Thank you, your Honor. Your Honor, this has nothing to do with whether or not Mr. Kardashian is percipient. If he weren't percipient to something, we wouldn't be having this discussion. The question is what does one do when a Prosecutor claims to have known that a person was a witness six months ago and sits on their hands doing nothing while the individual sits in court representing a party, a Defendant in one of the most serious criminal cases that the state can bring. While the Prosecution sits there and watches it, let's the individual, Mr. Kardashian, participate as part of Defense team, participate in discussions, participate in strategy, participate in planning, and yes, even participate to the extent that he may be questioning witnesses. What happens then? Do we just let the Prosecution willy-nilly question people about what they want and refuse to even discuss stipulation? Because your Honor, between the time we proposed a draft stipulation, not an under oath declaration, but a draft stipulation marked as such for discussion, we have not heard one word from the Prosecution team. I do not believe that every member of this team has been in court the whole time 24 hours a day and unable to call and contact us to discuss it. I felt that it was in their ballpark, that it was their turn to come and contact us about that. We have heard nothing. What it indicates to me, and what Mr. Lewis' conversation indicates to me, her colloquy to the court, is that she is interested in one thing only: To put Mr. Kardashian on the witness stand before a jury or not before a jury, to invade basically the Defendant's camp to ask questions about things, not to stipulate. As she put it herself, we will ask him questions and then if we want to stipulate after we've asked him everything we want to ask him and we decide it is true, because we are the people making the decision as to truth or falsity here, then we will decide if we wish to stipulate. That is not what the law is. That is not what the ethical code says should happen. And that is not what is happening in the fact here. They have sat here. Mr. Darden was the lawyer before the grand jury. If he talked about bags--and it is not clear from what Miss Lewis said, whether he did or did not, because first she says he does and then she says he doesn't--if he talked about bags he knew about it. But clearly this incident was on TV. It was something the Prosecution knew about months go, along before this jury was sworn. The law many times punishes parties that don't act on their rights or in their interests. If the Defense lawyer does not make a suppression motion in a timely manner, that motion lapses and can't be made.
If a party does not produce discovery in a timely manner, then they can't use that witness often. The remedy is in the Court's hands, but often that is the penalty. If an objection is not made, it is waived. Here the Prosecution has done everything possible to prejudice Mr. Simpson by letting one of his lawyers consult with him on the most critical questions in this case and now what do they want to do? They want a 402 hearing so that they can probe. Well, 402 has nothing to do with this kind of hearing. It is to determine a preliminary fact. It is not to determine whether the Prosecution believes the truth or falsity of something. That is something they do in their investigation. It is to determine whether or not a confession is voluntary, to determine whether or not a certain preliminary fact has been proven. If it is a question of whether or not there is a preliminary fact aside from that, then the remedy is for them to come forward and say what the preliminary fact is. Legitimate preliminary fact that the Court needs to consider. It is not truth or falsity, or else every witness would be subject to a 402 hearing before they were put on. Gee, we don't believe them, we want a 402 hearing, Judge. That just doesn't make any sense and it is a waste of the Court's time and it adds time inefficiency and a side show.
Let me ask you this one question, though, Miss Levine: Let's say I agree with your position on the matter of Laches, that this motion to inquire of Mr. Kardashian is made in an untimely manner. Let's assume I sustain your objection and deny the Prosecution the right to call him as a witness. They still want to use that videotape and they have the testimony of--regarding the production of the Louie Vitton bag. They will bring in somebody from American airlines who will say that these airline tags, the bar codes are consistent with the flight coming from Chicago back to L.A. On the particular date in question, they have the videotape of Mr. Kardashian carrying what is obviously a bag with something in it, not an empty bag that was produced by Judge Wong. Then they say, okay, and then can argue lawfully and ethically the failure to call logical witnesses by the Defense. They play that videotape and they say, you know why we didn't find any bloody clothing? Because that is where it is and then what does that do to your client's client?
I think my client's lawyers have to worry about that. That is my client, Mr. Cochran, and his other lawyers have to figure out how they answer that question. They got in that jam, too, by having Mr. Kardashian as a witness, but they may--as a lawyer, but they may not think that is a jam. Maybe they have an answer to that. Maybe as the proposed stipulation talks about Miss Randa, maybe there is a Miss Randa or maybe there is some explanation. Maybe Mr. Simpson will testify about it.
But see, you are in an interesting situation because not only do you have an obligation to your client, but your client has an obligation to his client.
That's correct, but he also has an ethical obligation to oppose this. Now, what--what the real problem is here, is that we should be able to sit down in good faith and work out a stipulation, and I don't see that happening, not because we are not trying. I think that we would like to try to work that out, but all I see is the Prosecution wanting something besides a stipulation. The stipulation is the logical answer. If they are not ready to do it today because they have more investigation to do, that is one thing. If they want to talk to other potential witnesses about it, that is one thing. But to just say I don't want in good faith to even talk about it, I think that is wrong, your Honor.
Well, will your client consent to being interviewed by a District Attorney investigator?
That is about the last thing that I want to do. What do you propose in the nature of a hearing? Let's assume that your client doesn't want to be interviewed, then I will have to set a hearing, won't I?
I would not think that it would be appropriate to have a hearing with the District Attorney present. I would think that it would be almost like--
Like the type of hearings that are done when there is a confidential informant, your Honor. I would ask the questions, to present it to the Court and then the Court could from that propose a stipulation, just like a confidential informant type situation.
Otherwise we are in a position where the Prosecution is refusing in good faith to reach a stipulation to take advantage and it is tactically untoward, your Honor.
But let me shift hats now and say their position is going to be that they want something under oath in the record that they can then rely on for the purposes of a stipulation because if they have it under oath and they can find evidence to impeach or refute it, that gives them that much better evidence either way.
But your Honor, if--if it comes out later on that they have evidence, the Court has the in camera hearing that they are not present on and then the Court can reach a different determination later about disclosing it or not disclosing it, just like the Court always would with an informant or that type of information. It is not asking the Court to be in a different position than it is often put in, albeit often from the Prosecution as opposed to a third party.
I don't feel comfortable, Miss Levine, though, being put in the middle of this situation.
Perhaps, your Honor, it would be appropriate to have a third party Judge put in the middle of it. I know Judge Czuleger had been a part of this in the grand jury context and has some--I'm sure he is going to be very pleased with me mentioning him, but it might be appropriate. I know this court is busy almost 24 hours a day, but perhaps he would have time to do that in an in camera context.
Your Honor, the idea of an in camera hearing really doesn't accomplish anything. It doesn't help us assess the credibility of this witness and there is no precedent for it. And in addition, your Honor, the reason why I will not attempt to confer with this attorney is because she lied to the Court last time we were up here, and I don't say that lightly, when she said that I hadn't read this proposed stipulation before I said that Mr. Kardashian was going to have to testify. My mouth fell open because that was not true. And I frankly am not going to be in an informal situation without witnesses present with someone who is willing to make that representation to the Court.
Your Honor, I have never misrepresented nor lied to a court, and I take umbrage with that.
Well, I see it is not likely we are going to get a stipulation here today, is it? Okay. Counsel, what I am going to do is I'm going to set this matter for a hearing out of the presence of the jury. I'm going to have this matter assigned and I'm going to ask the supervising Judge to assign this matter for hearing purposes to another Judge. I'm going to ask the Prosecution to file with this Court, for transmittal to the hearing Court, a list of questions to be asked of Mr. Kardashian. I will allow counsel for both sides to be present and I'm going to suggest that the Judge who does the questioning--let the Judge do the questioning for the purposes of this hearing. Miss Lewis, how long do you think you need to formulate the questions that you are going to propose?
Certainly. That is why I'm asking them in writing in advance and I'm going to allow counsel for Mr. Kardashian to suggest any questions in writing as well.
And for Mr. Simpson as well, your Honor? I would think that that might be appropriate as well.
--and the Defense will have the--excuse me Mr. Kardashian's counsel will have the opportunity to lodge any objections. Mr. Simpson's counsel can also suggest questions.
Your Honor, it strikes me that if we are out of the presence before the jury we will be before a seasoned Superior Court Judge. To have to submit questions in advance, this is an advocacy proceeding where we are trying to ascertain the truth, it doesn't really help get at that.
Miss Lewis, Miss Lewis, the problem is the parameters here. That is why I want them in writing.
Well, your Honor, the--the--both attorneys are here and that is why we have a Judge. The attorneys are here to make the appropriate objections. If they feel that I'm asking something that is inappropriate, the Judge will be there to rule on it just as in any other hearing. I don't think this is such a delicate situation. We are not seeking to ask Mr. Kardashian about communications with the Defendant or anything that has happened since the time about this baggage.
Well, counsel, after I see the questions in writing and submit that to the hearing Judge, they may--he or she may agree with you, but I have to be very cautious. This is a very delicate situation. I think you agree with that.
I distinguished footnote 8 in Meredith before and I believe it is distinguishable on the basis that we are not going to be seeking any information that clearly would have come from the Defendant.
I would like the response by counsel for Mr. Kardashian, and any additional questioning by Mr. Simpson's counsel, by Friday, May 26th, at noon.
Judge Czuleger will be fine, your Honor. I appeared before him in arguing the motion that was brought earlier. That will be fine.
I think I am on the losing track, though, your Honor, having come up with a suggestion.
KEY QUOTEI would say so. I would anticipate that I'm going to suggest to Judge Czuleger, if it is compatible with his calendar, the afternoon of June 2nd.
Let me just make sure we've got our calendaring matters and then I will hear from you.
Well, I have a feeling--I have the feeling that we will be still in Gary Sims by then.
All right. June 9th tentative. We will have to clear it with Judge Czuleger's schedule.
Your Honor, during the pendency of the grand jury investigation regarding the Defendant's flight on June 17th there were some arguments had between counsel and myself relative to the attorney/client privilege issue and I believe those transcripts were sealed.
All right. I think that is all the more reason to have it in front of Judge Czuleger, since he is the Judge who had custody of those transcripts and made the sealing order, if my recollection is correct.
During the interim would you order that they be unsealed and a copy provided for counsel and I?
What I will do is I will recommend to Judge Czuleger that he make that order, that both counsel--all counsel be provided with a copy of those proceedings.
No. I do know that he had the proceedings transcribed and that he placed them under seal under the Cowlings investigation.
Your Honor, I assume I don't have to argue timeliness since I've already made this argument previously and you granted--
Your Honor, I'm going to try to get a copy of the grand jury transcript of Mr. Kardashian as well and I would assume both sides have it and somebody might provide it to me.
They play that videotape and they say, you know why we didn't find any bloody clothing? Because that is where it is and then what does that do to your client's client?
The reason why I will not attempt to confer with this attorney is because she lied to the Court last time we were up here, and I don't say that lightly.
The Prosecution has done everything possible to prejudice Mr. Simpson by letting one of his lawyers consult with him on the most critical questions in this case and now what do they want to do? They want a 402 hearing so that they can probe.
I think I am on the losing track, though, your Honor, having come up with a suggestion.