the subpoena on Tracie Savage?
Well, your Honor, we don't have a position, per se, as to some of the issues because they involve policy concerns that don't directly involve the People. However, one of the prongs of the three-prong test that the Court would rule under, under Delaney versus Superior Court, has to do with the materiality of the evidence, and obviously we have a very strong interest in how your Honor would rule on that because, ultimately it would affect the Court's decision if there was any information that resulted from these inquiries. It would affect--
If you deny the motions? That's right. But there is a question here as to placing the cart before the horse, because it seems to me that this is a primary threshold issue that the Court would have to concern itself with prior to making the decision as to whether or not it was going to quash the subpoena.
Good morning, counsel. Do you want to approach and make your appearance for the record. I guess the ball is in your court then because what I will entertain at this point is a motion to quash the subpoenas, both the SDT and the subpoena for Tracie Savage.
Your Honor, Kelli Sager is going to address the motion to quash with respect to Miss Savage. As the Court knows, our motion on the SDT is basically sort of a tagalong on that, which I will be happy to address after Miss Sager.
Kelli Sager appearing on behalf of Tracie Savage as a reporter for KNBC television. As the Court has indicated already on the record, with me today are Anne Egerton and Patricia Duncan who are in-house counsel for KNBC. And we have filed a motion that I understand the Court has received and reviewed to quash the subpoenas directed to Miss Savage on two grounds. That is, we understand that the only two things that the Defense is seeking from Miss Savage are to reveal her confidential sources we think is protected under the 1st amendment of the California constitution, the California evidence code. And to the extent that they are seeking to have her authenticate tapes that were broadcast by KNBC, that she is not the appropriate person to do that, that a custodial declaration or custodian of records who actually keeps the broadcast footage would be a more appropriate person to testify, so neither of the two things which the Defense seeks to have Miss Savage testify about are appropriate and that is why the subpoena should be quashed. If I could just start with a premise that in California the shield law protecting reporters from having to reveal confidential sources has existed, at least in statutory form, for more than sixty years. And fifteen years ago the California voters elevated that provision to a constitutional provision and California courts have recognized that by doing that the voters intended, as the legislature had previously indicated, to indicate that this was a very important principle under California law and in fact that it was to be given the highest possible protection, which becomes important when the Defense attempts to compare the California shield law protections to other protections that are given statutory protection. The leading case is clear is Delaney versus Superior Court which although the circumstances there were very, very different from the circumstances in this case, at least laid out factors that the Court is to consider in making a determination in a case involving a criminal Defendant who is attempting to seek information from a reporter. And Mr. Goldberg indicated correctly there is a threshold issue that the court must reach before it engages in any kind of balancing equation. The Defendant has the burden of proving that there is a reasonable possibility that the information that they are seeking will materially assist the Defendant in his case. And if this threshold inquiry is not met, the Court's inquiry stops. It need not reach any of the other factors or engage in any balancing analysis. The language is important. Although the Defense has suggested that this is an easy threshold to meet, in fact it is not. It must be a reasonable possibility first, not merely any possibility, that the information will assist the Defendant, and the Delaney court specifically said it must go beyond mere speculation or conjecture or some hypothesis about how this information might affect the Defendant's case. That goes to the likelihood of the information being useful. But there is a second prong. It must materially assist the Defendant's case, so it must be significant information to the Defendant's case, not merely any information that has a potential of affecting their--their Defense. And even if you look in the dictionary, Webster's defines "Material" as, quote, "Having real importance or great consequence." So even if the Delaney court indicated the information doesn't necessarily need to exonerate the criminal Defendant, it has to be something more than merely tangential or peripheral information, it implies, to sort of direct proof of an important issue in the case.
Neither of these two parts are met in this case, let alone both of them. It certainly--as under the Defense's theory, this information is sought simply for the purpose of establishing some possibility that there might have been some conspiracy to frame the Defendant with respect to the planting of blood on the socks found in Mr. Simpson's bedroom. The identity of the sources of a KNBC news broadcast in September is certainly not direct evidence of any conspiracy, and in fact as Mr. Goldberg argued I thought quite persuasively last Thursday, it is counter-intuitive that someone who is engaging in a conspiracy would run out and the first thing they do before the conspiracy has even been affected is tell a reporter, oh, here is what we've done. Why reveal that information for public dissemination on a date when the testing simply had not been done if that in fact is the case? It is counter-intuitive that someone engaged in a conspiracy or who knew about the conspiracy would have done that. But moreover, it is not even indirect evidence of a conspiracy. And the Defendant's argument here is incredibly attenuated that someone who was involved in some kind of conspiracy who may have told a numbers reporter about tests so that they would know that the tests which had not yet been conducted, according to the evidence presented in court, were going to reveal something that had not yet occurred. Any other explanation for how this information came to Miss Savage is no more reasonable than the attenuated link of factor upon hypothesis upon speculation that the Defense would like to use it for. The sources may well, as Mr. Goldberg suggested, have simply mistook the PGM subtype testing for DNA testing, which as Mr. Goldberg indicated, does have an element of genetic markers, and someone revealing that information might have mistook that to mean genetic testing as in DNA testing as opposed to the PGA (Sic) subtype testing or they simply may have extrapolated what they knew was going to occur, DNA testing with the information that had already been proven, the PGA (Sic) subtype information and extrapolated out to likely DNA test results. Those explanations are far more reasonable than what the Defense would suggest and to--in order to neat the standard of reasonable probability of materially affecting the Defense, I think they have to show something more than that. And it is important or instructive that even the defendants themselves, the Defense counsel up until the time where this Court indicated that Miss Savage would have to take the stand, have never taken the position that the sources are important, let alone critical or go to the heart of their claim. And Mr. Uelmen repeatedly advised the Court on Thursday that Defense counsel does not believe that he needs to know precisely who the sources are of this information in order to establish their case. Given that and given that it certainly is not direct evidence or even arguably reasonable indirect evidence of what the Defense is, I think that they haven't met the threshold showing that
This--that the Delaney court established. But even assuming that the court found the threshold test had been met, which we do not believe it has been, then the court must go beyond that and look to the factors that the Delaney court identified and balance those factors and consider those factors before requiring the reporter to take the stand. There were four identified in the Delaney opinion and we would submit that all four argue in favor of quashing the subpoena. The first is whether the information is confidential or sensitive. And the Delaney court recognized that on a sliding scale when you are weighing a criminal Defendant's 6th amendment right, that non-confidential information may be at the bottom end of that scale, although made a point to say that even in that case it may be--protected sensitive information which is not confidential may be subject to greater protection. But the highest level of protection under the shield law is given to confidential source information which was not at stake in the Delaney case yet they took great pains to indicate that that is a distinguishing factor from the circumstances that were before the court in that case. Here the sources are confidential and this factor heavily weighs in favor of quashing the subpoena and not forcing Miss Savage to testify. I point out that the Defense counsel did file a brief, although I think by error this was not filed with our office, but simply served on NBC's counsel, but I did have an opportunity to read it late last night, and they have misconstrued this factor as somehow being dependent on what the information is being used for. And they refer to a quote in the Delaney case about information being used to show corruption in government. But that was related to a different factor entirely. The Delaney court indicated that the first factor to be considered is whether it is confidential, and if it is confidential, that is an important factor weighing against forcing a reporter to testify. In the example of corruption in government, the Delaney court was referring to sensitive information that may not be confidential but nonetheless should be subject to some kind of protection. The second factor the Delaney court recognized what was the interests are that are sought to be protected by the shield law and whether the interest is mooted by something, for example, like the Defendant himself being the source of the information. And there is no showing in this case by the Defense camp who certainly would be aware of that if that were the case, that the Defendant himself is the source of information and that has been the case in other cases considering confidential source information where reporters have gotten information from the Defense or from Defense counsel and the Defendant or his counsel have then tried to get the reporter to confirm what they had told earlier to the reporter. And under those circumstances the Delaney court said that were may be a different kettle of fish entirely, but that is not the case here. The defendants are not arguing that they need Miss Savage to confirm information that they provided to her or something that Mr. Simpson provided to.
The policy of the shield law is clear. It is to promote news gathering and dissemination of information to the public. And in both the Delaney court and a variety of decisions in California and elsewhere, courts have recognized that it is critical to protect a reporter's confidential sources and that that policy, that important protection should only be overcome in the very rare circumstance. So the second factor also militates in favor of a motion to quash the subpoena and against forcing Miss Savage to take the stand. The third factor is the importance of the information to the Defendant. The Delaney court indicated that even once the threshold is met, if the information is so critical to the Defendant's case that he cannot have a fair trial without this information, then that may weigh even more in balance of the criminal Defendant. But that is not the case here either. We don't even think the threshold has been met, let alone something that so materially would affect the Defendant's case that he cannot have a fair trial if this information isn't provided. This is not an instance, as has been true in some other cases involving confidential sources, where the reporter is protecting someone who is an eyewitness to the crime who could provide information that goes directly to guilt or innocence. This is so far removed from that, as Mr. Goldberg indicated in his argument last week, that this is 15 steps down the road from anything that would go directly to Mr. Simpson's guilt or innocence. The final factor the Delaney court indicated the court must weigh is whether there are any alternative sources for the information. And even though they did point out that this should not be rigidly applied, the Delaney court made clear that whereas in this case the information involves the identity of confidential sources, that this requirement should be more vigorously imposed. And in the Delaney case there were no confidential sources involved; it was a reporter's eyewitness observations. And so in that instance they said that this factor does not weigh as heavily as it might in a case that involves confidential sources. This case does involve confidential sources so this factor becomes even more important and there has been no effort whatsoever by the Defense to examine any witness on the stand about whether they were a source of information for Miss Savage to call any witnesses to the stand to try to narrow the scope of people who might have been potential sources. The Defense counsel asked last week that there are limited number of people that this could possibly include and yet they have made no effort to examine any of those people to determine whether they were the possible sources. So of the four factors in this case, all information, we would submit, argue in favor of the motion to quash. And completely distinguishable from the result in Delaney in this case, this is not a reporter's eyewitness observations. Confidential source information is involved here. It is a case where it does not go directly to guilt or innocence, whereas in the Delaney case the reporter was--had been an observer of whether or not the Defendant had given consent to a search and if the consent had not been given, everyone agreed that the search would have been improper and only the search had lead to the defendants other arrest, so there it directly went to the issue of whether the Defendant was properly arrested or not. The final point that I would mention is that the Defendant has submitted in their papers that he is somehow entitled to this information in order to present his defense and that if he is not given this information, that his fair trial rights are interfered with.
And they cite a number of cases where, depending on the circumstances, depending on the importance of the information, there has been some overcoming of a particular asserted privilege. But in both California and other contexts in the reporter's shield law, California courts have consistently held the fact that there is some information that the Defendant cannot get, for whatever reason, either because of a statutory exemption, either because of a California constitutional provision, as is at issue here because of evidence code provisions like 352, like the hearsay provisions that say there is some public policy reason why the Defendant is not entitled to put this evidence on, his fair trial rights are not interfered with and we can certainly cite to the Court innumerable cases involving various privileges, involving various protections, statutory protections and statutory policy decisions where the courts have said the fair trial rights are not implicated simply because the Defendant cannot get what information it is he is seeking. But even to the extent that the Court accepts the Defendant's argument that he needs to be able to present an argument to the jury that the fact that Tracie Savage had a report in September of 1994 about socks which had not yet been tested by DNA testing that they argue this somehow furthers their conspiracy claim, they can make this argument to the jury, present the videotape and make that argument without delving into Miss Savage's sources for the information. They can argue that if they are knowledgeable sources then that furthers their conspiracy theory and the Prosecution can argue that it does not.
When we talk about alternative sources for the same information, can you think of a plausible justification that I would allow a TV news numbers broadcast to be played to the jury as evidence?
Well, your Honor, in our personal view--my personal view I don't think that the television broadcast is probative of any issue in this case, so I don't think there is a reason for the Court to present the video to the jury.
Let's try with something more fundamental like hearsay. I mean, how would that ever be overcome?
KEY QUOTEI'm not advocating that position, your Honor, because I don't think that it is probative or that it does overcome all the objections.
If the Court believes the Defense argument and believes that they have overcome these objections and believes or agrees with them that this is probative or material information, then that is a separate issue entirely from whether the sources of that information are probative or material or relevant. In other words, the argument that they make, whether this somehow furthers some conspiracy, even if you assume everything that they said and assume that this is material and important and that it did come from some high-ranking official somewhere, if you assume all of those things, then that is--the source of the particular individual becomes irrelevant. But I agree with the Court, I don't think it is probative of any issue. I don't think it is material to Mr. Simpson's defense and I think it would simply serve to confuse the jury on a tangential issue and distract the Court's attention by focusing on a whole panoply of witnesses and evidence and issues related to who Miss Savage's sources were for this story, instead of the material issues in this case. And I am not aware of any case where a reporter has been forced to reveal confidential sources about an article which both sides have acknowledged or at least the parties admit was inaccurate as to the point that they say is important. So all the cases where a reporter has been forced to reveal confidential sources, and they are few and far between relative to the number of times that information is sought, but even in those few cases there is no case that I am aware of that even remotely is close to the circumstances in this case. And given the critical--I think the playboy enterprises case uses the word "Paramount interests" that the voters of California expressed in enacting this into the constitution, given that paramount interest, it is a very high standard that must be met. And I don't think that the Defense in this case has satisfied even the threshold, let alone any of the four factors that argue against forcing Miss Savage to take the stand.
I think we are in agreement, your Honor, that the guide for the Court's decision in this matter is the Delaney opinion, and I think that opinion sets forth a very clear blueprint for the Court to follow in addressing the issues that are presented. No. 1, Delaney makes quite clear that we are not dealing here with a privilege, that we are dealing here with an immunity from contempt and that that immunity is a qualified immunity, so the existence of the news person's shield law presents no basis to quash the subpoena. In fact, Delaney indicates that the reporter initially bears the burden of proving that the shield law even applies and I don't know that we are to that point yet. Miss Sager assumes that, for example, the source in this case is confidential. We don't know that. We don't know what assurances or promises were given to the source in exchange for the information. It may have been that no such assurances were made and no promise of confidentiality was made to the source. The other thing that Delaney makes quite clear is that the shield law does not protect information that has been disseminated, and in that respect all of what KNBC has already told us about their source points very clearly to a strong possibility that the source came from within the Los Angeles Police Department, and that of course is the important fact that the Defendant is seeking to establish.
The qualified immunity can be overcome by the Defendant's right to a fair trial, and Delaney indicates that all the Defense has to show is a reasonable possibility that information will materially assist the Defense. We believe that in the current juncture of the case, we already have enough information before the court to suggest a reasonable possibility that this information will materially assist the Defense, because we already know, for example, that the broadcast of this information on September 21st coincided with activity within the Los Angeles Police Department that would only be known to sources within the LAPD, that on September 18th a PGM subtype test had been performed, that preliminary results had been obtained and that apparently on September 21st a decision was made to send the socks out for DNA testing. We also know that just nine days before cellmark test results were leaked on the same day that they arrived in a fax to the LAPD SID laboratory. Your Honor is also aware that as soon as your Honor entered an order requiring that all test results be sent directly to the Court, the leaks stopped. As soon as they stopped going through the sieve of the Los Angeles Police Department, the problem of leaking came to an end. We also know, and this is pointed out in Miss Sager's moving papers and I thank her for that, that other news media apparently who were reporting similar stories, although not reporting the false information that KNBC reported, identified law enforcement as their sources for this story. So all of these factors and KNBC's own revelations thus far about their sources point to the Los Angeles Police Department. Now, if in fact this leak came from the Los Angeles Police Department there will be a strong inference to support the Defendant's defense of evidence tampering in this case. First of all, we have within the Los Angeles Police Department sources confidently predicting results of tests that have not even been performed, suggesting that that confidence may have come from knowledge of the source of the blood that was being tested, that would emanate directly from participation in the tampering or planting of that evidence. We also have a very strong motive to predetermine the--the test results. We also have very strong evidence that this investigation lacked objectivity. Time and time again we've been treated to the Prosecutors getting up and asking police witnesses, "You are not part of any conspiracy in this case, are you?" Well, what we have here is very strong evidence of a conspiracy to prejudice the Defendant's rights to fair trial by leaking information during the pretrial stage at the very time that we were engaged in the process of selecting a jury in this case. And what more compelling kind of conspiracy could you have? And finally, if you put this all in the context of the socks, that we are talking here about the leak of information related to the socks in a context, we have already established discrepancies in terms of the collection of that evidence in terms of the reported time that the socks were recovered, discrepancies in the observation of blood in which we were told that numerous criminalists did not see blood on the socks until six weeks after the socks had been selected, evidence of experts that the blood pattern on the socks do not conform to blood splatter, but to the actual compression of blood against the sock, and testimony of experts that the bloodstains contained EDTA, that the sock itself did not contain. Now, all of that weaves an important web of evidence with respect to the integrity of the evidence collecting process and the possibility of tampering with that evidence.
Putting direct evidence that the source of this news report came from the Los Angeles Police Department would not just present a reasonable possibility of materially assisting the Defense, it would indeed go to the heart of the Defense and we believe that that provides a very compelling argument to overcome the assertion of the qualified immunity in this case. With respect to the balancing test that the Delaney court set forth, there are four factors as your Honor is aware. The first relates to the confidentiality or sensitivity of the information. We have yet to hear any evidence that the reporter has the--
Mr. Uelmen, let me ask you this then: Following your argument to its logical conclusion, assuming that I deny the motions to quash the subpoenas for Tracie Savage, she testifies, says I gave some assurance of confidentiality and I now refuse to divulge those sources and I claim immunity from the contempt sanction--
--let's assume that I make a further finding that I find the information to be material and necessary to Mr. Simpson's defense and I invoke the contempt sanction, and let's further assume that I grant a temporary stay of that contempt citation so that Miss Sager can run down the street to the Court of Appeal and file her emergency writ. And let's assume that Justice Turner has nothing else to do that day and has the opportunity to spend an enormous amount of time dealing with the issue. Let's assume all of that occurs. Is that really necessary? Because all you are really asking for is the opportunity to present to the jury that at the relevant point in time this misinformation was reported.
Well, we are entitled to do more than that. I think we are entitled to do that. We are certainly entitled to present the--the misinformation that was reported, to present the explanation of the information that has already been publicly disseminated which points to the Los Angeles Police Department. We are entitled to present the director of the LAPD laboratory to describe what was going on in terms of protecting this information and then argue to the jury an inference that there is tampering going on and that this information came from the Los Angeles Police Department. But what Miss Savage's testimony would do for us would be to present direct evidence that it did indeed came from the Los Angeles Police Department, so we no longer have to rely on an inference. Because you can bet that the Prosecution will argue against that inference. They will say that is not a fair inference to draw from this evidence, as we heard last Thursday. It could have been a lucky guess, it could have been that they were relying on some interloper or some flake to present this information to the public, so we will hear that argument. But by cutting through the assertion of qualified immunity, we don't have to rely on an inference. We can present direct evidence that indeed this information did come from the Los Angeles Police Department which is very compelling evidence that goes to the heart of our case.
I think the strongest point that you make inferentially is that once the Court ordered all test results be directed directly to the Court, rather than to the investigating agencies, that all of this nonsense stopped.
KEY QUOTEI think when we talk about, you know, balancing the public interest in this case, I think that is very important to bear in mind, that we are not talking about the access of public to information that would never otherwise be disclosed. All that we are talking about here is the interest of a court in preserving the right of the Defendant to a fair trial until a jury has been selected. And what was going on here was a very deliberate attempt to subvert that process simply by giving the media advance information at the time when it would prejudice the Defendant's rights. We are not talking about information that would never be disclosed. In fact, this information has now been disclosed in this courtroom in the orderly process of law which is when it is supposed to be disclosed. So all we are talking about here is some news agency somehow getting an edge so that they have an exclusive that can severely prejudice the right of the Defendant to get a fair trial, to get jurors who have not been prejudiced by information that the Court has a right to control, to prevent its dissemination until the time is appropriate. There is one other aspect with respect to this matter with regard to alternative sources, and that is we are informed, although we have never been provided with any of the results, that an internal investigation was conducted by the Los Angeles Police Department, so there was an alternative pursued to attempt to identify the source within the LAPD by an internal investigation. If the results of that investigation have been turned over to the Prosecution or to the Court, they have not been turned over to the Defense, and we think that information may be relevant and helpful to the Court in resolving the issues that are presented by this motion today.
All right. Thank you, counsel. Mr. Goldberg, do you want to address any of the materiality arguments raised?
Yes, your Honor. That is the only issue that I did want to address, because as I said, I don't think that the People have a direct interest in the balancing part of this equation. But let me just say this: That in addition to the threshold standard that is articulated in Delaney requiring that the Defense show a reasonable possibility that the information will materially assist his defense, that is at page 808, that there is an independent legal theory to look at this issue of quashing a subpoena and that is that you always are going to have to show, in an instance where a motion to quash has been made, that the witness in question has some material evidence to give, because we don't allow people to run around subpoenaing individuals that do not have any material information to provide in a given case. So independent of the legal theory that is articulated in Delaney, the court would always have to look at the issue of relevancy and materiality of a witness in determining an motion to quash. But the two obviously are very closely interconnected, the standard of relevancy and also the Delaney standard involving materiality. On page 6 of the Defendant's points and authorities they articulate what I think we can characterize as somewhat of a laundry list as to possible relevant purposes or material purposes for this kind of evidence, and I would like to go through them. I have a dressed some of this previously on Thursday and I will try not to repeat what I said to your Honor at that time. On the second full paragraph starting at line 13, they say that: "For persons who are directly engaged in the handling of evidence to leak the results of tests before the testing has been completed creates a strong inference of elicit tampering with the evidence," so that is one theory. It is the tampering theory. I would suggest it is really the only theory that should be under consideration by the court at all. But what I would point out about the way that the Defense articulated this is they themselves have pointed out that the only conceivable way that this could be relevant or material is if someone who was actually involved in the testing, according to the way that they have phrased it, was responsible for the leak, because obviously if we had a situation where it was someone at robbery/homicide who overheard a conversation or someone in the Prosecutor's office, there is no conceivable way we can even articulate a theory under which that leak would be relevant, and I think the Defense acknowledges this. So the issue then becomes, your Honor, if someone who was directly involved in the testing themselves was in fact the individual who was responsible, if there was an individual for the alleged leak, how is that relevant or is that at all relevant for the purposes of this threshold requirement that the Defense must make? And we say that it isn't. On Thursday I articulated two different ways that the Defense could contend that this is relevant. One, they could suggest that the news report motivated the individual that tested the evidence to plant evidence. That is not the theory that is articulated or are articulated and Mr. Uelmen specifically rejected that as a theory. I think this is important to try to force the Defense to be analytically precise in what their theory is, because in doing so then we can determine whether there is any merit to it, so we can slowly begin to chip away at what they are not contending, so that we can focus our attention on what they are contending. For example, on Thursday I pointed out that the evidence that the Defense claims shows that the sock were not present in a photograph that was taken supposedly before Mr. Fung collected them, that that evidence was not relevant to the issue of planting. And Mr. Uelmen conceded that that was true and said that that only was relevant to the issue of whether or not the evidence was properly handled. In other words, that it went more to unintentional mishandling of the evidence, because it was not reasonable to conclude that blank socks themselves were planted and that subsequently evidence was planted on those socks. So I'm just trying to point out to the Court that by trying to force the Defense to articulate precisely and clearly that their theory is, only then can we then be in a position to determine whether or not that theory has sufficient probative strength and whether there is any evidence to support it for the purposes of this threshold requirement.
So what their theory appears to be is that the fact that someone--or if someone who was connected with the testing of evidence leaked evidence regarding the socks, that that demonstrates or tends to demonstrate that evidence was planted on the socks prior to the time of that leak and the reason that we say that that theory does not make sense and is illogical is because one cannot conclude reasonably that an individual that was responsible for testing these socks and knew that the evidence was planted then decided to disclose that knowledge to the press. It is counter-intuitive, as has been argued, and in fact if such a leak did occur, that fact would tend to exonerate the individual, because the logical and reasonable argument would be why on earth, if I in fact planted evidence on the socks, would I then do anything that might have the tendency of giving myself up, such as contacting the media and saying that there are test results that have been performed on these socks? It is not reasonable to believe that this individual would do that. It is not a logical and believable argument and therefore the Defense theory that this logically relates to the issue of planting should be rejected. Now, in addition to those--to that particular theory, the Defense has two additional what I would characterize as throw-away type theories of relevance, perhaps seeing the weakness in the first theory. The second one is they say, I'm quoting from the same page, page 6, that: "This evidence is direct evidence of examiner--of examiner's bias," end quote. Well, the LAPD didn't do any of the DNA testing on this case, so there is no logical argument that this in any way relates to examiner bias and they don't attempt to articulate how it does relate to that issue. And then thirdly, they contend that this is relevant to a rush to judgment, but I would state, your Honor, that the issue of rush to judgment itself is not relevant because the subjective beliefs of the law enforcement officials, the D.A.'s that are involved, the Deputy D.A.'s that are involved in prosecuting this case and the detectives involved--that are involved in prosecuting this case, whether they subjectively believe the Defendant is guilty, and if so, when they formed that belief is not a real issue, it never is in a criminal proceeding. And somehow this has been allowed to have been introduced and interjected in this trial as a spurious non-issue that has no real evidentiary significance, but even if it did, I don't see how this leak in any way relates to the issue of rush to judgment or the non-issue of rush to judgment. So if we go through the Defense contentions and we carefully look at them, it does not appear that there is any theory under which it would be relevant, and clearly there is no evidence to support any of those theories, and apparently they must produce at least some evidence, because according to Delaney any mere speculation itself is not sufficient to meet the threshold requirement. And therefore, your Honor, we contend that the threshold requirement has not been met. Now, in addition to this issue, I would like to address briefly the question of whether or not the report itself is hearsay and I don't want to do that at length because I think the Court has already impliedly indicated through some of its comments that the news report is clearly inadmissible hearsay, although the Court argues to the contrary--Defense argues to the contrary.
All right. And finally, your Honor, as to the issue of the internal investigation, the Defense was aware of the internal investigation because it was mentioned on the record, and I believe even requested by Defense counsel at the time that this issue was initially addressed by the Court on September the 22nd and 23rd where they suggested that an internal investigation should be conducted. We do not have the reports from such an investigation that I am aware of, and I do believe that they never did pinpoint what was the source of the leak, so there isn't any information that the People are aware of of any value as a result of that investigation. If the Defense wants that--those materials, then there is a way of getting material and they have to use the procedures that are required under a pitchess type motion to get those kind of internal LAPD documents and they can file that kind of a motion if they want to, but in the absence of the procedures that are required under pitchess, they are not entitled to that kind of information.
I will be brief. I just want to respond briefly to a couple of points made by Mr. Uelmen. First, with respect to whether a motion to quash is appropriate, he indicates that because it is not a privilege, but an immunity in contempt, that somehow this is not the correct procedure for the Court to adopt. But whereas here you are involving a non-party, contempt is the Court's only remedy, and in that instance the California Supreme Court has said in, for example, in the New York Times versus Superior Court case, that it operates as an absolute privilege if contempt is the only remedy, so it operates in the same effect as a privilege and a motion to quash is appropriate. And in fact that is the way that most courts in California have reached this issue, through a motion to quash a subpoena or a motion to quash a seeking of testimony from a reporter. So I think the Court certainly can use this procedure to rule on these issues and we hope will accept the motion and quash the subpoena.
What about Mr. Uelmen's point that the record is devoid of any evidence, as opposed to proffers of counsel that Miss Savage is in fact a news reporter covered by this particular statute, that she is in fact the person who participated in the reporting that is in question and that she gave some assurance of confidentiality to the sources of that information? Isn't the record completely devoid of that?
Well, your Honor, I was about to reach that issue and it certainly has been represented by counsel, and until this point in time it wasn't to my knowledge there was any question about any of those things, and we would have been happy to submit and still would be happy submit a declaration from Miss Savage covering these points indicating, as I think was indicated in our brief, that she is in fact a reporter for KNBC television, she was acting in that capacity when these stories were broadcast and that the information from those stories came from confidential sources, individuals to whom promises of confidentiality were made, and we would be happy to do that. I don't think it is appropriate to then conduct an inquiry into hearsay information in order to have that information before the Court. We can have a declaration here before the end of the day that sets forth that information, if there is any question about it, and to this point there never had been. And at least at hearing last fall when this issue came up, it was represented and counsel all seemed to agree that that was the case and that the issue was whether or not the privilege would be overcome. But we are happy to provide a declaration to the Court containing that information. Now, Mr. Uelmen suggests, I think mistakenly, that the only issue is whether this information materially assists the Defendant, and it is clear in Delaney that is only the threshold, and I agree with Mr. Goldberg. And based on the information, the argument I have previously presented, they have not come close to meeting that threshold test, let alone exceeding it, but even if they did exceed that threshold test, which I think they clearly have not, then the Court looks to the four factors in the balancing equation. It simply doesn't say, okay, the reporter now takes the stand, we have determined that it materially impacts the Defendant's case. And as to the four factors, there has been no showing that those factors militate in favor of forcing Miss Savage to testify. And with all due respect to Mr. Uelmen, most of what he presents is irrelevant to that issue. What other media reported has nothing to do with his Miss Savage's story was about or who her sources are. Whether or not there is other evidence of a conspiracy has nothing to do with this particular information, the sources of information for her news reports, goes to that issue or is material to that issue or significant or substantial as that term is defined.
And the Court in Delaney made clear it has to be something more than speculation, more than a chain of links in a chain of hypothesis or speculation, in addition, to satisfy the materiality and reasonable possibility standards. And that showing hasn't been made. And the Court I think correctly indicates that if what they want to present to the jury is their argument about this being a link in conspiracy or that there was inaccurate news reports, Mr. Uelmen last week said repeatedly to the Court we don't need the sources of information for that, and somehow they have gotten the light or changed their position or flopping in the space of the last couple of days to now say this information is somehow critical when he repeatedly represented to the Court that they didn't think it was critical and was in fact irrelevant to the argument that they wanted to make. But I would end with simply saying that there is no case that I am aware of, certainly none cited by Defendant, where anything closely approximating these circumstances has resulted in a reporter being forced to divulge confidential sources. No case that I am aware of where a reporter has been forced to reveal sources based on a news report that the parties say was inaccurate, certainly not in the context of a criminal case where you have a Defendant presenting an argument that does not go directly to the question of guilt or innocence or is not directly evidence of any kind of conspiracy but is simply a series of innuendoes or speculation or hypothesis. And for all those reasons I think that the privilege has not been overcome in this case and it would be improper for the Court to force Miss Savage to testify and ask her to reveal her confidential sources.
Very briefly, your Honor. I just want to make three quick points. No. 1, Mr. Goldberg suggests that somehow we must articulate a theory of when the blood was planted on the sock in order to establish the materiality or relevance of showing the source of this--of this leak. The problem of course is the sock was in the exclusive control and custody of the Los Angeles Police Department from June 14th until September 26th when it was sent out for DNA testing, so we don't know at what point the evidence may have been planted. And the problem, the real issue in this entire question is whether we should have confidence in the integrity of the Los Angeles Police Department in maintaining the custody and control of that evidence. And what we are dealing with here goes directly to the heart of that question, how much confidence should we have in the integrity of those who were entrusted with the care and the control of this evidence? There are a number of inferences that arise. A possible inference of planting of evidence, a possible inference of examiner bias, a possible inference of a conspiracy to prejudice the Defendant's right to a fair trial, but until we know who the source of this information was within the Los Angeles Police Department, we can't pursue where that takes us. Once we identify that source, then we know where we can go to clarify, to provide the information that both this Court and the jury are entitled to in terms of resolving this very difficult issue. Secondly, Mr. Goldberg makes the point that there was an internal investigation that apparently came up dry, but the only way we can see that is to file a pitchess motion. We would respond, first of all, if an investigation came up dry within the LAPD, that goes directly to your Honor's resolution of the question of whether there is an alternative source other than ordering the reporter to reveal the source to find out who that source was, and the fact that the LAPD has internally investigated and been unable to identify the source would I think be very useful to the Court in addressing that issue and we believe the Court has power to simply order the production of that report for purposes of this hearing in the exercise of its inherent power.
I don't think I can do that, given the very strict language of the evidence code after pitchess that indicates this is the exclusive manner in which these types of records are to be sought.
But a pitchess motion requires us to make a specific showing that information about a specific officer is relevant to our case. Here we have an investigation that did not apparently implicate any officer and what its relevance is is simply the fact that they made that effort and they were unable to determine what the source was, so we are not really using it for a pitchess purpose of attacking the credibility of a police officer, but simply showing that the--the investigation had a negative result and that is what is relevant to this hearing.
Finally, I want to make clear, your Honor, that what we would propose to do is to call Miss Savage, in the event that she invokes the limited immunity, and establishes that the immunity applies, before your Honor applies the balancing test, to determine whether to order her to testify. We would like an opportunity to call Michelle Kestler, the director of the laboratory, to further our showing with respect to the relevance and materiality of identifying this source.
I take it that then you are declining Miss Sager's offer to submit a declaration by Miss Savage regarding the foundational issues?
Yes, your Honor. In the context of a motion to quash at least, I know of no authority that suggests that a reporter needs to personally take the stand as opposed to submitting by declaration form information which is merely foundational. And in this case, and as in other cases that I am aware of, the Court has accepted a declaration from the individual simply establishing foundational facts, and until the Defense counsel has information which would tend to cast any kind of doubt on any of those foundational facts, and given that the subpoena in question was accepted by KNBC's counsel at the Defense counsel's request, I don't think that there is any question about her employment, about the context in which this information was gathered. And certainly I am aware of no information which would suggest anything to cast into doubt her representation that the information came from sources who had been promised confidentiality. So absent all of those factors and in light of what other courts in California have adopted as the direct procedure to determine these matters on a motion to quash, it is simply the same as any other discovery motion where the court can take evidence and make a ruling based on evidence before the court. The information does not need to be in testimonial form, certainly can be in declaratory form, and the only reason to not do it that way would be if there is something that would tend to cast doubt on information in that declaration. And absent an offer of proof by Defense counsel suggesting that information exists, then I think a declaration would be appropriate and to force Miss Savage to take the stand would not be an appropriate exercise of the Court's discretion.
All right. Thank you, counsel. As to the motion to quash the subpoena for Tracie Savage, the Court will deny that motion for the following reasons: The offer that has been made, the preliminary offer that has been made by the Defense is sufficient for the Court to go forward to at least establish foundationally that she is a news reporter and that her sources as to this broadcast, this specific broadcast, were to be held in a confidential manner. I think that has to be established on the record and subject to cross-examination, so to that extent the motion to quash is denied and I will grant the Defense the opportunity to call and question Miss Savage. As to the those issue in fact after being asked will she reveal the sources of those--that information, and if she invokes the shield law and indicates that even if the Court finds her in contempt that she will not reveal those sources, then the Court will go into the other issues suggested by Delaney. And if that occurs, this is a rather complex issue that I will not probably be able to determine today. All right. Madam reporter, what is your status?
It must be a reasonable possibility first, not merely any possibility, that the information will assist the Defendant, and the Delaney court specifically said it must go beyond mere speculation or conjecture or some hypothesis about how this information might affect the Defendant's case.
Putting direct evidence that the source of this news report came from the Los Angeles Police Department would not just present a reasonable possibility of materially assisting the Defense, it would indeed go to the heart of our case.
I think the strongest point that you make inferentially is that once the Court ordered all test results be directed directly to the Court, rather than to the investigating agencies, that all of this nonsense stopped.
One cannot conclude reasonably that an individual that was responsible for testing these socks and knew that the evidence was planted then decided to disclose that knowledge to the press. It is counter-intuitive.
Let's try with something more fundamental like hearsay. I mean, how would that ever be overcome?