SHARON RUFO, ET AL.,
ORENTHAL JAMES SIMPSON, ET AL.,
|FOR THE PLAINTIFFS:||Daniel M. Petrocelli, ESQ.,|
Thomas Lambert, ESQ.,
Peter Gelblum, ESQ., and
Edward Medvene, ESQ.,
John Quinlan Kelly, ESQ. (Goldman)
Michael A. Brewer, ESQ. (Estate of Nicole Brown Simpson)
Paul F. Callan, ESQ. (Rufo)
|FOR THE DEFENDANTS:||Robert C. Baker, ESQ.,|
Melissa Bluestein, ESQ.,
Philip Baker, ESQ.
Daniel Leonard, ESQ.
Robert D. Blasier, ESQ.
(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.
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:
For the purposes of these instructions I will sometimes identify the various parties as follows:
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:
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.
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:
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.
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:
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:
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.
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?
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.
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)
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.
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.
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.)