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Robert Downey, Jr. Pleads Not Guilty on Drug Charges

Aired December 27, 2000 - 11:18 a.m. ET


DARYN KAGAN, CNN ANCHOR: We want to go live to Indio, California, this is where the arraignment of actor Robert Downey, Jr. is beginning on drug charges.



JUDGE B.J. BJORK, INDIO SUPERIOR COURT: Have you received the copy of the plaintiff involved in this case?

WATERS: I have your honor.

BJORK: The motion was filed in the agreement?

WATERS: Yes, your honor.

BJORK: I have read the motion by the defense for a continuance, and the individual asked that a motion be filed?

WATERS: Unless the court has some specific inquiry. As the court is aware, there is usually a notice requirement on 1050s. However, since the proceeding had not actually started until today and yesterday, I'm sorry Monday being Christmas Day, it was impossible to file it at that time. We did give oral notice to the district attorney that that was our intention. They said they would waive written notice, but as a courtesy to the court, so the could would not be caught unaware of our intentions, Mr. Eckert (ph) thought it would be prudent to file a written notice.

BJORK: I notice that the written notice is filed December 26th. The 1050 requires two court days in advance notice. Mr. Elliott (ph), do you wish to comment regarding this?

TRICIA KELLY, DEPUTY DISTRICT ATTORNEY: Your honor, the people would oppose any motion for a continuance. And although it is correct that we did waive any written notice of the motion, we did anticipate there would be a motion forthcoming from the defense. However, as the court has indicated, you have written the motion, and the grounds contained therein do not constitute good cause under 1050, specifically sub-section G one and two. There is no reason to continue this arraignment.


DANIEL BROOKMAN, ROBERT DOWNEY JR.'S ATTORNEY: I believe we have stated good cause, your honor. Additionally 990, does seem to indicate that even if the arraignment does take place, the plea part of the arraignment can be postponed until a later time, as a matter of right. However, I understand it to be the court's normal procedure, if there is going to be that kind of continuance granted, at a first- time appearance, to continue the entire proceeding, the arraignment and the plea.


KELLY: Your honor, if there is an indication that more time is needed to gather, for instance, discovery, or for the filing of demur at this point, the people would stipulate that a demure could be filed post-arraignment, therefore obviating any need to continue this arraignment.

The discovery, as the court is aware, is mandated under 1054, although we have voluntarily begun the process of discovery, that is not good cause to continue the arraignment. And, at this point, since this looks like it will be set on the EDP calendar. Counsel and I have briefly spoken about perhaps setting this approximately the third week of January for the EDP calendar, thus giving them enough time to cover all of the information that they have put forth in their motion for a continuance.


BROOKMAN: Well, counsel is correct on the demur aspect, your honor. However, I understand that a stipulation by counsel, as to allowing a defendant to withdraw his plea for purposes of entering a demur subsequent to entering the plea is discretionary with the court.

So I will represent to the court that we have contemplated, and are in the initial steps of filing a demur. And that being the case, I think that the appropriate action would be to continue the entire proceeding and allow us to file that demur, if, in fact, based on other items that have been forwarded to us by the district attorney's office indicate that a demur would be a proper pleading to enter into in the next court appearance.


KELLY: Yes, your honor.

BROOKMAN: Yes, your honor, we did meet with the district attorney's office a few days before the filing of the case. There were items that we have discussed with the district attorney. We did proceed in our investigation to the police department, where a number of items were being made available to us.

As of last week, a good number of them had not been provided to us at that time. I had sent the district attorney's office a letter stating that, pursuant to informal discovery, we were now listing items that we had requested, but not yet received, and that would have helped us in preparation.

I was contacted by the district attorney that we could pick up those items before noon on Friday last, two days before -- three days before Christmas, that would be the Friday before the Christmas weekend. And we did, in fact, get some of those items. Mr. Eckert picked them up here in Indio. Mr. Waters and I are in Santa Monica, and we didn't even see those items until last night.

We have gone over them, there is still a good number of them that were on our list that have not been provided. There are Videotapes, there are audiotapes that we have yet to peruse, there it results of laboratory analysis that we have yet to see. We are requesting splits of various items for independent analysis, which they have agreed to, but also indicated that certain items had gone to the Department of Justice laboratory, and that it would take some time.

But in answer to the court's question, yes, we have been provided with some. We did have discussions with them, I think around December 7th. But, as I stated, they were not provided to us until December 22nd.

So since it's only been four days since we actually got these in the defense possession, and in reality less than 24 hours since counsel have actually seen them, I don't think a continuance would be unduly burdensome upon the court or the prosecution.

BJORK: Ms. Kelly.

KELLY: Your honor, as the court is aware, traditionally, the defense does not even start to begin receiving discovery until after the arraignment. This is unique in that the defense has an opportunity to have a good deal of the discovery given to them, or an opportunity to review the evidence at this point post -- pre- arraignment -- excuse me. Post-arraignment, they are not prejudiced at all in receiving the discovery that is coming to them and deciding to file any demur. I don't think that the court would have a problem, the people are willing to stipulate a post-arraignment demur could be filed.

There really is no reason at this point to continue on the basis Mr. Brookman has set forth, 1054 is very clear that had we taken a hard-nosed approach to this, we wouldn't need to start exchanging discoveries theoretically until 30 days before the trial. We are trying to facilitate that, to ease the burden that this case has brought to the court, because of the celebrity of the defendant.

However, that is not -- that is not the basis for the trial, that is not the basis for a continuance. I would ask the court to follow through with the arraignment at this point, and have the defendant enter a plea.

BJORK: Mr. Brookman.

BROOKMAN: Well, always wanting to get the last word in, I think all the arguments have been made to the court. However, one more point, jumping aside from the discovery aspect for right now, 990 of the Penal Code does, as I indicated before, allow a bifurcation of the arraignment and plea procedure. In other words, it wouldn't be arraignment and plea as one procedure. If the court wishes to go ahead, as I indicated before, I think the prudent way would be to have the arraignment and plea both continue to a date certain, but if the court is of the mind that he should be arraigned today, I cite the court to section 990, where it says that once an arraignment is made, the defendant should have reasonable time to file a plea in that case. So the Penal Code does contemplate, at least this bifurcation of the arraignment and the plea.

And as I have also stated, I think the prudent thing and the normal course on a first-time appearance by just about any defendant would be a first-time continuance to allow a further consideration of what plea to enter, rather than putting in a plea, and then having to go through the formality of withdrawing the plea, for purposes of challenging by demur or some other plea, the propriety of that plea.


KELLY: Your honor, the people would simply ask the court follow the normal procedure in this instance, and have the arraignment, have the defendant enter a plea. Bifurcation at this point is a waste of the court's time and resources. There is no valid purpose behind it, and as I've indicated earlier, a date set on the EDP calendar a few weeks down the road gives the defense enough time to complete their discovery process and to adequately advise their client for the next step.


BOOKMAN: Submitted, your honor.

BJORK: And looking at 990 in the Penal Code, and all familiar, looking at your motion, Mr. Brookman, I read the case of People v. Crovoei, a 1966 case; 65 Cal 2nd, 1999, and that case actually referred to a request for a continuance in order for the defendant to obtain counsel. He had counsel, there were four days into the trial, his counsel became ill. There was a request for a continuance because of trial counsel's illness, and you were trying to change or substitute counsel. The court in that case denied the continuance and they found it unreasonable.

However, we don't have the same situation. That's the court that you -- the case that you actually cited to the court for the motion for continuance.

Also, looking at and asking for good cause, at the arraignment time, it is normally unusual for counsel to have full discovery at the arraignment time of the defendant.

And also taking a look that this is an EDP case, expedited drug program case, it also appears that the request for a continuance would probably be inappropriate.

However, one comment you did make, it has long been the policy here, at least in Riverside County, down in the valley, that if a plea of not guilty is entered, that the defendant has the right subsequently to file the demur and vacate the plea of not guilty. It's been long the policy here in the valley, the prosecutor is willing to stipulate to what has been a long-going policy. It appears to me, looking at the motion, there isn't good legal cause for a continuance. But also keeping in mind that this matter going on the EDP calendar, and the court frequently and quite often will take a time waiver and set the EDP proceedings, which is actually somewhat prior to a preliminary hearing, set that on over. We allow continuances, quite liberal in allowing continuances.

So, on that basis, the motion for continuance at arraignment will be denied at this point in time.

BROOKMAN: Thank you very much, your honor. I appreciate the court's consideration of that motion. We will abide by the ruling.

Your honor, at this time, as the court is preparing to take the plea of Mr. Downey...


BROOKMAN: Yes your honor.


BROOKMAN: Yes your honor, he has.

BJORK: Robert Downey, Jr. is that your name?

ROBERT DOWNEY, JR., ACTOR: Ye,s your honor.

BJORK: Are you going by any other name?

DOWNEY: No, your honor.


BROOKMAN: Yes, your honor, we are.

BJORK: That plea is?

BROOKMAN: That plea is not guilty, your honor.

BJORK: Very fine. This matter should go on the EDP calendar on the next available case. The next calendar date would be that of tomorrow December the 28. However, if you wish to waive time, we'll set the matter on over to a date of your choosing in January, either a Monday, Wednesday or Thursday.

BROOKMAN: Thank you very much, your honor.

KELLY: Your honor, if I could interject for a moment. We do need a denial on the special allegation of the enhancement, your honor.

BJORK: (INAUDIBLE) BROOKMAN: That's correct your honor.

BJORK: Next EDP date would be tomorrow, December 28th. Do you wish to waive time?

BROOKMAN: I do your honor. Thank you, your honor. I understand that, as I -- the court and counsel in conversations that Friday is an EDP date.

BJORK: It's not an EDP date.

BROOKMAN: Monday is; is that correct?

KELLY: Monday.

BROOKMAN: Could we have, your honor, with the appropriate time waiver, Monday, January 29th?

BJORK: And, that OK?

KELLY: Yes, your honor.

BJORK: Mr. Downey, you have a right to speed at this hearing. Within 60 days from the date that you're arraigned. Do you waive that right to set this matter on the EDP calendar on January 29th, 2001?

DOWNEY: Yes, your honor.

BJORK: And having been waived, the matter will be set for the EDP calendar, that will be January the 29th, year 2001; that is at 1:30 p.m. in room 2K across the street.

BROOKMAN: There is one more matter, your honor, before the court.

KELLY: As to the time waiver, if I may interject again, the court has taken a time waiver to the 29th for EDP.

BJORK: EDP calendar, that is correct.

KELLY: Is the court willing to ask for a time waiver beyond that for 30 days?

BJORK: (INAUDIBLE) If the matter cannot be resolved on that calender, then it would be set for preliminary hearing. The preliminary hearing date would be a reasonable date after January 29th. Is that agreeable, Mr. Brookman?

BROOKMAN: Yes, it is, your honor.

BJORK: Mr. Downey?

DOWNEY: Yes, your honor.

BROOKMAN: Also, your honor, I'm sorry. Am I up?


BROOKMAN: Thank you. Your honor, also, in regards to this, it is the court's policy for 977 waivers to be filed in open court. We have prepared a waiver of the defendant's personal appearance should it happen to come up in the future for any proceeding that the date has to be changed. For example, I'm sure the court is aware of this. I prepared a document it is unsigned. I'm asking Mr. Downey to affix his signature at this time in open court for filing. I will provide a copy for the district.


KELLY: I do, your honor. The people will be opposed at this time to any 977 being accepted by the court. If the purpose behind setting it on the disposition calendar is to find some sort of resolution on the case, then we do believe the defendant must be present to enter any type of plea or do sentence.

I understand that the 977 is at the discretion of the court, and the court makes the call. However, the people would urge the court to not accept a 977 at this point, and ask that the defendant be present at all court dates to attempt to resolve this matter in a expedited matter.


DOWNEY: Yeah, your honor, I do.


So on the 29th you know he'll be signing a 9778 form, and Mr. Downey's appearance will be required on January 29th, 2001, 1:30, room 2-K. Then we will see what happens at that point in time regarding any further appearances. Is that sufficient, Ms. Kelly?

KELLY: Yes, thank you, your honor.

BJORK: Do you understand?

DOWNEY: Yes, I do, your honor.

BJORK: Do you wish to sign the form?


BJORK: You may sign the form.

BROOKMAN: Thank you, your honor, Mr. Downey has executed the form. I'm handing it to the bailiff for filing.

BJORK: At this point in time, is there anything further on this?

KELLY: Your honor, the people would just request a copy of the 977 for our files. it is provided or perhaps Mr. Brookman has a copy.

BJORK: We will make copies for all parties. KELLY: Thank you.


KELLY: I have nothing further your honor.

BROOKMAN: Can I have a moment, your honor?

KAGAN: We're watching the conclusion of the arraignment of actor Robert Downey, Jr. In this latest go-around of his legal problems, this time he is charged with two felony possession counts, drug counts, and one misdemeanor count of being under the influence of a controlled substance. This arraignment taking place today in Indio, California.

We heard Robert Downey, Jr. enter a plea of not guilty.

To understand a lot of the legalese that we heard taking place over the last several minutes, we have our legal analyst Roger Cossack to kind of dissect it and explain to us what was taking place.

First, it seemed like most of the time was taken, as the defense attorneys were going for a continuance. Why would they want that?

ROGER COSSACK, CNN LEGAL ANALYST: Well, this is a special case. Robert Downey, Jr. is a celebrity. The question is, and he is charged with possession of drugs. It is not the kind of crime where he stuck a gun in somebody's face. So the best that they can do is put some time between now and when he has to act eventually face the bar of justice on this issue and perhaps get him into a rehab place, perhaps try and clean him up, perhaps try and do all of those things that one would be if one was representing someone who had a drug problem.

They are in no hurry. He also can work as long as he is out. He, as we know, is very active. He is on "Ally McBeal." So they clearly want to keep him out, and keep him away, and hopefully, you know, rehabilitate him.

KAGAN: And this last little item, housekeeping item that we saw. He signed a form saying that he would not have to be present at future court dates. Why would he sign that? And why would the just allow that?

COSSACK: We have heard this Section 977 of the California Penal Code. And what that does is allow someone who is charged with a felony. In California, if you are charged with a felony, you must come to court. If you are charged with a misdemeanor, you can be represented by counsel, and not come to court. He is charged with a felony.

KAGAN: Two felony courts and one misdemeanor.

COSSACK: The felony court means that he has to come to court at every court proceeding. But by signing this 977 waiver, he is saying: I am waiving my right to come to court, I can be represented by counsel. But what you heard the problem is: California they have an expedited drug program.

KAGAN; What was that EDP? We kept hearing those letters.

COSSACK: What that is the way that they take the next court date, and they say: Let's see if we can work this out among counsel. So they set a date -- and I think that the date was January 29th. What counsel is supposed to do between now and January 29th is get to the prosecutor. And the prosecutor will sit down together, and they will say: Look, what can we work out here? Does your client want to enter a plea? And then the defense lawyer says: Well, what kind of sentence? Will you send him to rehab? Does he have to go to jail? What you would suggest to the court?

If they can work a disposition in this case between the lawyers, then they will come back on the 29th, and they will take care of that disposition.

If they can't, then another date will be set for motions, for trial, for the traditional kinds of things that we know in a court proceeding. But first, under the expedited program in California, they will try -- they set this up so that the -- they can work out some kind of a disposition.

Oftentimes, in drug cases, and particular in drug cases, they will work out some kind a situation.

You know, Robert Downey, Jr. is a very high-profiled drug arrestee.

KAGAN: This is not typical, the way that this court proceeds, in much the same way that O.J. Simpson was not a typical murder trial?

COSSACK: Well, in the sense, it is typical. In the sense that this is the kind of program. What's not typical is the kind of publicity...

KAGAN: Of course not.

COSSACK: ... that someone who gets arrested for drugs. There are people who go through these courthouses, not only in California, but in all states unfortunately, with long, long wrap sheets, and people who have been arrested for using drugs, for perhaps even selling small amounts of drugs, who go in and go out. It's a national problem, and Robert Downey, Jr., in some ways, is illustrative of that problem. He gets much more publicity.

But what he is is illustrative of a whole series and number of people who go in and out of our courtrooms with drug problems.

KAGAN: A lot of people facing those same problems. Roger, thank you very much.

Let's go ahead and bring in Paul Vercammen, who is covering this for us in Indio, California.

Paul, both Roger and I were remarking how many cameras were in that courtroom today.

PAUL VERCAMMEN, CNN CORRESPONDENT: Well, there were a ton of still cameras. You could see that they were flashing, and there was only the one pool camera, which is the CNN camera.

If you don't mind, I can show you what has happened here. We have had a whole sort of satellite garden of trucks. Go ahead, Rick, you can go ahead and pan over there. You might get a few different sort of sticks and whatnot in your way.

All of this is cropped up here in Indio, California. Generally not used to having such a big media event, but there was a lot of interest, by not only by the broadcast journalists, but by the print media. I saw someone from "People" magazine here and other outlets. And they all turned out to see what would happen today with Robert Downey, Jr.

You are right, Daryn, it was a little crowded in that courtroom. Not the usual fare that goes on here in Indio, in Courtroom 1A for a Monday morning arraignment.

KAGAN: Things usually a little bit slower in the Coa-Chella Valley there.

Paul, anything else to add to what we saw this morning?

VERCAMMEN: We are waiting for Robert Downey, Jr. to exit the courtroom, and I believe he is going to leave from the side. We were hoping that his attorneys would come up and talk with us, and they may still. So hang on for that.

Interesting, of note, they have obviously allowed Robert Downey, Jr. to come on back on the 29th. I would expect that he would attend the Golden Globes, and if I am not mistaken, that date is the 24th, and that is in Los Angeles. So he still has some business and some things to do. And we have also seen him in court before, where he probably didn't look his best. I think that is a diplomatic way to put it. He looked fairly lucid this morning. I don't know if you noticed, but he seemed to be rather wide-eyed and awake, and in fairly decent shape.

KAGAN: That he did. A long string of court appearances that you could compare it to, unfortunately for a man who has had many struggles over the years.

Paul Vercammen, in Indio, California, thank you very much.



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