All right. Next issue is the Defense motion for an evidentiary hearing, and Miss Clark, you had left Court yesterday, but Mr. Dershowitz was here, and given the conflict the schedules, it was his proposal that the Defense be allowed to make their argument, which he estimated fifteen minutes or so, today, allow you to hear the argument and then respond next week, as I understand as you are requesting.
That was discussed with Mr. Dershowitz and Mr. Darden yesterday afternoon in chambers at the conclusion of the Court day.
Well, if they--if we recess in time, I can respond today, too. We were going to present a responsive declaration. I don't know if that is, umm--
Well, let me ask Mr. Darden. Mr. Darden, how many more witnesses do you have this morning?
Well, we would like to recall Mr. Rubin back to the stand for a short while. Mr. Acosta is enroute to testify. We would like to call Miss Redfern or Mr. Aguilera sometime this morning, time permitting.
Well, then I think we ought to hear the argument now and proceed with the witnesses after we hear the argument on this motion.
If it please the Court, a little before ten o'clock central daylight time this morning Officer Rodney Tilley of the Panama City Police Department approached Marianne Barbieri, the mother of Paula Barbieri whose name has surfaced in this case, and as a messenger, allegedly for Detective Tom Lange, said, "Now that the relationship between Mr. Simpson and your daughter has changed, would you find out if she would like to talk to us?" Miss Barbieri has hired a lawyer, made it known to the Prosecution that she can be reached through her lawyer, and only that way, and we would like to make this a matter of record, because if it happens again, we will ask for sanctions. I am in touch with her on a regular basis. There is no change in the relationship. It is every bit as strong as it was on June 12, 1994, and we would ask that she not be surreptitiously approached by the police. Thank you.
Your Honor, may I inquire of Mr. Bailey, is Mrs. Gerchas a witness on your witness list? I'm sorry, Mrs. Barbieri, is she a witness for the Defense?
Okay. And we are familiar with Florida State law as it relates to witnesses and depositions in criminal cases and we will act accordingly.
All right. But the contact with her is to be through her counsel if she is represented by counsel. All right. That goes without saying. All right. Mr. Dershowitz.
Good morning. Thank you very much, your Honor, for accommodating my schedule. I will trial to keep it very brief knowing that the jury is out this morning. We are very concerned about the possible specter of a mistrial hanging over this very lengthy trial. The Defendant, O.J. Simpson, has the right to have his case decided by this jury and not some subsequent jury. Yesterday's incidents and events make it as clear as any events could ever make it why the Prosecution would benefit if they had a second opportunity to try this case. If the Prosecution had a second opportunity, if they could do what we when were kids we called a do-over, obviously they would try this case rather differently. I doubt that we would see O.J. Simpson being asked to try on his gloves. I doubt that we would see Dennis Fung being called as a witness. That is precisely why the double jeopardy clause, both under the United States constitution and in its more expansive view, under California law, gives the Prosecution simply one shot, not another chance. And we are very concerned, because we are down to two alternate jurors, that the Prosecution in one respect has a no lose scenario that they may be attempting. Namely, that they are trying to reshape the jury to its advantage by striking jurors selectively and they know that the worse case scenario is that there will be a mistrial, and if there is a mistrial they get to try the case a second time. That is precisely what the double jeopardy clause prevents the state from doing. Therefore, we, in an effort to prevent this from occurring, make two motions: One, that no further jurors be struck for any reason whatever, and that as part of that motion, at this point this time, as part of that motion, that once jurors are down to a number like 14, 13, 12, in the context of a case like this, that the standard of removing jurors is no longer good cause under California law. It rises to manifest necessity. That is, the Supreme Court of California, in a series of cases, Davis, Larios, 1970 genre era cases, made it very, very clear that there is a difference between the criteria for striking a single juror and striking a jury, and that when you get close to the line that by striking a single juror you may be requiring that a new jury come in, that the standard is elevated, the standard becomes not good cause, but manifest necessity.
Indeed several cases in the California Supreme Court make it clear that there are really three very different standards. One standard before jeopardy attaches for recusing a juror for cause, another standard while jeopardy has already attached for removing an individual juror when there is no likelihood that the removal of that individual juror may result in a mistrial, and a very different and highly elevated standard when the removal of a single juror or a series of jurors may result in a mistrial. And we think that this Court should have and should from now on certainly be using a manifest necessity standard rather than a good cause standard for striking any jurors. And we suggest and propose and move that in the event there are any further jury problems, particularly problems of individual juror disqualification, that the Court hold those in abeyance until such time as the case--case has reached its final point, the Judge has instructed the jury and the jury is going into deliberate. At that point either side could then move to have a juror removed for good cause and if the issue then certainly simply is the substitution of one juror for another, rather than the dismissal of a jury, then the Court can go back to a good cause standard, rather than the manifest necessity standard. So that is the prophylactic motion that we are making, the preventive motion that we are making to assure that this jury decides this case, because statistically there is always the possibility that there could be death, there could be injury, there could be illness, there could be family problems that are beyond the control of the Court. What's unique about this case, your Honor, is that the ten jurors that have been disqualified up to not--not a single one, well possibly one, but more than one, has been disqualified for what would be the conventional reasons listed by the California Supreme Court as constituting good cause in the context of manifest necessity. They have not been traditional cases of illness or death or family problems, more in the area of juror misconduct problems which we believe are in the areas of law, which the Court has said dismissal of jurors on mistake of law does not constitute manifest necessity. So that is step 1 of our motion. And the second step is a rather more delicate one, and that is, your Honor, we move that in the event this jury does not reach a verdict, for whatever reason, whether it be a hung jury or a dismissed jury or if it achieves a verdict of guilty, which we hope and pray it will not, that we ask now for a ruling that we can have an evidentiary hearing which we would like to begin preparing for, at which we can summon the various personnel who have been involved in the disqualification and recusal of jurors. Because we believe that there is a basis on the record for our suspicion that the Prosecution has targeted jurors, has selectively investigated jurors in an effort to shape the jury to its liking. And that, too, is not proper under the double jeopardy and due process clauses of the constitution. And so we would like to know in each case for each juror that was removed what the basis for the investigation was, who commenced the investigation, what the sources of the information were. We would also like to know whether there was information on the record about other jurors, jurors who the Prosecution felt were to their liking which was not brought to the attention of the Court, because as we argued early on in time, the structural problems of the way in which jurors are monitored in this jurisdiction create a real potential for prosecutorial abuse. We have no investigative resources. We don't have access to the Sheriff's Department. The Sheriff's Department is state action, it is law enforcement. We worry very much that the Sheriff's Department can be consciously or unconsciously a conduit to the Prosecution of information about juror attitudes, a conduit of information about potential misconduct which then can be selectively invoked. And if there has been any selective invocation of allegations of misconduct favorable to the Prosecution, we think we are entitled to make a record on that and if necessary bring it to the attention of an Appellate Court. As your Honor is aware, the issue of double jeopardy is an issue that can be presented to the Appellate Court on a writ of prohibition and can serve as a barrier to a subsequent trial because jeopardy has attached. And as the courts of California have said repeatedly, once jeopardy has attached, if a jury verdict is not reached, that is legally tantamount to an acquittal in the absence of consent by the Defendant, which is not forthcoming, or manifest necessity which we believe would not exist in this case if there were a mistrial caused by jurors being insufficient in number to render a verdict in this case. So your Honor, we ask for those two remedies. We have in the past asked for another remedy, namely, we believe and we have believed from the very beginning, that the structural issue, namely, the Sheriff's Department law enforcement state action of a prosecutorial--with a prosecutorial bent, being the people supervising the jury, being the conduit to your Honor, being the conduit to the Prosecution, raises structural problems, and we have believed from the very beginning that social workers, neutral officials of the court, not law enforcement personnel, should be the conduit, should be the people supervising the jury in this case. We renew that request. But the primary request that we are making here today, and I will simply finish with this, is the two that I have previously alluded to, a ruling that there be no further disqualification at this point of time of any jurors without a showing of manifest necessity, that such issues be put off until the end of the trial. And that in the event that there is less than a verdict of acquittal, other than a verdict of acquittal in this case, we ask for an evidentiary hearing to be held so that we can establish a record of juror targeting, that we can establish a record of how the Prosecution may have taken advantage of the potential for abuse that exists in this system. If there are no further questions, your Honor, I made my point.
Thank you, your Honor. Of all of the motions made by the Defense, I find this one the most offensive, groundless and baseless. This was a motion filed deliberately for inflammatory effect. It has no law in its support. It has no facts in its support. This is a scurrilous attempt to inflame the community, if not the very jury itself. It may be constitutionally protected speech, your Honor, but constitutionally protected does not mean moral, does not mean ethical and does not mean truthful. And the groundless, baseless, inflammatory allegations contained in this motion are the lowest tactics I have seen yet in this case. The Defense knows precisely why each of the jurors were excused. They know precisely where the information came from. They know the procedure that has been imposed by this Court in terms of juror investigation. And all investigations are conducted by this Court, not by the Prosecution and not by the Defense. And Mr. Dershowitz does not know how the information came to light about juror 353? Why? Doesn't he talk to Mr. Cochran? Mr. Cochran brought out the anonymous letter sent to his office, the phone calls made to his office, because they were targeting juror 353 for months. We all know this.
And Mr. Cochran, don't be disingenuous with the Court. It is very clear that they wanted that juror excused for quite a long time. And for Mr. Dershowitz to stand before this Court and make such allegations that the Prosecution is targeting jurors is simply offensive and unethical and unsupported in any facts. And the Defense posture, their very premise is absurd that we would like to try this case again because we would try it differently. We would not call Mr. Fung. I would like for Mr. Dershowitz, a law professor, to explain to us how we could put on evidence without proving someone critical in the chain of custody? How do we present evidence without showing the jury how it came into the police custody? Mr. Fung collected it. Now, how do we present that evidence without calling him? If Mr. Dershowitz has an idea, I would sure like to hear it. I heard no stipulation from the Defense concerning chain of custody. I think it is our burden. Their premises is absurd. But I will offer Mr. Dershowitz one thing. I would like to direct the Court to the remark made by Mr. Dershowitz in which he stated that he thought we would try the case differently, and I quote, "I doubt that we would see O.J. Simpson being asked to try on his gloves." The People so stipulate. And if that is what the Defense is offering in the context of this motion, we are glad to accept. Now, the premise is already ridiculous from a legal point of view. No further jurors be excused for any reason at all? Is that so? If Mr. Dershowitz were to know of a juror presently seated who said he is guilty and nobody is going to convince me otherwise, I've got my mind made up, where is his argument then? You think Mr. Dershowitz would stand before this Court and say that very thing? Not on your life. It is legally absurd. There is no legal precedent for it. Not only that, but Mr. Dershowitz takes the concept of manifest necessity and stands it on its head. Manifest necessity has never been a standard employed in the context of juror excusals, your Honor. Manifest necessity is used as a shield, not a sword. Manifest necessity permits a retrial where otherwise jeopardy would have attached; not the reverse. Mr. Dershowitz has the law standing on its head. And the case of Illinois versus Summerville, which discussed manifest necessity, discussed it in the context of the defective indictment, an indictment so defective that the charges could not be understood, the elements could not be understood, and so the case was set aside, although jeopardy had already attached, and manifest necessity was invoked to permit the retrial where ordinarily it would not have been permitted. That is where manifest necessity belongs, not in the context of juror excusal. Mr. Dershowitz cannot point this Court to any legal authority to justify invoking some new standard because we have some special Defendant. There is a standard that applies to everyone, everyone, all defendants, and all prosecutions in this state, and that is good cause and this is not a different case and this is not some special case. This is a murder trial where these jurors are going to be held to the same standard they are in every other trial. Good cause is our standard and that is the standard we live by. And when good cause is shown, as it was in each and every instance in this case, then they must be excused. And Mr. Simpson does not get some higher standard for the jurors he likes or doesn't like. Now, with respect to the jurors that were excused, at no time has the Prosecution made any effort to seek out information as to any particular juror. In each and every instance members of the public have come forward to this Court or to the Prosecution, and in the event that they have come to the Prosecution, we have turned it over to the Court. Many of the instances the information came directly to the Court and then had to be investigated.
The Court fulfilled its obligation, as it is required to under the law, and as we are very well aware, under Bergner and its progeny, when any indication of juror misconduct is brought to the attention of the Court it is obligated, it is mandatory language in those cases--I know the Court is aware of that--that you shall investigate. You cannot refrain from doing so. And it has only been when the misconduct has been so egregious that it was clear that the jurors could not be deemed to be fit jurors, either because of contradictory information in the questionnaire based on what we later learned was not--we learned it was later proven not to be true, or because of conduct on this very jury. With respect to the excusal of juror 1489, several jurors came forward to this Court to complain. That was not one person complaining. Counsel will have--would it seem that the Prosecution is funneling information here and going out and digging up information on these people. Nothing would be further from the truth. And the Court staff that--that the Court has doing the investigation is nothing more than responsive, reactive. The deputies involved in the investigation are given information from the public and required to investigate it. So this motion is in derogation to reality. It is in derogation of the truth and of the facts. We have ten jurors thus far excused; five at the behest of the Defense. I think that that probably speaks volumes right there. The Court is aware of the procedures that it has imposed in this case, and to even entertain this thing that doesn't even--shouldn't even be dignified with the title of "Motion," I don't think I have ever seen law practiced this way. These are--these--these are really baseless allegations. The declarations filed by Mr. Cochran have absolutely no merit and I mean they have no relevance. Brenda Postel makes some remark about some remarks made to her by some other deputy that has nothing to do with the allegations they are making. They have--I mean, I eagerly awaited what was going to be in their declarations. When I finally saw it I was shocked. There is nothing there. There is nothing there. So the Court really has to ask itself why is such a motion being made? Is it true that the Defense really wants to avoid a mistrial? Is that true? I wonder. I really wonder. I think it is the Defense that is looking for a mistrial in this case, your Honor, and I think that this is nothing more than pointing fingers at everybody else to avoid the light of suspicion that should be appropriately cast on this side of counsel table, on the Defense side of counsel table. This is a baseless motion. This is a lawless motion. This is a factless, evidentiaryless motion. It should be not only denied, but I think that counsel should be admonished against making such deliberately inflammatory motions. It is irresponsible and it is unethical.
Your Honor, I'm new to this courtroom, but I will tell you right now I am not under any circumstances ever, while I stand up here today, going to respond to any of the ad homonyms. I simply am not going to play that game. I am simply going to just talk to the merits of the issue. Having said that, I would urge the Court to read the case of People versus Larios which is in direct support for our proposition that once the juror number gets down to the critical point where a mistrial may have to be declared, the legal criteria is manifest necessity, legal necessity. Let me read to the Court one paragraph: "The fact that a juror's actions or beliefs would provide good cause for his replacement if an alternate were available does not mean that this is legal necessity for a mistrial where no alternate is available." The Compton case as well certainly suggests the sliding standard and the sliding standard makes enormous sense. If the Court has the luxury of a large number of alternate jurors, then good cause--
Unfortunately that luxury no longer exists. And so we are at a point where manifest necessity must be the criteria. Let me respond directly to the question put, "What if we were to find a juror that said we believe O.J. Simpson is guilty?"--an unlikely event, I think, after yesterday's proceedings--but if we were to find such a juror, it would be our choice and our choice alone whether or not to seek a mistrial. And that is what Larios said precisely. If the Judge were to impose a mistrial, if the Prosecution were to seek a mistrial, at that point jeopardy would attach. As the Court said in a series of opinions, uniquely within the Defendant's mind and the Defendant alone, it is his tactical decision whether or not to risk a second trial, whether he has the resources for a second trial, whether he has the emotional wherewithal to sit through a second trial. And the United States Supreme Court and the California Supreme Court do not balance equally. The Defendant is entitled to make these tactical decisions; the Prosecution is not. This is not a level playing field under the double jeopardy clause. The Prosecution is not allowed to make tactical decisions preferring a second trial to a first one. The Defendant is entitled to make precisely those very tactical decisions. Now, Miss Clark talks about tactical decisions that she might make. She challenges the Defense to ask how possibly this case could have been tried without the primary fact witness, Dennis Fung, being called. Well, we learned very well from the Prosecution.
Look at what they did with Dr. Golden. They figured out a way of getting around calling Dr. Golden and they would try to figure out a way of getting around calling Dennis Fung. That is precisely why rehearsals are not permitted by the Prosecution in criminal trials. On Broadway plays open in New Haven and in Boston to see how they run. In courts of law one time is all you get. The Prosecution has had its time. May I formally correct the record, when I referred to "His gloves," obviously I was talking about the Prosecution's theory that they are his gloves. The evidence yesterday proved dramatically that they are not his gloves. As far as our basis for this motion, the basis is very clear. If your Honor didn't see, everybody else in the country saw Marcia Clark walking out after one of the jurors was disqualified giving another Prosecutor a thumbs up sign. We have an affidavit here that Mr. Darden told Mr. Cochran "We got your boy." We have evidence in the record that the LAPD is currently investigating for the Prosecution witness'--I'm sorry--jurors who are now sitting. The Prosecution may deny that. That is why we have hearings, precisely to resolve these kind of disputes. If and when this case gets to an Appellate Court, your Honor, they are not going to be able to take Marcia Clark's word on the fact that there were no investigations ongoing. They will want to see a record made. They will want to see witnesses sworn under oath. They will want to see evidentiary rulings, evidentiary conclusions. Deference will be obviously accorded to your Honor's findings. We are aware of that and we want a hearing at which we can call our witnesses, they can call their witnesses. We don't have to exchange ad homonyms. The facts will prevail. If the facts go our way, we will win. If the facts go their way, they will win. That is why we have evidentiary hearings. Your Honor--excuse me one second. Well, I have to repeat what one of my co-counsel says--I was not here and I can't make this representation--but a very respected reporter said that Marcia Clark left the court after the juror was disqualified, quote, "In a dance step." Now, I'm not sure the Court wants to take judicial notice of the level of happiness the Prosecution has expressed, but there is no question--and your Honor, I'm at a disadvantage here because although I have read every word of all the sealed transcripts regarding the disqualification of every single juror, because they are sealed I am not free to make arguments in public that I would make if we have an evidentiary hearing, and on the basis of sealed records, about the method by which jurors have been selectively disqualified in this case. And the fact that five may have been jurors who were favorably disposed, according to the Prosecution, to the Defense and five, according to the Prosecution, favorably disposed to them, does not enter into the double jeopardy considerations. Your Honor, I do have to acknowledge that this is in many respects a case of first impression. We have found no case anywhere in the United States where we've had a situation of twelve alternate jurors, ten of whom are disqualified for reasons that are not traditional reasons, and then we get down to two with a potential for a mistrial.
Courts have not had to consider, except the two cases that I have mentioned, the intimate relationship and subtle relationship between good cause disqualification of individual jurors and manifest necessity as the criteria for avoiding the rigors of double jeopardy. But when your Honor thinks about it, as a simple matter of common sense, and as I say supported by Compton and supported by Larios, that sliding scale exists. And that if this Court were, for example, God forbid, to get to a situation where it was down to the last juror, say, it was down to twelve jurors and there were to be then an issue of potential recusal of that juror, surely my distinguished opponent would acknowledge that at that point the criteria is not good cause. The criteria at that point is manifest necessity. That is the holding of Larios; not dictum. That is the holding of that case. And so as a matter of simple logical extension, most of these cases deal, A, with short trials. B, in most of these cases it is the Defendant who is seeking the mistrial and the Prosecution who is seeking not to have a mistrial. When you have a situation relatively unique in American jurisprudence, a lengthy trial of this kind, twelve alternates, and then we get to a situation where nonetheless we may have a mistrial, over the strong objection of the Defendant, manifest necessity becomes the constitutional criteria, both as a matter of California law and as a matter of federal constitutional law. And in order to determine manifest necessity we have to know on the record what happens and we don't have a full enough record at this point--I will concede and acknowledge and assert that my opponent is correct, at this point in time we don't know everything that happened. That is precisely why we are seeking a hearing. We are not calling our opponents names. We are simply seeking a hearing. And that is the way I would like the record to remain. We are respectfully seeking an evidentiary hearing at which we can call our witnesses in order to establish that if this jury gets below twelve it will not have been the result of manifest necessity. If that is true, double jeopardy applies, Mr. Simpson is deemed innocent and he cannot be retried. Thank you, your Honor.
Your Honor, just one further point. We do not want our silence to be taken as an acknowledgment in reference to juror 353 that Miss Clark's characterization of the grounds upon which that disqualification occurred is true. We dispute that. We, because the record has been sealed, are not right now in a position to publicly dispute that, but we will file a sealed statement as to what our position is on 353, 1427 and 1489. We have very strong views about the relationship between the disqualification of those three jurors and why the disqualification of 1489 was not an appropriate disqualification, not under good cause, not under manifest necessity. We need not litigate that at this time, but we do not want our silence in any way to be taken as an acknowledgment that we accept the characterizations of Miss Clark. Thank you very much, your Honor.
Thank you, your Honor. I appreciate it. People versus Larios has been miscited by counsel and mischaracterized by counsel. People versus Larios measures the entire proceeding, not any single excusal. It looks through the entire record to determine whether or not good cause was established for the excusal of the jurors in general, with respect to each and every one, and then overall whether there was manifest necessity for the mistrial. And that is where Larios stands. Larios at no point says that manifest necessity is the standard by which each individual juror must be excused. And Larios goes actually to a separate issue which is whether a mistrial should or should not be declared. And in that vein counsel is also incorrect. Counsel cites to the Court the fact that only the Defense can choose to provoke--or choose to have a mistrial. It is true that only the Defense can make the motion for a mistrial; however, the Defense cannot declare the mistrial. The Defense cannot determine or provoke the mistrial. And there are cases right on point that state that even where the Defense creates a ruckus in the courtroom, where the Defendant has attacked his lawyer in the courtroom or attacked a witness in the courtroom, with a deliberate point being to provoke a mistrial, that the Court is within its discretion to refuse to give them the benefit of their--of their misconduct. It is within the Court's discretion to declare the mistrial. The courts decide when a mistrial should be granted. We have not reached a point yet where we have to make a decision whether we should proceed with fewer than twelve, but I can tell this Court that it will be certainly my position that we should. I have no desire to see this case go to retrial. I have no desire to see this case go through a mistrial. I want a verdict out of this jury. And I know that I speak on behalf of all of my colleagues on the Prosecution, we want this jury to reach a verdict. That is what we want. And if that means that at some point we have to come--we have to decide to accept fewer than twelve, we will make that decision at that time, but with a very strong leaning in favor of going along with that, because that is not what we want. Mr. Dershowitz, in the course of saying we are not going to call our opponents names, does that very thing. I love that kind of disingenuous stuff. Let's be honest. That is what he is doing. And he is going to cite a reporter's hyperbole that I did some dance step. That is nonsense. The reporters have to sell stories. They are good writers. It is fun to read, some of them. All right. I see the Court rolling its eyes. That doesn't apply to all, but some are. I enjoy reading them. They have to sell copy. It sounds a lot more exciting to hear that the Defense said that the Prosecution is out there dancing than it does to say Miss Clark walked out and seemed to have a smile on her face. Oh, boy, that is real fun. So they've got to write something that is going to grab People's attention. And we're going to cite that to the Court as a basis for saying that the Prosecution is targeting jurors? That is fine. Let me also then add to the record Mr. Cochran's beaming face laughter and laughter at the excusal of juror no. 353. Let me also add to the record Mr. Cochran's negative remarks about the few remaining white jurors on this panel.
No, no. Mr. Cochran really cannot afford to resent that. That is what he put in his declaration.
Let me address it in the context of the motion, your Honor. Mr. Cochran put into his motion a declaration--
I don't think you can honestly believe that I would ever consider extrajudicial commentary, newspapers, the sources of information that would cause this Court to take any action, at least in this context.
Then I won't--I will not mention that again. I was referring to Mr. Cochran's declaration--
--in which he cites an offhand remark made privately in jest between Mr. Darden and Mr. Cochran as a basis. That alone, that declaration alone, tells you that this has no merit, there is no substance to these allegations. But the Court is in possession of all of the facts. The Court knows, as the Defense knows, too--Mr. Dershowitz perhaps himself doesn't know, but the rest of his team is very well aware how the information came to light in this case. They are very well aware of who reported what, what transpired in chambers, what the Court's rulings were, what the investigations turned up. They know that. That is what makes this motion so hollow, so empty. And none of the cases cited by counsel is at all on point or should cause the Court to alter a standard that has been in place in California for many, many years. The bottom line of this motion is that it is okay when you excuse jurors we don't like, but we don't want you to excuse the jurors that we do like. That is what this motion is about by the Defense. You can only excuse jurors when we say it is okay. Obviously that is not standard, there is nothing legal about that. There is no precedent for it and there is no logic to it. And that is basically where this motion stands.
Your Honor, just one second please. I know your Honor read the Larios decision. I can't believe that Miss Clark was actually citing that case, because that case involved one juror, not many jurors, and the Court made exactly the statement that I said it made about one juror, when that one juror becomes the critical juror. So the law in California, your Honor, is clearly on our side. This is not a case where the issue is shaping jurors by the Defense. This is a case where the Defense, before the last three jurors were disqualified, filed the motion making precisely the same point. All we've done now is elaborate on that motion, including what was done since that period of time. So our motion was made even before the last three jurors were disqualified. We were concerned about this from the very earliest point in time. Our concern has only been enhanced. And we will provide the Court, as I said, with a sealed argument regarding the last three jurors which we think support our position. Thank you very much, your Honor.
Of all of the motions made by the Defense, I find this one the most offensive, groundless and baseless. This was a motion filed deliberately for inflammatory effect. It has no law in its support. It has no facts in its support. This is a scurrilous attempt to inflame the community, if not the very jury itself.
I doubt that we would see O.J. Simpson being asked to try on his gloves.
The People so stipulate. And if that is what the Defense is offering in the context of this motion, we are glad to accept.
A very respected reporter said that Marcia Clark left the court after the juror was disqualified, quote, 'In a dance step.' Now, I'm not sure the Court wants to take judicial notice of the level of happiness the Prosecution has expressed.
There is no change in the relationship. It is every bit as strong as it was on June 12, 1994, and we would ask that she not be surreptitiously approached by the police.