. ,. _';! / L I SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES rCJ THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, v. CASE NO. BA421fQ. ~, ......." g-c ~ ~f ~-J. ......Jon-" r- ( 01 DARREN MALLORY SHARPER (11103/1975) f•~.:: ~. FELONY COMPLAINT Defendant s). The undersigned is informed and believes that: - IJOA.~ f""" i 7~.,;!t':f -i COUNT 1 On or about October 30, 2013, in the County of Los Angeles, the crime of RAPE BY USE OF DRUGS, in violation of PENAL CODE SECTION 261 (a)(3), a Felony, was committed by DARREN MALLORY "HARPER, who did unlawfully have and accomplish an act of sexual intercourse with a person, to wit, JANE DOE #1, not his/her spouse, where said person was prevented from resisting by all intoxicating, anesthetic, and controlled substance, and this condition was known, and reasonably should have been known by the defendant. "NOTICE: The abovl." offense is a serious felony within the meaning of Penal Code section 1 I92.7(c.)." "NOTICE: Conviction of this offense will require the court to order you to submit to a blood test for evidence of antibodies to the probable causative agent of Acquired Immune Deficiency Syndrome (AmS). Penal Code section 1202.1." "NOTICE: Conviction of this offense will require to register pursuant to Penal Code section 290 et seq. Willful failure to register is ,~ crime." "NOTICE: Being charged with this criminal offense can result in mandatory pre-conviction HN / AmS testing and disclosure of the resillts to a victim and the Chief Medical Officer of the jail or prison facility where you are incarcerated pursuant to Penal Code Section 1524.land Health and Safety Code section \ 121055 following a probable cause hearing resulting in a court order." \ It is further alleged that the defcndant(s), DARREN MALLORY SHARPER administered a controlkd substance, to wit, ZOLPIDEM during the commission and attempted commission of the offense p'.Irsuant to PC12022.75(b)(l). ***** 1~-1~ffi~9~D~A~C~a~5e~~.~34~2~3~16~5~6~__________~P~~~e1 . FELONY COMl'LAlWT ~-l Case No. BA421442 COUNT 2 On or about January 15,2014, in the County of Los Angeles, the crime of RAPE BY USE OF DRUGS, in violation of PENAL CODE SECTION 261 (a)(3), a Felony, was committed by DARREN MALLORY SHARPER, who did unlawfully have and accomplish an act of sexual intercourse with a person, to wit, JANE DOE #2, not his/her spouse, where said person was prevented from resisting by an intoxicating, anesthetic, and controlled substance, and this condition was known, and reasonably should have been known by the defendant. "NOTICE: The above offense is a serious felony within the meaning of Penal Code section 1192.7(c)." "NOTICE: Conviction of this offense will require the court to order you to submit to a blood test for evidence of antibodies to the probable causative agent of Acquired Immune Deficiency Syndrome (AIDS). Penal Code section 1202.1." "NOTICE: Conviction of this offense will require to register pursuant to Penal Code section 290 et seq. Willful failure to register is a crime." "NOTICE: Being charged with this criminal offense can result in mandatory pre-conviction HIV / AIDS testing and disclosure of the results to a victim and the Chief Medical Officer of the jail or prison facility where you are incarcerated pursuant to Penal Code Section 1524.1and Health and Safety Code section 121055 following a probable cause hearing resulting in a court order." It is further alleged that the defendant(s), DARREN MALLORY SHARPER administered a controlled substance, to wit, ZOLPIDEM during the commission and attempted commission of the offense pursuant to PC12022.75(b)(1). ***** COUNT 3 On or about October 30, 2013, in the County of Los Angeles, the crime of SALE/OFFER TO SELLITRANSPORTATION OF A CONTROLLED SUBSTANCE, in violation of HEALTH & SAFETY CODE SECTION 11379(a), a Felony, was committed by DARREN MALLORY SHARPER, who did unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit, ZOLPIDEM. "NOTICE: Conviction of this offense will require you to register pursuant to Health and Safety Code section 11590. Failure to do so is a crime pursuant to Health and Safety Code section 11594." ***** Rev. 900-1/99 DA Case 34231656 Page 2 FELONY COMPLAINT Case No. BA421442 r ( J COUNT 4 On or about October 30, 2013, in the County of Los Angeles, the crime of SALE/OFFER TO SELLITRANSPORTATION OF A CONTROLLED SUBSTANCE, in violation of HEALTH & SAFETY CODE SECTION 11379(a), a Felony, was committed by DARREN MALLORY SHARPER, who did unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit, ZOLPIDEM. "NOTICE: Conviction of this offense will require you to register pursuant to Health and Safety Code section IIS90. Failure to do so is a crime pursuant to Health and Safety Code section 11S94." ***** COUNTS On or about January IS, 2014, in the County of Los Angeles, the crime of SALEIOFFER TO SELLITRANSPORTATION OF A CONTROLLED SUBSTANCE, in violation of HEALTH & SAFETY CODE SECTION 11379(a), a Felony, was committed by DARREN MALLORY SHARPER, who did unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit, ZOLPIDEM. "NOTICE: Conviction of this offense will require you to register pursuant to Health and Safety Code section IIS90. Failure to do so is a crime pursuant to Health and Safety Code section IIS94." ***** COUNT 6 On or about January IS, 2014, in the County of Los Angeles, the crime of SALE/OFFER TO SELLITRANSPORTATION OF A CONTROLLED SUBSTANCE, in violation of HEALTH & SAFETY CODE SECTION 11379(a), a Felony, was committed by DARREN MALLORY SHARPER, who did unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit, ZOLPIDEM. "NOTICE: Conviction of this offense will require you to register pursuant to Health and Safety Code section IIS90. Failure to do so is a crime pursuant to Health and Safety Code section IIS94." ***** Rev. 900·1/99 DA Case 34231656 Page 3 FELONY COMPLAINT Case No. BA421442 ( COUNT 7 On or about January 17,2014, in the County of Los Angeles, the crime of POSSESSION OF A CONTROLLED SUBSTANCE, in violation of HEALTH & SAFETY CODE SECTION 11350(a), a Felony, was committed by DARREN MALLORY SHARPER, who did unlawfully possess a controlled substance, to wit, MORPlllNE. "NOTICE: Conviction of this offense will require you to register pursuant to Health and Safety Code section 11590. Failure to do so is a crime pursuant to Health and Safety Code section 11594." ***** NOTICE: Conviction of this offense will require the defendant to provide DNA samples and print impressions pursuant to Penal Code sections 296 and 296.1. Willful refusal to provide the samples and impressions is a crime. NOTICE: The People of the State of California intend to present evidence and seek jury findings regarding all applicable circumstances in aggravation, pursuant to Penal Code section 1170(b) and Cunningham v. California (2007) 549 U.S. 270. NOTICE: A Suspected Child Abuse Report (SCAR) may have been generated within the meaning of Penal Code §§ 11166 and 11168 involving the charges alleged in this complaint. Dissemination ofa SCAR is limited by Penal Code §§ 11167 and 11167.5 and a court order is required for full disclosure of the contents of a SCAR NOTICE: Any allegation making a defendant ineligible to serve a state prison sentence in the county jail shall not be subject to dismissal pursuant to Penal Code § 1385. I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT AND THAT THIS COMPLAINT, CASE NUMBER BA421442, CONSISTS OF 10 COUNT(S). Executed at LOS ANGELES, County of Los An eles, on February 13, 2014. JACKIE LACEY, DISTRICT ATTORNEY BY: c'6t7u..vt.~ ~ fJ\/;: STACY OkUN-WIESE, DEPUTY DISTRICT ATIORNEY Rev. 900-1/99 DA Case 34231656 Page 4 FELONY COMPLAINT Case No. BA421442 ·, AGENCY: DR NO.: LAPD-RHO 130816295 DEFENDANT SHARPER, DARREN MALLORY I/O: JOHN MACCHIARELLA OPERATOR: MES ell NO. DOB ID NO.: 35095 PHONE: (213) 486-6910 PRELIM. TIME EST.: 2 DAY(S) BOOKING NO. 11/311975 3836687 " STODY R'TNDATE 02114/2014 ~\O,OOO/OOO.Q~ Pursuant to Penal Code Section 1054.5(b), the People are hereby informally requesting that defense counsel provide discovery to the People as required by Penal Code Section 1054.3. Rev. 900-1/99 DA Case 34231656 Page 5 FELONY COMPLAINT Case No. BA421442 · . ( 'I.'. FELONY COMPLAINT -- ORDER HOLDING TO ANSWER -- P.C. SECTION 872 It appearing to me from the evidence presented that the following offense(s) has/have been committed and that there is sufficient cause to believe that the following defendant(s) guilty thereof, to wit: (Strike out or add as applicable) DARREN MALLORY SHARPER Count No. Charge PC 261 (a)(3) 1 2 PC 261 (a)(3) 3 HS 11379(a) 4 HS 11379(a) 5 HS 11379(a) 6 HS 11379(a) 7 HS 11350(a) Charge Range 3-6-8 State Prison 3-6-8 State Prison 2-3-4 County Jail 2-3-4 County Jail 2-3-4 County Jail 2-3-4 County Jail 16-2-3 County Jail Sl2eciai Allegation PC 12022.7S(b)(I) PC 12022.7S(b)(1) Alleg. Effect +5 Yrs. State Prison +5 Yrs. State Prison I order that the defendant(s) be held to answer therefore and be admitted to bail in the sum of: DARREN MALLORY SHARPER -------------------------- Dollars and be committed to the custody of the Sheriff of Los Angeles County until such bail is given. Date of arraignment in Superior Court will be: _______________ in Dept ____ DARREN MALLORY SHARPER at _ _ _ __ A.M. Date: ____________ Committing Magistrate Rev. 900-1/99 DA Case 34231656 Page 6 FELONY COMPLAINT Case No. BA421442 .J. . " I 6 JACKIE LACEY District Attorney of Los Angeles County By: STACY OKUN-WIESE; State Bar No. 204333 Deputy District Attorney MAJOR CRIMES DIVISION By: ALISON MEYERS; State Bar No. 178816 Deputy District Attorney SEX CRIMES DIVISION 210 W TEMPLE STREET LOS ANGELES, CA 90012 (213) 974-3800 7 Attorney for Plaintiff 2 3 4 5 8 FILED LOS ANGELES SUPERIOR COURr FEB 142014 S.R..CAR~ EXecunvE OFFlCERlCLERK BY ~~ Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 9 PEOPLE OF THE STATE OF CALIFORNIA, Case No. BA421442 10 Plaintiff, 11 12 v. DARREN SHARPER NOTICE OF MOTION AND MOTION CONCERNING BAIL; MEMORANDUM OF POINTS AND AUTHORITIES; AND SUPPORTING DECLARATION Defendant. 13 Date: Time: Court: 14 February 14,2014 08:30 AM Department 30 15 16 TO THE HONORABLE RENEE KORN, JUDGE OF THE ABOVE 17 ENTITLED COURT, AND TO COUNSEL FOR THE DEFENDANT, DARREN 18 SHARPER. 19 Department 30 of the above-entitled court, or as soon thereafter as the matter can be heard, the 20 People will request the Court to issue the following order(s) concerning defendant's bail: 21 22 PLEASE TAKE NOTICE that on February 14, 2014, at 08:30 AM, in (X) Order to increase bail to $10,000,000.00 pursuant to Penal Code section 1269c, et seq. 23 This motion will be based on this notice of motion and motion, the files and 24 pleadings in the above entitled matter, the attached points and authorities, and on such other and 25 further evidence and argument as may be introduced at the hearing of this motion. 26 27 28 MOTION CONCERNING BAIL; MEMORANDUM OF P&A; AND SUPPORTING DECLARATION; [PROPOSED] ORDER Dated this 14th day of February, 2014 Respectfully submitted, 2 JACKIE LACEY District Attorney of Los Angeles County 3 By ?bALJ 4 ~- k STACY OKUN-WIESE Deput District Atto 5 6 7 Attorney for Plaintiff 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2MOTION CONCERNING BAIL; MEMORANDUM OF P&A; AND SUPPORTING DECLARATION MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTOF MOTION CONCERNING BAIL 2 3 4 The People are requesting the court increase the defendant's bail to $10,000,000.00 (Ten 5 Million Dollars). There is reason to believe that the amount set forth in the bail schedule is 6 insufficient to protect the public from further criminal acts committed by the defendant or to 7 assure the defendant's appearance at future court hearings. 8 9 10 11 12 13 14 15 16 17 18 19 20 Penal Code section 1269c et seq. provides: "If a defendant is arrested without a warrant for a bailable felony offense ... and a peace officer has reasonable cause to believe that the amount of bail set forth in the schedule of bail for that offense is insufficient to assure defendant's appearance .. . the peace officer shall prepare a declaration under penalty of perjury setting forth the facts and circumstances in support of his or her belief and file it with a magistrate, as defined in Section 808, or his or her commissioner, in the county in which the offense is alleged to have been committed or having personal jurisdiction over the defendant, requesting an order setting a higher bail. The defendant, either personally or through his or her attorney, friend, or family member, also may make application to the magistrate for release on bail lower than that provided in the schedule of bail or on his or her own recognizance. The magistrate or commissioner to whom the application is made is authorized to set bail in an amount that he or she seems sufficient to assure the defendant's appearance ... and to set bail on the terms and conditions that he or she, in his or her discretion, deems appropriate, or he or she may authorize the defendant's release on his or her own recognizance. If, after the application is made, no order changing the amount of bail is issued within eight hours after booking, the defendant shall be entitled to be released on posting the amount of bail set forth in the applicable bail schedule." 21 22 Penal Code section 1275 permits the court to increase a defendant's bail after taking into 23 consideration the protection of the public, the seriousness of the offenses charged, and the 24 likelihood of the defendant appearing at a future hearing and/or a trial. The public's safety 25 should be the primary consideration of the court. See Penal Code section 1275(a)(1). As 26 supported by the attached declaration, the defendant has committed several offenses against 27 28 multiple victims in numerous jurisdictions. To protect further potential victims and to assure the -3MOTION CONCERNING BAIL; MEMORANDUM OF P&A; AND SUPPORTING DECLARATION ( defendant's attendance at future hearings, the People are requesting an increase in the 2 defendant's bail. 3 4 5 Dated this 14th day of February, 2014 6 Respectfully submitted, 7 JACKIE LACEY District Attorney of Los Angeles County 8 By %AM~lt1t1,.II\/J1K STACY OK ~WIESE 9 10 11 12 Attorney for Plaintiff 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4MOTION CONCERNING BAIL; MEMORANDUM OF P&A; AND SUPPORTING DECLARATION DECLARATION OF JOHN MACCHARELLA IN SUPPORT OF SAID MOTION CONCERNING BAIL 2 3 4 I, JOHN MACCHIARELLA, declare as follows: 1. DARREN SHARPER, Case Number BA421442. 5 6 That I am the investigating officer assigned to handle the case of the People v. 2. That after a review of the facts in this matter, I believe that the defendant is involved in seven acts of rape and eleven acts of furnishing a controlled 7 substance. These acts occurred on four separate occasions from September 2013 8 to January 2014. They occurred in Los Angeles, California; Tempe, Arizona; Las 9 Vegas, Nevada, and New Orleans, Louisiana. (See attached declaration). 10 11 3. Defendant Sharper is a resident of Miami Beach, Florida. When the offenses were committed, Defendant Sharper was living in a hotel in Los Angeles, 12 California, and was here primarily as a result of his employment. Since his arrest, 13 Defendant Sharper has been suspended from that employment. 14 15 4. on the aforementioned facts and circumstances, including the maximum 16 punishment of 30 years 8 months in state prison. 17 18 19 20 That the amount of bail set forth in the felony bail schedule is insufficient based 5. That any assurance that the defendant will make all future court appearances depends on the quantity of the bail. I swear under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge. 21 22 Executed on this 14th day of February, 2014 at LOS ANGELES, California. 23 24 25 26 27 28 - 5MOTION CONCERNING BAIL; MEMORANDUM OF P&A; AND SUPPORTING DECLARATION .. ' 2 ( DEC LARATION OF JOHN MACCHARELLA IN SUPPORT OF SAID MOTION CONCERNING BAIL 3 I, JOHN MACCHIARELLA, declare as follows: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1. I reviewed New Orleans Police Report file number I-31494-13 and believe the following to be true: a. On September 22,2013, Jane Doe A, met Defendant Sharper at an event for the New Orleans' Saints football players. After the event, Jane Doe A accompanied Defendant Sharper to a bar. While there, Jane Doe A consumed an alcoholic beverage provided to her by Defendant Sharper. Jane Doe A's next memory is several hours later at approximately 10:00 a.m. on September 23,2013, when she woke up to Defendant Sharper on top of her sexually assaulting her. b. On September 24,2013, Jane Doe A underwent a sexual assault examination at University Hospital. c. On November 4,2013, the New Orleans Police Department received a DNA analysis report from the Louisiana State Police Crime Lab that Defendant Sharper's DNA was present on the perineal swab taken from Jane Doe A during the examination on September 24, 2013. 2. I am the detective currently assigned to investigate Los Angeles Police Department Report file number 13-0816295 and believe the following to be true: a. On October 30,2013, Jane Doe 1 and Jane Doe 3 went to Bootsy Bellows, a nightclub in West Hollywood. They were introduced to Defendant Sharper through a mutual friend. As the club was closing, Defendant Sharper invited both girls to an after party. The girls agreed to accompany Defendant Sharper to the after party and as a result, they drove together using a car service. While en route to the after party, Defendant Sharper informed the girls he wanted to stop at his hotel to "pick up something." Upon arriving at his hotel, Defendant Sharper asked the girls to accompany him to his suite. When they entered the suite, Defendant Sharper provided them with a shot of what he claimed to be, "Coffee Petron." Within minutes of consuming the beverage, both girls reported to have, "blacked out." b. Several hours later, Jane Doe 1 woke up naked with Defendant Sharper sexually assaulting her. Jane Doe 3 woke up on the sofa in the living room and then entered Defendant Sharper's room, interrupting his actions. Thereafter, Jane Doe 1 and Jane Doe 3 gathered their belongings and immediately left the location. The girls used a taxi and returned to their residence where they slept for an additional four hours. c. Both females reported having no memory of anything after consuming the shot until they woke up in the hotel suite several hours later. Additionally, both females reported having intermittent memory loss between the time they left the hotel and awoke at their residence at approximately 1300 hours. 28 - 6MOTION CONCERNING BAIL; MEMORANDUM OF P&A; AND SUPPORTING DECLARATION ( 2 3 4 5 6 7 8 9 10 11 12 13 14 15 3. I am the detective currently assigned to investigate Los Angeles Police Department Report file number 14-0804535/6 and believe the following to be true: a. On January 14,2014, Jane Doe 2 and Jane Doe 4 went to Bootsy Bellows, a nightclub in West Hollywood. As the club was closing, Jane Doe 4 was approached by Defendant Sharper. He invited both girls to an after party. The girls agreed to accompany Defendant Sharper to the after party and as a result, they drove together using a car service. The three stayed at the party until approximately 4:00 a.m. at which time, Defendant Sharper invited them to accompany him to an additional after party. While en route to the second after party, Defendant Sharper informed the girls he wanted to stop at his hotel to pick up some narcotics. Upon arriving at Defendant Sharper's hotel, Defendant Sharper asked the girls to accompany him to his suite. When they entered the suite, Defendant Sharper provided them with a shot of an unknown alcoholic beverage. Within minutes of consuming the beverage, both girls reported to have, "blacked out." b. At approximately 8:30 a.m., both girls woke up on the pullout sofa bed in the living room. Jane Doe 2 immediately felt as though she had been sexually assaulted. The girls gathered their belongings and left the hotel, using a taxi. Upon arriving to Jane Doe 4's apartment, the girls slept for an additional three to four hours. c. Later that same evening, both girls sought medical treatment and underwent a sexual assault examination. d. Both females reported having no memory of anything after consuming the shot until they woke up in the hotel suite several hours later. Additionally, both females reported having intermittent memory loss between the time they left the hotel and awoke at their residence later that same day. 16 17 18 19 20 21 22 23 24 25 26 27 4. I reviewed the Stoughton Police Report file number 14-83-0F and Revere Police Report file number 14-1930-0F, courtesy reports taken on behalf of The Las Vegas Metropolitan Police Department. I additionally reviewed the tape-recorded interviews of Jane Doe B and Jane Doe C. I believe the following to be true: a. On January 15,2014, Jane Doe B, Jane Doe C and John Doe met Defendant Sharper at a Las Vegas nightclub. Defendant Sharper invited the three to an after party in his hotel room. Upon arriving to the room, Jane Doe B, Jane Doe C, and John Doe realized there was no one else present. Shortly thereafter, Defendant Sharper provided shots to Jane Doe B, Jane Doe C, and John Doe. Moments after consuming the shots, all three individuals reported to have "blacked out." b. Jane Doe B woke up alongside Defendant Sharper in his bed. Jane Doe B, got up to use the restroom. While in the restroom, she observed herself to have visible injuries to her face which she could not account for. Jane Doe B returned to the bed where she fell back asleep. Jane Doe B subsequently woke up and Defendant Shaper asked her how she was feeling because he claimed she had gotten sick the night before and vomited. Defendant Sharper then provided her with an unknown beverage that he claimed would help her feel better. Jane Doe B took a few sips of the beverage. The next thing she remembered was Defendant Sharper sexually assaulting her. 28 -7MOTION CONCERNING BAIL; MEMORANDUM OF P&A; AND SUPPORTING DECLARATION ( 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 c. Jane Doe C woke up alone on the hotel living room couch. She immediately felt as though she had been sexually assaulted. d. Later that same evening, both girls sought medical treatment and underwent a sexual assault examination. e. Both females reported having no memory of anything after consuming the shot until they woke up in the hotel suite several hours later. Additionally, both females reported having intermittent memory loss between the time they left the hotel and awoke at their hotel later that same day. f. John Doe reported after taking the shot provided by Defendant Sharper, his next memory was of him sitting alone at the bar inside of the same hotel. John Doe has no memory of how he arrived at the bar. 5. I reviewed Tempe Arizona Police Report file number 2013-147325 and believe the following to be true: a. On November 20,2013, Jane Doe D, Jane Doe E, and Defendant Sharper went out to a nightclub in Scottsdale and consumed alcoholic beverages. Jane Doe D began acting strangely prompting her friends to take her home. Defendant Sharper returned to the apartment with the girls. b. Jane Doe D was put to bed in her pajamas by Jane Doe E and a friend. c. Jane Doe F, who was Jane Doe D's roommate and not out at the club with them, woke up and joined Jane Doe E and Defendant Sharper in the living room. Defendant Sharper provided Jane Doe E and Jane Doe F with shots. d. Moments after consuming the shot, Jane Doe E blacked out. Her next memory was waking up on the couch at approximately 8:35 a.m. She gathered her belongings and left the apartment. e. Immediately after consuming the shot, Jane Doe F began to feel physically strange and disoriented and as a result, retreated to her bedroom to lie down. Subsequently, while on her way to the bathroom, Jane Doe F observed Defendant Sharper on top of Jane Doe E on the living room couch with his buttocks exposed moving in a thrusting motion. Jane Doe F returned to her bedroom and fell asleep. f. Upon waking up in the morning, Jane Doe D was naked from the waist down. She had no memory of the night's events or how her clothing was removed. g. Later that afternoon, all three girls sought medical treatment. Jane Doe D and Jane Doe E underwent sexual assault examinations. h. Evidence, specifically, the cup provided by Defendant Sharper with the shot, was collected from Jane Doe D and Jane Doe F's apartment. Subsequent testing by the crime lab revealed the presence of zolpidem in the cup. 23 I swear under penalty of perjury under the laws of the State of California that the 24 foregoing is true and correct to the best of my knowledge. 25 26 27 28 Executed on this 14th day of February, 2014 at LOS ANGELES, California. NT ~~ CLA -8MOTION CONCERNING BAIL; MEMORANDUM OF P&A; AND SUPPORTING DECLARATION 1 2 3 4 5 6 7 8 9 TARLOW & BERK PC Blair Berk, Esq., State Bar No. 159087 Attorney at Law 9119 Sunset Boulevard Los Angele~ California 90069 Telephone: \310) 278-2111 Leonard Levine~ Es~ State Bar No. 50998 1901 Avenue or the Stars, Suite 615 Los Angeles CA 90067 Telephone: (310) 553-6510 Attorneys for Defendant Darren Sharper SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF LOS ANGELES 11 12 13 THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, 14 15 16 17 18 19 20 21 22 v. DARREN SHARPER, Defendant. CASE NO. BA421442 NOTICE OF MOTION, MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER PROHIBITING THE PROSECUTION AND SPECIFICALLY THE LOS ANGELES DISTRICT ATTORNEY'S OFFICE FROM FURTHER PREmDICIAL PRE-TRIAL PUBLICITY BY ITS DIRECT DISSEMINATION OF FALSE MISLEADING AND/OR UNADJUDICATED PROSECUTION EVIDENCE TO THE PRESS; AND SUPPORTING DECLARATION Date: Time: Place: February 20, 2014 1:30 pm Div.30 23 24 25 26 27 28 TO THE HONORABLE RENEE KORN, JUDGE OF THE SUPERIOR COURT, STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES AND THE DISTRICT ATTORNEY OF LOS ANGELES COUNTY AND DEPUTY DISTRICT ATTORNEYS STACY OKUN -WIESE AND ALISON Memorandum of P&As Re Motion and Motion to Prohibit Prosecution from Further Dissemination of Investigative Reports, Witness Statements and Unadjudicated Evidence ( 1 - MEYERS: Please take notice that on February 20, 2014, at 1:30 p.m. in Division 30 of 2 3 the Los Angeles Superior Court, defendant Darren Sharper will move for a 4 protective order prohibiting the Los Angeles District Attorney's Office from 5 further prejudicial pre-trial publicity of its direct dissemination to the public of 6 false misleading and/or unadjudicated prosecution evidence to the media through 7 Twitter feed, press releases, or by any other means. The defense requests the following order: 8 9 Order p'rohibiting the Los Angeles District Attorney's Office from further dissemination to the public during the penden9' of this case of any unadjudicated evidence in People v. Sliarper. Case No. BA421442, and/or al1Y related ongoing crimina) investigation, including but not limited to . WItness statements, summanes of WItness statements, results of any forensIc testing~ declarations of e~perts 8:nd/or investigators, and any other as yet unadmItted purported eVIdence III the matter. 10 11 12 13 14 15 This motion will be based on this notice of motion and motion, the attached points and authorities, and on such other and further evidence and argument as may be introduced at the hearing of this motion. 16 17 18 19 20 21 22 23 24 25 26 27 I. THE PROSECUTION'S ATTEMPTED "TRIAL BY TWITTER FEED" DESTROYS MR. SHARPER'S PRESUMPTION OF INNOCENCE, RIGHT TO DUE PROCESS, RIGHT TO A FAIR TRIAL, AND DEMEANS THE FUNCTION OF THIS COURT With no objective or fair proper purpose to do so other than to improperly influence prospective jurors and to irreparably prejudice Darren Sharper's right to a fair trial, right of due process and right to properly confront the evidence against him under the federal and California constitutions, the Los Angeles County District Attorney's Office has embarked on an orchestrated press campaign through its paid publicists, to smear Mr. Sharper in the media by intentionally distributing highly inflammatory and prejudicial false, misleading and/or 28 Memorandum of P&As Re Motion and Motion to Prohibit Prosecution from Further Dissemination of Investigative Reports, Witness Statements and Unadjudicated Evidence 2 ( . ( 1 unadjudicated evidence in this case, clearly intended to destroy Mr. Sharper's 2 presumption of innocence and ability to get a fair trial without even a shred of 3 evidence having ever been properly admitted in a court of law. The prosecution's improper attempt to wage a media campaign and 4 5 irreversibly prejudice Mr. Sharper's right to a fair trial, demonstrated by its 6 improper conduct by releasing unadjudicated evidence on February 14, 2014, 7 should not be countenced by this court. Specifically, Mr. Sharper is requesting that 8 a protective order be issued to limit further dissemination by the prosecution in 9 this case of false and unadjudicated evidence, including but not limited to witness 10 statements, summaries of witness statements, results of any forensic testing, and 11 any other as yet un admitted purported evidence in this case. 12 13 14 II. FACTUAL STATEMENT During the one month's time period between Mr. Sharper's arrest on 15 January 17, 2014 and the first court appearance on February 14, 2014, the Los 16 Angeles District Attorney's Office intentionally spumed Sharper's Counsel's 17 repeated attempts to communicate with the assigned prosecutors about any aspect 18 of this case, the charges prosecutors intended to file, and the ten million bail they 19 first disclosed on the day of his arraignment they intended to seek. Astoundingly, 20 the Los Angeles District Attorney's Office refused to respond to Mr. Sharper's 21 repeated request, made through his counsel, on three different occasions prior to 22 the filing of charges in this case, to present exculpatory evidence on Mr. Sharper's 23 behalf prior to a filing decision being made. See Declaration of Blair Berk, at ~ 3 24 and 4. Instead, and without any notice or even prior production of the criminal 25 complaint, prosecution motions, or any court documents to the defense, at 8:49 am 26 on the morning of February 14, 2014, and prior to any first appearance by Mr. 27 Sharper in this case, the Los Angeles District Attorney's Office contacted 28 hundreds of media outlets across the country and posted to its Twitter feed (with Memorandum ofP&As Re Motion and Motion to Prohibit Prosecution from Further Dissemination of Investigative Reports, Witness Statements and Unadjudicated Evidence 3 lover 1000 followers) a detailed 300 word press release (Exhibit A), copies of an 2 inaccurate version of the criminal complaint (claiming to seek one hundred million 3 dollars in bail against Mr. Sharper) (Exhibit B), and two factual declarations from 4 the lead investigator in the case filled with supposition, rumor, and unadjudicated 5 and unadmitted potential evidence in this case (Exhibit C). See Berk Declaration, 6 ~ 5. 7 Not a single purported fact contained in the prosecution's press release 8 distributed widely on February 14,2014, has to this day been admitted in any 9 court of law. Moreover, the press release instead emphasized the anticipated 10 "argument" ofDDA Okun-Wiese (which in fact did not even occur) by including a 11 highly inflammatory and prejudicial "tease" that claimed the prosecutor would 12 "ask a judge to raise bail to $10 million because Sharper, who lives in Miami, 13 Florida, is suspected o/raping women in Arizona, Nevada, and Louisiana." See 14 Berk Declaration, ~ 6. The press release also falsely stated that the charges 15 pending in this case involve claims by the women from the alleged October 30 16 incident that Mr. Sharper gave them "shots." Not a single investigative report 17 detailing the allegations in this case and produced to the defense reflects that any 18 witness from October 30,2013 claims Mr. Sharper ever gave them a "shot" of 19 alcohol or anything described as a "shot." Id. 20 The unconformed and as yet unfiled criminal complaint released to the 21 media by the LADA on February 14, 2014, contained an inaccurate request for a 22 $100 million dollar bail. At the time it was distributed by prosecutors to the media, 23 the prosecutors refused to supply ev~n a copy of the complaint to Mr. Sharper's 24 counsel and informed them they would have to obtain it from the clerk's office. 25 Finally, the two investigator declarations disseminated to the press by the 26 LADA were both supporting declarations to the prosecution'S bail deviation 27 motion at the time of their distribution to the press, and had not even been filed in 28 a court of law, not to mention admitted by this court as proper evidence in this Memorandum of P&As Re Motion and Motion to Prohibit Prosecution from Further Dissemination of Investigative Reports, Witness Statements and Unadjudicated Evidence 4 I l ( 1 case. Each of the declarations is replete with inaccurate statements of fact, 2 improper speculation, conclusions, and material omissions of exculpatory 3 evidence. In its press distribution, these declarations were presented as a purported 4 factual summary of the case, and were republished almost verbatim in 429 5 separate news articles across the Los Angeles area and nationwide (Exhibit D). Id. 6 at ~ 7. 7 The conduct of the Los Angeles County District Attorney's Office was 8 clearly intended to decimate Mr. Sharper's presumption of innocence and to 9 convict him in the court of public opinion without the burden of presenting a shred 10 of actually admissible evidence in a court of law. This court should not countence 11 "Guilt by Twitter Feed" by the Los Angeles County District Attorney's Office, and 12 the defense respectfully requests that the prosecution be restrained from further 13 prejudicial and improper conduct in this regard. 14 15 III. THIS COURT HAS CLEAR AUTHORITY TO ACT TO PROHIBIT 16 FURTHER PROSECUTION MISCONDUCT BY ISSUANCE OF A 17 PRE-TRIAL PROTECTIVE ORDER 18 As the United States Supreme Court has clearly held in Gentile v. State Bar 19 of Nevada, 111 S. Ct. 2720 (1991), "few, if any, interests under the Constitution 20 are more fundamental than the right to a fair trial by 'impartial' jurors, and an 21 outcome affected by extrajudicial statements would violate that fundamental 22 right." In the performance of a trial court's duty to control adverse publicity and to 23 protect the right of an accused to a fair trial, "a trial judge may remove from public 24 scrutiny a recording containing data or material that, if publicized prior to trial, 25 could result in publicity so inherently prejudicial as to endanger a fair tria1." 26 People v. Jackson, 128 Ca1. App. 4th 1009, 1022 (2005) (citing Craemer v. 27 Superior Court, 265 Ca1. App. 2nd 216,225 (1968)); see also Press Enterprise 28 Co. v. Superior Court, 464 U.S. 501, 508, 104 S. Ct. 819 (1984) ("No right ranks Memorandum ofP&As Re Motion and Motion to Prohibit Prosecution from Further Dissemination of Investigative Reports, Witness Statements and Unadjudicated Evidence 5 1 higher than the right of the accused to a fair trial"). 2 A court may clearly issue an order restraining the prosecution from 3 discussing a case with the news media if there is a "reasonable likelihood" that 4 information about the case would make it difficult to impanel an impartial jury and 5 would tend to prevent a fair trial. Younger v. Smith 30 CA3d 138,160 (1973). The 6 restraints imposed by this court on the prosecution can and should be as or more 7 stringent than those applicable to the defense, given the critical 5th and 6th 8 amendment rights of due process and a fair trial at issue to Mr. Sharper. Levine v. 9 U.S. Dist. Court 764 F 2d 590, 599 (9 th Cir. 1985) 10 "[T]he public generally has no right to pretrial disclosure of questionable 11 evidence, a disclosure which might well deny to the accused the fair and impartial 12 trial which is his due." Allegrezza v. Superior Court, supra, 47 Cal. App. 3d at 13 951. In Allegrezza, a murder charge against a defendant had received widespread 14 county publicity in the media; the defendant moved that § 402(b) pleadings be 15 sealed and a hearing on the voluntariness of his confession be held in camera, 16 which motion was denied by the court; on petition for writ of mandate, the trial 17 court was found to have abused its discretion in denying the defendant's motion. 18 "Few things could more likely deny to him a fair trial of those charges, than a 19 pretrial public media announcement and elaboration of a confession which for 20 good reason is later denied acceptance in evidence. Weighing the constitutional 21 value here at stake, 'the most fundamental of all freedoms' ... , against the lesser 22 in contrasting affront to the public right of information or access, we conclude that 23 the Superior Court abused its discretion in its denial of an in camera hearing on 24 the issue of the volunteeriness of Allegrezza's purported confession." Id. at 952- 25 953 The Allegrezza court specifically found that in fulfilling its duty to insure a 26 fair trial, the court has the authority to preclude access to evidence or exhibits until 27 the parties can litigate the admissibility of any prejudicial information. Id. As 28 noted by the court, " ... any concern for demands at such a confession, disallowed Memorandum ofP&As Re Motion and Motion to Prohibit Prosecution from Further Dissemination oflnvestigative Reports, Witness Statements and Unadjudicated Evidence 6 ( 1 as evidence, should not lead to the eyes or ears of persons who may become jurors 2 of the case. Any reasonable doubt whether it will should be resolved in favor of 3 the accused." Id. at 951. 4 As made clear by the United States Supreme Court, "[d]ue process requires 5 that the accused receive a trial by an impartial jury free from outside influences. 6 Given the pervasiveness of modern communications and the difficulty of effacing 7 prejudicial publicity from the minds of the jurors, the trial courts must take strong 8 measures to insure that the balance is never weighed against the accused." 9 Sheppard v. Maxwell, 86 S. Ct. 1507. As articulated in Estes v. Texas, 85 S. Ct. 10 1628, "[t]he atmosphere essential to the preservation of a fair trial- the most 11 fundamental of all freedoms - must be maintained at all costs." While recognizing 12 that our law demands that the public not unnecessarily be denied information 13 relating to the functioning of government, the Allegrezza court made clear that 14 "that policy must yield when it impinges upon the right of a criminally accused to 15 a fair trial." Quoting Cramer v. Superior Court, supra, 265 Cal. App. 2d at 225, 16 "It is clear that a judge has the duty to protect a defendant from inherently 17 prejudicial publicity." As is the case here, if a trial court determines that the 18 prosecution's purported evidence is ultimately admissible and admits it, the public 19 is by no means denied the information - instead, access to the information would 20 merely be delayed until the threat to Mr. Sharper's right to a fair trial has passed. 21 The responsibility for ensuring that a trial is both fair for the defense and 22 prosecution can be a significant challenge for any court. "[w]idespread 23 dissemination of evidence, which mayor may not be admissible at trial, can only 24 complicate the process of selecting an unbiased jury. People v. Jackson, 128 Cal. 25 App.4th 1009, 1015-16 (2005). So said the Court of Appeal in our own Second 26 Appellate District in 2005. In Jackson, the Court of Appeal for almost uniformly 27 upheld the sealing of pleadings and other inflammatory materials by the trial court, 28 finding it was clearly necessary to avoid prejudicial information from being made Memorandum ofP&As Re Motion and Motion to Prohibit Prosecution from Further Dissemination of Investigative Reports, Witness Statements and Unadjudicated Evidence 7 1 public. The trial court in Jackson made the finding that" '[e]ach of the documents 2 3 in their unredacted form identified potential witnesses and specifies items of 4 evidence the admissibility of which has yet to be determined by the court and 5 provides the identify of the minor complaining witness or his family ... In this 6 case, protection of the defendant's right to a fair trial and protection of the identity 7 of the minor complaining witness and his family overcomes the right of public 8 access to the record. A substantial probability exists that those interests will be 9 prejudiced if the record is not sealed as requested.'" quoted in People v. Jackson, 10 128 Cal. App. 4th at 1017 (quoting the trial court's order). The trial court went on 11 to find that the sealing order was "necessary to maintain the integrity of the 12 available jury pool by limiting exposure to the expected evidence and testimony 13 pretrial and to prevent exposure to inadmissible items of evidence." Id. 14 15 IV. CONCLUSION The Los Angeles County District Attorney's office clearly seeks to 16 17 strategically gain advantage in its criminal prosecution of Mr. Sharper and to 18 destroy his presumption of innocence and right to a fair trial in one fell swoop, 19 before the prosecution has presented a single piece of evidence in any court of 20 law. As the United States Supreme Court made clear in Berger v. United States, 21 295 U.S. 78, 88 (1935), the prosecutor's obligation in a criminal case "is not that it 22 shall win a case, but that justice shall be done." In doing so, a prosecutor " ... may 23 strike hard blows, he is not at liberty to strike fowl ones" and has a " ... duty to 24 refrain from improper methods calculated to produce a wrongful conviction... " Id 25 at 88. 26 Such conduct as exhibited by the extra-judicial statements made by the 27 prosecuting authority in a criminal case jeopardizes the integrity of the entire 28 criminal justice system and brings shame to any prosecutor whose first duty is Memorandum of P&As Re Motion and Motion to Prohibit Prosecution from Further Dissemination of Investigative Reports, Witness Statements and Unadjudicated Evidence 8 1 justice and fairness. The conduct of the Los Angeles County District Attorney's 2 Office on February 14,2014 in releasing such an inflammatory and prejudicial 3 press release and such extensive unadjudicated evidence in this case has already 4 prejudiced Mr. Sharper severely and unfairly. This court should act immediately to 5 prevent the prosecution from engaging in further extra-judicial publicity in this 6 case and grant the order as proposed by the defense. 7 8 9 10 11 Respectfully submitted, ~1Sel~ Blair Berk 12 13 14 15 Leonard Levine Attorneys for Defendant Darren Sharper 16 17 18 19 20 21 22 23 24 25 26 27 28 Memorandum of P&As Re Motion and Motion to Prohibit Prosecution from Further Dissemination ofInvestigative Reports, Witness Statements and Unadjudicated Evidence 9 \ 1 DECLARATION OF BLAIR BERK IN SUPPORT OF 2 PROTECTIVE ORDER 3 4 5 6 7 8 9 10 11 12 13 I, Blair Berk, declare as follows: 1. I am an attorney at law and a named partner in the law firm of Tarlow & Berk in Los Angeles, California. I am also the attorney of record for Darren Sharper in People v. Sharper, BA421442. I am licensed to practice law in the State of California and have practiced criminal law in California for over 22 years. 2. On January 22,2014, as Mr. Sharper's attorney, I contacted LAPD Detective Blanca Lopez and specifically requested the identity and contact information for the assigned prosecutors in this case. After forwarding correspondence to Det. Lopez explicitly stating I was counsel for Mr. Sharper in this matter, I was told that she "could not give" me the name and contact information for the 14 15 16 17 18 19 20 21 22 assigned prosecutors and instead referred me to the general telephone number of the major crimes unit of the Los Angeles District Attorney's Office. 3. On January 22, 2014, I contacted the Major Crimes Division of the Los Angeles District Attorney's Office and requested identification ofthe assigned prosecutors in this matter and spoke to the assistant chief of the division, Craig Hum, and specifically asked for the opportunity to discuss the anticipated charges, the court proceedings set for February 14, and requested the opportunity to make a presentation on behalf ofMr. Sharper prior to the filing 23 decision being made in the case. Mr. Hum stated he had no information to give 24 me, told me he did not have any answer about whether I would be allowed to 25 make a presentation, and already had my telephone number and someone 26 would get back to me. 27 4. Over the next 3 weeks, counsel for Mr. Sharper contacted the Los Angeles 28 District Attorney's Office no less than six times, including leaving an Memorandum of P&As Re Motion and Motion to Prohibit Prosecution from Further Dissemination ofInvestigative Reports, Witness Statements and Unadjudicated Evidence ( 1 unresponded to voicemail for the Head Deputy District Attorney ofthe Major 2 Crimes Unit, Gary Hearnsberger, requesting the identity of the assigned 3 prosecutors and the opportunity to make a presentation on Mr. Sharper's 4 behalf, which is consistent with the stated policy of the LADA to review 5 eXCUlpatory evidence if requested prior to making a charging decision in its 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 cases. 5. On February 14,2014, two hours prior to any court proceedings taking place in Mr. Sharper's case, as of8:53 am the Los Angeles District Attorney's Office posted a Twitter feed and sent out emai1s contacting all of the major press outlets (print, radio and television) in the Los Angeles area and nationwide with a 300 word press release, a copy of the as yet unfiled criminal complaint, and also sent to the press an unconformed copy of the prosecution's bail deviation motion, specifically including two declarations from the lead investigator in this case detailing purported "facts" in the case. 6. The LADA press release emphasized the anticipated "argument" of DDA Okun-Wiese (which in fact did not occur) by including a highly inflammatory and prejudicial "tease" that claimed she would "askajudge to raise bail to $10 million because Sharper, who lives in Miami, Florida, is suspected of raping women in Arizona, Nevada, and Louisiana." The press release also falsely stated that the charges pending in this case invol ved claims by the women from the October 30 incident that Mr. Sharper gave them "shots." 23 7. As a result ofthe Los Angeles District Attorney's press campaign, every major 24 print, radio and television outlet in Los Angeles quoted extensively from both 25 the press release and declarations in its coverage of Mr. Sharper's case on 26 February 14,2014 and over 429 news articles were published which reprinted 27 verbatim both the unadjudicated evidence contained in the declarations and the 28 DA's publicist statements contained in the press release. Memorandum of P&As Re Motion and Motion to Prohibit Prosecution from Further Dissemination oflnvestigative Reports, Witness Statements and Unadjudicated Evidence 11 ( 1 2 3 I declare, under penalty of perjury, that the foregoing is true and correct. Executed this 18 th day of February, 2014 at Los Angeles, California. 4 5 6 7 8 9 Blair Berk Attorney for Darren Sharper 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Memorandum of P&As Re Motion and Motion to Prohibit Prosecution from Further Dissemination of Investigative Reports, Witness Statements and Unadjudicated Evidence 12 1 PROOF OF SERVICE 2 3 4 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) 5 6 I am employed in the County of Los Angeles, State of California; I am over 7 the age of eighteen years and not a party to the within action; my business address 8 is: 9119 Sunset Boulevard, Los Angeles, California 90069. 9 On February 19,2014, I caused a true copy of the attached NOTICE OF 10 MOTION, MOTION AND MEMORANDUM OF POINTS AND 11 AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER 12 PROHIBITING THE PROSECUTION AND SPECIFICALLY THE LOS 13 ANGELES DISTRICT ATTORNEY'S OFFICE FROM FURTHER 14 15 16 PREJUDICIAL PRE-TRIAL PUBLICITY BY ITS DIRECT DISSEMINATION OF FALSE, MISLEADING AND/OR UNADJUDICATED PROSECUTION EVIDENCE TO THE PRESS; AND SUPPORTING DECLARATION to be served upon the interested party by the method indicated: 17 18 Stacy Okun-Wiese Deputy District Attorney Los Angeles County District Attorney's Office 210 W. Temple Street, 18th Floor Los Angeles, California 90012 19 20 21 22 23 24 25 26 (X) By Hand Delivery I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 18th, 2014, in Los Angeles, California. 27 28 Memorandum of P&As Re Motion and Motion to Prohibit Prosecution from Further Dissemination of Investigative Reports, Witness Statements and Unadjudicated Evidence 13 ( , 1 TARLOW & BERK PC Blair Berk, Esq., State Bar No. 159087 2 Julianne Prescop, State Bar No. 267678 3 Attorneys at Law 4 9119 Sunset Boulevard 5 Los Angeles, California 90069 Telephone: (310) 278-2111 6 7 8 9 10 11 12 Leonard Levine, Esq., State Bar No. 50998 1901 Avenue of the Stars, Suite 615 Los Angeles, California 90067 Telephone: 310-553-6510 Attorneys for Defendant Darren Sharper 13 14 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 16 17 18 19 20 THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, v. 21 22 23 24 DARREN SHARPER Defendant. Case No. BA421442 ! DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAIL; ) MEMORANDUM OF POINTS AND ) AUTHORITIES; DECLARATION OF ) BLAIRBERK ) ) Date: February 20,2014 ) Time: 8:30 a.m. ) Division: 30 ) ---------------------------- 25 26 27 28 Darren Sharper, by and through his counsel of record, hereby submits his opposition to the prosecution's Motion Concerning Bail. 1 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAIL ·. ( 1 This Opposition is based on the attached Memorandum of Points and 2 Authorities, the Declaration of Blair Berk, and such other evidence as may be 3 presented at the hearing. 4 5 DATED: February 19,2014 Respectfully submitted, 6 7 8 9 Blair Berk Attorney for Darren Sharper 10 11 12 13 ~~ Leonard Levine Attorney for Darren Sharper 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAIL POINTS AND AUTHORITIES 1 2 3 4 I. INTRODUCTION Darren Sharper is a 38 year old man who has no criminal record of any kind. 5 For the last 20 years, Mr. Sharper has spent his life in the scrutiny of the public's 6 eye, first as a distinguished All-American football player and graduate of William 7 and Mary College, then for 14 years in the National Football League as an All-Pro 8 player and Super Bowl Champion, and for the last two years as a national football 9 analyst based in Los Angeles. Not only has Mr. Sharper never been convicted of 10 any crime during his lifetime, but prior to the allegation first made against him in 11 New Orleans in September 2013, Mr. Sharper has never been arrested or even 12 complained of as having committed any kind of criminal wrongdoing. Moreover, 13 since his highly publicized arrest over a month ago, on January 17, 2014, and his 14 posting of a $200,000 bond, there has been no suggestion or claim of any kind that 15 Mr. Sharper has failed in any way to fully comply with the conditions of his bond. 16 There is absolutely no evidence or allegation that he has engaged in any wrongful 17 18 behavior during the more than a month that he has been free on the $200,000 bond. 19 Pauline Sharper, have been married for 45 years. His father, Harry, is a retired high 20 21 school principal, and his mother worked for over 30 years for a telecommunications 22 23 24 25 26 27 28 Mr. Sharper is the product of a loving, stable family. His parents, Harry and company. His sister, Monica Sharper-Brown, is married to a manager at a Best Buy store. Mr. Sharper is a loving father to his two children, and a caring uncle to his sister's three children. Mr. Sharper's brother, Jamie Sharper, also played in the National Football League for nine years. Mr. Sharper has a long history of giving back to the community. In 2000, he started the Sharper Kids Foundation, which has set up numerous after-school programs for underprivileged children. He has run several football camps for 3 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAlL ( 1 underprivileged kids, and participates in a separate football camp program which 2 donates its proceeds to breast cancer research. Mr. Sharper also founded the "Hope 3 for the Holidays" program with Roman Harper, in which he and other professional 4 football players help rebuild homes for displaced victims of Hurricane Katrina. He 5 has participated in numerous other charity events as well, including providing 6 meals to the poor for Thanksgiving. In addition to donating money towards causes 7 8 he believes in, Mr. Sharper has donated his time and efforts to give back to the community. 9 10 11 12 Despite being a public figure for so long, and his high profile as a widely respected and well known professional football player, Mr. Sharper had never been accused of any wrongdoing prior to the allegations listed in the prosecution's Motion Concerning Bail. 13 14 II. LEGAL STANDARD impose "excessive" or unreasonable bail. (Cal. Const. art. 1, § 12; U.S. Const. 18 19 amend. VIII.) Moreover, as the California Court of Appeal has noted, bail must not 20 be "set ... in a sum that is the functional equivalent of no bail." (In re Christie 21 (2001) 92 Cal.App.4th 1105, 1109.) The plain meaning of "excessive bail," is that 22 it "be greater than necessary to achieve the purposes for which bail is imposed." 23 (Galen v. County of Los Angeles (9th Cir. 2007) 477 F.3d 652, 661-62, citing 24 v. Salerno (1987) 481 U.S. 739, 754; Jennings v. Abrams (S.D.N.Y. 1983) 565 F. 25 SUpp. 137, 138.) The court must not impose bail to achieve an invalid state interest u.s. 26 27 28 The prosecution does not allege that there are any facts which would justify denying bail to Mr. Sharper outright. I 4 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAlL ( 1 (Galen v. County of Los Angeles, supra, 477 F.3d at p. 660), such as for the purpose 2 of punishing .the defendant. (People v Gilliam (1974) 41 CA3d 181,191.) 3 As the California Supreme Court has recognized, Mr. Sharper has 4 tremendous liberty interests at stake due to the prosecution's request to increase bail 5 to an excessive amount: 6 7 8 9 10 11 12 13 14 15 16 17 18 That decision affects the detainee's liberty, a fundamental interest second only to life itself in tenns of constitutional importance. (Citations.) A detainee who is denied pretrial release remains in jail, often for periods of several months, despite the fact that there has been no detennination of his guilt or innocence .... There are other important deprivations which follow pretrial incarceration. The detainee's ability to adequately prepare a defense is greatly curtailed [Footnote omitted] and consultation with an attorney is severely impaired. [Footnote omitted.] ... Imprisonment severely hinders the detainee's ability to gather evidence and interview witnesses. Consequently, the effectiveness of counsel's assistance and the detainee's right to a fair trial are generally impaired. (Citation.) ... (Van Atta v. Scott (1980) 27 Cal. 3d 424, 435-436 superseded by statute on other grounds, as stated in In re York (1995) 9 Cal. 4th 1133.) 19 20 A person accused of a serious or violent felony is entitled to a hearing, in 21 open court, before he "may be released on bail in an amount that is either more or 22 less than the amount contained in the schedule of bail for the offense." (Pen. Code § 23 1270.1(a).) The defense must be given "a two-court-day written notice and an 24 opportunity to be heard" when the prosecution seeks to raise bail above the 25 presumptive amount. (Pen. Code § 1270.l(b).) If the court raises the defendant's 26 bail above the amount provided for in the bail schedule, it must state the facts on 27 28 which its decision is based, and not merely invoke conclusions, in order to allow 5 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAIL 1 the reviewing court to determine whether bail is excessive. (In re Christie, supra, 92 2 Cal.App.4th at pp. 1109-10.) 3 4 III. THE PROSECUTION'S REQUEST TO INCREASE MR. 5 SHARPER'S BAIL TO $10 MILLION IS UNCONSTITUTIONAL 6 AND EXCESSIVE 7 In their Motion Concerning Bail, the prosecution has asked for an upward 8 deviation in bail that is 5,000 percent more than the $200,000 amount specified by 9 the bail schedule. In fact, the $10 million requested bail is 1,000 percent greater 10 11 than the presumptive amount of bail ($1 million dollars), listed in the Los Angeles 12 13 14 17 18 19 20 21 County Bail Schedule, for a defendant who is accused of an enumerated sex offense, who also has two prior strikes or convictions for sex offenses. (Los Angeles Superior Court, Felony Bail Schedule (2014), at p. 21.) The prosecution does not explain why it is necessary to raise Mr. Sharper's bail to an amount that is since Mr. Sharper has no prior record, has yet to be convicted of any of the offenses charged, and where the gravamen of the offense, and any concerns regarding public safety, can easily be addressed, for the purposes of bail, by the court ordering reasonable conditions for Mr. Sharper's continued release, discussed below. The prosecution articulates two reasons for increasing Mr. Sharper's bail to 22 $10 million: "to protect further potential victims and to assure the defendant's 23 attendance at future hearings." (Motion Concerning Bail, at pp. 3-4.) However, the 24 $10 million requested bail is far greater than is necessary to achieve these purposes. 25 26 The court must not set bail in an amount that is excessive to achieve a valid state 27 The prosecution also entirely omits other factors that the court must consider 28 when setting bail, such as the previous criminal record of the defendant (Cal. Const. purpose. (Galen v. County of Los Angeles, supra, 477 F.3d at pp. 661-62.) 6 DEFENDANT'S OPPOSITION TO MOTION CONCERNfNG BAIL ( 1 art. 1 § 12; Pen. Code § 1275(a)), which clearly militate against raising Mr. 2 Sharper's bail. Mr. Sharper has been a highly visible person for most of his adult 3 life and has never faced a single allegation of wrongdoing prior to September, 2013. 4 Mr. Sharper has no criminal record of any kind, and he has never even been 5 accused, arrested, or charged with any other crime, including in those cases cited by 6 Detective Macchiarella in his declaration. 7 The prosecution has made no showing why Mr. Sharper's current $200,000 8 bail is inadequate to protect either of its stated interests, let alone why an increase to 9 10 11 12 13 14 15 16 17 18 19 20 21 22 $10 million dollars is necessary; especially since law enforcement was well aware that multiple women had made similar accusations on two separate occasions (October 30th and January 15 th ), and had already investigated the October allegations for over two months. Instead, no bail deviation was requested, and it was agreed that Mr. Sharper be released on $200,000 bail on January 17,2014, with no special conditions. This $200,000 bail was enough to ensure Mr. Sharper's appearance in court on February 14, 2014, even though Mr. Sharper knew of the nature of the serious allegations against him, and of the investigations against him in other jurisdictions. There have been absolutely no allegations that Mr. Sharper has been a danger to the public since being released on bail a month ago. Furthermore, on February 14, 2014, Judge Longoria ordered certain conditions on Mr. Sharper's bail, which the prosecution requested and the defense agreed to, in order to ensure Mr. Sharper's appearance pending the hearing on this motion and to protect the public 23 24 safety. A continuation of these conditions, along with Mr. Sharper's current 25 $200,000 bail, is sufficient to protect the public interest in this case as the litigation 26 proceeds. 27 28 7 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAIL 1 2 A. The Prosecution Has Based Its Motion on Speculation and 3 Argument Regarding Unproven Allegations from Other Jurisdictions 4 that have, to date, Resulted in No Finding of Probable Cause to 5 Support Either an Arrest or Prosecution 6 The prosecution's declaration in support of the requested increase misstates 7 some of the evidence against Mr. Sharper and contains material omissions of facts 8 in his favor. At the time that the prosecution filed the Motion, without notice to the 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defense, the defense had not been provided any discovery regarding any of the outof-state allegations, and only the most preliminary discovery for the charged offenses. Judge Longoria made it clear to the prosecution that the defense was entitled to all evidence supporting the basis for the prosecution's requested bail deviation. Although the prosecution did make preliminary reports regarding the outof-jurisdiction investigations available to the defense on February 17, 2014, the defense has still not been provided with complete witness interviews, toxicology screens, DNA evidence, surveillance videos, or relevant communications .between Mr. Sharper and some of the Jane Does, reflecting their previously-existing relationships or interactions after the alleged incidents. The defense has not been provided with any statements, made by Mr. Sharper to law enforcement, either in report or recorded form, though it is clear that he was interviewed extensively following his arrest. The defense has reason to believe that law enforcement has this evidence and is not providing it to the defense. The prosecution's declaration2 attempts to bootstrap uncharged, out-ofjurisdiction allegations to the charges in the current case, as a basis for the 26 27 28 2 There is some question whether the two declarations submitted by Detective Macchiarella were even written by him, given that presumably Detective Macchiarella would not have misspelled his own name, as is done on each of the declarations submitted. 8 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAIL ( 1 requested increase in bail. However, there is no basis in California law which would 2 allow the court to presume the truth of these out-of-jurisdiction allegations as a 3 reason for increasing bail, particUlarly where neither an independent magistrate nor 4 prosecutor has made a finding of probable cause to support an arrest or criminal 5 complaint. 6 An analysis of the evidence in this case shows that Detective Macchiarella 7 8 played fast and loose with some of the facts in his declaration, creating false 9 10 11 12 13 14 15 impressions, unsupported by the statements of witnesses and evidence in this case. The issues in this case will come down to whether Mr. Sharper had intercourse with the complaining witnesses, and, if so, whether the intercourse was knowing and consensual. (There is no dispute that in each of the cases the complaining witnesses engaged in consensual conduct, including "partying" with Mr. Sharper, and in at least one case, admitting to the use of marijuana and cocaine.) However, the declaration attempts to manufacture consistencies between the allegations even where none exist, such as characterizing the drinks that complaining witnesses 16 17 18 19 20 21 22 23 24 voluntarily drank as "shots," even when they are not described this way in the investigative and medical reports. Detective Macchiarella also asserted facts in his declaration, under the penalty of perjury, that are nowhere in the record provided to the defense and used to support the declaration. Detective Macchiarella asserts that testing by the crime lab in the Tempe, Arizona case, found the presence of Zolpidem in a cup found in Jane Doe D's apartment. The defense has not been provided any discovery regarding this testing, or the findings from this testing. 25 Additionally, the Declaration claims that Jane Doe 3 blacked out and 26 experienced memory loss after drinking a shot. (Motion Concerning Bail, at p. 6.) 27 The defense has not received any interview of Jane Doe 3 in which she provides a 28 basis for the declaration's claim that she ever experienced memory loss after being 9 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAIL ( ( 1 with Mr. Sharper. In fact, the discovery provided contains no interview of Jane Doe 2 3 whatsoever. Thus, the claims in the Declaration - and, more significantly, the 3 charge in the complaint - involving Jane Doe 3 appear to be based solely on the 4 hearsay of Jane Doe 1, who initially lied to the police when she claimed that she 5 was alone with Mr. Sharper at the time of the alleged incident, and not in the 6 7 company of Jane Doe 3. 8 9 10 11 12 13 14 15 16 17 18 Many of the allegations in the declaration are also contradicted by what little discovery the defense has been provided. The declaration in support of the Motion Concerning Bail materially omits evidence, cited above, regarding the alleged incident involving Jane Doe 1 and Jane Doe 3. It also does not mention that Jane Doe 1 admitted to law enforcement that she had lied when giving her initial statement to the police about the presence of another person with her. In fact, she maintained to the police that she was alone during the alleged incident, later admitting that she had lied about that material fact. Jane Doe 1 also admitted googling Mr. Sharper in the eight days before she made a report to law enforcement, and learning about his professional football career. Yet none of this is contained in the Declaration. The Declaration in Support also materially omits evidence regarding the 19 20 alleged incident involving Jane Doe 2 and Jane Doe 4. It omits the material fact that 21 both women admitted to medical staff that they had voluntarily used illegal 22 narcotics earlier that day, and that both women refused portions of the medical 23 24 exam. (See Declaration in Support, at p. 7.) There is also no support in the 25 by his hotel to pick up "narcotics." (Ibid.) On the contrary, the police report only 26 contains the allegation that Mr. Sharper said he wanted to pick "something" up. discovery for the contention that Mr. Sharper told the women that he wanted to stop 27 Further, the allegations in the Declaration regarding the out-of-state 28 investigations also contain many material omissions. Regarding the Nevada 10 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAIL ( t 1 allegations, the Declaration omits that Jane Doe B alleged that she first blacked out 2 before arriving at Mr. Sharper's hotel room, and after she and Mr. Sharper had been 3 splitting drinks all night. Regarding the New Orleans allegations, the Declaration 4 omits that at least two witnesses have spoken to law enforcement stating that they 5 did not observe anything wrong with Jane Doe A while she was with Mr. Sharper. 6 When discussing the Arizona allegations, the declaration omits all mention of Mr. 7 Sharper's prior consensual sexual relationship with Jane Doe D, which she admitted 8 to when speaking with law enforcement. These are all material, exculpatory facts 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that raise material doubt about the contentions in the Declaration. In reality, no Ambien has been detected in the system of any of the alleged victims. The Declaration omits the fact that Mr. Sharper has a valid prescription for Ambien, and that the Ambien residue found in one cup in one of the cases is entirely consistent with Mr. Sharper's personal and lawful use of Ambien. The Declaration also omits the contact between Jane Doe 1 and Mr. Sharper after the alleged incident in this case, which Detective Macchiarella knows about but has failed to reveal in his declaration. Rather than arrest Mr. Sharper following Jane Doe l' s complaint, law enforcement monitored a pretext phone call and text messages between Mr. Sharper and Jane Doe 1, which apparently did not yield sufficient evidence to result in a finding of probable cause to arrest Mr. Sharper at the time. Such potentially exculpatory evidence should have been included in a fair statement of the allegations in this case. In short, the Declaration in Support of the Motion Concerning Bail contains 23 24 many misrepresentations about the allegations that Mr. Sharper is facing in the 25 current case, and lacks a foundation for its conclusions regarding the uncharged 26 conduct in other jurisdictions. There is no basis in California law which would 27 allow the court to presume the truth of the uncharged, out-of-jurisdiction, 28 allegations, as a reason for increasing bail. The fact that the charges in this case are 11 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAIL ( 1 presumed true for the purposes of setting bail, only justifies the current bail set, 2 according to schedule, of $200,000 dollars. However, the declaration regarding the 3 out of jurisdiction allegations are not subject to the same presumption, and are 4 certainly insufficient as a basis for raising Mr. Sharper's bail by 5,000 percent. 5 6 7 B. The Prosecution Has Not Made a Showing that $10 Million Bail Is Necessary for the Protection of the Public 8 The prosecution alleges that it is necessary to increase Mr. Sharper's bail for 9 10 the protection of the public, and cites allegations in three uncharged, out-of-state 11 12 13 offenses, in support of this conclusion. However, these alleged offenses were all reported to law enforcement in the respective jurisdictions at least one month ago (the Las Vegas allegations), three months ago (Arizona), and up to almost five months ago (the New Orleans allegations). To date, no probable cause 14 18 19 20 21 22 23 24 no presumption that out-of-jurisdiction police reports are true, particularly in cases where there has been no arrest or determination of probable cause. The actions of the Los Angeles Police Department and law enforcement in the other jurisdictions do not support the prosecution's new contention that Mr. Sharper is a danger to society. The Los Angeles Police Department and Los Angeles County District Attorney's office have known about certain of these allegations since early November. Detective Macchiarella was assigned to the case 25 of Jane Doe 1 and 3 since November 13, 2013 at the latest, according to the 26 discovery that has been provided to the defense. He did not make any arrests at that 27 time, or even seek to question Mr. Sharper about the alleged incident. There is no 28 12 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAIL ( 1 indication that law enforcement believed that Mr. Sharper was a public danger in 2 the more than two months after learning about Jane Doe l' s allegations. 3 Even after allegations were made by Jane Doe 2 in January, 2014, and Mr. 4 Sharper was arrested, he was released on $200,000 bail - the presumptive bail in 5 the bail schedule - and the amount authorized the arrest warrant signed by Judge 6 Michael Abzug on January 16, 2014. Neither Detective Macchiarella nor any other 7 arresting officer sought an upward deviation at the time of arrest, as law 8 9 enforcement could easily have done were they actually concerned with Mr. Sharper's flight risk or danger to the community. 10 11 12 13 14 Likewise, law enforcement in New Orleans and Arizona have been informed of the allegations against Mr. Sharper for months - since September for the New Orleans case, and November for the Arizona case. To date, neither jurisdiction has issued a warrant for Mr. Sharper's arrest, indicating that they do not have probable cause in either jurisdiction. No warrant has been issued in Las Vegas either. These 15 16 17 18 decisions all indicate that there is not sufficient evidence to believe that Mr. Sharper is a danger to society, based solely on the unproven allegations, that have not yet met the standard of probable cause to arrest or charge Mr. Sharper. Most relevant to the Court's determination here, there have been no 19 20 21 allegations whatsoever that Mr. Sharper has behaved improperly with any person since his arrest and release on bail in this case on January 17, 2014. There have not 22 been any changes in facts or circumstances that would justify the prosecution's 23 requested 5,000 percent increase in the bail since Mr. Sharper was originally 24 released on bail over a month ago. 25 III 26 III 27 III 28 III 13 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAIL ( 1 C. The Prosecution Has Not Articulated Any Facts Which Would Justify 2 Increasing Mr. Sharper's Bail to Ensure that Mr. Sharper will 3 Appear at Future Court Appearances 4 The prosecution is required, by due process, to carry the burden of 5 presenting proof of the detainee's likelihood of non-appearance for future court 6 proceedings. (Van Atta v. Scott, supra, 27 Ca1.3d at 444.) The prosecution cannot 7 meet this burden, and has not even tried to meet its burden. The prosecution does 8 not provide any facts to justify Detective Macchiarella's conclusion "[t]hat any 9 assurance that the defendant will make all future court appearances depends on the 10 11 12 13 14 15 16 17 18 19 20 21 22 23 quantity of the bail." (Motion Concerning Bail. at p. 5.) The evidence shows that Mr. Sharper is not a flight risk. Mr. Sharper was arrested and released on bail one month ago on the most serious of the charges in the complaint now filed. Mr. Sharper has become aware of the out-of-state investigations against him since the time he was arrested in January and, in some cases, before. Despite this, he appeared at court for his scheduled appearance on February 14, 2014, knowing full well that he might be charged with very serious crimes carrying long sentences. Mr. Sharper voluntarily surrendered his passport on February 14, 2014, and has agreed to remain in Los Angeles County at this time. Furthermore, Mr. Sharper is a well-known and recognizable former professional athlete and national television commentator, who has been highly visible in the public eye for 20 years. He has been made even more recognizable by the prosecution's desire to publicize this case by, for example, posting a press release 24 containing detailed allegations against Mr. Sharper on its public twitter feed and 25 sending out copies of the criminal complaint, bail deviation motion, and the press 26 release to news organizations hours before ever providing the criminal complaint or 27 any of the discovery to the defense or the Court. This press release, involving the 28 filing of charges against Mr. Sharper, was reported in virtually every major news 14 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAIL ( ( 1 outlet across the country. A google search for "Darren Sharper charged" returns 2 more than 14 million results, most of which contain photographs of Mr. Sharper. 3 This level of publicity would make it extremely difficult for Mr. Sharper to avoid 4 making his future court appearances in this case. 5 Mr. Sharper has spent at least half of the last two years in Los Angeles for his 6 job as an employee of the NFL Network, headquartered in Culver City, a job which 7 he maintained until his arrest in this case. He has an extensive network of 8 9 professional and personal contacts in the Los Angeles area, and maintains extensive 10 area. He is more than willing and able to reside in the Los Angeles area, under 11 12 13 14 15 16 17 18 19 20 21 22 and long term personal relationships with his former teammates who reside in the strict terms and conditions (as proposed below), if required to do so, throughout the pendency of this litigation. Mr. Sharper's record of appearance in this case shows that pr03ecution's requested $10 million bail is far greater than necessary to ensure that Mr. Sharper will appear in court. IV. THE COURT MAY IMPOSE REASONABLE CONDITIONS OF BAIL IN ORDER TO PROTECT PUBLIC SAFETY The court may impose reasonable conditions on Mr. Sharper's bail, related to public safety. (See In re McSherry (2003) 112 Cal.AppAth 856, 860-863.) However, these conditions must not violate Mr. Sharper's due process or other constitutional rights. (Gray v Superior Court (2005) 125 CA4th 629, 636-644.) It 23 24 would be unreasonable and excessive to raise Mr. Sharper's bail to $10 million, 25 when reasonable bail conditions exist which would ensure public safety. 26 On behalf of Mr. Sharper, the present conditions of bail, which were added 27 after Judge Longoria reviewed the prosecution's Motion Concerning Bail and 28 became aware of the stated concerns of protecting public safety, are more than 15 DEFENDANT'S OPPOSITION TO MOTION CONCERNING BAIL ( 1 sufficient to ensure the public safety. These conditions, which were agreed to by the 2 defense and prosecution, and imposed by Judge Longoria on February 14,2014, are 3 to: 4 1) Remain on $200,000 bail; 5 2) Immediately surrender Mr. Sharper's passport to the Los Angeles Police 6 7 8 9 10 11 12 13 14 Department (which was completed on February 14,2014); 3) Stay in Los Angeles County for the pendency of the criminal proceedings; and 4) Stay away from the nightclub known as Bootsy Bellows. Mr. Sharper also voluntarily agreed, to the extent that he is aware of the identity of any complaining witness, to have absolutely no contact with any of them. Should the court have any concerns that these present conditions of bail, which Mr. Sharper has scrupulously abided by, are not sufficient to protect public safety or assure Mr. Sharper's appearance at future court proceedings, Mr. Sharper 15 16 17 18 19 20 21 is prepared to abide by any additional reasonable conditions of bail, including the following: 1) All of the present conditions of bail; 2) A formal, court imposed stay away order from the complaining witnesses; 3) That Mr. Sharper be ordered not to be alone with any female not known to him prior to the date of the allegations in this case in any non-public location, 22 specifically including hotel rooms, private residences, or other locations not 23 open to the public at large; 24 25 26 4) A stay away order from any night clubs, dance clubs, bars, parties, or any business where alcohol is a primary item of sale; and 5) A reasonable curfew. 27 The defense, and Mr. Sharper, are not unmindful of the legitimate public 28 safety concerns that the declaration of Detective Macchiarella, will likely raise in 16 DEFENDANT'S OPPOSITION TO MOTION CONCERNfNG BAlL ( 1 the Court's mind, though it involves unproven allegations from other jurisdictions. 2 These new, more restrictive conditions, in addition to those already ordered by 3 Judge Longoria, would fully serve the prosecution and Court's legitimate interest in 4 5 protecting the public safety while Mr. Sharper is released on bail, and the defense is 6 (Litigation the defense looks forward to, once it receives results of the myriad tests 7 apparently conducted in all the jurisdictions cited, but which as of yet have not been 8 provided to the defense; not even one.) Additionally, the defense would not oppose 9 10 11 allowed to fully contest and litigate each and every allegation against the defendant. an increase of bail to an amount commensurate with the bail schedule for all of the allegations in this case, if the drug counts were added in to the calculation, for a total bail of$330,000, (a $130,000 increase.) 12 13 14 CONCLUSION F or the reasons detailed above, the defendant, Darren Sharper, respectfully Respectfully submitted, 19 20 21 ... ~B~ Blair Berk Attorney for Darren Sharper 22 24 ~~ Leonard Levine 25 Attorney for Darren Sharper 23 26 27 28 17 . DEFENDANT'S OPPOSITION TO MOTION CONCERNfNG BAIL I 1 2 3 4 5 ( JACKIE LACEY District Attorney By: STACY OKUN-WIESE; State Bar No. 204333 By: ALISON A.W. MEYERS, State BarNo. 178816 Deputy District Attorneys 210 W TEMPLE STREET 17-1140 LOS ANGELES CA 90012 (213) 974-3800 6 7 8 SUPERIOR COURT OF STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 9 10 11 12 PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, v. 01 DARREN MALLORY SHARPER Case No. BA421442 DISCOVERY AND PROTECTIVE ORDER 13 Defendant. 14 15 IT IS HEREBY ORDERED: 16 That all discovery and evidence provided to the defense 17 in this case shall not be disclosed to other persons or entities except as necessary to represent the 18 defendant. Dissemination of the information is limited to persons employed or authorized by the 19 defendant's attorney of record for the purpose of preparing a defense in this case or if otherwise 20 authorized by this court. 21 advised by the defendant's attorney of record of the limitations described in this order. 22 "Disclosure" and "dissemination" as used in this order means to reveal the contents in any way, 23 including but not limited to copying, giving, showing, reading, or paraphrasing any portion of the Persons provided information as authorized by this order shall be 24 25 26 Dated: Judge of the Superior Court 27 28 ", "", Page 1 , ( 1 2 3 4 ( TARLOW & BERK, PC Blair Berk, State Bar No. 159087 Julianne Prescop, State Bar No. 267678 LA W OFFICES OF LEONARD LEVINE Leonard Levine, State Bar No. 50998 9119 Sunset Boulevard Los Angeles, California 90069 Telephone: (310) 278-2111 FILED Superior Court of California County of Los Angeles MAY 14 2014 5 6 Attorneys for Defendant DARREN M. SHARPER 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES 10 11 12 PEOPLE OF THE STATE OF CALIFORNIA NOTICE OF MOTION AND MOTION 13 14 Plaintiff, vs. 17 FOR BRADY/GIGLIO DISCOVERY AND FOR IMMEDIATE PRODUCTION 15 16 Case No. BA421442 OF EVIDENCE OF INNOCENCE AND DARREN M. SHARPER OTHER EXCULPATORY DISCOVERY PURSUANT TO PENAL CODE § Defendant. 1054.1(E) 18 Date: May 16,2014 19 Time: 8:30 am 20 Courtroom: 30 21 22 TO THE HONORABLE RENEE KORN, JUDGE OF THE SUPERIOR COURT OF THE 23 STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES; JACKIE LACEY, 24 DISTRICT ATTORNEY OF LOS ANGELES COUNTY; AND/OR THEIRREPRESENTATIVES: 25 PLEASE TAKE NOTICE THAT defendant Darren Sharper, through his attorneys, moves 26 this court for an order directing the Los Angeles County District Attorney's office, and each of the 27 law enforcement agencies participating in the investigation of this and related cases, to produce 28 1 exculpatory evidence necessary to prepare for and conduct the upcoming preliminary hearing, 2 pre-trial motions, and the trial of this case. This motion is for an order for immediate and ongoing 3 disclosure of exculpatory material, in accordance with Mr. Sharper's rights under the federal and 4 state constitutions and the discovery provisions of the California Penal Code. 5 This motion is brought pursuant to Penal Code § 1054.1, et. seq. and the due process clause 6 of the United States and California Constitutions and is based upon the files and records in this case, 7 and such additional argument as may be presented at the hearing on this matter. 8 9 10 Dated: May 14,2014 Respectfully submitted, TARLOW & BERK PC 11 12 13 Blair Berk 14 15 16 17 Attorneys for Defendant Darren Sharper 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 2 1 POINTS AND AUTHORITIES 2 L 3 INTRODUCTION 4 The prosecution in this case, in a concerted and intentionally prejudicial course of conduct 5 clearly intended to convict Darren Sharper for serious crimes prior to a shred of evidence ever 6 actually admitted against him in court, has made a series of damning allegations, which are now 7 being revealed by the actual evidence disclosed in discovery to the defense and the defense's own 8 investigation as having been misleading, false, and unsupported. The defense has learned that the 9 prosecution has failed to disclose exculpatory evidence supporting Mr. Sharper's innocence, both in 10 the pending Los Angeles case as well as in the cases from each of the other jurisdictions of Florida, 11 Arizona, Nevada, and Louisiana. This suppression and failure by the prosecution in this case to 12 immediately produce all exculpatory evidence as required by Brady, the Due Process clauses of the 13 federal and state constitutions, as well as California statutory law, is the subject of this motion. 14 15 II. 16 STATEMENT OF FACTS 17 A. BA421442 - The Los Angeles Prosecution 18 On March 24, 2014, more than 6 weeks after making very serious and prejudicial allegations 19 of sexual assault against Darren Sharper, the prosecution revealed to the defense for the first time 20 that each of the two accusers who claim to have been sexually assaulted by Darren Shaper in Los 21 Angeles, Jane Doe #1 and Jane Doe #2, were found to have the DNA of other men on them at the 22 time they claim they were assaulted by Mr. Sharper. Specifically, sperm found on the crotch area of 23 clothing worn by Jane Doe #1 at the time of the incident has been identified as coming from at least 24 one other and possibly two different men; it has also been revealed that Darren Sharper has been 25 excluded as being the major contributor identified in the sperm fraction. Nevertheless, the 26 prosecution has thus far failed to disclose any information as to the identities of the male 27 contributor(s) whose DNA was contained in the sperm fraction found on Jane Doe #I's clothing in 28 MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 3 ( 1 this case. The prosecution has also failed to produce any discovery regarding any contact or 2 interviews of these men by the LAPD, and/or reports of the LAPD's interview with Jane Doe #1 3 about these men, which the defense has previously requested and believes exists, and to which the 4 defense should be entitled immediate production. 5 It has also been revealed that some of the DNA found by the prosecution on Jane Doe #2 also 6 came from a male who was not Darren Sharper. No information of any kind relating to any 7 information the prosecution has regarding the identity of this man has yet to be disclosed to the 8 defense. Any information relating to this identified male, if known to the prosecution, should also 9 be made to the defense immediately. 10 11 B. Other Jurisdictions - Existence of Exculpatory Evidence Revealed 12 Prosecutors from the Los Angeles District Attorney's Office from the very start of this case 13 have made clear that they are attempting to prove that Darren Sharper committed wrongdoing in Los 14 Angeles County by introducing purported evidence of wrongdoing from claimed incidents in Miami, 15 New Orleans, Arizona, and Nevada. 16 However, it has been revealed to the defense that 1) the prosecution has suppressed evidence 17 relevant to each of these investigations which points towards Mr. Sharper's actual innocence, and 18 2) has compounded this error by making false and misleading statements to the court regarding this 19 evidence. The fact that the defense has uncovered, through its own investigation, evidence that the 20 prosecution is purposefully suppressing exculpatory evidence raises serious questions about the 21 legitimacy of the criminal prosecution against Mr. Sharper as well as raises the question of how 22 much other exculpatory evidence and/or evidence of innocence is being suppressed in this case. 23 24 1. Miami - Suppression of Exculpatory Evidence Revealed Indicating that the 25 Miami Case has been Declined and Closed and that the Complaining Witness 26 Made a False Report 27 In its initial attempt to deprive Mr. Sharper of his constitutional right to bail and keep Mr. 28 Sharper in custody while awaiting trial, the prosecution sought a bail deviation, which it supported MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 4 1 in part based on purported evidence from a so-called "Miami" case. Prior to the hearing on the bail 2 deviation motion, this court ordered production of all out-of-state evidence that the prosecutors 3 intended to use to support its bail deviation request. The prosecution did not produce any police 4 reports from Miami. However, at the hearing on the motion, Prosecutor Okun-Weise asserted, on 5 the record, as an additional basis for the bail deviation, that she had "recently learned through the 6 media that he also committed a crime in Miami." (People v. Sharper, Bail Deviation Hearing, 7 February 20, 2014, RT page 5, lines 2-4.) Atthe end of her argument, she again asserted "we learned, 8 actually today, through the media, that Miami has an additional case that they will be proceeding on 9 an investigation." (Id. at page 8, lines 23-25.) 10 However, the defense has learned that the representations made by the prosecution regarding 11 its knowledge of the Miami case and its purported legitimacy were indeed not true. Three weeks 12 prior to the hearing, law enforcement investigating the case in Miami had already informed the Los 13 Angeles Police Department of their investigation into the Miami allegations and told the LAPD that: 14 "Report was made after the news of Sharper's arrest was released. 'Not much to follow up on.'" This 15 information was transmitted to the prosecution by the LAPD i . Nonetheless, the prosecution used 16 the supposed "new" information about the Miami Beach investigation in support ofits bail deviation 17 motion, without disclosing any of the discovery to the defense. 18 From their earliest efforts, the prosecutors in Los Angeles have represented that the Miami case 19 was moving forward as a serious criminal investigation and that charges would likely be filed. 20 However, no evidence or police reports supporting the investigation were disclosed to the defense 21 until April 15, 2014, at which point the prosecution disclosed to the defense a police report that 22 contained narrative facts similar to the one that the Miami Beach Police Department had previously 23 reI e a sed 24 crime/index.ssf/20 14/021darren_ sharper_sexual_battery .html) 25 tot h e pre s s . ( See , e.g., http : 11 w w w . n 0 I a . com 1 What the defense was never told was that the police report that the Los Angeles District 26 27 28 IThis information was contained in a Los Angeles Police Department Chronological Record on January 28,2014, which was given to the prosecution on February 6, 2014, according to the same chronological record, a full 2 weeks before the bail deviation hearing. MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 5 ( 1 Attorney produced to the defense, and the report apparently released world-wide to the press, was 2 not by any measure the full and complete police report. In fact, the full, complete, and accurate police 3 report contained an entire additional page of narrative exculpatory evidence which was suppressed 4 from production to the defense in this case. The suppressed evidence, only recently obtained through 5 independent investigation by the defense, reveals that the complaining witness, when she first 6 reported her allegation to the Miami Beach police, was brought in to the police station by another 7 male individual who attempted to "support" her in making the report by "repeatedly interrupting her" 8 and trying to speak himself. It became clear to the officer taking the report that the male individual 9 was texting information to the complaining witness as she was reportedly making her claim against 10 Mr. Sharper. The suppressed report also details the complaining witness confessing that she had lied 11 to the police when originally telling them why she had decided to report the incident, and acted 12 "nervous" and was evasive throughout the report. The male individual that she was with was also 13 described as acting "evasive," claiming that he could not give police his contact information because, 14 he claimed at the time, "I can't remember my cell phone number, and I don't live in this state." None 15 of this evidence was ever revealed to the defense at the time of the bail deviation hearing and has not 16 been revealed since, and the defense requests immediate production of any and all exculpatory 17 evidence from the Miami case be immediately made. Incredibly, all of the above evidence existed-in 18 writing-at the time of the bail deviation hearing on February 20,2014. 19 Astoundingly, the defense has learned that the Miami-Dade County State Attorney's Office and 20 the Miami Beach Police Department have in fact declined to file any criminal charges against Mr. 21 Sharper and have closed their investigation. None of this information has been disclosed to the 22 defense by the Los Angeles District Attorney's Office, and the defense hereby requests immediate 23 production of any and all documents reflecting that no charges of any kind are being filed against 24 Darren Sharper in Miami. 25 26 2. 27 It has been revealed to the defense in the Los Angeles case that the lead detective in the 28 Arizona case, Detective Kevin Mace, committed perjury on the second day of his testimony during MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 6 Arizona - Suppression of Evidence - Perjury By Lead Detective the bail hearing held in Mr. Sharper's case in Arizona. 2 On April 16, 2014, Detective Mace first falsely testified that Mr. Sharper's semen was found 3 on leggings belonging to a complaining witness in that case by testifying as if reading from a forensic 4 report that supported that purported finding. The prosecutor in Mr. Sharper's case, Mr. Yigael Cohen, 5 who possessed this same report, supported and reaffirmed this false testimony in his questioning by 6 asking the detective if in fact semen was found on a legging. During the hearing, the prosecutor 7 asked the detective, "So, the DNA was in the form of semen?" and the detective reaffirmed, "Yes." 8 (State v. Sharper, Simpson hearing, April 16, 2014, Maricopa County Superior Court; RT page 33, 9 lines 12-13.) 10 Headlines all over the country went out that evening, prior to any opportunity for the defense 11 to cross examine the detective, claiming that evidence existed that Mr. Sharper's semen had been 12 f 13 http://www.usatoday.com/story/sports/nfl/2014/04/16/darren-sharper-date-rapes-los-angeles-pho 14 en i x 1778967 1 I; 15 24529692/police-darren-sharpers-dna-found-on-accusers-clothing.) 0 u n d on the accuser's leggings. ( See, e . g . , http://www.cbssports.co min fll eye - 0 n - f 00 t b a III 16 It was not until the next day, April 17, 2014, on cross-examination that the detective was 17 forced to admit that, in fact, no such evidence existed in the case, and Detective Mace admitted he 18 was "incorrect" when he had previously testified that Mr. Sharper's semen was found on the leggings. 19 (State v. Sharper, Simpson hearing, April 17, 2014, Maricopa County Superior Court; RT page 31, 20 lines 15-23.) 21 Later in the afternoon of April 17 ,2014, however, Detective Mace committed outright perjury. 22 In an attempt to explain away a lack evidence of any of Mr. Sharper's semen on the complaining 23 witness, Detective Mace testified that he had learned from "the Los Angeles Police" that they were 24 in possession of "medical records" showing that Mr. Sharper had a "vasectomy." (Id. at page 64, lines 25 6-12.) He repeated the peIj urious testimony when questioned about whether he had himself reviewed 26 these records; Detective Mace reaffirmed that he had had a specific conversation with the Los 27 Angeles Police Department "case agent" that the LAPD did, in fact, have medical records confirming 28 that Darren Sharper had a vasectomy. (Id. at page 66, lines 6-22.) The defense has now learned this MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 7 1 testimony was entirely fabricated and that the Los Angeles Police Department neither had any 2 evidence or medical records that Darren Sharper ever had a vasectomy, nor did any detective from 3 the Los Angeles Police Department relay such information to Detective Mace. Astoundingly, the 4 Arizona prosecutor, Mr. Cohen, now claims that the detective simply "misspoke" in testifying about 5 the supposed medical records. (Email from Yigael Cohen.) 6 To date, the prosecution in Los Angeles has not produced any discovery whatsoever reflecting 7 the fact that false evidence was presented against Mr. Sharper by the Arizona prosecution or that 8 prosecutors in Phoenix have apparently undertaken an on-going investigation into this perjurious 9 testimony of lead Detective Mace and how the false testimony came about. Immediate production 10 of any and all records reflecting confirmation of this false testimony and/or any inquiry and/or 11 investigation into Detective Mace's perjury should be produced to the defense immediately. 12 Las VeKas - Suppression of Evidence of Exculpatory Witness Statements 13 3. 14 The defense has learned that the Las Vegas Metropolitan Police Department has conducted 15 extensive interviews with witnesses during their investigation of Mr. Sharper's case, and has shared 16 these interviews with the prosecutor in Los Angeles. Despite producing a selective number of these 17 interviews to the defense in discovery, the defense has learned that the Los Angeles District 18 Attorney's office has apparently suppressed interview statements made by a so-called "fresh 19 complaint" prosecution witness to the Las Vegas Police Department. In his statement, the witness 20 describes himself having very rough sex with one of the complaining witnesses within 24 hours of 21 the alleged incident with Mr. Sharper. By the "fresh complaint" witness's own admissions, this rough 22 sex apparently left visible injuries on the complaining witness. These statements are obviously 23 exculpatory and should be immediately produced to the defense in this case. 24 The defense has also learned that, in his statement, the "fresh complaint" witness admits that 25 the same complaining witness sent him text messages the day after the alleged incident with Mr. 26 Sharper, and describes her contact with Mr. Sharper by identifying herself as a "wingman" for hyr 27 friend (the other accuser in the case). In these texts, she never mentions or suggests that either she 28 or her friend were the victim of any sexual assault. Instead, she reportedly jokes that her friend "went MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 8 ( 1 a little darker last night" in response to the "fresh complaint" witness's text saying: "I'll have some 2 handsome white boys for [your friend] when she comes back on her next vacation." Immediate 3 production of this exculpatory evidence should be made to the defense. 4 5 4. New Orleans - Suppression of Exculpatory Evidence - Key Prosecution Witness 6 Is Target of Pending Orleans Parish DA and Federal Investigation Alleging the 7 Witness Drugged a Woman in a Bar in an Unrelated Case 8 In support of the case in Los Angeles, the Los Angeles District Attorney's Office from the start 9 has also predicated its prosecution on the claim that Mr. Sharper committed wrongdoing in New 10 Orleans in September of 2013. In that case, there is a key potential prosecution witness, who the 11 Orleans Parish District Attorney's Office claims was present with the complaining witness at a bar 12 near or at the time she claims she was drugged, as well as at Mr. Sharper's residence later, when the 13 complaining witness was also present. The defense only days ago learned, through its own 14 investigation, that this same prosecution witness is currently under criminal investigation by both 15 the Orleans Parish District Attorney's Office as well as federal prosecutors from the United States 16 Attorney's Office in New Orleans for drugging a woman at a bar in a previous and unrelated incident 17 not involving Mr. Sharper. 18 It has also been revealed to the defense, although not yet produced by the prosecution, that the 19 Orleans Parish District Attorney's Office and the United States Attorney's Office have in their 20 possession a video recording of this same prosecution witness placing something in a woman's drink 21 in a known New Orleans drinking establishment. None of this evidence has been revealed by the 22 prosecution in this case to the defense and the suppression of such exculpatory evidence is a direct 23 violation of Mr. Sharper's Brady rights under the 5th and 14th Amendments, and the Due Process 24 Clause of the California constitution, given that this witness is obviously a potential suspect as the 25 perpetrator of any wrongdoing as claimed by the. complaining witness in Mr. Sharper's case. 26 III 27 III 28 III MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 9 ( III. 2 LEGAL STANDARD 3 It is well settled that Mr. Sharper has a constitutional right to receive exculpatory evidence 4 from the prosecution. Brady v. Maryland (1963) 373 U.S. 83; Giglio v. United States (1972) 405 5 U.S. 150; and related cases. "The prosecution has a duty under the Fourteenth Amendment's due 6 process clause to disclose evidence to a criminal defendant when the evidence is both favorable to 7 the defendant and material on either guilt or punishment. (Citations.)" (In re Miranda (2008) 43 Cal. 84th 541,575.) This includes "evidence which may reflect on the credibility of a material witness." 9 (People v. Little (1997) 59 Cal. App. 4th 426, 434.) Explicit statutory law requires the prosecution 10 to produce "any exculpatory evidence," whether or not that evidence is material. (Penal Code § 11 1054.1(e).) Mr. Sharper has a constitutional right to obtain Brady discovery prior to the preliminary 12 hearing in this case. (Bridgeforth v. Superior Court (2013) 214 Cal. App. 4th 1074; People v. 13 Gutierrez (2013) 214 Cal. App. 4th 343.) 14 In United States v. Agurs (1976) 427 U.S. 97, 106, the Supreme Court emphasized that 15 "[w]hen the prosecutor receives a specific and relevant request, the failure to make any response is 16 seldom, if ever, excusable." However, the prosecution must disclose exculpatory evidence whether 17 or not the defense has made a specific request for the evidence. (Izazaga v. Superior Court (1991) 18 54 Cal. 3d 356; see also United States v. Agurs (1976) 427 U.S. 97.) A failure to disclose such 19 evidence is a violation of the due process clause, "irrespective of whether the suppression was 20 intentional or inadvertent.'" (lzazaga v. Superior Court (1991) 54 Cal.3d 356,378.) 21 As the California Supreme Court has recognized, the prosecution has a duty to learn of, and 22 disclose, exculpatory evidence in the possession of all agencies involved in the investigation ofthe 23 defendant: 24 [A]ny favorable evidence 'known to the others acting on the government's 25 behalf is imputed to the prosecution ... (Kyles v. Whitley (1995) 514 U.S. 26 419,437.) Courts have thus consistently "decline[d] 'to draw a distinction 27 between different agencies under the same government, focusing instead 28 upon the "prosecution team" which includes both investigative and MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 10 { , prosecutorial personnel.'" (Citation.) (Footnote.) "A contrary holding would 2 enable the prosecutor 'to avoid disclosure of evidence by the simple expedient 3 of leaving relevant evidence to repose in the hands of another agency while 4 utilizing his access to it in preparing his case for trial,' [citation]." (Citation.) 5 Thus, 'whether the prosecution succeeds or fails in meeting this obligation [to 6 learn offavorable evidence], whether, that is, a failure to disclose is in good 7 faith or bad faith, the prosecution's responsibility for failing to disclose 8 known, favorable evidence rising to the level of importance is inescapable." 9 (In re Brown (1998) 17 Cal.4th 873, 879.) 10 This rule "discourage[ s] the practice of deliberately failing to learn of acquire information 11 that . " must be disclosed pretrial [because] such gamesmanship is inconsistent with the quest for 12 truth." (In re Littlefield (1993) 5 Cal. 4th 122, 133.) 13 This obligation to disclose exculpatory evidence extends to evidence gathered by the 14 out-of-state agencies involved in investigating and preparing the case against the defendant, which 15 are part of the "prosecution team." The U.S. Supreme Court has noted that the prosecutor's 16 responsibility "for 'any favorable evidence known to the others acting on the government's behalf in 17 the case, including the police,'" extends to police in different jurisdictions. (Strickler v. Greene 18 (1999) 527 U.S. 263,275, atn. 12.) Other federal courts have required federal prosecutors to disclose 19 Brady evidence in the hands of state police. (United States v. Olsen (9th Cir. 2013) 737 F.3d 625; 20 United States v. Antone (5th Cir. Fla. 1979) 603 F.2d 566.) 21 The discovery already produced to the defense makes it clear that Los Angeles and the other 22 jurisdictions are conducting a joint investigation against Mr. Sharper, and that any evidence in the 23 hands of these jurisdictions must be imputed to the Los Angeles District Attorney's office. The 24 different jurisdictions are sharing information about their cases, sharing advice on where to send 25 samples for testing, conducting joint interviews of witnesses, sharing evidence with each other, and 26 it at least one case, submitting a joint search warrant application and affidavit, so that evidence 27 collected pursuant to the Los Angeles search warrant could be turned over immediately to 28 out-of-state law enforcement. Furthermore, the Los Angeles District Attorney's office has stated, MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 11 1 from the beginning, that it would rely on these out of state allegations and investigations in their case 2 against Mr. Sharper. 3 The prosecution further violates due process standards when it compounds the suppression 4 of Brady evidence by presenting evidence that it knows is false or misleading, or by knowingly 5 presenting "false or misleading argument." (People v. Morrison (2004) 34 Cal. 4th 698,717; see also 6 Giglio v. United States (1972) 405 U.S. 150.) 7 In this case, the defense has learned the prosecution has already withheld and suppressed 8 significant material exculpatory evidence, pointing to Mr. Sharper's actual innocence ofthe crimes 9 alleged. This evidence includes: 1) Information which relates in any way to the identities of the other 10 men whose DNA was found on Jane Does #1 and #2 in the Los Angeles case; 2) Information which 11 establishes or relates in any way to the fact that the Miami prosecutors and police have officially 12 declined to prosecute Mr. Sharper and that prosecutors long ago knew the complaining witness in 13 the Miami Beach case was evasive and untrustworthy when she made her complaint; 3) Information 14 that the investigating officer for the Tempe, Arizona case lied under oath in regards to the evidence 15 against Mr. Sharper; 4) Information that a "fresh complaint" witness in Nevada has admitted having 16 rough sex with the complaining witness within 24 hours of the claimed incident and has texts from 17 the complaining witness indicating that she never engaged in any sex with Darren Sharper; and, 5) 18 Information that a key prosecution witness in New Orleans is under criminal investigation for 19 drugging a woman in a bar in a previous and unrelated incident. 20 Furthermore, the Los Angeles District Attorney's Office has submitted argument to this court 21 compounding the discovery violations, by discussing the Miami Beach allegations in its argument 22 in support of the bail deviation, without providing any discovery to the defense, even though it had 23 learned of the investigation weeks before the argument and had learned that that there was "not 24 much" to the complaint. The revelation that this evidence has been suppressed from disclosure to 25 the defense to this day requires this court to act to order the prosecution in this case to immediately 26 honor its Brady obligations without delay as to the prosecution's duty to produce to the defense all 27 exculpatory evidence known or accessible to it in this case. 28 III MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 12 1 IV. 2 REQUEST FOR EXCULPATORY EVIDENCE 3 As required by Penal Code § 1054.5(b), counsel for Mr. Sharper has made repeated informal 4 requests for discovery, including Brady discovery. On February 19,2014, March 12,2014, and April 5 14, 2014, the defense submitted multiple specific requests for discovery. The prosecution has failed 6 to tum over evidence responsive to many of the defense's requests, and has refused to inform the 7 defense which requests it objects to and which it does not have any additional information for, 8 despite requests from the defense for such information, to resolve discovery issues informally. 9 Due to the egregious nature of the evidence that the Los Angeles District Attorney's office 10 has already suppressed from the defense, it is imperative that the court make clear to the prosecution 11 that they must comply with their duty to disclose and produce exculpatory evidence under the Brady 12 and under the California discovery statutes (Penal Code section 1054 et seq.) Mr. Sharper requests 13 an order for immediate disclosure of all information of whatever form, source, or nature which: (1) 14 tends to exculpate Mr. Sharper by indicating his innocence, by contradicting the prosecution's theory 15 of the case, or by impeaching the credibility of any prosecution witness; (2) might lead to evidence 16 which tends to exculpate Mr. Sharper by indicating his innocence, by contradicting the prosecution's 17 theory of the case, or by impeaching the credibility of any prosecution witness; or (3) may be of 18 benefit to Mr. Sharper in presenting the merits of his defense of innocence or at trial; or (4) by 19 undermining or impeaching any statement offered against him or by undermining the evidence 20 offered by the prosecution to attempt to demonstrate probable cause or evidence of guilt at trial. 21 III 22 III 23 III 24 III 25 III 26 III 27 III 28 III MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 13 1 This request includes facts and information in the possession of all federal, state, and 2 local prosecutors and law enforcement agencies that participated in any form in the investigation 3 of this case2• 4 5 Dated: May 14,2014 6 Respectfully submitted, TARLOW & BERK PC 7 8 9 Blair Berk 10 11 12 13 14 Attorneys for Defendant Darren Sharper 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2As defined herein, the term "prosecution" includes, but is not limited to, the following investigative agencies: the Los Angeles District Attorney's Office, the Los Angeles Police Department; the Los Angeles Sheriffs Department; the Los Angeles Department of the Coroner; the New Orleans Police Department; the Orleans Parish District Attorney's Office; the Tempe Police Department; the Maricopa County Attorney; the Las Vegas Metropolitan Police Department; the Clark County District Attorney's Office; the Miami Beach Police Department; the Miami Dade Office of the State Attorney; the Federal Bureau of Investigation; and all other government agencies or individuals involved in the investigation of this matter in any way or who have information material to this investigation. MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 14 1 DECLARATION OF BLAIR BERK 2 3 1. I am the attorney of record for the defendant, Darren Sharper, in the above-entitled case. I 4 am duly authorized to practice law in the State of California. My office is located at 9119 5 Sunset Boulevard, Los Angeles, California 90069. 6 2. Mr. Darren Sharper was arraigned in this case on February 14, 2014. Shortly after receiving 7 the first discovery in this case, I submitted the first informal discovery request to the 8 prosecution on February 19, 2014, making several specific requests, as well as requests for 9 all exculpatory evidence pursuant to Penal Code section 1054.1 and Brady. 10 3. Two additional informal discovery requests on March 12,2014 and April 14,2014 were 11 made, renewing Mr. Sharper's requests for exculpatory evidence and additional, specific, 12 discovery requests were made at that time as well. 13 4. As of May 14,2014, the prosecution has failed to produce discovery responsive to many of 14 the specific defense discovery requests, despite having responsive discovery in their 15 possession, as reflected in explicit communications with the prosecution and in the 16 documents that the prosecution has produced thus far. The defense investigation has also 17 revealed that the prosecution has failed to produce several key pieces of Brady evidence to 18 the defense. 19 5. On March 24, 2014, the prosecution produced discovery of DNA testing results showing 20 that Jane Doe #1 and Jane Doe #2 were found to have the DNA of other men on them at 21 the time they claim they were assaulted by Mr. Sharper. I have reviewed the DNA reports 22 released to the defense, which show that the sperm fraction taken from the crotch area of 23 clothing worn by Jane Doe #1 at the time of the incident has been identified as coming 24 from at least one other and possibly two different men; Darren Sharper has been excluded 25 as being the major contributor identified in the sperm fraction. 26 6. Prosecution discovery reflects that the Los Angeles Police Department obtained the names 27 of at least to/ee possible contributors to the DNA found in the sperm fraction from Jane Doe 28 #1. Nevertheless, the prosecution has thus far failed to disclose any information as to the MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 15 identities of the male contributor(s) whose DNA was contained in the sperm fraction found 2 on Jane Doe # l's clothing in this case. The prosecution has also failed to produce any 3 discovery regarding any contact or interviews of these men by the LAPD, and/or reports of 4 the LAPD's interview with Jane Doe #1 about these men, which the defense has previously 5 requested and believes exists. 6 7. Prosecution discovery also reflects that some of the DNA found by the prosecution on Jane 7 Doe #2 also came from a male who was not Darren Sharper. No information of any kind 8 relating to any information the prosecution has regarding the identity ofthis man has yet to 9 be disclosed to the defense. 10 8. On February 14, 2014, Mr. Sharper's arraignment date, the prosecution filed a "Motion 11 Concerning Bail," requesting that the court raise Mr. Sharper's bail to $10,000,000, and using 12 allegations from other jurisdictions in support of this motion. The court agreed to hold the 13 bail deviation hearing on February 20, 2014, and ordered the prosecution to turn over all 14 discovery that the prosecution would be relying on for the purposes of that hearing. On 15 February 17, 2014, the prosecution turned over to the defense initial police reports regarding 16 the New Orleans, Arizona, and Las Vegas allegations. The prosecution did not tum over any 17 discovery regarding the Miami allegations. 18 9. On February 20,2014, the prosecution argued to the court during the bail hearing, that Mr. 19 Sharper was being investigated in several other states, including Miami, as a reason for 20 raising his bail. Prosecutor Okun-Weise asserted, on the record, as an additional basis for 21 the bail deviation, that she had "recently learned through the media that he also committed 22 a crime in Miami." (People v. Sharper, Bail Deviation Hearing, February 20, 2014, RT page 23 5, lines 2-4.) At the end of her argument, she again asserted "we learned, actually today, 24 through the media, that Miami has an additional case that they will be proceeding on an 25 investigation." (Id. at page 8, lines 23-25.) 26 10. Prosecution discovery recently disclosed to the defense indicates that the prosecution had 27 knowledge ofthe Miami case weeks prior to the bail deviation hearing. LAPD records reflect 28 that three weeks prior to the hearing, law enforcement investigating the case in Miami had MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 16 l 1 already informed the Los Angeles Police Department of their investigation into the Miami 2 allegations and told the LAPD that: "Report was made after the news of Sharper's arrest was 3 released. 'Not much to follow up on.1II This information, which was contained in a Los 4 Angeles Police Department Chronological Record on January 28,2014, was given to the 5 prosecution on February 6, 2014, according to the same chronological record. 6 II. No evidence or police reports supporting the investigation were disclosed to the defense until 7 April 15,2014. At that time, the prosecutors produced to the defense a police report that 8 contained narrative facts similar to the police report that the Miami Beach Police Department 9 has 10 11 previously released to the press, available at http://www.nola.com/crime/index.ssf/2014/02/ darren_sharper_ sexual_battery.html) 12. I have recently learned that the police report that was released to the defense on April 15, 12 2014, and the report that was released to the press, were not full and complete police reports. 13 I have since obtained what mayor may not be the full, complete, and accurate police report, 14 which contains an entire additional page of narrative exculpatory evidence that reveals that 15 the complaining witness, when she first reported her allegations to the Miami Beach police, 16 was brought into the station by another male individual who attempted to "support" her in 17 making the report by "repeatedly interrupting her" and trying to speak himself. This report 18 makes clear that it became clear to the officer taking the report that the male individual was 19 texting information to the complaining witness as she was reportedly making her claim 20 against Mr. Sharper. This report also details the complaining witness confessing that she had 21 lied to the police when originally telling them why she had decided to report the incident, and 22 acted "nervous" and was evasive throughout the report. The male individual that she was 23 with was also described as acting "evasive," claiming that he could not give police his 24 contact information because, he claimed at the time, "I can't remember my cell phone 25 number, and I don't live in this state." I have attached this additional page of the police 26 report as Exhibit A. 27 28 13. The defense has learned that all of the above evidence existed-in writing-at the time of the bail deviation hearing on February 20,2014. None of this evidence was ever revealed to the MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 17 ( 1 2 ( defense at the time of the bail deviation hearing and has not been revealed since. 14. Additionally, the defense has learned that the Miami-Dade County State Attorney's Office 3 and the Miami Beach Police Department have in fact declined to file any criminal charges 4 against Mr. Sharper and have closed their investigation. None of this information has been 5 revealed to the defense by the Los Angeles District Attorney's Office. 6 15. 7 . set the amount of bail in Mr. Sharper's Arizona case. I, along with co-counsel Leonard 8 9 On April 16 and 17, 2014, the Maricopa County Superior Court held a Simpson hearing to Levine, attended that hearing and have reviewed a transcript of that hearing. 16. On April 16, 2014, Detective Kevin Mace, the lead detective in the Arizona case, testified 10 that Mr. Sharper's semen was found on leggings belonging to a complaining witness in this 11 case. The prosecutor in Mr. Sharper's case, Mr. Yigael Cohen supported and reaffirmed this 12 questioning by asking the detective if in fact semen was found on a legging. During the 13 hearing, the prosecutor asked the detective, "So, the DNA was in the form of semen?" and 14 the detective reaffirmed, "Yes." (State v. Sharper, Simpson hearing, April 16, 2014, 15 Maricopa County Superior Court; RT page 33, lines 12-13, attached as Exhibit B) 16 17. After the first day of the Simpson hearing, and before the defense had the opportunity to 17 cross-examine Detective Mace about his testimony regarding the purported semen, 18 newspapers and media outlets across the country reported the detectives purported findings 19 that Mr. Sharper's semen had been found on the accuser's leggings. (See, e.g., 20 http://www.usatoday.comlstory/ sports/nfl120 14/041 16/darren-sharper-date-rapes-Ios-angel 21 e 22 http://www.cbssports.comlnfl/eye-on-football124529692/police-darren-sharpers-dna-foun 23 d-on-accusers-clothing. ) 24 18. s p hoe n x 1 7 7 8 967 1 1 On April 17, 20 ~ 4, on cross-examination, Detective Mace admitted that no such evidence 25 existed in the case, and that he was "incorrect" when he had previously testified that Mr. 26 Sharper's semen was found on the leggings. (State v. Sharper, Simpson hearing, April 17, 27 2014, Maricopa County Superior Court; RT page 31, lines 15-23.) 28 19. After making this admission, Detective Mace testified that he had learned from "the Los MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 18 1 Angeles Police" that they were in possession of "medical records" showing that Mr. Sharper 2 had a "vasectomy." (Id. at page 64, lines 6-12.) He repeated this testimony when questioned 3 about whether he had himself reviewed these records; Detecti ve Mace reaffirmed that he had 4 had a specific conversation with the Los Angeles Police Department "case agent" that the 5 LAPD did, in fact, have medical records confirming that Darren Sharper had a vasectomy. 6 (Id. at page 66, lines 6-22.) 7 20. The defense has now learned this testimony was entirely fabricated and that the Los Angeles 8 Police Department neither had any evidence or medical records that Darren Sharper ever had 9 a vasectomy, nor did any detective from the Los Angeles Police Department relay such 10 information to Detective Mace. I have had a personal conversation with the lead detective 11 in Los Angeles in which he confirmed to me that he had no records indicating that Mr. 12 Sharper had a vasectomy and that he had not told Detective Mace that he had any such 13 records. The Arizona prosecutor, Mr. Cohen, now claims that the detective simply 14 "misspoke" in testifying about the supposed medical records. 15 21. As of May 14, 2014, the prosecution in Los Angeles has not produced any discovery 16 whatsoever reflecting the fact that false evidence was presented against Mr. Sharper by the 17 Arizona prosecution or that prosecutors in Phoenix have apparently undertaken an on-going 18 investigation into this perjurious testimony of lead Detective Mace and how the false 19 testimony came about. 20 22. I have learned that the Las Vegas Metropolitan Police Department has conducted extensive 21 interviews with witnesses during their investigation of Mr. Sharper's case and has shared 22 these interviews with the prosecutor in Los Angeles. The Los Angeles prosecution has 23 produced to the defense only a selective number of these interviews to the defense in 24 discovery, but I have learned that the Los Angeles District Attorney's office has access to 25 interview statements made by a so-called "fresh complaint" prosecution witness to the Las 26 Vegas Police Department. In this statement, the witness describes himselfhaving very rough 27 sex with one of the complaining witnesses within 24 hours of the alleged incident with Mr. 28 Sharper. By the "fresh complaint" witness's own admissions, this rough sex apparently left MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 19 { 1 2 visible injuries on the complaining witness. 23. I have also learned that, in his interview statement, the "fresh complaint" witness admits that 3 the same complaining witness sent him text messages the day after the alleged incident with 4 Mr. Sharper, and describes her contact with Mr. Sharper by identifying herself as a 5 "wingman" for her friend (the other accuser in the case). In these texts, she never mentions 6 or suggests that either she or her friend were the victim of any sexual assault. Instead, she 7 reportedly jokes that her friend "went a little darker last night" in response to the "fresh 8 complaint" witness's text saying: "I'll have some handsome white boys for [your friend] when 9 she comes back on her next vacation." 10 24. In support of its case in Los Angeles, the Los Angeles District Attorney's office has claimed 11 that Mr. Sharper committed wrongdoing in New Orleans in September of2013 . In the New 12 Orleans case, the police reports already disclosed to the defense reflect that there is a key 13 potential prosecution witness, who the Orleans Parish District Attorney's Office claims was 14 present with the complaining witness at a bar near or at the time she claims she was drugged, 15 as well·as at Mr. Sharper's residence later, when the complaining witness was also allegedly 16 present. 17 25. The defense only days ago learned, through its own investigation, that this same prosecution 18 witness is currently under criminal investigation by both the Orleans Parish District 19 Attorney's Office as well as federal prosecutors from the United States Attorney's Office in 20 New Orleans for drugging a woman at a bar in a previous and unrelated incident not 21 involving Mr. Sharper. 22 III 23 III 24 III 25 III 26 III 27 III 28 III MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 20 1 26. I have also learned, through the defense investigation, that the Orleans Parish District 2 Attorney's Office and the United States Attorney's Office have in their possession a video 3 recording ofthis same prosecution witness placing something in a woman's drink in a known 4 New Orleans drinking establishment. None of the referenced evidence has been produced by 5 the prosecution in this case to the defense as of May 14,2014. 6 7 I declare, under penalty of perjury, that the foregoing is true and correct. 8 9 Executed this 14th day of May, 2014 in Los Angeles, California. 10 11 12 Blair Berk 13 Attorney for Darren Sharper 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 21 1 PROOF OF SERVICE 2 3 STATE OF CALIFORNIA 4 COUNTY OF LOS ANGELES ) ) ) 5 I am employed in the County of Los Angeles, State of California; I am over the age of 6 7 eighteen years and not a party to the within action; my business address is: 9119 Sunset 8 Boulevard, Los Angeles, California 90069. 9 On May 14,2014, I caused a true copy of NOTICE OF MOTION AND MOTION FOR 10 BRADY/GIGLIO DISCOVERY AND FOR IMMEDIATE PRODUCTION OF EVIDENCE OF 11 INNOCENCE AND OTHER EXCULPATORY DISCOVERY PURSUANT TO PENAL CODE 12 § 1054.1(E) upon the interested party by the method indicated: 13 14 Los Angeles County District Attorney's Office 15 210 W. Temple St, 17th Floor 16 Los Angeles, CA 90012 17 18 19 (X) (PERSONAL SERVICE) I caused such envelope to be delivered by hand to the offices of the addressee. 20 21 22 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 23 24 Executed on May 14,2014, at Los ~ 25 26 Julianne Prescop F 27 28 MOTION FOR IMMEDIATE PRODUCTION OF BRADY GIGLIO DISCOVERY 22 r ( CR-161 SUPERIOR COURT OF CALIFORNIA, COUNTY OF c- STREET ADDRESS: ~)t) lP . (Y\ PLf Tf MAILING ADDRESS: I-A- CITY AND ZIP CODE: I .: FOR COURT USE ONL Y C'I FILED Superior Court of Califomia County of Los Angeles qOO1~ C4+ t&JTUrL bIVISIOY\.\ APR 18 2014 PEOPLE OF THE STATE OF CALIFORNIA Sherri R. C~ive Officer/Clerk By Deputy BRANCH NAME: VS. DEFENDANT: ai SHA-R.~ D~{2-EN CRIMINAL PROTECTIVE ORDER-OTHER THAN DOMESTIC VIOLENCE (CLETS • CPO) (Pen. Code, §§ 136.2 and 646.9(k» ref' D ORDER UNDER PENAL CODE, § 136.2 D D CASE NUMBER: r3A '-l ~\ '1 LJ MODIFICATION ~ CLETS ENTRY BY: PROBATION CONDITION ORDER (Pen. Code, § 136.2) ORDER UNDER PENAL CODE, § 646.9(k) 5J.1. AP-J>E:V<.- PERSON TO BE RESTRAINED (complete name): b>A-R~~\ Sex: M D F Ht.: ~ '.2,,1 Wt.: Hair-co-"-Io-'-r-:S':""""':'ll'---=':""Ey-=-e-c-ol-=o'-'-r:..!..p,L..>(b'-'--R'-a"":ce""'::'-'B=--A-ge-:·3..-~-D-a-te-o-f-b-irt-h:-/--;-:1-----,3=----;7:;;;:'-1.-L~ rn D :2/Q The defendant is a peace officer with Y -I &-/'-# R6zJ~ 1. This proceeding was heard on (date): by judicial officer (name): Department: at (time): I?o t<..N 2. ~~der expires on (date): q ·.OO~ih Dept.: _---'"'3~O'______ _ Room: _ _ _ __ If no date is listed, this order expires three years from the date of issuance. 3. Defendant was personally served with a copy of this order at the court hearing, and no additional proof of service of this order is required. \ ~ .., .AA. 4. COMPLETE NAME OF EACH PROTECTED PERSON: -.JWw, ..L- l).5 fLL~ I,,", TT r b l>{l14" I 3 -O~-I k;tClS boe..... JoML:b; =tr3: '" ~ f4.+H-e~e.l, J.- 1\ \; t.;f+1::::. I!>~ i -- GOOD CAUSE APPEARING, THE COURT ORDERS THAT THE ABOVE-NAMED DEFENDANT I - 0 0 q S 3\c. 5. must not harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance, or block movements of the protected persons named above. 6. must surrender to local law enforcement or sell to a licensed gun dealer any firearm owned or subject to his or her immediate possession or control within 24 hours after s~rvice of this order and must file a receipt with the court showing compliance with this order within 48 hours of receiving this order. 7. must not attempt to or actually prevent or dissuade any victim or witness from attending a hearing or testifying or making a report to any law enforcement agency or person. 8. must take no action to obtain the addresses or locations of protected persons or their family members, caretakers, or guardian good cause exists otherwise. D The court finds good cause not to make the order in item 8. ,;t 9. ~must have no personal, electronic, telephonic, or written contact with the protected persons named above. 10. ~ must have no contact with the protected persons named above through a third party, except an attorney of record. 11. ~must not come within yards of the protected persons named above. t eo 12. D 13. D may have peaceful contact with the protected persons named above only for the safe exchange of children for court-ordered , issued on visitation as stated in the attached Family, Juvenile, or Probate court order in Case No. (date): , as an exception to the "no-contacf' or "stay-away" provision in paragraph 9, 10, or 11 of this order. may have peaceful contact with the protected persons named above only for the safe exchange of children for visitation as stated in a Family, Juvenile, or Probate court ord~'J~sued after the date this order is signed, as an exception to the ~-contact" or "stay-away" provision in paragr~9, 10, or 11 of this order. 14. ~he protected persons may record any pro~ications made by the restrained person. 15. Other orders including stay-away orders fro ~~"'\ ;~/ /7! ' >0= \ Form Adopted for Mandatory Use Judicial Council of Califomia CR·161 [Rev. July 1, 20091 Approved by Department of Justice £-" \ . '. .... :;('\\ r' .-, -~·...ll·:,>::o \.r:··:p~\ ~<' ~ I ~t:¥&'!J.}::;,: BENEI= lu~n" \~?'~~~::,)!!4. ~.:~I/.'""'i}UDICIAL . OFFICER DepartmenUDlvis ~ ~~ • \ c,') ....... ~ . :'!? .. ,l'·~ ..\~ • • ~ :;,::'~.~...~':;" c,-".:-~ CRIMINAL PROTECTI I!!' " . '--OTHER THAN DOMESTIC VIOLENCE Penal Code, §§ 136.2 :n~g~!.~~~ (CLETS - CPO) (Penal Code, §§ 136.2 and 646.9(k).) www.courtinfo.ca.gov (Distribution: original to file; 1 copy to each protected person; 1 copy to defendant; 1 copy to prosecutor; 1 copy to law enforcement) CR 16107-09 ,.. '- -- ) 1 2 3 4 5 6 7 8 LEONARD B. LEVINE, ESQ., SBN 50998 Law Offices of Leonard B. Levine 1901 Avenue of the Stars, Suite 615 Los Angeles, California 90067-6051 310/553-6510 Fax 310/286-9969 FILE]) LOS ANGIiLEs SUPIlRIOR C0liRr MAY 16 2014 J. L'.u"'-' 2 A", ,ol:~ ,. 'I !- • •• • • ,. • •40 . ~ LZ -1< '" f((;?tft~r ~';~,~~,';)\ HONORABLE RENEE KORN i '2 fJ _l J,.7;! ~"p ~ : r.J~i d \. ~i~~\-~~ '.~~ t' ;oi Ju ge . \ ,;"}"-"t Los Angeles Superlor Court ... !r0· r, ,II'' i;. . ....../ff1 ""S": \ -u"" . ~-......~~:; . . . .: C'~·il ;~;~~" :.".V ,, ~ """'t\,~~.~, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [Proposed) ORDER AUTHORIZING SAUL J. FAERSTEIN, MD, TO HAVE FACE-TO-FACE VISITS WITH THE DEFENDANT IN A PRIVATE ROOM AT MEN'S CENTRAL JAIL -2- ( TARLOW & BERK, PC Blair Berk, State Bar No. 159087 Julianne Prescop, State Bar No. 267678 LAW OFFICES OF LEONARD LEVINE Leonard Levine, State Bar No. 50998 9119 Sunset Boulevard Los Angeles, California 90069 Telephone: (310) 278-2111 FILED LOS ANGELES SUPERIOR COURT MAY 16 2014 s. ~ EXECUTIVE OFFICER/CLERK t~ BY Deputy Attorneys for Defendant DARREN M. SHARPER SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES ) ) ) ) ) ) ) ) ) ) ) PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, v. DARREN M . SHARPER, Defendant. Case No. BA421442 ORDER TO OBTAIN, PRODUCE, AND RELEASE BIOLOGICAL EVIDENCE FOR INDEPENDENT ANALYSIS Date: Time: Courtroom: May 16, 2014 8:30 AM 30 IT IS HEREBY ORDERED THAT: That, to the extent that the Los Angeles District Attorney's office intends to use the results of forensic toxicology testing performed on biological samples taken from the complaining witnesses in out-of-state jurisdictions in their presentation of the Los Angeles case, the Los Angeles District Attorney ' s Office request production of those same blood, urine, and/or hair samples, for the purpose of independent testing and reanalysis by the prosecution and/or the defense, and to make a portion of said samples available to the defense upon further order of the court . Dated: I \ ../~·":."~~''';'1'.,,- ·:':~~./:;.~~~t~1t~>\~ ~ \~ \~ !i1J: U." " 'h;,! ~'Jl,' ." ; "';-;"''1, ' O:: i ~~t' I ·''1.':,' . -, j' (,:: ','./) i c ; ~~ ~: l";r,,i }, ~~ "l;t'!. ~ ,..', ~ { .- :\\1' ~.~;y ,. t. > I. ; :,~ ~ f. ¢. \. ~t' ";~¥ .~::,:;. (1 ,';;;,J \~· ,~'ir;~%':~;~;srL:j ... ? ... ~~, .. i'J~' ,-r "'t,,,," .. ........ ~:'Y...........~ ..... C.t 1.1 !' O\\\<\~ .,~' -..,..... """ ~,,,,,~,,,,~... ~:f<.....-~----=---~:---------------- Hon. Renee Korn Judge of the Superior Court ( ( FIL JACKIE LACEY District Attorney LOS ANGELES SU 2 II by: By: STACY OKUN-WIESE; State Bar No. 204333 PERIOR COURT Deputy District Attorney JUl 28 2014 3 11210 W TEMPLE STREET 17-1140 S' ~...,f. " EXIVEOFRC.fRlCLERK 4 LOS ANGELES CA 90012 (213) 974-3800 BY D 1 ED 4 eputy 5 6 SUPERIOR COURT OF STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 7 8 9 PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, v. 10 Case No. BA421442 ORDER FOR PRODUCTION OF RECORDS 01 DARREN MALLORY SHARPER 11 12 'Defendant. 13 14 II GOOD CAUSE HAVING BEEN SHOWN, IT IS ORDERED that the Wynn, 15 Cosmopolitan, and Mandalay Bay hotels provide the DVD copies ofthe video surveillance already 16 provided to the Las Vegas Metropolitan Police Department in conjunction with the investigation 17 of sexual assaults and other crimes allegedly committed by Darren Sharper on or about January 18 1115,2014. 19 II 20 II DATED: f 2, 'J-~ \ 1'1 / J -A'/ /~.;~'::;- .<' '·:,~L::~~,y': --L ~~ 1'-- f (~."'r. \' < .'; -..,....;:. \ ~~~(~~< '~';~~ ~ 21 22 It.. 23 -9~1~ ... " J . (.~ k •• \.l. C't!o'.:+;~ ~" t.i..'. ~. . c.:t..~=-.._ JUDGE of the Superior Court ~••. .' . . .........::,-~~..~,.... 24 25 26 27 28 DA Case 34231656 Page 1 JuJy23,2014 "r'Z'/~~J:: ' ( 1 2 3 4 JACKIE LACEY District Attorney by: By: STACY OKUN-WIESE; State BarNo. 204333 Deputy District Attorney 210 W TEMPLE STREET 17-1140 LOS ANGELES CA 90012 (213) 974-3800 FILED LOS ANGELES SUPERIOR COURT JUL 282014 $ t:~/1l.(' EXECUTIVE OFFICER/CLERK Be W -Oepu~ 5 6 SUPERIOR COURT OF STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 7 8 9 10 PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, Case No. BA421442 v. 01 DARREN MALLORY SHARPER ORDER FOR PRODUCTION OF DOCUMENTS 11 12 Defendant. 13 14 GOOD CAUSE HAVING BEEN SHOWN, IT IS ORDERED that the Las Vegas Metropolitan 15 Police Department produce to the Los Angeles Police Department any and all discovery (not already turned 16 over) including reports, documents, notes, photographs, audio/video recorded interviews, medical records, 17 video surveillance, forensic evidence reports, scientific analyses, search warrants and their returns, and/or 18 electronic information generated in conjunction with the investigation of sexual assaults and other crimes 19 allegedly committed by Darren Sharper on or about January 15,2014. Please include all statements, written 20 or recorded (audio and video), by the alleged victims and witnesses. This order encompasses all of the 21 items described that are currently in the possession of the Las Vegas Metropolitan Police Department and 22 any and all such items that may be generated subsequent to the date of this order. 23 Additionally these items are subject to the discovery protective order previously issued by this 24 court. By agreement of the parties, the victims of the alleged Las Vegas incident are entitled to the same 25 protections as the charged victims in this matter, including but not limited to, anonymity in the record and 26 statutory support and services defined J\1;'~"'~~li~~?le California Civil and Penal Codes. 27 28 DATED' . I 1~1:, )11 I 6i~;~( .• . /;:? -----k' ·BY.- \ ~ L-" I '. . :.:..' . \ ~}~~f ~-::r -', . '; ,: i \ ;?...~1~ -x' ,.~,' f8\ , ".'" .-~. " ~o ff!?'1 ~ ' July 23, 2014 ~y JACKIE LACEY District Attorney 2 by: By: STACY OKUN-WIESE; State Bar No. 204333 Deputy District Attorney 3 210 W TEMPLE STREET 17-1140 4 II LOS ANGELES CA 90012 (213) 974-3800 FILED 1 LOS ANGELES SUPERIOR COURT JUL 232014 S'. C,,- rfJi.1' EXEoUnVE OFFICERICLERK BY Deputy 5 6 SUPERIOR COURT OF STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 7 8 9 10 PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, v. 01 DARREN MALLORY SHARPER Case No. BA421442 ORDER FOR PRODUCTION OF RECORDS 11 12 Defendant. 13 14 II GOOD CAUSE HAVING BEEN SHOWN, IT IS ORDERED that the Las Vegas 15 University Medical Center produce all medical records of Alicia L. and Katie C. on or about 16 01115/14. This includes any medical exam forms, notes, reports, any pictures, DVDICD, video or 17 electronic information generated in conjunction with the medical examination conducted on or 18 II about 01115114 and any subsequent date. 19 " 20 II DATED: ~ 21 "'~';;"""'nU:.". _ " ..-:,,"\. •• L. .I:).; ., " .~ ~\'. ""'-;..." .• : • . t'~. "'B Y'• .:,..\;j ...... ~:t{'_ ' " ,' ,; • . ';"-1. ~ ~ ,-,.:~;,r:,~] ,~,~ ::, I.•• ; ...: ..... \ 1j''''''v ., -. ~ . . \.. .~ " "'/!'~ .' ~h:.~ .., 'ii " ~i~ i Q f :- it\~" .•'.;~''':; ;'i~ f, "'" JUDGE of the Superior Court ~ \ ~',i=:i~\\l!h:) i/o"/{,~'! (:)' : ~(;Q( ./(.;'I '\.... ... Mi.~1. :WVI;''':'~''''' ... _" : jo.Ioo4' \ .; ;,. ;.. ,:.L;;.~ ..... ~'" 15:.: _ , y.:.. ;~. . (. . ~ £2--1<- (ii ... \ I'Ll \ \~~; .... .c-. :.~i..%:"~.I~. .......... ~'" 7·~:%. l 22 '" 23 'I .. 4 l' ol' o.~~\l ,"-.,;.,.¥.. . . ...,.,.•..•~•••, -1 I •• 24 25 26 27 28 DA Case 34231656 Page 1 July 23,2014 , ( \ , ?>2i""L- D~ tu~'i CRIM JUSTICE CTR (LAC) CAL.# 3 BA421442-01 FOR: PRELIM SETTING/RESETTING SHARPER, DARREN M. VIOL DT 103013 BAIL: SB 1000000.00 REG #/RECPT # 2014HH000037 07/16/14 OPT: 030 JUDGE: RENEE F. KORN ATTY: BLAIR BERK ~~~ PROS: STACY L. WIESE REPORTER: U,,'1 1 CLERK: INT'R: LANGUAG_. LAST DAY 261(A) (3) PC - - 261(A) (3)pc 11379(A)H&S MORE DEFENDANT 977A_ _ _ _ _ _ _ __ DEFENDANT IN COURT_ _ _ _ _ _ _ __ ............. , ................................................................. . --t ~ DIt{ J.,u M +; {I ~4,:jJ'1 CFJC;r5e=- 1>6~ (I JOoo. DeC» 11 s emery 5lf1fVS oPk ms - fC!r;~\ f\.J ~ Dfr'tS /§rCA J C'" I g I/1 Y ..... ())~O 7 _ L B.T.S _ B.X. _ O.R. _ BAIL FORF. _ J 'f~( e:\l:tr",&\f-i;; 'P;Pr~vz).(O« O.R. REV. ( ,. ~1 g, ,i 1 1:-11 ~fi>'t. 8 u/J TARLOW & BERK PC 2 II Blair Berk, Esq., State Bar No. 159087 C ericr C 14..,4.1 O/Jht O/Jrt f ' I Jt Of I.. 0 CEIl!. 3 II Attorney at Law Sherri IT 9119 Sunset Boulevard 4 II Los Angeles, California 90069 5 II Telephone: (310) 278-2111 8 ~ . ' 08,(j17 ',orl7i 11'1 30? ge;e,s q c014 "V", C~!)Lp,,_ ?-:.~ . ~~~/ve . <1i 0lticer/01 'vIer/( DepUty 6 II LAW OFFICES OF LEONARD LEVINE 7 II Leonard Levine, Esq., State Bar No. 50998 190 1 Avenue of the Stars, Suite 615 8 II Los Angeles, California 90067 9 II Telephone: 310-553-6510 10 II Attorneys for Defendant 11 II Darren Sharper 12 II SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 13 14 15 II THE PEOPLE OF THE STATE OF 24 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 25 ------------------------) CALIFORNIA, 16 Plaintiff, 17 18 19 20 v. II DARREN SHARPER 21 22 23 26 II Defendant. Case No. BA421442 NOTICE AND VERIFIED APPLICATION OF LISA M. WAYNE TO APPEAR AS COUNSEL PRO HAC VICE FOR DEFENDANT DARREN SHARPER; VERIFICATION OF LISA M. WAYNE; DECLARATION OF BLAIR BERK; PROPOSED ORDER Date: August 8, 2014 Time: 8:30 a.m. Division: 30 TO THE HONORABLE RENEE KORN, JUDGE OF THE SUPERIOR COURT OF LOS 2711 ANGELES COUNTY AND THE DISTRICT ATTORNEY OF LOS ANGELES COUNTY AND 28 HER REPRESENTATIVES, STACY OKUN-WIESE AND ALISON MEYERS: 1 NOTICE AND VERIFIED APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE OF LISA M. WAYNE ( 1 PLEASE TAKE NOTICE that on August 8, 2014, at 8:30 am, or as soon thereafter as 2 counsel may be heard, Department 30 of the Los Angeles Superior Court, located at the Clara 3 Shortridge Foltz Criminal Justice Center, 210 West Temple Street, Los Angeles, California, 4 90012, Lisa M. Wayne will and does hereby apply for an Order permitting her to appear as 5 counsel pro hac vice in this action on behalf of Defendant Darren Sharper. 6 This application is made pursuant to Rule 9.40 of the California Rules of Court and is 7 based on this Notice and the attached Application. Rule 9.40 provides that a person "Who is not a 8 member of the State Bar of California but who is a member in good standing of and eligible to 9 10 11 12 practice before the Bar of any United States Court or the highest court in any state," and "who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of the court be permitted upon written application to appear as counsel pro hac vice, provided that an active member of the State Bar of California is associated as counsel of record." 13 14 This application is necessary because Mr. Sharper anticipates that the participation and appearance of Lisa M. Wayne will be required on his behalf. As set forth in the attached 15 Application of Lisa M. Wayne, all requirements of Rule 9.40 have been met. Proper and timely 16 17 18 19 20 notice of this application has been given to all parties who have appeared in this action and to the State Bar of California at its San Francisco address. A copy of the cover letter to the State Bar of California attaching this application and payment of the requisite fee to the State Bar of California is attached to the Declaration of Blair Berk, as Exhibit A. Accordingly, Lisa M. Wayne respectfully requests permission to appear as counsel pro 21 22 hac vice in the above-captioned matter on behalf of Darren Sharper. 23 III 24 III 25 III 26 III 27 III 28 III 2 NOTICE AND VERIFIED APPLICATION TO APPEAR AS COUNSEl , PRO HAr 1'1rF.()F r ISA M WAYNF 1 2 3 This application is based upon this Notice and the attached Verified Application of Lisa M. Wayne and Declaration of Blair Berk. DATED: July 29 th , 2014 Respectfully submitted, 4 5 6 7 8 9 10 ~ Blair Berk Attorney for Darren Sharper ~ If& tx ltwJ-~ Leonard Levine Attorney for Darren Sharper 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 NOTICE AND VERIFIED APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE OF LISA M. WAYNE 1 VERIFIED APPLICATION OF LISA M. WAYNE 2 3 Pursuant to Rule 9.40 of the California Rules of Court, Lisa M. Wayne submits this 4 Verified Application to appear as counsel pro hac vice in this Case No. BA421442 on behalf of 5 Defendant Darren Sharper. 6 1. I am the sole shareholder of the Law Offices of Lisa M. Wayne, with offices at 7 1775 Shennan Street, Suite 1650, Denver, Colorado 80203, and 885 Arapahoe 8 Avenue, Boulder, Colorado 80302. I reside at 9 Colorado 10 - 2. I am and have been a member in good standing of the Bar of the State of Colorado 11 since 1986. 12 3. I am also admitted to practice law in the following courts: 13 a. United States District Court for the District of Colorado since October 4, 14 1998; 15 b. Tenth Circuit Court of Appeals since January 10, 2006.; 16 c. United States Supreme Court since December 12, 2011. 17 4. I am not under suspension or disbannent by any court. 18 5. In the preceding two years, I have not filed an application to appear as counsel pro 19 hac vice in California. 20 6. The attorney of record for Darren Sharper is Blair Berk, partner at Tarlow & Berk 21 PC, 9119 West Sunset Boulevard, Los Angeles, California 90069, telephone 22 23 number (310) 278-2111. III 24 III 25 26 27 28 III III III 4 NOTICE AND VERIFIED APPLICA nON TO APPEAR AS COUNSEL PRO HAC I 'ICE OF LISA M. WAYNE; VERIFICATION OF LISA M. WAYNE: DECLARATION OF BLAIR BERK ( 1 7. I have requested that Ms. Berk serve on the State Bar of California a copy of this 2 Application and a check for $50.00, representing the processing fee set forth in 3 California Rule of Court 9.40(e). This request and Proof of Service is in 4 compliance with Cal. Civ. Proc. Code § lO13a. 5 6 7 8 9 II Dated: July 29,2014 Respectfully submitted, e: tt"~Llsa~ «-_ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 NOTICE AND VERIFIED APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE OF LISA M. WAYNE 1 VERIFICATION 2 3 4 5 6 I, Lisa M. Wayne, under oath, declare as follows: 1. I am an attorney for Defendant Darren Sharper in this case. 2. The matters stated in the foregoing Application to Appear as Counsel Pro Hac Vice are true of my own knowledge and belief. 7 I declare under penalty of perjury under the laws of the State of California that the foregoing is 8 true and correct. 9 10 II Executed this 29 th day of July, 2014, Denver, Colorado. 11 12 13 14 a5?-~/£0v7 ·~a~--c? 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 NOTICE AND VERIFIED APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE OF LISA M. WAYNE 1 DECLARA TION OF BLAIR BERK 2 3 I, Blair Berk, declare as follows: 4 1. I am an attorney duly admitted to practice before all of the courts of the State of 5 California. I am a partner of Tarlow & Berk PC, 9119 West Sunset Boulevard, Los 6 Angeles, California 90069, counsel of record for Defendant Darren Sharper, in the above- 7 captioned matter, and I am personally familiar with the matters set forth herein and, if 8 called to testify, could and would competently testify thereto. 9 10 11 12 13 2. I make this application in support of the Application by Darren Sharper to have Lisa M. Wayne (the "Applicant") admitted pro hac vice and associated as counsel to represent Darren Sharper in this matter. 3. On July 29, 2014, I caused to be served on the State Bar of California, at its San Francisco offices, a copy of these papers, to wit, Notice of Hearing on Application for Admission 14 Pro Hac Vice of Lisa M. Wayne; Verified Application of Lisa M. Wayne; Declaration of 15 16 17 18 19 20 Blair Berk, as well as a copy of the [Proposed] Order Granting Application for Admission Pro Hac Vice of Lisa M. Wayne, pursuant to the requirements of Rule 9.40 of the California Rules of Court. I also caused a check in the amount of $50.00 to be served on the State Bar of California at its San Francisco offices (see copy of cover letter and fee, attached as Exhibit A). 21 22 I declare under the penalty of perjury that the foregoing is true and correct. 23 24 25 26 Executed this 29 th day of July, 2014 at Los Angeles, California. ~ 27 Blair Berk 28 Attorney for Darren Sharper 7 NOTICE AND VERIFIED APPLICA nON TO APPEAR AS r.0I INSET. PRn HAr VlrF. OF lISA M W A YNF ( 1 2 3 4 5 ( J::'II4., ~f»t. SiJ TARLOW & BERK PC Blair Berk, Esq., State Bar No. 159087 Attorney at Law 9119 Sunset Boulevard Los Angeles, California 90069 Telephone: (310) 278-2111 (fel'/o/, C Oq!'Jty o(tlrr 0/4.1 1.. 0 8 ..q O~/ilb. oS".", y 8 4Ur.:'08 lUI,1).Qf!/~;'lI'q ~~ " I:- ~~-:, ~~IVeq~. <.7~;;' ~C'er.~ ~i!li D.' Jerk ............ E!l)lJty 6 7 8 9 10 11 LA W OFFICES OF LEONARD LEVINE Leonard Levine, Esq., State Bar No. 50998 190 1 Avenue of the Stars, Suite 615 Los Angeles, California 90067 Telephone: 310-553-6510 Attorneys for Defendant Darren Sharper 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 13 14 15 16 THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, 17 18 v. 19 20 21 22 DARREN SHARPER Defendant. ) ) ) .... (PRePOS~ER GRANTING ADMISSION PRO HAC VICE OF LISA M. ) WAYNE ~ ) ) ) Date: August 8, 2014 ) ~ Time: 8:30 a.m. Division: 30 ~ Date Action Filed: July 30,2014 24 ) ) ) 25 ----------------------------) 23 Case No. BA421442 26 The Application of Lisa M. Wayne to be allowed to appear in this matter as counsel pro 27 hac vice on behalf of Defendant Darren Sharper came on regularly for hearing by the Court. 28 Having considered the application and all other papers submitted and the records and files herein, 1 [PROPOSED] ORDER GRANTING ADMISSION PRO HAC VICE of LISA M. WAYNE · 1 and having determined that all conditions to admission as counsel pro hac vice as outlined in Rule 2 3 4 9.40 of the California Rules of Court have been satisfied. IT IS HEREBY ORDERED that the application of Lisa M. Wayne is granted and Lisa M. Wayne may appear as counsel pro hac vice on Defendant Darren Sharper. 5 6 ~s-A- S-I DATED:~ ~2014 7 8 9 10 -"I ". ~ ". , ';::l .. ..::r.... •• • () _~~_",, :""i . . ,: ·l '"I I I •• • :,', ,;,.'~.:..r, ,"'" !<'.~,...", ,~. , e uperior C \ rfl .. 11 ~ ...""""'...... ~::c \l~. n r.: i:>'" t·, . .;.r-t\':-· ." , : '~ . .~.' ,"" ~~'l ''''~:, '~"'~ ~t&:r,::.. J' .~~-If-c .' ', .' .? "':':':'i:.~~~"~.:~~~.~~~:~/ " 1' • 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 fPROPOSEDl ORDER GRANTING ADMISSION PRn HAr VlrF. of! I~A M WA VNJ;' ( 1 I iFILED II TARLOW & BERK PC .:l uperior Court of California County of Los Angele's II Blair Berk, Esq., State Bar No. 159087 2 3 Julianne Prescop, State Bar No. 267678 Attorneys at Law 9119 Sunset Boulevard Los Angeles, California 90069 Telephone: (310) 278-2111 4 5 6 OCT 1 7 2014 Sherrj R. ~Executive Officer/Clerk By rt.~~ _, Deputy Carolyn Anderson II LAW OFFICES OF LEONARD LEVINE Leonard Levine, Esq., State Bar No. 50998 7 111901 Avenue of the Stars, Suite 615 8 Los Angeles, California 90067 Telephone: 310-553-6510 II 9 .. LAW OFFICES OF LISA WA YNE 10 II Lisa Wayne, Admitted pro hac vice 11 11 1775 Sherman Street, Suite 1650 Denver, CO 80203 12 "Telephone: 303-860-1661 13 II Attorneys for Defendant 14 II Darren Sharper 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 FOR THE COUNTY OF LOS ANGELES 17 18 19 II THE PEOPLE OF THE STATE OF Case No. BA421442 CALIFORNIA, 20 Plaintiff, 21 v. 22 23 24 II DARREN SHARPER Defendant. 25 ) ) ) ) ) ~ NOTICE OF MOTION AND MOTION TO CONTINUE (Penal Code § 1050); DEC LARATION OF BLAIR BERK Date: October 23,2014 Time: 8:30 a.m. Division: 30 26 TO THE HONORABLE JUDGE RENEE KORN OF THE LOS ANGELES 27 28 SUPERIOR COURT OF THE STATE OF CALIFORNIA; JACKIE LACEY, THE II 1 MOTION TO CONTINUE (PENAL CODE § 1050) ( 1 DISTRICT ATTORNEY OF THE COUNTY OF LOS ANGELES, AND/OR THEIR 2 REPRESENTATIVES 3 PLEASE TAKE NOTICE, pursuant to Penal Code section 1050, that on October 4 23,2014, at 8:30 A.M., or as soon thereafter as the matter may be heard in Division 30 of 5 the above entitled court, the defendant, Mr. Darren Sharper, through his attorney of 6 record, will move the court to continue the preliminary hearing for this matter to a date 7 convenient to court and counsel. 8 This motion is brought pursuant to Section 1050 of the Penal Code on the grounds 9 that the defense needs additional time to complete forensic testing of hair samples that 10 were first released to the defense on October 9, 2014. This delayed disclosure of these 11 samples, which this court had ordered the prosecution to obtain and tum over to the 12 13 14 15 16 defense within five days of its order on September 16, 2014, has prevented the defense from being able to effectively confront and cross-examine the forensic analysts that the prosecution expects to call at the preliminary hearing. Additionally, the defense has not been provided with all of the essential discovery discussed in the defense's motion to 'continue heard on September 16,2014. On October 16, 2014, the assigned Deputy District 17 Attorney indicated that, on this basis, she would not oppose a continuance of the 18 19 20 21 22 23 preliminary hearing until an agreed-upon date. This motion is based upon this notice, the attached Declaration of Blair Berk, the papers, pleadings, and records on file in this case, and on such evidence and argument as may be received at the hearing on the matter. DATED: October 17,2014 Respectfully submitted, 24 25 26 27 ~~ Blair ~ Attorney for Darren Sharper 28 2 MOTION TO CONTINUE (PENAL CODE § 1050) ( 1 II TARLOW & BERKPC Blair Berk, Esq., State Bar No. 159087 2 II Julianne Prescop, State Bar No. 267678 3 Attorneys at Law 9119 Sunset Boulevard 4 Los Angeles, California 90069 Telephone: (310) 278-2111 5 6 II LAW OFFICES OF LEONARD LEVINE Leonard Levine, Esq., State Bar No. 50998 7 11190 1 Avenue of the Stars, Suite 615 Los Angeles, California 90067 8 Telephone: 310-553-6510 II 9 II LAW OFFICES OF LISA WAYNE 10 Lisa Wayne, Admitted pro hac vice 111775 Sherman Street, Suite 1650 11 Denver, CO 80203 12 II Telephone: 303-860-1661 13 II Attorneys for Defendant 14 II Darren Sharper 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 FOR THE COUNTY OF LOS ANGELES 17 18 19 II THE PEOPLE OF THE STATE OF Case No. BA421442 CALIFORNIA, 20 21 22 23 24 25 DECLARATION OF BLAIR BERK IN SUPPORT OF MOTION TO CONTINUE Plaintiff, v. II DARREN SHARPER Defendant. ) ) ) ) ) Date: October 23,2014 Tim"e: 8 :30 a.m. Division: 30 ~ 26 27 28 3 M()TI()N T() r()NTTNTIF (PENAl r()OF R l()"m ( ( 1 I, Blair Berk, declare as follows: 2 1. I am the attorney of record for the defendant, Darren Sharper, in the above- 3 entitled case. I am duly authorized to practice law in the State of California. My office is 4 located at 9119 Sunset Boulevard, Los Angeles, California 90069. 5 6 2. This case is currently on calendar for a preliminary hearing on October 23, 3. On September 16, 2014, the defense requested a motion to continue because 2014. 7 8 it had not received essential discovery necessary to confront and cross-examine the 9 prosecution's proposed forensic witnesses at the preliminary hearing. At that same time, 10 11 the court ordered the prosecution to obtain and disclose to the defense hair samples from the complaining witnesses within 5 days. 12 13 14 15 4. On October 1, 2014, the prosecution informed the defense that it had obtained two samples and was unable to obtain the other two court-ordered samples. 5. The prosecution did not release any of the hair samples that it obtained to the defense until October 9, 2014, at which point the samples were sent via express mail 16 to be tested by an independent laboratory. These samples were not received at the 17 18 19 20 21 22 23 24 25 laboratory for testing until October 13,2014. The laboratory has informed the defense that it will not be able to complete testing prior to the October 23, 2014 preliminary hearing date. 6. Additionally, the defense did not receive the bulk 6fthe essential discovery, necessary to confront and cross-examine the prosecution's proposed forensic analyst witnesses, until September 29, 2014. It has still not received vital discovery .regarding these proposed forensic analyst witnesses. 7. On October 16, 2014, I spoke with assigned Deputy District Attorney Stacy 26 Okun-Weise regarding these issues and specifically asked her whether she would object to 27 a continuance, in order to allow the defense time to obtain and investigate this essential 28 discovery and have the hair samples analyzed. She indicated to me that she would not 4 MOTION TO rONTlNI IF. (PF.NA I. r.onF. S 10.'i0) 1 object to a continuance of the preliminary hearing to an agreed-upon date, for the stated 2 reasons. 3 4 II I declare under the penalty of perjury that the foregoing is true and cor.rect. 5 6 7 8 9 10 II Executed this 16 th day of October, 2014 at Los Angeles, California. ~ Blair Berk Attorney for Darren Sharper 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 MOTION TO CONTINUE (PENAL CODE § 1050) ( 1 PROOF OF SERVICE 2 STATE OF CALIFORNJA 3 COUNTY OF LOS ANGELES ) ) ) 4 I am employed in the County of Los Angeles, State of California; I am over the age 5 6 .. of eighteen years and not a party to the within action; my business address is: 9119 Sunset Boulevard, Los Angeles, California 90069. 7 On October 16, 2014, I caused a true copy of the attached MOTION TO 8 II CONTINUE (PENAL CODE SECTION 1050); DECLARATION OF BLAIR·BERK to 9 "be served upon the interested party by the method indicated: 10 Stacy Okun-Wiese and Alison Meyers It Deputy District Attorneys 12 Los Angeles County District Attorney's Office 13 210 W. Temple Street, 18th Floor 14 Los Angeles, California 90012 15 (X) 16 17 18 19 20 By Hand Delivery I declare under penalty of perjury under the laws of the State of California that the II above is true and correct. Executed on October 16th , 2014, in Los Angeles, California. c:; --r-r ~ 1anne 21 22 23 24 25 26 27 28 6 MOTION TO CONTINUE (PENAL CODE § 1050)