All right. Back on the record in the same matter. The Defendant is again present. And let's take up the Kardashian matter first since we have counsel for Mr. Kardashian in that matter. Good afternoon, counsel.

Good afternoon, your Honor.

I need your appearance for the record.

Janet Levine and Alvin Michaelson on behalf of Robert Kardashian.

Good afternoon, counsel. All right. I've read and considered the points and authorities filed by both sides in this matter. And, counsel, I'll hear any additional oral argument that you make.

Thank you, your Honor. With respect to the points made in the papers we filed as well as in the response papers we filed, there are a few points I wish to elaborate on. First, I want it clear to the Court that this issue that's being raised here is one that Mr. Kardashian must raise as a lawyer. He is ethically obligated to refuse to testify, to avoid testifying in a case in which he represents a client. That ethical obligation rises from our adversary system of justice. That is that a lawyer cannot be in a case as a lawyer and as a witness at the same time. The canons of ethics that control Mr. Kardashian and control every lawyer in this Court state emphatically that a lawyer should avoid that position. And the reason that is is because a lawyer can not be part of a team that's advocating for a client and also have their own credibility, their integrity at issue in a case. It just doesn't work. A jury cannot decide a case when it's deciding the credibility of the advocate. And so this whole rule has developed in law that that must be avoided. Usually what happens is, a lawyer, if they see they're going to be a witness in a case, that they have testimony that they wish to offer on behalf of a client, withdraws. However, in a case where the opposing side wishes to call a lawyer, the burden falls on the opposing side to make a motion to disqualify the lawyer and to make that motion at the earliest stage.

In a timely matter.

In a timely matter. In the white case, which was cited to this Court, it was a civil case, but the motion in that case was made prior to the summary judgment motion being made, long before a jury was even sworn or even contemplated, while the case was still in motions. And the Court in that case said a motion made at that time was untimely. Looking at the circumstances in this case, the government has not even made a motion yet. But in this case, the jury has long been sworn. They've seen Mr. Kardashian as part of the team of lawyers representing O.J. Simpson for a very long time. They've seen him conferring with O.J. Simpson. They've seen him at sidebar with the Court. They've seen him in that role. And it's not a matter that the Prosecution can say has come up as a surprise because they have this tape of Mr. Kardashian with the suitcase, which they showed to me early on. They've had that tape for a long time.

Counsel, when you say early on, what do you mean by early on? How do you define that?

I believe that that tape was broadcast in June of 1994. I don't know that they had it in their possession, but I do know since I represented Mr. Kardashian amidst the Cowlings Grand Jury matter, which is not this Court's matter, that was before Judge Czuleger, I do know that Mr. Darden was aware--and that was in July and August I believe and September of this year--of Mr. Kardashian's actions at that time. And that was long before the jury in this case was sworn. And Mr. Darden at that time was acting as the Prosecutor in the Cowlings matter, not the Prosecutor in this matter. This issue of the suitcase wasn't ripe at that time. That didn't come up, but Mr. Darden was in a position to be aware of what happened and was aware of what happened. The reason that they need to make the motion early is so we can protect a couple of things. We can protect the integrity of the adversary system of justice, and also that we can protect the constitutional rights that lie with a Defendant in a criminal case; in this case, with Mr. Simpson. He has a sixth amendment right to have counsel, to have a continuity of counsel. He also has a right to confide in his counsel, attorney-client privilege issues, and to have his counsel work on his behalf. The proposed inquiry here is so broad and so far reaching and it's set forth in the papers that were filed by the Prosecutor as well as in the letter sent by the Prosecutor. They intend to ask Mr. Kardashian why questions, why did you do this, why did you do that, what tests did you conduct, issues that go to the heart of the lawyer-client relationship and issues that are not permissible for inquiry. My partner, Mr. Michaelson, has passed me a note that says the tape of the suitcase has been shown on TV since the beginning of this case. And I don't know what the Prosecutors have seen in this case. I'm not part of Mr. Simpson's team. I--Mr. Michaelson and I are here representing Mr. Kardashian. But it's clear that they were aware of facts as early as when the Grand Jury was taking place. The cases cited by the Prosecution do not support their calling Mr. Kardashian, putting him before the witness stand, having him sworn and testify to the jury. In fact, they support the opposite. The Meredith case, which is the seminal case in California, stands for the proposition that a lawyer cannot suppress evidence, but footnote 8 of that case, which was quoted in our moving papers, is quite clear. And it says, if a lawyer has information that the Prosecution needs to get, the way it comes in is not through the lawyer testifying, not through any implication that the information comes from a client, but through stipulation, through finding a narrow group of facts that can be stipulated to. And the reason that is is so the integrity of the lawyer isn't at issue. We don't want a jury to decide a case in our system of justice based on whether or not they like Mr. Kardashian.

Do you have a proposed stipulation?

I would be more than willing to sit down with the Prosecution and figure out a stipulation that would work. I think that would need to be also with one of Mr. Simpson's attorneys. But that is what the case law provides. It provides for finding an alternative to putting the lawyer on the stand. And that's what we suggested as an alternative in our moving papers. We talked about footnote 8 in our moving papers, and it wasn't addressed at all by the Prosecution in their opposition. And that is what protects the adversary system of justice. If there are facts that the Prosecution wants out--and I'm not sure that's what they're seeking here--then let's stipulate to the facts and let's put them before the jury an agreed-upon stipulation and not put the integrity of this witness at issue. That's his ethical obligation to propose that.

All right. Thank you, counsel. Miss Lewis, are you handling this?

Yes, I am. Thank you. Good afternoon, your Honor.

All right. Good afternoon.

Your Honor, first, I want to make clear that we're not seeking to disqualify Mr. Kardashian from representing the Defendant as one of his several Defense attorneys in this case. I think his participation in the case as a Defense attorney, however, is different and distinguishable from the participation of all of the trial attorneys. There are, I've counted eight trial attorneys on the Defense team who have acted as advocates in front of the jury, in presenting evidence to the jury, at least one of whom will be arguing to the jury during closing argument. So we don't have a normal situation here where the attorney, the one trial attorney on a case would be testifying and then put in a position of arguing his own credibility in front of the jury. It's a distinguishable situation. Meredith is clear, your Honor, that the Prosecution is entitled to the information that we're seeking, and we're entitled to it because Mr. Kardashian chose on the 13th of June last year to remove a full Louis Vuitton suitcase from the Defendant's premises. Now, this footnote 8 which counsel refers to does not really apply in this situation. The--in the Meredith case. The concern expressed by the California Supreme Court in that footnote was that it not appear to the jury or to the fact finder that-- your Honor, there is a great deal of discussion going on over here. If you could ask the--

Keep it down to a dull roar. All right. Thank you. Proceed.

Thank you. The concern in the Meredith case was--the situation in Meredith was that the Defendant in that case told his lawyer and told the investigator that he had evidence in some unknown location. And so the investigator went and got it from that location and then testified in front of the jury at trial. Implicit in that testimony, even though he was of course not asked that, was that the information as to where it came from because it was very incriminating to the Defendant, implicit in that is that the information as to where it came from must have come from the Defendant. So the concern expressed in that footnote is that there not be a necessary inference that the information as to the whereabouts of the evidence because it's incriminating came from the Defendant so as to protect his attorney-client privileged communication to the investigator. We don't have that situation here. All of the evidence is already in the record as far as the relevance and the foundation for the bags that are in issue here; particularly, the Louis Vuitton bag. The limousine driver testified that that was the type of bag that was taken to the airport. The skycap testified that Mr. Simpson checked that into the airport. There's been evidence now that it indeed came back from Chicago because of the airline--the luggage tickets which still remain on it. So there's all of the foundation, and we do now have a videotape of showing Mr. Kardashian leaving the Defendant's premises with this same full Louis Vuitton garment bag.

When you say, Miss Lewis, that you now have, how do you define "now"? When did this tape--when did this information become apparent to the People and when did the materiality or potential materiality of Mr. Kardashian's testimony become apparent to the People?

The--as far as when we became aware that he took the tape, it's really difficult to say. We have seen--I don't know, and I don't think any of us can say for sure when we first saw the videotape. But when it became material was dependent on two things. First on the fact that it became empty at some point in time, and second and most importantly on when the Defense chose to put that bag before the jury. We had no intention of calling Mr. Kardashian as a witness or of introducing that bag prior and we still had no intention of introducing that bag, but certainly no intention of questioning with regard to it until the Defense in chambers brought forth the issue of these bags and elected at that time in a tactical decision to put that bag as well as the others in front of the jury. And when they did that--if that was something that they had been planning to do all along, they had an obligation. We're back to the discovery statutes again. Under 1054.3, it was real evidence they intended to introduce at trial, and they did not give us any indication of that intention. They supplied us with no notice of that either orally or in writing before that morning in chambers either by a photograph or by an offer of--to make it available to us for inspection or in any other manner. So if indeed they just decided that morning or the night before to introduce those bags in front of the jury, that's when it became material. And I'm assuming that only because I have no basis to represent that they violated the discovery laws. So presumably, that was the first time they intended to introduce that in evidence. So that's when it suddenly became important for the jury to know the true facts. And when they introduced it, it was empty. When we last saw it, it was full. Presumably, it had--but we don't know this, but presumably, it had clothing in it which Mr. Simpson took to Chicago with him. Had the Prosecution had that clothing and an opportunity to examine it perhaps for blood evidence, perhaps for other trace evidence, there could have been critical information to have been gleaned from that. We elected not to pursue that particular baggage at some point in the case and we would not have pursued it and would still not have pursued it I don't believe, though you never now how trial develops. But made us pursue it in particular was the Defense making an issue of it and bringing it before the witnesses who testified.

All right. So how do I get around the other legal problems though that are created by--I agree with you that Mr. Kardashian's participation has been minimal to date. However, he has been here in Court. He was introduced to the jury during the course of the first 200 sidebars that we had. He was seen by the jurors consulting with the Defendant at those times. So I mean he is present before the jury.

Well, this is an opportunity for him to explain, your Honor, what his participation was because as the Court recalls the testimony of Judge Wong revealed, that when he went to Mr. Kardashian's residence is where he picked up the golf club and when he was at Mr. Simpson's home on Rockingham is where he recovered the Louis Vuitton bag from. And, you know, along those lines, your Honor, I just want to mention, when you and I and Mr. Carl Douglas of the Defense team were out there the Friday before the jury view, I--to my surprise, I noticed that there were a few such Louis Vuitton bags up there on the shelf. And we don't know whether this was one of them or not. And it certainly was full the last time we saw it. So I don't think there's a problem under the facts of this case, and I think the problem, the concern expressed by Meredith that it become--that it not be inferred that the information about where this evidence had been come from the mouth of the Defendant is satisfied here because of the testimony I mentioned a few moments ago, the limousine driver and the skycap and the--having testified to that appeared to be what he took to Chicago and with the tags that indeed show was checked into American Airlines on the--about the appropriate date. So that we have a foundation here. We don't need to ask Mr. Kardashian any question which would infringe upon his privileged communication with the Defendant, and we're not seeking to do that. And that is--that was the one concern expressed in Meredith. And in Meredith, indeed the Defense investigator testified before the jury, was asked on cross that he--whether he was an investigator for the Defense, and that he was allowed to testify to that.

Is there a possibility we could accept counsel's suggestion that perhaps there's a stipulation that would avoid Mr. Kardashian having to testify?

Well, there's certainly a possibility. But I believe we have attempted--I'll check with Mr. Darden on this. I believe we have--in fact, let me check before I make the representation, your Honor.

Mr. Darden makes the excellent recommendation, which should satisfy our concerns and the Court's concerns, that we have a 402 hearing outside the presence of the jury and find out what the information is and while Mr. Kardashian is testifying under oath as a witness. And that way, we would have the relevant information so that we would know how to formulate a stipulation. And I think that's something--that would also help us to determine indeed whether a stipulation can be used and one is appropriate in this case.

All right. Thank you, Miss Lewis. All right. Miss Levine, any brief response?

If I might have a moment, your Honor.

Certainly.

Your Honor, while they're still debating, just a couple of other quick points. We were--I'm told. I wasn't present in chambers during the discussion, but I'm informed by both Miss Clark and Mr. Darden that indeed the Defense was informed that if they put these bags in issue, especially the Louis Vuitton garment bag, which had been full and was now empty, we would be indeed be calling--

No. I recollect that. That's part of the thought process at this point.

Uh-huh. And Mr. Darden makes the additional point that back in August of 1994, he indicated that Mr. Kardashian had placed himself in a situation--

It's in your papers.

Okay. One other point which is not in my papers-- and I'm sorry--that I wanted to-- I didn't talk about the white case, which counsel cites, because it's so clearly distinguishable. It was a civil case in which a summary judgment motion was brought. And unlike--

I read it.

All right. Just briefly. Unlike what counsel represented, it was six months after the other side learned from the summary judgment motion, which was denied, that counsel was in fact the advocate that they chose to disqualify. So it was clearly untimely in that case and it was a civil case anyway, so it's clearly not pertinent here.

All right. Miss Levine, what do you think about Miss Lewis' suggestion that perhaps we have a hearing outside of the presence of the jury to determine the issues as to what happened to the contents of the garment bag and see if that would form a factual basis for a stipulation?

I think it's excessive. I think it's not necessary. Mr. Kardashian is a lawyer. He's sworn to uphold the law. If he sits down, just like if anyone sits down under any circumstance discussing discovery or anything and makes a representation--we can try to reach a stipulation. If there's a problem, then we can bring it to the Court. It looks like--and I am obviously not the expert that everybody else in this courtroom is--that this issue is not going to come up in the next week, that the Prosecution is involved in some more scientific evidence. So there is--

That's a fair statement.

--so that there is time for us to sit down and try to hammer out the perimeters of a stipulation. And then if it's necessary, we'll bring up the issue to the Court. But that's what I would prefer to do. I think it preserves Mr. Kardashian's ethical role in the most pristine manner. And if it comes up, then we can come up.

All right. What do you suggest as a reasonable timetable? My inclination is to order you to meet and confer with your client and representatives of the Prosecution no later than early next week.

That's fine. I can't do it this week, your Honor, because I'm already committed to things.

That is why I said early next week.

But I'm free from Monday, all day Tuesday, so either of those days with a representative of the Prosecution team. I think there will need to be someone from the Defense team in addition to Mr. Kardashian present as well to make sure that while we're protecting Mr. Kardashian's obligations, Mr. Simpson's rights are protected.

I would nominate Mr. Douglas since he's familiar with the breath of this case.

I'll second that nomination.

Could it be someone other than Mr. Douglas, your Honor?

Sanctions, Mr. Douglas. I was talking about sanctions, and you were nominated. All right. Miss Lewis, when do you think you and/or Mr. Darden would be available to meet with counsel? Early next week sometime?

Since Mr. Darden is in Court and needs to be in Court as much as possible throughout the trial as lead trial lawyer, Tuesday evening?

All right. How about Tuesday evening then at the break of the Court session?

5:00 P.M.?

How about 4:30 on Tuesday? Meet here in the courtroom. I'll give you the use of one of the empty jury rooms. You can meet and confer, see if you can work out something reasonable. And I'll be available to consult with counsel.

That's fine, your Honor.

I do want to point out, your Honor, we're not optimistic considering Mr. Kardashian's been Mr. Simpson's friend for 26 years.

Well, Miss Lewis, let's try to do it the easy way first.

Okay.

Judge, just one comment, if the Court please--

Your Honor, I believe we have a one attorney rule.

We do.

I haven't been watching all the TV so--

We have a one-attorney rule.

Your Honor, I think before that time, we do need to have a representation of exactly what the Prosecution wants. There is--

I think that's included in their moving papers. They've included clearly their interest is the garment bag, how it came into your client's possession, where it went, what happened to the contents and how did it return to Rockingham. I mean pretty it's common-sense questions.

And if there are any other tapes that they have of this--I've seen another tape that was provided to me that indicates that the bag was off the property and the police weren't letting it on. I don't know if there are other tapes like that that are available.

Well, I assume this will be during part of your meet and confer.

That's perfect, your Honor.

But I would also suggest you and Miss Lewis confer regarding appropriate groundrules as far as disclosure, what it is--specifically what it is, Miss Lewis, you want, what you have available as far as the evidence, the videotape showing Mr. Kardashian with the item. All right.

Your Honor, would it be possible to use the services of one of the Court's reporters for this?

No. I don't think the meeting needs to be reported.

Your Honor, it's not without reason. I think Mr. Darden certainly had contact with the individuals--

No, we won't do that. My Court reporters are burdened enough as it is, believe me. All right. Thank you, counsel.

Thank you, your Honor.

Thank you, your Honor.