Disorder in the Court : THE LAW : A Case of ‘Trial by Ambush’

The case of People vs. O.J. Simpson has been in Superior Court since July 22. On 25 occasions, fights have broken out over “reciprocal discovery”--the exchange of evidence and information between the prosecution and the defense. But the rancor between the two sides over this issue was extraordinary during last week’s opening statements in the double-murder trial of Nicole Brown Simpson and Ronald Lyle Goldman.

Deputy Dist. Atty. William Hodgman accused Simpson’s defense team of a flagrant abuse of legal ethics when Johnnie L. Cochran Jr., Simpson’s lead attorney, disclosed a list of defense witnesses during his opening statement that had not been turned over to the prosecution. But blame for this and the other fights lies with the California District Attorneys Assn., which successfully urged voters to pass the Crime Victims Justice Reform Act, more popularly known as the “Speedy Trial Initiative.”

Like the ditty about the Holy Roman Empire--it was neither “Holy” nor “Roman” nor an “Empire”--the Speedy Trial Initiative, Proposition 115, has not speeded up justice, improved chances for a fair trial or emboldened judges to take more initiative.

There is another reason the prosecution is quick to cry “foul” in the Simpson trial. It is simply not accustomed to facing a defense whose investigatory resources are as extensive, and its investigators as thorough, as those of the Simpson team.

In any case, the prosecutor-drafted law, passed in 1990, is so poorly worded that most lawyers are obliged to guess what must be turned over and when. Yet, there is a prosecutorial strategy in such fuzziness. As in the Simpson case, the prosecution has been holding back on strict discovery compliance because the faster you turn documents over, the more time your opponent has to prepare and investigate. Since such immediate compliance might reveal that your evidence is dubious, delay in turning over anything to the defense until the last minute is quite tempting.

Naturally, Proposition 115 removed all realistic sanctions against the prosecution for failing to turn over evidence in a timely manner. As for defense lawyers who engage in identical conduct, as did Cochran, Draconian sanctions tend to be sure and swift.

In short, Proposition 115 turned the constitutional standard regarding discovery on its head. Before its passage, the prosecution was under a constitutional compulsion not to sandbag the defense by withholding evidence. Now, Hodgman’s protestations notwithstanding, it does pretty much as it pleases.

The U.S. Supreme Court has looked upon prosecutorial trial by ambush with disfavor. In Giles vs. Maryland, the court ruled: “The state’s obligation is not to convict, but to see that, so far as possible, truth emerges. This is also the ultimate statement of its responsibility to provide a fair trial under the due-process clause of the 14th Amendment. No respectable interest of the state is served by its concealment of information which is material, generously conceived, to the case, including all possible defenses.”

Only two discovery cases have reached the state Supreme Court since Proposition 115 passed. (None has reached the federal courts.) In the first, Izazaga vs. Superior Court, the defense contended that the initiative violated the Fifth Amendment’s protection against self-incrimination and due process. In the court’s ruling, Chief Justice Malcolm L. Lucas wrote: “In reviewing these new (115) provisions, it is clear that the scheme is carefully hedged with reciprocal duties requiring state disclosure to the defendant.” Whatever the chief justice may have thought, post-115 discovery fights are now “carefully hedged” by the legal equivalent of panzer blitzkriegs leveling hedge rows up and down California.

In no place is this better demonstrated than in the Simpson case.

Even before Hodgman protested Cochran’s surprise witness list, the prosecution cried “foul” when the defense revealed that it had obtained media outtakes showing what it considered to be heavy-footed police investigators tromping through the murder scene. One of the themes of Simpson’s defense, as outlined in Cochran’s opening statement, will be that the murder investigation was incompetently carried out. The outtakes, which were not turned over to the prosecution, were evidence for this contention.

But consider: Had the tapes been turned over, would they have assisted the prosecution in covering up the alleged ineptitude at the crime scene? Is that the prosecution’s objective?

At this juncture in the Simpson trial, the defense is in a far better position to complain than the prosecution. Under the “carefully hedged” discovery scheme, Deputy Dist. Atty. Marcia R. Clark and her colleagues were required to complete transfer of all relevant materials and witness lists 30 days before trial. Under Proposition 115, the defense is not obliged to turn over any information until the prosecution announces that it has completed discovery compliance and ended its investigation. Since the prosecution refuses to announce an end to its investigation, the defense, technically, has not been obliged to turn over anything.

Prosecutors have created certain de facto “prosecution only” exceptions to the law. Most notorious among them is, “But, your honor, we need it!” Often, this simple plea, in itself, is sufficient to overcome otherwise valid statutory, decisional and constitutional objections from the defense. The criminal bench, which is responsible for protecting the defendant’s rights, needs to be much more aggressive when it comes to punishing malfeasant prosecutors for hiding evidence.

In the absence of such sanctions, more and more deputy D.A.’s in Los Angeles County are developing the unpleasant habit of withholding discovery and ambushing the defense in the middle of trial. Yet, no prosecutor has been found in contempt for withholding evidence, although sanctions against defense lawyers and their clients are common.

Wilbur F. Littlefield, an esteemed former public defender in Los Angeles County, was sentenced to five days in jail for doing what prosecutors do to defense attorneys every day--refusing to turn over evidence. In his appeal, the second discovery case to reach the state Supreme Court, the justices let Littlefield off on a technicality, recognizing perhaps that jailing the public defender of the nation’s most populous county might set off a rebellion of non-compliance by defense lawyers.

Two weeks ago, the court of appeal issued a scathing reversal against the Los Angeles district attorney because a deputy D.A.--the son of a judge, no less--had intentionally withheld evidence that tended to show that Public Defender Nancy Richards’ client was innocent of arson. Will the prosecutor be suspended? Will he be sanctioned or jailed for contempt?

Even a cursory review of the reporters’ transcripts show the insidious practice of hiding, or delaying, the turning over of evidence is happening again in People vs. O.J. Simpson. Yes, the prosecution can show it has turned over 22,000 pages of discovery. Quantity is not quality, however. IBM started delivering trainloads of discovery to the Justice Department when it was sued under antitrust laws. Every time the government finished one load, IBM would deliver another load.

Even now, the prosecution has not completed turning over certain critical DNA discovery to the defense, and even now the district attorney is still adding witnesses to its case, although, by law, the prosecution should have completed its investigation and turned over its discovery 30 days before trial.

The current “good-news, bad news” joke in the Criminal Courts Building is: “The bad news is that my client was just convicted of first-degree murder. But the good news is that the prosecutor has agreed to turn over discovery before sentencing next week.”

Truth or dare, anyone?*