Your Honor, we just received this and I haven't had a chance to go through it, but in just skimming it, it is clear that the application here is that we should not be entitled to these materials because they are not within five years, which is the limitation of the pitchess motion.

And I would like to reiterate the position of the Defense with respect to the materials, A, internal affairs investigations in this case involving Detective Purdy, Lucienne Coleman, Detective Arneson, Detective Vettraino, any others that were involved in these incidents. We feel that based on the application, the showing we made and the extended remarks that we made last Thursday, that we should be able to examine these materials and have access to them because we think they contain potential exculpatory evidence and even with the statutory limitations on seeking these records. Well, first those are current records. Internal affairs investigation that are within five years, even though they relate back to materials that are over five years old. So we think we are entitled to that. No. 2, for those materials involving Detective Purdy and other law enforcement officials that relate to their contacts with Mark Fuhrman and what we have outlined as the exculpatory evidence that we are seeking in this case, even if these materials are over five years old, we believe under the United States Constitution and our right to exculpatory evidence we are entitled to it notwithstanding limitations set out in the statute.

And I don't believe the statute was intended, passed and explicitly does not purport to go beyond the Defendant's constitutional rights to obtain exculpatory evidence. There is a long line of cases, as I indicated to the court before, starting with Davis versus Alaska and going all the way through where statutory privileges--Davis versus Alaska was the right to obtain records that were sealed pursuant to a juvenile privilege statute, so to speak. Those give way when exculpatory material are being sought. So we think we are entitled to that, notwithstanding this motion, and those are the grounds we are proceeding. Most particularly, and I don't know if the Prosecution has obtained this information, we have particular interest, in terms of Detective Purdy concerning that case where he apparently testified, according to what he told Prosecutor Coleman, at a preliminary hearing in one fashion, then was confronted with a police report that apparently was filled out by Mark Fuhrman that was different than his recollections at the preliminary hearing, and then he subsequently testified in another fashion and was--that conformed to the police report and apparently there was discipline for it. And we are trying to track whether that case is also the same case that Detective Purdy told us about when we had a conversation with him last week where he admitted that he had had a confrontation with Detective Fuhrman around a particular case where the two of them had been paired as partners and also that there were entries in the diary which he burned by his own admission, even after being informed that that diary was going to be sought and was being sought by law enforcement officials involved in this case and/or internal affairs officials, because it contained entries about his relationships with Detective Fuhrman and misconduct by Detective Fuhrman, that he intentionally destroyed that diary, he has admitted that after knowing that it was being sought. So that is material we are interested in. We think we are entitled to it notwithstanding the fact that at least one of these internal affairs investigations is over five years old and the information is over five years old. We also want to be clear that we are seeking not only the records that are stored downtown, but the ones that are stored at the division, because we think all those relate. And of course we are seeking the information with respect to the swastika incident as well.

All right. I will hear from the counsel for the detective, Mr. Hadden.

Thank you, your Honor. Your Honor, Davis versus Alaska does not stand for the proposition that the Defense is entitled to the entirety of someone's file just because they claim there might be some exculpatory information in there. As this court noted last week, Brady is very much a consideration in the statutory scheme that is embodied in the pitchess statutes. The pitchess statutes have, as I noted in my brief, withstood constitutional scrutiny in this state. Particularly I am amazed at the comment by Mr. Scheck regarding what exactly it is that he is seeking. He is saying he is asking for something relating to Miss Coleman's declaration today, but their brief instead asks for citizen complaints against Detective Purdy from 1986, discussing bias, prejudice, ethnicity, et cetera, and falsification of records, neither of which have anything to do with the matter for which Mr. Simpson is on trial here. The--Mr. Scheck noted that there is a statute that precludes discovery of matters that are over five years old. He ignored the fact that 1047 of the evidence code says that the records of an officer who is not involved in the arrest are, per se, not discoverable. It is as simple as that. The legislature was very clear on it, and the court, California Supreme Court in the Santa Cruz case which I cited in my brief, described this statutory scheme as a model of clarity that the legislature said what it meant when it wrote it and the courts should apply it accordingly. The Defendant has, first of all, provided no reasonable cause for the court to even look at Detective Purdy's personnel file. Even if the court were to do so, it would be--exclude--what the Defense is I think seeking is excluded under 1045 of the evidence code and the protective provisions there and 1047 is an absolute bar in this case for the Defense to get any materials from Detective Purdy's file. Thank you, your Honor.

I will hear from the representative from the city of Los Angeles.

Good morning, your Honor. David Hotchkiss, assistant city attorney, on behalf of the custodian of records of the LAPD. I would only add, your Honor, a couple points to underscore the legislative scheme that we are dealing with here and that is that the legislature on behalf of the People has made certain legal conclusions that are binding upon this court, and one that is paramount is that the five-year rule seems to control under these circumstances. They have ruled, they have determined, as a matter of law, that anything that is beyond five years from the date of the event or transaction which is at issue, which is the murders of June, 1994, they are asking for events that preceded that by--by seven years, and those are excluded by operation of law. Moreover, I wanted to underscore a point that Mr. Hadden made and that is that there is absolutely nothing tying officer--excuse me--Detective Purdy to the investigation, the arrest or booking or anything involved in this particular case. However, if the court finds that there has been a prima facie showing under 1043, we are prepared this morning to deal with it in camera at the court's discretion.

Mr. Scheck, do you want to address the language in 1047, please.

This is the language indicating that since he is not involved in the case as a per se bar?

Yes.

All right. The response--well, he is involved in the case insofar as he was interviewed by internal affairs with respect to his connection to Detective Fuhrman in this case. And really everything that we are seeking here flows from the fact that we think that if we have these materials that were--we have reason to believe were brought up in the internal affairs investigation in this case--the reason we have reason to believe it is that we were told this by Prosecutor Coleman, and we have to assume that internal affairs took note of that and they should have questioned Detective Purdy on this. If they hadn't, they should go back and question him now, because we can't be clearer. We believe that there is a basis for pursuing the fact that Detective Purdy has information showing that Mark Fuhrman has falsified police reports, et cetera.

Why don't you address your remarks to the 1047.

Well, I--I find these arguments completely nonresponsive to the point we are making. I have--the fact that he is not--

Well, there is a discovery scheme--

Yes.

--for the specific record that you are seeking. There is a specific statutory provision that has certain--puts certain limitations on this discovery. Mr. Hadden raises 1047 as a complete and absolute bar to the information you are seeking. Do you want to address that or do you want to just ignore it?

Oh, I'm not ignoring it. I think he misstates Davis versus Alaska and all the cases that flow from that, including recent cases concerning statutory protections. I believe the state of Pennsylvania--and there is a whole series of cases. This is fundamental constitutional law. I thoroughly agree that if you read this statute literally and say we are not entitled to get evidence that Detective Purdy has apparently given before internal affairs and find out the results of this investigation, which could bring to light exculpatory evidence concerning Mark Fuhrman's falsification of evidence and get to the bottom of what Detective Purdy really knows about Mark Fuhrman and his racial attitudes as well, but most particularly the falsification of evidence issue, if this statute is read as an absolute bar to getting this information, it is unconstitutional as applied. We have a constitutional right to exculpatory evidence. If they want to say that these materials can't be reviewed by this court for purposes of seeing whether or not it provides exculpatory evidence, based on an internal affairs investigation that apparently has been ongoing with respect to this case within the five-year limit, and concerning officers involved in this case, if that is the way the statute is being read to bar this court from exploring the exculpatory evidence, it is unconstitutional as applied. It violates due process and the right to confrontation. Those statutory privileges are not absolute. It is not a per se rule in light of the constitutional protections we have. It is qualified.

All right. Do you have any case authority dealing with any similar statute, this statute or any similar statute that supports that position?

I--I--I'm--there are--if the court wants more--I thought this was a black letter proposition. Davis versus Alaska is a case that I think is close to thirty years also, but it is the first in a long line of cases which establishes a fundamental constitutional principle.

Do you have any case?

Any case right now dealing with pitchess that is directly on point?

No. Any case where the theory of Davis versus Alaska is applied to a discovery statute that is anywhere similar to this anywhere in the United States? Do you have anything you can analogize from, because there is no case in California that says this.

Well--

The court is familiar with Davis, the Davis case? I do not have at my fingertips right now those cases. I can represent to the court I can recall off the top of my head many--I didn't even believe that this point would be in controversy. I can recall--I know a Supreme Court precedent.

Well, Davis versus Alaska is the first in a long line of cases. That case and all the other cases that I will bring to the court's attention tomorrow all start from this proposition. And Davis versus Alaska there was an effort to confront a witness on the stand--

I recollect.

--and there was a statutory scheme that created a privilege that those records could not be discovered.

I recollect.

There is a long line of cases in this regard. This is a--this is a very simple issue. This is a due process Brady issue.

No, that is not correct. The answer is I was given this brief this morning. If you want more authority for what I consider an absolutely fundamental constitutional proposition that has not been addressed by these others, all they are getting up and saying to you is something that you already knew, which is on the face of it--

All right. Well, let's not waste any more time with this.

I won't waste any more of your time, your Honor. If you want more cases, I will submit them.

No, counsel. Counsel, you requested the order shortening time for the hearing on this and if you are not prepared, I will give you until tomorrow morning to file.

Thank you, your Honor.

I will place--Mr. Hotchkiss, the custodian of records is placed on call for tomorrow within one hour.

One further application.

File it close of business today.

Just so the court should note, if it is to be the ruling that these statutory bars prevent us from getting the records that are over five years old and prevent us from getting other records, we would want to call the detective to the stand to establish at a hearing outside the presence of the jury the underlying facts.

Thank you.