NEWS ANALYSIS : Reform of Evidence Rules Sparks Legal Free-for-All

So, what’s all the shouting about this time?

Veteran prosecutor William Hodgman accuses O.J. Simpson’s defense team of the most flagrant abuse of legal ethics “in the history of American jurisprudence.” Johnnie L. Cochran Jr., Simpson’s lead attorney, charges that prosecutors are trying to “shackle” him and deny his client a fair hearing.

It is all about something called “reciprocal discovery,” a legal revolution launched four years ago when California voters approved Proposition 115, the so-called Crime Victims Justice Reform Act. That initiative essentially rewrote the California criminal code and set off a kind of legal guerrilla war that still is being waged in courtrooms up and down the state.

The new law compels defense lawyers--who previously were not required to reveal anything of their case in advance--to inform the prosecution of all the witnesses and experts they intend to call at trial, as well as the reports and physical evidence they intend to introduce as evidence. Previously, only the state was obliged to reveal its case before opening statements.

The 4-year-old measure continues to provoke courtroom confrontations.

“Pretty uniformly, defense counsel have been using their wit and imagination to evade the spirit of the law without getting too crossways with a judge,” said former Los Angeles County Dist. Atty. Ira Reiner, who strongly supported Proposition 115.

Prosecutors in the Simpson case believed that such an evasion was under way this week. That is why they reacted with such vehemence when Cochran revealed during his opening statements that the defense intends to call more than a dozen witnesses and introduce additional evidence of which the prosecution had no previous notice.

*

Defense attorney Carl Douglas attributed the omission to miscommunication within the defense team. But he also acknowledged that he had deliberately avoided preparing formal witness statements after talking to some people because he knew that if he did, those statements would have to be turned over to the prosecution. Douglas said: “Defense lawyers are continuing to wrestle with the obligations of that law (115) . . . which we feel is unjust. . . .”

Prosecutor Christopher Darden wasn’t buying it and suggested that the defense conduct was so outrageous it may have violated a California Rule of Professional Conduct that states that a lawyer “shall not suppress any evidence” that the attorney or client has a legal obligation to reveal or produce.

Darden’s co-counsel Marcia Clark was more pointed: the defense had engaged in an elaborate “shell game.”

As the skirmish indicates, the transition to the new system of reciprocal discovery is still rocky. “From 1850 until 1990,” said San Diego appellate lawyer Charles Sevilla, “there was no obligation to turn anything over. Many defense attorneys have considered what’s happened since 115 unconstitutional.”

Los Angeles defense lawyer Gerald L. Chaleff said such lingering reservations probably were at work in this week’s events: “Proposition 115 created such a departure from what the law used to be that it is difficult for a lot of defense lawyers to adapt to the rules. They’re just not comfortable with them; they’re not part of their instincts.”

Deputy Dist. Atty. Sterling Norris, who helped draft Proposition 115’s discovery provisions, sees “an ongoing problem with 115 that can’t be gotten around. It occurs when a defense attorney says, ‘I haven’t decided which witnesses to put on; it depends on the prosecution’s case.’ Sometimes they’re just sandbagging the prosecutor. Sometimes they’re acting in good faith. Proposition 115 doesn’t give the answer to what should happen then, so it’s open to judicial discretion.”

Clearly, for most defense attorneys, reciprocal discovery presents philosophical and practical difficulties. San Diego defense lawyer Elizabeth Semel summarizes the former this way:

“I’ve been practicing since 1975 and, to me, reciprocal discovery is outrageous. The whole impulse behind its adoption was the elimination of what Proposition 115’s proponents called ‘trial by ambush.’ But there’s an underlying fallacy in that reasoning. There’s nothing in the American system of jurisprudence that says the prosecution’s job should be easy. In fact, the opposite is true. It is an unequal system by its fundamental premise in that the defense has nothing to prove and the prosecution has everything to prove. By adopting this discovery rule, we’ve undermined a bedrock presumption of our criminal justice system.”

That, of course, is what this week’s fight in the Simpson case is essentially about. To Loyola Law School professor Laurie Levenson, a former federal prosecutor, “the defense lawyers have revealed that they have flagrantly and unabashedly violated Judge Ito’s discovery orders to gain a tactical advantage in opening statements at trial. Such conduct is not only outrageous, it also is unethical.

“Judge Ito must do something to impress on the defense that the court’s rules cannot be flagrantly violated without serious repercussions to the offending party.”

The California Penal Code provides for sanctions against anyone who violates discovery orders.

Ito has broad discretion to impose sanctions. He could prohibit a witness from testifying, though the prosecution did not request that Thursday. He also could require immediate disclosure, convene contempt proceedings, delay testimony, continue the trial, tell the jury about the improper behavior or strike comments from the opening statement.

Ito even could allow prosecutors to reopen their opening statement, which he signaled he may do.

At its most extreme, the law allows him to declare a mistrial. That is highly unlikely in the Simpson case, however, because a jury has been impaneled and no retrial would be constitutionally possible because of provisions against double jeopardy.

“Talk about a judge walking on thin ice,” Reiner says. “You have conduct by the attorney that the court wants to punish. But if you exclude relevant exculpatory evidence, you’re punishing the defendant. Almost every time that would be reversible error because you’re punishing the wrong person.”

Harry I. Subin, a professor of legal ethics at New York University, said: “It’s a fine line between the tactical things that happen in the real world of the criminal courts and what one would call unethical behavior.”

Los Angeles defense attorney Jill Lansing believes the defense explanation “that this is a screw-up.” That is because “these witnesses are potentially so important that hiding them (from prosecutors) is too big a risk to take, if it means exclusion. On the other hand, the prosecution is in a difficult position because if they ask for and get exclusion, they may be in the position of winning a worthless conviction since there’s a chance it would be overturned on appeal.”

That prosecutorial dilemma also may explain why the prosecutors appeared so shaken by this week’s turn of events.

As Reiner sees it, “The D.A.’s office has a lot of confidence in their evidence, but they are very nervous about their ability to get a conviction.”