Your Honor, regarding the questions that are going to be proffered, are we going to be allowed to take a look at the questions?

Oh, yes. Absolutely.

Thank you.

Your Honor, before we embark on the transcripts, I do want to ask the Court to at least take under submission the ruling on the photographs. Apparently, Defense is not willing to provide Dr. Lee's photographs that he took of observations--

I'm sorry. That wasn't one of the items in the brief.

It was not included in the brief. Did you want me to put it in writing?

Why don't you put it in writing.

All right. Thank you.

All right. Before we launch into this hearing, I received a response regarding Mr. Mirell's motion from the Defense. Mr. Darden or Miss Lewis, are you going to speak on behalf of the People in this matter?

I am going to speak on behalf of the People. We have not filed a written opposition. There is at least one case I found, citing. I know the supplemental petition from the ACLU was untimely having been filed yesterday. I will waive our objection on that basis if they'll waive the problem with the Court taking it under submission until it has an opportunity to read the case I have cited to it.

Sounds fair enough.

Can we see the case you have?

Yes. It's--it's a brand new and the latest advanced sheet, Second District Court of Appeal case, People versus Feagin, F-E-A-G-I-N, at 34 Cal. App. 4, 1427.

What volume of the advanced sheets is it?

I don't remember the number, your Honor. It's--I just got it within the last few days.

May I ask to borrow that?

Sure.

I'm aware of the case, your Honor.

All right. Mr. Mirell. Good afternoon.

Good afternoon, your Honor. Thank you very much. First, let me introduce myself. Douglas Mirell, M-I-R-E-L-L, volunteer counsel representing the ACLU Foundation of Southern California. Joining me here in court is an individual who assisted me in the briefing on this, David Crochetiere, C-R-O-C-H-E-T-I-E-R-E. Also, as the Court knows, Miss Sager is present as well, and she filed, as the Court indicated, a joinder on behalf of nine media entities including all of the major television networks, the Los Angeles Times and others. Since the Court is aware of Defendant's joinder, let me just simply note that also present in the court today, and I received a joinder from him, although he arrived too late to submit it to Miss Robertson, is Rex Reeves, who is appearing on behalf of dismissed juror Florence--Francine Florio-Bunten, and Miss Florio-Bunten is here in Court as well. I want to thank the Court first for allowing us this opportunity to appear before you and for hearing this motion.

Well, Mr. Mirell, let me--forgive me for interrupting you, but I have familiarized myself with the motions filed, and let me cut to one particular issue that I'm interested in.

Sure.

It is true that a number of the jurors who have been dismissed from this case have voluntarily made their identities known to the public through the news media and have acquiesced interviews and, in fact, have affirmatively gone out and sought to be interviewed. Some have sought to financially gain from this experience. Let's assume that perhaps the Court's interest in protecting the privacy of those individuals has disappeared since those individuals have voluntarily decided to put themselves in the public eye. However, a number of the dismissed jurors have not so made themselves public figures, have declined to be interviewed, have in fact been traumatized by the accesses of the news media in hunting them and those individuals maintain that posture to this date. Should I make a distinction between those two?

Well, your Honor, I think there are issues that may be raised that unfortunately we are not in the best position or really any meaningful position to address, because it may well be the case that with respect to the dismissal of certain of those jurors, there may be--and we have acknowledged this in our briefing--there may well be instances where releasing certain portions of transcripts of dismissal hearings might well implicate personal privacy interests and might well constitute an unwarranted invasion of an individual's personal privacy rights in a particular case with respect to particular information.

I, however, cannot accept, your Honor, the notion that a blanket order which precludes the release of any portion of any of the transcripts concerning any of the hearings concerning dismissal of any of these jurors is appropriate. Under the governing law, it's not narrowly tailored. There's no compelling interest that's being supported by that.

Let's not even get into that argument. But do you agree that that are perhaps some instances of personal privacy that the Court should continue to protect? Let's assume that I'm willing to disclose those transcripts that involve individuals who have decided that their privacy is not of interest to them.

No. I understand that. Let me say this. I think that with respect, for example, to--let's take the two jurors whose names have not been publicly disclosed as of this point. With respect to those two jurors, I would not expect, for example, that the Court would release portions of the transcripts concerning their dismissal which identify them by name if there are any such portions. However, I do believe, your Honor, that there is every reason and no good reason not to release those portions of the transcript which describe the reasons why these jurors have been dismissed, which describe the evidence that was before the Court, which describe the Court's rationale for dismissing these jurors. So with respect to them, for instance, I would say that at this point in the trial, it probably is appropriate to retain their--their names in confidence. With respect to another category of jurors, Miss Hampton and Miss Chavarria, who I think are the two who have elected not to speak to the press in any meaningful way, although Miss Chavarria I believe did give an Associated Press interview one or two days after she was dismissed. But in comparison, at least to Kathryn Murdock, to Michael Knox, to Tracy Kennedy, to Jeanette Harris, to Miss Florio-Bunten, to Mr. Craven, those are two who are in a somewhat different category. But I would suggest, your Honor, that with respect to them, we do not have the name disclosure issue that's meaningful. They've already--their names are already known. They have already--unfortunately, your Honor, this may be a digression, but in the case of Miss Hampton, I must say that I believe that her dismissal and the way in which the Court handled that dismissal is an example, a prime example in fact of where the Court's on the record description of the dismissal decision and the rationale and the contemporaneous release perhaps of the transcript, sensitively redacted if there are personal privacy issues there, could have avoided the kind of feeding frenzy that ultimately occurred not only at Miss Hampton's home I might add, but at the homes and businesses of a number of other jurors. Because as the Court will recall, the Court did not disclose which of the jurors it had dismissed. And so the press, as eventful--as inventive as they are, were going about seeking to try to find out what juror might be being dismissed. So my concern with respect to those jurors is that what the Court ought to be doing in that case is yes, perhaps reviewing the transcript as quickly as the Court is able to do, determine whether those transcripts contain any portions which do implicate a clearly unwarranted invasion of personal privacy and make appropriate redactions of those transcripts at the time. And with respect I think though to the other six jurors, your Honor, those who have gone more or less fully public, Miss Murdock, Mr. Knox, Mr. Kennedy, Miss Harris, Miss Florio-Bunten and Mr. Cravin, I think that it is doing no one a service, particularly the jurors themselves, the former jurors themselves that is, to have their transcripts and the records of their dismissal proceedings kept sealed, because what has happened, as the Court well knows, is that a persuasive regime of rumor, speculation and innuendo has taken the place of fact. And I think, your Honor, too that that speaks to a second issue which we raised in our initial papers, which is the importance of the Court actually articulating on the public record and perhaps even in the presence of the jurors the reasons for its dismissal decisions at the time those dismissal decisions are made. That is interestingly enough one of the--one of the salient aspects of the Feagin case that has just been cited to you by Miss Lewis. In Feagin, what happened is that the Court in fact disclosed on the public record what it is that--why it was that it made a decision to remove a particular juror. And I think that practice buttressed and bolstered by the practice of Judge Ouderkirk during a much more commonly sensitive Reginald Denny beating trial where Judge Ouderkirk contemporaneously released the transcript of juror dismissal hearings--

Ouderkirk.

Ouderkirk. I'm sorry. Where Judge Ouderkirk did that, your Honor, he I think performed a public service because he--even though the dismissals occurred during the midst of jury deliberations, he eliminated the possibility that there would be speculation or guessing about why it was that a particular juror had been dismissed and what the--what the motivating factors were.

Do you know Judge Ouderkirk's present position on this issue?

He has not communicated with me, nor I with he, your Honor.

I think he regrets that situation because that particular juror received death threats and was erroneously identified as being some other person, which resulted in problems with the other person. There were significant problems in the disclosure of that information.

Well, your Honor, with respect to--with respect to the jurors who have already been publicly identified here, misidentification is not a problem. And with respect to--I have no information one way or the other, your Honor, which would permit me to comment upon the other aspect.

Just a digression.

Yeah. But in any event, I don't--I don't know what the Prosecution's view on the underlying motion is. But, your Honor, I think that the Feagin case, if they're going to cited it to you, has no bearing upon this issue whatsoever. It's simply the Court's--as I understand it, the latest statement on the basic underlying issue of manifest necessity versus good cause and what might constitute that. But I think it is interesting, your Honor, and I commend the Court to footnote no. 6 in the case, in which the Court lays out albeit with lipsus a seven-paragraph description, a seven-paragraph description of why it is specifically that this particular juror was dismissed. And, your Honor, I must say that by contrast, what's happened in this case is that we have either seen a total absence of any description whatsoever in the case of Miss Jeanette Harris about why she was dismissed--the Court did not even state its usual dismissal for good cause found, rationale. But with respect to other jurors, Tracy Kennedy, he is the only juror who has been dismissed from this case where both sides were solicited and acquiesced publicly here in open court to that dismissal, and the Court found abundant good cause.

Now, what was so different about Tracy Kennedy than about any other juror that caused the Court to do that in that case and that case alone? I don't know. But the problem is that the absence of the Court's articulation of a rationale for that dismissal decision and for all of the other dismissal decisions is that the public has been left to speculate. And speculation, your Honor, in the context of a public trial is just not what ought to be encouraged. And I think both the People under proposition 115 and the Defense under the sixth amendment and article I, section 15 of our California constitution, each have a right to a public trial. And the cases that we provided to the Court already manifestly demonstrate that a clear component of a right to a public trial is the right to know what's going on at all stages of the proceedings. And if that--and if those proceedings are not such that the Court feels comfortable providing access, although in some of the cases we've provided to you, the Court will note that even in juror dismissal hearings, there have been courts which have concluded that the press ought to be physically present during those dismissal hearings, ought to have access to those--to even post-trial investigations. But that's not what this motion is about. We're not here requesting that the media at this point or the public be allowed into those hearings. What we are saying is that at bare minimum, what this Court ought to do to insure the public trial right is to contemporaneously, promptly, as promptly as possible release the transcripts of those proceedings and related development.

Do you think I should at least require that notice be given to these jurors who maintained or at least a notice that unless I hear from them, that I'm inclined to release the transcripts redacted for personal information?

Well, your Honor, I don't know of any case which has ever said that jurors ought to have some ability to control what it is that they--what it is that is released about them and their conduct during the course of trial.

You think dismissal for misconduct is sufficient to waive anybody's right--

I do, your Honor. And we heard from Mr. Dershowitz last Friday that this is not--and I must accept the fact because I've not been privy to any of the transcripts. Mr. Dershowitz said last Friday that this is not the kind of case where dismissals are for typical reasons, illness, death, things of that character, extreme family emergencies. He has asserted--and I appreciate that the Prosecution has contested at least to some extent the fact that each of these dismissals is a dismissal for misconduct. And I think what that means or at least what it says to me is that when jurors are engaging in misconduct, they are violating a public duty, a public trust. They are violating their solemn oath to do what it is that you have instructed them to do. And I think when that is found and when the Court finds good cause, good cause to find that that has occurred, then I think there has been a waiver, and I don't believe that it is necessary for this Court to make inquiry of the jurors.

I can think of one situation--two situations where I did not make a finding of misconduct.

Okay. All the more reason to release the transcripts, your Honor. If a juror is being dismissed for reasons other than misconduct and they are not--and I would hasten to add that even if they were being dismissed for what Mr. Dershowitz had characterized are traditional reasons, maybe there's some other reason other than misconduct or traditional reasons, but--

No. We had two traditional reasons.

Okay. If there are traditional reasons, I would suggest that there are ways of sensitively redacting the transcript of those proceedings to the extent that they really do trench upon matters that are private. And I would also suggest to the Court--and this is something we suggested back in April when we initially wrote a letter to you on this specific subject. I would suggest to the Court that when in the future, it is--I hope it doesn't have to engage in the process of determining whether or not additional jurors are to be dismissed. But if that unfortunate eventuality should come to pass, then I would suggest that what the Court ought to say at the outset of the proceedings is, look--to the individual juror--the transcripts of these proceedings are going to be made public, but they will not be made public until after you're dismissed. I think that's the way of remedying that problem on a going forward basis. Hopefully there won't be any need to deal with that on a going forward basis. But in any event, I appreciate the Court's forbearance on this, and I would simply reserve the opportunity to respond to counsel with respect to whatever they may say about the Feagin case.

All right. Thank you, counsel. Excuse me. Miss Sager. Good afternoon, counsel. Do you have anything additional to add?

Just very briefly, your Honor. I think Mr. Mirell has covered most of the points. The only thing that I would say in addition to that is that the hearing last Friday is I think a clear demonstration along with all the other problems he raised of the problems that arise from holding proceedings behind closed doors. You have serious accusations being made by counsel for the parties against one another and the public is left without any knowledge whatsoever about whether there is merit to the accusations or whether the proceedings that the Court is engaged in are fair, and the proceedings as they will ultimately result, is a fair result. And all of this has resulted I think in some kind of taint on the proceedings which can only be solved by releasing the materials and letting the public know what is going on.

And that's precisely what the third circuit Court of Appeals indicated in the Samone case; that once the taint has been raised, that then it is critical that the public be advised of what's going on so that they are assured that a fair proceeding is being held. And whether or not, as you mentioned to Mr. Mirell, some of the jurors have not been released for misconduct, I would think that that would be an even greater impetus for releasing information to the extent the Court can do it as to why they were released, because if statements are being made in court the jurors are being all released for misconduct, then I would think those individuals would have a concern about the public having a perception of them that is a false perception. And to the extent those have been released for misconduct, then the public should know that there is justification for those releases and not that--as some accusations have been made back and forth--that they're being released for reasons other than good cause. And the public is vitally interested in this. I've received a number of calls, as I'm sure the parties have and probably the Court, with people saying to me as one woman did last week from Northern California, "What are they hiding? Why don't they want us to know? There must be something there." And for the same reason that voir dire is held in the open, so the public knows that a fair process is being held and the result is a fair result, I think it's equally important that the public know when a juror is dismissed, what the reasons are for that dismissal. And I'd add nothing else, your Honor. I think that the time has come for release of these materials. There's no reason not to release them at this point. And as opposed to waiting for the end of the trial or some future date, the jurors who have been released have already been the focus, as your Honor mentioned, of a great deal of scrutiny. And if a further delay occurs before the release of the transcripts, they'll simply be the focus of additional scrutiny down the road. So it's not as if people are not going to wonder what has happened and why they've been released. If there's been misconduct, the public should know that. If they've been released for other reasons, the public should know that as well. So I would join in Mr. Mirell's motion and urge the Court to release the transcripts at this time. If there's a need to redact because of some inherently personal privacy interest on behalf of one of the jurors, then only those portions be redacted that must be redacted, just as the standards for voir dire would have the proceedings completely open, but for any inherently private material that must be done in chambers. Thank you, your Honor.

Mr. Dershowitz.

May it please the Court, this is a triangular issue. The Defendant has a sixth amendment right and the related California provision to a public trial. The media and the public and the ACLU have a first amendment right, and jurors may have an interest in privacy. With all due respect, the state does not have any rights and probably doesn't even have a sufficient interest to give them standing to participate in this discussion that perhaps explains why up to now, I don't even know what the state's position is. When I asked what the state's position is, I was not told by the state, but then I was told by a representative of the media that the state will surprise us by coming in and opposing this request. I'm not sure the state even should be given standing to make any argument because in some respects, it does not really involve any interests that they can specifically state. In very typical cases, there's a conflict triangularly between not the juror on the one hand and the public and the Defendant on the other hand, but often between the Defendant and the public. In many of these cases, the Defendant does not want the transcript revealed, and then you have a constitutional clash, the first amendment versus the sixth amendment because the Defendant can waive his sixth amendment right to a public trial within reason. In this case, the Defendant most definitely asserts his sixth amendment right. He wants this case to be entirely open. He wants this proceeding to be open as you know, your Honor. He requested that he be present. That has been turned down. That's for a different time and a different day. But he wants the public to know what went on there and for a very important reason. In my experience, your Honor, in more than 30 years of practice, I have learned that when the public is allowed to hear about these proceedings, the public can be extraordinarily helpful to the Defendant, particularly in a case like this one. Sources of information from the most unpredictable venues become--come to the attention of the Defense. And if this transcript were to be made public, we can expect people to come and call us and tell us about information they may have which we do not now have.

And part of the reason for a public trial is so that, because the proceeding is not held in secret, the public can participate through the Defense and indeed through the Prosecution as well if there's information that they would want to have made available to them. So our request is that the entire proceeding be made public. If your Honor feels that there is any particular juror--and I think, your Honor--and perhaps we have a disagreement here and this is a hard disagreement to move in public. We believe that there is only one juror who has any arguable privacy interest in this case and that all the other jurors were in fact dismissed for nontraditional reasons. Your Honor may have a different view of that. That is something that we can't debate without getting into the specifics of the transcript. I've read the transcripts. You were obviously there and I would love to argue with you about this now, but I can't because we can't reveal this in public. We are denied the ability to make some of our case precisely because this has been closed to public discussion. And so we assert an independent right. We assert a right separate from the right of the press. We assert a Defendant's sixth amendment right to have this material disclosed so that it may aid in his Defense so that he may be given the opportunity to supplement the arguments that we made last week and arguments that we may have to make at some future time relating to the fairness of this trial and the correctness of your Honor's rulings and the actions of the Prosecution in leading to some of the challenges in issue here. As your Honor notices, I am skirting around issues. And that's the difficulty that we have when we publicly argue about a matter that's subject to seal. But your Honor knows what I'm talking about. I hope I know what I'm talking about, and the problem is that nobody else can be fully advised as to what we're talking about, and, your Honor, that's precisely the problem. Thank you.

All right. Thank you, counsel. Miss Lewis.

Your Honor, may I just be heard one moment? I am here for Miss Florio-Bunten. My name is Rex Reeves appearing on behalf of Miss Florio-Bunten.

Good afternoon, counsel.

Thank you, your Honor. Miss Florio-Bunten strongly supports the application to have the transcripts unsealed. And hers is a case study in the very concerns the Court was speaking to earlier. Miss Florio-Bunten has not made tremendous efforts to be--to make herself available to the press although she has spoken to the press. She's tried to maintain some semblance of a normal life although the press has been camped out at her house continuously since her dismissal, and she's tried to address some of the questions of the press. However, there has continued to be this tremendous amount of speculation that Mr. Mirell spoke to about the reasons for Miss Florio-Bunten's dismissal from the jury in this case. This speculation has ranged from whether she had a book deal to whether her husband had met with a literary agent to whether she was hitting other jurors or trying to trip jurors or even allegations that she's just plain a racist. But these allegations are utterly and totally false; in fact, slanderous. One of the basis apparently--it's unclear what the basis--Miss Florio-Bunten doesn't know the basis for her dismissal. But one of the basis apparently was a letter that has been discussed in court I believe last Friday, the source of which is apparently contested. As part of unsealing the transcripts in this case, Miss Florio-Bunten requests that any documents upon which the Court has based any decision to dismiss any jurors, and in particular, Miss Florio-Bunten, that any such documents and any such letter that's been brought to the Court's attention also be released to the public. Miss Florio-Bunten believes that she was in fact sabotaged in an effort to get her off the jury by unknown persons, and the only way we'll be able to fully explore this and the public will be able to fully explore this and the only way Miss Florio-Bunten will be able to try to find out why she was in fact dismissed from the jury or possibly targeted for dismissal from the jury is to not only obtain the transcripts, but also obtain this mysterious letter or any other documents that the Court may have come into possession of in the course of its investigation or interrogation of jurors in this case. And to the extent that the Court is concerned about any kind of privacy rights, I cannot speak for any jurors other than Miss Florio-Bunten, but Miss Florio-Bunten certainly waives any privacy rights that she may have in connection with the transcripts of the proceedings.

In short, your Honor, we concur that the public has a right to know. We certainly believe Miss Florio-Bunten has a right to know why she was dismissed after giving up five months of her life in this case. She wants to be vindicated. She believes she will be vindicated and that the release of these transcripts and the release of any documentation upon which the Court based its decision will be a necessary first step in achieving that vindication.

Thank you, counsel.

Thank you, your Honor.

Miss Lewis.

Your Honor, the Prosecution is in a--not quite between a rock and a hard place, but in a difficult position. If we had our druthers, I suspect that we would like to have these transcript all unsealed. And I say that only in terms of our druthers being those that our very limited self interest would protect, to show that Miss Clark's done nothing wrong, Mr. Darden had done nothing wrong, no D.A. investigator done anything wrong. But, Judge, we have to look at the overall larger picture here. This feeding frenzy is a phrase that was used a few minutes ago, and as the Court is well aware and everyone else, that's what this entire case has been about and from the beginning, from the 13th of June on through to the present date in terms of the extreme and really unwarranted press interest in this case. Now, the reason why I cited the Feagin case to the Court, Feagin--and apparently Mr. Dershowitz has not had an opportunity to read it, because it does address the Defendant's sixth amendment right to an open trial, and it does hold in this particular case, which happens to be Second District of the Court of Appeal, that the Defendant in that case waived the right, if there was any, to have the public participate in that aspect of trial because it--it consented to the procedure initially. It's--the facts are very similar to this case in that in that case, the Defense initially agreed to the in camera procedure, and it was only after several jurors were questioned that the Defense suddenly took umbrage and wanted to have them open, wanted to have the Defendant present. This case holds that the Defendant had no right to be present under those circumstances having waived it initially. It also holds that the Defendant had no sixth amendment right to access by the public with regard to the juror misconduct or juror removal I should say issues.

It also held--our Second District did--that even assuming the sixth amendment public trial guarantees applied to the general juror removal proceedings, and it says--we don't think they did, but even if they did: "The presumption of openness is rebutted by a showing that exclusion of the public was necessary to protect some higher value such as a Defendant's right to a fair trial or the government's interest in preserving the confidentiality of the proceedings." I interpret that, your Honor, as our obligation to the People of the State of California to help do what we can to preserve the integrity of these proceedings. This Court during the jury selection process, which seems like years ago now, but several months ago, assured these jurors that it would do what it could in its power to maintain confidentiality and anonymity over the particular jurors.

How do you respond to the argument though that if there's been an allegation of misconduct, the Court has found that there's sufficient misconduct to excuse that juror, that that person by committing misconduct--and in fact, during the course of some of these proceedings, one party or the other has urged the Court to have the juror dismissed, referred to the Attorney General for Prosecution?

I don't think it is required of the Court nor do I think it would be a good exercise as a matter of precedent and public policy for the Court to have to make that kind of factual determination juror by juror which is what would be required. I don't think a waiver necessarily applies because the--not only are we talking about any particular juror, we're talking about other--we're talking about third party's comments with regard to things happening with those jurors. I mean, the investigation has not been in a vacuum with regard to these jurors. I mean, the Court has not just talked one on one to particular jurors about other information available. So by even assuming that those jurors had waived that aspect, the other surrounding information has not been waived and should not be waived.

I am concerned because this has--may well have a chilling effect already given the public's--the media's scrutiny rather and the media as distinguished from the public, but the media's scrutiny on the jury and juror issues is really unwarranted. And this is likely to have a chilling effect on the public out there. The public is who we depend on in selecting our jury pool. And as the Court well knows, we depend on their willing cooperation to come to court to serve. We do not have the resources to follow up and put people in jail who ignore summons to jury subpoenaes. And I'm not suggesting the Court should even do that. But it does have a chilling effect. This is not the only trial going on in this county nor is it the only high publicity trial. There's another high publicity trial regarding two brothers which is scheduled to start later this summer. Now, what this Court does in this case may have a direct bearing on the ability of that court to obtain jurors and a representative cross-section of the community in that case. The jurors in this case were indeed promised that anonymity. I don't think they've waived it by the findings the Court has made with regard to some of those jurors. And I think looking at the overall picture in the scheme of things, the Court owes it to the integrity of this process not to turn around and betray the trust of the jurors whom it has promised, all of them, individually and as a group, betray that trust that the Court--that they've had now that the Court has instilled that in them. I mean, the Court offered up these--this anonymity as one reason for their participation on this case, that the Court would try and protect them. Well, what are all of the jurors going to think and all of the panelists of prospective jurors out there and the community going to think if the Court suddenly does an about face and just releases that all?

But I've got jurors out there writing books about this. Hardly a privacy interest worth protecting; wouldn't you say?

Well, your Honor, with regard to some--

I mean, we've got jurors running around in limousines to talk shows. Hardly a privacy interest any longer.

I am suggesting further then the privacy interests of those particular jurors who may be, you know, writing a book despite not having indicated any intention to do so at least overtly and openly and candidly to the Court or counsel during the voir dire process. I'm concerned about the--

Well, don't you think the public is entitled to know the unusual currents that are swirling in amongst the jury panel here? Wouldn't you agree that this has been an atypical case regarding the voir dire process and who's willing to serve on this case?

Well, it has been atypical. But I'm asking the Court to ensure that it does not get even further--

Weren't you surprised when we asked people are you willing to be sequestered for six or eight months and we had volunteers? Didn't that mildly surprise you?

It is clear to me personally--and I'll speak only for myself--that many of the prospective panel had hidden agendas. And that was certainly a fear going into this case. We didn't anticipate, however, that it would result in an avalanche of volunteers virtually. I'm exaggerating but--you know, and so many people wanting in on the jury. I'm tempted to mention the issue that the Defense blew out of proportion on an offhand comment with regard to polygraphing jurors. I mean, your Honor, there's nothing the Court could have done more than it already did in trying to ensure the integrity of the individual jurors who were eventually selected. But my concern is for the process and its perception. We know that an overwhelming number of people out there, their already perhaps not very high perception of the criminal justice system has already been impaired by many aspects of this trial, and this feeding frenzy by the press is only to the derogation of the rights and the interest in the public, the interest in the People of the State of California in seeing that the People have a fair trial and seeing that the man accused of a double murder has a fair trial. And the Feagin case does go directly to the Defendant's inability at this stage of the proceedings to require the Court to release those transcripts.

All right. Thank you, counsel. Madam reporter, how are you doing?

Fine.

All right. Mr. Mirell, any brief response?

Very brief, your Honor. There are just a couple of points that I wanted to raise. The Friday hearing last week, as our supplemental memorandum makes clear--and I'm not going to belabor the point--there are bona fide disputes--we've just seen one here in court--about the Court's belief that there are two jurors who were dismissed for traditional reasons and Mr. Dershowitz has viewed there's only one.

Well, I was there. He wasn't.

I appreciate that, your Honor. And perhaps because you were there and because you contemporaneously heard what went on, we would be able to resolve this dispute rather quickly by--if the public and the press were given the opportunity to read what transpired where you were there. Now, they may agree with Mr. Dershowitz who's said he's read the transcript after doing that. But in terms of the basic notions of the public's confidence in the integrity of this Court's decision making processes and in the confidence that it has to have, particularly in light of the pending motion that the Defense has filed claiming that the Prosecution is targeting jurors for dismissal, a motion which is--which if it's bona fide, if it's true, is outrageous. It would be outrageous for the Prosecution to be doing that. But the Court's--but whether or not that's happening and the integrity and confidence that the public has to have in the Court's ultimate determination upon the bona fides of that motion is intricately interlinked I submit to the disclosure of the transcripts of what actually went on.

I submit that it's impossible for anyone, any member of the public or the press to have confidence in the decision making process of the Court if the transcripts are not released both in the context of the dismissals initially and in the context of the ruling on the pending Defense motion that was argued here last Friday. Your Honor, I think that the Court had it right, precisely right when on April--when on April the 12th, it conducted the post-dismissal interview of Jeanette Harris--and at the end of that interview, the sheriff's department Commander Patrick Holland objected, as the Court may recall, to the release of the transcript of that interview. And this is what you said. This is what the Court said in response. You, the Court, said:

"This is a public court. This is a public inquiry. Because of the nature, I decided to make it a closed hearing, closed to the press, closed to the public for purposes of taking the testimony here today. But I'm under extreme pressure to make this transcript public, and I frankly don't see any compelling reason not to make it public at this point," closed quotes.

And the transcript was duly released the following morning. That we submit is the type of practice that should have been followed up to now. But since one ought not to reject wisdom merely because it comes late, in the words of the late Justice Felix Frankfurter, I would suggest to the Court that there is a way of undoing the damage that has been done and a way of resurrecting the reputations of the jurors who have been dismissed and who may have been--and whose representations may be being besmirched by the wave of rumor and speculation that has flooded the airwaves and has flooded the print media. And that's why releasing the transcripts now of those jurors who--of the dismissals of those jurors. And I do want to join Mr. Reeve's comments, that to the extent that there are other evidentiary matters--I have no idea what they may be. The Court last Friday said there was no letter with respect to the alleged anonymous letter from a literary agent concerning Miss Florio-Bunten's--

I don't think that's what I said.

That's what the official--that's what both the unofficial and the semi-official official versions of the transcript say.

I don't--I may have said that wasn't the reason.

Okay. Well, the transcript currently reads there was no letter. So that's--the Court ought to take a look at that. But in any event, what's clear is that there is a divergence of view on that question between the Court perhaps on the one hand, the Defense on the other hand when Mr. Cochran said there was no anonymous letter that his office received and the Prosecution, Miss Clark, said there was an anonymous letter. And we have phone logs too. All of those are issues--

All right. We're speaking about three different things.

Okay. That may well be, but that's probably my fault. But it's my fault only because the transcripts haven't been released and we don't know precisely what's going on here. And there really isn't a good reason why we don't. I think the question of what the Prosecution's obligation is, I think the Prosecution's obligation is clear. And I'm surprised and I'm disheartened that they've not joined this motion because I think they could have had their druthers and I think they should have had their druthers and should have joined the motion because there is a constitutional right in the State of California. Under the crime victims' justice reform act of 1990, there is now a public right to a public trial. That's a right held by the People of the State of California. That's who the Prosecution represents. Article 1, section 29 of our state constitution says that that's a right that ought to be taken into account. And I heard nowhere in Miss Lewis' argument any acknowledgment that that occurs. But what I did hear is a claim that, well, maybe jurors are somehow going to be chilled. But I think there are a couple of responses to that. One was the response that your Honor gave, that it is--that this is in fact an atypical case and that no one, not legislators in Sacramento, not members of the county board of supervisors across the street ought to be taking the Simpson case as an archetype of anything. This is sui generis. And if that--and if the case were possible to throw into a legal dictionary definition, I think this would be it. This is not the case about which to--from which to extrapolate rules of general applicability. This is a case that breaks the mold in many, many, many ways. And I think the public is smart enough to understand that and to understand that this is an extraordinary case in which people are doing extraordinary things. Jury consultants tell us that jurors don't want to be sequestered. Yet here, we have jurors who volunteer to be sequestered. We have a situation though, your Honor, where by failing to disclose these transcripts, what we may be chilling is something that's much more important. We may be--we may be chilling the fact that jurors--the public's notion, the public's understanding that jurors are engaging in misconduct. And I think one of the things that we do affirmatively want to chill, your Honor, if anything else, is juror misconduct. And I think to the extent that the public understands why it is that jurors are being dismissed, if it's 10 or 11 of the jurors who are being dismissed for misconduct reasons, the public has a bona fide reason and a right to know why that's occurring. And I think the Court can easily satisfy that concern, and in doing so, in doing so, serve other interests as well, serve the Court's own interest in ensuring the integrity of the system, serving the public's interest in the integrity and the fairness of these specific proceedings and in any verdict that may ultimately be passed upon by these jurors, and it also serves the interest of the jurors themselves, because it is they who have had to bear the brunt of responding to what may be inflammatory and irresponsible and reckless allegations made about the reasons for their dismissal. That would all be remedied. Those problems would vanish once these transcripts are released, and this would be a nonissue and the Court would not have to see me again on this issue. And I appreciate again the Court's indulgence.

On this issue.

One minute if I may, your Honor.

Certainly.

We believe the Feagin case supports our position. I have read the Feagin case within the time it was given to me and now, and indeed that raises a different problem. We don't think the Prosecution should be allowed to come in here having had a case, knowing what their position is and simply state to the Court on the day of the argument, this is our position. This is our case. Talk about reciprocal discovery, that's just not fair. If they have a case, if they have a position, we have the right to know it in advance, we have a right to think about our response to it, we have a right to work out our response to it, we have a right to search and shepherdize cases, and they have no right to blindside us at this point.

Well, Mr. Dershowitz, you filed a response to the motion citing cases and authorities. The Prosecution chose not to even do that. What does that tell the Court? So maybe you're all wound up about nothing.

Well, no, you may be right, your Honor. It tells us if the Court believes that the government's position is at least ambivalent or not--

Well, if the Prosecution chooses not to even respond in writing--

Well, we accept that. And the reason the Feagin case supports us is because in Feagin, the issue was simply whether--

Counsel, I've read the Feagin case. I'm familiar with Judge Brandlin.

Right.

Justice Fukuto, Justice Boran.

In light of your Honor's statements, I think I have nothing further to say. Thank you.

Thank you.

Your Honor, before you say anything more, in light of the Court's statements, I want to let the Court know that we are very seriously opposing the release of these transcripts for the reasons which I have revealed. And please do not take our lack of--our failure to file a brief as any indication that we're not. In addition, when I first--when we first called--when the Court first called this for hearing, I stood up and said their response was untimely, the ACLU supplemental brief was untimely. We're willing to waive untimeliness if they're willing to waive--on the citing of this case. I don't know what we're bickering about with regard to that now. But the point is, your Honor, this--

No. Mr. Dershowitz indicated he had reasonable opportunity to read it. He's argued it.

I want to insure that the Court is satisfied that the Prosecution feels the Court has had good cause all along to maintain the confidentiality of those proceedings which resulted in the sealed transcripts, that as a matter of both--with this particular case and for public policy reasons for future cases, the Court should maintain that confidentiality. And I want to make the final and what is fairly an obvious point, that the Defendant is having a very, very public trial and the Court has been very generous in allowing the cameras to remain in the courtroom throughout these entire proceedings. We are talking about a very small portion of an otherwise very, very public trial, and it does not--just because the press wants to know this information does not mean it is in the best interest of the public when you weigh all of the concerns of the public to release it.

Your Honor, may I ask one question?

Certainly, counsel.

What about the underlying documents and things like that that may have come up--

I'll make that available.

Excuse me?

I'll make that available.

Thank you, your Honor.