I apologize for taking up the Court's time with what may or may not be an issue, but was unable to find out precisely what the Court was intending to do with respect to the introduction and viewing of the autopsy photos. I understand that that procedure may occur today and we were hearing from individuals through the Prosecution's office that the photos will not be shown to the spectators in the courtroom and may or may not be made available for anyone to see. And obviously that was of great concern to my clients who understandably feel that they have a right to see information that is being introduced into evidence and that it is critical to them in being able to accurately report on what the witnesses are testifying about.
But don't you already have access to the complete Coroner's protocol, the addenda, all the charts and all the descriptions? I mean, don't you already have that?
We asked for and received, as your Honor knows, a copy of the Coroner's records, but not the photographs, were not asked for at the time the public records act request was made, because we were not seeking to simply view photographs for any kind of prurient interest, but there is an interest in seeing photographs that the Court has determined should be introduced or may be introduced as evidence before the jury, because they do have some particular relevance in proving a portion of the Prosecution's case. So while my clients were more than willing to limit their requests for the Coroner's records to not include photographs because they want simply to look at them for the sake of looking at them, they are interested in viewing photographs that the Prosecution has decided and the Court has acquiesced in that their arguments are necessary for them to prove their case to the jury, and those are the photographs only the ones that are being introduced into evidence, that are being shown to witnesses for testimony that the media feel that they have a right, and indeed it is necessary for them to see in order to accurately report on what the witnesses are testifying about and the jury is seeing.
Miss Sager, the difficulty that I have with this, is that I have to also take into consideration the feelings of the victim's families, and what little dignity is left that we accord to the victims themselves, and to display them publicly in such a manner is highly distasteful to me personally.
KEY QUOTEAnd I can understand that, your Honor, and we are not asking for the opportunity to copy or reproduce or broadcast or otherwise show the photographs publicly. None of the clients I represent are asking for that. They are simply asking for an opportunity to view what the jury will see and must see, as I understand it, based on the Court's order in order for them to understand what the Prosecution's evidence is in this case and to make a fair and just determination. And while I certainly understand the reluctance of the victim's families to see the photos and would not--I mean they certainly can choose not to see the photos--and I understand the Court's reluctance in having the photos disseminated beyond the courtroom and would not ask the Court to do that, I do think that it is not only required as a matter of constitutional law, but is critical to the public's understanding of the case and of this Court's decision, that those photographs will be shown to the jury for the media to also see, or members of the public who are chosen to spectate in the courtroom, be also able to see the photographs, because that is critical to this Court's determination. Obviously the Court would not have made a ruling on their admissibility without having looked at the photographs, nor could anyone evaluating the Court's decision come to any conclusion about whether the jury should see the photographs, what impact that might have on the jury, whether the jury reaches a fair and just determination at the conclusion of these proceedings without seeing what the jury sees.
The only people who need to see it for that purpose are the Court of Appeal--would be the Court of Appeal.
Well, I disagree, your Honor. If that were the case, all proceedings would be closed and the Court of Appeal could simply determine whether or not a trial had reached a just result, but that is not what the Supreme Court has said. It said that the public has a right of access, and one of the reasons for that is so the public can feel that a fair result has been reached so that they can understand what the proceedings are all about and they can evaluate for themselves what the evidence is that the jury is seeing.
But to follow that line of argument, then I should also display all the photographs that the Prosecution has chosen not to offer and the photographs that I have dictated should not be presented to the jury.
No, your Honor. I think there is an easy distinction to make there because those photographs are something the jury will never see. The jury will never make a determination as to guilt or innocence based on material that is not before them. And while things that the Court has excluded may wind up being issues in the Court of Appeal or become part of the record in that, the fact that we are not asking to see photographs that the Court has excluded I don't think changes the public's right to see evidence that is actually introduced. And I would remind the Court that when this issue arose last summer in the preliminary hearing and we asked to see certain crime scene photos, and I don't think the autopsy photos were even introduced, but crime scenes photos were, the Court and the Prosecution both took the same position, that there is a distinction when things are introduced as evidence at trial, it becomes a totally different issue and at that point there is a public right of access that overcomes any interest in privacy or concerns that the Court had at that time about allowing the press to even view the photographs. And the Court explicitly said in its order at that time that the photographs--that the Court then said that the press was not able to view--
--that the photographs that the press at that time was not permitted to view would become public and public for them to see and the public to see at the time they were introduced into evidence before the--
Well, your Honor, obviously the people that I represent would prefer that they be given contemporaneous access to that so they could see the photographs while the witnesses were testifying. I understand that there may be concerns that the victim's families who want to be present may not want them shown in a way that they would have to see them. They obviously could choose to avert their eyes or to not be present in the courtroom when the photos are being shown. And I understand that that issue has come up with respect to Mr. Simpson as well. The Court could make other arrangements for the viewing of the photos, but if they are not to be shown contemporaneously, which I think is important so that people reporting on the case have the information that the witness and the jury has, then I would ask that it be done at the earliest possible time after a particular photograph is introduced into evidence, and not simply wait until the end of the proceedings or the end of a witness' testimony.
Well, the problem is, though, procedure normally followed in criminal prosecutions is at the conclusion of the Prosecution's case they will offer into evidence the exhibits that they have marked for identification purposes. I think we perhaps have only, out of the 200 or so Prosecution exhibits that have been marked so far, I think only maybe five have been offered into evidence at this point, so by your definition then these will not be in evidence.
And they will be shown to the witness, and anything that the jury is being shown I think the public has an equal right to see, because that is inarguably going to be part of what the jury considers when they make up their mind at the end of this case. And once the jury is shown the photo, as opposed to the Court reviewing them in camera or the parties seeing them in discovery, once the jury and the witnesses are seeing those photos, then I think the public and the press have a right to see them as well so that they can understand what the testimony is that is being given and what the jury is being told contemporaneously with those proceedings occurring.
Your Honor, the Defense is vehemently opposed to public or anyone else seeing those photographs. I spoke with Miss Clark. As we heard Miss Sager's motion, Miss Sager always argues eloquently, but in this instance I think you put your finger on it from the standpoint of the public's right to know in this matter. We argued this earlier, fashioned a compromise where the autopsy protocols were released. They have those already and there are diagrams and that seems to me to be entirely appropriate. For these photographs to be displayed publicly I think is offensive to the victims, offensive to the Defendant and offensive to families on both sides. It serves no purpose and I think it is entirely inappropriate. We feel very, very strongly about that and urge the Court--as I understand the Court has fashioned the Court's reasoning in allowing the photographs was because of the theory of the Prosecution to show certain aspects of this case. They can hear that, but to have these photographs shown to the public, to have these photographs become part of the public domain so they are going to be in these tabloid shows is outrageous. There has been enough of a circus atmosphere created in this case and I think this is one time both sides agree that we have to draw the line for the victims, for Mr. Simpson's family, for Mr. Simpson's children, for everyone. Enough is enough. The camera is here all the time with us and that is enough, your Honor, and I think based upon decency and the fact that it would just be outrageous to do that--and I think as it is we are worried about these pictures being--some tabloid magazine stealing the pictures or whatever and having them displayed now. The Court yourself has said these photographs are so disturbing, so disturbing the jurors may not even want to see them, but for the limited purpose you are allowing this, certainly it should not be part of the public domain, I think we all agree with that. And I would ask that only the photographs be set up in such a way that only the jurors are able to see them and put up that, taken down as soon as possible and we move on from this part of the case.
Thank you, your Honor. Unfortunately, there is a difference sometimes between one's personal feelings of what should be done and one's sense of what the constitution may provide, which may not be the wisest thing, necessarily, but may be the law. And in talking with Ms. Clark, and she was my emissary in talking with Mr. Cochran, I share everyone's concern about the privacy rights of these families, the families that are here in court, the families that may not be here in court, but have an interest in these proceedings, and I speak on behalf of the Goldmans and the Browns and I join in Mr. Cochran's concerns for Mr. Simpson's family as well. These photographs have significant probative value from our perspective and must be shown to the jury. Does the constitution require that the public's right of access be absolutely equal to every aspect of information that is given the jury or is the public's right to know satisfied by the fact that we allow the press to sit in on these proceedings and hear everything that is going on, record whatever testimony they seek to record in their pads and get transcripts, and quote accurately, we hope, in their press releases, and then let the public find from that information what they seek to find. But if the public is merely a voyeur looking for the titillating aspect of autopsy photos, the public has no right to know and no right of access in my judgment. And on that basis, your Honor, I believe that if there is to be any so-called public access, unquote, that the access should be satisfied by the Court making available for inspection in a closed courtroom to representatives of the press, since obviously the public that apparently is clamoring for this case can't all fit in this courtroom, so obviously representatives of the press have to act as the eyes and ears to some degree of the public, even though the public can watch by the cameras that are here in the courtroom, and let representatives of the media view these boards at the completion, perhaps of the day, if any board is used, and obviously with no right to photograph, no right to photocopy, that the board remain sealed absent further order of the Court from viewing by anyone other than the lawyers in the case or the jurors. If the Court feels that there is any right of access, I believe that that will satisfy that right of access. Personally I am completely opposed to anyone other than these members of the jury seeing these photographs.
These photographs are powerful and we believe they are powerful evidence to prove guilt. But they are powerful in a sense that is much more important, I think, morally, when this Court has to decide whether these victims must be once again brought into the public eye in the worst possible way imaginable, by having their bodies viewed from photographs taken at the Los Angeles County Coroner's Office. So as much as personally I may be opposed to this, constitutionally there may be well be some right of access, but if there is, I believe this Court can limit it in the tightest fashion possible to having representatives, not every news media that wants to see it, representative news media have an opportunity to view the boards under what I would call controlled circumstances where we are certain that they have a chance to view them, adequate time to view them, but that nothing further can be done to these boards as far as photographing, copying, et cetera, and that they otherwise remain sealed. On that basis I will submit the matter, your Honor.
Thank you. The thing I would indicate--as you can see the People's position is very close to the position of the Defense, and the one thing--Mr. Kelberg was not here at the time that you fashioned this procedure by which the protocol was released with the diagrams and pretty much the entire thing, so the press has that already, and it seem to me that is sufficient, your Honor. So I would not even allow, even in a closed setting, the release. That is how these leaks and things occur and I think the Court knows that. So I think that again, I think the Court is on sound ground here. You have been reasonable in this regard. We have argued against any release of these photographs, and I think that--I think what you are going to find--I'm not here to argue against what Mr. Kelberg has said--but I just think that it would be inappropriate, even in a closed setting, to do that. I think that it has to do with the victims and the families of the victims and everyone who is in this. This is a very sensitive part of the case and I would ask the Court to take that into consideration.
The Court is aware there will be two exhibits probably marked today, and certainly one of them, and another one will be marked tomorrow if we don't get to them today, which I will describe as wound charts that describe Dr. Lakshmanan's observations with respect to each of the photographs which are going to be viewed by the jury. Now, I believe that Dr. Lakshmanan's expertise permits him to accurately see what is in these photographs far better than any representative from the news media ever could by observing the actual photographs, and I believe that in fact we can satisfy Mr. Cochran's concerns, the Prosecution's concerns, the concerns of the family, by making available to the press today, should be very easily done because we have extra copies of these documents, these exhibits. And the best that the press is going to be able to do anyway is look at these photographs and try and write down descriptions. These documents will provide detailed descriptions of each injury that is seen in each photograph and will even help the press out by in the form of showing where there is a reference in the protocol, a reference in the diagram, a reference in the addendum to the particular injury. What more could they do? They just have to write the story. We give them all the information. There is nothing that the photographs will provide them that is not in either of these two charts and that I believe is better than they could ever hope to have. I'll submit the matter.
I am we are not asking for display or copying outside of the courtroom, but I am not aware of any authority, and neither apparently has counsel cited any either, that permits effectively the sealing of exhibits because other information in the courtroom is good enough, they think, for the media, because documents are graphic or disturbing or horrible, as the Court has described them or because there are privacy interests of the families or concerns of the families. I am not aware of any authority that supports not permitting the public and press access to materials that are going on in a public trial in a public forum for any of those reasons. And instead the Supreme Court in every instance has said there is a constitutional right of access which extends to documents that are used and shown to the jury. And while I agree with all of the personal concerns of the parties and the Court, none of those I think have any constitutional grounds for denying the public and press access to materials that are shown to the jury. And I would urge the Court to fashion the narrowest possible order if there is any restrictions placed on the access, and I have suggested the narrowest possible order, that we are not asking for copies or reproductions or broadcasts, but simply an opportunity to see what the jury is seeing.
the difficulty that I have with this, is that I have to also take into consideration the feelings of the victim's families, and what little dignity is left that we accord to the victims themselves, and to display them publicly in such a manner is highly distasteful to me personally.
For these photographs to be displayed publicly I think is offensive to the victims, offensive to the Defendant and offensive to families on both sides. It serves no purpose and I think it is entirely inappropriate.
There has been enough of a circus atmosphere created in this case and I think this is one time both sides agree that we have to draw the line for the victims, for Mr. Simpson's family, for Mr. Simpson's children, for everyone. Enough is enough.
Unfortunately, there is a difference sometimes between one's personal feelings of what should be done and one's sense of what the constitution may provide, which may not be the wisest thing, necessarily, but may be the law.
I am not aware of any authority that permits effectively the sealing of exhibits because other information in the courtroom is good enough, they think, for the media, because documents are graphic or disturbing or horrible... the Supreme Court in every instance has said there is a constitutional right of access which extends to documents that are used and shown to the jury.