All right. Thank you, Mr. Clarke. Okay. Miss Levine, any progress report or is the other side conferring or what is our status?
Since we were just kind of given the stipulation just now and only one copy so that Chris Darden and I had to share it, we wanted an opportunity just to look at it. I've already found a couple of questions that weren't answered in here. It is not--there is no factual basis for it, it is not signed, it is not under declaration of perjury.
We, as the Prosecutor, don't know the facts so how can we stipulate to something that we have never heard Mr. Kardashian say?
KEY QUOTEMiss Lewis, the whole purpose of this exercise is to see if you can informally figure this out, because having counsel for a Defendant called as a witness is something the trial Court has an obligation to avoid as much as possible. You know, I agree with you, it may not be possible to avoid, but I am mandated by the case law to at least make the effort to avoid that end, if we can do that by counsel meeting, conferring with each other to seeing what the offers of proof are or--this is an off-the-record conference between counsel, and if you can resolve it, fine. If not, then what is going to happen is I suspect we will have to have an out-of-the-presence hearing and have Mr. Kardashian called as a witness and find out what the factual record is since there is no depositions in criminal matters. That is what may have to happen.
Your Honor, I think it is very unlikely. I went back and looked at 402 after Miss Lewis' reference to it and it talks about the determination of a preliminary fact. When we mentioned that back in the jury room, Miss Lewis and Mr. Darden, they said the preliminary fact is the truth of the testimony and that is obviously not the type of preliminary fact 402 talks about or else every witness in every piece of evidence would be subject to that.
Counsel, let's cut to the chase. The real chase is, is it possible that Mr. Kardashian could offer some relevant testimony? The answer is could be because of the videotape that we have all seen of Mr. Kardashian with the luggage. The luggage tag confirms that that is the luggage that was in Mr. Simpson's possession at dates that are pertinent to this case. Question. And we don't know where the clothing is, allegedly, that the Prosecution's theory is that Mr. Simpson was wearing it. So the Prosecution has good faith probable cause to investigate further. The question is how do we do that?
That is--this seems appropriate, your Honor, and I think that the way to do is try, like lawyers and counselors, to sit down and figure it out and that is what we attempted to do. I prepared a proposed--and it is labeled "draft stipulation" on the top. I gave a copy to Mr. Douglas who had some suggestions and wanted to look at others. I give a copy to Miss Lewis and she immediately told me she wanted him to testify without looking at it. I don't think that is appropriate. I think we should sit down and try to work it out. If they have some contrary facts, and we have asked and they do not, they should bring those to our attention. This is, umm, really something that is ripe for working out.
All right. Counsel, I haven't seen the declaration, obviously, but obviously what they want to know is what was in the bag and where did it go and those questions--two questions need to be answered.
And they are answered, because as the draft proposes, Mr. Kardashian has no idea what was in the bag. It says what he did with the bags and it says what--where he got them and where he left them off. And those are the questions that they are interested in and they are answered in the draft stipulation. If there is a question of whether this would be under oath, I don't think we would have a problem, once we agree to the facts, to put it under oath, if that is the question before the jury, to put "under penalty of perjury" at the bottom of it. I proposed it like we do it generally over in the federal Court, as a stipulation that I expected both parties to sign, that they stipulate that Mr. Kardashian, if called as a witness, would testify as follows: And then I proposed a certain amount of facts and I put then in the first person so it would read like testimony as well. But if there are suggestions as to the specific facts, I think that that is what we were going to be working on with Miss Lewis and Mr. Darden. If today is not a good day to do it, I am willing to come back.
Miss Lewis does make a good point, that she just received this, she should have the opportunity to sit down, go over it line by line, word by word, and then fill in the gaps where she thinks it needs to be flushed out somewhere. I think you are entitled--
And your Honor, of course I did not immediately inquire or ask Mr. Kardashian be placed under oath. The Court knows me well enough.
Perhaps if the Prosecution could even by telephone call or a conference call one evening or back here in Court if we could discuss it the beginning of next week, that would give them time, that would give the Defense team time to sit down and look at what we proposed and propose an alternative. Perhaps there could be an exchange of writings before then.
Since he is counsel of record, don't I have the opportunity to order him to be here?
Why don't we do it later this week so as to avoid any inconvenience. Today is only Tuesday. How about Thursday after Court?
How does Thursday sound? All right. Thursday at 4:30. All right. Okay. Anything else?
Your Honor, if there is something that could be submitted by either party in writing, the afternoon by noon by fax to me that might be helpful to move us along as well.
Your Honor, I have to make the obvious point that we don't know what the facts are. That is what the problem is, unlike counsel's Honor stipulation where we have some knowledge of the true facts independent of the Defense view so we can arrive at a stipulation.
I don't know if there is anything that you can corroborate, anybody else you can go out and interview as a result of what Mr. Kardashian says. I don't know. I would like to have you work it out first. If you can't, then we will have a hearing. Okay.
having counsel for a Defendant called as a witness is something the trial Court has an obligation to avoid as much as possible.
The luggage tag confirms that that is the luggage that was in Mr. Simpson's possession at dates that are pertinent to this case. Question. And we don't know where the clothing is, allegedly, that the Prosecution's theory is that Mr. Simpson was wearing it.
We, as the Prosecutor, don't know the facts so how can we stipulate to something that we have never heard Mr. Kardashian say?
That's true.