Motion for Mistrial and Dismissal with Prejudice

Guilt Phase

July 29, 2004

JUDGE: Now, the next issue we're going to deal with this morning is the motion filed by Mr. Geragos with respect to the testimony of Detective Brocchini. And, again, that has also been exhaustively briefed by both sides, and the Court has read and considered those. It was the Court's intention, up to about two days ago, to conduct part of this hearing in chambers. But it is sort of beating a dead horse, because all this information about this particular case has been throughout the media, so it would be no big secret. So it would be just an idle act. We're going to do everything out here.

DISTASO: That's fine, judge.

JUDGE: Because it's been all over the newspaper. So you can't make chicken out of fish, I think is the correct -- Mr. Geragos --

GERAGOS: Unless you are Jessica Simpson.

JUDGE: You are the moving party.

GERAGOS: I guess I should start with Hill, because --

JUDGE: With who?

GERAGOS: People versus Hill.

JUDGE: Yes. Okay.

GERAGOS: The prosecution again, in the latest filing, has now once again said that Hill does not stand for the proposition for which we use it. Specifically, Hill does stand for that. Hill was the case where a Deputy DA in Los Angeles was excoriated by the Court in the Hill case by taking judicial notice -- I think it was Footnote 9 of an unpublished decision where she also committed prosecutorial misconduct. And the Court was using that as an example that this is a pattern. And that's precisely what we are doing here in regards to Richardson. There is -- they are asking the Court to take judicial notice of a similar instance where Detective Brocchini in Richardson did exactly what he did here. And, interestingly enough, the prosecution in that case maintained that it was a mere slip of the tongue. And that's, I suppose, what it is here. It's been conceded that there was no mention of duct tape in any of the interviews. It's been conceded that duct tape was mentioned in the opening statement. It's been conceded, I think, that he's -- you have already seen this evidence -- that there was duct tape found on Laci Peterson's remains. And that the only reason that this detective would have injected -- of all the different the myriad of substances or words that he could have used, the only reason that he injected duct tape into this is for one reason, and one reason only, and that was to stir the pot, so to speak, towards my client. The fact of the matter is, that there was no mention of that. Fact of the matter is, is that this particular detective, throughout his testimony -- we have got the incident with the meringue, where he testifies, or then let's it get into an affidavit, that meringue was not on the 24th when, in fact, it was. We have an instance where Peggy O'Donnell's interview gets magically excised from the dictation into the report. And he admits under cross examination that he wasn't even aware where the other reports were at the time that he excised it. He then, combined with that -- with this instance, where -- and I believe he's still vouching, when you put out that information tip that, you know, is that credible, their theory on -- arguably their theory is, look, they didn't pursue this, that shows that he wasn't after the defendant, is completely undercut by the injection of the term "duct tape". So then what do you do? I'm not -- keep on asking for a mistrial. What good is a mistrial going to do, absent a finding by this court, pursuant to Oregon versus Kennedy, that jeopardy has attached. So if the Court's not going to do that, I don't have any desire for a mistrial, if the Court is going to find all that means is we're going to start all over again. That's precisely what Brocchini, I believe, was trying to do. He did not like the way things were going, did not like the fact that he perceived himself to have been embarrassed, and had to admit that he had committed many of these faux pas, for lack of a better term. And the way to do it is the way that he's done at least once before, and that was slip something in that he knows is inappropriate, and then later claim, oops, I didn't know, and slip of the tongue. Interestingly enough, in the Richardson case, he's had the experience, he knows that what happens when he does something like this is, he gets a mistrial. And he knows the Court's going to grant a mistrial. He knows from the Richardson case that the Court is not going to --

JUDGE: He doesn't know that this court is going to grant a mistrial.

GERAGOS: He's hoping. He's hoping. And that's what the hope is. He knows that in another case, where he does a similar stunt, the Court grants a mistrial. He knows that other case then got started all over again. When they started all over again, they got a conviction. And so here we have got the same MO. We have got the same pattern, if you will, by this same detective. And he's banking on the Court either going to grant a mistrial, or let him start all over again. He'll just get up there and say, oh, it was a slip of the tongue. I didn't know. And you can't unring a bell.

JUDGE: Can I ask you a question? As to his motive of trying to engender a mistrial, how would that help the prosecution in any way? Because there is a transcript of the proceedings of what happened in this trial, and he couldn't very well, if he was going to try to change his testimony to patch over what he did, you could impeach him with the testimony at this trial. I don't see what the gain would be.

GERAGOS: By him?

JUDGE: Yeah, or by --

GERAGOS: Judge --

JUDGE: What would be the gain?

GERAGOS: Many, many months ago I accused you of having a child-like naivete.

JUDGE: That you did.

GERAGOS: And I know that you took that to heart.

JUDGE: Yes, I did.

GERAGOS: If you are asking me why Detective Brocchini would want to try to engender a mistrial in this case, that is a childlike naivete in this detective, not knowing that his testimony went south. So --

JUDGE: What would a second trial do? Because how could you patch it up?

GERAGOS: Maybe they think they are going to restructure their -- maybe they are going to start all over again with a different technique. I don't know what they are thinking. All I know is that he's had the experience before, we have got -- he's got the track record. And what is he trying to do here? It puts me on the horns of a dilemma in terms of effective assistance to my client. You ask for a mistrial, give him what he wants, and the Court -- you know, I hesitate to say this, but I don't know that the mother of the judge has been born that's going to grant a motion for mistrial, and impose Oregon V Kennedy sanctions on the prosecution in a high profile capital murder case. I'm not deluding myself.

JUDGE: You don't have a child-like naivete.

GERAGOS: Yes, exactly. I don't have that child-like faith. In fact, I told one of the reporters that if you granted that motion, I'd buy them a 500 series Mercedes. So I don't think that it's -- I'm not under delusion here. But the fact of the matter is, what's my alternative? To put him back on the stand, and then bring that whole matter up again, and ring that bell again, and have him get up there --

JUDGE: That's a decision that --

GERAGOS: No, I think there is --

JUDGE: -- you have to make. Well, we're going to get to that shortly.

GERAGOS: The third issue, or the third alternative is one that the Court can do, and I think that the Court should do, what is appropriate. Mr. Distaso has conceded, as he must, that there is no mention of the duct tape. If that is the case, he has a duty as prosecutor to clear that up. The way that is to be cleared up is not for him to get up there and do it by virtue of direct testimony and ring the bell again. It's for you to give a direction to the jury -- and admonition to the jury should come from you, come from your Honor. And it should say Detective Brocchini misspoke when he said there was duct tape. There was, in fact, never any mention of duct tape. And then you read them 2.21, which materially false, and detail it as to Brocchini, and as to what Brocchini said; and to a fashion an admonition in that way. And I think that that would satisfy -- that would stand muster constitutionally. I think that that's the appropriate thing to do. I don't think that you put a detective on, who's got a history like this one does, and allow him to try and slip something else in once he gets on the stand, or to give the illusion that somehow it was the prosecution who discovered this, and or give sanction to the fact that he gets to go in and now talk about it again, and ring that bell again, which is not what I want to do. I want some kind of a meaningful sanction. It shouldn't be a sanction that ends up boomeranging onto us. We didn't cause this problem, he did, and he should pay the price, and the prosecution should pay the price for it. We didn't do it. They did it. They brought it up, and we brought it to the Court's attention. And I think that a meaningful sanction in this instance would be the admonition, and it should come directly from your Honor, and it should be now. Just as Mr. Distaso argued to your Honor, your Honor did it, in terms of when I was talking about reasonableness of the investigation, and talking about tips. And he asked that your Honor address the jury and give them -- the jury instruction as to, not for the truth, but to the reasonableness of the investigation. I believe and that was a proper reading of the law. Here we have got misconduct, gross negligence at best, intentional, quite possibly. And I don't think that it's beyond the pale here for defendant to ask this court to step in and to be the one who tells this jury that it's not true with a little gravitas and authority.

JUDGE: Mr. Distaso.

DISTASO: I'm going to be brief. I know the Court read all the briefs.

JUDGE: Yes, I have.

DISTASO: I know. This was just a simple mistake. It was nothing intentional. It wasn't even gross negligence. He -- the detective -- you read through the testimony. I know the Court has.

JUDGE: Yes, I have.

DISTASO: He gave a brief summary of the statement. He said, both on direct and under cross examination, that he didn't find the tip credible. It was a simple mistake. If the defense wants to raise it up again, or whatever, the proper sanction would be, or the proper remedy would be to recall the detective and ask him, was there any mention of duct tape in the Aspeitia statement? He's going to say no. I have looked to the transcript. Wrapped the head with plastic and tie something around the neck. Not duct tape around the neck. That would be the proper sanction. The jury has already heard, at least two times that I found, I think there might have been one more, that the detective didn't find it credible. So we're talking, there is certainly no materiality here. It's a tip that the jury knows no one believed. And with that, we'll submit it.

JUDGE: All right. I'm going to go through this. First of all, I believe when we had an in camera hearing. And when let's go back a step further. It's interesting to note that neither side caught the fact that there was a slip of the tongue, or whatever you want to describe it, until next day.

GERAGOS: Judge, that I hate to interrupt, but, as I think the record reflects, I said we caught it that day. I waited for the transcript to come.

JUDGE: I stand corrected.

GERAGOS: I say we caught it that same day. I wanted to be sure.

JUDGE: I stand corrected.

GERAGOS: I wanted to read the transcript as soon as I got it from the court reporter that same day. I filed it the next day.

JUDGE: Then I stand corrected. And I stand -- you did catch it. In reviewing the transcript, however, on redirect the District Attorney never cleared up the issue, neither did defense counsel clear up the issue on redirect. And I can't question why they didn't do that, or why Mr. Geragos decided how he's going to try this case. I can't go into that. I'm going to go through these things each one at a time. I would assume, Mr. Geragos, you are withdrawing your request for mistrial. But, for the record, request for mistrial would be denied, in any event.

GERAGOS: I'm technically not withdrawing it.

JUDGE: You want me to rule on it?

GERAGOS: I want you to rule on -- I want you to rule on the request for a mistrial, but I'm requesting a mistrial with a finding under Oregon V Kennedy that jeopardy has attached. I'm requesting a mistrial so that I can restart this.

JUDGE: Okay. I understand that. All right, I understand. I'm getting to that. So the request for mistrial is denied, and a request for dismissal is also attend. The Court has read and reviewed the transcript. The Court heard the testimony. The Court is of the opinion that this testimony does not reach the level of prejudice in order to justify a mistrial, nor does it warrant a dismissal. The Court further finds that there is no prosecutorial misconduct on this case. There is over 40,000 pages of discovery in this case. And in a case of this length and magnitude, things like this are going to happen. Unfortunately it keeps occurring with the Detective Brocchini. And that's the way it is. But I don't believe that there was any prosecutorial misconduct on this case. Secondly, I did admonish the jury, and also in the moving papers, that Brocchini's testimony was not offered for the truth of the matter asserted. If the defense is so inclined, and the prosecution is so inclined, I would be glad to explain that to the jury again. It's not the Court's intention to state to the jury that there was no mention of duct tape in his testimony, unless it's by stipulation, because the Court then is commenting on the evidence, and I'm disinclined to do that. And 2.21.2 will be given at the end of the trial. And then Mr. Geragos can have at it then. Make his arguments accordingly. There is plenty to argue about. It will be given at the end of the trial. My suggestion is, I'll leave this up to Mr. Geragos. Because we're under the assumption that the jury is following the Court's instructions. Detective Brocchini made that statement. He also went on to say, as the District Attorney pointed out, that he did not give this person's testimony, or this testimony -- the information from this particular witness, he did not give that person any credibility. So that's left in the jurors' mind, that whatever this particular gentleman said -- and I have his name here.

GERAGOS: Aspeitia. And he said he couldn't corroborate it.

JUDGE: No. I think he said he did not give it any credibility. I think it's in the transcript.

GERAGOS: I believe the transcript says, "I couldn't corroborate it."

JUDGE: Let me see.

DISTASO: Well, here, your Honor, I'll read from page 11559. This is on recross. And I have a couple of -- you made the determination the person was not credible, correct? That's how I considered it, not credible. That was the answer.

GERAGOS: I'm showing 11558, it wasn't credible, correct? Answer. I couldn't corroborate it.

JUDGE: Okay. Well, whatever. The jury has heard the testimony. He also said it was not credible on page 97 of the transcript that I have right in front of me. So you have two choices, Mr. Geragos. Both sides. You can either -- I'll either give you the opportunity to recall Detective Brocchini for further cross examination, and then, of course, if there is further cross examination, there is further redirect examination. And it will be -- if you elect, to do that it would be restricted only to the statement of Mr. Aspeitia, A-s-p-e-i-t-i-a. On the other hand, it might prudent for both sides just to leave it alone, because the jury is of the impression now, this -- this, whatever information this gentleman gave was not given any credence by the prosecution. So if you want to recall him, feel free to do so. And we'll do that accordingly. So that will be the Court's ruling in that regard. So, just for the record then, we have got to keep the record clear, the grant of a mistrial, the request for mistrial, dismissal of the case against Mr. Peterson is denied. The admonition to the jury that has been requested by the defense will also be denied, and I will not make that comment unless it's by stipulation. And I would be glad to reinstruct the jury that the testimony or the evidence presented by this particular individual, the statement presented by this individual is not going to be offered for the truth. I'll be glad to do that, even though I did it close to that particular time. And, like I said, I find misconduct -- no prosecutorial misconduct on the part of the District Attorney in this case. I think this magnitude -- stuff like this happens all the time. That will be the Court's ruling on that issue.