All right. Back on the record in the Simpson matter. All counsel are again present. Mr. Neufeld, you had a matter you wanted to bring to the Court's attention?
I did, your Honor. Thank you. Your Honor, yesterday, we received a copy that was cc'd to Mr. Cochran's office of a letter to Dr. Gary Mullis, who, as you know, is one of the scientists who has been retained by the Defense who will be testifying, we hope will testify as an expert in this case. This was a letter sent to him by Rockne Harmon, one of the Prosecutors in this case. Your Honor, the request I have is a very simple one, which is an order from the Court that the Prosecutor cease and desist from all communication with Dr. Mullis, and the reasons are as follows: As you may recall, it was the efforts on behalf of Mr. Harmon with respect to another expert retained by the Defense, Dr. Rieders, that precipitated an order by you that Mr. Harmon's conduct was reprehensible.
You may also recall that Mr. Harmon made certain statements, very disparaging and inappropriately derogatory statements about Dr. Mullis in this courtroom, which had nothing to do with the issues at hand, and he was reprimanded by the Court for those remarks. It is against that backdrop that Mr. Harmon reaches out and tries to communicate with Dr. Mullis. And I can only tell you that I spoke to Dr. Mullis after looking at the letter, and Dr. Mullis sees these letters as harassing, whether or not that was the intent of Mr. Harmon, and he does perceive it as an act or an effort at intimidation, whether or not that is the intent of Mr. Harmon. One of the things I would note in the letter, your Honor, which troubles me, for instance, is this suggestion that perhaps Dr. Mullis is violating some California law. He mentions in the letter to Dr. Mullis that:
"The law in California requires the Defense to provide reports of expert witnesses to the Prosecution in advance of the expert's testimony. To date, we have not been provided with any report from you concerning the issues you intend to address," unquote. As you know, there's a duty to turn over a report if one exists, and, of course, we cannot instruct the witness not to prepare a report. Mr. Harmon knows that Dr. Mullis has testified in other cases and there were never any reports prepared in those other cases as well by Dr. Mullis. But when Dr. Mullis read this paragraph, he asked me or there was--he was concerned that perhaps he had violated some law, and that's what Mr. Harmon was accusing him of because he had not prepared a report in this matter. Obviously, he's not a lawyer. Obviously discovery requests are to be made to counsel, not to the witnesses themselves. Just--in its entirety--and I'm not even suggesting that there was any ill intent on the part of Mr. Harmon. But when you look at the record of what's happened in this case with respect to Dr. Mullis and what Mr. Harmon has said and what he did with other witnesses, in particular Dr. Rieders, all I'm asking the Court to do is simply ask Mr. Harmon to stop communicating with Dr. Mullis, and if he has any requests to make, it can be made through me, his counsel, and other communication will happen when and if Dr. Mullis testifies in this case. Thank you.
Sure. I'd like to clear up the history that Mr. Neufeld has constructed about what's happened in this case. I made a disparaging comment about Dr. Mullis. And if you revisit that, that was an inappropriate response by me to inappropriate garbage that Professor Thompson injected into this record when you interrupted him and you reprimanded him for the kinds of personal attacks that he made on me. That's--that's the--
Well, I'm responding to the revisitation and the reconstruction by Mr. Neufeld, and I think I have a right to do that, your Honor, because that's not what happened. Okay? Dr. Mullis says this is harassing. I want to read the letter, okay? I'm going to read everything that I sent to him.
Well, Mr. Harmon, I do have the letter dated June 21st, 1995 before me and I have read the letter.
Well, you know, people are going to think he's telling the truth about what he said about what's in the letter when that is not what the letter contains. If Dr. Mullis feels harassed by a request to talk to him, the Nobel Prize winner, about stuff he's been blabbing all over the world on every tabloid that would invite him, then I think you should question Mr. Neufeld about that representation.
Well, counsel, I assume that you have videotapes of all of those interviews and that will be ample fodder for your cross-examination. The only issue I'm concerned about is that it's clear to the Court from our discussions that Dr. Mullis is an expert with substantial credentials who has been retained as an expert to consult with the Defense. As such, he is somebody who is, I assume from the representation from Mr. Neufeld, consulting with them in the preparation and presentation of whatever Defense they choose to present. As such, the Court's concern, obviously as I indicated in my ruling of May 27th, is the invasion of that relationship between counsel and the expert witness, which is their work product, and it's protected by the attorney-client privilege.
That is. It's the only issue. All the rest of the things are attempts to inject irrelevant material in here.
And just so the record is straight, I'll make this letter of June 21st, which includes the letter of February 2nd, which includes a transcript from another case, two pages of the transcript, I'll make that a Court's exhibit no. 1 for the purposes of this hearing so your record is full.
Sure. I would appreciate that, your Honor. The Court mentioned your order of May 27th. I think--and I invite the Court--I'm not asking you to rewrite that, your Honor, but I'd like you to consider this point which applies to this very situation too. Unbeknownst to me, when I contacted Dr. Rieders, who is the subject of your Court order--in fact, he was a Defense expert. He was listed on the October--can't recall the date. I have it here, a Defense expert. Now, that's a critical point. And I really invite the Court to reread your order about my reprehensible conduct in light of the argument or the overwhelming authorities in this state because that is a controlling issue.
Can the Prosecution contact an expert who is on the witness list who, as Mr. Neufeld said, will testify? You've characterized it a little differently. You said he's consulting with them. Of course, he does that in leading up to it, but he will testify. That's the only reason he's on the witness list. That's to appease us that they can't sandbag us with his sudden appearance, but they can sandbag us with the content of his testimony and not provide a report. So can we contact an expert on the witness list who has publicly expressed his intent to testify in numerous, numerous media interviews? Now I think there's a couple of subcategories to that that apply to this case that help you really focus on what the issue is. Does the fact that no expert report has been filed by that person, does that somehow undermine our ability, legal ability to interview that witness? Or put it another way. If he had given us an expert report, would we be able to talk to him about the content of the expert report or the notes? We've gotten a few notes from Dr. Lee. It is my position to point out the--the difference between Dr. Lee and Dr. Mullis and argue that there's no legal distinction that--we can contact Dr. Lee. The only reason they've given us those notes, because that's what he intends to testify about. Now, certainly we should be able to interview him ahead of time about the content of his notes. And the fact that you have allowed them to not turn over reports by saying, "Well, we're not going to write them. We haven't told them not to," should that undermine our ability to interview a witness that we would be legally entitled to interview had he, in fact, written a report or had he written notes. And, of course, there's no legal distinction between those two categories. So should we be able to do less by interviewing him and contacting him, because the thing that has triggered our ability to do it is the fact that they've listed him as a witness. It's plain and sample. They have--he will testify. We must recall that the reason behind prop 115 under 1054(A) was to promote the ascertainment of truth in trials by providing timely pretrial discovery, to say nothing about the saving of all the court time about hashing these things out ahead of time.
So we haven't been given anything. We're not entitled to contact those people. Well, the overwhelming authority in California clearly makes the distinction that Mr. Neufeld seems to be unaware of, and that is--and this is both in criminal cases and in civil cases--that once that per--it is made clear that that person will testify, the work product privilege no longer applies. And the cases that stand for that proposition are--interestingly one that the Defense injected when Professor Thompson was here, County of Los Angeles versus Superior Court, 222 Cal. App. 3D. 647 at page 654 as well as Shadow Traffic Network versus Superior Court, 24 Cal. App. 4th--I'm sorry--24 Cal. App. 4th, 699, as well as National Steel Products Company versus Superior Court, 164 Cal. App. 3D., 530 or--I'm sorry--210 California reporter. I've got a mixture of different reporters here--page 536, and a case that we cited for the proposition that they should be forced to turn over reports whether or not they exist, Woods versus Superior Court, 25 Cal. App. 4th, 188. And those cases all stand for the proposition that once you make it clear that that witness will testify, the work product privilege no longer applies.
And isn't that analogous to the situation that compels them to list the witness that they intend to call at the trial under 1054.3? The only reason Dr. Mullis is on the witness list is if they intend to call him at the trial. That's why they had to list him. Now, you have allowed them not to turn over any material that exists in any form, and I don't intend to reargue that. We had an extensive hearing on Friday afternoon about that. Now, if they want to invoke the work product privilege, there's a simple remedy for them. Take him off the witness list. But if they take him off the witness list, they can't testify. By the Court's ruling on Friday and what they seek to do today by overextending the ruling that you made in a different context that I sincerely ask you to reconsider now that I pointed out that Dr. Rieders was listed as of October, they have listed those people, and once they are listed, we should be entitled to communicate with them. If you allow them to get away with what happened on Friday as well as impose this kind of limitation on us--your order of May 27th specifically said the harm that's involved in contacting one of these experts is unintentional disclosure of work product privilege. And if you read those cases, that privilege does not apply because they have listed them on their witness list. So the harm that you perceived at that point, not realizing that even Dr. Rieders was on that witness list, clearly does not apply with Dr. Mullis. He's been on their witness list for quite some time and, mistakenly on my part, and I suggest to the Court should not apply to the order that you made on May 27th. One of the things that the Court seemed to recognize that is nowhere in any of the 1054 sections--and I would hope the Court doesn't intend to apply it in this context about invoking or losing the work product privilege. I think the Court described some sort of fluidity exception because of the dynamics of the trial and issues evolving and some things being important and then disappearing, and that perhaps the Defense could change their mind at the last minute about the nature of the testimony of any of these experts. Now, that's nowhere in any of these cases that interpret 1054 and it's certainly not in any of the ballot information about prop 115. I would hope that you wouldn't do the same here, because if you do, if you allow them to say, you know, "He's on the witness list, he's done a lot of things for us, but until they rest, we're not really sure what he's going to testify about because we need to see the full content of their case," well, first off, that denies us the right to a fair trial that 1054 describes. It's going to waste an awful lot of the Court time when we litigate these witnesses one by one. But just imagine other subcategories of this fluidity exception. Just imagine we have the indecisive Defense attorney who says, "You know, I have these alternative theories, your Honor, but I can't--I just can't decide which one to advocate until I flip a coin or I talk to my wife about it. So until that happens, I'm invoking the work product privilege because I haven't decided which areas of his testimony I intend to present," or just imagine the alcoholic Defense attorney who is in a drunken stupor all the time and because he's never sober, can't make a rational decision until he sobers up. Under this fluidity exception that seems to have been applied, I can't conceive of any reason any Defense attorney would ever turn over any material under the reciprocal discovery provisions that were enacted by the voters under Prop 115. To do so under this newly recognized fluidity exception would be incompetent for any Defense attorney. 1054 once again promotes the ascertainment of truth and it's supposed to do that in advance of the trial. That's all we want.
It's the same voters who vote for all elected officials that voted overwhelmingly in support of proposition 115. They've been--the Defense has not been forced to comply with what we believe the appropriate construction of 1054.3 is, and we intend to pursue that ourselves by talking to these witnesses ahead of time. I believe that when you read the letter and the transcript of Dr. Mullis, this is his idea. This was his suggestion that he testified about in a case in November where it would save an awful lot of time to have the scientist get together ahead of time. I cannot imagine what has happened to him since November that would cause him to change his mind. I invited him to identify the issues. I would have all the appropriate scientists there. We would sit down and discuss it so that we could focus on real issues and not the illusory issues that have been injected into this case. Furthermore, if we are denied the opportunity to have contact with those experts, which we're legally entitled to do, to seek to have that kind of a discussion with them, then we will never be able to elicit the fact that they have declined to do so, which I believe we're legally entitled to do.
So with those comments, your Honor, I would like you to read those cases and realize the work product privilege ceased to exist the instant they submitted that witness list. The harm that you perceived concerning the contacts I had with Dr. Rieders, which I think when you see the witness list that was in existence long before I ever contacted him, you will realize that legally we are entitled to have those contacts with them, legally they are entitled to refuse to talk to us and legally we are entitled to elicit their refusal from them should they in fact testify in this case. Thank you.
I'm not going to revisit those issues because obviously Dean Uelmen and--dealt with those last week and they were resolved by the Court. There is no legal right that gives the Prosecutor the ability to send a letter to a witness basically demanding a report from him suggesting that the failure to turn over a report may be a violation of California law and trying to intimidate him into speaking with the Prosecution. All I'm simply saying here, your Honor, is that in light of what--this is not on a clean slate. I'm simply asking that since it is being communicated to me by Dr. Mullis that he regards Mr. Harmon's efforts as harassment and the efforts of the Prosecution in this case as harassment, that they cease and desist from communicating with him either by telephone or in the mail or any other means of communication. If they have something that they wish to communicate, they can do it through counsel.
All right. Mr. Harmon, the Prosecution is ordered to direct any communication to Dr. Mullis through Defense counsel. Anything else?
KEY QUOTEAll right. We'll stand in recess. The sheriff's department is to make Mr. Simpson available. Mr. Deedrick is to remain. People's exhibits, photo exhibits are to remain. All right. All right. We'll be in recess.
Dr. Mullis sees these letters as harassing, whether or not that was the intent of Mr. Harmon, and he does perceive it as an act or an effort at intimidation, whether or not that is the intent of Mr. Harmon.
If Dr. Mullis feels harassed by a request to talk to him, the Nobel Prize winner, about stuff he's been blabbing all over the world on every tabloid that would invite him, then I think you should question Mr. Neufeld about that representation.
the Court's concern, obviously as I indicated in my ruling of May 27th, is the invasion of that relationship between counsel and the expert witness, which is their work product, and it's protected by the attorney-client privilege.
Mr. Harmon, the Prosecution is ordered to direct any communication to Dr. Mullis through Defense counsel.