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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE
SHARON RUFO, ET AL., )
)
PLAINTIFFS, )
)
VS. )NO. SC031947
)
ORENTHAL JAMES SIMPSON, ET AL., )
)
DEFENDANTS. )
_________________________________________)
REPORTER'S DAILY TRANSCRIPT
JANUARY 17, 1997
VOLUME 45
REGINA D. CHAVEZ, CSR #8446
OFFICIAL REPORTER
APPEARANCES:
FOR THE PLAINTIFFS: DANIEL M. PETROCELLI ESQ.,
THOMAS LAMBERT, ESQ.,
PETER GELBLUM, ESQ., and
EDWARD MEDVENE, ESQ.
Firm: MITCHELL SILBERBERG & KNUPP
11377 West Olympic Blvd.
Los Angeles, CA 90064-1663
For: Plaintiff Goldman
JOHN QUINLAN KELLY, ESQ.
330 Madison Ave.
New York, NY 10017-5090.
For: Plaintiff the Estate of
Nicole Brown Simpson
MICHAEL A. BREWER, ESQ.
Firm: HORNBERGER & CRISWELL
444 South Flower St.
Los Angeles, CA 90071.
For: Plaintiff Rufo
PAUL F. CALLAN, ESQ.
Firm: CALLAN, REGENSTREICH,
KOSTER & BRADY
One Whitehall St.
New York, NY 10004
For: Plaintiff Estate of.
Ronald L. Goldman
FOR THE DEFENDANTS: ROBERT C. BAKER, ESQ.,
MELISSA BLUESTEIN, ESQ., and
PHILIP BAKER, ESQ.
Firm: BAKER, SILBERBERG & KEENER
2650 Ocean Park Blvd., #300
Santa Monica, CA 90405-2936.
-and-
DANIEL LEONARD, ESQ. and
ROBERT D. BLASIER, ESQ.
Firm: BAILEY, FISHMAN & LEONARD.
6355 Riverside Blvd.
Suite 2-F
Sacramento, CA 95831.
CHRONOLOGICAL INDEX OF WITNESSES
INDEX OF EXHIBITS MARKED FOR I.D.
PLAINTIFFS'
NO. DESCRIPTION PAGE
2287 Withdrawn 67
2288 Withdrawn 67
2289 Withdrawn 67
1973 Withdrawn 68
DEFENDANTS'
NO. DESCRIPTION PAGE
2359 Withdrawn 67
2360 Withdrawn 67
2365 Withdrawn 68
2366 Withdrawn 68
2368 Withdrawn 68
2369 Withdrawn 68
2040 Withdrawn 68
SANTA MONICA, CALIFORNIA; FRIDAY, JANUARY 17, 1997
DEPARTMENT NO. WE"Q" HON. HIROSHI FUJISAKI, JUDGE
APPEARANCES: (PER COVER PAGE)
(REGINA D. CHAVEZ, OFFICIAL REPORTER)
(Counsel confer among themselves off the
record)
(At 11:30 A.M. a recess was taken
until 2:10 P.M. of the same day.)
SANTA MONICA, CALIFORNIA; FRIDAY, JANUARY 17, 1997
2:10 PM
DEPARTMENT NO. WE"Q" HON. HIROSHI FUJISAKI, JUDGE
APPEARANCES:
(Per Cover Page)
(REGINA D. CHAVEZ, OFFICIAL REPORTER)
(The following proceedings were
held in open court outside the
presence of the jury.)
THE COURT: There appears to be a blue-back
filed by defendant with regards to augmenting the
record on motion for mistrial.
MR. BAKER: Yes.
THE COURT: That's been filed.
MR. BAKER: Thank you.
THE COURT: There's a request from, I guess,
that's Court TV, to televise the verdict.
The Court, having heretofore made an
order with regards to television, is not changing the
order, and I'm not granting any order to televise
anything.
That matter's been heard and taken up on
appeal and the Court is not going to change the
position.
The Court has before it requested jury
instructions. The instructions, as I am advised, have
been divided into agreed and disagreed.
These instructions appear to be in the
agreed group, and I will be giving these, as
requested, with modifications thereon.
And plaintiff is ordered to prepare a
clean copy of all instructions that the Court is going
to give, leaving on each instruction form whether it's
page 1 or subsequent pages, space of that much
(indicating), for perforation and detachment, and to
eliminate any footnotes from the face of the
instruction.
And finally, not to include on the face
of the instruction, the stationary heading of the
attorney's office on any of the requested
instructions.
Also, on the headings, please include the
party requesting it.
Okay.
The following instructions are agreed to,
and I will be giving them unless counsel advises me
that it's not in the correct pile. BAJI -- these will
be by BAJI numbers.
1.00, 1.01, 1.02. 1.20 -- this is a
special instruction -- and as way of illustration,
counsel, you see page 2. Page 2, starts at the very
top, and it also has footnoting. We'd like it to
start at this level (indicating), so that when the
clerk prepares the instructions to be sent into the
jury, and the Court intends to send the instructions
into the jury, that the clerk will be able to detach
it without having to reconfigure the entire
instruction.
MR. GELBLUM: I understand.
THE COURT: Okay. This is this instruction
which has been agreed to read as follows:
This is a civil case, not a criminal
case. The parties who have brought this suit are
called plaintiffs. The party sued is called the
defendant.
We are here trying three actions which
have been consolidated for trial. In the first case,
plaintiff Frederic Goldman, individually, and as the
personal representative of Ronald Lyle Goldman,
deceased, is suing defendant Orenthal James Simpson.
In the second case, plaintiff Sharon Rufo
is suing defendant Orenthal James Simpson.
In the third case, plaintiff Lewis H.
Brown, as the executor of Nicole Brown Simpson, is
suing defendant Orenthal James Simpson.
For the purposes of these instructions I
will sometimes identify the various parties as
follows:
1, plaintiff Goldman means plaintiff Fred
Goldman. 2, plaintiff Rufo means plaintiff Sharon
Rufo. 3, plaintiff Brown means plaintiff Lewis H.
Brown. 4, plaintiffs means Goldman, Rufo and Brown,
collectively. 5, defendant Simpson means defendant
Orenthal James Simpson.
Okay. In the fourth paragraph, the clerk
informs me it should read -- that's the fifth
paragraph; it should read, in the third case plaintiff
Lewis H. Brown, as executor of -- that should be the
estate of?
MR. BAKER: Yes.
MR. GELBLUM: Yes.
MS. BLUESTEIN: Your Honor, I'm sorry. That
same addition should probably be put at the bottom
when you refer to plaintiff Lewis Brown.
MR. PETROCELLI: I don't think so.
MR. GELBLUM: I don't think so. It was called
Lewis H. Brown.
MS. BLUESTEIN: He's not the plaintiff. The
plaintiff is the estate of -- he's the executor.
THE COURT: He's the plaintiff. He's suing as
the executor's -- the named party, isn't he?
MS. BLUESTEIN: Okay.
THE COURT: So we'll leave it on.
2.00, 2.01, 2.02, 2.03, 2.04, 2.05,
Okay. With respect to 2.05, I informed
the jury as to the fact that Exhibit No. 732 was being
received for a limited purpose, and I indicated that I
would give a formal instruction to the jury, and I
instructed the plaintiff to prepare that instruction.
If defendant is not satisfied with the
limiting admonition I gave to the jury at the time,
I'll ask the plaintiff to prepare a formal instruction
on that and give it as part of the instructions.
MR. BAKER: I think you also gave a limiting
instruction on the Nancy NeySojourn House.
THE COURT: I also ask that, and also as to the
polygraph.
MR. PETROCELLI: Object to the polygraph, to
the Court's admonition. I want to submit my own
instruction on that. Is that okay?
THE COURT: You can submit it. I don't know if
I'll give it.
MR. PETROCELLI: Okay. We'll submit all of
then.
THE COURT: Okay.
MR. BAKER: Are you --
THE COURT: 2.06 --
MR. PETROCELLI: By the way, is the Court's
order -- this Court made an order that no one was to
bring up that subject again.
Does that apply to closing argument?
THE COURT: I believe so.
MR. BAKER: I don't think we ought to have an
instruction.
MR. PETROCELLI: Then I don't think we ought to
have an instruction.
THE COURT: I won't give an instruction on
that.
But on the last one, the only reason I
bring that up is because I gave a limiting admonition
to the jury, and Mr. Baker would like to be heard on
the instructions.
MR. PETROCELLI: Yeah. On the --
THE COURT: If you want to be heard on the
formal instruction I'll give them formal instructions,
other than a limiting instruction.
MR. PETROCELLI: You're talking about 732,
right?
THE COURT: Yeah. So you want it or you don't
want it?
MR. BAKER: On 732?
THE COURT: Yeah.
MR. BAKER: Yeah.
THE COURT: Prepare a formal instruction then,
please.
2.06, 2.08, 2.09.
2.20; and there is a handwritten
modification that's been added that says a character
of the witness for honesty, or truthfulness or their
opposites.
MR. GELBLUM: That's one of the bracketed parts
of the instruction that was left off and then the
parties agreed to add it back in.
MR. BAKER: And we object to that, Your Honor.
We don't think there's been any testimony to that.
MR. GELBLUM: We agreed.
THE COURT: I thought you said you agreed.
MR. BAKER: I disagree. That's my contrary
nature.
MR. GELBLUM: He agreed while we were sitting
there before.
THE COURT: Okay. I'll give it.
I believe both sides have witnesses who
said they were honest.
2.21, 2.22, 2.25.
MR. BAKER: Could we --
THE COURT: I'd like you also -- the print date
to be removed.
MR. GELBLUM: The what?
THE COURT: You have a print date on it.
MR. GELBLUM: That was the defendant's one.
We'll submit all new ones, Your Honor.
I just don't want to get blamed for
something we didn't do.
THE COURT: I'm just asking you not to put it
in.
MR. BAKER: Don't be so sensitive.
THE COURT: Do you want to say something on
2.25?
MR. BAKER: No. That's fine.
THE COURT: 2.40, 2.41, 2.42, 14.51, 14.60,
14.62.
14.69; is there some reason why there's
only one of these?
MR. GELBLUM: I'm sorry, Your Honor.
THE COURT: 14.69.
MR. GELBLUM: Yes. What about it?
THE COURT: There's only one.
MR. GELBLUM: Yes.
MR. BAKER: I don't think anybody from the
Browns provided one. That was provided by the --
MR. PETROCELLI: They don't have a wrongful
death . . .
MR. KELLY: We don't have that claim. We just
have a survival action.
That would be inapplicable.
THE COURT: Oh. Okay.
25 years is 49 additional, and 56 years
is 21.4.
Then after plaintiff, I think you have
the names inverted, don't you?
MR. GELBLUM: I don't have a copy, Your Honor,
because we did that right in court here.
THE COURT: Do you have -- after plaintiff you
have Goldman and Ronald Goldman, and I think the age
entries you have --
MR. GELBLUM: Ronald first.
THE COURT: Ronald first.
MR. GELBLUM: We'll reverse it.
THE COURT: Okay.
14.70, present cash value.
As to punitive damages instructions, two
instructions have been submitted. One with the name
of Ronald Goldman, and one with Nicole Brown Simpson,
which reads: If you find that Ronald Goldman, on one,
and Nicole Brown Simpson, on the other, suffered
actual injury, harm, or damage caused by battery, you
must decide in addition whether by clear and
convincing evidence you find that there was oppression
or malice in the conduct on which you base your
finding of liability.
Next paragraph is oppression. Next
paragraph is malice. Next paragraph is despicable
conduct.
You have an instruction for clear and
convincing?
MR. GELBLUM: I thought there was one.
MR. BAKER: 2.62, Your Honor.
MR. GELBLUM: You know what happened, I think,
Your Honor, I think that's in the stack of disputed
ones because of the way they had written it, they had
added something to it.
But the definitional part, we have no
objection to, as long as it's straight --
MR. BAKER: The bracketed paragraph.
MR. GELBLUM: No. You said we needed to prove
that he killed them by clear and convincing evidence.
MR. BAKER: Oh.
MR. GELBLUM: The definitional part, as long as
it's straight from BAJI, is fine with us.
THE COURT: Okay. Add on this instruction, the
definition of clear and convincing evidence, and --
MR. BAKER: Your Honor, on 14.7, 2.1, I don't
think you need the despicable conduct paragraph
because that's not what they're talking about if the
jury finds Mr. Simpson liable --
MR. GELBLUM: That's a term used under
oppression, your Honor. In fact, it probably should
be proved up between oppression and malice because the
term is used in the definition of oppression.
MR. BAKER: I think malice is the only one that
makes sense. We object to anything other than malice
in this case.
THE COURT: Then you also had a -- the last
paragraph; you should consider all evidence bearing
upon every issue.
MR. GELBLUM: That's from 2.62?
THE COURT: Yeah.
MR. GELBLUM: Okay.
THE COURT: 15.00, 15.20, 15.22, 15.30, 15.31,
15.33, 15.35.
I'm going to omit the second sentence as
much as we will be managing the jurors' movements.
MR. GELBLUM: Are you on 15.35?
MR. BAKER: Are you on 15.40?
THE COURT: 15.40.
MR. GELBLUM: Oh.
MR. BAKER: Got ya.
MR. GELBLUM: We removed the second sentence.
THE COURT: Yeah. Second and third sentence.
MR. BAKER: You're probably not going to allow
just the evening recess, correct?
THE COURT: Right.
MR. BAKER: All right.
THE COURT: 15.52.
Has anyone prepared a verdict?
MR. GELBLUM: I think defendants submitted part
of one. We have not submitted a complete one yet. We
have some disagreement about what this should look
like. It's very basic. I think we agree there's
three questions, and we question whether it's two
separate forms or one form.
THE COURT: Okay. These are disagreed
instructions.
2.26, admission implied from silence or
evasion.
Who's request is this?
MR. GELBLUM: Plaintiff, Your Honor.
THE COURT: Okay. Go ahead.
MR. GELBLUM: We believe there's --
MR. PETROCELLI: Cowlings.
MR. GELBLUM: There's an instance in the
evidence of a conversation where the parties
present -- where Nicole Brown Simpson, Al Cowlings,
and OJ Simpson -- Nicole said something about being
hit by Mr. Simpson, and there's no evidence of his
denying that at the time.
MR. PETROCELLI: It was on the basis that I --
the Court, among other reasons, permitted that
testimony.
MR. BAKER: Your Honor, we object to that on
hearsay grounds. My recollection is the Court let it
in because he was in the room, but there was no
indication that he heard it, or would have heard it,
or anything else to that effect. They never proved
that up.
So we don't think 2.26 is applicable to
any of the evidence. Without foundation in this case.
THE COURT: Okay. I'll give this, but we'll
call it an incident, and strike made an evasive
answer, strike accident, and strike to be true.
MR. GELBLUM: Your Honor, will you give me --
will I be able to take it back with me?
THE COURT: You can have the whole thing.
You're going to have to redo this anyway.
MR. GELBLUM: Terrific.
THE COURT: This is plaintiffs requested 1.03,
as modified.
The fact that an estate of a deceased
person is a party -- the fact that an estate of a
deceased person is a party must not prejudice you in
your deliberations or in your verdict.
Do not discriminate between an estate of
a deceased person, on the one hand, and natural
individuals, on the other. Each is a person in the
eyes of the law and entitled to the same fair and
impartial consideration and to justice by the same
legal standards.
What is the objection?
MR. BAKER: Submitted.
THE COURT: Given.
Plaintiffs' requested instruction reads
as follows:
As I have told you, this is a civil case.
You may know that defendant Simpson was already tried
in a criminal case for the murders of Nicole Brown
Simpson and Ronald Goldman and that defendant Simpson
was acquitted in that criminal trial.
You must not consider anything that
occurred at the criminal trial in deciding this civil
case. Therefore, you should understand the following
rules:
The acquittal in the criminal case has no
effect on this case. Even though defendant Simpson
was acquitted in the criminal case, you can still find
him liable for killing Ronald Goldman and Nicole Brown
Simpson in this civil case.
The burden of proof in the criminal
case was materially different than the burden of proof
is here. In the criminal case, the prosecution had
the burden of proving that defendant Simpson murdered
Ronald Goldman and Nicole Brown Simpson beyond a
reasonable doubt. In this case, as I have told you,
the parties need only prove the facts that they have
the burden of proving by a preponderance of the
evidence.
Three; this is a separate civil action
brought by plaintiffs. It is not an extension or
retrial of the criminal case. The District Attorney's
office is not involved in any way in this case. The
Los Angeles Police Department is only involved because
its officers investigated the murders of Ronald
Goldman and Nicole Brown Simpson and collected
evidence and, therefore, some of them were necessarily
witnesses in this case.
Four; the Double Jeopardy Clause of the
Constitution does not prohibit a civil case brought by
victims of the crime even after an acquittal in an
earlier criminal trial.
His acquittal means that he cannot be
prosecuted in a criminal case again or go to jail for
the deaths of Ronald Goldman and Nicole Brown Simpson.
However, the plaintiffs have a right to pursue this
civil action even though defendant Simpson was
acquitted at the criminal trial.
Five; if you rule in favor of the
plaintiffs in this case, you will be asked to
determine what amount of money defendant Simpson must
pay to the plaintiffs as compensation for killing
Nicole Brown Simpson and Ronald Goldman. No matter
what your verdict is in this case, defendant Simpson
will not be punished by imprisonment.
Objections?
MR. BAKER: Your Honor, that's a speech. And
when he -- the language contained therein is
exceptionally pro plaintiff. And it is essentially,
as I view it, a summary of the jury instructions, and
it's without precedence to give a summary of the jury
instructions that are going to be given.
And to say that the burden of proof is
materially different, you only have to prove by a
preponderance, seems to negate, and is indeed
argument.
When they try to distance themselves, the
plaintiffs, from the D.A.'s office and the LAPD's
office, they're trying to instruct away -- have you
instruct away the bias that the LAPD has in favor of
the plaintiffs. It takes away a lot of our case.
I don't think that's appropriate to give
them any such instruction whatsoever.
They were voir dired on this issue. We
spent approximately six weeks in voir dire. These
people are all well aware of the double jeopardy.
They're all well aware that this is a civil case.
They're all well aware there is a separate burden of
proof.
This is argument. The plaintiffs can
argue the law, but they can't summarize what they
believe the law is, and tell them that the LAPD and
the D.A.'s office, for example, are not involved, and
you only have to prove by a preponderance, and the
burden of proof is materially different.
I think it's improper to give this kind
of -- of instruction to these jurors after all we've
gone through in voir dire. These jurors should be
instructed pursuant to BAJI, as in every other
wrongful death case.
MR. PETROCELLI: Your Honor, to deal with
Mr. Baker's point about the D.A.'s office and LAPD, we
will -- although we certainly don't agree with what he
said, we will withdraw everything following the second
sentence in paragraph 3; the references to the D.A.'s
office and the LAPD. We would agree to withdraw those
sentences.
So in paragraph 3, it would be the first
sentence only.
In regard to the balance of what
Mr. Baker said, he made a continual point of referring
to the criminal trial throughout his examination of
witnesses. He even elicited from Mr. Simpson how many
days he spent in jail, and he talked about how
Mr. Simpson was agreeable to hiring experts in the
criminal case, and let the chips fall where they may.
He didn't go one witness, I don't think,
without his bringing up this criminal trial. And the
reason was he wanted this jury to somehow believe that
the acquittal in the criminal case has some
application or effect on them. And we need to make
this crystal clear.
Now, we did some of this in voir dire. I
wasn't permitted to get involved in this area in
opening statements. I certainly want to make it very,
very clear to the jury in closing argument that this
is not the criminal case, we're dealing with different
burdens of proof, and that the criminal case has no
application whatsoever to this case. And many of the
jurors were absolutely confused about this.
And this case is, in some sense,
virtually unprecedented in the sense that we have this
civil case following a criminal acquittal.
And I think that given the tenor of
Mr. Baker's examination of witnesses, and the theme
that I know we're going to hear in argument, this kind
of instruction is necessary. It simply states the
law. There's nothing argumentative about any of this,
especially if you remove those paragraphs or those
sentences that I described.
THE COURT: You ready to submit it?
MR. PETROCELLI: Yes.
MR. BAKER: Just one more thing, Your Honor.
For him to say in here that there is a
material difference in the burden of proof, then we
have to instruct this jury on what is the difference.
I think we have to instruct on the issue of the beyond
a reasonable doubt standard. They can determine for
themselves whether or not it's materially different,
whether it's not materially different.
I don't think it's appropriate to put
before a jury, No. 1.
And No. 2, the assertion that this case
is sui generis is preposterous. This happens -- has
happened in my career more than once, that you try a
civil case after a criminal acquittal.
THE COURT: Not --
MR. PETROCELLI: Not with this publicity, as we
saw in jury selection.
MR. BAKER: The publicity --
THE COURT: Excuse me.
I don't need cross argument. If you just
state your argument to perfect your record, then
submit it, I'll rule and go on.
MR. BAKER: Paragraph 4 has plaintiffs received
compensation for killing Nicole and Ron. What the
plaintiffs want you to do is, they want to put the
imprimatur of the Court in their argument. He can
argue any of this, but the imprimatur of the Court
ought not to be put upon it.
Submit it.
THE COURT: Okay. Thank you.
The Court is going to strike the second
paragraph, that is the second paragraph from the top
of the instruction.
I'm striking the number 1 in the
following paragraph, leaving the rest of the paragraph
intact.
MR. BAKER: Well, Your Honor, just one thing.
Ron and Nicole? We can't have first
names. They've got to put in here at least the names
of the people.
MR. GELBLUM: You have the old version.
THE COURT: They do.
MR. BAKER: Oh. They never gave us the new
version. I'm sorry.
THE COURT: Okay.
I'm striking the entirety of the
paragraph that's starts with paragraph 2.
The next paragraph that has a number 3,
I'm striking the entirety of that paragraph.
The paragraph that starts with paragraph
4, I'm striking the number 4. I'll leave the rest of
it.
On paragraph 5, I'm striking number 5. I
will not read that.
MS. BLUESTEIN: Your Honor, if we may have a
moment, please.
THE COURT: Yes.
MS. BLUESTEIN: Thank you.
Peter.
MR. GELBLUM: Yes, ma'am.
MS. BLUESTEIN: May we see what you have after
the judge has done this revision.
(Mr. Gelblum hands document to the
Ms. Bluestein.)
MS. BLUESTEIN: Thank you.
MR. LEONARD: Your Honor, we were looking at, I
guess, an earlier version, so we have to conform it --
we struck the wrong paragraphs based on our --
THE COURT: Counsel.
(Clerk handed document to
counsel.)
MR. BAKER: Your Honor, let me reopen for just
one thing on this paragraph 5 --
THE COURT: Yes.
MR. BAKER: -- what you struck.
The last paragraph is simply argument:
No matter what your verdict is in this
case, defendant Simpson will not be punished by
imprisonment.
I mean that already says that in the --
basically, when you talk about the double jeopardy
and --
THE COURT: Well, it's the Court's intention to
re-enforce that point.
MR. BAKER: Can we go back one second? I
apologize.
THE COURT: Yes.
MR. BAKER: On the admission -- imply by the
observation, would you please read the first line of
that. They're talking about an incident involved in
this case, and I think the inference and the extent of
2.26 is, for example, when you say you're talking
about the incident of the criminal --
THE COURT: Show it to me.
(Clerk handed document to
counsel.)
MR. BAKER: See there.
The incident involved in this case would
go to the issue of the murders.
THE COURT: No, it isn't.
MR. BAKER: I think that's the way it reads.
THE COURT: I don't think so.
MR. BAKER: Relating to the incident.
THE COURT: An incident.
MR. BAKER: Read the statement concerning such
parties conduct in relation to the incident.
THE COURT: Yeah. Referring to the first, an
incident, in the sentence. I think that's correct
English.
MR. GELBLUM: You replaced the word "the" with
the word "an."
THE COURT: On the first incident. On the
second -- subsequent one, I left it "the."
MR. PETROCELLI: That's the antecedent to the
word "the."
MR. BAKER: What the silence -- I mean it's --
it's confusing relative to this case because we're
talking about a 1989 incident contrasted to a 1994
incident.
Okay. I've made my record.
THE COURT: You've made your record.
Are you finished with the other one?
MS. BLUESTEIN: Thank you.
(Ms. Bluestein handed document
back to the Court.)
THE COURT: 1.00.5; the juror forbidden to make
any independent investigation.
Okay. There's a defendant's version and
a plaintiffs' version.
Anybody want to make their record, make
it.
MR. BAKER: I think ours comes right out of
BAJI and ought to be given.
Theirs tends to try to emphasize relative
to the criminal case, and with the instruction the
Court has just given, or just indicated it's going to
give, I don't think we ought to do it twice. I don't
think it's necessary. I think it's argument. I think
they're getting the Court to do their arguing through
the instructions if you give it.
THE COURT: Again, I'm going to give this
modified instruction under an abundance of caution.
This case is peculiar because of the
circumstances of the two trials and I think it's
important that the jury be aware of the difference in
the law that's involved.
MR. BAKER: If you're going to do that, Your
Honor, I would request that you strike the last two
sentences, and most definitely the last sentence; that
is certainly contrary to the law. I mean it's
contrary to other instructions that we have in this
case.
MR. PETROCELLI: The last sentence?
MR. GELBLUM: You must not consider any
evidence that has not been presented in this case.
MR. BAKER: There is -- point being that it is
contrary to -- I think it can be implied that it's
contrary to BAJI 2. --
MR. PETROCELLI: That's argument. That's an
argument, Mr. Baker. They can't consider --
MR. BAKER: This whole thing is argument in my
opinion.
MR. PETROCELLI: They can't consider any
evidence not presented in this case. That can't be --
MR. BAKER: They can consider the failure to
present evidence. That's why I take issue with it,
the last two sentences, and more particularly the last
sentence.
MR. PETROCELLI: We repeated that sentence in
the jury selection like a thousand times.
THE COURT: Okay. Submit it?
MR. GELBLUM: Yes.
MR. BAKER: Sure.
THE COURT: Okay. I'll give it as is.
Okay.
Issues in the case.
Is this a plaintiffs' request.
The purpose of this trial is to decide
the issues raised by the plaintiffs' complaints.
Complaints arise out of the June 12, 1994, deaths of
Nicole Brown Simpson and Ronald Lyle Goldman.
In order to arive at a verdict in this
case you will have to decide several questions.
One; The first is whether defendant
Simpson caused the deaths of Nicole Brown Simpson and
Ronald Goldman.
Two; Depending on how you decide the
first question, there may be further questions that
you will have to decide:
A; What is the amount that defendant
Simpson should be required to pay plaintiff Goldman
for having caused the death of Ronald Goldman.
B; What is the amount that defendant
Simpson should be required to pay plaintiff Rufo for
having caused the death of Ronald -- that should be
Goldman.
C; What is the amount that defendant
Simpson should be required to pay the estate of Ronald
Goldman for having caused the death of Ronald Goldman.
D; What is the amount that defendant
Simpson should be required to pay the estate of Nicole
Brown Simpson for having caused the death of Nicole
Brown Simpson.
Okay. Any argument?
MR. BAKER: Your Honor. That is argument,
No. 1.
No. 2, the information contained herein
is supposed to be contained in BAJI 2.60 and the
verdict form, and the way this is written is, in my
view, terribly argumentative. It is.
For example, I don't think that -- that
we ought to use the California Forms of Jury
Instruction. We are required, it seems to me, to use
BAJI, No. 1.
No. 2, if you look at how this is worded,
it doesn't say if you find; it just says depending
upon how you decide the first question. And then it
gives you all of the inferences that they should
decide this case in one way.
Now, I think it would be improper.
Again, this is simply argument. The BAJI
instructions have -- have taken care of such issues
and what they're to decide from 2.60 through and
including the verdict form, and I -- Again, I just
don't think that the Court's imprimatur should be put
on this argument in this case.
MR. GELBLUM: I think it's very neutral. I
don't see anything argumentative about it at all. It
states very simply and straightforwardly the claims
and the issues to be decided.
MR. BAKER: In every verdict form it says if
you decide. That isn't what it said in number 2.
Number 2 says just depending on how you
decide the first question. It doesn't say if you
decide in favor of Mr. Simpson you need not answer the
rest of the questions. It says depending upon how you
decide. Then it goes into the pejoratives that are
set forth underneath numeral 2.
THE COURT: Which pejoratives?
MR. BAKER: I think what is the amount, that is
what they have to decide -- they have to decide first,
obviously, whether or not they find Mr. Simpson
responsible for the deaths of Nicole Brown Simpson and
Ron Goldman.
If they --then they have to find the
amount that Simpson should be required to pay to
plaintiff Goldman for having caused the death.
That isn't the law in this state, never
has been.
The law, as I understand, is to
compensate Mr. Goldman for the loss of society, care,
and comfort of his son if they decide against
Mr. Simpson, not the amount required to pay.
MR. PETROCELLI: All you have to do is say what
is the amount of damages; that takes care of your
whole point.
MR. BAKER: Why don't we follow the BAJI
instruction and the law in this state?
MR. PETROCELLI: This clarifies what the issues
are in this case. It's a very complicated factual
scenario over many, many months. We have to make sure
the jury understands what they're deciding.
MR. BAKER: The issues in this case are not --
the legal issues in this case relative to this are not
complex at all.
MR. PETROCELLI: That's what this explains.
MR. BAKER: Well, that's both sides of the
issue.
MR. LEONARD: Skillful lawyer.
THE COURT: Well, it does have some redundancy
to it. But in terms of framing the issue, I think it
could be framed a little more simply.
MR. BAKER: Can't we stick to 2.06 as we have
in every other wrongful death case?
MR. PETROCELLI: Your Honor, how about number
2, if we say if you decide in favor of plaintiffs --
as Mr. Baker suggests, if you decide in favor of
plaintiffs, then you will have to answer the following
questions, and then add what is the amount of damages,
the words "of damages" after amount, and that will
take care of the issue.
MR. BAKER: It doesn't take care of the issue.
MR. PETROCELLI: Well, it took care of the ones
you presented so far.
MR. BAKER: No, it doesn't, because the amount
of damages for what?
MR. PETROCELLI: For causing the deaths of
Ronald Goldman and Nicole Brown Simpson.
MR. BAKER: It's not for the deaths, it's for
the loss of Ronald Goldman. You're on the wrong side
of the equation. As I understand the law in
California, it's not punishment for Mr. Simpson
causing the death, it's compensation for Mr. Goldman's
loss, if they decide in favor of Mr. Goldman.
THE COURT: You know, I think it is redundant.
I think the instructions are more specific in 2.60 and
in the damage section, so I'll refuse this.
Personal representative, plaintiffs
requests.
What's the objection to this?
MR. BAKER: I think this is redundant to 1.00.3
as we modified it, and it's -- it's absolutely wrong
besides that. Other than that, it's perfect.
THE COURT: Okay. What's wrong with it?
MR. BAKER: Well, plaintiff Brown has the same
right to bring a lawsuit against defendant Simpson
that Nicole Brown Simpson would have if "he" were
alive -- first, it's she -- and is entitled to recover
any damages that Nicole Brown Simpson would have been
entitled to recover.
In a wrongful death case that's not true,
No. 1. In a battery case, that's not true.
I don't think Nicole Brown Simpson is
suing for battery. You can't, obviously, sue for
wrongful death if you are alive. It's an improper
statement of the law.
MR. GELBLUM: Ther're only bringing the
survival claims. Personal representatives, that's
exactly -- they survive, they have the same right to
sue. It goes significantly beyond the other
instruction.
THE COURT: Excuse me.
MR. GELBLUM: It goes significantly beyond the
other instruction in terms of 1.03 in explaining what
a personal representative is.
THE COURT: Is there an equivalent BAJI
instruction on this one?
MR. GELBLUM: No, Your Honor. It's from
California Jury Instructions. I'll look again, but we
couldn't find one.
THE COURT: Okay. I think that's the law but
it gets a little awkward.
MR. BAKER: That's the law.
THE COURT: I'll give it.
MR. BAKER: Your Honor --
THE COURT: Yes?
MR. BAKER: The form that they're using, of
course, is not a sanctioned form by our court system.
But in any event, if you think it's necessary, the
last paragraph seems to me -- of this form, seems to
me to be the one that is less argumentative and less
biased because it at least mentions that we have a
right to defend the lawsuit, which they have kind of
omitted.
MR. LEONARD: How did that happen?
MR. PETROCELLI: We have no objection to that.
MR. LEONARD: Spill some coffee on the bottom
of that or what?
THE COURT: Okay.
MR. PETROCELLI: You can add that. Redo it and
put it in.
MR. PETROCELLI: Put in the right to defend?
THE COURT: Right to defend.
MR. BAKER: It's now -- Yeah, that's a little
better. I think a first-year law student wrote it,
but --
THE COURT: Okay. Goldman's burden of proof.
MR. BAKER: Where are we, Your Honor? These
aren't numbered.
THE COURT: Yeah, I know. This is Goldman's
burden of proof.
MR. PETROCELLI: That right to defend language
was not in our version of the instructions, by the
way. That's why we left it out.
THE COURT: It says plaintiff Goldman has the
burden of proving by a preponderance of the evidence
all of the facts necessary to establish the following
claims asserted in his complaint:
1, his claim as an individual against
defendant Simpson for wrongful death; and 2, his claim
against defendant Simpson for battery on behalf of
Ronald Goldman, as Ronald Goldman's personal
representative.
MR. GELBLUM: Your Honor, backing up on the
prior one, that section is from the defendant, is the
deceased -- the nature of that sentence --
THE COURT: Well -- well --
MR. GELBLUM: This the plaintiffs deceased,
this is from the defendant deceased.
MR. BAKER: Well, I want the later.
MR. LEONARD: He wants it anyway.
MR. BAKER: I want it anyway.
THE COURT: All right.
You got any objection to Goldman's burden
of proof?
MS. BLUESTEIN: Your Honor, we're trying to
locate it.
MR. BAKER: Is that one you just gave me?
MR. GELBLUM: This one.
MR. BAKER: Your Honor, I disagree with that.
I think the essential elements of the case and what
they have to prove, rather than the titles which are
meaningless, should be put in 2.60 because they then
separate those out and fail to mention what their
burden of proof is on the individual elements of the
claims. I mean the titles of the claims are
meaningless.
THE COURT: I don't think they're meaningless.
MR. GELBLUM: Your Honor, the real purpose of
this one like the --
THE COURT: I think it frames the case with
regards to each of the parties.
Okay.
Wrongful death. Plaintiff seeks to
recover damages for the losses as a result of Ronald
Goldman's death.
The essential elements of his claim for
wrongful death are:
1; defendant Simpson wilfully and
wrongfully caused Ron Goldman's death;
2; plaintiff Goldman has suffered damages
as a result of Ronald Goldman's death.
MR. BAKER: That isn't a proper statement of
law.
THE COURT: Well, what's the proper statement
according to you?
MR. BAKER: Well, No. 2 is that he suffered
damages and the amount thereof, that's their burden of
proof.
THE COURT: Okay. You would like the amount
thereof?
MR. BAKER: I don't care.
MR. GELBLUM: Add it at the end of the
sentence.
MR. BAKER: Do whatever you like.
THE COURT: Okay.
Battery. This is 7.50.
MR. BAKER: The other objection I have, while
we're on the record, is that that should say that he
has the burden of proving by a preponderance of the
evidence, those elements, because the way they have
done it, which is in my view inappropriate, is to set
it forth in two separate instructions, when it's
supposed to be set forth under BAJI 2.60 in one
instruction.
They're separating the burden from the
claim. The burden goes to the elements, it doesn't go
to the claim.
MR. GELBLUM: Your Honor, the way that we
anticipated it being structured, we haven't gotten
to --
THE COURT: I don't mind repeating the burden,
the preponderance of the evidence.
MR. GELBLUM: The way we had it set up, the
burden of the preponderance of the evidence --
THE COURT: I understand. But if the defendant
feels they want to have preponderance of evidence
repeated again, I'll be -- I don't have any problem
doing that.
I'm going to be speaking for only an
hour, while you gentlemen are going to be speaking for
hours and hours and hours on this. It's not too much
of a burden.
Where would you like to put that,
Mr. Baker?
MR. BAKER: Well, I'm just objecting to the two
being separated, and my objection goes to the fact
that we ought to have 2.60.
Other than that, I saieth not.
THE COURT: Okay. Put in preponderance of the
evidence.
MR. PETROCELLI: Okay.
MR. GELBLUM: Somewhere.
MR. PETROCELLI: We'll put it in.
MR. GELBLUM: I'd suggest --
THE COURT: Battery.
MR. GELBLUM: That's 7.50?
THE COURT: Yeah.
THE COURT: What's the modification?
MR. GELBLUM: I'm trying to find it.
I think it's simply putting in the names
in the introductory paragraph, that it's Ronald
Goldman's personal representative that is seeking -- I
think it's just the names of the parties.
THE COURT: Okay. Give it.
You know, with regards to --
MR. BAKER: Your Honor.
THE COURT: Just a minute.
MR. BAKER: I'm sorry.
THE COURT: With regards to the instruction on
the wrongful death part 4, where we're talking about
the preponderance of the evidence --
MR. GELBLUM: Yes.
THE COURT: -- rather than putting it there,
put the definition of preponderance of the evidence in
the instruction which says Goldman's burden of proof.
Put the definition of preponderance of the evidence
there.
MR. GELBLUM: The first sentence of that one
has the phrase, preponderance, so you want to add the
definition at the bottom their?
THE COURT: Yes.
Same with Rufo burden of proof.
If you find preponderance of evidence,
I'll give that.
On Rufo there's two of them that seem
partially redundant.
MR. BREWER: Well, they mirror the Goldman
instructions. What I would propose is really just
consolidate, in light of Mr. Baker's comments, just
stating that plaintiff Sharon Rufo has the burden of
proving by a preponderance of the evidence all of the
following, colon.
Then on the other instruction where it
has the two items that -- defendant Orenthal James
Simpson wilfully and wrongfully caused Ronald
Goldman's death is number 1, and then number 2,
plaintiff Sharon Rufo suffered damages as a result
of -- upon Ronald Goldman's death and the amount
thereof. That consolidates both those instructions.
THE COURT: Consolidate these two.
Okay. This is plaintiff
Louis Brown's personal representative, same as --
MR. BAKER: On battery, Your Honor, are you
going to give that as they indicated?
THE COURT: Excuse me?
MR. BAKER: Did we get back past the one on
battery, BAJI 7.50?
THE COURT: As to --
MR. BAKER: Both Goldman and Brown.
THE COURT: We got -- we did it as to Goldman.
We haven't gotten to Brown yet.
MR. BAKER: I believe under Garcia versus
Superior Court that battery claims do not include
damages for pain and suffering, disfigurement. I
think you have to put in there conduct caused the
property damage.
MR. GELBLUM: Straight from BAJI, Your Honor.
MR. BAKER: I know, but this -- the BAJI -- the
BAJI is for battery when the plaintiff is a living
human being.
MR. GELBLUM: 7.50 lays out the elements. It
doesn't lay out the recoverable damages. That would
be a separate instruction.
THE COURT: Okay.
As to personal representative
instruction, the same as the Goldman, I will give that
battery as to Brown as to the elements, give that.
Brown's burden of proof incorporate the
preponderance of the evidence.
Okay. This is plaintiffs' proposed
instruction Simpson burden of proof: That a
particular person planted a particular item of
evidence, that particular items of evidence were
collected, tested and were contaminated, that the
photographs were altered.
MR. BAKER: What was the last part of that?
THE COURT: Particular photographs were
altered. You got that?
MR. BAKER: Your Honor, I don't think that we
have, obviously, any burden of proof in this case
and --
THE COURT: Okay. I think that -- let's
address the 664 issue, and that seems to be --
MR. BAKER: There's the --
THE COURT: Yeah. Go ahead.
MR. LEONARD: Do you have another copy?
MR. GELBLUM: Of this instruction. The 664
reduction instruction?
MR. KELLY: Go ahead.
MR. GELBLUM: That's not it.
MR. KELLY: That's not it.
MR. BAKER: I thought --
MR. PETROCELLI: We were waiting for you,
Mr. Baker.
MR. KELLY: The burden's on you.
MR. BAKER: I think we gave the Court the
cases, and that if there is a challenge for the very
foundation of evidence, shifted the burden and we
challenge the evidence and that shifts the burden
directly back to the plaintiffs, but I think this is
an overreaching of the plaintiffs relative to Evidence
Code Section 664 because there's no specific
specifications or regulations they're talking about
and they haven't proved any specifications or
regulations.
As a matter of fact, what we proved is
SID didn't even have a manual, much less that they
complied with any regulations or specifications, so I
really don't think under the cases that we've cited to
you earlier today and -- that -- that they cannot
pursue 664 of the Evidence Code and shift -- attempt
to shift the burden to us.
You wouldn't let us talk about standards.
When we attempted to get into standards with members
of the LAPD before this jury, you precluded us from
getting into standards by sustaining their objections.
And now, in our view, certainly not have
it both ways, that now they're talking about some
ambiguous standards that I don't know what they are
and saying those standards and specifications require
us to prove particular items of evidence and shift the
burden to us when we have put on evidence of what we
believe the circumstantial case that the jury can
conclude that there was tampering, that there was
planting, that there was contamination. And I think
that's --
THE COURT: That really didn't go to the issue
of the defense burden of proof as such that -- you're
not connecting those two arguments.
MR. BAKER: Well --
THE COURT: You accept the fact that you have
the burden of proving that the evidence was planted,
that it was contaminated and that photographs were
altered?
MR. BAKER: No. I don't accept that at all. I
don't accept that under the law --
THE COURT: Tell me --
MR. BAKER: -- of wrongful death, I have the
burden of proving anything.
I have a burden of going forward to put
evidence on to say that their evidence isn't worthy of
belief, and that's what we have done.
I don't have the burden of proving
anything in this case. They have the burden of
proving everything.
And to pick out particular pieces of
evidence and say you have the burden of proving that I
believe is a fallacy.
I have a burden of putting on a case to
challenge the authenticity and veracity of their case.
We think we've done that. It's now up to the jury to
decide. I certainly don't have a burden of proving by
any preponderance anything in this case.
THE COURT: Well, that's your defense, isn't
it? That it was altered, that it was contaminated,
that it was planted?
MR. BAKER: That's not an affirmative defense.
It's a defense, and we're entitled -- our obvious
defense is he didn't do it, and this is -- the reason
they have that evidence is because they planted it,
they contaminated it and they altered it, and their
evidence is not worthy of belief.
THE COURT: What's your response to that?
MR. PETROCELLI: He's entitled to deny that he
performed -- that his client committed these murders,
but by going one step beyond, putting his client on
the stand and saying he didn't do it, he has attempted
to convince this jury of -- affirmatively of what
happened and why that evidence is there. And he has
accused the Los Angeles Police Department and others
of deliberately putting it there to frame Mr. Simpson.
He has contended they performed certain procedures in
their handling of the evidence to contaminate it and
cause the evidence to misidentify Mr. Simpson. And he
has contended that pictures, true and correct on their
face, which we have fully authenticated are, in fact,
fabrications.
He has the burden of proving those
things. We don't have to disprove alteration of a
photograph. We don't have to disprove or negate
planting of evidence. We don't have to disprove or
negate contamination.
And we go right to the Evidence Code,
664, which talks about presumptions affecting the
burden of proof when you're saying -- when you're
dealing with the actions of officials, they're
presumed to have been performed in regularly, and if
you want to contend otherwise, you have to present
evidence rebutting that presumption. They're not
conclusive presumptions. They're rebuttable
presumptions.
One he presents evidence meeting and
beating the presumption, the presumption vanishes.
That's right in 664, 660, and 6604 I mean there's
no -- our case in chief, Your Honor, doesn't include
negating planting of evidence. Our case in chief
doesn't require us to prove some alteration that we
don't contend ever occurred with regards to
photographs.
We produced the evidence. We made a
prima facie showing that the evidence is valid and is
what it purports to be, and he came back and not only
denied these things but has offered alternative
theories and explanations and claims as to why it is
there.
It's just like if I prove up the contract
and the other side says that contract was induced by
fraud, he has to prove that up, that's his burden,
just like these photographs.
Yes, the photographs are there, but they
were fabricated by some grand conspiracy out of
Buffalo, New York, and here are the facts and here's
the evidence why that is so. That's his burden.
I don't have to disprove that. I mean --
THE COURT: Okay.
MR. BAKER: Your Honor, just one second.
First of all, Mr. Petrocelli's argument
is inappropriate, because what he's talking about is
he puts on evidence and I can negate that evidence,
it's not an affirmative defense.
When he talked about a contract, which
he's more familiar with, and the inducement by fraud,
that's an affirmative defense which the defendant
carries the burden of, and that's by law, and you have
to raise that, as you're well aware, in the answer.
THE COURT: I agree with you.
MR. BAKER: Well, I'll be quiet.
THE COURT: But on the other hand, I think the
cases you cited and the plaintiffs cited does set
the -- the minuet, if you will, of 664 the burden each
of the parties with respect to a 664 type presumption.
MR. BAKER: But the Davenport case is the only
case I saw, and maybe I missed it, that sets forth
what 664 goes to. In other words, 66 -- what the
plaintiffs' theory would have you believe is that 664
says that every public official is presumed to comply
with and do their jobs properly.
Okay. That's what Davenport says, is
that what is actually presumed under Evidence Code 664
is compliance with statutory and regulatory standards.
And that's what we're talking about, statutory and
regulatory standards, and there is none relative to
the issue we're talking about here.
And so I don't think 664, to start with,
is applicable, number one, but secondarily, we've put
evidence before this court --
MR. PETROCELLI: 664 says that officials are
presumed to perform their regular duties. He
contended officials committed felonies, committed
crimes. That's not part of their official duties.
They're presumed to have performed their jobs. If
he's saying they committed crimes by framing a man for
double murder by planting evidence, he's got to
overcome that presumption. That's not our burden. He
can't get around 664, Your Honor. That's his basic
problem. He can't. No matter what the duties of the
officials of SID and LAPD are, they do not include,
you know, specifications that they do not frame people
for double murder.
Okay. Doesn't have to be written down in
some piece of paper that thou shalt not frame an
innocent man for a double murder, thou shalt not plant
evidence.
That is not what this means. If you want
to prove that they affirmatively broke the law and
committed felonies and altered photographs and all
these other things, you have to rebut the presumption
that they regularly performed their duties and you're
permitted to rebut that presumption by admitting
evidence and overcoming the presumption affecting the
burden of proof under 606 (sic).
MR. BAKER: Well, in response to that,
first of all, I don't agree under the case
interpretation -- that's one of the broader sentences
I've seen in an Evidence Code, but in any event, the
cases interpreting that don't give it the broad
construction that Mr. Petrocelli would have this Court
believe.
And, in fact, the Davenport case goes on
to say that if, in fact, there is introduction of
evidence that the official standards were in any
respect not observed, the burden shifts to prove that
the test was reliable, okay, so that the burden shifts
back instantly.
So in either -- I don't think it's
applicable to start with, but if it is, in fact,
applicable, then we have put on evidence of
contamination, we put on evidence of planting, we put
on evidence that would shift the burden back to them.
But I don't think that's the issue. I
just don't think it is applicable in this case,
anything they fail to prove, that there is any
statutory or regulatory standards.
He wants to start quoting the ten
commandments. I can tell you one thing, if the ten
commandments were all the law that existed, we
wouldn't have as huge a library as we do.
MR. LEONARD: Your Honor, can I make one point
that I think is obvious?
Unless I missed something, I never heard
that Harry Scull or Flammer were officials of any
kind, or MacElroy, their agent.
MR. PETROCELLI: Doesn't apply. 664 doesn't
apply to Scull photos.
MR. GELBLUM: Or Flammer.
MR. PETROCELLI: Or Flammer.
It applies to the conduct of all the
officials that you're contending did things
irregularly.
MR. BAKER: We put on evidence of -- of
misrepresentations to this jury by numerous officials.
That seems to me the --
MR. PETROCELLI: It can't be the law.
THE COURT: Submitted?
MR. PETROCELLI: We'll submit.
MR. BAKER: Submit.
THE COURT: All right.
The plaintiffs' requested instruction re
Simpson burden of proof, I'm going to deny that, I
don't think there is an affirmative defense with
regards to those three items as such.
With regards to presumption of official
duty, I'll give that.
MR. BAKER: You're going to give that, Your
Honor?
THE COURT: Yeah.
MR. BAKER: But that's --
THE COURT: Well, you made the argument and,
you know, I think your argument is that you did rebut
the evidence, and therefore the presumption should
apply -- should not apply. So the instruction, I
think, meets your needs as well.
MR. BAKER: But there's nothing in this
instruction that they proposed that shifts the burden
back to them. At least I haven't seen it. Maybe I
missed it. I'll read it again.
MR. PETROCELLI: Let me see.
MR. BAKER: I mean --
THE COURT: I agree. It is weighted. If you
want to rewrite it and offer a neutral language
instruction, I'll be happy to entertain it.
MS. BLUESTEIN: Your Honor, if I may
Wilson versus Zolin 9 Cal.Ap. 1104.
THE COURT: I read it.
MS. BLUESTEIN: It says once the burden shifts
back -- once the defense has met the burden, it shifts
back, then the DMV in this case no longer has the
benefit of Evidence Code 664, it seems to be gone.
Then --
MR. PETROCELLI: That's true, once it's
rebutted.
MS. BLUESTEIN: Then you don't get an
instruction on it.
THE COURT: Why don't you prepare one.
MR. BAKER: Okay.
MR. PETROCELLI: Once the presumption is
rebutted.
MR. BAKER: Wheeler versus DMV a March '94
case.
THE COURT: Okay.
MR. BAKER: That's at 34 Cal.Ap. 4th at 235.
THE COURT: Okay.
I'm contemplating giving the presumption
and a burden of proof regarding alleged planting and
alleged contamination instructions. I would like to
give it in a more neutral tone and more reflective of
Wilson versus Zolin and those cases, and so I'll give
it -- I'll hear -- I'll give defense an opportunity to
draw it up.
MR. BAKER: I'm not --
THE COURT: If you don't want to --
MR. BAKER: No, I'm not clear --
THE COURT: -- you don't have to.
MR. BAKER: I want to get some clarification.
You're going to give the burden of proof but you're
going to give it on particular items, that is planting
and contamination?
THE COURT: I'm not going to give the burden of
proof instruction because I'm satisfied you don't have
an affirmative defense issue here.
MR. BAKER: Okay.
MR. LEONARD: Okay.
THE COURT: I am satisfied that the plaintiff
can make a plausible argument on the presumptive 664
theory of shifting the burden. That's a lot different
from an affirmative defense instruction the way I see
it, unless you understand the law differently, so what
I am suggesting is that the defense might want to make
an offer of an instruction that is more reflective of
their view of what those cases hold.
MR. BAKER: Okay.
THE COURT: Okay.
MR. BAKER: We'll do that.
MR. GELBLUM: So I'm clear, I just want to make
sure I know which ones -- we have some titles here on
the list. I don't know what you're reading off of.
THE COURT: Presumption that official duty has
been regularly performed, burden of proof regarding
alleged planting, burden of proof --
MR. GELBLUM: Got it.
THE COURT: -- regarding alleged contamination.
MR. GELBLUM: Total of four pages?
THE COURT: Yeah.
MR. BAKER: I'll submit an alternative, Your
Honor, of course without waiving our objection that
this should not be included as an instruction at all.
In other words --
THE COURT: That's all or nothing.
MR. BAKER: Huh?
THE COURT: You want to go all or nothing?
MR. BAKER: No, I'm taking the Court's
suggestion --
THE COURT: Yeah.
MR. BAKER: -- that says I will type up an
alternative, without waiving my objection.
THE COURT: Yes.
MR. BAKER: -- That this should not be included
at all. That's all I'm saying.
THE COURT: Fine. Okay. I thought maybe you
were --
MR. BAKER: No.
MR. PETROCELLI: It's not an implied admission,
Mr. Baker.
THE COURT: Okay. Okay.
Then there are measure of damages death
of adult child, Goldman and Rufo. What are the
objections on this?
MR. BAKER: Mike, I don't have the instruction.
MR. BREWER: It's the same.
MR. GELBLUM: 14.50 and 52, Your Honor.
THE COURT: Yes.
MR. BAKER: Your Honor, I think that we should
do it as per BAJI 14.50, 14.52 which they have
modified in determining that, which is the second
paragraph to 14.52, it's -- it is -- it relates to an
unemancipated child, and they have combined the two
of -- 1450 and 1452, and I think it is clear that
these cases are defined under 14.50. I think --
THE COURT: Tell me what part you are objecting
to.
MR. BAKER: If you look at 1450.
THE COURT: I'm looking.
MR. BAKER: Okay.
There is no financial support. So you
strike paragraph 3. Okay.
Then, what they have done, in
determining -- in striking paragraph 3 at 1450, is
they put in paragraph 2 -- part of paragraph 2 of
1452, and they have essentially requested this jury to
give them a double recovery because they say in
determining that loss, the jury finds for Goldman,
they want to award reasonable compensation for the
loss, and will suffer in the future with reasonable
certainty by being deprived of his love,
companionship, comfort, and that is the loss, it's
not --
MR. GELBLUM: That's what it says in
determining that loss, that's what it says.
MR. BAKER: Your Honor, I don't know why we
don't stick with measure of damages, measure of an
adult, 14.50. That's what the law is, that's what's
proven to be and that's what's accepted by the
committee and the courts of this state. Why do we
want to alter everything and add this language because
they think it is advisable -- beneficial to them?
That isn't the law.
THE COURT: I'm looking at 14.50. What is it
that they put in that you don't like?
MR. BAKER: In determining that loss you may
award reasonable compensation for the loss he has
suffered. Okay.
THE COURT: Okay. That's right there in 14.50,
isn't it?
MR. BAKER: 14.50 sets out exactly with
specificity the loss suffered and then sets forth the
elements. And that's what it seems to me we ought to
stay with. I mean --
THE COURT: Wait a minute.
MR. BAKER: Paragraph 2 should read, under the
acceptable jury instruction, by the death of Ronald
Goldman, instead of his child.
The next --
THE COURT: Wait a minute.
MR. PETROCELLI: I don't understand at all
Mr. Baker's argument, other than he wants the word
child that -- their child, or words to that effect,
replaced by Ronald Goldman.
MR. BAKER: Let me --
MR. PETROCELLI: The same language appears in
both 14.50 and 1452.
MR. BAKER: It doesn't appear.
MR. PETROCELLI: Yes, it does.
What are the differences?
MR. BAKER: For example, where they said in
paragraph 3, line 3, "by being deprived of Ronald
Goldman's love, companionship, comfort and affection."
THE COURT: Yeah.
MR. BAKER: That is not what the jury
instruction is supposed to say. It measures in -- in
kind of punitive nature they say on the last page they
talk about, incur funeral services in Ron Goldman's
memory and for the disposition of his body.
Your Honor, this is --
MR. GELBLUM: That's a stipulated amount
anyway.
MR. BAKER: That stipulated amount isn't what
we're talking about.
MR. BAKER: The pejoratives you put in the jury
instruction --
MR. PETROCELLI: These are not pejoratives.
MR. BAKER: Their argument. That's why we have
a BAJI committee.
MR. PETROCELLI: The same words appear in both
sections.
MR. GELBLUM: The memory of disposition are
right in 14.50.
MR. BAKER: Whatever you like. I made my
record.
THE COURT: Okay.
On that paragraph the Court will strike
services after -- services after the word funeral, and
then after Ronald Goldman, strike parenthe --
hyphen -- that's not a hyphen. What do you call that?
MR. GELBLUM: Apostrophe.
MR. PETROCELLI: Apostrophe.
THE COURT: Apostrophe -- after apostrophe s,
striking to -- that to the end of the sentence.
MR. GELBLUM: So, for the funeral of Ronald
Goldman.
THE COURT: Yeah.
MR. BAKER: Your Honor, you know, I -- again,
it's laid out in what they're to determine, and it is
highlighted what they're not to determine in 14.50.
So they put it in a paragraph to try to hide or
minimize what they're not to consider.
And I just object to not using the exact
form of 14.50; and there's a reason for it; and it's
to highlight that they're not to consider pain and
suffering, grief or sorrow, or the heirs poverty, the
wealth of any heir.
It's highlighted they're not to consider
that, because that's the law of this state, that --
top paragraph of -- and -- and it shouldn't say Ron
Goldman's death or pain or suffering by Ron Goldman.
It should be in the form of -- of BAJI.
And as this Court well knows, well --
THE COURT: Where's the pain and suffering by
Ron Goldman?
MR. BAKER: Well, it's on what they gave me.
It says:
In determining the loss to plaintiff
Goldman, you're not to consider any pain and suffering
that he suffered by reason of Ron Goldman's death, or
pain and suffering by Ron Goldman by his death, or
Plaintiff Goldman's wealth or poverty.
That's not supposed to be in these
instructions.
And when we start to bastardize these
instructions as -- as they've done, we run into
trouble. That's what we're in, because now we have to
rewrite the --
MR. PETROCELLI: The instruction has the word
"heir," and I think we're entitled to substitute the
name of the decedent in lieu of the word "heir."
MR. BAKER: If that were true, there'd be a
bracket and a blank spot for the name of the decedent.
It isn't there.
If these things are gone over in great
detail, and for them to -- to attempt to marry 14.50,
when obviously both of the victims of these crimes
were adults, to marry the death of an adult with the
death of a child instruction, is, I think, erroneous;
and I think it's error. And that's what they
attempted to do.
THE COURT: I'll hear from the plaintiff as to
why the Court should allow 14.52 language to be
interpreted with 14.50.
MR. PETROCELLI: Well, going with 14.50 means a
lot to Mr. Baker. We're going to accede.
MR. BAKER: Just have to be the law.
MR. PETROCELLI: We do want to be able to put
our client's name in lieu of the word "heir."
THE COURT: You may put in the client's name.
MR. PETROCELLI: Thank you, Your Honor.
THE COURT: So that's something I'm not going
to include in this pile.
MR. GELBLUM: I got it.
THE COURT: You redo it, and you redo it.
Okay. Defense requested 16.81, punitive
damages bifurcated. It's not filled out.
MR. BAKER: We'll take care of that.
THE COURT: That was in the disagreed pile.
MR. GELBLUM: That was the verdict form issue.
THE COURT: Huh?
MR. GELBLUM: That's part of the verdict form
issue. We don't have a problem.
THE COURT: You going to meet and confer over
that one?
MR. PETROCELLI: Yeah, over the weekend.
MR. BAKER: First hole?
(Laughter.)
THE COURT: Okay.
And then the two remaining are the 2.60
and the 2.62 that the defense proffered.
I think we included the clear and
convincing evidence definition in the other
instructions.
MR. GELBLUM: Right.
THE COURT: Burden of proof. I think we've
already discussed that.
MR. GELBLUM: Right.
THE COURT: Okay.
Then, other than that, you're going to be
submitting the additional instructions that we
discussed --
MR. PETROCELLI: I have a couple of matters.
THE COURT: -- and the verdict form?
MR. GELBLUM: I had one more on my list I
didn't cross off. I'm trying to find it.
THE COURT: What's that?
MR. GELBLUM: The 14.00.
Oh, we withdrew that one. Right. Okay.
MR. PETROCELLI: I want to take up some
matters, if it please the Court.
THE COURT: It doesn't, but go ahead.
(Laughter.)
MR. PETROCELLI: Okay. I had a feeling you
were going to say that.
Plaintiff Goldman is going to, in order
to correct and conform the pleadings in this case, and
for the record, withdraw certain allegations of the
first amended complaint. And I'd like, for the
record, state what those are.
On page 4, paragraph 15, we withdraw the
words "negligently" on line 12, and "carelessly" on
line 13, and "negligently" on line 15.
We withdraw paragraph 16 in its entirety.
We withdraw the words "negligently" on
line 24 of page 7, "carelessly" on line 25, and
"negligently" on line 27.
We withdraw all of paragraph 30 on
page 8.
Our theory of the case is that these
deaths were caused willfully and maliciously. And for
that reason, we would like to conform the pleadings,
Your Honor.
MR. BAKER: Are they dismissing the negligence
claim? Is that what they're doing?
MR. PETROCELLI: We're dismissing all
allegations of negligence. There isn't a separate
cause of action named negligence, nor do we have any
negligence jury instruction.
MR. BAKER: Well, then, okay.
THE COURT: Okay.
MR. PETROCELLI: Also, Your Honor, we need to
revisit the issue of whether or not -- whether the
defense will be able to argue planting of particular
items of evidence.
Your Honor issued orders at the beginning
of the trial that they were precluded from arguing
that certain items of evidence were planted, unless
they were to produce some additional evidence in the
course of the trial.
The Court's rulings, back on
October 11, 1996, were that, based on all the
discovery elicited, and based on papers filed for and
against the motions for preclusion, the defense could
not contend that the blood at Bundy, the knit cap at
Bundy, and the glove at Bundy were planted, and could
not contend that the Rockingham blood was planted.
And in the course of this trial, there
has been zero evidence in addition to, or other than
what was contained in the interrogatory answers, that
these items were planted. None. They have never
identified a person -- they have never identified
anybody who remotely did anything such as that. And I
don't think that they ought to be able to argue
something to the jury where there is absolutely no
evidence.
This is not a reasonable doubt case; this
is a civil case. They have to have a basis for
putting forth any issue in front of the jury, and they
have no issue; they have no evidence that the blood
was planted.
They concede the results. They've never
said anybody put it there at Bundy or at Rockingham or
in the Bronco. They never said any of that. They
never produced a witness to that effect.
The Court permitted the defense to
contend in opening statement that the Rockingham glove
was planted, though you said it was a close call, and
you would wait to see what developed in the course of
the trial, Your Honor.
At no time in the course of this trial
did the defense ever put on any evidence that there
was ever a second glove at Bundy to plant at
Rockingham. They put on no evidence at all that
anybody -- from which anybody could reasonably infer
that a person or persons planted that glove. Nor did
they identify anybody, Your Honor.
And under People versus Kaurish, as the
Court cited in the earlier rulings they have an
obligation to provide some direct or circumstantial
evidence linking a person or persons to these wrongful
acts.
I don't think that we should let this
jury engage in wide-eyed, speculative theories. When
they're deliberating, Your Honor, they ought to be
confined to the evidence.
There is no evidence in this case that
there was a second glove at Bundy to plant at
Rockingham. They can't say it was planted just
because it was there, which is all they're saying.
They have to have more than that.
And so I would ask that the Court retain
its prior prohibitions made on October 11, and that
they and the Court would augment that ruling by
prohibiting the defense from arguing that the
Rockingham glove was planted.
MR. BAKER: Your Honor, that's pretty
interesting in that they have not produced one bit of
evidence relative to motive and yet they're telling
this jury that there is a motive, and the point is, I
suppose, that we have produced evidence that the hat
was underneath the fence. There was no dirt on it, it
couldn't have got there by itself.
We have produced evidence relative to the
Bundy glove. Mr. Fung got up and said, under oath, in
this courtroom, that he isn't even sure that's the
glove that he picked up at Bundy. They got him to
recant for whatever value that is.
They can argue it. We talked about the
Rockingham glove, the fact that it's back there.
There's no blood around it, there's no insect
activity, it's still wet, it's still
tacky.
If he thinks, that we ought to have
somebody come in this court room and say, "I did it,"
that's not what argument is all about. Argument is to
argue reasonable inferences from the evidence that's
in this courtroom and we're not going to have anybody
to come in here and say that they planted the glove.
Because nobody would ever be crazy enough
to do that and Kaurish, he is taking wild liberties
with Kaurish. Kaurish doesn't say that you can't
argue from the evidence that's in the courtroom, that
this evidence was planted, contaminated or whatever.
It said that they didn't have adequate
evidence to say that a fellow by the name of, what was
it, Jay-Jay Sheffner was the murderer instead of
Mr. Kaurish. That's -- you've always been able to
argue what from reasonable inferences that can be
drawn from the evidence and their case is nothing more
than a circumstantial case.
And they're going to be arguing
inferences from blood. They're going to be arguing
inferences from whatever they think their best
evidence is, pictures, whatever.
That there's an inference from September
of '93 that he had the same -- came home on June 12,
changed into $300 shoes and went over to Bundy,
they're going to argue that, and that's an inference
that the jury can accept or reject and the jury can
accept or reject that the hat was planted because of
its location and didn't have any dirt on it.
And Dr. Warner Spitz was trying to kick
in the air or something, saying how it would get over
there. They can -- we can argue that. I think that's
a reasonable inference.
We can argue, for example, that the
gloves were planted. He says that these gloves are so
tight that they're made skin tight; that they were
skin tight, that's why they didn't fit Mr. Simpson
when he tried them on at the criminal trial. We've
seen the videotape and all of the sudden they fall off
at Bundy and the other one falls off at Rockingham.
I think those arguments are nowhere.
We're entitled to argue the reasonable inferences from
the way this evidence was found, from the way that
this evidence was -- the location of the evidence and
more importantly, I suppose, the way the witnesses
have testified in this case.
That the people who collected it, the
people who were in charge of this crime-scene
investigation in our mind are not to be believed. And
under the BAJI instruction on willful
misrepresentation of the truth, I think it's 2.25,
we're entitled to argue that they can disregard all --
everything those witnesses said. And so I think that
we're entitled to argue our case in its entirety.
THE COURT: Mr. Leonard was waving his arm
around. Were you going to say something?
MR. LEONARD: No, Your Honor, I was -- Nervous
habit.
MR. PETROCELLI: He hasn't said anything at all
about the Rockingham blood and the Bundy blood in his
interrogatory answers, he conceded that there is no
evidence that anyone placed those blood drops there or
planted those blood drops there and that he would not
be making that contention at this trial.
MR. BAKER: I made -- obviously, we've talked
about 47, which is a Bundy blood drop that they're
switched and that --
MR. P. BAKER: We're talking about how the wet
transfers on the bindles on items 47 through 52 when
Mazzola testifies that they were dry.
We talked about how she initialed them
and they're not initialed on the Bundy blood drops.
We're talking about the transfer of the swatches from
47 -- 42 on Rockingham. We talked about the smear if
that happened, how could that happen that Parks, Kato
and Simpson go back walking around the foyer.
THE COURT: I don't know where you're directing
your argument.
MR. P. BAKER: To what Mr. Petrocelli said on
the record. I wanted to address that.
THE COURT: About?
MR. P. BAKER: The Rockingham drops and the
Bundy drops.
MR. PETROCELLI: Now I'm even more baffled
because their prior position in response to our
motions for preclusion were that they were not
contending that those drops at Bundy or at Rockingham
were planted by anyone.
MR. P. BAKER: We're saying that the Rockingham
or the Bundy drops, the swatches were -- they go from
being initialed and dry, to wet and not initialed.
MR. BAKER: We're saying to the jury distrust
every bit of evidence in this case because if you
can't trust the messenger, you can't trust the
message. That's what our argument is in this case.
We're entitled to give that argument.
MR. P. BAKER: In this case, they're suing us
for money. We want to give the defense and let the
jury decide. It goes to weight. They have the
decision, if they want the money, we want the decision
to be allowed by the jury.
THE COURT: Anything else?
MR. PETROCELLI: No, Your Honor. You have to
have some factual basis. I want to argue a lot of
things, Your Honor, but that's not the law, what your
desire is, it's what the evidence is and now we've had
a lengthy trial and they have struck out in trying to
prove any of these -- any of these things, Your Honor.
MR. BAKER: I know you told the media that, now
it's time to let the jury make the decision.
THE COURT: Mr. Baker, to me, don't argue to
him.
MR. PETROCELLI: I'm not making a decision
here.
THE COURT: Don't argue to him, argue to me.
(Indicating to Mr. Petrocelli)
(Laughter.)
MR. BAKER: We have wide latitude in final
argument, the Court is well aware of that.
THE COURT: Everybody finished?
MR. BAKER: Yes.
THE COURT: All right. I'm not the jury and I
don't intend to make a determination as to the -- The
significance or lack, thereof. The various pieces of
evidence that has been alluded to. I only will rule
that based upon the evidence that we have received in
this trial, I will permit the defense to argue
planting evidence.
MR. BAKER: Thank you, Your Honor.
MR. GELBLUM: Your Honor, one more thing.
THE COURT: Yeah.
MR. GELBLUM: We made a motion which you
granted before the trial started, compelling the
defendant to produce various documents including
updated financial information. We never got it. We'd
like it through December 31, would be a convenient
time. We'd like it on Monday or Tuesday.
MR. BAKER: I can't make any representations.
I'm not an accountant. I don't know what information
is being provided.
MR. GELBLUM: Your Honor, you made an order
four months ago for them to produce it and they've
never given it to us. We may have a punitive damages
case to put on week after next.
THE COURT: Let me talk to counsel in chambers.
THE CLERK: Can we put something on the record
real quick? Please.
THE COURT: All right.
THE CLERK: Thank you. I think that
defendant -- plaintiffs' withdrawing exhibits 2287,
2288 and 2289, each previously marked for I.D. only.
Steve took them this morning. They were just
stipulated from Phil.
(The instrument herein referred to
as Plaintiffs'Exhibit 2287 was
withdrawn.)
(The instrument herein referred to
as Plaintiffs'Exhibit 2288 was
withdrawn.)
(The instrument herein referred to
as Plaintiffs'Exhibit 2289 was
withdrawn.)
MR. BAKER: What are they?
THE CLERK: They're large boards.
MR. GELBLUM: The large ones of the Scull
photos.
THE CLERK: Defendants have stipulated, from
Phil Baker, they're -- defendants may withdraw 2359,
2360, 2365, 2366, 2368, 2369, all to be returned on
Tuesday. Phil Baker has requested to withdraw exhibit
2040. The correct exhibit was already received in
evidence.
(The instrument herein referred to
as Defendant's Exhibit No. 2359
was withdrawn.)
(The instrument herein referred to
as Defendant's Exhibit No. 2360
was withdrawn.)
(The instrument herein referred to
as Defendant's Exhibit No. 2365
was withdrawn.)
(The instrument herein referred to
as Defendant's Exhibit 2366 was
withdrawn.)
(The instrument herein referred to
as Defendant's Exhibit No. 2368
was withdrawn.)
(The instrument herein referred to
as Defendant's Exhibit No. 2369
was withdrawn.)
(The instrument herein referred to
as Defendant's Exhibit No. 2040
was withdrawn.)
MR. P. BAKER: And the defense.
THE CLERK: Defense objects to exhibit 1973,
which is up here.
MR. P. BAKER: The basis for the objection is
that that was an objection made during the testimony
of Dr. Spitz regarding other photographs not relevant
to the scene. It was a stain and subsequently moved
in with the litany of exhibits.
THE COURT: Excluded.
(The instrument herein referred to
as Plaintiffs'Exhibit 1973 was
withdrawn.)
(At 4:15 P.M. an adjournment was taken
until Tuesday, January 21, 1997 at 8:30
A.M.)
