BACK ON THE RECORD ON THE SIMPSON MATTER. ALL PARTIES ARE AGAIN PRESENT. WE'VE NOW BEEN JOINED BY MR. GOLDBERG. COUNSEL, THE VARIOUS REPRESENTATIVES OF THE SIDES REGARDING THE DNA AND PHYSICAL EVIDENCE, I CONFERRED WITH IN CHAMBERS, AND WE HAVE AGREED UPON A SCHEDULE FOR ADDITIONAL TESTING AND RESOLVED ALL THE DISPUTED ISSUES WITH JUST SOME LOGISTICS FOR SATURDAYS YET TO BE DETERMINED. WE'VE DETERMINED THE AVAILABILITY OF A PARTICULAR STEREOSCOPIC MICROSCOPE. ALL OF THAT SHOULD BE TAKEN CARE OF. SO WE'VE RESOLVED THAT ISSUE. ALL RIGHT. LAST REMAINING ISSUE FOR THE RECORD THIS AFTERNOON IS FOR DISCOVERY COMPLIANCE ON THE RECORD CONCERNING ANY REPORTS, TAPE RECORDINGS, NOTES, ET CETERA, ET CETERA, THAT ARE OUTSTANDING AT THIS TIME. AND, MISS CLARK, DO YOU WANT TO ADDRESS WHAT IT IS YOU FEEL THAT IS OUTSTANDING, THE DEFINITION OF WHAT SHOULD BE TURNED OVER?
YES, YOUR HONOR. THE PEOPLE WOULD ALSO LIKE TO ADDRESS THE COURT A LITTLE BIT FURTHER ON SANCTIONS, SANCTIONS THAT WOULD BE IMPOSABLE NOW AS OPPOSED TO THE SANCTIONS THAT WOULD APPLY SPECIFICALLY TO ROSA LOPEZ' TESTIMONY IF WE MIGHT. I HAVE TO CONFESS THAT I LEFT THE REPORTS UPSTAIRS THAT I HAD PLANNED TO BRING DOWN I HAD WITH ME EARLIER TODAY. THAT WOULD HAVE ALLOWED ME TO ADDRESS ANOTHER MATTER AS WELL WITH RESPECT SPECIFICALLY TO DISCOVERY. WHAT WOULD THE COURT LIKE ME TO BEGIN WITH?
WELL, FIRST OF ALL, WHAT IS YOUR ANTICIPATION AT THIS POINT? MY ANTICIPATION IS THAT WE WILL ASK THOSE ATTORNEYS ON THE DEFENSE SIDE OF THE TABLE TO EXPLAIN TO US HOW IT IS THAT THIS TAPE RECORDING WAS UNDISCOVERED WITH REGARDS TO ROSA LOPEZ AND WHETHER OR NOT THERE ARE ANY OTHER STATEMENTS, NOTES REGARDING STATEMENTS, TAPE RECORDINGS OR ANY OTHER MEMORIALIZATION, BE IT ON COMPUTER DESK OR ANY OTHER MEDIA, AND MAKE SURE THOSE THINGS HAVE BEEN IDENTIFIED, THAT THEIR CONTENT HAS BEEN EXAMINED FOR DISCOVERABILITY UNDER 1054, ET SEQ, THAT ANYTHING THAT NEEDS TO BE REVIEWED IN CAMERA UNDER 1054.7 IS PRODUCED TO THE COURT AND EXAMINED AND EVERYTHING THAT IS DETERMINED TO BE DISCOVERABLE IS TURNED OVER AT THE VERY LATEST BY THE CLOSE OF BUSINESS THIS FRIDAY.
THAT PLUS, MR. PAVELIC INDICATED YESTERDAY TWO THINGS. ONE, MR. PAVELIC INDICATED YESTERDAY THAT IT WAS HIS HABIT AND CUSTOM TO TAPE-RECORD ONLY WHEN HE INTERVIEWED A WITNESS ALONE WITHOUT A PARTNER INVESTIGATOR WITH HIM. I HAVE CULLED OUT FROM THE DEFENSE REPORTS PRODUCED FOR THE -- IN DISCOVERY THUS FAR ALL OF THE REPORTS IN WHICH HE MAKES REFERENCE TO BEING THE ONLY PERSON SPEAKING TO THE WITNESS. MR. PAVELIC REPRESENTED THAT THAT KIND OF INTERVIEW ONLY OCCURRED WITH ROSA LOPEZ, AND THAT IS FALSE. THERE WERE AT LEAST 15 OTHER WITNESSES WHICH MR. PAVELIC BY DEFINITION IN HIS OWN REPORT HAS INTERVIEWED ALONE. BASED ON HIS STATED HABIT AND CUSTOM THEN, WE SHOULD ANTICIPATE THAT THERE WOULD BE TAPE RECORDINGS OF EACH AND EVERY ONE OF THOSE INTERVIEWS, AND WE HAVE BEEN TOLD THERE ARE NONE THUS FAR. I WOULD LIKE FOR MR. PAVELIC TO AGAIN STATE UNDER OATH WHICH WITNESSES HE HAS TAPE RECORDINGS FOR AND THAT THOSE TAPE RECORDINGS ALSO BE ORDERED TO BE PRODUCED FORTHWITH.
ALL RIGHT. WELL, BEFORE I ASK HIM TO DO THAT, I THINK I WILL NEED YOU HOWEVER TO IDENTIFY THOSE REPORTS WHERE THAT'S INDICATED.
I HAD THAT READY FOR YOUR HONOR. THAT'S WHAT I FORGOT TO BRING DOWN. MISS LEWIS WILL BRING IT INTO THE COURT IMMEDIATELY. IN THE MEANTIME, IF I COULD ADDRESS THE OTHER MATTER THAT I'M GOING TO REQUEST. WHAT I WOULD LIKE FOR THE COURT TO DO AT THIS POINT IS TO REQUIRE EACH MEMBER OF THE DEFENSE TEAM TO STATE UNDER OATH WHAT THEY HAVE FOR EACH WITNESS IN TERMS OF WHETHER IT'S A WITNESS STATEMENT, EXPERT REPORTS, NOTES AND TAPE RECORDINGS, AND I'M GOING TO ASK THAT THE COURT NOT RELY ON THEIR REPRESENTATIONS AS TO WHAT THEY DEEM TO BE DISCOVERABLE MATERIAL OR WHAT THEY DEEM TO BE PRIVILEGED MATERIAL SUCH AS WORK PRODUCT. WHAT HAS OCCURRED -- WHAT I'M GOING TO ASK THE COURT TO DO IS REVIEW EVERYTHING THAT THEY HAVE FOR EACH AND EVERY WITNESS. I KNOW. I MEAN, THE PEOPLE ARE PUT IN A POSTURE OF ASKING THE COURT TO DO SOMETHING THAT IS A LOT OF WORK, AND I'M LOATHE TO ASK THAT OF THE COURT, WHICH I KNOW IS ALREADY OVERBURDENED WITH A GREAT DEAL OF WORK AND A VERY STRENUOUS TRIAL. NEVERTHELESS, THE DEFENSE PUTS US IN THIS POSTURE BASED PRIMARILY ON THE ARGUMENTS OF MR. UELMEN THIS VERY DAY AND MR. DOUGLAS A FEW DAYS AGO DEMONSTRATING THEIR IGNORANCE OF THE LAW OF WHAT IS REALLY PRIVILEGED AND WHAT IS NOT. IF WE GO BY THE DEFINITION OFFERED US BY MR. DOUGLAS AND OFFERED US BY MR. UELMEN, VIRTUALLY EVERYTHING EVER WRITTEN BY DEFENSE WITNESS, EXPERT OR INVESTIGATOR OR LAWYER WILL BECOME PRIVILEGED. OBVIOUSLY THAT IS NOT THE CASE. EVERYTHING, EVERYTHING IS SUBSUMED UNDER THE UMBRELLA OF PRIVILEGE IF WE ACCEPT THEIR DEFINITION. THEIR DEFINITION IS SO EXPANSIVE THAT THEY NEVER NEED PRODUCE ANYTHING BY IT, AND THEY HAVE BEEN USING THAT FALSE DEFINITION TO AVOID COMPLIANCE WITH THE DISCOVERY ORDERS ISSUED BY THIS COURT. SO I WOULD ASK THAT THEY BE REQUIRED TO TURN OVER EVERYTHING THAT THEY DEEM TO BE PRIVILEGED FOR THE COURT'S REVIEW IN CHAMBERS FOR THE COURT TO MAKE THE DETERMINATION AS TO WHAT IS TRULY PRIVILEGED AND WHAT IS NOT.
SO HOW DO YOU PROPOSE WE DO THAT? THAT I GO THROUGH THE LIST OF WITNESSES THAT HAVE BEEN PRODUCED BY -- THAT HAS BEEN PRODUCED BY THE DEFENSE, ASK THEM TO TELL ME WHAT STATEMENTS ARE IN EXISTENCE AND WHAT TAPE RECORDINGS ARE IN EXISTENCE AND I NEED TO DO THAT UNDER OATH. IS THAT WHAT YOU ARE SAYING?
YES. I'M ASKING THAT WE HAVE -- NOT THAT THEY NECESSARILY STATE -- LIST EVERYTHING UNDER OATH. WE MAY BE HERE FOR A COUPLE OF DAYS IF WE DO THAT. BUT THAT THEY COMPILE A LIST THAT THEY SUBMIT UNDER PENALTY OF PERJURY IS THE TRUE LIST OF ALL OF THE WITNESSES AND WHAT THEY HAVE PERTAINING TO EACH WITNESS. THAT IS NOTES, EXHIBITS, STATEMENTS, TAPE RECORDINGS FOR EACH WITNESS AND THEN ASSERT TO THE COURT WHAT THEY THINK IS PRIVILEGED. AND THEN I WOULD LIKE FOR THE COURT TO REVIEW WHAT THEY DEEM TO BE PRIVILEGED FOR THE COURT TO MAKE THE DETERMINATION AS TO WHAT IS TRULY PRIVILEGED AND WHAT IS NOT.
I AM ASSUMING THAT NOT EVERY WITNESS HAS STATEMENTS, NOTES, TAPE RECORDINGS. THEY HAVE A VERY VOLUMINOUS WITNESS LIST, SOME OF WHICH IS -- MUCH OF WHICH IS PROBABLY FILLER. SO I THINK THE PEOPLE ARE PROBABLY NOT ASKING AS MUCH AS IT WOULD APPEAR AT FIRST BLUSH, BUT WE'LL FIND OUT WHEN THE COURT --
ALL RIGHT. DID YOU RECEIVE A LETTER FROM MR. COCHRAN'S OFFICE TODAY THAT THE COURT RECEIVED WITHDRAWING PERHAPS 20 WITNESSES FROM THE WITNESS LIST?
I JUST FOUND IT ON COUNSEL TABLE WHEN I WALKED INTO COURT JUST NOW. I HAVEN'T HAD A CHANCE TO LOOK AT IT. I ASSUME THAT'S WHAT THE COURT'S REFERRING TO. SO IF THEY'RE WITHDRAWING --
EXCUSE ME, MISS CLARK. LET ME JUST INTERRUPT FOR ONE MOMENT TO ASK MR. DOUGLAS A QUESTION. ASSUMING THAT YOU'VE WITHDRAWN THOSE 20, 25 WITNESSES ON YOUR LETTER TO THE COURT DATED TODAY, HOW MANY DOES THAT LEAVE ON YOUR WITNESS LIST AT THIS POINT, JUST ROUGHLY? MAYBE 190?
ROUGHLY, YOUR HONOR, YES. BUT I CAN -- IF I AM ALLOWED TO SPEAK -- EXPLAIN SOME OF IT.
YOU KNOW, NORMALLY WE WOULD NOT BE ASKING THE COURT FOR THIS, BUT FOR THE IMPASSE WE FIND OURSELVES IN; THAT THE COURT HAS ISSUED EXPLICIT ORDERS ABOUT WHAT IS TO BE PRODUCED, THAT THE DEFENSE HAS WILLFULLY THUMBED ITS NOSE IN THE COURT'S FACE AND SAID, "WE WILL NOT TURN OVER THESE THINGS. WE DO NOT ABIDE BY THE COURT ORDER." THEY SHOW THEIR CONTEMPT FOR THE COURT'S AUTHORITY IN DOING SO AND THEY ALSO SHOW THEIR LACK OF UNDERSTANDING OF THE LAW OF PRIVILEGE, AND WHAT THEY DEEM TO BE PRIVILEGED, AS I'VE SAID, IS SO EXPANSIVE, IT WOULD COVER EVERYTHING THAT THEY HAVE. SO THAT'S WHY THE PEOPLE ARE IN THIS POSITION OF HAVING TO REQUEST THE ASSISTANCE OF THE COURT TO CULL THROUGH WHAT THEY DEEM TO BE PRIVILEGED.
ALL RIGHT. SO YOU WANT ME TO GET A DECLARATION FROM THEM. I UNDERSTAND THAT MUCH. ALL RIGHT. WHAT ELSE DO YOU WANT? WHAT ELSE ARE YOU ASKING FOR AS A SANCTION?
OKAY. AS A SANCTION, NUMBER ONE, WE WOULD ASK THAT THE COURT ADVISE THE JURY THAT PART OF THE DELAY THAT WE HAVE BEEN -- THAT HAS BEEN ENGENDERED HERE HAS BEEN CAUSED BY THE DEFENSE MISCONDUCT.
WE WOULD ASK THAT THE COURT LIFT THE SANCTIONS IMPOSED ON THE PEOPLE FOR THE DISCOVERY VIOLATIONS THAT THE COURT FOUND PREVIOUSLY. WE ASK THAT THE COURT OF COURSE ADMONISH THE JURY CONCERNING THE DEFENSE MISCONDUCT IF AND WHEN THE WITNESS -- TESTIMONY IS PRESENTED BEFORE THE JURY AS STATED IN 1054 OF THE PENAL CODE, AND WE WOULD ASK THAT THE COURT ALLOW THE PEOPLE TO ARGUE THE WITHHOLDING OF EVIDENCE AND WHAT EVIDENCE HAS -- SPECIFICALLY DETAILING WHAT EVIDENCE WAS WITHHELD FROM THE PROSECUTION IN THE PEOPLE'S CLOSING ARGUMENT INCORPORATING THE COURT'S ADMONITIONS TO THE JURY CONCERNING THEIR WITHHOLDING OF EVIDENCE THAT DURING THE OPENING STATEMENT AND THEIR WITHHOLDING OF EVIDENCE PERTAINING SPECIFICALLY TO ROSA LOPEZ AND I SUSPECT ANY OTHER EVIDENCE WITHHELD IN THE FUTURE SHOULD WE REVISIT THIS ISSUE AGAIN, WHICH WOULD NOT BE SURPRISING. IN ANY CASE, I'LL CONFINE THAT REQUEST TO WHAT HAS BEEN DONE SO FAR TO THE ROSA LOPEZ ISSUE AND TO THE ISSUE OF WHAT OCCURRED IN THE OPENING STATEMENT, THE EVIDENCE WITHHELD AT THAT TIME.
AND ALL I'M WAITING FOR NOW IS FOR MISS LEWIS TO COME DOWN WITH MY REPORT SO I CAN DETAIL TO THE COURT EXACTLY -- IDENTIFY THE NAMES OF THE WITNESSES INTERVIEWED ALONE BY MR. PAVELIC.
ACCORDING TO THE REPORT. IT SAYS "I INTERVIEWED." AND I WOULD INDICATE TO THE COURT THAT THAT IS IN CONTRAST WITH THE AUGUST 18TH STATEMENT OF ROSA LOPEZ IN WHICH HE SAYS "MYSELF AND MR. MC NALLY." SO HE DOES KNOW HOW TO DELINEATE OTHER PARTIES PRESENT WHEN IT'S APPROPRIATE, WHICH LEADS US TO UNDERSTAND THAT WHEN HE SAYS "I," IT MEANS "I."
GOOD AFTERNOON, YOUR HONOR. YOUR HONOR, IF THE COURT PLEASES, I WOULD LIKE TO RESPOND TO PROVIDING THE COURT AN UNDERSTANDING WITH PROCEDURAL BACKGROUND AND HOW OUR OFFICES AND MR. COCHRAN'S OFFICES GOT TO WHERE WE ARE TODAY. MR. UELMEN WOULD LIKE TO ADDRESS THE ISSUE OF SANCTION AND SPECIFIC ISSUES THAT MISS CLARK HAS RAISED AT THE END. I WOULD LIKE TO OFFER, IF THE COURT PLEASES, A CALM, RATIONAL EXPLANATION TO WHAT HAS OCCURRED AND WHAT HAS BROUGHT US HERE FREE OF SOME OF THE HYSTERICS THAT WE'VE BEEN PRIVIED TO BEFORE NOW. THE COURT SHOULD UNDERSTAND AT THE OUTSET THAT ON A LIST THAT THE PROSECUTION SUBMITTED JANUARY THE 5TH OF THIS YEAR, THERE WERE 450 NAMES ON THAT LIST. THE OVERWHELMING MAJORITY OF THE DEFENSE TEAM'S INVESTIGATIVE EFFORTS FOCUSED ON OBTAINING INFORMATION ABOUT THOSE PARTICULAR WITNESSES. ANY REPORTS, YOUR HONOR, THAT WERE GENERATED SOLELY FOR IMPEACHMENT, AS THE COURT IS WELL AWARE, IS NOT DISCOVERABLE AND THOSE REPORTS ARE NOT DISCOVERABLE UNDER THE RECIPROCAL DISCOVERY ACT OR 1054 AND THOSE ACTIONS THAT FOLLOW. WE HAVE, YOUR HONOR, 219 NAMES ON OUR WITNESS LIST THAT ARE NAMES NOT OTHERWISE ON THE PROSECUTION'S WITNESS LIST. 97 OF THOSE NAMES ARE AMERICAN AIRLINE PASSENGERS WHO HAVE NOT BEEN INTERVIEWED BY THE INVESTIGATORS YET AND WHOSE NAMES WERE PLACED THERE SIMPLY AS A PRECAUTION. 25 NAMES ARE BEING WITHDRAWN TODAY. 15 OF THE 25 NAMES BEING WITHDRAWN TODAY -- RATHER, 16 OF THE 25 NAMES BEING WITHDRAWN TODAY ARE NAMES THAT WERE NOT OTHERWISE ON THE PROSECUTION'S WITNESS LIST. THEREFORE, YOUR HONOR, THAT LEAVES 108 NAMES THAT ARE ON OUR LIST BUT ARE NOT ON THE PEOPLE'S LIST. YOUR HONOR, SO THE COURT SHOULD UNDERSTAND BY WAY OF BACKGROUND, OUR OFFICE FIRST APPEARED IN THIS CASE ON JULY 22ND OF 1994, ONE DAY BEFORE THE MARY ANN GERCHES STATEMENT WAS TAKEN, ONE WEEK BEFORE THE FIRST ROSA LOPEZ INTERVIEW. AT THAT TIME, YOUR HONOR, I CAN SPEAK FOR MYSELF, MR. COCHRAN, MISS CHAPMAN, WE WERE FOCUSING AS MUCH, IF NOT MORE, ON OBTAINING AND SYNTHESIZING THE THREE FULL-SIZE NOTEBOOKS THAT MADE UP THE HOMICIDE BOOK IN THIS CASE AS WELL AS REVIEWING THE TRANSCRIPT FROM THE PRELIMINARY HEARING AND THE GRAND JURY INVESTIGATION THAT WAS ENDED PREMATURELY. AS WELL, YOUR HONOR, THE CASE MOVING AT THAT POINT WAS MOVING AT A BREAK-NECK SPEED. WE EARLY ON HAD MEETINGS IN MR. SHAPIRO'S OFFICES AND IT WAS MADE QUITE PLAIN THAT MR. SIMPSON WANTED TO FULLY EXERCISE HIS RIGHTS TO A SPEEDY TRIAL AND THAT UNDER NO CIRCUMSTANCES WOULD THERE BE ANY CONTINUANCES OF THE TRIAL DATE, AND IN FACT I'M SURE THAT THE RECORD WILL BEAR THAT THAT'S EXACTLY WHAT OCCURRED. THAT FACTOR I BELIEVE IS CENTRAL TO A FAIR UNDERSTANDING OF THE FULL CIRCUMSTANCES UNDER WHICH BOTH OFFICES WERE FORCED TO WORK AND SUCH THAT THERE IS A REASONABLE AND LOGICAL EXPLANATION GIVEN THE FACT THAT THERE HAVE BEEN 30,000 PAGES THE PEOPLE HAVE REPRESENTED OF DISCOVERY THAT HAS BEEN TURNED OVER, THAT IN FACT IT IS INVARIABLE AND EXPECTED THAT THERE WOULD BE AN OCCASIONAL FALLING THROUGH THE CRACKS. IN THE BEGINNING, YOUR HONOR, DOCUMENTS THAT WOULD BE GENERATED FROM EITHER MR. PAVELIC OR MR. MC KENNA OR MR. MC NALLY WERE SENT DIRECTLY TO MR. SHAPIRO'S OFFICE AND THEN THEY WERE FORWARDED BY FAX USUALLY TO OUR OFFICES. SOMETIME IN AUGUST, THAT PROCESS CHANGED AFTER A CONVERSATION THAT I HAD WITH MR. PAVELIC ASKING THAT MR. COCHRAN'S NAME BE ADDED TO THE ADDRESSEE OF HIS MEMORANDA AND ASKING THAT MR. PAVELIC DIRECTLY FAX TO OUR OFFICE ANY DOCUMENT OR MEMORANDA THAT HE WOULD FAX TO MR. SHAPIRO'S OFFICE, BECAUSE I WAS CONCERNED THAT JUST WITH ALL THE PAPER FLOW, WITH THE FACT THAT MR. SHAPIRO'S OFFICE WAS BEING INUNDATED AS IT WAS WITH DIFFERENT DISCOVERY, WITH PHOTOCOPYING THOSE DOCUMENTS AND MAKING SURE THAT REPORTS WERE DISSEMINATED NOT ONLY TO COUNSEL, BUT ALSO TO DIFFERENT EXPERTS AROUND THE COUNTRY, THAT WE PERHAPS WERE NOT RECEIVING ALL OF THE DOCUMENTS IN ANY FULL AND TIMELY FASHION. AND AS A PROPHYLACTIC DEVICE, I THEN SET FORTH THE PROCEDURE THAT MR. COCHRAN'S NAME BE ADDED, AND YOU WILL SEE IN THE LATER REPORT THAT HIS NAME WAS ADDED AS A COMPANION TO MR. SHAPIRO'S NAME, AND THAT THE DOCUMENT BE FAX DIRECTLY TO OUR OFFICES RATHER THAN HAVING THE MIDDLE STEP. SEPTEMBER 1, YOUR HONOR, WAS THE DATE BY WHICH THE COURT ORDERED THAT WE ON THE DEFENSE COMPILE DOCUMENTS AND NAMES OF WITNESSES THAT WE WOULD THEN BE INCLUDING ON A LIST TO SUBMIT BOTH TO THE COURT AND TO COUNSEL. BECAUSE MR. SHAPIRO'S OFFICE WAS EARLIER INVOLVED IN THIS CASE AND HAD A BETTER FAMILIARITY WITH THE STATE OF THE RECORD AND THE NAME OF THE WITNESSES, THEIR OFFICES TOOK THE PRIMARY RESPONSIBILITY OF COMPILING THE WITNESS LIST AND PREPARING THE DOCUMENTS THAT WERE GOING TO BE PLACED IN THE FOLDER THAT WAS THEN ULTIMATELY TURNED OVER TO THE PROSECUTION. I WILL SAY THAT I HAVE ALWAYS BEEN A PART OF OUR OFFICE'S REPRESENTATION ON THE DISCOVERY EFFORT. I WAS PRESENT AT MEETINGS EARLY ON, IF NOT IN JULY, THEN IN AUGUST WITH MR. HODGMAN MEETING ON THE 18TH FLOOR DISCUSSING SOME OF THE DISCOVERY ISSUES, BUT I WAS NOT PRESENT AT THE MEETING IN SEPTEMBER OR IN AUGUST WHEN THE DOCUMENTS THAT WERE TRANSFERRED OVER WERE COMPILED OR ANALYZED. SOMETIME IN EARLY JANUARY, YOUR HONOR, WHEN THE PRIMARY FOCUS OF THE DEFENSE EFFORTS WERE TRANSFERRED FROM MR. SHAPIRO'S OFFICES TO MR. COCHRAN'S OFFICES, I THEN ASSUMED RESPONSIBILITY FOR COORDINATING THAT EFFORT. THE PROBLEM THAT HAS OCCURRED, YOUR HONOR, AS I'VE SAID IS PARTLY ATTRIBUTABLE TO THE SHEAR VOLUME AND SIZE OF THE FILES AND THE WORK THAT HAD TO BE DONE. INDEED, COORDINATING AN EFFORT OF THIS SIZE BETWEEN OFFICES THAT ARE MILES APART TAKES SOME COORDINATION AND IT IS PROBABLY NOT UNEXPECTED THAT THERE WOULD BE OCCASIONAL LAPSES IN THE PROCESS. I THINK ALSO, YOUR HONOR, THAT THE FACT THAT THE TRIAL PROCEEDED WITHOUT A SPEEDY TRIAL WAIVER SUCH THAT THE JURY SELECTION BEGAN TWO MONTHS AND THREE DAYS AFTER MR. SIMPSON'S FIRST APPEARANCE IN SUPERIOR COURT IS VERY TELLING AND VERY IMPORTANT TO FAIRLY ANALYZE AND CONSIDER WHAT REALLY OCCURRED. IN JANUARY, YOUR HONOR, THE 23RD OF JANUARY, WHEN I WAS IN CHARGE OF COORDINATING THE EFFORTS, WE WERE DIRECTED TO BOTH REVIEW OUR FILES AND WE WERE ALSO DIRECTED, YOUR HONOR, TO COMPILE A BOOK SETTING FORTH THE NAMES OF WITNESSES, SETTING FORTH THE DOCUMENTS THAT WERE TURNED OVER, ET CETERA. ON THAT OCCASION, YOUR HONOR, I SPOKE TO BOTH WILLIAM PAVELIC AND PATRICK MC KENNA, WHO WERE THEN THE TWO INVESTIGATORS WHO WERE PRESENTLY WORKING ON THE CASE, TELLING THEM OF THE PROBLEM, TELLING WHAT MY OBLIGATIONS WERE AND ASKING WHETHER OR NOT THERE WAS ANYTHING THAT THEY MIGHT HAVE IN TERMS OF WITNESS STATEMENTS OR OTHER ITEMS THAT WOULD HAVE BEEN COMPLYING WITH THE COURT'S DIRECTIONS. MY OFFICE THEN, YOUR HONOR, ENDEAVORED TO BOTH TO REVIEW THE DOCUMENTS --
EXCUSE ME, COUNSEL. SORRY TO INTERRUPT. COULD WE HAVE THE INVESTIGATORS FOR DEFENSE EXCLUDED, PLEASE?
THANK YOU, YOUR HONOR. MY OFFICE THEN ENDEAVORED TO REVIEW THE NAMES THAT WERE CONTAINED IN THE DOCUMENTS THAT WERE SUBMITTED AGAINST THE NAMES AND THE DOCUMENTS THAT WERE THEN IN OUR POSSESSION TO SEE IF THERE WAS ANY CHANGE OR ANY OTHER DOCUMENTATION THAT MAY OR MAY NOT HAVE BEEN TURNED OVER. WHAT OCCURRED BASICALLY, YOUR HONOR, IS THAT THERE WOULD BE A CHECK-OFF SYSTEM SUCH THAT THE NAME ROSA LOPEZ STATEMENT FROM PAVELIC TO SHAPIRO, TWO PAGES, WAS CHECKED OFF WITH A CHECKMARK, AND WE THEN WENT ON TO THE NEXT NAME BECAUSE THERE WERE DOZENS OF NAMES THAT WE WERE SEEKING TO REVIEW. WE HAD BUT TWO DAYS TO REVIEW THEM AND SUBMIT THEM TO THE COURT. I PRIMARILY FOCUSED ON CREATING THE NOTEBOOK AND CHECKING THROUGH THE NAMES ON THE NOTEBOOK AND MAKING SURE THAT THAT WAS GOING TO BE PREPARED IN AN ORDERLY FASHION BECAUSE THAT WAS GOING TO BE SUBMITTED TO THE COURT AND WAS ALSO GOING TO BE SUBMITTED TO THE OTHER SIDE. WHAT I DID NOT DO, YOUR HONOR, ON THAT OCCASION WAS TO PERSONALLY CHECK EACH NAME OF EACH STATEMENT AND EACH DATE OF EACH WITNESS STATEMENT AGAINST THAT WHICH WAS SUBMITTED TO THE PROSECUTION. I HAVE, HOWEVER, IN THE INTERIM PERFORMED THAT PARTICULAR TASK. AS WELL, YOUR HONOR, IN JANUARY, I DID NOT CONTACT ANY INVESTIGATORS WHO HAD PREVIOUSLY BEEN EMPLOYED BY THE DEFENSE TEAM, BUT WERE NOT THEN WORKING ON BEHALF OF THE DEFENSE TEAM BECAUSE I WAS UNDER THE IMPRESSION THAT ALL OF THEIR NOTES, ALL OF THEIR REPORTS, ALL OF THEIR DOCUMENTS, ANYTHING THAT THEY HAD ON THE CASE HAD BEEN TURNED OVER TO EITHER MR. PAVELIC -- TO MR. PAVELIC, WHO WAS THE SENIOR INVESTIGATOR, BY THE TIME OF JANUARY CERTAINLY, 1995. THE COURT SHOULD UNDERSTAND THAT THERE HAVE BEEN SEVEN DIFFERENT INVESTIGATORS WHO HAVE WORKED IN SOME FASHION OR CONTEXT SINCE THE INSTITUTION OF THIS CASE. THAT NUMBER SINCE LATE OCTOBER OF LAST YEAR HAS BEEN WHITTLED DOWN TO TWO. AND MY COMMUNICATIONS AND MY CONTACTS ON VIRTUALLY A DAILY BASIS HAS BEEN WITH EITHER OR MR. PAVELIC AND/OR MR. MC KENNA. SINCE JANUARY OF 1993, YOUR HONOR, AND ONLY UP UNTIL MAYBE 1:30 THIS AFTERNOON, I SAT FORWARD IN MY OFFICE AND REVIEWED BY DATE EACH OF THE DOCUMENTS, EACH OF THE NAMES TO DETERMINE WHETHER OR NOT, ONE, THERE WERE SOME NAMES THAT WERE SIMPLY SURPLUSAGE AND COULD FAIRLY BE DELETED. I COMPILED A LIST TO THAT EFFECT. I HAVE NOT YET COMPILED A LIST OF THOSE NAMES -- THE 97 NAMES OF CHICAGO WITNESSES BECAUSE THERE WAS SIMPLY JUST NOT ENOUGH TIME, AND I WILL IN THE FUTURE ENDEAVOR TO PARE DOWN THAT LIST AS WELL WORKING WITH MR. MC KENNA, WHO IS INVOLVED WITH INTERVIEWING THOSE PARTICULAR WITNESSES. LET'S TURN TO THE QUESTION OF NOTES AND WHAT'S HAPPENED TO THE NOTES. AND CERTAINLY THE COURT UNDERSTANDS THAT WHEN THE COURT CONSIDERS THE FAIRNESS OF IMPOSING A DISCOVERY SANCTION, THAT MUST BE CONSIDERED IN VIEW OF THE HANDS AND THE CLEANLINESS IF YOU WILL OF THE HANDS OF THE OTHER SIDE. I THINK IT IS NOT AN UNDERSTATEMENT TO SAY THAT 95 PERCENT OF ALL OF THE DOCUMENTS THAT WE HAVE RECEIVED IN THIS CASE ARE TYPED STATEMENTS BY INVESTIGATORS WITH THE EXCEPTION OF CLUES, BECAUSE CLUES ARE HANDWRITTEN. BUT 95 PERCENT OF ALL OF THE OTHER REPORTS ARE TYPED STATEMENTS OF THE AUTHOR OF A PARTICULAR DOCUMENT AND THERE IS ONLY A VERY SMALL PERCENTAGE THAT MIGHT INCLUDE A PARALLEL HANDWRITTEN DOCUMENT OF THE SAME STATEMENT THAT IS ULTIMATELY TYPED UP. WE DO NOT HAVE, YOUR HONOR, A WEALTH OF EXTEMPORANEOUS ROUGH NOTES THAT MAY HAVE BEEN TAKEN IN THE FIELD OR THAT MAY REFLECT SOME EXTEMPORANEOUS MARKINGS AND THOUGHTS AND IMPRESSIONS OF DETECTIVE LANGE, VANNATTER, ET CETERA. WE DO HAVE HANDWRITTEN --
WELL, MR. DOUGLAS, LET ME SAVE US ALL SOME TIME. I'M NOT REALLY CONCERNED ABOUT THAT.
WELL, I WANT TO -- YOUR HONOR, THERE'S A QUESTION OF WHERE ARE THE NOTES. AND I JUST WANT TO SAY THAT SO THE COURT UNDERSTANDS AS I --
THE NOTES, YOUR HONOR, AS THE COURT WILL APPRECIATE, WERE A MATTER OF SEVERE CONCERN FOR SECURITY REASONS. IT HAS BEEN CLEAR FROM VERY EARLY ON IN THIS CASE THE DEPTHS TO WHICH OTHERS MAY SINK TO TRY TO LEARN INTIMATE FACTS AND DETAILS CONCERNING THIS PARTICULAR CASE. I'M SURE THE COURT EVEN HAS FIRST-HAND INFORMATION OF HOW LOW OTHERS WILL SINK TO GO THROUGH TRASH CANS AND OTHER MATTERS SEEKING TO FIND OUT THINGS ABOUT THIS CASE. THE COURT WILL ALSO REMEMBER THAT EARLIER IN THIS CASE, THERE WAS A MINOR INCIDENT AT MR. SHAPIRO'S OFFICE WHERE THERE WAS SORT OF A BREAK-IN OR A TAMPERING OF SOME OF THE FILES. THAT EVENT SERVED TO SEND SHOCK WAVES THROUGHOUT THE DEFENSE TEAM AND NECESSITATED THAT WE TAKE VERY CAREFUL AND CALCULATED STEPS TO PROTECT THE INTEGRITY OF THE DEFENSE EFFORT. THAT IS SIMPLY ONE EXPLANATION OFFERED TO SUPPORT THE REASONS WHY ONCE DOCUMENTS WERE PREPARED AND NOTES WERE IMMEDIATELY DESTROYED BECAUSE WE DID NOT WANT TO HAVE LOOSE NOTES LAYING AROUND FOR ANYONE TO PICK UP OR FOR THEM TO BE MISPLACED. LET'S TURN TO THE QUESTION OF TAPE RECORDINGS, YOUR HONOR. YOUR HONOR, I REPRESENT AS AN OFFICER OF THE COURT THAT NEVER HAVE I BEEN INVOLVED IN A MEETING OR A CONVERSATION WITH ANOTHER LAWYER OR ANOTHER INVESTIGATOR WHEN THERE WAS EVER ANY INTIMATION THAT ANY PARTICULAR INTERVIEW OR CONVERSATION OR DEFENSE EFFORT HAD BEEN TAPE-RECORDED UNTIL MONDAY EVENING WHEN WE RETURNED FROM COURT TO OUR OFFICES AND HAD A CONVERSATION ATTEMPTING THEN TO LEARN EVERYTHING THAT WAS KNOWN ABOUT ANY TAPE RECORDINGS. AND I WILL REPRESENT THAT EACH OF THE LAWYERS THAT I HAVE SPOKEN TO -- AND I HAVE SPOKEN TO ALL OF THE LOCAL LAWYERS ON THE TEAM -- THERE IS NOT ONE LAWYER THAT HAD ANY KNOWLEDGE, NOTICE OR UNDERSTANDING THAT THERE HAD EVER BEEN A TAPE RECORDING OF ANY PARTICULAR WITNESS UNTIL MOMENTS BEFORE IT WAS ANNOUNCED HERE IN OPEN COURT TO ALL FOR ALL TO SEE OTHER THAN THE STATEMENTS OF MR. KAELIN AND ALLAN PARK THAT MR. SHAPIRO TURNED OVER AT THE PRELIMINARY HEARING EARLY IN THE CASE AND BEFORE OUR OFFICE WAS INVOLVED IN THE CASE. THAT WAS THE REASON, YOUR HONOR, THAT I COULD STATE AND MR. COCHRAN COULD STATE WITH SEEMING CONFIDENCE THAT THERE WERE NO OTHER TAPE RECORDINGS IN EXISTENCE BECAUSE WE KNEW THAT THERE WAS NO OTHERS. IT WOULD BE SURE FOLLY, YOUR HONOR, FOR ANYONE TO SUGGEST OR BELIEVE THAT I WOULD STAND BEFORE THIS COURT OR ANY OTHER COURT AND BOLDLY STATE THAT NO TAPES EXIST IF I HAD KNOWN THE TRUE FACTS TO BE DIFFERENT. I TAKE MY OBLIGATIONS AS AN OFFICER OF THIS COURT VERY SERIOUSLY AND I WOULD NOT KNOWINGLY MISLEAD THIS COURT AS TO SOMETHING AS SERIOUS AS THAT. I WOULD ALSO LIKE TO SHARE, YOUR HONOR, THAT I TAKE MY OBLIGATIONS UNDER THE DISCOVERY ACT AND UNDER PROP 115 EQUALLY AS SERIOUSLY. I APPRECIATE THE REASON FOR THE CONCERN. I APPRECIATE THE NECESSITY FOR THIS INQUIRY, BUT I STRONGLY FEEL THAT ANY PROBLEMS THAT WERE THEN IN EXISTENCE HAVE BEEN RESOLVED. I AM OF THE OPINION THAT THERE WILL NOT BE ANY FUTURE PROBLEMS. THERE IS, AS I'VE MENTIONED TO THE COURT, MY NEED TO CLARIFY IN MY OWN MIND A COUPLE OF MATTERS WITH YOU CONSISTENT WITH THE RULES OF THIS COURT SO THAT WE MAY IN CHAMBERS EX PARTE DECIDE WHETHER OR NOT THERE WOULD BE AN OBLIGATION FOR US TO TURN OVER, FOR EXAMPLE, CERTAIN DOCUMENTS THAT WE HAVE IN OUR POSSESSION THAT ARE IMPEACHING OR USED TO PERHAPS IMPEACH A WITNESS THAT IS ON THE PROSECUTION'S WITNESS LIST. AND, YOUR HONOR, JUST TO LEND SOME INSIGHT INTO THE INTERPRETATION OF OUR OBLIGATION IN THE DISCOVERY ACT, I THINK IT IMPORTANT TO NOTE THAT THOUGH WE HAVE NO OBLIGATION, AND I THINK IT'S PLAIN, TO TURN OVER ANY REPORTS OF ANY STATEMENTS OF WITNESSES WHO ARE PRESENTLY ON THE PROSECUTION'S WITNESS LIST, WE DID IN OUR SEPTEMBER 1 FILING TURN OVER A COUPLE OF SUCH STATEMENTS, PARTICULARLY, FOR EXAMPLE, IN CONNECTION WITH DALE ST. JOHN. HE IS A PROSECUTION WITNESS. WE TURNED OVER A STATEMENT WE HAD CONCERNING MR. ST. JOHN. PAT BERMAN IS A PROSECUTION WITNESS. WE TURNED OVER A STATEMENT THAT WE HAD ON MISS BERMAN. THAT SIMPLY IS OFFERED TO PROVE THAT IT IS NOT AND HAS NEVER BEEN OUR INTENTION TO ENGAGE IN GAMESMANSHIP OR TO BOLDLY FLOUT ANY OF THE DIRECTIONS OR ORDERS OF THIS COURT OR ANY OF OUR OBLIGATIONS IN COMPLYING WITH RECIPROCAL DISCOVERY. IN CLOSING, YOUR HONOR, AS I'VE SAID, THE CAUSE FOR THE COURT'S CONCERN IS JUSTIFIED. I DO BELIEVE, HOWEVER, THAT THERE ARE NO OTHER DOCUMENTS THAT EXIST THAT WE ARE OBLIGATED TO TURN OVER. I HAVE, YOUR HONOR, ENDEAVORED TO OBTAIN AND I AM STILL OBTAINING SWORN DECLARATIONS FROM EACH OF THE OTHER INVESTIGATORS WHO HAVE WORKED ON THIS CASE ACKNOWLEDGING WHAT THEY HAVE ALL TOLD ME PERSONALLY; AND OVER THE LAST TWO DAYS, I HAVE SPOKEN TO ALL SEVEN OF THEM PERSONALLY, TWO OF WHOM I HAD NOT SPOKEN TO UNTIL TUESDAY AFTERNOON, BUT EACH OF WHOM HAVE TOLD ME THAT THERE ARE NO RECORDS IN THEIR POSSESSION, THERE ARE NO HANDWRITTEN NOTES IN THEIR POSSESSION, THERE ARE NO TAPE RECORDINGS IN THEIR POSSESSION, AND I REPRESENT THAT TO THE COURT. I WOULD LIKE TO ADD, YOUR HONOR, THAT MY RECOLLECTION OF MR. PAVELIC'S REMARKS -- AND MR. UELMEN CAN COMMENT ON THEM MORE FULLY -- WAS THE FACT THAT HE WAS ALONE WAS ONLY ONE OF THE CRITERIA WHICH LED TO HIS CHOOSING TO TAPE-RECORD THE STATEMENT OF ROSA LOPEZ. IT WAS NOT THE SOLE CRITERIA. HE SAID THAT SHE WAS A FEMALE. HE SAID THAT SHE WAS SPANISH SPEAKING. ALL OF THESE REASONS. I THINK IT'S ALSO IMPORTANT THAT SHE WAS AN IMPORTANT WITNESS. ALL OF THESE FACTORS. AND I THINK PROBABLY THE MORE IMPORTANT FACTOR WAS THE POTENTIAL LANGUAGE PROBLEM AND THE DIFFICULTY IN MAKING SURE THAT ONE COULD CLEARLY RECORD AND RECALL THAT WHICH WAS SAID WILL BE THE PRIMARY REASON WHY SHE -- HE CHOSE TO TAPE-RECORD THAT PARTICULAR INTERVIEW. I HAVE, YOUR HONOR, HAD MORE THAN A DOZEN CONVERSATIONS WITH MR. PAVELIC IN THE LAST TWO DAYS SINCE HIS DISCLOSURE REPEATEDLY ASKING HIM WHETHER OR NOT THERE ARE ANY OTHER STATEMENTS, WHY HE CHOSE TO TAPE-RECORD THAT PARTICULAR STATEMENT, ARE THERE TAPE RECORDINGS OF ANY OTHERS, AND HE'S ASSURED ME THAT THERE ARE NO OTHER TAPE RECORDINGS, THAT HE DID NOT RECORD ANY OF THE WITNESSES AND THERE IS NOTHING ELSE IN HIS POSSESSION. DEAN UELMEN, YOUR HONOR, WOULD LIKE TO COMPLETE THE REMAINDER OF OUR OFFER.
WELL, MR. DOUGLAS, BEFORE YOU LEAVE, LET ME ASK YOU THIS QUESTION. WHAT IS YOUR RESPONSE TO THE PROSECUTION'S REQUEST THAT I INSTRUCT THE JURY THAT THE DELAY THAT WE'VE EXPERIENCED SINCE MONDAY IS A RESULT OF A FAILURE OF THE DEFENSE TO TURN OVER THIS TAPE-RECORDED STATEMENT REGARDING ROSA LOPEZ, THAT I LIFT THE SANCTIONS DELAYING THE PRESENTATION OF SOME OF THE PROSECUTION'S CASE, THAT I ADMONISH THE JURY AT THE TIME MISS LOPEZ -- IF AND WHEN THE 1335 IS PLAYED FOR THE JURY, THAT I ADMONISH THE JURY AS TO THE DELAY IN THE FAILURE OF THE DEFENSE TO ADEQUATELY COMPLY WITH THE COURT'S PREVIOUS ORDERS AND THAT I ALLOW THE PROSECUTION TO ARGUE DURING THE COURSE OF THE CLOSING ARGUMENT THE WITHHOLDING OF EVIDENCE BY THE DEFENSE? ALSO, WHAT IS YOUR RESPONSE TO THEIR REQUEST THAT I REQUIRE YOU TO SUBMIT TO THE COURT IN A TIMELY MANNER A LIST OF THE NAMES OF ALL THE WITNESSES ON YOUR WITNESS LIST AS IT EXISTS TODAY, THE DATES OF EACH INTERVIEW, THE DATES OF EACH WRITTEN REPORT, WHETHER OR NOT THERE ARE ANY NOTES IN EXISTENCE, WHETHER OR NOT THERE ARE ANY VIDEO OR AUDIOTAPES OR ANY OTHER MEMORIALIZATION EXISTING WITH REGARD TO THOSE INTERVIEWS?
AS TO THE WITNESSES, YOUR HONOR, THAT ARE CURRENTLY ON OUR WITNESS LIST, I ALREADY COMPILED THE TABLE IF THE COURT WILL RECALL THAT PROVIDES THAT PARTICULAR INFORMATION. THERE IS -- WHETHER OR NOT THE WITNESS WAS ON THE PROSECUTION'S LIST, WHETHER OR NOT THE WITNESS WAS INTERVIEWED AND THE DATE, WHETHER OR NOT A STATEMENT WAS TAKEN AND THE DATE TO WHICH EACH WAS TURNED OVER. WE HAD PREPARED, YOUR HONOR, FOR DEAN UELMEN TO ANSWER THE SPECIFIC QUESTIONS CONCERNING DISCOVERY SANCTIONS, AND I WOULD DEFER TO HIM IF THE COURT PLEASES.
TODAY, YOUR HONOR, SEEMS A PARTICULARLY APPROPRIATE DAY FOR THE DEFENSE TO APPEAR IN SACK CLOTH AND ASHES, AND WE DO. WE APPEAR BEFORE THE COURT AS PENITENTS. WE SCREWED UP. WE ADMIT THAT. WE APOLOGIZE FOR THAT. I KNOW I SPEAK FOR EVERY MEMBER OF THE DEFENSE TEAM IN OFFERING A SINCERE APOLOGY TO THE COURT AND TO COUNSEL FOR THE PROSECUTION. THE ONLY EXPLANATION WE CAN MAKE IS THAT WE ARE HUMAN. BUT WE DO NOT ADMIT TO IGNORANCE OF THE LAW OR CONTEMPT FOR THIS COURT'S ORDERS WITH RESPECT TO ANY OF OUR EFFORTS WITH RESPECT TO COMPLYING WITH THE DISCOVERY LAW. I THINK WE HAVE MADE AN EFFORT IN EVERY CASE WHERE THERE WAS SOME CONFUSION IN TERMS OF HOW THIS LAW SHOULD BE APPLIED TO GET A RULING FROM THE COURT AND TO COMPLY WITH THAT RULING IN GOOD FAITH. WE ARE NOT CONTENDING EVERYTHING IS PRIVILEGED. THE PRIVILEGE ARGUMENT THAT WAS PRESENTED TO THE COURT TODAY IS BASED SQUARELY ON A RULING OF THE COURT OF APPEALS IN THE RODRIGUEZ CASE, JUSTICE ARGUILLES, WHO IS CERTAINLY NOT A PAVLOVIAN DEFENSE ADVOCATE, RECOGNIZING THAT THERE ARE SERIOUS PRIVILEGE PROBLEMS IN THE CONTEXT OF MAKING DISCOVERY OF EXPERT REPORTS. I THINK YOUR HONOR OF COURSE REALIZES THAT THE BIGGEST MOTIVATOR FOR LAWYERS TO COMPLY WITH WHAT THE LAW REQUIRES IN TERMS OF DISCOVERY IS NOT THE THREAT OF SANCTIONS. IT'S THE FEAR OF LOSING THEIR CREDIBILITY, OF DAMAGING THEIR REPUTATIONS, AND THOSE ARE MOTIVATORS THAT APPLY EQUALLY TO ALL OF THE LAWYERS INVOLVED IN THIS CASE. AND I DON'T THINK THERE IS ANY BASIS IN THE RECORD THAT WE HAVE BEFORE US THAT TO ASSUME THAT ANY OF THE CONDUCT THAT YOUR HONOR IS DEALING WITH INVOLVED DELIBERATE CONCEALMENT OF EVIDENCE. WE WOULD NOT BE HERE DISCUSSING SANCTIONS BECAUSE WE ARE DEALING HERE WITH EVIDENCE THAT WAS DISCLOSED, ALTHOUGH LATER THAN IT SHOULD HAVE BEEN, AND WE CERTAINLY ADMIT THAT. I THINK IT'S ALSO IRONIC, YOUR HONOR, THAT WE'RE DISCUSSING THIS ISSUE ONLY THREE WEEKS AFTER WE WERE SCREAMING JUST AS LOUDLY AS THE PROSECUTION IN THIS CASE OVER THE DELAY IN PRODUCING A VIDEOTAPE OF MR. SIMPSON GREETING GUESTS THE EVENING THAT THIS MURDER TOOK PLACE AT THE JUNIOR HIGH SCHOOL OR THE JUNIOR SCHOOL WHERE THE PRESENTATION BY HIS CHILDREN HAD TAKEN PLACE; AND IT WAS INTERESTING BECAUSE THAT TAPE HAD BEEN IN THE HANDS OF THE PROSECUTION SINCE JUNE AND IT WAS ONLY MADE AVAILABLE TO THE DEFENSE APPROXIMATELY THREE WEEKS AGO. AND JUST AS THEY'RE SCREAMING ABOUT THIS, WE WERE SCREAMING ABOUT THAT. AND THE EXPLANATION THAT WAS OFFERED WAS A VERY SIMPLE ONE; IT FELL THROUGH THE CRACKS. AND I FIND IT IRONIC THAT WHEN IT TURNS OUT WE'VE GOT SOME CRACKS OURSELVES, THAT THE IMMEDIATE CONCLUSION HAS LED TO THAT THERE WAS SOME SORT OF DELIBERATE EFFORT HERE TO CONCEAL EVIDENCE OR TO ENGAGE IN UNPROFESSIONAL BEHAVIOR. THE QUESTION OF SANCTIONS IS ADDRESSED DIRECTLY BY SECTION 1054.5 OF THE DISCOVERY LAW, AND IT INDICATES: "UPON A SHOWING THAT A PARTY HAS NOT COMPLIED WITH SECTION 1054.1 OR SECTION 1054.3," WHICH IS TRUE, "AND UPON A SHOWING THAT THE MOVING PARTY COMPLIED WITH THE INFORMAL DISCOVERY PROCEDURE PROVIDED IN THIS SUBDIVISION, A COURT MAY MAKE ANY ORDER NECESSARY TO ENFORCE THE PROVISIONS OF THE CHAPTER," THEN SPECIFYING A NUMBER OF ALTERNATIVE SANCTIONS.
AND THE QUESTION WE WOULD SIMPLY ADDRESS IS WHETHER THE PROSECUTION IS IN A POSITION OF BEING ABLE TO COME BEFORE THIS COURT, ESPECIALLY IN VIEW OF WHAT JUST HAPPENED THREE WEEKS AGO, AND SAY THAT THEY HAVE FULLY COMPLIED WITH ALL OF THE INFORMAL DISCOVERY PROCEDURES THEMSELVES. THIS IS NOT IN ANY WAY TO DENIGRATE OR TO INDICATE THAT WHAT WE DID IS LESS SERIOUS THAN IT IS, BUT SIMPLY TO INDICATE THAT THERE ARE GOING TO BE HUMAN ERRORS MADE ON BOTH SIDES. AND I THINK THE PURPOSE OF FASHIONING A SANCTION IS TO PUT THINGS RIGHT, TO LEVEL THE PLAYING FIELD, TO ELIMINATE ANY ADVANTAGE THAT A PARTY MIGHT HAVE GAINED BY THEIR FAILURE TO FULLY COMPLY WITH THE DISCOVERY LAW. AND THAT I THINK WAS THE GUIDING PRINCIPAL IN YOUR HONOR'S IMPOSITION OF SANCTIONS AGAINST THE PROSECUTION, OF IMPOSING THE SANCTION SIMPLY OF, SINCE ALL OF THE WITNESSES WHO WERE REVEALED LATER THAN THEY SHOULD HAVE BEEN DELAYED, THE DEFENSE EFFORTS TO CONDUCT INVESTIGATIONS, THOSE WITNESSES COULD NOT BE CALLED UNTIL ALL OF THE PREVIOUS WITNESSES HAD BEEN CALLED. SO IT WAS ESSENTIALLY FASHIONED TO PUT THE PROSECUTION IN A POSITION THEY WOULD HAVE BEEN IF THEY HAD FULLY COMPLIED. AND I THINK WE NEED TO SEEK THE SAME SORT OF EQUITY IN THIS SITUATION, TO PUT RIGHT ANY WRONG THAT THEY HAVE HAD TO ENDURE IN TERMS OF THEIR POSITION AS LITIGANTS IN THIS CASE. BUT SANCTIONS SHOULD NOT EVER REDOUND TO THE DETRIMENT OF THE DEFENDANT HIMSELF, TO BURDEN THE DEFENDANT WHO IS ON TRIAL WITH THE SINS OF HIS LAWYERS AND TO SUGGEST TO THE JURY THAT THE DEFENDANT OR THE EVIDENCE THAT HE IS PRESENTING IS LESS CREDIBLE BECAUSE HIS LAWYERS DID NOT COMPLY WITH A SPECIFIC STATUTORY REQUIREMENT. AND I THINK IT WOULD BE HIGHLY INAPPROPRIATE UNDER THESE CIRCUMSTANCES TO SUGGEST TO THE JURY THAT ANY ADVERSE INFERENCES COULD BE DRAWN AGAINST MR. SIMPSON BASED ON THE WITHHOLDING OF EVIDENCE. I INVITE YOUR HONOR TO LOOK AT THE CALJIC INSTRUCTION ON THE CONCEALMENT OR WITHHOLDING OF EVIDENCE, AND IT MAKES IT QUITE CLEAR THAT THAT INSTRUCTION IS ONLY APPROPRIATE WHEN THE CONCEALMENT OR WITHHOLDING OF EVIDENCE IS DIRECTLY ATTRIBUTABLE TO THE CONDUCT OF THE DEFENDANT HIMSELF, NOT THE CONDUCT OF HIS LAWYERS. WITH RESPECT TO LIFTING THE SANCTIONS THAT HAVE ALREADY BEEN IMPOSED ON THE PEOPLE, THOSE SANCTIONS WERE IMPOSED TO EVEN THE PLAYING FIELD, AND IT'S NOT GOING TO EVEN THE PLAYING FIELD IN TERMS OF THE DISADVANTAGE THAT THE DEFENSE SUFFERED BY THE LATE DISCLOSURE OF PROSECUTION WITNESSES, TO LIFT THOSE SANCTIONS WHEN WE'RE DEALING HERE WITH THE LATE PRODUCTION OF ONE TAPE RECORDING WITH RESPECT TO ONE WITNESS ON THE PART OF THE -- ON THE PART OF THE DEFENSE. I THINK YOUR HONOR HAS LARGELY ALREADY ADDRESSED THE PROBLEM CREATED BY THIS TAPE RECORDING ITSELF IN REQUIRING IMMEDIATE DISCLOSURE, IN DELAYING THE TESTIMONY AND ALLOWING THE PROSECUTION TIME TO ANALYZE THAT TAPE RECORDING AND PREPARE TO CROSS-EXAMINE THE WITNESS AND BY IMPOSING ON THE DEFENSE THE COSTS OF THE DELAY TO THE EXTENT THAT IT REQUIRED ADDITIONAL ACCOMMODATION OF THE WITNESS. I HONESTLY DON'T BELIEVE THAT ANY FURTHER SANCTIONS ARE NECESSARY TO RIGHT THE WRONG AND TO LEVEL THE PLAYING FIELD IN THIS CASE. I THINK WHAT YOUR HONOR DOES HAVE TO BE CONCERNED WITH IS TO MAKE SURE THAT THIS DOESN'T HAPPEN AGAIN. AND I THINK THE SUGGESTION OF REQUIRING THE DEFENSE TO PROVIDE THE VERY DETAILED ACCOUNTING THAT MR. DOUGLAS HAS ALREADY OFFERED TO THE COURT, LAYING OUT PRECISELY EVERY WITNESS ON OUR LIST, WHEN AND WHERE THEY WERE INTERVIEWED, WHEN THE STATEMENTS WERE TURNED OVER AND TO REQUIRE THAT BE SUBMITTED UNDER OATH SHOULD REMEDY THE PROBLEM.
KEY QUOTEYOUR HONOR, THE COURT IS -- I AM SORRY. BUT THE COURT HAS BEEN VERY -- THIS IS THE ONE THING THE COURT HAS HELD TO, REQUIRING ONE LAWYER PER ISSUE. I ARGUED THE EARLIER MOTION. MISS CLARK IS ARGUING THIS ONE.
WELL, THE REASON I AM GOING TO INDULGE MR. SHAPIRO IS BECAUSE MR. SHAPIRO'S CONDUCT, AS BEING THE CONDUIT FOR ALL THESE REPORTS, CALLS INTO QUESTION HIS PROFESSIONAL REPUTATION, AND I THINK HE'S ENTITLED TO ADDRESS THAT ISSUE. I ASSUME THAT'S WHAT YOU ARE GOING TO DO.
THANK YOU, YOUR HONOR. I APPRECIATE THE OPPORTUNITY. YOUR HONOR KNOWS THE SPEED AT WHICH THIS CASE HAS MOVED AND KNOWS THE NUMBER OF LAWYERS ON BOTH SIDES THAT HAVE BEEN INVOLVED. I WAS HIRED AS MR. SIMPSON'S INITIAL LAWYER AND REMAINED HIS LEAD COUNSEL UNTIL THE BEGINNING OF PRESENTATION OF EVIDENCE, AT WHICH TIME MR. COCHRAN TOOK RESPONSIBILITY AS BEING THE CHIEF TRIAL LAWYER FOR THIS CASE. BUT THIS BEGAN AND THIS REMAINED AS A TEAM EFFORT, AND AS SUCH, SOMEBODY ON A TEAM MUST TAKE ULTIMATE RESPONSIBILITY. SINCE I WAS IN CHARGE OF THIS TEAM FROM THE TIME THAT MR. SIMPSON RETURNED ON THE 13TH OF JUNE UNTIL THE TIME OF THE PRESENTATION OF EVIDENCE, I WILL TAKE THAT RESPONSIBILITY. AND IF THERE ARE SANCTIONS TO BE IMPOSED, THOSE SANCTIONS SHOULD NOT GO TOWARDS MR. SIMPSON BECAUSE OF HIS CHOICE OF LAWYERS, BUT SHOULD GO TO HIS LAWYERS WHO IN FACT ARE RESPONSIBLE FOR THE POSITION THE COURT FINDS ITSELF IN TODAY. AS TO WHAT IS AN APPROPRIATE SANCTION, I WILL SAY THE FOLLOWING TO YOUR HONOR. THAT MY POLICY HAS ALWAYS BEEN AN OPEN DISCOVERY POLICY, AND I SHARED THAT POLICY WITH MR. HODGMAN UP UNTIL THE TIME OF HIS RECENT UNFORTUNATE HEALTH PROBLEMS, WHERE I OFFERED HIM THE OPPORTUNITY TO COME TO MY OFFICE AND REVIEW EVERYTHING WE HAVE. I WILL TELL YOUR HONOR --
WELL, I OBJECT TO THAT ARGUMENT AT THIS TIME, MR. HODGMAN NOT BEING PRESENT TO TELL US WHAT EXACTLY --
MR. HODGMAN WON'T CONTRADICT THAT. I WILL ALSO TELL YOUR HONOR THAT THE ONLY TAPE RECORDINGS THAT I WAS AWARE OF UNTIL YESTERDAY IN THIS CASE WERE THE TWO TAPE RECORDINGS THAT I DID MYSELF, WHICH WAS UNIQUE FOR ME, BUT BECAUSE OF THE TIME LIMITATIONS PLACED UPON US AND THE DESIRE TO GET INFORMATION FRESH AND TO NEVER BE IN A POSITION WHERE ANYTHING THAT I MIGHT HAVE SAID TO A WITNESS COULD EVER BE MISINTERPRETED, I RECORDED THOSE CONVERSATIONS BETWEEN MR. KAELIN, MR. PARK AND MYSELF AND I IMMEDIATELY TURNED THOSE OVER TO MR. HODGMAN. ALTHOUGH I HAD NO LEGAL, MORAL, STATUTORY OR OTHER REASON TO TURN THEM OVER, I FELT THAT IT WAS A PROPER THING TO DO. WE ARE HERE NOW TO ADDRESS TWO ISSUES THAT I THINK YOUR HONOR IS RIGHTFULLY CONCERNED WITH. NUMBER ONE, THERE WERE TWO REPORTS OF MEMORANDUMS TO MYSELF REGARDING THE INTERVIEW OF ROSA LOPEZ. IT CAME TO MY ATTENTION DURING THE PRESENTATION OF TESTIMONY THAT THERE WAS AN ERROR, THAT TWO REPORTS EXISTED, THAT ONLY ONE HAD BEEN TURNED OVER. I IMMEDIATELY CALLED THE LAWYERS TOGETHER AND WE WENT INTO CHAMBERS TO DISCUSS THE ISSUE WITH YOUR HONOR. THE SECOND WAS WHEN YOUR HONOR ASKED ME TO CALL MR. PAVELIC, I REACHED MR. PAVELIC IMMEDIATELY -- HE HAD BEEN WATCHING THE PROCEEDINGS -- AND I ASKED HIM IF THERE WERE ANY NOTES OR TAPE RECORDINGS. HE IMMEDIATELY TOLD ME HE TAPE-RECORDED THE FIRST INTERVIEW. I SAID, "COME TO COURT IMMEDIATELY." AT THAT TIME, I MET WITH MR. PAVELIC RIGHT BEFORE YOUR HONOR CALLED HIM IN AND TOLD HIM HE HAD TO DISCLOSE THAT TO THE COURT. SO IN BOTH INSTANCES, EVEN THOUGH THERE WAS NEGLIGENCE ON OUR PART, EVEN THOUGH THOSE WERE OUR OBLIGATIONS TO FIND OUT, WE DID NOT. HOWEVER, AS SOON AS THEY BECAME APPARENT TO ME AS AN OFFICER OF THIS COURT, I MADE IT AVAILABLE TO YOUR HONOR. IF I HAVE BEEN IN CONTEMPT OF COURT, I WILL SUFFER APPROPRIATE SANCTIONS. THANK YOU.
YOUR HONOR, MISS CLARK HAS BEEN HANDLING THESE PARTICULAR MOTIONS WITH REGARD TO WITNESS STATEMENTS AND SO FORTH.
I DON'T SEE HOW COUNSEL CAN STAND BEFORE THIS COURT AND ARGUE THE FACT THAT THEY HAVE SOMETIMES COMPLIED WITH THE DISCOVERY LAWS TO AVOID THE SANCTIONS THAT SHOULD BE IMPOSED UPON THEM FOR THE VERY EGREGIOUS CONDUCT THEY HAVE ENGAGED IN WITH RESPECT TO THE MOST RECENT AND OF COURSE THE OPENING STATEMENT VIOLATION THAT WE'VE SEEN. FOR MR. UELMEN TO STAND BEFORE THIS COURT AND SAY THAT NO SANCTIONS ARE NEEDED IS OFFENSIVE. FOR MR. UELMEN TO STAND BEFORE THIS COURT AND ATTEMPT TO AVOID THE SANCTIONS THAT ARE SORELY NEEDED IN THIS CASE BY SAYING HE WEARS SACK CLOTH AND ASHES SHOULD BE UNAVAILING AND UNIMPRESSIVE TO THIS COURT. FRANKLY, I DON'T CARE IF HE WEARS A DRESS BECAUSE WHAT HE WEARS IS OF NO MOMENT TO THE PEOPLE'S RIGHT TO A FAIR TRIAL. THAT'S WHAT I WANT TO SEE HERE AND THAT'S WHAT THE DEFENSE HAS BEEN ACTIVELY ENGAGING IN TRYING TO PREVENT. IT IS TRYING TO PREVENT THE SEARCH FOR THE TRUTH, AND WHAT THE COURT SHOULD LOOK AT IS THE FACT THAT THEIR FEAR OF LOSING CREDIBILITY IS OBVIOUSLY NOT ENOUGH OF A SANCTION. HOW CAN THEY EVEN BEAR TO UTTER THOSE WORDS AFTER THEY CONDUCTED, ENGAGED IN SUCH SERIOUS MISCONDUCT DURING THE OPENING STATEMENT, MAKING THOSE REPRESENTATIONS ABOUT WITNESSES WHO WERE NEVER PRODUCED UPON WHOM THEY RELIED, PLACED GREAT RELIANCE OBVIOUSLY IN MENTIONING IN THEIR OPENING STATEMENTS?
THAT'S RIGHT. THAT'S RIGHT, FOR WHICH WE APPLAUD THE COURT IN ITS WILLINGNESS TO TAKE A STEP THAT IS UNPRECEDENTED. AND IN A CASE LIKE THIS, THAT TAKES A LOT OF STRENGTH, AND WE DO APPRECIATE THAT, YOUR HONOR. WE DO. BUT FOR COUNSEL TO GET UP AND TELL THIS COURT THAT NO SANCTIONS ARE NEEDED WHERE NOW THEY HAVE ENGAGED IN THE VERY SAME THING AND IN AN EGREGIOUS MANNER IS REALLY SOMETHING TO BEHOLD. TO COMPARE A VIDEOTAPE SUBMITTED BY A PRIVATE CITIZEN THAT GOES TO A BARELY PERIPHERAL ISSUE OF LITTLE EVIDENTIARY VALUE WHICH WAS GIVEN TO THEM, TO WHAT THEY HAVE DONE WITH ROSA LOPEZ AND WHAT THEY'VE DONE WITH THE OPENING STATEMENT WITNESSES IS UNCONSCIONABLE, IS JUST UNBELIEVABLE. AND IT'S VERY INTERESTING NOW TO HEAR THE DEFENSE ATTEMPT TO EXCUSE ITS MISCONDUCT DUE TO THE SPEED OF THE CASE AND TO PLEAD THEIR HUMANITY. THOSE WERE ARGUMENTS THAT THEY WERE PARTICULARLY UNMOVED BY WHEN THE PEOPLE WERE JUST TWO OR THREE WEEKS LATER IN DISCOVERY WITH SOME OF THEIR ITEMS. AND THEY COMPLAINED ABOUT 30,000 PAGES OF DISCOVERY. IT WASN'T THEIR'S, YOUR HONOR. THAT WAS OURS. IT'S UNDERSTANDABLE SOMETHING SLIPS THROUGH THE CRACKS WHEN WE HAVE 30,000 PAGES OF DISCOVERY AND HUNDREDS OF TAPES, AUDIO AND VIDEO. IT IS NOT UNDERSTANDABLE WHEN THE STATEMENTS OF A KEY DEFENSE WITNESS -- AND THEY ONLY HAVE 70 OR 80 PAGES OF DISCOVERY. BUT NEVERTHELESS, THE STATEMENTS OF A KEY DEFENSE WITNESS SOMEHOW SLIPS THROUGH THE CRACKS. THAT'S UNBELIEVABLE AND IT COULDN'T -- IT SHOULD NOT BE ACCEPTED BY THIS COURT AT FACE VALUE AS BEING SOMETHING THAT WAS MERELY NEGLIGENT. THEY WERE AFRAID WHEN THIS WITNESS TOOK THE STAND THAT SHE WOULD BE ASKED ON CROSS-EXAMINATION HOW MANY TIMES SHE SPOKE TO MR. PAVELIC AND THAT MAYBE SHE'S NOT CONTROLLABLE ENOUGH, SHE WOULD COME OUT WITH THAT FACT, "YES, I'VE SPOKEN TO HIM TWO, THREE FOUR, TIMES." WHO KNOWS HOW MANY TIMES NOW, YOUR HONOR? THAT'S WHAT THEY'RE AFRAID OF AND THAT'S WHY THAT REPORT CAME FLOATING OUT AT THE 11TH HOUR. I THINK THAT THE REASON THAT THE SANCTIONS REQUESTED BY THE PEOPLE ARE SO IMPERATIVE AT THIS TIME IS THAT WHAT WE HAVE HERE IS A CONTINUATION OF A PATTERN. IT'S A SINISTER SCHEME AND IT'S ONE WHICH WAS REVEALED AT THE TIME OF OPENING STATEMENTS AND ONE THAT HAS NOW BEEN CONTINUING. IN EACH CASE, WE AREN'T TALKING ABOUT PERIPHERAL WITNESSES, YOUR HONOR. WE'RE NOT TALKING ABOUT A CHAIN OF CUSTODY WITNESS. YOU KNOW, YOU COULD UNDERSTAND WHERE THAT MIGHT BE -- SLIP SOMEONE'S ATTENTION. WE ARE TALKING ABOUT KEY STATEMENTS, KEY EVIDENCE AND KEY WITNESSES. NO LAWYER, LET ALONE ONE FOR THE DREAM TEAM, IS GOING TO MISPLACE A STATEMENT OF A KEY WITNESS, MISPLACE A TAPE RECORDING OF A KEY WITNESS. THIS MAKES NO SENSE. AND ALTHOUGH MR. DOUGLAS CLAIMS TO HAVE TAKEN HIS OBLIGATION TO FOLLOW THE LAW VERY SERIOUSLY, HE CERTAINLY HAS SHOWN HIS CONTEMPT FOR IT, NOT JUST BY HIS ACTIONS, BUT BY HIS WORDS. IF THE COURT WILL RECALL, THE LAST TIME WE VISITED THIS ISSUE AFTER THE OPENING STATEMENTS, MR. DOUGLAS ARGUED VEHEMENTLY AND WITH PASSION HIS DISBELIEF, HIS UNWILLINGNESS TO FOLLOW THE LAW OF DISCOVERY IN HIS BELIEF THAT IT WAS IN DEROGATION OF THE DEFENDANT'S RIGHTS. AND WHAT YOU'RE SEEING NOW IS CONDUCT CONSISTENT WITH THEIR TRUE BELIEF. THEY DO NOT BELIEVE THEY ARE REQUIRED TO FOLLOW THE LAW, THEY HAVE SHOWN THEIR CONTEMPT FOR THE LAW AND THEY WILL CONTINUE TO FLAUNT THE LAW UNLESS THE COURT MAKES THEM PAY. IT'S A COST BENEFIT ANALYSIS, YOUR HONOR. IF IT DOESN'T HURT BADLY ENOUGH, THEN THEY'RE GOING TO KEEP DOING IT BECAUSE THEY HAVE GOTTEN AWAY WITH SO MUCH AND THEY ARE STILL AHEAD OF THE GAME, WAY AHEAD. THEY'VE INTERRUPTED THE PEOPLE'S CASE. THEY'VE CAUSED AN INCREDIBLE LENGTHY DELAY DURING THE TESTIMONY OF DETECTIVE LANGE. THEY'VE GOTTEN TO JUMBLE OUR WITNESS ORDER. WHAT HAVE THEY SUFFERED AS A RESULT OF THE SANCTIONS? AND AT THIS POINT, THEY ARE -- WHAT THEY WANT IS NO SANCTION AS ALL. THEY WANT YOU TO CONSIDER ONLY PERHAPS SOMETHING WITH RESPECT TO ROSA LOPEZ. BUT THEN IF THEY PULL HER TESTIMONY, THERE'S NO SANCTION AT ALL. BUT THE PEOPLE WOULD STILL HAVE SUFFERED. OUR CASE WILL STILL HAVE BEEN INTERRUPTED.
BUT IF THEY WITHDRAW ROSA LOPEZ, I THINK THAT WOULD BE A VERY INTERESTING STRATEGIC AND TACTICAL WIN ON YOUR PART; DON'T YOU THINK?
DEPENDS. AT THIS POINT, KNOWING WHAT WE KNOW ABOUT ROSA LOPEZ, WE WANT THEM TO CALL HER. SO --
YES, I'M SURE THAT'S BEEN A GREAT BURDEN TO THE DEFENSE, FOR MILLIONAIRES OVER HERE PAYING WHAT, A HUNDRED A NIGHT? ANYWAY, WHEN WE VISITED THIS ISSUE AFTER OPENING STATEMENTS, WE SAW THEM ARGUE TO THE COURT THAT EVERYTHING WAS TAKEN CARE OF, AND NOW WE HEARING THE SAME ARGUMENT AGAIN. YOU KNOW, I CAN'T BELIEVE THAT THIS IS -- THAT ANYBODY BUYS THIS ANYMORE. CERTAINLY THE PEOPLE DO NOT. THEY ARGUE VEHEMENTLY THAT SANCTIONS SHOULD NOT REDOUND TO THE DETRIMENT OF THE DEFENDANT. IT DOESN'T. IT REDOUNDS TO THE DETRIMENT OF THE WITNESS. GIVEN THE FACT THAT UNDER OUR DISCOVERY LAWS NOW, THE COURT IS WELL WITHIN ITS AUTHORITY TO PRECLUDE THE INTRODUCTION OF EVIDENCE ALTOGETHER, TO DENY THEM THE RIGHT TO CALL A WITNESS ALTOGETHER. IT IS CLEAR THAT ALLOWING THE PEOPLE -- AND THE PEOPLE HAVEN'T EVEN ASKED FOR PRECLUSION, ALTHOUGH WE WOULD BE WELL ENTITLED TO AT THIS POINT. ALL WE ARE ASKING FROM THE COURT IS THE ADMONITION TO THE JURY AND THE ABILITY TO ARGUE WHAT IS A CLEAR PATTERN OF CONDUCT BY THE DEFENSE BECAUSE THIS IS A SINISTER SCHEME. THIS IS -- THIS IS A CONSPIRACY. YOU KNOW, THEY ARE TRYING TO HIDE THE BALL, THEY ARE TRYING TO PREVENT THE JURY FROM HEARING WHAT THE WITNESSES ARE REALLY ABOUT AND FROM HEARING THE TRUTH. AND I THINK THAT AT THE VERY LEAST, THE PEOPLE SHOULD BE ENTITLED TO ARGUE THAT FACT, TO SAY THIS WITNESS WAS WITHHELD, THIS STATEMENT --
ALL RIGHT. DO YOU RECALL -- DO YOU RECALL THE INSTRUCTION THAT I GAVE TO THE JURY AFTER THE -- AFTER THE -- BEFORE I ALLOWED YOU TO REOPEN; THE JURY CAN TAKE INTO CONSIDERATION THE IMPACT OR DELAY ON THE CREDIBILITY OF A WITNESS, IF ANY.
HOWEVER, AS MR. UELMEN POINTED OUT, THE CASE LAW THAT DEALS WITH THE JURY INSTRUCTION REGARDING THE FABRICATION, THE MANUFACTURING OF EVIDENCE, THE HIDING OF EVIDENCE, THERE MUST BE A DIRECT LINK TO THE DEFENDANT AS AUTHORIZING THAT CONDUCT BEFORE I CAN GIVE THAT INSTRUCTION.
DELAYING DISCLOSURE AND WILLFUL NONDISCLOSURE. IN ANY EVENT, SOMETHING TO THINK ABOUT.
YES. AND OBVIOUSLY, THE COURT WOULD LIKE THE -- WOULD -- IF THE COURT WOULD LIKE, WE WOULD DRAFT AN ADMONITION FOR THE COURT'S REVIEW.
I THINK I'VE ALREADY DONE SOMETHING ABOUT DELAY OF DISCLOSURE OF WITNESSES OR INFORMATION REGARDING WITNESSES, HAVEN'T I?
YES. SPECIFICALLY THIS, YOUR HONOR. MR. DOUGLAS AGAIN INDICATES A LACK OF UNDERSTANDING OF THE LAW OF DISCOVERY WHEN HE INDICATED TODAY THAT ANY REPORTS THAT WERE GENERATED SOLELY FOR IMPEACHMENT ARE NOT DISCOVERABLE. THAT'S NOT CORRECT. THAT IS NOT THE LAW.
UNDER IZZAZAGA, REPORTS ON IMPEACHMENT ARE DISCOVERABLE IF THEY CONTAIN WITNESS NAMES OR STATEMENTS THAT ARE TO BE INTRODUCED IN REBUTTAL. ONLY IF THE DEFENDANT GOES BACK AND REINTERVIEWS A WITNESS THE PEOPLE HAVE PROVIDED AND GETS AN INCONSISTENT STATEMENT IS THAT NOT DISCOVERABLE. SO JUST SO WE'RE CLEAR ON THAT. WITH RESPECT TO --
I THINK IT'S REALLY INTERESTING TOO THAT COUNSEL NOW ATTEMPTS TO EXPAND THE CIRCUMSTANCES UNDER WHICH MR. PAVELIC WILL TAPE TO INCLUDE BEING FEMALE. WHAT IS IT ABOUT BEING FEMALE THAT REQUIRES US TO BE TAPED I WOULD LIKE TO KNOW AND I WOULD LIKE TO HAVE MR. PAVELIC UNDER OATH AND ASK THEM THOSE QUESTIONS TOO. I REALLY WANT TO KNOW ABOUT THAT ONE. NEVERTHELESS, MR. PAVELIC HIMSELF, WHEN QUESTIONED, INDICATED THAT THE CRITERIA HE USED WAS THAT HE WAS ALONE AND WITHOUT A PARTNER, AND THAT'S A NICE, GENDER, NEUTRAL REASON THAT I THINK MAKES SENSE. HOWEVER, WE HAVE TO FIND OUT IF THAT'S TRUE BECAUSE IF THAT'S TRUE, THERE ARE A NUMBER OF WITNESSES THAT HE REFERS TO AS HAVING INTERVIEWED ALONE AND WE HAVE NO TAPES FOR THEM. AND IF THE COURT WOULD LIKE, I CAN READ THOSE NAMES INTO THE RECORD.
MISS LYNNETTE GOLDNER, G-O-L-D-N-E-R, MISS CASANDRA AHEARN, A-H-E-A-R-N, MR. THOMAS TALERINO, T-A-L-E-R-I-N-O, MR. RICHARD AARON, A-A-R-O-N, MARK PARTRIDGE, RONALD TAYLOR, T-A-Y-L-O-R, STEVE VALERIE, V-A-L-E-R-I-E, FOR WHOM WE HAVE ONE STATEMENT ON JUNE 23RD AND ANOTHER ONE ON JUNE 17TH, HOWARD BINGHAM, B-I-N-G-H-A-M, RICHARD WALSH, W-A-L-S-H, TONY VALENZUELA, V-A-L-E-N-Z-U-E-L-A, MR. ED MCCABE, M-C-C-A-B-E, BETHY B-E-T-H-Y, VAQUERANO, V-A-Q-U-E-R-A-N-O, MISS K. BELL, THAT'S K PERIOD, MR. JASON WOOD, MR. TONY PARKER, MISS RACHEL -- RACHEL BERMAN AND HER MOTHER, PAT BERMAN, AND HER FATHER, MR. BERMAN AND MICHELLE ABUDRAHM, A-B-U-D-R-A-H-M. ALL OF THOSE WERE INDICATED BY MR. PAVELIC AS HAVING BEEN INTERVIEWED BY HIM ALONE, AND WE WOULD LIKE FOR THE COURT TO INQUIRE OF HIM UNDER OATH AS TO WHERE THE TAPES ARE THAT SHOULD EXIST OF THOSE INTERVIEWS.
ALL RIGHT. ALL RIGHT. THANK YOU, COUNSEL. DUE TO THE LATENESS OF THE HOUR, I'M GOING TO TAKE THE MOTION FOR SANCTIONS AND FURTHER DISCOVERY ORDERS UNDER SUBMISSION AT THIS TIME. I'LL ISSUE A WRITTEN RULING ON THIS MATTER AS WELL. AND, MR. DOUGLAS, YOU HAD ASKED FOR A 1054.7 IN CAMERA. I'M GOING TO CONTINUE THAT OVER TO TOMORROW MORNING AT 8:30.
ALL RIGHT. I'M GOING TO ORDER YOU TO BE HERE -- I AM SORRY. 8:30. I HAVE ANOTHER SENTENCING MATTER AT 8:30, BUT BE HERE AT 8:30. ALL RIGHT. COUNSEL, ANYTHING ELSE BEFORE WE STAND IN RECESS? ALL RIGHT. MISS CLARK, ARE YOU AWARE OF ANY REASON WHY WE CAN'T GO FORWARD WITH THE 1335 TOMORROW MORNING?
ALL RIGHT. ANYTHING ELSE, COUNSEL? ALL RIGHT. TOMORROW MORNING, 9:00 O'CLOCK. AND, MR. DOUGLAS, 8:30. ALL RIGHT. THANK YOU, COUNSEL.
TODAY, YOUR HONOR, SEEMS A PARTICULARLY APPROPRIATE DAY FOR THE DEFENSE TO APPEAR IN SACK CLOTH AND ASHES, AND WE DO. WE APPEAR BEFORE THE COURT AS PENITENTS. WE SCREWED UP. WE ADMIT THAT.
FRANKLY, I DON'T CARE IF HE WEARS A DRESS BECAUSE WHAT HE WEARS IS OF NO MOMENT TO THE PEOPLE'S RIGHT TO A FAIR TRIAL.
IT'S A SINISTER SCHEME AND IT'S ONE WHICH WAS REVEALED AT THE TIME OF OPENING STATEMENTS AND ONE THAT HAS NOW BEEN CONTINUING. IN EACH CASE, WE AREN'T TALKING ABOUT PERIPHERAL WITNESSES, YOUR HONOR... NO LAWYER, LET ALONE ONE FOR THE DREAM TEAM, IS GOING TO MISPLACE A STATEMENT OF A KEY WITNESS, MISPLACE A TAPE RECORDING OF A KEY WITNESS.
SINCE I WAS IN CHARGE OF THIS TEAM FROM THE TIME THAT MR. SIMPSON RETURNED ON THE 13TH OF JUNE UNTIL THE TIME OF THE PRESENTATION OF EVIDENCE, I WILL TAKE THAT RESPONSIBILITY. AND IF THERE ARE SANCTIONS TO BE IMPOSED, THOSE SANCTIONS SHOULD NOT GO TOWARDS MR. SIMPSON BECAUSE OF HIS CHOICE OF LAWYERS, BUT SHOULD GO TO HIS LAWYERS.
WELL, THEN, MAYBE YOU SHOULD SUBPOENA HER.