CA vs. Spector – Moore Arguing & “Free OJ”
Posted by thedarwinexception on September 19, 2007
So OJ was arraigned this morning on his 10 felony and one gross misdemeanor charges – in front of Judge Joe Bonaventure Jr – his father was the judge in the Binion case. Joe Jr. is a massive guy with a long black ponytail and fu Manchu beard who looks like he’d be more a home in a wrestling ring than in a courtroom. I like him. He looks fair and friendly.
He asks for presentation of counsel, and Yale Galanter gets up and introduces himself and Grassso, indicating that they are the ONLY two counsel of record, perhaps a little dig to the fact that on Greta Van Susteren last night she interviewed someone who said that they were OJ’s counsel, and who elaborated at length with Greta about the facts of the case, the evidence and what OJ supposedly told him. Which immediately made me doubt his veracity, and why Greta continued to give him airtime and credence was beyond me.
But Galanter make sit crystal clear that the parties in court today with OJ are the only counsel OJ has in this matter.
The judge then announces to OJ what the charges are that OJ is facing and asks if he understands them.
1 count conspiracy to commit a crime
1 count conspiracy to commit kidnapping
1 count conspiracy to commit robbery
1 count burglary while in the possession of a deadly weapon
2 counts first degree kidnapping with use of a deadly weapon
2 counts robbery with use of a deadly weapon
2 counts assault with a deadly weapon
1 count coercion with use of a deadly weapon
OJ says he understands the charges against him, which is amazing, since I’m not even quite sure how the state arrived at some of these charges, since they seem to overreach and overlap each other, based on what facts we know.
The judge then addresses the issue of bail, and the prosecutor gets up to announce that the state and the defense have reached a stipulation in this case. Simpson will be granted bail in the amount of $125, 000, and will be required to relinquish his passport and agree to a no contact order between himself, the victims, the witnesses and any others involved in this case. He will be allowed to travel within the US as might be necessary.
The judge seems a little reluctant to grant bail based on the kidnapping with a deadly weapon charge, which he says is a no bail hold, but I don’t think that’s right, I think any charge besides capital murder is eligible for bail, but the judge says that he will honor and recognize the stipulation between the parties, and he grants the bail.
They then hold the matter over to the third week of October, at which time there will be a status hearing.
OJ was quite stone faced throughout the hearing, only really reacting when the judge read the kidnapping charge, maybe he knew that this charge carries a life sentence. And I wonder if OJ knows that one of the victims, Bruce Fromong, is in the hospital after suffering a massive heart attack, and that he’s listed in critical condition,. And I really wonder if this guy dying would add a murder charge to the long list of charges already leveled against OJ.
Yale Galanter then gave a press conference, in which he said all the things you would expect “OJ won’t be giving interviews”, “The bail was reasonable – he’s not a flight risk – where could he go?”, “I am OJ’s lawyer, despite the yahoo’s you see on TV claiming to be OJ’s attorney, you all know I am his attorney, how the media can give these people credence is beyond me.”
Back in LA in the Spector case, the attorneys are arguing for or against the inclusion of lesser included charges of manslaughter 7 days after the jury has been deliberating and after they have reached an impasse.
The judge, who is the one who brought this whole thing up yesterday, is now backing off the Lee case and tells the attorneys that he is not as sure as he once was that this case applies here. He also says that he has re-read special instruction 3 and is now quite convinced that it is a misstatement of the law, although it may be a correct statement of the prosecution’s theory. He wants to get into that today, as well. The third thing he wants to decide is the Moore law, and whether or not that should be read to the jury, and what modifications, if any, each side would want.
Dixon then gets up and asks what the jury is doing at this point, because if it is decided that Lee does apply and manslaughter should be included as a lesser charge, and the jury in the meantime, comes back with a verdict, well, what then?
The judge says that the jury is not deliberating at this point, that they are awaiting further instruction from the court.
Brunon gets up to argue against the inclusion of the manslaughter instructions to the judge. He bases his argument on the brief written by Riordan, which basically argues three points of law, one, that the defense was not given notice that these charges would be included or that this theory would be argued to the jury. Brunon says that the defense would have certainly done things differently if they had known that this would be a lesser, included charge.
Number two – the case at hand does not support the charge of involuntary manslaughter, and does not have the same elements of the crime as Lee had, therefore Lee does not apply. The Lee case outlined that there were two available theories of the case, that the defendant was incompetent due to gross intoxication, and that he was brandishing the weapon which was gross negligence. Neither of those situations apply here. Spector was not grossly intoxicated, and there’s no evidence to suggest he was brandishing the weapon. Brunon points out to the judge that the judge himself, during the course of jury instructions, had said that he had thought of including lesser charges and had rejected that idea because he did not feel the facts in the case supported it. Brunon says that the court was right then, and that the judge should not second guess at this point.
Brunon then points out number three on their list – that there is clear case law from the Supreme Court which would attach reversible error were the judge to reopen the closing arguments after deliberations have started because this would be undue coercion of the jury – in essence, telling them “OK, you can’t find him guilty on the original charges, how about these?”
Alan Jackson argues for the state for the inclusion of the lesser included charges. He points out to the judge that it is impossible for Mr. Brunon to say that there was no evidence that Spector was brandishing a weapon that evening. Jackson says that the mere fact of taking the weapon out of the drawer meets the definition of brandishing, and they do have circumstantial evidence of brandishing the weapon through the 1101B witnesses – that’s what they were there to prove, Spector’s motive, which has been defined again and again by the court as the emotional state Spector gets in in certain situations and how he reacts to them, and the 1101B witnesses prove that his normal course of action is to brandish a weapon. Just because the state argued the higher charges, that doesn’t mean the lower ones are not included – it just means that the lower charges are subsumed by the higher. Jackson says that this is the argument that the dissenting judge on the Lee case made in her opinion, that a reasonable jury would have to believe that the conduct went there – and beyond. Which is the same theory the state was operating under in this case – they always believed Spector brandished the gun, but they also always believed that the conduct went beyond that. Jackson says it’s the states position that you can’t assault someone with a gun without brandishing that gun.
Which leads into the first of the Defense’s points -t hat they weren’t given proper notice that this was the state’s theory – this has always been the state’s position, nothing has changed, and even if arguments were to be re-opened, Jackson says he wouldn’t change his argument or his theory one bit – he still would argue the same thing – it’s the act of pulling out the gun that is the brandishing – and the State believes he did that and more.
Jackson says he also doesn’t believe that the charges can’t be added without it being reversible error – he says that the State can amend or withdraw or add charges any time up until the jury comes back with a verdict. Jackson says the only difference between the two charges is the single element of conscious disregard for human life. That this doesn’t change the facts of the case or the way either side would present the evidence.
The Judge then asks Jackson, “well, if the facts are so clear and the evidence is there, why didn’t you ask for Involuntary Manslaughter to be a lesser included from the beginning?”
Jackson responds that this was purely a tactical decision on the part of the state, and that without the benefit of knowing the case law set forth in Lee, the state didn’t feel that they had to include the lesser charges, now, after reading Lee, they feel that they do. Jackson points out, though, that the defense didn’t ask for the lesser included charges for their own tactical reasons, but they were asked and they knew that these charges were there, and Riordan even asked the court to include them himself after the animation was played in the rebuttal argument of the state. So it is disingenuous for them to now argue that they weren’t “warned” of these charges, when they themselves were asking for them earlier.
The judge says that his concern is that if there is a verdict and the court does not instruct on the lesser included charges, that this might be error. And the defense concedes that they are not asking for the charges, that they don’t think the facts support it, and that they don’t agree with it, therefore it cannot be an issue for appeal on their part.
Jackson then says no, that if the charge is sua sponte, then even over everyone’s objections that it would still be reversible error, and the two cases that the defense cited, Stouter and Jennings, are not applicable as to giving new charges after deliberations begin, because that case dealt with changing the charges at the jury’s request after a dialogue ensued between the judge and jury. There has been no dialogue here, and the judge is not instructing on lessers because the jury has requested difference charges.
Brunon responds to Jackson’s arguments by saying that it’s all very well and good that prosecution wouldn’t have changed anything in their case if the lessers had been included from the beginning, but Jackson can’t say that the defense wouldn’t have changed things. And Brunon also points out that the prosecution cannot rely on the 1101B witnesses testimony as circumstantial evidence of brandishing, that this would imply he was using them as pattern witnesses, which he is not allowed to do. And that there’s no evidence of gross intoxication, so Lee doesn’t apply.
Roger Rosen then stands to tell the court that the state clearly wants this charge to be given to the jury so that the jury can reach a compromise verdict, and that’s not fair for the defendant and improper.
Brunon then points out to the court that they had not found a single case wherein the judge instructed the jury on new charges AFTER the jury had begun deliberations and AFTER they had reached an impasse.
The judge then rules on the issue, saying that he realizes that he is the one that came forth with the Lee case, but that he is just not convinced it applies here. The judge says that in light of the cases of Stouter and Jennings, that although everyone would like this case to be resolved, that after the jury has arrived at an impasse, to give them a new offense to consider is, in essence, saying to them “If you can’t find him guilty on the other charges, try these”. It’s not the charge the judge is concerned about, or the words, it’s the timing. The judge feels that to give the jury the new charge would be indicating to them that he wanted them to come to a verdict, and that it would be coercive.
The judge also says that he is not concerned that not giving the new charges is reversible error, since it is invited error, by the defenses’ objection and refusal to the charges.
The judge then moves on to special instruction number 3, the instruction one of the jurors expressed confusion over yesterday when the judge polled the jury for their thoughts.
Special instruction 3 reads as follows:
“As I have instructed you, to be guilty of the crime of which the defendant is accused, second degree murder, the defendant must have committed an act that caused the death of Lana Clarkson. It is the prosecution’s contention that the act committed by the defendant that caused the death of Ms. Clarkson was (to) point a gun at her, which resulted in the gun entering Ms. Clarkson’s mouth while in Mr. Spector’s hand. The prosecution bears the burden of proving that defendant Spector committed that act. If you do not find that the prosecution has proved beyond a reasonable doubt that the defendant committed that act, you must return a verdict of not guilty.”
The judge says that this is not a correct statement of the law, even though it may be a correct statement of the people’s theory. The judge says that there are other ways you can get to Second Degree Murder besides the ones outlined in the instruction. He says that they need to decide if this instruction should be modified or withdrawn completely.
Riordan, via speakerphone, for the defense says that the defense continues to believe that this instruction was completely appropriate. The Supreme Court has ruled that the defendant is entitled to a pinpoint instruction that outlines reasonable doubt as it relates to the prosecution’s theory, and this has been the prosecution’s theory from the grand jury proceedings all the way up to the animations in their rebuttal statement in this trial – that Spector’s hand was on the gun and that he put the gun in Clarkson’s mouth and he pulled the trigger. Therefore the defense believes that he special instruction is permissible and accurate. After a strong deadlock has been declared, the judge cannot amend the instructions – the judge can’t say to the jury that although some of you have relied on this instruction, I am now telling you that I disapprove of the position you are taking and therefore you should retreat from it.
The Judge tells Riordan that there is certainly case law that would support a judge withdrawing an instruction that a jury is confused by if that instruction incorrectly states the law, as he believes this instruction does.
Brunon then offers that the record should be clear that one juror made an ambiguous comment about the special instruction -that none of the others said they needed elaboration, and that although the court has said that it may be too narrow under the law – when you tailor an instruction to the facts of the case, as you would do in any Sears instruction, well, of course it is going to be narrow, and that with the evidence presented in this case, there’s no other way to get to Second Degree murder than what the state has argued. What other theory is consistent with w\hat they presented and argued and still rises to the level of murder in the second degree?
Jackson then tells the court that they objected to this instruction from the beginning, in all it’s many forms that were presented by Riordan. Jackson says that the state’s theory s just that – a theory, and this doesn’t mean that any or all of the jurors must adopt that theory to find the defendant guilty – this instruction pigeonholes the prosecution into one way the crime could have happened and that’s it – and it makes the state prove it beyond a reasonable doubt – which is not proper.
The judge says that he needs to know from the jurors exactly what their problem is with this instruction, so they bring the jurors back in to ask them.
Juror number 10, the foreman, tells the judge that “taking that instruction by itself is where some of the jurors have had a problem, standing on that alone rather than the total picture”.
The judge asks if any other jurors agree with this, and jurors number 11, 8 and 5 agree with the foreman.
Juror number 2 offers that some of the jurors have questions about whether every element of that instruction must be proved beyond a reasonable doubt.
Juror number 6 says that part of their challenge has been determining the weight of the elements, of the totality of the elements and how to weigh each element, if one is more important than the other.
The foreman seems to agree with this assessment, and tries to clarify the issue, saying that as a jury, the agreement on the totality of the facts and what is drawn from the totality – well, different jurors give different weights to certain facts.
Juror number 12 asks about a different issue, wanting to know if it would be possible to actually see the items of clothing – not to handle them, but just to see them, that the pictures aren’t really as helpful as the actual articles would be.
Juror number 9 brings up the same issue he had spoken of yesterday – the difference between “reasonable doubt” and “just doubt” – he says that it’s pretty clear to some of the jurors, and not to others – he said that they need clarification of this issue, and that the judge re-reading the instruction to them might help.
The foreman again interjects and says that it’s the reasonableness that needs clarification – and he wants to know if it is appropriate for one juror to feel something is reasonable and one juror to think it’s not. Is that one juror unreasonable?
Juror number 11 gets back to to special instruction 3 and wants to know if they should base their decision on the wording of that instruction, or if they need to take the instructions as a whole.
The judge thanks them all for their thoughts and sends them out.
The judge tells the attorney’s that he is going to re-read the reasonable doubt instruction to the jurors as they requested, and that he is probably going to give the Moore instruction. Jackson then gives the judge the state’s proposed Moore instruction.
The standard Moore instruction is this:
It has been my experience on more than one occasion that a jury which initially reported that it was unable to reach a verdict was ultimately able to arrive at a verdict. To assist you in your further deliberations, I’m going to further instruct you as follows: Your goal as jurors should be to reach a fair and impartial verdict, if you are able to do so based solely on the evidence presented and without regard for the consequences of your verdict regardless of how long it takes to do so.
“It is your duty as jurors to carefully consider, weigh and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence, and to listen and consider the views of your fellow jurors. In the course of your further deliberations, you should not hesitate to re-examine your own views or to request your fellow jurors to re-examine theirs.
“You should not hesitate to change a view you once held if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they are wrong. “Fair and effective jury deliberations require a frank and forthright exchange of views. As I previously instructed you, each of you must decide the case for yourself, and you should do so only after a full and complete consideration of all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict, if you can do so without violence to your individual judgment.
“Both the People and the defense are entitled to the individual judgment of each juror. As I previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate. May I suggest that since you’ve been unable to arrive at a verdict using the methods that you have chosen, that you consider to change the methods you have been following, at least temporarily and try new methods.
“For example? You may wish to consider having different jurors lead the discussions for a period of time. You may wish to experiment with reverse role-playing by having those on one side of the issue present and argue the other side’s positions and vice versa. This might enable you to better understand the other’s positions.
“By suggesting you should consider changes in your methods of deliberations, I want to stress that I am not dictating or instructing you as to how to conduct your deliberations. I merely find that you may find it productive to make sure each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors.
You’re ordered to continue your deliberations at this time. If you have other questions, concerns, requests or any communications you desire to report to me, please put those in writing on the form my bailiff will provide you. Have them signed and dated by your foreperson or one or more of the other jurors, and then notify the deputy.”
Riordan, through the speakerphone, reminds the court that the facts in Moore were that the jury had only been deliberating one day and a division had not been revealed to the court. The court could have a coercive effect here, that the Moore instruction has never been given after 5 and 1/2 days of deliberations.
Riordan then asks the judge if the question is still to be decided about special instruction 3 and whether the court will withdraw that instruction, and the judge says yes, this is still an open issue.
Riordan says to the court that the jury has deliberated for a week now with the instruction. He offers that there is case law that says instructions are to be set before deliberations, and even more troubling is that the defense relied on special instruction three in the arguments. Riordan says that if the judge withdraws now, then 1.) the judge is sending a message to the members of the jury that have relied on this instruction that they are wrong, and 2.) the point of withdrawing it is to say to the jury that although the prosecution relied on this theory of the case, I’m now telling you that there are other scenarios that might support a murder conviction.
Alan Jackson stands and tells the court that Riordan has said it exactly – that this instruction pigeonholes the prosecution into one theory and requires the jury to find something that they are not legally required to find – and that the state has drafted a modification.
The judge says he won’t need the modification, that he has re-read this instruction and that it is clear to him why the defense wanted this instruction so badly, and why they fought so hard toy get it in. It is not the law. The last sentence especially, that is absolutely in error, and the judge says he can understand why the jury is confused. The instruction is withdrawn and when he tells the jurors this, he will only say to them that this point of the law is covered better in other instructions, and if necessary, both sides will have the opportunity to reargue in front of the jury based on this instruction or the lack of it.
The judge then asks the defense if they wish to re-argue in light of Special instruction 3 being withdrawn. The defense offers that they would first like to know how the judge is going to rule on their motion of reading the unanimity instruction to the jury.
The judge realizes that there is going to be more argument, and brings in the jurors and sends them home.
And the unanimity instruction that the defense wants the judge to read to the jury states as follows:
The defendant is charged with Second Degree Murder in Count 1. The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed.
The judge cites case law to the court including People vs Rousseau. The judge says that the key to deciding whether or not to give the unanimity instruction to the jury is whether or not there must be unanimity in how the crime was committed. The judge does not feel that this is required in this case. not all of the jurors have to agree on how it happened. So he denies the motion.
The court then goes down through the list of the 8 comments and questions the jury had. They decide that several of them will be covered by the Moore instruction, and that others are no longer applicable based ont eh withdrawal of Special Instruction number 3.
The judge says that he will instruct the jury that all the instructions are to be given equal weight, that the clothing items were not presented as evidence and therefore are not available to them, and that he will re-read the reasonable doubt instruction.
They then take a break so that the defense can strategize about the re-opening of closing arguments.
When they come back Riordan makes a long impassioned speech about the defense’s adamant opposition tot he reopening of arguments. Mostly based on the fact that although the judge does not want to bring special attention to the fact that he is withdrawing special instruction 3, that if he re-opens arguments and allows both sides to argue again, that it will be bringing special attention to it, and besides, then the state can point out this withdrawal in their argument and tell the jury that they can no longer rely on it. Riordan says that the state just wants the chance to reargue with all the new information they have gleaned from the jury in the last couple of days, and the defense objects.
The judge then asks if they are sure, and if they are waiving their rights on this issue, and Riordan says yes, that they have made their mistrial motions on the fact of special instruction 3 being withdrawn, and that they think that reopening arguments would just compound this error.
Jackson says that the state is fine with just the withdrawal of special instruction 3 – they don’t oppose not opening arguments.
The judge then asks for arguments on the Moore instruction, and Brunon says that the defense doesn’t like the part that says “In my experience, on more than one occasion, that juror have been unable to come to a verdict…” Brunon says that implies familiarity on the part of the judge.
Brunon also objects to the “touchy feely” role playing that is suggested in the second to last paragraph, and the judge says “Well, Mr. Brunon, this *is* California”.
And, of course, who could forget that, really, when we have another celebrity sitting at a defense table, thisclose to getting away with murder.
The jury will be back tomorrow for the new instructions. And hopefully some fresh deliberations.