Erik Menendez's 2/95 Response To Prosecution's Opposition Re: Severance Motion


SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

CASE NO. BA068880

PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff

vs.

ERIK GALEN MENENDEZ and
JOSEPH LYLE MENENDEZ,
Defendants

DEFENDANT'S RESPONSE TO PROSECUTION'S OPPOSITION TO EX PARTE SUBMISSIONS IN SUPPORT OF SEVERANCE MOTION

Date: February 15, 1995
Time: 9:00 a.m.
Dept.: Northwest N

TO GIL GARCETTI, DISTRICT ATTORNEY OF LOS ANGELES COUNTY, AND TO DEPUTY DISTRICT ATTORNEY DAVID P. CONN AND DEPUTY DISTRICT ATTORNEY CAROL JANE NAJERA, HIS REPRESENTATIVES:

Defendant Erik Galen Menendez, through counsel, submits the following response to the "People's opposition to Ex Parte Severance Motion" filed with this Court on February 1, 1995, and set for hearing on February 15, 1995, in Department Northwest N, before the Honorable Stanley M. Weisberg. This response will be based on our Notice of Motion and Motion for Separate Juries, Or, In the Alternative, For Separate Trials, originally filed on June 7, 1993 and renewed on April 18, 1994, the Defendants' Reply to Prosecution Response to Motion for Separate Juries, Or, In the Alternative, For Separate Trials, filed June 20, 1994, Defendants' Notice of Motion for Order In Camera and Sealed Offer of Proof and Presentation of Evidence dated July 12, 1994, as well as such additional evidence and argument as may be presented at the hearing of this matter.

DATED: February 9, 1995

Respectfully submitted,
Leslie H. Abramson
Attorney for Defendant ERIK GALEN MENENDEZ
By: /s/ Marcia A. Morrissey

MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO OPPOSITION TO EX PARTE SUBMISSIONS IN SUPPORT OF SEVERANCE MOTION

I. STATEMENT OF FACTS

On June 17, 1993, before the commencement of the first trial in this case, defendants Erik Galen Menendez and Joseph Lyle Menendez filed a joint Notice of Motion and Motion for Separate Juries, Or, In the Alternatives, For Separate Trials, with supporting points and authorities (hereinafter "Motion for Separate Juries"). In this motion, Erik and Lyle Menendez outlined two distinct types of penalty phase prejudice that would result from a joint trial of both brothers before a single jury. First, the brothers urged that a joint trial would preclude that individualized determination of punishment to which each brother has a right at penalty phase, because a single jury deciding whether one brother would live or die would be making this decision after having considered evidence in mitigation or aggravation as to the other brother. Second, the brothers urged that a joint trial would cripple the ability of each brother to present evidence of mitigation at penalty phase.

After the juries for Erik and Lyle Menendez announced they were unable to reach verdicts and mistrials were declared, the Menendez brothers renewed their Motion for Separate Juries on April 18, 1994. The prosecution filed a Response to the Motion for Separate Juries on June 13, 1994, and the Menendez brothers filed a Joint Reply to Prosecution's Response to Motion for Separate Juries on June 20, 1994.

On June 29, 1994, this Court requested that the defense file proffers of penalty phase evidence. 162 R.T. 26507, 26514, 26520, 26532, 26540-41. On July 22, 1994, the defense filed a joint Notice of Motion for Order for In Camera and Sealed Offer of Proof and Presentation of Evidence concerning the Motion for Separate Juries, which was set for hearing on July 22, 1994. On July 22, 1994, this Court authorized the defense to file sealed proffers of penalty phase evidence. 163 R.T. 26525-26. On October 28, 1994, the Court ruled that any proffers submitted on an ex parte basis would remain sealed and not be released to any party save for appellate court review. 165 R.T. 26914-915. Pursuant to the Court's representations of confidentiality, both Joseph Lyle Menendez and Erik Galen Menendez submitted separate in camera offers of proof regarding penalty phase evidence.

At a hearing on November 19, 1994, this Court ordered additional proffers to be prepared, specifically, proffers made by witnesses themselves, signed under penalty of perjury. 167 R.T. 27216 On November 4, 1994, defendant Joseph Lyle Menendez filed an in camera offer of proof with this Court. On November 7, 1994, Erik Galen Menendez, through counsel, filed a declaration regarding penalty phase testimony in camera and under seal, in accordance with the Court's order and representations on October 28, 1994. Defendant Erik Galen Menendez is scheduled to file additional proffers with this Court on February 14, 1995.

II. THE DEFENSE IS NOT ASKING THIS COURT TO RULE ON ITS MOTION TO SEVER IN AN X PARTE PROCEEDING

The prosecution mischaracterizes the events which have occurred in this case, in stating that "[i]t is...our understanding that each of the defendants, upon submitting additional declarations to the court, will ask this court to rule in an ex parte proceeding, upon a motion to sever his trial from the trial of the codefendant." People's Opposition to Ex Parte Severance Motion (hereinafter "Opposition") at 2. As discussed above, the defense filed a detailed Notice of Motion and Motion for Separate Juries, which the Office of Los Angeles District Attorney had had in its possession, and available for its review, since June 7, 1993. The prosecution also has the benefit of the defendants' June 20, 1994 reply to its response to the Motion for Separate Juries. The legal principles upon which Erik Galen Menendez bases his motion for a separate penalty trial are set forth in the documents referred to above. It is not the motion to sever that the defense asks that this Court consider on an ex parte basis, but only a portion of the specific factual predicates that underlie the motion to sever.

III. THIS COURT HAS THE DISCRETION TO RECEIVE CONFIDENTIAL OFFERS OF PROOF AS TO PENALTY PHASE EVIDENCE

Although ex parte submissions are the exception rather than the rule, the use of ex parte proceedings in California trial courts has been approved in a variety of contexts.

The California Supreme Court has sanctioned the in camera procedure as one within the sound discretion of the trial court. Izazgaga v. Superior Court, 54 Cal.3d 356, 382-383 n.21 (1991) (a trial court has "inherent disclosure based on asserted privileges"). See also People v. Superior Court (Mitchell), 5 Cal.4th 1229, 1239 (1993) (in camera procedure permissible where the defendant asked that a prosecution request for discovery of penalty phase evidence be deferred until guilt phase has been completed). In capitol cases, Penal Code 987.9 is highly protective of the confidentiality of defense information. The mandatory language of Penal Code 987.9 provides that "the fact that an application has been made shall be confidential." Penal Code 987.9 confidentiality must be maintained at least until a judgment is affirmed on district appeal. 66 Opinions of California Attorney General 407 (1993) Ex parte procedures are particularly appropriate in capital cases, where the accused faces not just for the loss of his liberty, but the loss of life itself. See Caldwell v. Mississippi, 472 U.S. 320, 329, 105S. Ct. 2633, 86 S. Ed. 2d 231 (1985) ("under the Eighth Amendment 'the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination'").

AN IN CAMERA SHOWING IN SUPPORT OF DEFENDANT'S MOTION FOR SEPARATE JURIES, OR IN THE ALTERNATIVE, FOR A SEPARATE TRIAL IS CONSTITUTIONALLY REQUIRED, AND DOES NOT DENY THE PROSECUTION ITS RIGHT TO DUE PROCESS

In its opposition, the prosecution relies on the case of People v. Huston, 210 Cal.App.3d 192 (1989). Huston involved a defendant acting in propria persona who sought either "the extraordinary remedy of dismissal" (id. at 204) or, in the alternative "jury instructions seriously detrimental to the prosecution" (id. at 210), based upon his claim that jailers had seized important alibi documents form his cell and then lost those documents. In upholding the trial court's refusal to conduct in camera hearings so that the defendant could reveal the contents of the lost alibi documents without disclosure of this information to the prosecution, the Court of Appeal observed that the rights of the defendant were adequately protected by the trial court's order that the testimony concerning the missing alibi documents could not be used in the prosecution's case-in-chief. Id. at 211-12. The court also noted upon the difficulty of protecting the prosecution's due process rights if there were an ex parte hearing on the motion to dismiss. Id. at 212.

In the present case, the defense is not seeking to avoid trial, as was the case in Huston. Nor is the defense seeking the "extraordinary remedy of dismissal" or jury instructions that would be "seriously detrimental to the prosecution." The defense is not seeking any findings that would cause this Court to dismiss the present action or place the prosecution at a disadvantage before the jury, and therefore the prosecution's interest in the ex parte submissions of penalty phase evidence is not comparable to the interest of the prosecution in defendant Huston's motion to dismiss.

Nor can it be said that he rights of Erik Menendez could be adequately protected by an order limiting the prosecution's use of any disclosed evidence. Cf. Huston. The prosecution could, and undoubtedly would, use their knowledge of such evidence to determine which witnesses to call at both guilt and penalty phases, what questions to ask the witnesses, etc., and there would be no way for the Court to effectively guarantee against such improper use of the evidence. Most important, the penalty phase proffers submitted in camera do not outline evidence that will necessarily be presented at the penalty phase of this case. The pleadings on this issue filed by the defense, which are outlined above, have been made available, in an unredacted form, to the prosecution. These documents clearly state that if there is a joint penalty trial before a single jury, the penalty phase evidence outlined in the proffers will not be presented, for the reasons discussed in the declarations by Leslie H. Abramson and Jill Lansing in support of the Motion for Separate Juries. Thus, it is misleading to frame the issue as a question of accelerated discovery pursuant to People v. Superior Court (Mitchell), because if this Court denies our Motion for Separate Juries, the proffered penalty phase evidence will never be presented, and therefore is not discoverable by the state.

The case of the People v. Dennis, 177 Cal.App. 3d 863 (1986), is also unpersuasive in the present context. In Dennis, the court of Appeal considered the propriety of a trial court's granting a motion for a new trial based solely upon evidence presented to the trial court at an ex parte hearing that resulted in an order granting a substitution of counsel on the grounds that prior counsel had been ineffective. The Attorney General objected to the "'triple-play' of (People v.) Marsden (2 Cal. 3d 118 (1970) to (People v.) Pope (23 Cal.3d 412 (1979)) to (People v.) Fosselman (33 Cal.3d 572 (1983)) which, in essence, resulted in an ex parte order granting a new trial with no opportunity for the People to play in the game by presenting evidence or argument in opposition." Id. at 869. In ruling the prosecution's position was well-taken, the court said the following on the issue of in camera hearings:

In view of the fact that a Marsden hearing looks to the future and is designed to determine whether counsel may effectively continue to represent the defendant, we can find no error in the in camera nature of the hearing. It will often be the case that in order to convince a trial court that counsel should not continue in his representation a defendant will be required to disclose strategy or evidence to which the prosecutor might not otherwise be privy. This fact, and the fact that the People will generally have no interest in having the defendant represented by a particular attorney, render the in camera option a useful tool in the administration of justice. For these reasons, we agree that "the better practice (in a Marsden hearing) is to exclude the district attorney when a timely request is made to do so by the defendant or his counsel. In the absence of a request, the trial court should exclude the district attorney whenever information will be presented during the hearing to which the district attorney is not entitled, or which could conceivably lighten the prosecution's burden of proving its case." (People v. Madrid (1985) 168 Cal.App. 3d 14, 19, 213 Cal.Rptr. 813; citation omitted.) 177 Cal.App. 3d at 871.

In this case, the Motion for Separate Juries brought by Erik and Lyle Menendez looks to the future, rather than the past, and therefore there is no error in conducting an in camera hearing in order to rule on that motion. As discussed by the Court in People v. Dennis, the rationale for the prosecution's exclusion from participation in a Marsden hearing is the potential of the defense presenting information which could conceivably lighten the prosecution's burden of proof. See People v. Madrid, 186 Cal.App.3d at 19. This concern is applicable to the present case, because requiring the defense to make pretrial non-confidential proffer of penalty phase evidence would plainly assist the prosecution in a substantive manner, by giving the prosecution information to which it is not entitled at this time. See 162 R.T. 26512-14; 163 R.T. 26717, 165 R.T. 26901, 26908, 26913.

Department of Corrections v. Superior Court (Ayala), 199 Cal.App. 3d 1087 (1988), which is relied upon by the prosecution, is also limited application to the present case. At issue in Ayala was a Superior Court order sealing a defense subpoena duces tecum, and supporting documents, which sought prison records regarding a prosecution witness. It was significant that the ex parte proceedings by the trial court regarding the subpoena resulted in the issuance of "what amounted to a gag order to the two public agencies involved in producing the requested public records." Id. at 1091-92. In disapproving the trial court's order, the Court of Appeal stressed the prosecution's due process opportunity to be heard prior to the trial court's issuance of the order sealing the subpoena duces tecum and effectively gagging the two public agencies involved in producing the requested public records. Id. at 1092.

In this case, the prosecution has had, and will have, ample opportunity to be heard regarding the Motion for Separate Juries filed on behalf of Erik and Lyle Menendez. As discussed above, the defense has outlined for the prosecution its arguments regarding the necessary for separate juries at a penalty phase. The prosecution has responded to those arguments, and has the opportunity to file further response. More important, this Court will not, as the prosecution suggests, entertain an ex parte motion for severance. Rather, the motion for severance in this case will be heard in open court and the prosecution will be afforded their due process right to be heard. Cf. Ayala.

In Ayala, the Court of Appeal expressly acknowledged the appropriateness of ex parte proceedings:

We are mindful that ex parte proceedings may be necessary to protect the constitutional rights of a defendant or to protect the attorney's work product. See, e.g., Keenan v. Superior Court (1982) 31 Cal.3d 424, 430, 180 Cal.Rptr. 489, 640 P.2d 108 [providing for confidentiality of a defense motion for appointment of a second attorney to avoid undue disclosure of defense strategy]. Here, however, the order sweeps too broadly. Even if, as Ayala argues, he is required to divulge privileged information to make a showing of good cause in support of a subpoena duces tecum, it is unnecessary to totally exclude the District Attorney's office from the proceedings. Rather the court may review the supporting documents in camera on an ex parte basis to determine if any specific information constitutes privileged information. The court may then seal those specific items. In this manner, the court will protect the defendant's constitutional rights and the attorneys' work product while, to the extent possible, still providing for open proceedings.

People v. Worthy (1980) 109 Cal.App. 3d 514, 167 Cal. Rptr. 402, cited by Ayala, is consistent with this approach. In worthy, the trial court denied the defendant's discovery motion. The Court of Appeals affirmed the denial and in dicta state that:

"[A] balance must be struck between the requirement that the defendant make a plausible justification for requested discovery and the limitations on prosecutorial discovery. It is conceivable that if too much is required of a defendant, he could be forced to reveal anticipated defense strategy. However, in the face of such danger, camera hearing to establish the relevancy of the requested information." (Id. at p.525, n. 3, 167 Cal. Rptr. 402.) Ayala, 199 Cal.App. 3d at 1094 (emphasis added)

The lesson of Ayala is that ex parte proceedings are authorized if necessary to protect the constitutional rights of a defendant or to protect the attorney's work product. 199 Cal.App. 3d 1094. Ayala's finding that the prosecution's exclusion from hearings that resulted in a gag order on two public agencies rightfully recognizes the prosecution's due process right to be heard on the issue of such an order. However, Ayala does not stand for the prosecution that a trial court is precluded from reviewing documents in camera. See Ayala, at 1094 ("the court may review the supporting documents in camera on an ex parte basis to determine any specific information which constitutes privileged information. The court may then seal those specific items"). This is precisely the procedure that the defense has asked this Court to utilize in the present case in considering declarations of potential penalty phase witnesses in support of its Motion for Separate Juries.

CONCLUSION

For the reasons set forth above, defendant Erik Galen Menendez respectfully requests that this Court not modify its previous order allowing the defense to present in camera proffers of penalty phase evidence in support of his previously filed Motion for Separate Juries.

DATED: February 9 1995

Respectfully submitted,

Leslie H. Abramson
Attorney for Defendant
ERIC GALEN MENENDEZ
By: /s/Marcia Morrissey

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