Metropolitan News-Enterprise


Tuesday, June 8, 2010


Page 7



Bugliosi Catches Garcetti on One Error, Commits a Spate of Them Himself




124th in a Series


GIL GARCETTI is perhaps best remembered internationally for something he did not do as Los Angeles County district attorney: choose the site of the 1995 O.J. Simpson murder trial…a trial which drew unprecedented attention in the news media and culminated in an acquittal which the vast majority viewed as unwarranted.

Innumerable newspaper articles and books slam Garcetti for filing charges in downtown Los Angeles, where the composition of the jury, in light of the jury pool, turned out to be three-fourths African American (the race of the defendant). The filing should have taken place in Santa Monica, close to where the crime occurred and where more whites would have been summoned for jury duty, it’s argued.

Slamming him the hardest for the supposed decision was Vincent Bugliosi, a former deputy district attorney who wrote a 1996 book called “Outrage: the Five Reasons O.J. Simpson Got Away With Murder.”

He was wrong in the assumption that it was Garcetti who made the call as to where the trial would be held...but the assumption was a widely shared one, and Garcetti did not dispute it. (My hunch is that he was willing to take credit for the decision in 1994 when it provided him with Brownie points among African American voters, and had difficulty in disavowing responsibility for it when it came to be cited as the major reason for the “not guilty” verdict.)

As I’ve pointed out, it was Cecil Mills, who was supervising judge of the criminal courts in 1994, who determined that the trial would take place in the Criminal Courts Building (“CCB”) and the presiding judge, Robert M. Mallano (now presiding justice of Div. One of this district’s Court of Appeal), who ratified the decision.

Garcetti defended what was assumed to be his action by pointing to the frailty of the Santa Monica Courthouse in the aftermath of an earthquake and the superior security at the CCB—which, for reasons I discussed yesterday, were valid points—as well as noting the Superior Court policy that major criminal cases were tried downtown, also true. Bugliosi, in his book, ridicules these reasons.

Today, I’ll look at other aspects of the chapter on the trial of the case in the CCB rather than the Santa Monica Courthouse.

Bugliosi represents that shortly after an interview with him appeared in the November 1994, issue of Playboy magazine in which he assailed Garcetti for filing the complaint downtown, the DA telephoned him. The book recounts (the bracketed material being in the original):

Los Angeles County district attorney Gil Garcetti, obviously concerned that I was speaking publicly about an alleged serious error of his, called me on the morning of November 4, 1994, three days after the Playboy interview hit the stands. “Vince, I want to congratulate you on a great interview. The only thing I would like to point out to you is the reason this case is going to be tried downtown. I don’t know how it was when you were in the office, but the way it’s been for years now is that once you take the case to the grand jury [there is only one grand jury in Los Angeles County, and it’s located in the Criminal Courts Building near downtown Los Angeles], the case has to stay downtown. [This was an explanation the DA’s office had not given before.] So this case could not have been tried in Santa Monica.”

“Gil,” I told him, “not only wasn’t it that way when I was in the office, but it still isn’t that way. Just because you take a case to the grand jury definitely does not preclude you from trying the case in the judicial district where the crime occurred. If you don’t believe me, call Jerrianne Hayslett [spokesperson for the Los Angeles County Superior Court]. I have already spoken to her and confirmed this.”

At that point Gil immediately retreated and said, “Well, I was under the impression that we were stuck downtown.” A momentous decision like this, and the DA was basing his decision on impressions as opposed to demanding and receiving definitive information from his staff on this very critical issue?


Assuming the telephone conversation did take place, was it accurately recited by Bugliosi? I’m not aware that Bugliosi is one of those rare individuals with a capacity for total recall or that he has an ability to take shorthand. Certainly, he’s not the sort who would be apt to omit public mention of any skill he actually possesses or thinks he does. So, it’s probable that what’s quoted was either reconstructed from memory—meaning that the dialogue is based on guesses as to what words were spoken—or is entirely accurate, in which event the prospect emerges that Bugliosi violated Penal Code §632 by making a surreptitious tape recording.

Anyway, Garcetti did labor under the notion Bugliosi says he did. On Oct. 7, 1995, four days after the verdict, Garcetti appeared on CNN’s “Larry King Live” and, according to a report the next day in the Daily News, said:

“We only have one grand jury in Los Angeles. That’s downtown. When you go downtown, you stay downtown.”

Yes, he could have filed the information in the Santa Monica Courthouse, in the West District, after a the magistrate at the preliminary hearing (Los Angeles Municipal Court Kathleen Kennedy-Powell) bound Simpson over for trial. Bugliosi did not need to contact the court’s public information officer, a layperson, to find that out; it was ascertainable from the Superior Court’s local rules. Rule 2.0(c), as contained in the 1994 rule book, says that any case could be filed in the Central District or in the district “where one of the offenses was committed” (or “where the preliminary hearing was held”). The offenses were committed in Brentwood, located in the Superior Court’s West District, so the information could have been filed there.

Bugliosi was right, Garcetti was wrong, so Bugliosi gets a point...though he loses the match.

What Garcetti probably had in mind was that under Rule 2.0 (then, as now), all indictments must be filed in the Central District. If there had been an indictment, the prosecution would have been “stuck” downtown, unless it successfully moved for a transfer.

(In a case I covered for the Herald-Examiner in 1972, Elmer “Geronimo” Pratt was accused of the murder of a woman on a Santa Monica tennis court. The trial took place before Los Angeles Superior Court Judge Kathleen Parker (since deceased) in the downtown Hall of Justice. The Black Panther leader was tried pursuant to an indictment. The prosecution moved to have the case transferred to Santa Monica, and Pratt successfully opposed the motion.)

Bugliosi points to a 1989 California Supreme Court decision in Williams v. Superior Court, 49 C 3d 738, affirming the Court of Appeal’s denial of a writ petition by an African American charged with murder. The defendant sought to block his trial in the Los Angeles Superior Court’s West District, arguing that if the percentage of persons of his race countywide were taken into account, there would be found to be underrepresentation of blacks on jury panels in that district. He wanted the case transferred to downtown Los Angeles or Compton. The high court rebuffed his contentions, holding that his initial burden, which he did not even purport to meet, was to show underrepresentation based on the percentage of blacks within the Superior Court district, which it determined to be the relevant community.

The former deputy DA writes:

“If the Simpson case had been filed in Santa Monica, the presiding judge of the county’s criminal courts would have had the ultimate discretion to grant or deny the inevitable defense motion for a change of venue to downtown Los Angeles. But the consensus in the legal community is that he would have denied the motion, not just because of the Williams precedent, but because the presiding judge rarely disturbs the district attorney’s decision on where to file a case in the county. Here, not only did the crime occur in the Santa Monica judicial district, but it is where Simpson lives.”

Aside from an intra-county transfer not constituting a “change of venue” and there being a supervising judge of the criminal courts, not a “presiding judge,” that one paragraph reveals misconceptions.

Bugliosi somehow assessed (or guessed) that “the consensus in the legal community” was that the court would have denied a transfer motion. Rather than dealing in speculation, Bugliosi could have telephoned Mallano—a jurist who was then, as he is now, accessible—and queried what the court’s posture would have been. I assume Mallano would have told Bugliosi in 1996 just what he told me a few weeks ago.

With respect to the decision that the case be tried downtown, “Garcetti got blamed for it,” Mallano observes, adding: “I’ll tell everybody who asks me” that the court made the determination.

Of course, if Bugliosi had bothered to query Mallano or Mills, he would have learned the truth: that if Garcetti had filed the information in the Santa Monica Courthouse, it would have been a silly and vain act because the court had already determined that the case would be tried on the high-security floor of the CCB, and had imparted that decision to Garcetti’s office.

That would have left Bugliosi with only four reasons to cite in his book for the jury’s aberrant verdict. Or, he could have turned his fire on Mallano and Mills, instead of Garcetti, for directing that the case be tried downtown. While he casually dismisses Garcetti’s assertions that security concerns and other logistical considerations mandated trial on the Ninth Floor of the CCB, he would have had far greater difficulty minimizing the view of the court leaders, who had concrete knowledge of the relevant factors.

Had the charges been filed in Santa Monica, the case would have been shifted to the CCB in accordance with Rule 2.0. In the 1994 rules, the relevant portion reads:

“[T]o promote the ends of justice, an action or proceeding may be transferred by or with the consent of the Presiding Judge from one district to another. Also, criminal actions may be transferred from one district to another in accordance with such policies as are established by the judge presiding in the Criminal Master Calendar Department in the Central District…to promote the ends of justice.”

The author asserts relevancy as to where Simpson resided. Where a defendant in a civil case resides often dictates or has bearing on where the case will be tried, but this is not customarily a consideration in a criminal case. The author explains:

“Santa Monica being a much more affluent area than downtown, those sitting on a jury in Santa Monica would have been much closer, other than in race, to being Simpson’s peers than the jury which ultimately heard the case.”

Bugliosi comes close to saying that because Simpson chose to live among rich whites, he should have been tried by them.

However, the meaning of “peers” in connection with the words “jury of peers” is far broader than Bugliosi supposes. The phrase is not often interpreted since there is no express U.S. constitutional guarantee of a “jury of peers,” and there’s no reference to it in our state constitution or statutes. The concept is largely of relevance to English legal history. In a 1971 dissent, U.S. Supreme Court Justice William O. Douglas provides these insights (in no way contradicted by the majority):

“The word ‘peers’ means nothing more than citizens….The phrase ‘judgment of his peers’ means at common law, a trial by a jury of twelve men….‘Judgment of his peers’ is a term expressly borrowed from the Magna Charta, and it means a trial by jury….The Constitution has never been construed to say women must be tried by their peers, to wit, by all-female juries, or Negroes by all-Negro juries. [¶] The only restriction on the makeup of the jury is that there can be no systematic exclusion of those who meet local and federal requirements, in particular, voting qualifications.”

The term “peer” is not applied to juries in the same way it is used in such contexts as “peer review.” In the relevant context, potential jurors were “peers” of Simpson whether rich or poor, black or white. The location of the defendant’s abode was of no consequence.

Bugliosi says “the crime occur[red] in the Santa Monica judicial district.” Wrong!

That district is a municipal court district. The Santa Monica Municipal Court was then in operation, remaining so until trial court unification in 2000.

Brentwood is in the City of Los Angeles, which is in the Los Angeles Judicial District.

(I use the present tense because, even though municipal courts no longer exist, judicial districts, strangely, do; by statute, a few types of legal notices must still be published in the judicial district where property is located or sales take place.)

It was in normal course that the complaint was filed in the Los Angeles Municipal Court. Ordinarily, it would have been in the West Los Angeles branch on Purdue, but with a grand jury indictment being contemporaneously sought, it was understandable that the arraignment and preliminary hearing took place at the CCB.

Bugliosi not only declares that the crime took place within the Santa Monica Judicial District, but makes reference to the prospect of the complaint being filed there, saying, in connection with his phone conversation with Garcetti:

“I didn’t bother to tell Garcetti that if, indeed, he was operating under the erroneous assumption that once he took the case to the grand jury he was ‘stuck downtown,’ he could have avoided the grand jury completely by simply starting the case with the filing of a criminal complaint out in Santa Monica.”

If the complaint had been filed in Santa Monica and the preliminary hearing conducted there, and if the information had then been filed in Santa Monica, would that have increased the likelihood the Superior Court would have permitted the case to remain where it was?

“It wouldn’t,” Mallano responds.

The case was destined to be tried in the CCB, and Garcetti had no power to alter that.


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